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MIDTERM VIETNAM BUSINESS

FORUM 2015

Hanoi, June 9, 2015

MPI
MINISTRY OF PLANNING
& INVESTMENT

Midterm Vietnam Business Forum 2015

ENHANCING ENTERPRISE
COMPETITIVENESS FOR GLOBAL
INTEGRATION

Hanoi, June 9, 2015

DISCLAIMER
The Vietnam Business Forum (VBF) is a structured and ongoing policy dialogue between the
Vietnamese Government and the local and the foreign business community for a favorable
business environment that attracts private sector investment and stimulates sustainable
economic growth in Vietnam.
This publication was created for the Midterm Vietnam Business Forum on June 9, 2015 in Hanoi.
The conclusions and judgments contained in this publication, as well as presentations made by
businesses representatives at the Forum, should not be attributed to, and do not necessarily
represent the views of, the VBF Consortium Board, or the VBF Secretariat, or its co-chairing
institutions including Vietnams Ministry of Planning and Investment, the World Bank group, and
IFC - a member of the World Bank group. These parties do not guarantee the accuracy of the
data in this publication and the aforesaid presentations, and accept no responsibility for any
consequences of their use.
This publication is distributed subject to the condition that it shall not, by way of trade or
otherwise, be lent, re-sold, hired out, or otherwise circulated on a commercial basis.

TABLE OF CONTENTS
TENTATIVE AGENDA
Section I: REVIEW OF BUSINESS CLIMATE
1.1.
Perceptions by Foreign & Local Business Associations/Chambers
Section II: TRADE, TOURISM AND INVESTMENT - Issues of implementation of new Laws on
Investments, Enterprises, Immigration, Residential Housing and Real Estate Business
2.1.
2.1.1.

INVESTMENT AND TRADE


Report from VBF Investment and Trade Working Group

2.2.
2.2.1.

VISA AND TOURISM


Position Paper of VBF Tourism Working Group

2.3
2.3.1.
2.3.2.

RESIDENTIAL HOUSING AND REAL ESTATE BUSINESS


Position Paper of VBF Land Sub-Group
Comments and recommendations on the draft Decree guiding the implementation of
Law on Residential Housing 2014
Comments and recommendations on the draft Decree guiding the implementation of
Law on Real Estate Business 2014

2.3.2.
2.4.
2.4.1.
2.4.2.
2.4.3.
2.4.4.
2.5.
2.5.1.
2.5.2.

INVESTMENT LAW AND ENTERPRISE LAW


Comments and recommendations on the draft Decree on Business Registration
Comments and recommendations on the draft Decree guiding the implementation of
Investment Law 2014
Comments and recommendations on the draft Decree guiding the implementation of
Enterprise Law 2014
Meeting notes with Ministry of Planning and Investment on draft Decree guiding the
implementation of Investment Law 2014 on April 22, 2015 in Ho Chi Minh City
OTHER ISSUES
Comments and recommendations on the draft Circular on importation of used
machinery, equipment and production lines
Meeting notes with Ministry of Science and Technology on draft Circular on
importation of used machinery, equipment and production lines on 17th March 2015 in
Ho Chi Minh City and 18th March 2015 in Hanoi.

Section III: BANKING AND CAPITAL MARKETS - Needs for positive growth
3.1.
3.1.1.

BANKING
Position Paper of VBF Banking Working Group

3.2.
3.2.1.
3.2.2.

CAPITAL MARKETS
Position Paper of VBF Capital Markets Working Group
Talking points for the meeting with State Securities Commission of Vietnam on
25th May 2015 in Hanoi

Page 1 of 2

3.2.3.
3.2.4.
3.2.5.

Comments and recommendations on the draft Decree amending a number of Articles


of Decree no.58/2012/ND-CP on securities
Comments and recommendations on the draft Circular amending a number of Articles
of Circular No. 213/2012/TT-BTC guiding operations of foreign investors on
Vietnamese securities market
Comments and recommendations on the draft Circular guiding information disclosure
on Vietnamese securities market

Section IV: INFRASTRUCTURE - Requirements for PPP implementations, port


strengthening and power generation needs in Master Plan VII
4.1.
4.1.1.

PUBLIC-PRIVATE PARTNERSHIP (PPP)


Position Paper of VBF Infrastructure Working Group: New PPP Decree Paving
the way for enhanced competitiveness?

4.2.
4.2.1.

PORT AND SHIPPING


Position Paper of VBF Port and Shipping Sub-Group

4.3.
4.3.1.
4.3.2.

POWER AND ENERGY


Position Paper of VBF Power and Energy Sub-Group
Topic discussions for the meeting with Ministry of Industry and Trade (MOIT) and
Ministry of Planning and Investment (MPI) on 15th May 2015 in Hanoi
Meeting notes with MOIT and MPI on 15th May 2015 in Hanoi

4.3.3.

Section V: REPORTS FROM OTHER WORKING GROUPS


5.1.
5.1.1
5.1.2.
5.1.3.

CUSTOMS AND TAX


Position Paper of VBF Customs Working Group
Comments on discussion topics on the existing Law on Import and Export Tariffs
Comments on the draft Law amending the Law on Import and Export Tariffs

5.2.
5.2.1.

HUMAN RESOURCES
Position Paper of VBF HR Sub-Group

5.3.
5.3.1.
5.3.2.

MINING
Position Paper of VBF Mining Working Group
Policy brief financial mechanism in extractive industry

Section VI: APPENDIX


6.1.

Summary notes of Mid-term Vietnam Business Forum June 2015

Page 2 of 2

MID-TERM VIETNAM BUSINESS FORUM 2015


Enhancing Enterprise Competitiveness for Global Integration

Date and Time: 7:00 13:30, Tuesday, June 9, 2015


Venue: Crystal Grand Ballroom, 6th Floor, LOTTE HOTEL HANOI, 54 Lieu Giai, Ba Dinh, Hanoi

TENTATIVE AGENDA
Registration

8:00 8:15

Opening Remarks
Ministry of Planning and Investment H.E. Mr. Bui Quang Vinh, Minister
International Finance Corporation Mr. Kyle F. Kelhofer, Regional Manager
Vietnam Business Forum Consortium Mrs. Virginia B. Foote, Co-Chair

8:15 8:45

Review of Business Climate


1. Vietnam Chamber of Commerce and Industry Dr. Vu Tien Loc, President
2. American Chamber of Commerce Ms. Sherry Boger, Chairperson
3. European Chamber of Commerce Mr. Tomaso Andreatta, Vice Chair
4. Korea Chamber of Business Mr. Ryu Hang Ha , Chairman
5. Japanese Business Associations - Mr. Shimon Tokuyama, Chairman
6. Hanoi Young Business Association Mr. Tran Anh Vuong, Vice Chair

SESSION 1

7:00 8:00

1. Trade, Tourism and Investment - Issues of implementation of new Laws


on Investment, Enterprises, Immigration, Residential Housing and Real
Estate Business
Investment and Trade: Mr. Fred Burke Co-Heads of Investment and

SESSION 2

Trade Working Group

8:45 9:40

Visas and Tourism: Mr. Ken Atkinson Head of Tourism Working Group
Residential Housing and Real Estate: Mr. David Lim Head of Land Sub-Group

Responses from the Government


Ministry of Planning and Investment
Ministry of Health
The Supreme Peoples Court
Ministry of Justice
Ministry of Science and Technology
Ministry of Public Security
Ministry of Culture, Sports and Tourism
Ministry of Construction
Ministry of Labour - Invalids and Social Affairs

Page 1 of 2

SESSION 3

2. Banking and Capital Markets Needs for positive growth


Banking: Mr. Nirukt Sapru Head of Banking Working Group
Capital Markets: Mr. Kien Nguyen Representative of Capital Markets

Working Group

9:40 10:15
10:15
10:30

Responses from the Government


Ministry of Planning and Investment
State Bank of Vietnam
State Securities Commission of Vietnam
Ministry of Finance

Coffee Break
3. Infrastructure Requirements for PPP implementations,
strengthening and power generation needs in Master Plan VII

SESSION 4

10:30
11:10

port

Infrastructure: Mr. Tony Foster and Mr. Tran Tuan Phong Co-Heads of

Infrastructure Working Group


Port & Shipping: Mr. Robert Hambleton Head of Port and Shipping Sub-Group
Power & Energy: Mr. Sean Chung Representative of Power and Energy
Sub-Group
Responses from the Government
Ministry of Planning and Investment
Ministry of Transport
Ministry of Industry and Trade
Ministry of Finance

LUNCHEON

SESSION 5

11:10 - 11:45 KEYNOTE ADDRESS by PRIME MINISTER H.E. Mr. NGUYEN TAN DUNG

11:45 12:00

12:00
13:30

Closing Remarks
World Bank Mrs. Victoria Kwakwa, Country Director
Vietnam Business Forum Consortium Dr. Vu Tien Loc, Co-Chair
Ministry of Planning and Investment H.E. Mr. Bui Quang Vinh, Minister

VIP Lunch By Invitation Only

Networking Lunch
+ Executive Club Lounge 59th Floor, Lotte Hotel Hanoi
+ Grill 63 63rd Floor, Lotte Hotel Hanoi
END OF MID-TERM VIETNAM BUSINESS FORUM 2015

Page 2 of 2

Section I

REVIEW OF
BUSINESS CLIMATE

American Chamber of Commerce in Vietnam (AmCham)


AMCHAM STATEMENT
Mid-term Vietnam Business Forum
Hanoi, June 9, 2015

Presented by
Ms. Sherry Boger
Chairperson
Prime Minister and Ministers,
Business leaders
Distinguished Delegates
Ladies and Gentlemen
I am pleased to participate in this important VBF Meeting, with the theme: Enhancing
competitiveness toward international economic integration.
SOME POSITIVE DEVELOPMENTS
First, it is important that we recognize that Vietnam has been extremely successful in
international economic integration in general and with the United States in particular. Last
year, total trade between our two countries again expanded by 20% and reached $36.3
billion, and could reach nearly $72 billion by 2020 if present trends continue, and even more
with TPP1. Moreover, in 2014, Vietnam became the leading ASEAN country supplier to the
United States, ahead of Malaysia and Thailand. Vietnams share of total U.S. imports from
ASEAN was 22%, and could exceed 30% by 2020, if present trends continue2.
On the other hand, Vietnam is the lowest-ranked of all ASEAN countries for U.S. exports, at
only $5.7 billion in 20143. This figure could certainly be increased by improving Vietnams
business environment for exporters from the U.S. and other countries, and importers in
Vietnam and their distributors.
At the same time, revenues of AmCham companies and their partners in Vietnams
domestic market continued to grow, as well, and a number of AmCham companies
increased their FDI in Vietnam.
TPP, OTHER FREE TRADE AGREEMENTS AND INTERNATIONAL ECONOMIC INTEGRATION
After many years of work, the Trans-Pacific Partnership Free Trade Agreement is closer to
conclusion and ratification. With work and reform, Vietnam could be the largest beneficiary
from the TPP in relative terms.
The TPP is important for all member countries and especially Vietnam, first of all, because
of the specific, positive impact on exports of goods and services, GDP growth, and the
1

see attachment 1
see attachment 2
3
see attachment 2
2

Page 1 of 9

creation of more jobs. Some experts predict that Vietnams exports will increase by 28.4%
with TPP. The expected export baseline in 2025 without TPP of $239.0 billion could grow
to $307 billion. In addition, the expected GDP growth benefits are substantial. According to
the World Bank, Vietnams average annual GDP growth rate was 7.4% over the period 1990
2007, and is projected at 5.6% over the period 2008-2018. With TPP, Vietnams GDP in
2025 could be 10.5% higher than the baseline estimate.
Business and government leaders are increasingly aware of the growing importance of the
Asia Pacific Region and the associated benefits of TPP. According to a widely quoted study
published by the Brookings Institution and the Organization for Economic Cooperation and
Development (OECD) Growth of both multinationals and the global economy will depend
increasingly on emerging market consumers, especially in Asia (India, ASEAN, and China).
Global middle-class spending should rise from $21.3 trillion in 2009 to $55.7 trillion in 2030.
Asias share should increase from 23% in 2009 to 59% in 2030. In 2009, there were 525
million middle-class consumers in the region. By 2030, that number will be 3.2 billion.
That is one reason why U.S. and other global corporations have established and are
establishing more production facilities in Vietnam, to serve Vietnam, ASEAN, Asia-Pacific,
and other global markets. It is also why we are all interested in developing free trade
agreements such as the TPP, the EU-Vietnam FTA, the ASEAN Economic Community 2015,
the Korea-ASEAN FTA, the Japan-ASEAN Economic Partnership Agreement, etc.
Finally, as the U.S. Congress has moved and is moving toward approval of Trade Promotion
Authority to prepare for prompt ratification of TPP, we hope and expect that Vietnam and
the U.S. will have concluded negotiations. We salute the TPP as it will help to further lay a
foundation for regional integration, and further economic and social development.
Cooperation in the TPP can be a foundation and engine for the U.S.-Vietnam Comprehensive
Partnership announced in July 2013.
ENHANCING ENTERPRISE COMPETITIVENESS TOWARD INTERNATIONAL ECONOMIC
INTEGRATION
While Vietnam has been extremely successful in attracting FDI and benefitting from
significant export growth from FDI factories, and we would like to see additional growth and
participate in the further development of supporting industries.
In 2015, small and medium-sized enterprises (SMEs) in Viet Nam generally lack the
capacity to participate in supply chains for FDI factories. Only 36% of all Vietnamese firms
are integrated into export-oriented production networks, compared with nearly 60% in
Malaysia and Thailand. Just 21% of Vietnamese SMEs participate in global supply chains,
and SMEs contribution to exports from Viet Nam is significantly less than in other
countries. Improvements in hard and soft infrastructure can greatly grow these numbers
Future economic and social development will depend on further integration into global
supply chains so we can all benefit from global sources of funding and technology and gain
access to global markets. A proposed new law on SMEs together with the selection of five
industry sectors for developing clusters and value-chain products: electronics, textiles,
food processing, agricultural machinery, and tourism can help. Action plans should be
drawn up that include cooperation with the private sector, especially FDI, which would
better inform the government and companies both about successful SME development
incentives in other countries, and about necessary requirements for joining global supply
chains and developing supporting industry clusters. In addition, a modern education system
that supports such development by providing work-ready graduates and innovative
Page 2 of 9

research for manufacturing industry, accounting practices that are globally accepted,
administrative and tax procedures that are streamlined and transparent,-- all contribute
to supply chain integration.
Vietnam has roughly 400 business associations representing specific business sectors and
regions. These associations are a source of information on market conditions for their
members, as well as training in business development and export requirements. Given
their role in raising the competiveness of SMEs in the export economy both as direct
exporters and suppliers to FDI, they can serve as conduits for government support in the
key areas noted above.
Last November, our Manufacturing Committee organized a supplier development day
with the participation of a large number of Vietnam companies. In addition, we have
organized in recent years and will be pleased to organize in the coming days training
sessions for Vietnamese businesses on how to become a qualified supplier, in
cooperation with local and national government agencies and business associations.
As for education of work-ready graduates for industry, our members are pleased to be
involved in a number of projects either leading or contributing to vocational, practical and
curriculum modernization. In support of developing the high tech sector, we encourage the
government to lead a large scale transformation to scale HEEAP (Higher Engineering
Education Alliance Program) in 2018 with HEEAP 3.0 across the country to achieve
internationally recognized accreditations, support basic and applied research, and develop
a foundation for innovation and entrepreneurship.
ENHANCING GOVERNMENT COMPETITIVENESS TOWARD INTERNATIONAL ECONOMIC
INTEGRATION
It is also important that local and national government agencies improve their
competitiveness and rigorously implement streamlined procedures as government service
providers to businesses to help prepare for international economic integration.
The Government has issued Resolution 19/2014and Resolution 19/2015, setting Key
Performance Indicators for efficiency in providing government services, including tax
reporting and payment procedures; access to electricity; protection of IPR, property rights;
investors and minority shareholder rights in line with international standards; fairness and
transparency in market-based access to credit; to reduce the time for import and export
clearance to the average of the ASEAN-6 group; to reduce the time to deal with business
insolvency; to publicize information about business performance and financial standing in
accordance with law and in line international best practices.
Resolutions 19 lay out key indicators for progress and we urge more effort to be sure that
the policy is understood and implemented at the government agencies working levels. We
therefore very much appreciate the governments work with the VBF working groups and
the regular dialogue that we have. There should be regular and meaningful government
consultation and cooperation with businesses, including FDI, at the working level, on a
monthly and quarterly basis to assess progress. And there must be concrete targets to
improve the business environment.
For example, the Customs and Trade Facilitation Key Performance Indicator (KPI) for
2015 is to reduce the time for import and export clearance to the average of the ASEAN-6
group (being 14 days to export and 13 days to import) compared with 21 days for both
import and export in Vietnam in 2013. And the Customs and Trade Facilitation KPI for 2016
Page 3 of 9

is to reduce further the time to export to under 10 days and the time to import to under 12
days.
Recently we have established a Vietnam Trade Facilitation Alliance, (VTFA) led by VCCI
and AmCham, with the participation of leading export industry associations (apparel,
footwear, furniture, etc.) to facilitate these regular government-business consultations and
help achieve the customs KPI. Supported by a grant from the USAID Governance for
Inclusive Growth Program, part of the World Bank Trade Facilitation Support Program of
technical assistance provided by the developed countries to the developing countries under
Section II of the WTO Trade Facilitation Agreement, the VTFA is working to establish formal
consultative relationships between the General Department of Vietnam Customs (GDVC),
and other government agencies involved in international trade, and business associations,
as provided for by the WTO Trade Facilitation Agreement and by the WCO Revised Kyoto
Convention, as well as the TPP and other Free Trade Agreements. The VTFA is intended to
serve as a national coalition for business and trade stakeholders to provide regular
consultations with GDVC and other ministries or agencies regulating international trade,
through regularly scheduled formal monthly and quarterly public meetings.
We also very much appreciate the MOU VBF has with the Customs Department and the
ongoing work with the business community to implement important reforms and
modernization.
As another example, we were very pleased with a meeting of HCM City Leaders to try to
resolve business difficulties and improve the business environment. And they will
recommend to the Central Government solutions to problems which need to be resolved at
the national level. The HCM City leaders will develop a small working group to meet with
the business representatives to resolve difficulties facing investors and entrepreneurs,
improving business environment in order to build an equal business investment
environment and make the rules and policies of Vietnamese government more transparent.
Some specific issues that affect our members greatly are visas, tax problems, and
restrictions on imports of used machinery as important difficulties facing businesses.
Visas: Vietnams Immigration Law was revised in June 2014 and became effective on
January 1, 2015. We think this change is a major step backwards. According to some
provisions of the law, U.S. citizens that plan to visit Vietnam under the equivalent of a U.S.
B-1 or B-2 visa will receive visas that have, at most, a three-month period of validity, and a
single-entry only. This means that, in the near future, based on reciprocity, U.S. visas for
Vietnamese citizens that are temporary visitors could be reduced from the current one year
validity to only three months validity, and from multiple-entry to a single-entry only.
This development, has already resulted in significant impediments to business and
pleasure travel both ways between Vietnam and the U.S., and could reduce the large
revenues that tourism generates, not to mention the negative impact on the planned
development of tourism as one of the five priority industry clusters in Vietnam.
Tax: We have raised with both the Ministry of Finance and the Ho Chi Minh City Peoples
Committee a particular situation where U.S. importers and their distributors are being
disadvantaged by a requirement to pay Value Added Tax on imported goods twice. The tax
authorities froze distributors bank accounts while the case was under appeal. We hope that
this case can be solved promptly. There are a number of other cases involving tax issues
that we will raise.
Page 4 of 9

Imports of Used Equipment (proposed revised Circular 20): At meetings in both HCMC and
Hanoi, businesses universally opposed the revised circular, which was intended to promote
development of manufacturing industries by encouraging imports of new machinery,
equipment and production lines that are manufactured with the latest technology.The
restrictions in the draft Circular are likely to have the opposite effect, and discourage
manufacturing industries, because of coverage of long-term capital equipment, parts and
accessories due to the broad scope of the Harmonized System customs classification codes
involved. An extensive global trade in used manufacturing equipment has developed,
particularly in capital-intensive industries, because it is often preferable for an investor to
obtain high-quality used or remanufactured equipment, often moving equipment from one
of their own existing factories in another country to Vietnam, rather than order new
equipment with long delivery lead times and much higher cost. Rather than restriction, the
goal of encouraging imports of manufacturing equipment for high technology industries is
better served by providing new duty and tax incentives for investment in appropriate
equipment and technologies.
ENHANCING COMPETITIVENESS REQUIRES GOVERNMENT-BUSINESS DIALOGUE AT ALL
LEVELS
AmCham members and prospective foreign direct investors are frustrated by persistent
delays and uncertainty on key projects, policies, and regulations, including implementing
circulars for Laws and Decrees, key infrastructure projects, streamlining administrative
procedures, and others.
In the automotive sector, for example, the lack of a clear road-map and details under the
strategy document of Automotive Master Plan 2020- vision 2030 has dampened investor
confidence and brings the risk of manufacturers considering alternate plans within the
ASEAN region.
In the banking/finance sector, policy direction and regulation have been well-intentioned,
but delays and inconsistencies in implementing circulars, and indeed the capacity of certain
agencies to understand rules, has been a huge challenge. We need to develop
(1) Implementation capacity at the working level, especially in licensing; (2) Inter-agency
collaboration to resolve discrepancies in regulation; (3) a better system of resolving issues
at the working level wherever possible.
In the children's milk sector, the Governments recent decision to extend Decision 1079/QDBTC on the application of price stabilization measures for milk products for children 6
years old and under for a further 18 months will continue to create pronounced negative
impacts on the industrys development and businesses. Prices in this sector are already
comparable to global prices and the market is diverse and competitive. This Decision goes
against the spirit of the 2012 Price Law, which promises to respect the self-determination
of prices and competition of businesses, and contradicts WTO regulations, TPP
competition principles, international practices, and Vietnams goal of achieving market
economy status.
OTHER KEY POLICY ISSUES: BANKING SYSTEM, SOE REFORM, CORRUPTION
Additional perennial policy challenges are to reform the banking system and deal with nonperforming loans, reform of state-owned enterprises, and corruption.
Banking System: The Banking Working Group will address reform of the banking system.

Page 5 of 9

State Owned Enterprises: We are concerned that equitization has been very slow and in
some cases is in name only. It is hard to see how the sale of only a minority share changes
the governance, the reliance on the State, or the power of the partially equitized SOE to still
crowd out private sector development.
Corruption: We know the government shares with us the concern that corruption has
become corrosive and widespread in Vietnam and is dangerous to the economy and society
as a whole. While there have been some actions from the Government, it is time to address
corruption in a wider fashion by implementing systems well known to reduce the
opportunities for illegal payments as well as incorporating a code similar to the U.S.
Foreign Corrupt Practices Act (FCPA)or the UKs Bribery Act. A significant step forward
would be to take actions that greatly limit the use of cash payments and face-to-face
transactions, and to increase the use of e-Commerce in Vietnam.
CONCLUSION
Once again, we express our appreciation for the guidance in the Prime Ministers 2014 New
Years Message, in Resolutions 19/2014 and /2015and this opportunity for interaction
between State agencies, between the State apparatus and socio-political organizations .
Dialogues with the people and businesses to promote closer relationships between the
State, cadres, civil servants and the people and better match policy and legislation with
reality.4
We also appreciate the interest and efforts of the National Assembly in organizing the
Spring Economic Forum in April 2015 with the theme Continuing to reform the investment
and business climate in Vietnam: Turning Words into Action.
We look forward to cooperation and support through regular and meaningful Governmentbusiness consultations at all levels of government, with concrete targets to be achieved.
We remain active in support for the TPP and the preparations in Vietnam needed to bring
further success.
On behalf of all AmCham members,
I wish distinguished participants good health, happiness and success.
Thank you very much.
Attachments
1. Vietnam U.S. Trade, 2000 2020e
2. ASEAN U.S. Trade, 2000 2020e
3. Visa Reciprocity of TPP, ASEAN Countries (Validity, Multiple or Single Entry)

"Phi tng cng tng tc gia cc c quan trong b my nh nc v gia b my nh nc vi cc t chc

Chnh tr x hi. M rng i thoi vi ngi dn v doanh nghip bng nhiu hnh thc Nh nc, cn b,
cng chc gn dn hn v ch trng, chnh sch, php lut st vi thc tin hn."
Page 6 of 9

Attachment 1 Vietnam U.S. Trade, 2000 2020e

Source: U.S. Department of Commerce, 2000 2014 actuals; 2015 2020 estimates
http://www.census.gov/foreign-trade/balance/c5520.html#2010

Page 7 of 9

Attachment 2 ASEAN U.S. Trade

Source: U.S. Department of Commerce, 2000 2014 actual; 2015 2020 estimates

Page 8 of 9

Attachment 3: Visa Reciprocity Schedules between U.S., TPP and other trade partners

Vietnam

Max B1/B2
validity
(entries/months)
M/12*

Canada

M/120

Mexico
Peru

M/120
M/120

Chile

M/120

Japan
Singapore
Malaysia
Brunei

M/120
M/120
M/120
M/120

Australia

M/12 (M/60 with


$25 fee)

Visa Waiver Program (VWP)

New Zealand

M/120

Visa Waiver Program (VWP)

Myanmar

B1 or B2 1/3 ($32),
B1 M/12 ($162)

N/A

China

M/120

N/A

Indonesia

M/60

N/A

Thailand

M/120

N/A

Cambodia

2/3

N/A

Philippines
India

M/120
M/120

N/A
N/A

Other regional trade

Transpacific Partnership (TPP)


Members

Country

Max B1/B2 validity


(entries/months)
N/A
No visa required for stays of
180 days or less
N/A
N/A
Visa Waiver Program
(VWP)**
Visa Waiver Program (VWP)
Visa Waiver Program (VWP)
N/A
Visa Waiver Program (VWP)

Treatment for U.S. citizens


M/3 (M/6 for family visits)
No visa required for stays of 180 days or less
No visa required for stays of 180 days or less
No visa required for stays of 90 days or less
No visa required for stays of 90 days or less
No visa required for stays of 90 days or less
No visa required for stays of 90 days or less
No visa required for stays of 90 days or less
No visa required for stays of 90 days or less
No visa required for stays of 90 days or less.
Electronic Travel Authority (ETA) approval
required prior to departure (20 AUD/1 year).
No visa required for stays of 90 days or less
Visa required, valid for up to three months from
date of issue. Max stay is 28 days for tourists; 70
days for business travelers. eVisa option
Visa required, M/120
Visa required, can be obtained upon arrival, valid
for 30 days (extendable for additional 30 days)
No visa required for stays of 30 days or less
Visa required, can be obtained upon arrival or
online, valid for 30 days
No visa required for stays of 30 days or less
Visa required. Valid M/120 for stays of six months.

M/12 = multiple entries, 12 months

**
Nationals from Visa Waiver Program (VWP) countries can enter the United States for business or pleasure for 90
days or less. All VWP travelers must receive Electronic System for Travel Authorization (ESTA) approval prior to
embarking on a plane for the U.S. ($14/2 years)
Page 9 of 9

EUROCHAM POSITION PAPER


Mid-term Vietnam Business Forum
Hanoi, June 9, 2015

Presented by
Mr. Tomaso Andreatta
Vice Chairman
Honorable Ministers, Ambassadors, Your Excellencies, Ladies and Gentlemen: on behalf of
EuroCham and its partner European Business Associations, I would like to thank the
Ministry of Planning and Investment and all the authorities represented here today for
facilitating this ongoing constructive dialogue with the private sector through the Vietnam
Business Forum.
Looking at the results of our most recent Business Climate Indices, the general perception
of Vietnams business environment has been quite positive among our Members. Indeed,
EuroCham is pleased to acknowledge the recent efforts that the Vietnamese Government
has made to further improve the business environment and to increase Vietnams
competitiveness, for example through the issuance of Resolution No. 19/NQ-CP/2015 dated
12 March 2015. Despite these promising efforts, some concerns remain among European
investors. This paper aims to identify those concerns and to propose solutions to further
improve the business climate in Vietnam.
For this Position Paper, EuroCham would like to focus on the following six key issues, which
all have an impact on Vietnams competitiveness: free trade agreements (FTAs),
education and training, intellectual property rights (IPR), State-owned enterprise (SOE)
reform and competition, judicial recourse and infrastructure development through publicprivate partnerships (PPPs).
I. EU VIETNAM FREE TRADE AGREEMENT
The Vietnamese Government is currently negotiating several FTAs that have the potential of
providing a long-term boost to the Vietnamese economy. These agreements include the
FTA between Vietnam and the European Union (EU), as well as the Trans Pacific
Partnership (TPP) with the United States and other countries in the Pacific region.
In this regard, the European business community hopes that Vietnam and the EU will agree
on a strong and implementable FTA for the benefit of both local and foreign businesses. We
strongly believe that the conclusion of this FTA will help Vietnam to achieve reforms of its
economy that will increase the confidence of international investors and that will encourage
trade exchanges at the global level.
Another project of economic integration for Vietnam is the ASEAN Economic Community
(AEC), which is scheduled to be completed within this year. EuroCham believes that these
two projects will allow Vietnamese companies to adapt to global market standards and will
help maintain and increase the quality of products and services available to Vietnamese
consumers. If properly implemented, the FTA and the AEC will obviously facilitate trade
through the removal of tariffs but they could also help Vietnam to align its safety and quality
Page 1 of 6

standards with those in Europe and other Western countries. The implementation of
efficient and transparent customs procedures could help Vietnam to benefit as much as
possible from these trade agreements. At the same time, some related issues that could be
resolved include eliminating burdensome requirements for imported goods, for example
with regard to duplicated local clinical trials in the pharmaceuticals sector. As well as
improving the quality of laboratories and testing methods in Vietnam and the mutual
recognition of foreign test results, for example with regard to food safety. Finally, further
opening the market to foreign direct investment can lead to an increased transfer of skills
and technology, which will help Vietnam to avoid the so-called middle-income trap.
II. EDUCATION AND TRAINING
Without a doubt, Vietnam has a high potential workforce. If Vietnam wants to move towards
higher value-added and technical industries and service sectors, however, we believe that
there is great need for adequate training. Within ASEAN, Vietnam unfortunately still ranks
in the lower half of human resources development. And indeed, in a survey of the World
Economic Forum Report for 2014-2015, more than 10% of the respondents who were asked
to select the five most problematic issues for doing business in Vietnam identified an
inadequately educated workforce as one of the main issues. Sectors in which our Members
operate and which have specifically raised this issue include information technology, and
tourism and hospitality. In both these sectors, improved education and training could lead
to further growth and to increased competitiveness of Vietnam at the regional level.
Two other issues relating to human resources concern the relatively strict rules on
overtime hours in Vietnam and the burdensome procedures and strict conditions for
foreigners to work legally in this country. Increasing overtime limits and encouraging
labour subleasing could positively contribute to Vietnams regional competitiveness,
whereas facilitating foreigners to work in Vietnam could result in more transfer of
knowledge and a better training of the Vietnamese workforce.
III. INTELLECTUAL PROPERTY RIGHTS
A strong protection of IPR is essential to encourage foreign investment in Vietnam. Even
though Vietnam has improved its legal framework and enforcement of IPR in recent years,
infringements and the enforcement of IPR laws remain a concern for European and
Vietnamese businesses alike.
EuroCham therefore calls on the Vietnamese Government to step up its efforts in
guaranteeing an effective protection of IPR in order to develop technologically-advanced
industries and to promote innovation. The foregoing may result in more foreign investment
in manufacturing, research and development, but it will also encourage Vietnamese
companies to invest in innovative activities. Needless to say, counterfeit products in sectors
such as agriculture and pharmaceuticals may even pose risks to consumers health.
We believe that enforcing a good protection of IPR can only be achieved by ensuring that
trademark and copyright infringers face dissuasive legal sanctions. At the same time, we
note that infringement of online IPRs is becoming more important with the growth of the
number of internet users. Enforcement is particularly difficult here, especially when it
comes to illegal trading in copyright-protected work and infringing goods, but also with
regard to infringements on websites and abusive domain name registration and
maintenance. EuroCham recommends that the administrative fines against individuals
committing copyright infringements will be increased and that law enforcement efforts
against infringing websites shall be strengthened. In particular this means that Cease and
Desist Decisions be immediately enforceable to limit/reduce the damage to the IPR
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legitimate owner. The adoption of a uniform domain name dispute-resolution policy system
to resolve disputes around .vn domain names as well as a more effective dispute
settlement mechanism in general would also be welcome.
Further solutions proposed by the European business community to address IPR-related
issues include the creation of shortlists of geographical indications, the protection of
regulatory data and trademarks, and a more efficient enforcement of IP laws. Once more,
EuroCham would like to stress the importance of strong IP protection standards in Vietnam
to increase its regional competitiveness in attracting foreign investment and encouraging
innovation.
IV. SOE REFORM AND COMPETITION
SOEs have traditionally played a vital role in Vietnam and they continue to be the backbone
of Vietnams economy. With the financial aid of institutions such as the OECD, the World
Bank and the Asian Development Bank over the years, there have been several rounds of
SOE reform in Vietnam. Nonetheless, the actual reform has been very gradual and the
Vietnamese Government has seemed reluctant to reform strategic SOEs. Whereas smaller,
loss-making SOEs have been merged or liquidated, so far the State has been eager to
retain control over major SOEs.
Currently, there are around 800 Vietnamese SOEs in which the State holds 100% of the
capital. This number is in sharp contrast with the 12,000 SOEs that existed in 1990.
According to the most recent official statistics, SOEs accounted for around 35% of
Vietnams GDP and for around 30% of the States revenue in 2013. EuroCham would like to
recognize that SOE reform in Vietnam since 1986 has been successful to some extent.
However, we believe that further reform is needed and that this may contribute to increased
foreign investment as a result of increased competitiveness, to Vietnams further
integration in the global economy and even to Vietnam obtaining market economy status. In
addition, as the process of privatization that has taken place in Europe in the 1990s clearly
shows, the sale of the larger and highest quality state owned companies has generated
financial resources that have contributed to improve state debt position and or to finance
investment in necessary infrastructures.
Compared with private companies, the capital efficiency ratio of SOEs in Vietnam remains
very low and SOE debts weigh heavily on the State budget. Furthermore, difficulties remain
with regard to the separation of functions of the State as market regulator and owner, as
well as with regard to public disclosure of information. Indeed, in practice SOEs continue to
receive preferential treatment (e.g. access to capital, land and subsidies), leading to market
distortions and an unhealthy competition between the private sector and the State-owned
sector. Even though SOEs may seem legally and financially independent, the State often
retains its control, for example through the ability to appoint a majority of board members.
Unfortunately, often we cannot speak of a so-called level playing field for private
companies and SOEs. A related example includes the pharmaceuticals sector, where
foreign invested private enterprises, as well as certain imported pharmaceutical products,
are currently not always allowed to (directly) participate in tender procedures.
Despite the ambitious plans of the Vietnamese Government to equitize 289 SOEs in 2015,
EuroCham believes that the equitization of SOEs in practice still does not live up to its full
potential. For example, the number of shares that is being offered to private investors is
often considered too low to effectively attract private strategic investment (e.g. only 5% to
20% is offered for sale). In practice, foreign investors are usually only interested in buying
SOE shares if they can obtain decision-making power in the enterprise. Instead, the State
Page 3 of 6

tends to retain the power to appoint all or a majority of the board members and as
mentioned before SOEs continue to enjoy preferential treatment when compared to
private enterprises. Furthermore, in practice equitization often means that shares are
bought by employees of the SOE. For these reasons, until now interest from the foreign
private sector to invest in SOEs has been rather low.
EuroCham believes that equitization and corporate governance reform of SOEs can only be
effective when there is a clear vision from the Vietnamese Government and when there is a
true commitment to realize such reform. We acknowledge the Governments good efforts
with regard to corporate governance reform of SOEs under the newly issued Law on
Enterprises; but at the same time we encourage more efforts to effectively create a level
playing field in all business sectors between SOEs and private companies. The most
important reform of all is the opening of energy markets, today still mostly controlled by
state monopolies, where competition would bring transparency as well as abundant new
capital for investment, both from domestic and international sources.
V. JUDICIAL RECOURSE
Our Members have increasingly expressed their concerns about the lack of a welldeveloped and transparent system of judicial recourse in Vietnam. As an example, in many
countries around the world, a popular way to settle investment disputes is to start
proceedings before a civil or commercial court. In theory, this option is also available in
Vietnam, but foreign investors generally opt for arbitration, partly due to a lack of
transparency of the Vietnamese court system.
Indeed, an alternative to court proceedings is arbitration at the Vietnam International
Arbitration Centre (VIAC), which could be a more flexible and efficient way to solve
disputes. However, it has been noted that Vietnamese courts are increasingly intervening in
VIAC proceedings. In many cases, this leads to the termination of the arbitration
proceedings before an award is issued, or to the setting aside of an award once it has been
issued by a VIAC tribunal.
Another alternative is international arbitration, which is generally chosen by foreign
investors in Vietnam for the settlement of disputes regarding high value contracts.
International arbitral awards are generally enforceable in most jurisdictions around the
world under the New York Convention of 1958 on the Recognition and Enforcement of
Foreign Arbitral Awards (NYC). Most contracting states of the NYC apply the provisions of
the convention, and they duly recognize and enforce foreign arbitral awards within their
respective jurisdictions. However, the European business community in Vietnam is raising
its concerns about the difficulties encountered to achieve the recognition and enforcement
of foreign arbitral awards through the Vietnamese courts. This issue is particularly relevant
for high value contracts in the commodities sector (e.g. cotton, coffee, rice, tea, and
etcetera).
A reversed burden of proof for award creditors and the fact that Vietnamese courts are
rejecting applications for the recognition and enforcement of foreign arbitral awards on
grounds that are not consistent with the NYC provisions are two important grounds for
concern among our Members. For further background information on this topic, we kindly
invite you to read our Whitebook of 2015.
At the same time, EuroCham welcomes some recent positive developments, such as the
issuance of Letter No. 246/TANDTC-KT on the settlement of requests for the recognition
and enforcement in Vietnam of foreign business and commercial arbitral awards by the
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Supreme Peoples Court. This letter instructs lower level judges to properly apply the
provisions of the NYC. EuroCham encourages the Vietnamese Government, however, to
further improve the recognition and enforcement of foreign arbitral awards in line with its
obligations under the convention, and is ready to support in the training of judges and other
relevant members of the state administration to the rules and methods of arbitration.
VI. INFRASTRUCTURE DEVELOPMENT AND PUBLIC-PRIVATE PARTNERSHIPS
Our Members regularly call for the development of modern and efficient infrastructure to
enhance economic growth and to lower the costs of doing business in Vietnam. Indeed, we
believe that the development of this country requires more roads, airports, ports, hospitals,
as well as more power, waste and water treatment infrastructure. One of the infrastructure
projects that our Transportation and Logistics Sector Committee has been bringing to the
Governments attention is the creation of a domestic and international transshipment hub
in Cai Mep. Since it is estimated that the State budget can only meet around 50% of
Vietnams infrastructure needs, private investment in the form of public-private
partnerships (PPPs) seems crucial.
In order to attract such private investment, a clear legal framework is required to
implement PPPs. EuroCham is pleased with the recent progress that has been made by the
Vietnamese authorities, including the adoption of a new Law on Public Procurement, as
well as a new Decree on PPPs and a new Decree on investor selection. However, other
ASEAN countries already adopted their PPP framework at an earlier stage, which means
that they manage to effectively attract public-private projects. These countries will remain
more attractive in the eyes of foreign investors if Vietnam does not manage to successfully
implement a number of PPP projects in the near future.
As mentioned above, EuroCham welcomes the new regulations and we hope that they will
effectively revive the interest of the private sector to invest in PPP projects. The creation of
a project development facility that will be used to assess the feasibility of potential PPP
projects, as well as the viability gap funding by the Government to support projects that
would not otherwise be financially viable, are two initiatives that send a positive message to
foreign investors.
In addition to that, we encourage the Vietnamese Government to take a clear lead in
identifying potential PPP projects, in assessing them and in organizing a competitive and
open tendering procedure. Furthermore, we call on the Government to facilitate foreign
investors that are interested in PPP projects as much as possible in order to successfully
implement the first PPP projects in Vietnam in due course.
CONCLUDING REMARKS
EuroCham believes that the economic decisions that will be made over the next few years
could have a defining influence on Vietnams future, as well as on its international
competitiveness and on the countrys sustainable economic growth model.
We therefore invite and encourage the Vietnamese Government to address the issues
outlined in this Position Paper and to comfort the expectations of the European business
community in Vietnam. For more detailed information about the issues raised in this paper,
we kindly refer you to the EuroCham Whitebook of 2015, which highlights a number of
recommendations formulated by our Members.
Please note that our suggestions in this Position Paper are made on behalf, and in the
interest of our Members, the European business community in Vietnam. However, it is clear
Page 5 of 6

that in the vast majority of cases these suggestions are clearly in the long term interest of
the Vietnamese Government and the Vietnamese people. We believe that the economy can
only grow sustainably and that Vietnams competitiveness can only improve if the business
climate is favorable. Such could be achieved, among other things, by concluding a strong
and implementable FTA with the EU, by stepping up the efforts regarding education of the
workforce, reform of SOEs and the implementation of PPP projects; by increasing IPR
protection and by improving Vietnams system of judicial recourse.
We sincerely hope that our suggestions in this Position Paper will help the Vietnamese
Government to reach its goals and EuroCham will continue to assist wherever possible. We
are therefore looking forward to working with the Government of Vietnam and all our
Members and partners, both Vietnamese and European, to enhance Vietnams
competitiveness towards further international economical integration!

Page 6 of 6

KOCHAM POSITION PAPER


Mid-term Vietnam Business Forum
Hanoi, June 9, 2015

Presented by
Mr. Ryu Hang Ha
Chairman
INTRODUCTION
Honourable Ministers, Ambassadors, Co-Chairs of the Vietnam Business Forum (VBF),
Ladies and Gentlemen: On behalf of the Korea Chamber of Commerce in Vietnam, we would
like to first thank the Vietnamese Government for facilitating this ongoing dialogue at the
VBF. We sincerely appreciate the opportunity to contribute at this forum.
Please find below a summary of four (4) key issues that are of concern to Korean
enterprises in Vietnam. We hope the legislators will take it under consideration and
address them in a prompt manner.
I. DIFFICULTIES IN IMPORT OF USED MACHINERY AND EQUIPMENT
Comments: In order to implement the Directive No. 17/CT-TTg dated 9 Aug 2013 of the
Prime Minister on strengthening management and control over the import of technology,
machinery and equipment by enterprises, Ministry of Science and Technology issued
Circular No. 20/2014/TT-BKHCN on import of machinery, equipment and production lines
dated 15 May 2014, which would take effect from 1 Sep 2014 (Circular 20). According to
Circular 20, used machinery and equipment which are not specifically prohibited from
importing into Vietnam may be imported if they meet the following conditions:
i)
The usage period does not exceed 5 years (from the manufacture year);
ii)
The quality is equal to at least 80% of the original quality.
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However, due to various objections of many foreign-invested enterprises in enforcing


Circular 20, Ministry of Science and Technology issued Decision No. 2279/QD-BKHCN dated
29 Aug 2014 on suspension of implementation of this Circular from 1 Sep 2014.
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Currently, Vietnam Ministry of Science and Technology, other relevant Ministries and State
agencies have been discussing and gathering opinions from organizations and enterprises
on conditions and procedures on import of used machinery, equipment and production
lines. However, by attending several seminars on collection of opinions of enterprises in
order to complete the draft of the circular on amendment of Circular 20, we have
acknowledged that the draft still remain unchanged the previous conditions on usage
period and the remaining quality in order to import the used machinery, equipment and
production lines. In accordance with the latest draft of the circular on amendments of
Circular 20, the usage period is extended from 5 years to 10 years and remaining quality is
still 80% or more in comparison with original quality.
Many foreign-invested enterprises have opinions that it is very difficult to satisfy the
conditions of usage period of 10 years with remaining quality of 80% or more of its original
quality. Moreover, there are no clear criteria under the current drafted circular to evaluate
the usage period and remaining quality of used machinery, equipment and production lines.
Page 1 of 3

As for the self-production machinery and production lines, criteria on the quality of
products are strictly confidential for the companys business. Therefore, it is hard for a
third party who imports those products to assess criteria and evaluate the quality of
products. Besides, certain required documents of competent authorities of Vietnam are not
available to be issued by manufacture countries. This may cause a significant delay in
carrying out procedures to import used equipment and machinery into Vietnam.
Recommendation: We highly recommend that the usage period should be calculated from
the commencing date of the usage rather than from the manufacture year. Moreover, the
draft of the circular should provide the clear and accurate criteria for different types of
used machinery, equipment and production lines to determine the usage period and quality
level. It shall not be appropriate if just one criteria is applicable to all types of machinery,
equipment and production lines.
II.

POWER PROJECTS

Comments: According to our research, the power demand has increased for more than 10%
per annum around Southern area of Vietnam. However, based on the power development
plan under the Decision 1208/QD-TTg of the Prime Minister dated 21 July 2011 approving
the national master plan for power development in the 2011-2020 period, with
consideration to 2030 (Power Master Plan VII), Decision 2414/QD-TTg of the Prime
Minister dated 11 December 2013 on adjusting list, schedule of a few of power projects and
providing for a few of special regulations and policies for investment in urgent power works
during 2013 -2020 (Revised Power Master Plan VII), and recent report on project to adjust
the Power Master Plan VII, there are concerns that serious power crisis may be occurred
from the year of 2018 due to various delays of power projects. The operation of power
projects such as Duyen Hai 1 & 3, Long Phu 1, Vinh Tan 1 & 3, Van Phong 1 and others will
be delayed until 2020. Many other power projects in form of BOT have been delayed to put
into operation. Accordingly, energy supply companies in Southern area of Vietnam will be
under difficulties in supplying power for manufacturing and office works due to power
outage.
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With respect to the nuclear power projects, it will be conducted in turn by different
countries starting from Russia, Japan, and then South Korea. However, the commencement
date of the first nuclear power project which is Ninh Thuan 1 nuclear power project has
been continuously delayed. In accordance with the opinion of the Prime Minister Nguyen
Tan Dung, the commencement date of this Ninh Thuan 1 project may be delayed until 2020.
Recommendation: The government should shorten approval process for power projects
around Southern area of Vietnam. The power projects should be performed through the
involvement of the trusted and well-known power investors. In term of nuclear power
projects, it takes too long time for various approval processes (such as Pre-F/S, F/S, EIA,
etc) that causes the delay of commencement of projects. Therefore, we sincerely ask for
speeding up the commencement date as soon as possible and particularly we also kindly
ask Vietnam Government for early approval of the Pre-FS of Korean nuclear power project
so that it can commence as soon as possible.
III.

DISMISSAL DUE TO FALSE INFORMATION ON ABILITY AND EXPERIENCE

Comments: According to Article 19 of Labour Code 2012, the employee has obligation to
provide the employer, prior to execution of labour contract, the information being the
employee's educational standard, professional qualifications, experiences and other
Page 2 of 3

matters directly relevant to signing of a labor contract which the employer requests.
However, the Labor Code and its guiding legal documents do not regulate the consequence
if the employee intentionally provides false information on his/her ability and experience in
order to sign a labor contract with an employer. Upon the current regulations of labor laws
of Vietnam, the employer cannot immediately terminate the labor contract or dismiss such
employee but must take time to undergo the procedures to unilaterally terminate the labor
contract or dismiss the employee when he/she provides the false information on the above
issues. For instance, in case of unilaterally termination of the labor contract, in addition to
satisfaction of certain requirement, the employer must notify the employee at least thirty
(30) days in the case of a definite term contract. The practice proved that it may cause
substantial risks to employer if the employer can not immediately terminate the labor
contract or dismiss such employee who holds important position such as director, general
director, chief accountant or other managerial position in the company or the position which
requires the professional license and qualification, experience under the provisions of laws
such as the lawyer, the doctor, the architect etc.
Recommendation: In the light of the above, we would like to propose that labour laws of
Vietnam should supplement relevant legal provisions to allow the employer to immediately
dismiss or unilaterally terminate the labour contract when discovering the false
information on ability and experience of the employee. At the same time, the employer
should have right to immediately suspend the job of the employee in the above cases
without requirement to comply with regulations in Article 129 of the Labor Code regarding
temporary suspension of work. In addition to that, we suggest applying the case of invalid
civil contract as the supplemented cases of invalid labor contract.
IV. THE CHANGE OF HS CODE APPLICATION
Comments: We would like to refer to Circular No. 164/2013/TT-BTC of Ministry of Finance
dated 15 November, 2013 on promulgating the preferential import and export tariff
according to list of taxable goods items which taken effect since 1stJanuary, 2014. As shared
by the enterprises, during the course of implementation of such circular, the following case
may occur: the goods which is previously exempted from import duty may become the
goods which is imposed the import duty. In addition, we also receive the complains from
enterprises that in some cases, the goods which used to be exempted from the import duty
can be imposed retroactively even though the goods was imported and customs clearance
was completed before the aforesaid circular took effect. Accordingly, it is so disadvantages
for the enterprise when the import duty is imposed retroactively.
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Recommendation: Therefore, our suggestion is that the Government of Vietnam should


consider not imposing the import duty retroactively in respect of the goods which was
imported before the Circular 164/2013/TT-BTC took effect. Furthermore, we truly expect
that goods which used to be exempted from the import duty can continue to be exempted
from the import duty.

Page 3 of 3

The Japan Business Association in Vietnam (JBAV)


STATEMENT BY JBAV
Mid-term Vietnam Business Forum
Hanoi, June 9, 2015

Presented by
Mr. Shimon Tokuyama
Chairman

H.E. Nguyen Tan Dung, Prime Minister of the Socialist Republic of Vietnam,
H.E. Bui Quang Vinh, Minister of Planning and Investment,
Ladies and Gentlemen,
Firstly, on behalf of the Japanese business community, I want to extend my deepest thanks
for the invaluable support you have given us and your great efforts in improving the ease of
doing business in Vietnam. This Vietnam Business Forum (VBF) meeting is the first of many
such meetings since JBAV became a consortium member of the Vietnam Business Forum.
In the capacity of JBAV, and through this meeting, we want to contribute as much as we can
to improving the local business and investment climate, drawing more investment from
Japan, adding more value to Vietnam and taking Japan-Vietnam business ties to new
heights.
We also highly value the Prime Minister and Government of Vietnam's sound leadership,
stabilization of the economy to reach a high 6% growth rate, valorization and import-export
balance over the last 4-5 years.In addition, recently we have also positively noted the
governments moves to promote policies for state-owned enterprise reform and financial
stabilization. Together with the government of Japan as Vietnam's largest ODA provider we
will keep engaged in discussions and take coordinated action with you to further promote
economic and industrial development for Vietnam.
1. FISCAL DISCIPLINES AND INFRASTRUCTURE DEVELOPMENT SUPPORTING LONG
TERM GROWTH
We have learnt that there has been much debate recently on the issue of government debt
and we welcome your strong efforts to improve the government fiscal disciplines.
Nevertheless, improving the national government fiscal disciplines does not amount to zero
budget spending. So we hope that Vietnam will continue to follow effective fiscal strategies
to promote growth.
Particularly, we are of a view that maintaining financial support for the infrastructure
development plan in the fields of transport and power is critical. Infrastructure
development resources in these areas may come from Japans long-term and low-interest
ODA funding. Improving the government fiscal disciplines through effective use of ODA
resources is actually an efficient strategy. Moreover, as available public resources are
limited, making the best use of private funding is of great importance. Limitation by the
government of Vietnam to provide a guarantee for infrastructure projects implemented by
Project Finance and/or ECA (Export Credit Agency) loans such as JBIC loans will not only
delay the projects but may also seriously lower Vietnam's investment climate ratings. While
we are aware of the challenges the Government of Vietnam can face in executing its policies
to achieve both economic development and fiscal disciplines, we do hope that the
government maintains sufficient financial measures where needed.
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2. INVESTMENT CLIMATE DEVELOPMENT AND SUPPORTING MANUFACTURING FOR


DOMESTIC MARKET
Vietnam has a stable macroeconomic framework and is a powerhouse in the export of
assembled and outsourced products. Going forward, Vietnam will be entering a period of
achieving its goals for self-sustained economic growth by relying on domestic industrial
growth, with a policy focus on industrial development for domestic market. After the
economy bouncing back strongly in 2015, it turns out the balance of international payments
may become a barrier to economic growth. To make sure that the international payments
keep balanced, continued assistance for in-country supporting industries and development
of the investment climate to attract more foreign investment is necessary. Importantly,
policies that promote high efficiency industries and expand supporting industries will help
increase tax revenue and improve the current fiscal position.
(1) Investment Climate Development
Many Japanese investors hoping to join the picture as strategic investors may stand to
gain from the generation of new value and taking part in business ventures. Unlike
financial investors who intend to own at most 35% of shares with veto powers, whether
strategic investors (even minority shareholders at the start) holding more than 50% of
the shares may run a business or not is a vital point to look at when one considers his
investment options. We hope that the government seriously considers relaxing the
restrictions on the ratio of equity financing in state-owned enterprises and listed and
publicly traded companies. Furthermore, when a state-owned enterprise launches an
initial public offering (IPO), the initial gateway information that foreign investors have
access to is very important and needs to be improved both in terms of quality and
quantity.
(2) Automotive industry
By 2018, when automotive duty is banned within the ASEAN block, the local car market
will be under intense price pressure from the competition of automobiles imported
from Thailand and Indonesia. Meanwhile, given the local automotive industry is still
small scale and supporting industries are not yet strongly promoted, maintaining a
local automotive industry will be a daunting task. In case Vietnam cannot hold on to
manufacturing, part production will be very unlikely to survive.
The demand for automobiles will continue to grow along with economic development
and if policies for automotive industry development fail the balance of international
payments will suffer and in turn impede economic growth in the long run. The strategy
for automotive industry development was released last July but no detailed regulatory
instruments for implementation followed that. This prevents firms from starting to
prepare their production plans for beyond 2018. Time is running out and we hope that
the government will soon introduce specific policies.
(3) Housing development
Housing development, like the automotive industry, is a sector expected to bring
supporting industries related to chemical and steel products, which is efficient for your
country where many projects of steel and oil refinery are ongoing house related
industries, such as domestic appliances will also grow. Particularly for a young
developing country like Vietnam the demand is huge. Moreover, against the backdrop of
on-going robust urbanization, meeting the housing demands of middle-income earners
may support stable economic growth.

Page 2 of 5

Japan has significant knowledge of housing development, stemming from areas


destroyed during the war, so Japan-Vietnam partnership in this area will be vital. In
Japan, policies for providing housing to low-income earners and fixed, long-term loans
to buy houses for middle-income earners have proven their efficiency. We hope that
Vietnam will consider policy strategies for housing development for the middle-income
demographic - particularly the governments support, through banks, to provide fixed,
long-term loans.
(4) Universal development of modern retail business, with food manufacturing at the core
A large number of Japanese food companies have seen the attraction of a market of 90million people but are held back by the challenges that current investors face. There
are now more than half a million retail outlets and a large number of mid-sized
wholesale dealers in a very complex market. In small-holding stores merchandise is
not well organized. While modernizing the retail market will on the one hand put
pressure on traditional retailers, food manufacturers may bring more of their products
to consumers.
With regards to market entry by foreign retailers, we have a 3-pillar request: making
economic needs test (ENT) procedures and items transparent; adding transparency to
the oversight of police, food safety authorities and the master plan for the sector; and
establishing a timeline for inspections, the number of stores allowed to be registered
and an allowed percentage of excess registrations.
3. MAINTAINING INTERNATIONAL COMPETITIVENESS AND IMPROVING THE
MANUFACTURING INDUSTRY
It is important that Vietnam maintains the global competitiveness of its manufacturing
industry, including outsourcing and assembly business from FDI enterprises. As the 2018
deadline for ASEAN total integration is drawing near, and with increasing international
competition, domestic support for the local manufacturing industry to maintain its
competitiveness in terms of labor costs is needed.
(1) Minimum wage
Since Jan. 1, 2015, the regional minimum wage has increased by 14%, overwhelming
consumer price index (CPI) growth. We have learnt that the government has set a
target of increasing the regional minimum wage to VND4 million by 2018, with gradual
increases over the years.
We have no objection to Vietnamese people getting wealthier, and we also understand
that it is a necessary factor to increase domestic demand as discussed above. However,
the rise of labor costs in the outsourcing and assembly business is a concern. Rapid
and unexpected annual minimum wage increase will also weaken Vietnams
international competitiveness. What we want to say is listen to businesses.
(2) Restrictions on overtime work:
According to Article 106.2(b), the amount of overtime work is restricted so as to not
exceed 4 hours per day, 30 hours per week and 200 hours per year and the employer, if
in violation of this regulation, will be subject to specific, severe sanctions. However,
meeting production orders while fully complying with this restriction on the amount of
overtime work will force employers to increase the number of shifts, which will result
in a substantial increase in labor costs. Additionally, we understand that a significant
number of employees are willing to work longer overtime hours in order to receive
greater compensation for such overtime work. We are of the view that given both
Page 3 of 5

employers and employees agree, it is reasonable to allow them to increase the number
overtime hours, at least to a reasonable degree. We would appreciate it if the
Vietnamese government would review and reform its overtime work regulations.
(3) Clear explanation of the revised decree No. 20/2014/TT-KHCN on importing secondhand machines:
Some items in the decree related to the screening of second-hand machines have not
been explained yet. We are concerned about whether it is feasible to establish
appropriate written standards for appraisal to implement the criteria requiring secondhand machines have a certain proportion of remaining value. More specifically, as this
regulation covers a wide range of machines, we believe that thousands of detailed
standards for appraisal will need to be established which fully take into account the
nature, function and a variety of other aspects of the machine. We are afraid that the
implementation of this regulation under immature standards for appraisal may provide
authorities with wide ranging discretionary powers as to the operation of this
regulation. Such wide ranging discretionary power substantially harms the healthy
activity of enterprises. In the case such clear explanation cannot be written out in the
decree, we would then request a postponement of the enforcement of it.
4. IMPROVEMENTS TO DECREES RELATED TO THE OF LAW ON INVESTMENT AND LAW
ON ENTERPRISE
(1) Protection of the incentives given to investors (Law on Investment)
A draft decree to implement the Law on Investment provides that investors should
return any incentives to the state in a case where the investors have lost their eligibility
to enjoy the incentives. This is less favorable than the current decree to implement the
Law on Investment, particularly in the case where the investors are not at fault and the
investors met the conditions of eligibility for some part of the incentive's duration. This
provision in the draft decree should be deleted and it should instead include the
provision that the investors shall not enjoy the incentives any further in such a case.
Also, a grace period to continue enjoying the incentives, to allow investors to adjust
their projects, should be granted in a case where the investors are not at fault in having
lost their eligibility to enjoy the incentives.
(2) Protection from changes to the law (Law on Investment)
The new Law on Investment 2014 provides for the protection of incentives from changes
to the law only, however it should also provide for protection of lawful interests which
are not incentives from changes to the law, as the Law on Investment 2005 provides for.
We believe the Law on Investment 2014 should not exclude the protection of lawful
interests from changes to the law, as this has been granted to large scale BOT project
contracts in the past.
(3) 90 day deadline for charter capital contributions to LLCs (Law on Enterprise)
The Law on Enterprise 2014 changes the 3-year grace period for charter capital
contributions to LLCs, which is provided for in the Law on Enterprise 2005, and sets up
a 90 day deadline for charter capital contributions. If the procedure to increase the
charter capital is completed quickly there will be no problem. However, since in the
case of a foreign invested project, the charter capital should be noted both on the
Investment Registration Certificate and the Enterprise Registration Certificate, we have
a concern that registration of increasing of the charter capital may be delayed and
which would cause a delay to the disbursement of the additional capital which is
necessary for the businesses operation, such as ongoing construction of facilities for
the project. We would like to request the Vietnamese government to take the necessary
Page 4 of 5

measures so as not to cause delays to the registration of charter capital increases and
the amendment of Investment Registration Certificates under the Law on Investment
2014 and Law on Enterprises 2014.
5. RELAXATION OF THE CONDITIONS FOR ENTRY UNDER A VISA EXEMPTION
Following the amendment of the Law on Entry, Exit, Transit, and Residence of Foreigners in
Vietnam, entry of Japanese citizens into Vietnam has been restricted in some cases.
Previously, in the case of entering Vietnam under a Visa exemption, the record of a
Japanese citizen entering Vietnam without a Visa did not affect their ability to re-enter
under a Visa exemption even in the case that their last exit from Vietnam was less than 30
days ago. Now, any Japanese citizen who has such a record of staying in Vietnam is
required to obtain a Visa when they wish to re-enter Vietnam. This change to Visa
exemptions limits the opportunities for Japanese citizens who wish to visit Vietnam more
frequently for business or tourism.
As such, we request that the conditions for entry under a Visa exemption for Japanese
citizens be changed to allow them to enjoy the exemption, regardless of the time of their
last exit from Vietnam, as stated in the law prior to the amendment.
6. CONCLUSION
We are confident that the Japanese business community can contribute more to the
economic and industrial development of Vietnam, particularly if our recommendations are
taken into account in the governments policies. Meanwhile, we are open to further
discussion and consultation.
Thank you very much for your attention.

Page 5 of 5

Hanoi Young Business Association (HanoiBA)


BUSINESS SENTIMENT OF HANOIBA
Mid-term Vietnam Business Forum
Hanoi, June 9, 2015

Presented by
Mr. Tran Anh Vuong
Standing Deputy Chairman
A number of economic developments made during 2014, such as important policies on tax
and labor which become effective from 2015, shows a strong commitment from the
government in developing an investor-friendly business environment. Moreover, the
introduction of new Investment and Enterprise Law partly helps businesses in general and
the private sectors in particular, have clearer feelings of Government desire to change.
However, private sectors are somehow still not confident in the current business
environment.
Private enterprises are more and more interested in Corporate Social Responsibility (CSR),
and are actively investing in value-added and innovative technology sector with very little
support from the Government in the form of encouragement. Meanwhile, state enterprises
are getting more incentives exploring and exploiting land, forestry, minerals or constructing
large infrastructure projects. Currently, a large group consists of banks and financial
institutions, is attracting investment capital through the security market and real estate
market to focus on non-production activities and has no intention of reinvesting in
production and technological development.
Capital continues to be invested in the infrastructure construction and industrial sectors in
which the State holds interests, while the recent events show that the State enterprises
now do not create more jobs, but rather inefficient investment and even capital losses.
Many BOT infrastructure projects, though not 100% of the capital invested by the State, but
partly comes from State capital and partly comes from bank borrowings. In reality, it is
clearly noticed that State capital accounts for a large proportion of investment projects.
After completion of these projects, the state will charge businesses and citizens to recover
capital investment, which will create enormous cost burdens for businesses, reducing the
competitiveness of goods produced domestically.
Over the years, we realize that the government has been following a policy where the
largest finances are not used for production and creation of wealth to the society, but
instead poured into land, financial services, and gold and foreign exchange hoarding. We
believe that this policy needs changing. So we urge the government to quickly introduce
new forms of investment to ensure that businesses get equal access to finances through an
open, transparent and fair market.
Through our comments in this important VBF gathering, we want to shed light in the most
positive way possible on the policies that have been long awaited by businesses, and
hopefully will be introduced soon by the government.
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1. Putting quickly and pragmatically to life the positive new rules of the Science and
Technology Law. The role of businesses is so frequently mentioned as a unifying thread in a
law that seems to be not so much related to businesses Science and Technology Law No.
29/2013/QH13. The law shows major changes in awareness toward a business-centered
approach in the development of science and technology in Vietnam.
But to translate this law into real life and meeting the needs of finances for science and
technology, mobilizing ODA funding or innovations funds for national science and
technology development, it is essential to have a step-by-step procedure which is both
simple and logical. At the same time, the government needs to put in a sustainable and
large enough amount of funding in this process. Two years into the existence of the law
(June 2013 June 2015), despite the introduction of various implementing documents and
supportive mechanisms, the resources available to support science and technology
development do not seem to find a reliable address. This again is wearing thin businesses
trust in the governments new policies.
2. Encouraging investment in supporting industries and defining the key role of
supporting industries. Policies for development of heavy industry (cement, steel, mining,
etc.), automotive industry, textile, among others, and recently agribusiness and rural
development have not been as effective as they should be, with some of them even deviate
from the goal of promoting industry development. Meanwhile, supporting industries a
pivotal pillar of an industrial economy and one that looks like it is tailored to promote the
involvement of small and medium enterprises (SMEs) and private companies, with so many
past success stories (Japan, Korea, Taiwan and China) have not been recognized for the
important role that is has, and it takes too much time to have a law of its own. Like many
other sublegal documents for the Science and Technology Law that help bring it to life, a
dedicated Decree for supporting industries has not seen the light of day even though
multiple drafts versions have been produced. We urge that this Decree is released as soon
as possible, and propose the following points to be concentrated on:
a) Development of craft villages and household businesses to become outstanding
supporting industry units, based on their experience, established track records and
understanding of the market and industry;
b) Creation of more industrial clusters at small and medium sizes; encouraging new,
innovative and fledgling businesses to invest through formalized incentives and some
venture capital from the governments funding; Giving preferences to start-ups,
especially joint venture companies with foreign and domestic partners equity, capital
investment, imported technologies, and in the long run, naturally handed over
production and governance technologies;
c) Consolidating specific businesses referred to in (a) and (b) above through incentives for
relocation, M&A, and so on, to create a network of supporting technology firms with
good experience, innovation, passion and dedication, and ones that take bold steps in
investment;
d) There is a need for the governments investment funds that are robust enough to invest
in small and micro companies that set out to build their own factories.
The countrys limited resources should be allocated among many areas and smaller sized
businesses, instead of focusing on a few mega-sized groups of companies, leading to
imbalance. The fall of just one of these large firms may entail devastating effects on the
entire economy.

Page 2 of 3

3. Poor enforcement resulting in unhealthy competition. For a number of conditional


lines of business, including special investment sectors such as insurance, banking or key
manufacturing industries like car making and so on, an enabling environment is vital. These
are often industries that are more profitable than others. Poor audit and inspection,
however, may lead to unqualified businesses slipping through by lowering costs and
unhealthy competition ploys. That happens at the cost of complying companies.
On the other hand, there are some overly restrictive rules deter smaller firms, such as
rulings on environment and fire control. Having in place systems that meet the existing
rules will be very costly, sometimes as much as billions of dong. Reasonable policies from
the government are highly recommended, especially to help small and medium firms to
grow.
4. Tertiary and vocational education. While the Tertiary Education Law No. 08/2012/QH13
that came into effect in 2013 gave autonomy to academic institutions, after two years it is in
existence, most public universities have not changed much through this policy.
From a businesses perspective, tertiary and vocational education is the main source of
human resources supply for firms. Despite some limited advancement in raising the skills
and competencies of graduate students, the pace is not as expected, and the quality of
graduates is still not good enough. Most graduate students are unable to start work
immediate even in the jobs they are trained to do. This situation of human resources quality
leads to a fact that Vietnams productivity will not go up, and as a result, it will lower the
countrys labor-related competitiveness edge.
Closing
There are just less than six months of this year of integration, but most small and medium
firms do not seem to be well prepared for the journey, as they try to passively adjust rather
than making conscious steps for integration or turning their attention to how to protect the
local market from the influx of imports. Meanwhile, having to confront protective barriers
from very close by markets in the region will make the market, even though as liberalized
as it may be, to be hard to get access to, become counterproductive, and even scaled-down
when local markets are shared.
Again, we want to stress that private companies, especially small and medium firms, are
feeling the challenges more clearly than ever as 2015 is determined as the year of
integration with a variety of bilateral and multilateral agreements to be concluded and
come into effect, including the ASEAN Economic Community (AEC) or Trans-Pacific
Partnership (TPP).We hope that the government listens to the business community as a
whole and small and medium enterprises, and provides the best support available for this
group to grow and become a reliable backbone for the countrys economic development.
We look forward to having the support and cooperation from both regulatory agencies and
donors.

Page 3 of 3

INVESTORS FEEDBACK
Mid-term Vietnam Business Forum
Hanoi, June 9, 2015

Prepared by
Mr. Sigmund Stromme
Chairman Nordcham HCMC
Government leaders, business representatives, ladies and gentlemen, The Nordic
Chamber of Commerce Nordcham, appreciates this opportunity to share its views on
the business climate in Viet Nam.
As a small Nordic business community with a long history in Viet Nam we would like
to share our view on s few specific areas which Nordic investors focus on.
POWER AND ENERGY
The government has done a good job in ensuring sufficient energy through 2014/15,
however Nordcham members are quite concerned about the uncertain outlook of power
supply especially information put out by authorities responsible for energy about
expected shortages in the south of Vietnam in early 2015.
In order to bolster renewable energy, we support the creation of an attractive
investment environment for these sectors. As such, we back the recommendations put
forth by MOIT consultants, which call for an increase in the FIT level for wind energy
and simplification of application process. As well as MOIT with FIT for the Standard
Power Purchase Agreement for Biomass plants and waste to energy.
EVN continues to run at a loss and electricity costs remain the lowest in the region. This
limits both direct investments in grid infrastructure and energy efficiency efforts by
customers. It is suggested to continue the adjustment of energy tariffs as well as
improvement for a sustainable power sector development in Vietnam, and for MOIT to
prepare a road map of Retail Power Pricing to 2020 with a vision to 2030. This will enable
EVN in restructuring and becoming more profitable following international practices, hence
will open access to private investment both domestically and internationally, and will
stimulate greater energy efficiency efforts from end use customers.
WATER AND ENVIRONMENT
Water quality, flood protection and waste water management continues to have an impact
on Foreign Direct Investment planning and costs for Vietnam. Municipal water and waste
water control projects continue to fall behind with negative impact on our environment.
Noting the high risk of climate related disasters in coastal, low-lying areas, and urban
flooding in Vietnam, continued efforts at mitigation and adaptation are needed. Progress is
notable in some areas, but the challenge is serious and needs attention. Recent
improvements in the PPP and BOT legislation have been positive, but will are behind on PPP
and BOT structure similar to other ASEAN countries to attract private investments.
LABOR AND HUMAN RESOURCES
The Vietnamese workforce is young and dynamic, even compared to other Asian
countries, and is one of the main and important assets of Vietnam, which can stimulate
further foreign investment.
Page 1 of 3

Many of our companies have difficulties in recruiting skilled workers and also engineers.
We believe it is necessary for the authorities to focus and invest more in education,
particularly vocational schools and engineering, in order to upgrade the knowledge and
standard of the workforce.
As to foreign experts that are needed in the initial phase of the establishment of new
investments, it should not be made to complicated, as they are needed for a proper
technology transfer. For the Nordic companies we believe that the cost of bringing in foreign
nationals will anyway limit their use, to only the period the investors judge it feasible.
LOGISTICS/TRANSPORT/PORT SITUATION.
Many of our member companies are still experiencing great problems due to increased
transport and logistics cost as a result of port congestion and lack of handling capacity in the
major Vietnamese ports. In order for Vietnam to remain competitive compared with its
neighboring countries it is important to improve the cargo handling capacity and cost.
Present ports need to be improved and new ports need to be built, this applies both
for container terminals and bulk-steel cargoes. We recommend that in order to
accelerate investment in this important sector the policy is eased to allow 100% foreign
shareholding in transport and port investment projects.
We would also recommend that the relocation of main ports out of HCMC center is
accelerated to transfer the cargo flow to more transport accessible and cost efficient
deep sea ports in Ba Ria Vung Tau province.
The new trucking rules regarding maximum weight trucks can carry have sharply
added transport cost and are quite different from international standard. Furthermore
the rules and regulations are continuously changed/amended making difficult to even
follow what the current regulations are. We agree that maximum weight has to be
applied, and we do in general fully support this new measure, however it is today
not always applied equally between ports and regions. Furthermore a fully loaded 20
feet container can be transported on a 20 feet trailer in loading ports around the
world, but in Vietnam it can now only be transported on a 40 feet trailer. We
therefore suggest that relevant rules and regulations are modified to apply international
standard so that particularly containers can be transported in a more efficient and safe
way.
Finally we have noted that as per WTO commitment as from January 2014 foreign
companies should be able to operate in the logistic field as fully foreign invested
companies, however the regulations on how to apply the new rules have not been issued
and the People Committee of HCMC has suspended the issuance of new investment
license for foreign logistic companies and amendments to existing license until receiving
clarification/guidance from MPI.
We recommend that comprehensive regulations are issued without further delay enabling
foreign companies to make needed investment in the logistic field, which will make the
logistic services more competitive and reduce exporter and importers cost.
ONE-TIME LICENSING
Reference is made to the new Circular 35/2014/TT-BCT of MOIT dated October 15th,
2014 regulating automatic import license applicable to fertilizer.
Page 2 of 3

Outstanding problems/obstacles
Company now have to apply every time for a one-time license for each lot of
fertilizer imported, small or big. Since company already has business license of
importing and trading fertilizer in Vietnam. This requirement only adds
complication to the actual process.
There is an additional requirement for issuing that one-time license which is to have
a confirmation from a specific bank at the time of the importation. It is unreasonable
as companies are uncertain what bank they will select for payment to supplier at the
time of importation; most supplies are on credit with the support of mother
companies. The final choice of bank depends on the competitiveness of banks and
exchange rates when payment to supplier is due.
Proposal for solution
Not apply one-time license requirement to companies that already have import
rights in their business license.
Waive the requirement for confirmation letter from the bank in order for companies
to obtain permission to import fertilizer to Vietnam.
LEGAL FRAMEWORK FOR FOREIGN INVESTORS
In a recent legal case where the Appellate Court of the Supreme Peoples court of Ho
Chi Minh City revoked an investment certificate from 2007 related to the Conversion of
Ba Ria Serece port Co from a joint venture to a joint stock company, and furthermore an
transfer of shares in 2010 from one foreign shareholder to another, both of which are
our Nordcham members. The claim was filed by one minority Vietnamese 10%
shareholder against the People Committee of Ba Ria Vung Tau and its Department of
Planning and Investment DPI. All shareholders had agreed and signed on the relevant
company decision to convert from J/V to STC, but some details in the new charter was
not agreed to by this shareholder. The company has 70% foreign shares and 30 %
Vietnamese shares and is operating the most successful port and profitable Port the Ba
Ria Vung tau area. With the decision by the court 8 years after conversion and 5 years
after a share transfer the company now has undefined legal status as this is
unprecedented, and there is no legal clear guidance about how the company can now
function/operate. To have an investment certificate revoked after such a long time,
seriously affecting the operation of a successful company, is a great concern to the
foreign shareholders who also have other large investments in Vietnam.
From NordChams perspective, our members are confident about their investment in Vietnam
which is based on a long term view. Several new Nordic companies have increased their
present investments and new companies have been established during the past year.
We appreciate this opportunity to participate in the Vietnam Business Forum and thank
for this opportunity to exchange views and enhance understanding between the
Government of Vietnam and the business community.
We wish good health to the Minister, representatives of business associations, and the
diplomatic corps, and all the representatives here today.
Thank you.

Page 3 of 3

Section II

TRADE, TOURISM AND


INVESTMENT
Main discussion topics:
Issues of implementation of new
Laws on Investment, Enterprises,
Immigration, Residential Housing
and Real Estate Business

Investment and Trade

Report from Investment and Trade Working Group

Vietnam Business Forum, 2015

REPORT FROM INVESTMENT AND TRADE WORKING GROUP

Presented by
Mr. Fred Burke
Investment and Trade Working Group

On behalf of the Investment & Trade Working Group, we wish to present the following
issues for consideration. Some of these issues have already been the subject of Working
Group meetings and stakeholder consultations, and much progress has been made in
certain areas. Please forgive us for using our valuable time to focus on the issues that still
need more work.
1. ARBITRATION
The first major issue we would like to raise is the issue of recognition and enforcement of
arbitration awards. We raised this issue one year ago and there have been at least two
stakeholder workshops which have collected data and provided some preliminary
assistance to the legal community. However, for the situation we face in terms of the poor
record of recognition and enforcement of arbitration awards remains basically unchanged
and much more needs to be done.
a. Status
Although reliable statistics are hard to come by, it seems that the majority of arbitration
awards, whether they are from foreign or domestic arbitration organizations, are not
respected by the courts of Vietnam. They are dismissed, often for spurious technicalities
that appear to be driven by prejudicial attitudes, a misinformed understanding of the
concept of arbitration or in some cases undue influences. Specifically, according to
statistics provided by the Vietnam International Arbitration Centre ("VIAC"), 19 out of 44 of
its awards submitted for recognition and enforcement were set aside in 2014. This means
almost half of the awards challenged were set aside. This compares unfavourably to the
statistics in other countries, as presented in our stakeholder meeting (see below).
Vietnam has done a lot of good work to build the legal framework for arbitration is an
important supplement to the judicial system and one that has been a crucial factor in
attracting foreign investment trade and investment over the years. Vietnam joined the 1958
Convention on Recognition and Enforcement of Foreign Arbitral Awards inSeptember, 1995.
Its most Law on Commercial Arbitration was adopted in and was a significant improvement
on the prior decree. Other laws and regulations support the operation and implementation of
arbitration proceedings the enforcement of arbitration awards.
Notwithstanding all this good work, it seems that one crucial link in the chain is still
missing. Specifically, judges in Vietnam often misunderstand most basic principle of
arbitration, which is based on the contractual agreement between businesses to submit
their disputes to a certain form of expedited, simplified dispute settlement. On the contrary,
Vietnamese judges apply highly technical procedural standards to arbitration awards that
are simply not appropriate. These judges second-guess the decisions of qualified
arbitrators, who often have specialist expertise which they apply to their serious
deliberations of the issues presented for arbitration. What is most frustrating is that when
these judges disregard the arbitrators, considered awards, they do so without providing any
opportunity for appeal and very little transparency.
Below is a slide from the April, 2015 Working Group meeting on arbitration issues
summarizing the implementation of the New York Convention to date.
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Report from Investment and Trade Working Group

Vietnam Business Forum, 2015

Typically, judges set aside arbitration awards (that would be valid in any other jurisdiction)
on spurious procedural grounds. The two most popular excuses for not respecting an
arbitration award are:
a) claiming that the arbitration procedure failed to follow strictly the procedural provisions
of the Civil Procedure Code, when more flexible procedures relevant to arbitration
proceedings should be valid and recognized; and
b) (b) claiming that the arbitration award somehow violates the "fundamental principles of
Vietnamese law".
b. Issues
In both cases, this approach is inconsistent with Vietnam's treaty obligations under the
Convention.
i. Procedural Standard
On the first point, it is a fundamental principle of our arbitration each party have notice
of the proceedings and have an opportunity to be heard in them. If it does not, then the
arbitration award may be set aside by a court of competent jurisdiction. However, a
technically deficient power of attorney is irrelevant if the party in fact had notice, did
appear and participate in arbitration. Arbitration is meant to be a flexible procedure
without having to invoke the time and expense of applying the evidentiary and
procedural rules that would apply in a judicial setting. This is part of the appeal of
arbitration globally, and it is why it can be an effective and efficient supplement to the
judicial system. Parties agree as a matter of contract to submit their disputes to
arbitration and, when doing so, they stipulate the rules of arbitration apply. Whether
the arbitration organization is the Vietnam International Arbitration Centre, the
Singapore International Arbitration Centre or an institution in London, Geneva, New
York or elsewhere, they all follow the same principle, which is that dispute resolution
by arbitration is a contractually agreed process that doesn't necessarily require all the
same procedural trappings that litigation does.

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Report from Investment and Trade Working Group

Vietnam Business Forum, 2015

ii. The "Fundamental Principles of Vietnamese Law" Exception


Second, on the issue of what are the "Fundamental principles Vietnamese law", we
acknowledge that this standard varies from one country to another. In all countries, a
contract for slavery would be invalid, while in another a contract purporting to waive
workers' rights in terms of overtime requirements or waiver of statutory benefits would
be deemed to constitute a violation of "fundamental principles" and would not be
enforceable notwithstanding an arbitration agreement recognizing it. But in Vietnam, it
seems that courts take the position that anything that is not entirely compliant with
Vietnamese administrative requirements and consistent with the outcome that would be
reached under Vietnamese law somehow violates quote "fundamental principles". For
example, in one recent case, a well considered arbitration award was set aside on the
basis of the "fundamental principle" that they contract had been denominated in a
foreign currency in violation of Vietnam's foreign exchange regulations requiring that all
contracts be denominated in Vietnamese dong.
It does not help in developing a jurisprudence of what "fundamental principles" are that
court decisions in Vietnam are nearly impossible for the public or the legal community
to access, so they rely on anecdotal information.
These failures are seriously undermining investor confidence in Vietnam's legal system.
Without a backstop to enforce contracts, none of the laws of Vietnam has worked so
hard to put into place mean anything. In order to begin to address this problem, we
respectfully propose the following preliminary steps which, among others may start us
in the right direction of improving the situation.
c. Proposals
To address these issues, we suggest the following measures:
i. Inspection and Assessment
First, we recommend that an appropriate body be charged with the authority to review
the cases that have been set aside for legal soundness, as well as to check to ensure
that no undue influence has affected any of the cases that have been decided against the
enforcement of the arbitration awards.
ii. Transparency
Second, there should be more transparency in the system. There should be public
information available regarding the number and substance of cases submitted for
judicial recognition and enforcement. The result of those applications should be
published along with the judicial reasoning underlying them. Currently, these records,
although they are supposed to be public, are not.
iii. Skills Training
Third, because at least some of the arbitration awards may have technical deficiencies
in them, more should be done to strengthen the arbitration skills of Vietnam's
arbitrators and its key arbitration institutions. This is an area where technical
assistance in years past has been lacking and more should be done in terms of focusing
technical assistance efforts going forward to ensure that Vietnam can reduce risk for
investors and traders and maintain competitiveness in its increasingly integrated
economy.

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Report from Investment and Trade Working Group

Vietnam Business Forum, 2015

iv. Appeals
Fourth, while the grounds for appealing an arbitration award should be very narrow and
strictly applied, there should be a special appeal mechanism for judicial decisions that
set aside arbitration awards on spurious grounds.
Although part of the purpose of arbitration is to cut short time-consuming and
expensive process litigation, when it comes to recognition and enforcement of
arbitration awards, the current procedure is manifestly unfair and its application
requires some sort of appeal in order to encourage better behavior at the initial review
level. If it would take too long to amend the law or issue a decree correcting it, we
suggest that the State Inspectorate or other some other supervisory authority be
delegated to check to ensure that no undue influence has affected any of the cases that
have been decided against the enforcement of the arbitration awards. In any case, there
should be some recourse or the absolute power currently enjoyed by the first court will
be too tempting to abuse.
Other measures would no doubt be welcome but these are the four most immediate
measures that we can suggest to improve the system. This is urgent work and needs to
be done soon before too many more bad experiences destroy Vietnam's reputation as a
country that takes seriously the concept of the rule of law and the concept of party
autonomy in selecting the mechanism that enterprises prefer to use to resolve their
commercial disputes.
2. ENTERPRISE LAW ("EL") & INVESTMENT LAW ("IL") IMPLEMENTATION ISSUES
a. Investment Certificates and Business Registration Certificates
In our recent stakeholder meetings regarding the implementing decrees for the amended
Enterprise Law and Investment Law, our members were told that the new licensing
requirements would be simpler and more efficient than under the previous rules even
though they will be required to get two documents with different applications as compared
to the former system which only required either an investment Certificate or a Business
Registration Certificate. Now, investors are required to get both an Investment Certificate
and a Business Registration Certificate.
Can you please explain how doubling the paperwork is consistent with the important policy
to reform administrative procedures? We don't understand why a single application form
cannot suffice to apply for both applications since each authority checks informally with the
other already. We also do not see any real efficiency arising out of the new two step
procedure. We are hopeful that promises that it made about greater efficiencies will come
true.
b. Conditional Investment Sectors
We're also concerned that in the very many areas where foreign investment is subject to
conditions, the conditions have not yet been worked out and therefore there may be
obstacles to foreign investment. The IL compiles a list of 267 conditional business lines
from numerous existing international treaties, laws, ordinances and decrees. The
implementing decree of the IL must clarify what laws would prevail if there is a discrepancy
between the IL (and its implementing decree) and the specific laws. Also, if there are
changes to any of these 267 conditional business lines, it is important to identify what laws,
the IL or the specific laws, will enact such changes? Also, We assume that the authorities
will continue to have discretionary authority to approve investment projects on a case-bycase basis even where there subject to conditions. Can you please confirm that?
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Report from Investment and Trade Working Group

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c. The relationship between charter capital and contributed capital


Under the new IL and EL, the charter capital and contributed capital are two different
concepts, where charter capital is contributed by an investor to establish the legal entity,
and the contributed capital is contributed by the investor to implement an investment
project. The charter capital must be contributed within 90 days from the establishment of
the legal entity, whereas the contributed capital can be contributed as required in
accordance with the progress of the investment project. This distinction is great, in the
sense that the investor will not be required to contribute the entire contributed capital
within 90 days.
However, the legal entity is established in order to own and operate the investment project,
and it is unclear how these capital amounts relate to each other on the various important
documents of the legal entity, including the Investment Registration Certificate ("IRC"), the
Enterprise Registration Certificate ("ERC"), and its balance sheet and financial statement.
Does it mean that after each phase of contributed capital is paid, the legal entity would need
to amend its ERC to reflect the increased charter capital? (We think it should, as the nature
of these two amounts are equity from the investor). From a banking regulation perspective,
shall commercial banks base themselves on the IRC to allow contributed capital to come in,
or on the charter capital amount as under the current law and practice?
If IRC and ERC co-exist for a legal entity that reflect 2 different equity amounts, would M&A
transactions be conducted to sell the charter capital under the ERC, or the contributed
capital under the IRC? This question becomes a little uncertain under the new laws. As
such, we see the need for the charter capital and contributed capital to be reconciled and
consistent, so that they actually reflect the equity amount that has been paid by the foreign
investor. This link still is missing in the implementing decrees of the IL and EL. We hope
that the pending implementing decrees (due out before this Forum) will clarify these points.
3. DRAFT CIRCULAR ON IMPORT OF USED EQUIPMENT
We held two stakeholder consultations on Circular 20/2014/TT-BKHCN, which is intended
to replace suspended Circular 20/2014/TT-BKHCN that became effective on September 1,
2014 Imports of Used Machinery, Production Lines and Equipment.
Draft Circular No. 20/2014/TT-BKHCN that is to take effect on July 1, 2015 purports to
encourage imports of new machinery, equipment and production lines that are
manufactured with the latest technology, presumably to enhance economic growth and
development. At a public consultation in Ho Chi Minh City on March 17 , 2015, Director
General Mr. Do Hoai Nam of the Department of Technology Auditing, Examination and
Assessment of the Ministry of Science and Technology explained that, in addition, there was
great concern that Vietnam would become a dumping ground of old technology and scrap
machinery due to a new decree or regulation in China that prohibited imports of used
machinery and equipment. He expressed the view that the draft Circular was a measure
necessary to avoid this problem in Vietnam.
th

According to the strong consensus of the enterprises attending, regrettably, the new trade
restrictions in the draft Circular are likely to have an effect opposite to that intended. A practical
example: progressive dies or other specialized new tooling and high-tech controls items are
used with multi-ton and multi-year capital equipment such as, stamping presses or machine
tools in many industrial applications. While the dies, specialized tooling and computerized
controls items may be new, the presses and machine tools in which they are used have useful
lives of many years, well exceeding the arbitrary limits of 10 years or, an arbitrary and
impractical remaining quality of 80% or higher standard stated in the draft Circular.
Rather than enacting a new restriction on imports, the goal of encouraging imports of
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Report from Investment and Trade Working Group

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manufacturing equipment for high technology industries is better served by providing new
duty and tax incentives for investment in such new equipment and technologies.
The restrictions in the draft circular will actually discourage such investments and imports
because of likely unintended coverage of long-term capital equipment, parts and
accessories, due to the broad scope of the Harmonized System customs classification
codes involved that are listed with the draft Circular. The consideration of slowing or
limiting transfer of useful high-technology manufacturing equipment to Vietnam is
particularly applicable to machines and equipment used for semiconductor, automotive, flat
panel, optical and solar cell industries.
This is because it is faster and more cost-effective for an investor to obtain high-quality
used manufacturing machines in these industries, often moving equipment from existing
factories in another country, for example, from China, Mexico, Costa Rica, Malaysia,
Thailand, Korea, Japan, the U.S. or EU, than to order new equipment because of long lead
times for highly specialized equipment and the significantly greater expenses involved.
The new draft Circular is also intended to ensure that such goods meet requirements of
quality, safety, energy saving and environment protection. However, instead of enacting new
trade-restricting measures, a better approach that involves modernization and
enhancement of existing compliance regulations and their enforcement by regulatory
agencies through up-to-date implementation of international standards and electronic
processing of administrative procedures is recommended. Such an approach will be in
keeping with international trade agreement requirements for implementation of the
National Single Window by Vietnam.
The new draft Circular mandates a new Pre-Shipment Inspection requirement for a Quality
Inspection Certificate, to be a condition of importation and customs release of used machinery,
production lines and related accessories and parts. This new administrative measure is not in
keeping with the priorities announced in Prime Ministers Resolution No. 19 for 2015 because;
it will increase customs clearance times and add administrative burdens for business and trade
stakeholders. In addition, the arbitrary standards of either a 10-year machine life or 80% of
useful life are not international standards, according to industry experts and quality inspection
and testing services. As a result, the new measure appears to be inconsistent with the WTO
Agreement on Pre-shipment Inspection (Article 2(4) Standards) that is part of GATT 1994. The
new measure also appears to be not in accord with the WTO Agreement on Technical Barriers
to Trade (Article 2) that is also contained in GATT 1994.
As a result, enterprises participating in the consultation sessions recommended that the
restrictions on imports of machinery and equipment contained in the draft Circular be
abandoned, while new administrative procedures to ensure compliance with international
standards of safety, energy savings and environmental requirements be simplified and
incorporated into the National Single Window project.
In sum, we believe that rather than enacting new restrictions on trade, concerns about
Vietnam becoming a dumping ground of old technology and scrap machinery are best
addressed on a case-by-case basis, through enforcement by the General Department of
Vietnam Customs and other relevant agencies of existing laws and measures that involve
antidumping, subsidies and countervailing measures, appropriate customs valuation of
imports and prevention of customs fraud with such imports. These are the appropriate tools
provided for in international agreements and in Vietnams implementing legislation to
prevent unfair trade and other unlawful import practices.

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4. NEW DRAFT CIRCULAR ON FOOD SAFETY OF IMPORTS (THE DRAFT)


We are concerned that the Draft new Circular on Food Safety results in unnecessary and
onerous new administrative procedures that are inconsistent with the Government's efforts
to streamline the administrative environment.
a. Inspection Methods
i. Compliance incentive reduced: First, the number of inspection methods reduces from
4 to 3, which reduces the flexibility in inspection compliance. The current systems of 4
methods, which sets forth various eligibility criteria (e.g. food of low risk, certified by
third party in exporting country), facilitates higher compliance incentives of importers.
The Draft has eliminated most of these criteria;
ii. Possible discrimination and further delay in customs clearance: Under Decision
No.23, GMP/HACCP qualified food is only be subject to sensory inspection of
representative samples. Now, under this Draft, GMP/HACCP qualified food is subject
to sensory inspection of the whole consignment, and also subject to further testing if
the inspection agency detects any sensory suspicion. GMP and HACCP are food safety
management systems that are internationally accepted methods to control the food
safety. New regulations may provoke:
Further controversy regarding national treatment principle as compared with similar
GMP/HACCP qualified food produced in Vietnam;
Delay in customs clearance procedure, which contradicts current reform in customs
management as implemented by the new Law on Customs;
iii. MFN Inconsistency and substantial restriction in scope of imports eligible for Dossier
Inspection (Method of Reduced Inspection): In addition to imports mutually recognized
under mutual recognition agreements, only imports that have qualified for 5 consecutive
Normal Inspections that have conducted in 1 year time are eligible for Dossier Inspection.
This means that only imports that are imported into Vietnam more than 5 times a year are
eligible for this inspection method. Such a regulation is de facto inconsistent with the MFN
principle when establishing discrimination between imports from larger vs. smaller traders.
Such a regulation also slows down the customs clearance process as the number of
imports subject to Normal Inspection is increased.
b. Inspection Duration
Though, the timeline is more clearly defined, the actual time for a consignment to be
released will be longer. Particularly, for Dossier Inspection, the current duration for
receiving the Notification is only 2 working days since arrival date, while, under the Draft, it
may take up to 4 working days since arrival date to receive the Notification.
c. Notification Issuing Authority
There is inconsistency in regulating the Notification Issuing Authority. Pursuant to Section 3,
Article 11 of the Draft, VFA and local divisions of VFA are entitled to issue the Notification of
Food Safety Qualification / Non-Qualification. However, the Draft only provides the jurisdiction
of VFA under Article 20 of the Draft without providing any jurisdiction of local division of VFA. As
such, pursuant to Section 1, Article 20, only VFA is entitled to issue the Notification.
Such a new regulation is a big step backward against the administrative reform. Under the
current regulations of Decision No.23, an inspection agency assigned by VFA is entitled to
issue the Notification. Now under the new regulation of the Draft, the inspection agency is
only allowed to conduct the inspection, and then it must submit the inspection result to the

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Report from Investment and Trade Working Group

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VFA. Only VFA is entitled to issue the Notification. Turning one step into two steps obviously
doubles the possibility for obstructionism and error.
Taking into account the volume of food importation, actual delay shall occur during
implementation and this will drive up the cost of food products for consumers in Vietnam. In
such event, the inspection timeline set forth in the Draft will predictably be violated constantly,
and unreasonable burdens will be imposed on importers. This new regulation also creates
pressure on the current staff of the VFA due to sudden surge in workload, and results in
unnecessary demand of recruiting a larger number of civil servants to secure the timeline,
which contradicts the reform policy of personnel reduction in governmental organizations.
5. TAX ADMINISTRATION
According to most international surveys, Vietnam remains a difficult place to do business.
For example, in 2015 a World Bank "Ease of Doing Business Survey" ranks Vietnam 78 out
of 189 countries, a slip of 6 places from 2014. When compared to Vietnams GDP ranking
(52 ), Vietnams is clearly lagging in terms of ease of business.
th

nd

According to this Survey, by far the biggest problem in the ease of doing business ranking is
tax, where Vietnam ranks 173 out of 189 countries, slipping 2 places vs. 2014.
When it comes to "paying taxes" (the administration of tax payment and audits) Vietnam
ranking was lower than every other country in Asia and the Asia Pacific.

Surveys such as these are not the only source of information regarding the poor state of
Vietnams tax administration system. Members of the Tax and other Working Groups
regularly provide accounts of the burden of tax compliance; drawn out audits, illogical postaudit assessments, such as requiring importers to pay VAT twice on the same import
transaction; and appeals going unresolved well beyond the statutory 60 day period because
the local and central governments are not aligned.
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Interestingly the major problem with Vietnams tax is not the base CIT tax rate (currently
22%), where Vietnam ranks in the top half of countries. Additional taxes such as VAT, and
mandatory employee-related contribution drive the total tax as % of net profit to over 40%.
However the vast majority of business complaints relate to the cost and time of compliance
and the lack of predictability, simplicity and transparency in tax policy and enforcement.
This gap has a silver lining, it suggests that perhaps the most significant step the
government can take in attracting investment (and increasing the tax base) is improving tax
administration. The reverse is also true: Failing to improve tax administration forces
Vietnam to focus on reduced rates as a means of proving its tax friendly credentials and
attracting investment. In other words, failure to reform is negatively impacting revenue
collection because both the base (fewer investors) and the rate (lower rates to encourage
investment) are lower.
We urge the government to make tax reform a top priority for improving the business
environment and driving economic reform and growth. Reform initiatives should begin with
a publically communicated reform plan which would include the following:
A list of KPIs related to ease and cost of compliance, and transparency and
predictability of tax policy.
This list should include deadlines and the parties accountable for meeting them.
The list of disallowed deductions should be substantially reduced.
More resources should be devoted to helping tax payers file correct returns in the first
place, rather than catching them out on their errors in the audit process.
A tax website should report on the most frequent mistakes discovered in post-audit
assessment along with recommendations to help companies avoid such mistakes in the first
place. Help lines and web-based guidance should be introduced to help willing taxpayers
comply with the law and avoid disruptive and even devastating enforcement cases.
Tax offices should be required to required to receive appeal submissions regardless of
their form and both the submitting party and the tax official will sign a copy of that
appeal. Tax officials will have the right to request these appeals be corrected if
needed, but they shall be responsible for noting the time the appeal was submitted.
This will prevent the tax authorities from circumventing the 60 day appeal requirement
by refusing to accept the appeal.
Local tax offices should be required publish the average periods from initial appeal to
resolution.
6. DRAFT COSMETIC MANAGEMENT RULES
Our members are also concerned about the proposed circular currently being drafted by
the Drug Administration of Vietnam (DAV) that would provide detailed guidance for the
management of the cosmetic industry in Vietnam (Draft Circular). The Draft Circular,
which would replace Circular 06/2011/TT-BYT, On Providing Cosmetic Management of the
Ministry of Health, would require that cosmetic manufacturers declare certain details
regarding their products with the DAV in order to obtain notification numbers that would
then have to be printed on the packaging of the cosmetic products they produce
(Notification Number). 1 As discussed below, we believe the Notification Number
requirement is unnecessary and burdensome, and hope that you will consider alternative
measures that meet the legitimate regulatory purposes of the Draft Circular, without
adversely effecting the cosmetic industry or Vietnamese consumers.

Article 23 of the Draft Circular.

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Why should the Notification Number requirement should be removed from the Draft
Circular before it is promulgated?
a. Inconsistency with the ASEAN Community Objectives
The Notification Number requirement does not currently exist under either the ASEAN
Cosmetic Directive ("ACD") or Decree 89/2006/ND-CP regarding the labelling of goods. As
such, this new requirement risks undermining the important ACD objective of harmonizing
technical regulations across ASEAN member states as part of creating a unified ASEAN
Economic Community by 2015.
b. No Positive Effect for Consumers
The Notification Number requirement does not benefit consumer safety or provide
consumers with additional product information. Under current ACD requirements,
cosmetic manufacturers must provide notification and self-declare regulatory compliance.
The manufacturer then is fully responsible under law for the safety and quality of all
products it places on the market.
The Notification Number requirement would not grant consumers any additional protections.
Instead, the Notification Number requirement may cause consumers to mistakenly believe that
the safety and quality of the cosmetic products they purchase have been approved by
Vietnamese authorities when they see notification numbers printed on cosmetic products.
c. Product Traceability not Improved
We appreciate that the DAV inclusion of the Notification Numbering requirement in the
Draft Circular is intended to improve product traceability. However, international practice
shows that post-market surveillance is the most effective way to ensure product
traceability and compliance with quality and safety regulations for cosmetic products. Upon
request, we can provide you with information from cosmetic industry associations of other
countries or regions which show the ability of these measures to provide effective
traceability without harming the industry or consumers.
d. Manufacturing Costs Increased and Consumers Disadvantaged
The Notification Number requirement would considerably increase the cost and complexity
of production for cosmetic companies whether they import goods from abroad or produce
them in Vietnam. This will increase prices for consumers, slow the pace of innovation and
place the Vietnamese economy at a competitive disadvantage within ASEAN and globally.
In practice, the Notification Number requirement would increase manufacturing costs by
requiring that packaging be discarded and replaced whenever there is a change in
notification numbers following changes in any of the notification information. The
Notification Number requirement would also result in delays to production, increased
supply chain complexity due to the different packaging required for the same products
produced at different locations and other unforeseen consequences. In a large part, the
costs created by these manufacturing challenges will increase prices for consumers while
reducing consumer choice.
For these reasons, we suggest removing the requirement to print the Notification Number
on the product packaging from the Draft Circular.
We acknowledge and appreciate the great efforts that the Vietnam Ministry of Health
continues to make towards achieving the objectives of the ACD while meeting its legitimate
regulatory objectives. We sincerely hope that you will consider the concerns we have stated
above as you deliberate the provisions to be included in the Draft Circular when it is
officially promulgated.
Page 10 of 10

Visa and
Tourism

Tourism Position Paper

Vietnam Business Forum, 2015

TOURISM POSITION PAPER

Presented by
Mr. Ken Atkinson
Tourism Working Group

Introduction
Whilst Visitor arrivals in 2014 were up 4% from 2013 levels at approx. 7.9 million, the
figures are concealing a worrying trend in a significant decline in arrivals from China and
Russia. In addition, the increase in actual tourism arrivals was only 2%. This overall trend
has continued with arrivals in the first 3 months of 2015, down 12.9% on the same period for
2014.
In April 2014, Chinese visitor arrivals were 47% on the previous years corresponding period
and Russian visitors were 37% up. By end of June, this had decreased to 37% and 30%
respectively and by year end 2% and 22% respectively. In Q1 of 2015, Chinese arrivals were
approx. 40% down on the Q1 2014 and Russian arrivals were approx. 27% down.
In 2014, Visa waiver countries (S. Korea, Japan, Russia, Norway, Sweden, Finland and
Denmark) showed an average 5% year on year increase and in Q1 2015 there was a 7%
increase over the corresponding Q in 20141. South Korea registered the biggest growth with
13% in 2014 and 31% Q1 over Q1 2014. Visitors from Finland also increased 28% in Q1
20152.
Travel and Tourism is a major contributor to both employment and to GDP and in
comparison to other major contributors seems often sadly neglected.
The direct contribution of Travel & Tourism to GDP in 2013 was VND149,753 bn (4.6% of
GDP). This is forecast to rise by 8.9% to VND163,034 bn in 2014. This primarily reflects the
economic activity generated by industries such as hotels, travel agents, airlines and other
passenger transportation services (excluding commuter services). But it also includes, for
example, the activities of the restaurant and leisure industries directly supported by
tourists.
The direct contribution of Travel & Tourism to GDP is expected to grow by 6.3% pa to
VND299,846 bn (4.7% of GDP) by 2024)3.
The total contribution of Travel & Tourism to GDP (including wider effects from investment,
the supply chain, and induced income impacts, see page 2) was VND311,117 bn in 2013
(9.6% of GDP) and is expected to grow by 8.9% to VND338,660 bn (9.9% of GDP) in 20144.
Leisure travel spending (inbound and domestic) generated 89% of direct Travel & Tourism
GDP in 2013 (VND233,062 bn) compared with 11% for business travel spending
(VND28,762.3 bn)5.

VNAT
All Vietnam statistics are from VNAT.
3
World Travel and Tourism Council Impact Report 2014
4
World Travel and Tourism Council Impact Report 2014
5
World Travel and Tourism Council Impact Report 2014
2

Page 1 of 12

Tourism Position Paper

Vietnam Business Forum, 2015

Leisure travel spending is expected to grow by 8.9% in 2014 to VND253,786 bn, and rise by
6.4% pa to VND471,505 bn in 20246.
On the employment front, in 2013, Travel & Tourism directly supported 1,899,000 jobs (3.7%
of total employment). This is expected to rise by 5.4% in 2014 and rise by 1.5% pa to
2,329,000 jobs (3.9% of total employment) in 20247.
In 2013, the total contribution of Travel & Tourism to employment, including jobs indirectly
supported by the industry, was 7.9% of total employment (4,071,500 jobs). This is expected
to rise by 5.2% in 2014 to 4,283,500 jobs and rise by 1.2% pa to 4,824,000 jobs in 2024 (8.0%
of total)8.
The World Travel and Tourism Council (WTTC) ranked Vietnam 16 out of 184 countries in the
potential for long-term growth in the tourism sector in its 2014 impact report.
I. ENTRY VISA POLICY
Entry Visa Policy Trend
According to World Tourism Organisation (UNWTO), entry visa policy is one of the
Government policies that have the biggest impact on international tourism flow.
International tourists consider visa procedure as an additional cost in terms of cost and
time. If the cost for visiting a destination exceeds a tourists budget, they might not choose
that destination, but instead an alternative one which is more convenient.
Given the integration of the international economy, travelling facilitation is one of the
priorities of cooperation framework such as World Trade Organization (WTO), Asia-Pacific
Economic Cooperation (APEC), Association of Southeast Asian Nations (ASEAN), Greater
Mekong Subregion (GMS).Facilitating travelling, simplifying visa policy and visa exemption
are considered as important methods, not only to increase tourists exchange but also to
promote trading, investment and cultural exchange.
At the 19 ASEAN summit (in Indonesia, 2011), ASEAN leaders committed to continue
promoting the visa simplification process for ASEAN citizens as well as supporting the
initiative of common visa for non-ASEAN citizens, contributing toward the establishment of
a common ASEAN community in 2015. Currently, ASEAN is studying the members situation
to promote the implementation of entry visa procedure facilitation initiatives.
The recent UNWTO statistic shows the trend of visa policy simplification has started to take
effect. At the beginning of 2008, about 70% of the global population needed visas when
travelling. This number reduced to 64% in 2010 and 60% in 2013.
To increase the competitiveness, attract direct investment and international tourist flows
(in order to increase foreign currency income, create jobs), many countries are studying
to step by step to expand the visa exemption, in order to make them more competitive in the
market.

World Travel and Tourism Council Impact Report 2014

World Travel and Tourism Council Impact Report 2014


World Travel and Tourism Council Impact Report 2014

Page 2 of 12

Tourism Position Paper

Vietnam Business Forum, 2015

Impact of visa policy simplification


Given the greater competitiveness among different economies, a destination that is very
attractive but inconvenient in terms of entry visa may well lose visitor traffic to countries
that have a more convenient entry policy, for example in Vietnams case to Thailand,
Cambodia, Indonesia, Malaysia etc. In this case, no matter how strong and interesting the
promotion campaigns are, tourists still face difficulty in accessing the country because of
its visa policy.
Visitors from potential long haul markets often tend to combine different destinations in
their trip. For example, visitors from Europe and America when visiting Cambodia, Thailand
and Malaysia often want to visit Vietnam as well. However, because of the inconvenient visa
procedure they may give up the chance to visit Vietnam.
In 2014, Thailand had 24,8 million international arrivals and exempted visas and fees for
citizen from 61 countries in total, in which 49 countries received unilateral visa exemption.
Meanwhile Malaysia received 27,4 million international arrivals and exempted visa fees for
155 countries including 85 countries with unilateral visas. Similarly, Singapore received
15,1 million international arrivals and Singapore granted free visa free entry to citizens of
150 countries with unilateral free visa entry for 82 countries.
Japan, only started to pay attention to attracting international tourist to Japan, in 2003,
when they implemented the campaign: Visit Japan Campaign. During the period of 2001
2014, visitors to Japan increased 2,6 times, and for the first time reached 10 million arrivals
in 2013. Japan has a target of 20 million visitor arrivals by 2020.
Target markets for Japan are Thailand, Malaysia, Indonesia, Vietnam and Philippines, and
the Japanese Government has quickly loosened the visa entry policy for citizens from these
countries. As the result, this campaign has brought very positive outcomes. In 2014, the
number of Thai Tourists increased 45,5% (from 453.642 to 657.606 arrivals) ; meanwhile,
Malaysian Tourists to Japan increased 41,1% (from 176.521 increased to 249.516 arrivals) ;
Tourists from Philippines to Japan increased 70% (from 108.351 to 184.211 arrivals).
The issue of security
According to UNWTO and WTTC, the border/ gate is the place that can help to stop security
threats from the outside. Even when a person is permitted to enter a country, they can still
can be refused entry at the border gate.9 Therefore, visa exemption does not need to affect
security.
According to UNWTO General Secretary, Mr. Taleb Rifai: There is no evidence showing that
a rigid policy on entry visas ensures greater national security. Europe, for instance, with its
complicated immigration policy and a lot of procedures still has to face illegal immigration,
in which 95% do not have visas. Illegal immigrating and security do not have any relation.
Most of the terrorism activities were conducted either by people who own a legal entry visa
or native citizens.
Recommendations
It is our opinion that Vietnam needs to seriously examine its current visa regime from a
totally neutral perspective without undue influence from individual stakeholders in

World Tourism Organisation (UNWTO) and World Tourism and Travel Coucil, 2012. The impacts of visa policy
simplification on the creation of jobs at G20 economies: World Tourism Organisation.

Page 3 of 12

Tourism Position Paper

Vietnam Business Forum, 2015

order to move to a regime that encourages tourism and business travel and which is not
detrimental to the countrys security or income.
Vietnam needs to review and expand its visa waiver and visa on arrival policies.
Vietnam needs to review the rule that prohibits visitors with visa exemptions from
returning within 30 days without a valid visa
Vietnam needs to introduce a transit visa system, which will both attract tourists and
help develop Vietnam as a transit hub.
Vietnam also needs to consider visa reciprocity as required under various trade
agreements as at the current time there seems to be inconsistencies
i

All these recommendations are addressed in more detail below.


1. Visa On Arrival, Visa Exemptions And Waivers
Currently Vietnam has visa exemption for citizens of ASEAN Countries and Visa exemption
for citizens of Japan, Russia, South Korea and the 4 Nordic Countries. The comparison to
our ASEAN neighbors, and often our competitors for tourism dollars are shown below:
Countries
Brunei Darussalam10
Cambodia11
Indonesia12
Lao PDR13
Malaysia14
Myanmar15
Philippines16
Singapore17
Thailand18
Viet Nam19

Visa exempt/free
58
19
15
40
155
6
157
158
66
16

Visa on arrivals
7
3
62
166
No specific number is given
26
N/A
N/A
15
158*

In the case of Vietnam this is e-visa and not a true visa on arrival system.
In turn below are the number of Visitor arrivals for each of the above countries and their
growth in 2014 compared to 2013.
Countries
Brunei Darussalam20
Cambodia21
Indonesia22
Lao PDR23

2013
268,122
4,210,165
8,800,000
3,779,490

2014
N/A
4,502,775
9,300,000
4,158,719

10

Visa Information from MOFAT


Visa Information from Embassy of Cambodia
12
Visa Information from Embassy of Indonesia
13
Visa Exemption and Visa on Arrival
14
ASEAN Secretariat Malaysia
15
Visa Information from Embassy of Myanmar
16
ASEAN Secretarial Office Philippines
17
Entry visa from Immigration & Checkpoints Authority of Singapore
18
ASEAN Secretariat Thailand
19
Vietnam visa information
11

Tourism Statistic from Brunei Times


Tourism Statistic from Ministry of Tourism of Cambodia Board
22
2014 Achievements and Tourism Indonesia Targets for 2015 from Indonesia Tourism Board
23
Tourism Statistic from Vientiane Times
20
21

Page 4 of 12

Change
6.95%
5.68%
10.03%

Tourism Position Paper

Malaysia24
Myanmar25
Philippines26
Singapore27
Thailand28
Viet Nam29

Vietnam Business Forum, 2015

25,714,447
2,044,307
4,681,307
15,567,923
26,546,725
7,572,352

27,437,315
3,081,412
4,833,368
15,086,827
24,779,768
7,874,312

6.70%
50.73%
3.25%
-3.09%
-6.66%
3.99%

In addition it is useful to look at the number of countries, whose citizens are granted visa
free access to the majority of countries (of which 229 are surveyed) and below are a few of
the leading ones30:
Germany, USA, UK
Canada
Belgium, France, Italy, Luxembourg, Netherlands, Portugal, Spain
Austria, Ireland
New Zealand, Switzerland
Greece
Australia

174 out of 229;


173;
172
171
170
169
168

Vietnam affords no visa waivers or exemptions for any of the above mentioned countries.
A report published by the World Tourism Organisation (UNWTO) and the World Travel &
Tourism Council (WTTC) highlighted that Vietnam could potentially increase tourism
arrivals by 8 to 18% if it were to move to a program of visa facilitation (i.e. Visa on arrival)31.
Therefore we believe Vietnam should be looking at the major higher spending tourism
markets and markets for trade and investment and introducing an expanded number of
countries whose citizens are eligible for Visa on arrival or visa exemption. Also it is worth
noting that by Visa on Arrival we do not mean the current E Visa program which is nothing
more than an authority to travel to the country before being faced with high visa charges
and chaos at most times in HCMC where the waiting time can run from 39 minutes to 2.5
hours.
One common objection to the removal or
relaxing of visa requirements is the loss of
revenue from Visa fees however we believe
that most tourists travel on a budget and
that the waiving of visa fees will result in
more local spending benefiting directly
those serving the tourism industry which
in turn will lead to an increase in local tax
collection.

24

Tourism Statistic from Malaysia Tourism Board


Tourism Statistic from Ministry of Hotels and Tourism of Myanmar
26
Tourism Statistic from Philippine Tourism Board
27
Visitors Arrival report from Singapore Tourism Board
28
Tourism Statistic from Thailand Tourism Board
29
Tourism Statistic from Vietnam Tourism Board
30
The Henley Global Visa Restriction Survey
31
Report published in May 2012
25

Page 5 of 12

Tourism Position Paper

Vietnam Business Forum, 2015

As a start; Vietnam needs to look at countries with whom they have Free Trade Agreements
or are negotiating such Agreements as a starting point to expand the current list of Visa
waiver countries
Recommendations
Immediately expand the list of visa exemption countries to include all EU member
countries; countries in the TPP who do not have visa waiver namely Australia, Brunei,
Canada, Chile, Mexico, New Zealand, Peru and USA; and India.
Move to a true visa on arrival system for all current visa waiver countries plus the
countries mentioned above;
Introduce a true E Visa where visitors can get their Visa online and print for processing
at immigration;
Reduce visa fees which are the second highest in Asia and consider a premium for E
Visa and E visa application;
Improve the system and reduce waiting time for those using E visa on arrival
2. Return Visit 30 Day Rule
Under current regulations, a person arriving with citizenship of a visa exempt country,
cannot return within 30 days without a valid visa*32.
This rule is causing problems for travel agents and tourists alike as many visitors wish to
make side trips to Cambodia, Laos and Myanmar for example where they may go for 2 or 3
days, taking advantage of the flight links with these countries but then find they have to
apply for a visa in order to reenter Vietnam.
Recommendation
Allow visitors from visa exempt countries one re-entry for a maximum of 5-7 days.
3. Transit And Airside Visas
It is noted that China has recently liberalised its Visa requirements, allowing for tourists
from 51 countries to receive 72 hour extended transit visa's on arrival which allow them to
exit the airside of airport terminals into the cities and regions around Beijing, Guangzhou,
and Shanghai and two other regional cities. This has lead to an increase of tourism stop
overs and spending by transiting passengers across a range of hospitality, transport, and
tourism industries. Having visited China once for a stopover visit, travelers will consider
Vietnam as the safe, clean air alternative to stop overs to China.
Current transit arrangements for some passengers transiting Vietnam on Vietnam Airlines
to the EU from Australia has them arrive in HCMC and the onward flight to the EU is from
Hanoi. The intermediate flight between HCMC and Hanoi is domestic, requiring passengers
to have a 30 day tourist visa to complete a 4-6 hour transit of Vietnam airports.
Capacity constraints for regional Vietnam resort destinations, e.g. to be able to supply
enough room to handle the demand from inbound tourists, tour operators and tourists are
now
looking
to
maximise
locations
available
for
stops
in
Vietnam
as alternative destinations. Airlines hoping to maximise aircraft utilisation and destinations
are looking for multi-city continuing flights in Asia and Vietnam. International Airlines are
looking to exploit a one ticket, 'system pass' allowing 1 ticket hop on/hop off passes for
Asian destinations.
32

* We understand that this may now have been changed to allow return to Vietnam for a small
administration charge.
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Tourism Position Paper

Vietnam Business Forum, 2015

Given the advent of Low Cost Carriers (LCC's), the focus of travel ticketing is becoming
point to point sales, without automatic transit and baggage connections enjoyed by IATA
interline agreements. For a growing portion of travelers, the use of LCC's means that they
must clear immigration and then customs to check in for their next flight on a multi leg
journey. Currently this transit process is not addressed in Vietnam for transit passengers
who do not intend to stay in Vietnam, but who need to check-in for a new flight as a transit
passenger. There is an opportunity for differentiation in the regional marketplace to
streamline the LCC and multi-carrier transit experience while promoting Vietnam as an
airline transit hub that caters to airside/transit passenger check-ins33.
While the focus has been on inbound arrivals for the majority of the discussion on visa's and
visa free travel, the growing outbound travel market is restricted from growth to the EU by
the onerous visa qualification restrictions put on Vietnamese nationals in order to travel
to Europe.
Recommendations
Create a visa free zone (similar to Phu Quoc) for major/regional international airports,
initially Hanoi, Ho Chi Minh City and Danang in order to create a stop over visitor
industry.
EU and target market passengers transiting Vietnam, where arrival and departure cities
differ, need to be provided 24-72 hour domestic transfer authority to allow for travel
between airports. Grow Vietnam as a viable/flexible transit hub for carriers, while
encouraging spending of currency by passengers during the transit period between the
ports of entry and exit.
Allow a system for international carriers to use continuing flights within Vietnam to drop
and load passengers at multiple airports. Example being, a flight arrives from the EU
in Hanoi where it drops passengers and picks up passengers enroute to Nha Trang or
Ho Chi Minh City, where it again drops and picks up passengers for onward flights to the
EU or connecting destinations.
Streamline systems for passengers who are transiting visa free zones (such as Phu
Quoc) enroute to a port of entry which normally does require a visa for entry so that the
passengers are not required to proceed through the immigration process twice.
Create the ability for transit passengers, with or without baggage, to collect baggage
and check-in for continuing flights on the airside (international) of immigration.
Encourage LCC's and full service carriers to utilise and provide/promote airside
services and check-in for continuing passengers to avoid immigration overloads and
delays. Encourage the development of airside hotel/stop over accommodation as is seen
in Middle East markets to facilitate/attract long haul passengers using Vietnam as a
transit point.
The reducing or eliminating of the visa requirement for Vietnamese citizens to travel to
EU countries should be considered as a focus point to be raised on a regular basis with
counterparts in the EU community. The ability for Vietnamese nationals to travel to EU
for short stays allows for better understanding of bi-lateral economic opportunities
available to be implemented in trade and tourism.
4. Visa And Temporary Residence Card
The new Immigration law No. 47/2014/QH13 that was implemented on January 1, 2015 has
generally been seen as an improvement to the old system. As an example, it seems logical

33

There now appears to be an airside transit desk at HCMC international arrivals. However scope of activity is not
known.

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Tourism Position Paper

Vietnam Business Forum, 2015

that a foreign national coming on assignment to Vietnam does not obtain his work visa
through a travel agency but instead through sponsorship of the host entity in Vietnam.
The new and numerous categories of visas also makes the new immigration law more
comprehensive, with a differentiation between those entering Vietnam on Business trips
and those entering Vietnam for assignment purpose among many others.
However, the processing time to obtain a Business visa pre-approval letter has significantly
increased from 1 or 2 days to 5 working days minimum. In addition, such visas (ie: DN or L
visa) can only be obtained at the Vietnamese embassy in most of the cases while Business
Visa could be stamped upon arrival at the airport in the past.
Furthermore a foreign national coming to Vietnam, attending a business event or exploring
business opportunities without a local sponsoring entity can only obtain a tourist visa.
In order to facilitate the entry of foreign Business visitors and International assignees to
Vietnam it seems necessary to streamline the processes.
Recommendations
The introduction of an expedited service like in many countries, with an additional fee
to obtain visa approval letter in 1 day would be highly welcomed by the business
community;
Immediately expand the list of visa exemption countries to include all EU member
countries; countries in the TPP who do not have visa waiver namely Australia, Brunei,
Canada, Chile, Mexico, New Zealand, Peru and USA; and India.
Getting business and work visa endorsed on travellers passport on arrival at the
international airport or at the Vietnamese embassy overseas should always be options
available.
II. VTOS IMPLEMENTATION AND ITS POTENTIAL IMPACT ON HOTEL STAR
CLASSIFICATION
Whilst the industry fully supports the introduction and application of VTOS in Vietnam, for
the purpose of developing a larger and better qualified and skilled pool of tourism and
hospitality workers, the industry also feels that more recognition should be given to
international branded hotels who have spent considerable amounts of time and money to
train their employees towards recognized international global standards. Whilst these
international hotel companies are not training institutions per se, they are focused to
deliver upon their respective brand standards, which create points of service differentiation
between one hotel and another. Therefore, it will be more appropriate, if VTOS is made first
and foremost mandatory for all educational and training institutions in Vietnam. And that
their application is, in particular pushed for the mostly locally managed 1 to 3 star
properties, which do not have international standard training programs. This would
recognize the quality and benefits of international standard training programs which global
hotel chains use, at a time when the revised VTOS will be made mandatory, tested and
implemented in wider circles of the training and education as well as tourism and
hospitality sectors.
We would therefore urge that a consultation process be put in place, whereby a solution
must be found to recognise the existing high level standards within the internationally
branded hotels, in the form for example of a quick and simple balance accreditation of
entire hotel chains or properties in Vietnam, in line with the simple and non-bureaucratic
assessment criteria as prescribed in the MRA -TP.
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Tourism Position Paper

Vietnam Business Forum, 2015

However, to potentially remove the star rating of a recognised global hotel chain and
administer financial penalties for non-compliance with the VTOS and accreditation
requirements would be a major step in the wrong direction.
III. DESTINATION MARKETING
1. Public-private partnership and destination competitiveness
To compete effectively, destinations have to deliver superb experiences and excellent value
to visitors. The business of tourism is complex and fragmented and, from the time that
visitors arrive in the destination until they leave, the quality of their experience is affected
by many services and experiences; including a range of public and private services, the
environment and community welcome. Delivering excellent value depends on many
organisations working together in unity. Destination management calls for a coalition of
these different interests to work towards a common goal to ensure the viability and integrity
of their destination now, and for the future. This is a key challenge in a region where there
is limited cooperation and communication between the public and private sectors, and
between competing private sector companies, at present.
Most destination management issues arising in the region need to be addressed at the
provincial level. This is where structures of Government exist to address them and can be
strengthened. It is therefore important that effective governance structures for tourism are
in place locally. It is at the local destination level that many services vital to tourism are
delivered and where the positive and negative socio-economic and environmental impacts
of tourism are most apparent, requiring sound local planning and management.
Destination management at present is largely the responsibility of Department of Culture,
Sport and Tourisms (DCST) reporting to Peoples Committees and, occasionally, to
Vietnam National Tourism Administration (VNAT). In general, there are no structures for
shared responsibility between Government agencies which impact tourism, or between
DCSTs and the business sector. DCSTs do not formally meet with the business sector and
industry representation organisations in the provinces are weak. Financial resources for
marketing are very constrained and not transparent.
In order to better serve the customers of the tourism sector in Vietnam and improve the
destination development and management, the Ministry of Culture, Sports and Tourism
(MCST) and the VNAT have started a strategic planning initiative by strengthening
destination management structures at destination levels. The EU-funded Environmentally
and Socially Responsible Tourism Capacity Development Programme (ESRT) with the VNAT
are supporting the collaboration of provinces and business sector stakeholders to jointly
work on destination management issues. With this support, existing Provincial Steering
Committees have been strengthened to include the business sector, and developing
practical agendas for them.
Potential gains/concerns for Vietnam
The overall performance of the tourism industry gives cause for concern however: There
has been a decline in occupancy as accommodation supply is increasing. The collapse of
the Chinese market in 2014 and the Russian market has brought the need for better
destination management regarding accommodation supply, and the need for a more
strategic, broadly-based marketing approach, sharply into focus in the region.
Tourists are not restricted by provincial boundaries when they travel. They visit and travel
throughout regions based upon the product offerings available. However, working at a
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Tourism Position Paper

Vietnam Business Forum, 2015

destination / regional level needs to be carefully guided by development of destination


bodies that develop and implement projects based upon strategic regional tourism plans.
We believe it would also be helpful if tourism planning and tourism products would be
further improved. In particular, a regional approach to tourism which goes beyond
provincial borders and allows joint product development will encourage tourists to stay
longer as well as encourage return visits to different parts of the country.
Effective stakeholder engagement and mechanisms for collaboration such as public-private
partnerships, and coordination bodies for destination management in the regions will
contribute to enhance competitiveness and distinguish Vietnam in the regional and global
tourism marketplace as a destination that delivers high quality, sustainable, tourism
experiences that benefit local people and respect and conserve national resources.
Recommendations
Our members feel that active involvement of the Ministry and the Government in enabling
and supporting the development of destination management structures in the regions with
a strong involvement of the business community is necessary.
We also recommend the following specific measures:
Establishing improved mechanisms for communication between tourism-related
businesses, associations and the public sector; to work with industry groups and
associations in working groups on a regular basis; to coordinate organisational
structures
Putting in place region-wide coordination structures to focus and maximise the actions
of cooperating provinces and facilitate cooperation
Strengthening Tourism Associations in creating co-operation and representatives for
the business sector in order to contribute to important issues within the tourism sector
Strengthen public-private cooperation for promotion and marketing at destination levels
to support responsible tourism products and services
Adopting green and responsible tourism agendas and implementing them
Improving the product, province by province, to meet (future) market needs and
providing more things to do for visitors staying in the regions expanding
accommodation base
Develop stronger regional products that clearly reflect destinations and attractions of
Vietnam; Create the regional linkage in tourism product development
Apply responsible promotion and marketing programmes, which create a competitive
advantage, increase value and demand, customer loyalty and satisfaction, and facilitates
more respectful interaction in destinations
Delivering professional marketing, focussed on specific target markets and addressing
issues such as greater awareness, electronic media and seasonality to improve
business viability
2. Joint marketing initiative between TAB & VNAT
Following the establishment of the Tourism Advisory Board (TAB) in 2014, industry
stakeholders have worked with officials from the Vietnam National Administration of
Tourism (VNAT) to revitalize Vietnams tourism industry. One of the main focuses is to
improve the countrys international marketing efforts.
VNAT and the TAB are undertaking a joint marketing initiative focused on key international
markets. The aim of this program will be to develop an internationally recognized, digital
platform for marketing Vietnam globally. Central objectives of the marketing initiative
include:
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Tourism Position Paper

Vietnam Business Forum, 2015

Position Vietnam as a must-see tourism destination in SE Asia


Develop internationally recognized branding materials
Focus marketing activities on select key markets
Increase international arrivals to Vietnam
Attract high value visitors with longer stays and higher spends
Enhance industry cooperation to leverage resources

Appointment of a Third Party Agency


The TAB and VNAT in May 2015 formally launched a tender to identify a digital marketing
agency to orchestrate a campaign for online marketing. Digital marketing is an extremely
effective channel that offers increased engagement with visitors and the travel trade, highly
measureable performance, rapid strategy adjustment and enhanced targeting capabilities.
Developing a strong digital marketing campaign is crucial given the governments limited
marketing budget.
The timeline for execution entails the appointment of an agency by the end of June 2015 and
to unveil the campaign in London at the World Travel Market in November 2015.
Key Target Markets
The campaign goals will focus on markets where travelers are already searching for
Vietnam related travel offerings. This will yield higher results as there will be a closer
correlation to online marketing efforts and actual visitation. The eight countries that we will
focus on include: USA, Germany, France, UK, Japan, Singapore, Malaysia, and Australia.
Consideration of additional markets will be made on a case-by-case basis.
International Arrivals to Vietnam from Key Markets
Country

Arrivals
2013

Growth

Arrivals
2014

Growth

USA

432,228

-2.6%

443,776

3%

Germany

97,673

-8.4%

142,345

31%

France

209,946

-4.4%

213,745

2%

UK

184,663

8.4%

202,256

9%

Japan

604,050

4.8%

647,956

7%

Singapore

195,760

-0.2%

202,436

3%

Malaysia

339,510

13.5%

332,994

-2%

Australia

319,636

10.3%

321,089

0%

Source: VNAT

YOY

Total Search Query vs. Actual Visitors to Vietnam


(2013-2014)

YOY

Source: Google Internal Data

Budgetary Constraints
This joint marketing initiative is unprecedented in Vietnam and entails collaboration
between public and private stakeholders. The long-term objective of this marketing
initiative will focus on building VNATs capacity to administer similar, best-in-class
campaigns and to collectively lobby support for the government to contribute additional
funding towards the promotion of Vietnams tourism industry.
In order for this partnership to work, the TAB is requesting for formal commitments from
MCST/VNAT to contribute funds to a joint marketing initiative to be administered by TAB in
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Tourism Position Paper

conjunction with VNAT.


contributions.

Vietnam Business Forum, 2015

The aim is to achieve a 1:1 matching of Public-Private

At present, the funding that is contributed to marketing Vietnam globally is less than
US$1.5 million. This amount is substantially inadequate for VNAT to be effective and is a
fraction of what Vietnams neighboring competitors contribute to their national tourism
boards. We cannot emphasize enough the importance of the travel and tourism industry to
Vietnams economy. The industry generated nearly 10% of GDP. Thus, it is imperative that
the government recognize the industry contribution to the socioeconomic welfare of the
state and to properly support the industry with an adequate budget for international
marketing.
Recommendations
Increase budgetary support of Vietnams tourism marketing efforts
Stronger support and collaboration with private industry in marketing Vietnam globally
APPENDIX: Visa Fees Vs Revenue And Tax
The biggest obstacle to a move to more visa facilitation seems to be the loss of visa fees by line
ministries. This argument, if correct, is in our opinion very shortsighted as it loses sight of the
big picture, as this short summary will show.
Loss of Visa fees
TWG is inter-alia advocating visa exemption for EU, North America, Australia and New Zealand.
Those countries currently account for 1.6 million arrivals. If you take an average visa and
processing fee of US$70, that amounts to visa fees of approx. US$11 million.
Spending and Tax revenue
On the other hand, if granting visa exemption to those countries increases arrivals by 10% then
visitors from those countries would increase by 160,000. Based on the current overall average
stay of 11.3 days and overall average daily spend of US$102, which are both lower than normal
for visitors from those destinations, then total additional spending would be approx. US$200
million.
This would result in a VAT contribution of US$20 million and a net gain in Government
revenues of US$9 million, leaving an amount of US$180 million into private sector business
driving growth in income and employment.
Recommendation
These statistics are compelling reasons why the Government should be urging line ministries to
think about the good of the country and to consider extending the visa facilitation program
further.

Page 12 of 12

Residential Housing
and Real Estate

Land Sub-group Position Paper

Vietnam Business Forum, 2015

EXECUTIVE SUMMARY

Presented by
Mr. David Lim
Head of Land Sub-Group

We set out below the key issues arising from the new laws and related draft decrees.
1. Legal capital: Article 3.1(a) of the third draft decree of law on real estate business (LREB)
stipulates that real estate projects which are required to obtain the investment in-principle
decisions or investment in-principle approvals shall have a minimum legal capital of VND50
Billion. In addition, Article 3.1(c) of the third draft decree of LREB provides that the current
enterprises conducting real estate business will have one year to increase their legal
capital to VND20 Billion/VND50 Billion in accordance with the LREB. It is recommended that
the requirement on legal capital is only applicable to new real estate construction and
development projects which, in any event, shall not be more than VND20 Billion.
2. Timeline for Capital Contribution: Articles 48.2 and 74.2 of the Law on Enterprise 2014
require that capital in limited liability company are contributed in full within 90 days
from the issuancedate of the enterprise registration certificate. We propose
incorporating provisions which allow capital to be contributed according to the
implementation of the project.

3. Transitional provisions: There is no transitional provision to deal with implementation


of agreements which have already been signed under the old LREB and law on
residential housing (LRH), except for provisions in relation to method of calculation
and record of the residential housing area, the warranty period of residential housing
and parking plot. We suggest adding the following provision to the third draft decree of
LREB and the fourth draft decree of LRH: Agreements which have already been signed
before the Law on Real Estate Business/Law on Residential Housing takes effect shall
continue to be implemented in accordance with the law at the time when they were signed.
4. Bank Guarantees For Residential Presales: Provisions for this have not yet seen issued.
We suggest providing necessary provisions and detailed guidelines before 1 July 2015.
5. Foreigners buying property in Vietnam: Articles67, 68.4, 69.2(b) and 69.3(b) of the
fourth draft decree of LRH introduces additional widerrestrictions whereby foreign
organisations/individuals (i) are prohibited to purchase houses at areas where
foreigners are prohibited or restricted from residing or travelling,(ii) may own no more
than 10% of the total number of individual housing in each residential housing project,
and (iii) can only have one-time extension of residential housing ownership. We suggest
removing such additional restrictions which were not in the LRH.
6. First Time Foreign Investors: Article 15.1(d) of the third draft decree of LREB provides
that the application files for project transfer shall include the enterprise registration
certificate which investors being foreign individuals and organisations which invest in
Vietnam for the first time do not have. We therefore suggest adding the phrase except
for investors being foreign individuals and organizations who make investment in
Vietnam for the first time to the second paragraph of Article 15.1(d).

Page 1 of 5

Land Sub-group Position Paper

Vietnam Business Forum, 2015

LAND SUB-WORKING GROUP POSITION PAPER


A. INTRODUCTION
From 1 July 2015 onwards, pursuant to the new Law on Real Estate Business 2014 (LREB)
and the Law on Residential Housing 2014 (LRH), it is anticipated that the demand in the
nations property market and the investment into the real estate industry will grow rapidly
within the short term future. Whilst the new LREB and LRH have been well received at face
value, some additional requirements and restrictions may be considered as too onerous.
The delay in introducing necessary guidelines can also cause major barriers to investors.
As the theme for the Mid Term Forum 2015 organized by the Vietnam Business Forum is
Enhancing Enterprise Competitiveness for Global Integration, the Land Working Group has
reviewed the third draft decree guiding implementation of the LREB and the fourth draft
decree guiding implementation of the LRH and prepared this position paper to address
competitiveness in the real estate industry. In this position paper, we set out our comments in
respect of the key provisions in the relevant laws which may restrict the competitiveness in
the real estate industry and our recommendations to address such issues.
B. ISSUES
1. Increase of legal capital
Article 3.1(a) of the third draft decree of LREB stipulates that real estate projects which are
required to obtain the investment in-principle decisions or investment in-principle
approvals shall have a minimum legal capital of VND50 Billion. We note however that such
minimum requirement of legal capital is not consistent with Article 10.1 of LREB which
provides that the enterprises conducting real estate business must have a minimum legal
capital of VND20 Billion.
The minimum requirement of legal capital of VND20 Billion is already too high for small
scale projects. Even companies with strong financial resources will reconsider if it is
commercially reasonable to contribute a high amount of capital for a project that has very
low total investment capital. A possible outcome of this policy is that it will discourage real
estate companies from undertaking small scale real estate projects. This will seriously
impact the real estate sector negatively. The amount of legal capital should not therefore
be increased to VND50 Billion. We would propose that a percentage of total investment
capital be used instead. This will ensure that only companies with sufficient financial
resources undertake large scale projects and will not penalize developers who undertake
small scale projects.
Further, the minimum requirement of legal capital applies to all real estate business
activities including activities which do not require a high amount of capital e.g. lease and
sublease of space. The requirement for legal capital should only apply for real estate
construction and development projects whereby high investment capital is required. The
requirement for such high legal capital will lead to inefficient use of capital and inhibit
business competitiveness in the real estate industry.
Recommendation: The requirement on legal capital is only applicable to real estate
construction and development projects according to the value and scale of the projects
which, in any event, shall not be more than VND20 Billion. If a higher legal capital is
required, a percentage of total investment capital shall be applied.
In addition, Article 3.1(c) of the third draft decree of LREB provides that the current
enterprises conducting real estate business will have one year to increase their legal
capital to VND20 Billion/VND50 Billion in accordance with the LREB. This requirement will
cause serious implications to projects which have already been licensed and are currently
Page 2 of 5

Land Sub-group Position Paper

Vietnam Business Forum, 2015

being implemented. There are currently many projects which are being implemented
smoothly and it is difficult to understand why this is necessary. This also sends out a very
negative signal to the business community that rules and laws which have been
implemented can be changed at any time.
Recommendation: We would recommend that the new provisions should not be applicable
to projects which have already been licensed under the existing laws.
2. Timeline for Capital Contribution
It is provided in Articles 48.2 and 74.2 of the Law on Enterprise 2014 that the members of a
limited liability company are required to contribute the capital in full within 90 days from
the date of issuance of the enterprise registration certificate. This means that the investors
are required to contribute the capital within such a short period of time notwithstanding
that the implementation of the project may be conducted over an extended period of time.
This requirement is unrealistic as such high amount of capital contributed may not be
required at the beginning of the project. An example of this is large scale projects e.g.
township developments and infrastructure projects. This requirement disincentives
developers from undertaking large scale projects which are necessary for organised and
coordinated development. This requirementwill also lead to inefficient use of capital and
inhibit business competitiveness in the real estate industry.

Recommendation: We propose incorporating provisions which allow capital to be


contributed according to the implementation of the project. Flexibility is also required for
extended period for contribution of capital in large scale projects.
3. Transitional provisions
There is no transitional provision to deal with implementation of agreements which have
already been signed under the old LREB. Further, Article 74.7 of the fourth draft decree of
LRH provides a transitional provision for contracts which have been signed before 1 July
2015 in relation to method of calculation and record of the residential housing area, the
warranty period of residential housing and the parking plot. We note however that the
fourth draft decree LRH is silent on the transitional provisions for other contents of the
residential housing contracts which have already been signed under the old LRH. There are
numerous agreements which have already been signed before the new LREB and LRH
comes into effect e.g. sale and purchase agreements, sale and purchase of assets to be
formed in the future, contracts for mobilization of capital, hire purchase agreements, lease
and sub-lease agreements, project transfer agreements. Note that there are substantial
changes to terms and conditions for the conduct of real estate business which may affect
all these agreements. It is not immediately clear to what extent any existing agreements
must be amended to comply with the LREB and the LRH. This will cause a lot of uncertainty
and difficulty to both business entities and also individuals who have entered into real
estate transactions. In order to prevent any negative impact to the real estate sector and
the economy, in general, we would propose that all existing agreements continue to be
implemented according to the existing laws and no changes are required.

Recommendation: We suggest adding the following provision to the third draft decree of
LREB and the fourth draft decree of LRH:
Agreements which have already been signed before the Law on Real Estate Business/Law
on Residential Housing takes effect shall continue to be implemented in accordance with
the law at the time when they were signed.

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Land Sub-group Position Paper

Vietnam Business Forum, 2015

4. Bank Guarantees For Residential Presales


According to Article 56.1 of the LREB, it is stated that the sale and lease-purchase of
residential houses must be guaranteed by a commercial bank of Vietnam (which is included
in the list of commercial banks published by the State Bank of Vietnam) prior to selling or
lease-purchasing such residential houses. This has been introduced to provide more
protection to retail buyers who may be left without any recourse in the case where a real
estate developer runs into financial difficulty.

We note however that provisions on the implementation of such requirement have not yet
been issued. There is a grave concern that the developers may be deprived of the right to
sell the residential houses if such provisions are not issued in a timely manner.
Recommendation: We therefore suggest providing necessary provisions and detailed
guidelines before 1 July 2015 so that this scheme will be implemented in an orderly and
efficient manner to fully achieve this objective.
5. Foreigners buying property in Vietnam
Article 161.2(a) of the LRH allows foreign individuals/organisations to own a maximum
number of 250 individual residential houses in a ward, comprising villas and terraced
houses. We note however that Article 68.4 of the fourth draft decree of LRH introduces an
additional restriction whereby foreign organisations/individuals may own no more than 10%
of the total number of individual housing in each residential housing project. We are of the
view that the number of maximum units which the foreign individuals and organisations are
allowed to own are further limited and not consistent with the LRH.

Further, according to Article 67 of the fourth draft decree of LRH, foreign individuals and
organizations are not entitled to own residential houses in areas where foreigners are
prohibited or restricted from residing or travelling as provided under the law on residence
and travel. We note however that according to Article 159.2(b) of the LRH, foreign individuals
and organizations are only prohibited to purchase houses in national defense and security
area. Article 67 of the fourth draft decree of LRH has introduced a wider restriction for areas
which foreign individuals and organization are allowed to purchase houses.
In addition, Articles 69.2(b) and 69.3(b) of the fourth draft decree of LRH introduces another
addition restriction on the one-time extension of residential housing ownership requested
by foreign owners. Such restriction will cause concerns to foreign buyers and may cause
negative impact to business development of the developers, including Vietnamese
developers. In order to be consistent with Article 159.2(b) of the LRH, we propose that the
extensions will be granted unless foreign individuals and organisations are not allowed to
own the commercial residential houses for national defence and security reasons only.
Recommendation: We suggest removing such additional restrictions under the fourth draft
decree of LRH as such restrictions may deter the foreign investors from purchasing
property in Vietnam and affect the ability of real estate enterprises to conduct business.
These restrictions also cause Vietnam to lose competitiveness in comparison to other
countries which have fewer restrictions on foreigners owning the property.
6. First Time Foreign Investors
Article 15.1(d) of the third draft decree of LREB provides that the application files for project
transfer shall include the enterprise registration certificate. We note that these conditions
can apply to transferees being domestic investors and foreign investors who already have
existing projects in Vietnam; however they cause many difficulties to investors being foreign
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Land Sub-group Position Paper

Vietnam Business Forum, 2015

individuals and organisations who make investment in Vietnam for the first time with the
investment project being the transferred project.
Pursuant to the laws on investment, a foreign investor which invests in Vietnam for the first
time must have an investment project to be entitled to establish an enterprise and obtain an
investment registration certificate and an enterprise registration certificate. However,
these provisions require foreign investor which invests in Vietnam for the first time to set up
a company before it can be engaged in a project as required by the laws on investment. This
overlapping and conflicting regulation has restricted the rights to receive transfer of real
estate projects of foreign investors who make investment in Vietnam for the first time.
Recommendation: We therefore suggest adding the phrase except for investors being
foreign individuals and organizations who make investment in Vietnam for the first time to
the second paragraph of Article 15.1(d).
C. CONCLUSION
The points we have highlighted limit the rights of real estate enterprises hence affecting the
competitiveness in real estate industry. The additional restrictions, onerous contribution
obligation and delay in introducing necessary guidelines provided in the draft decrees
create the impression that the investors will face many hurdles to invest in Vietnam. The
impact of the new laws would therefore be diminished. In view of the issues above and the
governments objective to ensure growth in the real estate industry, it is crucial that clear
and consistent guidelines are provided to eliminate any complications or confusion to the
investors. The administrative procedures should also be simplified to expedite the process
and onerous requirements should be removed to provide more flexibility to the
investors.These changes are critical to ensure that Vietnam continues to remain
competitive in the region.

Page 5 of 5

Comments on draft Decree guiding implementation of Law on Residential Housing

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT DECREE GUIDING IMPLEMENTATION OF LAW ON RESIDENTIAL HOUSING 2014 (THE 4TH DRAFT)

Prepared by
Mr. David Lim - ZICOLaw
VBF Land Sub Group
NO.
1.

DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)


Article 10. In-principle investment decision on investment projects for
construction of residential housing.

1. Where investment projects for construction of residential housing are


funded by capital source prescribed in Article 36.3 and Article 53.1 of Law
on Residential Housing, the competency to make in-principle investment
decisions shall comply with the Law on Public Investment; the Ministry of
Construction shall give evaluation opinions on projects funded by central
capital; the Department of Construction shall give evaluation opinions on
projects funded by local capital.
2. Where investment projects for construction of residential housing are
not in category prescribed in Clause 1 of this Article but fall into category
prescribed in Article 31.2 and Article 32 of Law on Investment, the
competency to make in-principle investment decisions shall comply with
Law on Investment but must have evaluation opinions of the Ministry of
Construction for projects the in-principle investment decision of which is
decided by the Prime Minister; and of the Department of Construction for
projects the in-principle investment decision of which is decided by the
Provincial Peoples Committee.

COMMENTS AND RECOMMENDATIONS


According to Article 170 of the LRH, the residential housing projects
shall apply for the IIA, except for those residential housing projects
that are required to obtain the IID in accordance with Law on
Investment (LOI). We note however that Article 10.3 of the Draft
Decree of LRH stipulates that all residential housing projects are
required obtain the IID, irrespective of whether such projects are not
required to obtain the IID under the LOI. We note that the provision on
Investment In-principle Decision under Article 10.3 in the Draft
Decree of LRH is not consistent with the provision on Investment Inprinciple Approval provided under Article 170.2 of the LRH. This will
cause confusion to investors since it is unclear whether they are
required to obtain the IID or the IIA in the event that their projects do
not fall under the provisions in the LOI.
Recommendation: We therefore suggest amending the reference
Investment In-principle Decision to Investment In-principle
Approval under Articles 10.3(b), 10.4(b), 10.5(b), 10.6 and other
relevant provisions in the Draft Decree of LRH.

3. For the construction of residential housing not in category prescribed


in Clauses 1, 2 of this Article, the competency to make in-principle
investment decision shall be as follows:
a. After having evaluation opinions of the Ministry of Construction, the
Prime Minister shall make in-principle investment decisions with
respect to the following projects:
- Projects using not less than 100 hectares of land in areas other
than existing urban area;
- Projects using not less than 50 hectares of land in existing urban
Page 1 of 14

According to Article 10.4(a) of the Draft Decree of LRH, the investors


are required to submit the documents regarding the construction
progress and the responsibilities of the developers for social
infrastructure works. We note however that according to Article
11.1(e) of the Draft Decree, the social infrastructure works are not
required for the project area which already has social infrastructure
works.
Recommendation: We therefore suggest amending Article 10.4(a) as
follows:
- Construction progress; construction of technical infrastructure works,

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-

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DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)


areas;
Projects located in administrative boundaries of several
provinces, cities under central authority.

b. After having the agreement opinions of the Ministry of Construction,


the provincial Peoples committee shall make in-principle investment
decisions with respect to the following projects:
- Projects using from 20 hectares to under 100 hectares of land in
areas other than existing urban area;
- Projects using from 10 hectares to under 50 hectares of land in
existing urban areas.

COMMENTS AND RECOMMENDATIONS


social infrastructure (except when the project area has already had social
infrastructure), parking area for public and for family households,
individuals residing in the project area. - Responsibilities of local
authorities and developers in project implementation and construction
of social infrastructure works of the projects (except when the project
area has already had social infrastructure)
-

c. The provincial Peoples committee shall make in-principle investment


decisions with respect to other projects which are not in categories
prescribed in Points a, b of this Clause.
4. Application file for in-principle investment decision shall be as follows:
a. For projects prescribed in Clauses 1, 2 of this Article, besides
documents required by the laws on public investment, laws on
investment, there shall be additional documents clarifying the
following contents:
- Ratio and quantity of assorted types of residential housing based on
residential unit (apartments in apartment building, villas, individual
residential housing); gross construction floor area of residential
housing; structure of construction floor area of each type of
residential housing;
- Construction progress; construction of technical infrastructure works,
social infrastructure, parking area for public and for family households,
individuals residing in the project area.
- Land areas for construction of social residential housing, residential
housing for lease; plans on management, use of residential housing,
plans on management or handover of technical infrastructure works
to the localities after the completion of the investment in construction
thereof.
- Responsibilities of local authorities and developers in project
implementation and construction of social infrastructure works of the
projects.
Page 2 of 14

Article 10.4(b) of the Draft Decree of LRH provides that the application
dossiers for obtaining the IIA include the following:
A. Legal dossiers of investors assigned to be developers; in case
developers have not been selected, there shall be reports on how
the developer will be selected and the preparation of developer
selection (Report);
B. Statement requesting for the IIA, including legal basis, approved
contents, reasons for approving and evidence showing the
appropriateness of the project contents with the approved
programs and the plans on residential housing development; and
C. Detailed zoning file of the area where the projects are located.
Regarding Item (A), we note that the contents required for (i) the legal
dossiers of investors, and (ii) the Report are unclear under the Draft
Decree of the LRH.
Regarding Item (B), the onus is on the investors to provide reasons for
applying for the project approval and the evidence showing the
appropriateness of the project contents with the approved programs
and plans on residential housing development. We are of the view that
the competent authorities would be able to evaluate whether the
investors are qualified to conduct the projects based on the
application dossiers provided by the investors.
Regarding Item (C), we note that it is unclear what documents are
required to be included in such detailed zoning file.
Recommendation: We suggest incorporating clear provisions on the
contents required for of (i) legal dossiers of investors, (ii) the Report,
and (iii) the detailed zoning file. Further, we also suggest removing the

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DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)


b) Application file for in-principle investment decision for cases
mentioned in Clause 3 of this Article shall be as follows:
- Legal dossiers of units assigned to be developers; in case developers
have not been selected, there shall be reports on the form of
developer selection, preparation of developer selection;
- Statement requesting for in-principle investment decision for projects for
construction of residential housing, including legal bases; contents need
to be approved in accordance with Point a of this Clause; reasons for
approving and evidence showing the appropriateness of the project
contents with the approved programs, plans on residential housing
development.
- Detailed zoning file of the area where the projects are located.
5. Contents of in-principle investment decision shall be as follows:
a) For projects in the category prescribed in Clauses 1, 2 of this Article,
besides the contents of in-principle investment decision in accordance
with Law on Public investment, Law on Investment, there shall be
additional decisions on contents stipulated in Clause 4.a of this Article;
b) For projects in the category prescribed in Clause 3 of this Article, the
contents of in-principle investment decision shall comprise:
- Names of project and developer;
- Location, boundaries, land area of the whole project;
- Objectives of the project, forms of investment;
- General contents of the project (work, products)
- Total investment capital; sources of investment capital;
- Time and progress of project implementation; periods of investment
(if any);
- Methods of land allocation, land lease, transfer of land use right (if
any);
- Land for construction of social residential housing, residential
housing for lease;
- Infrastructure works to be handed over to the State;
- Regulations applicable to concerned parties in management of
construction, operation, business and handover of works;
- States supports, incentives to the project;
- Responsibilities of developer to the State;
- Expected administrative management unit towards the project. The

COMMENTS AND RECOMMENDATIONS


requirement on the investors providing reasons for applying for the
project approval and the evidence showing the appropriateness of the
project contents as set out in Item (B).
-

Page 3 of 14

Article 10.5(b) of the Draft Decree provides that the contents of the IIA
comprise the handover of infrastructure works from the developers to
the State. We note however that the handover of infrastructure works
is not compulsory for projects which the developers will self-manage
infrastructure works based on the approved IID.
Recommendation: We suggest amending such provision under Article
as follows: Infrastructure works to be handed over to the State, if
any

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DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)


regulations on cooperation in administrative management,
administrative handover, security and public services between
developer and relevant local authorities in the course of
implementation until the project completion.
6. For projects prescribed in Clause 3 of this Article, the Ministry of
Construction shall provide guidelines on the Statement requesting for inprinciple investment decision, contents of in-principle investment
decision, order and procedure for requesting in-principle investment
decision.
Article 17. Capital for development of commercial residential housing
1. Capital mobilization for commercial residential housing construction
investment shall be performed in such forms prescribed in Article 69 of
Law on Residential Housing; cases of mobilization not in accordance with
this Article shall have no legal validity, and developers shall be penalised
in accordance with laws and must compensate to capital contributors.

COMMENTS AND RECOMMENDATIONS

2. Capital mobilization for commercial residential housing development


shall be regulated as followings:
a. Capital mobilization prescribed in Clause 2 Article 69 of Law on
Residential Housing has to satisfy all forms and conditions prescribed in
Clause 3 of this Article. Profit shall be distributed to capital contributors,
investment co-operators, business co-operators basing on the
proportion of capital contribution as agreed in the contract only;
developers shall not apply the form of capital mobilization prescribed in
this Clause or any other forms to distribute residential housing products
or to distribute land use right under the project to capital contributors;
b. In case of collecting advanced payments of purchasers, lessees, lease
purchasers prescribed in Clause 3 Article 69 of Law on Residential
Housing, conditions and forms of sale and purchase contract, lease
contract or lease purchase contract shall be complied with in
accordance with laws on real estate business;
c. In case of obtaining loans from credit institutions, financial
institutions or issuing bonds to mobilize the deficient capital for
constructing residential housing, conditions prescribed by law and as
agreed in the loan agreement or regulations on issue of bonds shall
be complied with.
Page 4 of 14

As previously commented, in view of the current difficult real estate


condition, investors should be encouraged to mobilise capital from any
sources permitted by laws. Therefore, the listing of sources of capital
and forms of financing which the investors are permitted to mobilise
in Article 69 of LRH is unnecessary and causes difficulties as well as
restricts the investors from mobilising capital for their projects.
In addition, Article 9 of Decree 71/2010 provides that developers have
the right to distribute the profit to capital contributors in the form of
cash, shares or residential housing products. We note however that
the right to distribute the profit in form of residential housing products
is prohibited under Article 17.2(a) of the Draft Decree of LRH. We are
of the view that the restriction under Article 17.2(a) of the Draft Decree
of LRH will curb the flexibility of the investors in operating the real
estate projects in Vietnam.
Recommendation: We therefore suggest deleting restriction in Article
17.2(a) as follows:
Capital mobilization prescribed in Clause 2 Article 69 of Law on
Residential Housing has to satisfy all forms and conditions prescribed
in Clause 3 of this Article. Profit shall be distributed to capital
contributors, investment co-operators, business co-operators basing
on the proportion of capital contribution as agreed in the contract
only; developers shall not apply the form of capital mobilization
prescribed in this Clause or any other forms to distribute residential
housing products or to distribute land use right under the project to
capital contributors

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3. Capital mobilization for residential housing investment and
construction as prescribed in point a Clause 1 of this Article shall be
performed by a capital contribution agreement or investment cooperation agreement or business co-operation contract; the developer
shall sign the contract only after the residential housing investment and
construction project has been approved, site-clearance has been
conducted, with minutes on handover of the project boundaries available
and a notification on satisfying all conditions for capital mobilization has
been issued by the Department of Construction where the project is
located.
4. Organizations, individuals who mobilise capital as prescribed in
Clauses 1 and 2 of this Article must use such mobilized capital for the
right purpose of constructing residential housing in such project; in case
of using mobilized capital for wrong purpose or appropriating such
capital, they shall be dealt in accordance with laws.
Article 17. Capital for development of commercial residential housing
1. Capital mobilization for commercial residential housing construction
investment shall be performed in such forms prescribed in Article 69 of
Law on Residential Housing; cases of mobilization not in accordance with
this Article shall have no legal validity, and developers shall be penalised
in accordance with laws and must compensate to capital contributors.

COMMENTS AND RECOMMENDATIONS


Article 17.3 of the Draft Decree of LRH provides conditions for capital
mobilization of the developers. We note that enterprises conducting
any business in Vietnam are allowed to raise capital at any time for
their operation purposes. Therefore, it is unfair and will cause
concerns and difficulties to real estate enterprises since they have to
satisfy conditions under laws before raising capital.
Recommendation: We suggest removing Article 17.3 from the Draft
Decree of LRH.

2. Capital mobilization for commercial residential housing development


shall be regulated as followings:
d. Capital mobilization prescribed in Clause 2 Article 69 of Law on
Residential Housing has to satisfy all forms and conditions prescribed in
Clause 3 of this Article. Profit shall be distributed to capital contributors,
investment co-operators, business co-operators basing on the
proportion of capital contribution as agreed in the contract only;
developers shall not apply the form of capital mobilization prescribed in
this Clause or any other forms to distribute residential housing products
or to distribute land use right under the project to capital contributors;
e. In case of collecting advanced payments of purchasers, lessees, lease
purchasers prescribed in Clause 3 Article 69 of Law on Residential
Housing, conditions and forms of sale and purchase contract, lease
Page 5 of 14

As previously commented, in view of the current difficult real estate


condition, investors should be encouraged to mobilise capital from any
sources permitted by laws. Therefore, the listing of sources of capital
and forms of financing which the investors are permitted to mobilise
in Article 69 of LRH is unnecessary and causes difficulties as well as
restricts the investors from mobilising capital for their projects.
In addition, Article 9 of Decree 71/2010 provides that developers have
the right to distribute the profit to capital contributors in the form of
cash, shares or residential housing products. We note however that
the right to distribute the profit in form of residential housing products
is prohibited under Article 17.2(a) of the Draft Decree of LRH. We are
of the view that the restriction under Article 17.2(a) of the Draft Decree
of LRH will curb the flexibility of the investors in operating the real
estate projects in Vietnam.
Recommendation: We therefore suggest deleting restriction in Article
17.2(a) as follows:
Capital mobilization prescribed in Clause 2 Article 69 of Law on
Residential Housing has to satisfy all forms and conditions prescribed

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DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)


contract or lease purchase contract shall be complied with in
accordance with laws on real estate business;
In case of obtaining loans from credit institutions, financial
institutions or issuing bonds to mobilize the deficient capital for
constructing residential housing, conditions prescribed by law and as
agreed in the loan agreement or regulations on issue of bonds shall
be complied with.
-

3. Capital mobilization for residential housing investment and


construction as prescribed in point a Clause 1 of this Article shall be
performed by a capital contribution agreement or investment cooperation agreement or business co-operation contract; the developer
shall sign the contract only after the residential housing investment and
construction project has been approved, site-clearance has been
conducted, with minutes on handover of the project boundaries available
and a notification on satisfying all conditions for capital mobilization has
been issued by the Department of Construction where the project is
located.

4.

4. Organizations, individuals who mobilise capital as prescribed in


Clauses 1 and 2 of this Article must use such mobilized capital for the
right purpose of constructing residential housing in such project; in case
of using mobilized capital for wrong purpose or appropriating such
capital, they shall be dealt in accordance with laws.
Article 67. Area in which foreign organizations, individuals may own
residential houses
1. Foreign organizations, individuals shall only be entitled to own
residential housing, including apartments and individual residential
houses in investment projects for construction of commercial residential
housing in areas where foreigners are not prohibited or restricted from
residing or travelling as provided for by law on residence and travel.
2. The Ministry of National Defence and the Ministry of Public Security
are responsible for determining the areas where foreigners are
prohibited or restricted from residing, travelling in each locality and shall
notify the provincial Peoples committees in writing thereof. The
provincial Peoples committees shall direct the Department of

COMMENTS AND RECOMMENDATIONS


in Clause 3 of this Article. Profit shall be distributed to capital
contributors, investment co-operators, business co-operators basing
on the proportion of capital contribution as agreed in the contract
only; developers shall not apply the form of capital mobilization
prescribed in this Clause or any other forms to distribute residential
housing products or to distribute land use right under the project to
capital contributors
Article 17.3 of the Draft Decree of LRH provides conditions for capital
mobilization of the developers. We note that enterprises conducting
any business in Vietnam are allowed to raise capital at any time for
their operation purposes. Therefore, it is unfair and will cause
concerns and difficulties to real estate enterprises since they have to
satisfy conditions under laws before raising capital.
Recommendation: We suggest removing Article 17.3 from the Draft
Decree of LRH.

Page 6 of 14

According to Article 67 of the Draft Decree of LRH, foreign individuals


and organizations are not entitled to own residential houses in areas
where foreigners are prohibited or restricted from residing or
travelling as provided under the law on residence and travel. We note
however that according to Article 159.2(b) of the LRH, foreign
individuals and organizations are only prohibited to purchase houses
in national defense and security area. Article 67 of the Draft Decree of
LRH has introduced a wider restriction for areas which foreign
individuals and organization are allowed to purchase houses.
Recommendation: We therefore suggest amending this Article as
follows:

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Construction to determine which investment projects for construction of
commercial residential housing in their respective localities are
permitted to be sold to foreign organizations, individuals.

COMMENTS AND RECOMMENDATIONS


1. Foreign organizations, individuals shall only not be entitled to own
residential housing, including apartments and individual residential
houses in investment projects for construction of commercial
residential housing in national defense and security areas where
foreigners are not prohibited or restricted from residing or travelling
as provided for by law on residence and travel.
2. The Ministry of National Defence and the Ministry of Public Security
are responsible for determining the national defense and security
areas where foreigners are prohibited from owning apartments and
individual residential houses or restricted from residing, travelling in
each locality and shall notify the provincial Peoples committees in
writing thereof. The provincial Peoples committees shall direct the
Department of Construction to determine which investment projects
for construction of commercial residential housing in their respective
localities are under national defense and security areas permitted to
be sold to foreign organizations, individuals.
- Article 161.2(a) of the LRH allows foreign individuals/organisations to
Article 68. Quantity of residential houses that foreign organizations,
own a maximum number of 250 individual residential houses in a
individuals are entitled to own
ward, comprising villas and terraced houses. We note however that
1. Based on the notification of the Ministry of National Defence and the
Article 68.4 of the Draft Decree of LRH introduces an additional
Ministry of Public Security as prescribed in Article 67.2 of this Decree, the
restriction whereby foreign organisations/individuals may own no
Department of Construction shall be responsible for publicly announcing
more than 10% of the total number of individual housing in each
on its website the list of investment projects for construction of
residential housing project. We are of the view that the number of
residential housing that foreign organizations, individuals are not allowed
maximum units which the foreign individuals and organisations are
to own residential housing.
allowed to own are further limited and not consistent with the LRH.
2. Foreign organizations, individuals are only permitted to own the
number of residential housing as stated in Clauses 3, 4 of this Article,
Recommendation: We therefore suggest removing Article 68.4 of the
except for the projects which are announced by the Department of
Draft Decree of LRH.
Construction as set out in Clause 1 of this Article.
3. Foreign organizations, individuals are entitled to own no more than
thirty percent (30%) of the total number of apartments in one apartment
building; where an area equivalent to a ward level administrative unit has
several apartment buildings for sale, hire purchase, then foreign
organizations and individuals shall be entitled to own no more than thirty
percent (30%) of the number of apartments in each apartment building
Page 7 of 14

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and no more than thirty percent (30%) of the total number of apartments
in all these apartment buildings.

COMMENTS AND RECOMMENDATIONS

4. In case of investment projects for construction of residential housing


having individual residential housing therein, foreign organizations,
individuals may own no more than ten percent (10%) of the total number
of individual housing in each project; or no more than two hundred and
fifty (250) individual residential houses where there are more than two
thousand and five hundred (2500) individual residential houses in a
project or in several projects located in an area equivalent to a ward level
administrative unit.

6.

5. The Ministry of Construction shall provide guidelines on manners to


determine the quantity of residential housing that foreign organizations,
individuals are entitled to own in accordance with Clauses 3, 4 of this
Article.
Article 69. Extension of period of residential housing ownership in
Vietnam by foreign organizations and individuals
1. Residential housing purchases by foreign organizations, individuals set
out in Article 123.1 of Law on Residential Housing shall comply with
regulations in Article 8.1 and Article 9.1 of this Decree.
2. In case of residential housing ownership by foreign individuals
prescribed in Article 161.2.c of Law on Residential Housing, extension of
period of residential housing ownership shall be as follows:
a. Three (03) months prior to the expiry of residential housing
ownership, if owners wish to extend the period, they shall lodge an
application specifying the proposed extension period accompanied by
a certified copy of the Certificate with the provincial Peoples
committee where residential housing is located for consideration and
settlement;
b. Within thirty (30) days from the receipt of application submitted by an
owner, the provincial Peoples committee shall consider and issue a
written document approving for extending one time the period of
residential housing ownership at request of the owners, but not
exceeding fifty (50) years from the expiry of the first ownership period
stated in the Certificate;

Page 8 of 14

Article 69.2 of the Draft Decree of LRH provides that the provincial
Peoples Committees shall consider and approve the extension of the
term of residential housing ownership of foreign entities. The
conditions for such approval are, however, not provided in the law.
This will cause concerns and uncertainties to foreign owners. Article
159.2(b) provides that foreign individuals and organisations are
allowed to purchase, lease-purchase any commercial residential
houses under residential housing investment and construction
projects, except for areas relating to national defence and security. In
order to be consistent with Article 159.2(b) of the LRH, we propose
that Article 69.2 of the Draft Decree of LRH be amended to reflect that
the extension will be granted unless foreign individuals and
organisations are not allowed to own the commercial residential
houses for national defence and security reasons only.
Recommendation: We suggest inserting the following new provision:
5. Extension of period of residential housing ownership by foreign
organisations or individuals shall be granted except where ownership
is not permitted for national defence and security reasons.

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c. After signing the written document approving the extension, the
provincial Peoples committee shall send it to agencies having
authority to issue the Certificate for recording such extension in the
Certificate.

3. In case of residential housing ownership by foreign organizations


prescribed in Article 161.2.d of Law on Residential Housing, extension of
period of residential housing ownership shall be as follows:
a. Three (03) months prior to the expiry of residential housing
ownership, if owners wish to extend the period, they shall lodge an
application specifying the proposed period for ownership extension
accompanied by a certified copy of the Certificate, Investment
Certificate extended by competent agencies for operation and submit
it to the provincial Peoples committee where residential housing is
located for consideration and settlement;
b. Within thirty (30) days from the receipt of application of an owner, the
provincial Peoples committee shall consider and issue a written
document approving for extending one time the period of residential
housing ownership at request of the owners, but not exceeding the
period stated in the Investment Certificate which has been extended
by competent authority for operation;
c. After signing the written consent for extension, the provincial Peoples
committee shall send it to agencies having authority to issue the Certificate
for recording the extension in the Certificate.

7.

4. The Ministry of Natural Resources and Environment shall cooperate with


the Ministry of Construction provide guidelines on recording the extension of
period of residential housing ownership in the Certificate in accordance with
Clauses 2, 3 of this Article.
Article 70. Management of residential housing of foreign organizations,
individuals in Vietnam
1. The Department of Construction shall create a separate item on its
website to manage information comprising list of investment projects for
construction of residential housing which are allowed to sell, hire
purchase to foreign organizations, individuals; quantity of residential
housing for which foreign organizations, individuals have been issued
with a certificate.

COMMENTS AND RECOMMENDATIONS


Articles 69.2(b) and 69.3(b) of the Draft Decree of LRH introduces an
addition restriction on the one-time extension of residential housing
ownership requested by foreign owners. Such restriction will cause
concerns to foreign buyers and may cause negative impact to business
development of the developers, including Vietnamese developers. In
order to be consistent with Article 159.2(b) of the LRH, we propose
that the extensions will be granted unless foreign individuals and
organisations are not allowed to own the commercial residential
houses for national defence and security reasons only.
Recommendation: We suggest removing the term one time under
Articles 69.2(b) and 69.3(b) of the Draft Decree of LRH.

Page 9 of 14

According to Article 70.1 of the Draft Decree of LRH, the DOC shall, on
its official website, provide a list of investment projects which foreign
individuals and organisations are allowed to purchase, leasepurchase houses. We note however that this Article is not consistent
with Article 68.1 of the Draft Decree of LRH which provides that the
DOC shall provide a list of investment projects for construction of
residential housing that foreign individuals and organisations are not
allowed to own residential houses.

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2. Developers are only allowed to sell, hire purchase residential housing
to foreign organizations, individuals in accordance with the exact quantity
prescribed in Article 68 of this Decree.

COMMENTS AND RECOMMENDATIONS


In addition, we note that according to Article 159.2(b) of the LRH,
foreign individuals and organisations are allowed to purchase, leasepurchase any commercial residential houses under residential
housing investment and construction projects, except for areas
relating to national defence and security. Both Articles 68.1 of and 70.1
of the Draft Decree of LRH should only be applied on the basis of
Article 159.2 of the LRH.

3. After signing the contract for sale and purchase, contract for hire
purchase of residential housing, developer shall immediately send
information on the address of sold or hire purchased house to foreign
organisations and individuals to the Department of Construction where
such residential housing is located in order to publish such address on its
website.
When issuing the Certificate to foreign organizations, individuals,
agencies having authority to issue the Certificate shall immediately
announce the information on residential houses which have been issued
with the Certificate to the Department of Construction in order to publish
such information on its website.
4. Any transaction on purchase and sale, grant of hire purchase of
residential house in excess of the quantity that foreign organisations and
individuals are allowed to own as set out in Article 68 of this Decree or
any transaction on purchase, hire purchase of house in investment
projects for construction of residential housing not in the area permitted
to be owned [by foreign organisations and individuals] shall be invalid and
not be issued with the Certificate by competent authority; the sellers,
lessor of a hire purchase must compensate for damage caused to the
purchaser or the lessee of a hire purchasers.

We therefore suggest that the list shall be limited to investment


projects for construction of residential housing which the foreign
individuals and organisations are not allowed to sell or leasepurchase because they are located in areas relating to national
defence and security.
Recommendation: We suggest amending Article 70.1 of the Draft
Decree of LRH as follows: The Department of Construction shall
create a separate item on its website to manage information
comprising list of investment projects for construction of residential
housing which are not allowed to sell, hire purchase to foreign
organizations, individuals; quantity of residential housing for which
foreign organizations, individuals have been issued with a certificate.
-

5. Agency having authority to issue the Certificate to foreign


organisations and individuals is responsible to make an announcement
and send a copy of issued Certificate (including extensions thereof) to the
Ministry of Construction, the Ministry of Natural Resources and
Environment for monitoring and managing.

According to Article 70.1 of the Draft Decree of LRH, the DOC shall
publish the quantity of residential houses for which foreign individuals
and organisations have been issued with the Certificate. According to
Article 70.3 of the Draft Decree of LRH, after signing the contract for
sale and purchase and the contract for lease-purchase of residential
housing, the developer must send information to the Department of
Construction in order to publish such information on its website.
Article 70.1 should be amended to include the information on signed
contracts as well.
Recommendation: We suggest amending this Article 70.1 as follows:
The Department of Construction shall create a separate item on its
website to manage information comprising list of investment projects for
construction of residential housing which are not allowed to sell, hire
purchase to foreign organizations, individuals; quantity of residential

Page 10 of 14

Comments on draft Decree guiding implementation of Law on Residential Housing

NO.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)

COMMENTS AND RECOMMENDATIONS


housing for which foreign organizations, individuals have been issued
with a certificate; quantity of contract for sale and purchase, contract for
hire purchase of residential housing sold or hire purchased house to
foreign organisations and individuals; and quantity of contract for sale
and purchase, contract for hire purchase of residential housing
previously owned or hire purchased by foreign organisations and
individuals.
-

Article 70 of the Draft Decree of LRH only deals with contracts for sale
or hire-purchase of residential housing by a developer to foreign
organisations and individuals only. There are no provisions for
secondary sale or assignment of hire-purchase of residential housing
involving foreign organisations or individuals i.e. sale by foreign
organisations or individuals to Vietnamese buyers and vice versa. The
lists maintained by the Department of Construction will therefore not
accurately reflect the quantity of units owned by foreign organisations
or individuals. To address this issue, we would recommend as follows:
a. all sellers of residential housing send information on the sale or
hire purchase to a foreign organisation or individual or a sale or
hire purchase of a residential houses previously owned by a
foreign organizations, individuals; and
b. the agencies having authority to issue the Certificate should notify
the Department of Construction when a Certificate is issued which
affects the quantity of units owned by foreign organisations or
individuals.
Recommendation: We suggest amending Article 70.3 of the Draft
Decree of LRH as follows:
After signing the contract for sale and purchase, contract for hire
purchase of residential housing, the developer seller shall
immediately send information on the address of sold or hire
purchased house to foreign organisations and individuals to the
Department of Construction where such residential housing is located
in order to publish such information on its website.
After signing the contract for sale and purchase, contract for

Page 11 of 14

Comments on draft Decree guiding implementation of Law on Residential Housing

NO.

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DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)

COMMENTS AND RECOMMENDATIONS


assignment of hire purchase of residential housing previously owned
by a foreign organisations, individuals, the seller shall immediately
send information on the address of sold or hire purchased house to
foreign organisations and individuals to the Department of
Construction where such residential housing is located in order to
publish such information on its website.
When issuing the Certificate to foreign organisations, individuals, or to
any purchaser of a residential houses previously owned by a foreign
organizations, individuals, agencies having authority to issue the
Certificate shall immediately announce the information on residential
houses which have been issued with the Certificate to the Department
of Construction in order to publish such information on its website.
-

Article 70.4 of the Draft Decree of LRH stipulates that any


Transactions in excess of the quantity which the foreign individuals
and organizations are allowed to own as set out in Article 68 of the
Draft Decree of LRH shall be invalid and not be issued with the
Certificate by competent authority. It is however unclear (i) how to
identify which Transactions exceed the maximum units, and (ii) who
will have the authority to decide on which Transactions are invalid.
Recommendation: We suggest providing clear method of identifying
an invalid Transaction.

Page 12 of 14

Article 70.4 of the Draft Decree of LRH provides that in case the
Transaction is invalid pursuant to the abovementioned reason, the
sellers/lessors of lease-purchase must compensate for damage
caused to the purchasers or the lessees of the lease-purchase. This
Article is however contrary with Article 137.2 of the Civil Code 2005,
which provides that the party at fault which caused damage must
compensate. Further, such requirement is unfair to the developers
given that they will be liable for the occurrence of such invalid
Transaction irrespective of whether the damage suffered by the
purchasers or the lessees of the lease-purchase is due to the
developers faults.

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DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)

Article 74. Transitional provisions on residential housing development


and management
1. In case the application file for in-principle investment decision was
lodged but the competent authorities have not issued such decision, the
procedure for issuing in-principle investment decision shall comply with
Law on Residential Housing and this Decree.

2. For projects of residential housing construction which have been


approved but fall in category required adjustment of the projects content
as prescribed in Article 182.1 of Law on Residential Housing, developers
shall report to the agency having authority to make in-principle
investment decision to issue a document amending such in-principle
investment decision in accordance with law before approving the
supplementations and adjustments and implementation thereof.

Article 74.3 of the Draft Decree of LRH requires that the developer
must submit a written proposal on changing the English names of the
project and areas within the project which have been approved by the
authorities and has not yet been commenced construction of
residential housing. We are of the view that such requirement is not
practical and will cause difficulties for investors conducting
residential projects.
Recommendations: We therefore suggest amending this Article as
follows:
For an approved investment project for construction of commercial
residential housing in which the developer use foreign language in the
names of project and areas in project and the project has not yet been
commenced construction of residential housing, the developer are not
required to must submit a written proposal on changing names of the
project and areas within such project in accordance with Article 19.3
of Law on Residential Housing to the provincial Peoples committee
for approval. Any transaction relating to investment project for
construction of residential housing must are allowed to use the exact
English name which has been approved by the competent authority.

3. As from the effective date of Law on Residential Housing, the name of


project and name of areas in the investment projects for construction of
residential housing must comply with Article 19.3 of Law on Residential
Housing.
For an approved investment project for construction of commercial
residential housing in which the developer use foreign language in the
names of project and areas in project and the project has not yet been
commenced construction of residential housing, the developer must
submit a written proposal on changing names of the project and areas
within such project in accordance with Article 19.3 of Law on Residential
Housing to the provincial Peoples committee for approval. Any
transaction relating to investment project for construction of residential
housing must use the exact name which has been approved by the
competent authority.

COMMENTS AND RECOMMENDATIONS


Recommendation: We therefore suggest amending the last sentence
of Article 70.4 as follows: the party which caused such damage shall
make compensation.
There should be transitional provisions on how to deal with the
application file for investment approval which has been submitted
prior to the effective date of the Draft Decree of LRH but the approval
for such application has not been issued by the competent authorities.

4. Where an investment project for construction of residential housing for


resettlement has been approved, it shall be approved in accordance with
Page 13 of 14

Article 74.7 of the Draft Decree of LRH provides a transitional provision


for contracts which have been signed before 1 July 2015 in relation to
method of calculation and record of the residential housing area, the
warranty period of residential housing and the parking plot. We note
however that the Draft LREB is silent on the transitional provisions for
other contents of the residential housing contracts which have already
been signed under the old LRH. There are numerous agreements which

Comments on draft Decree guiding implementation of Law on Residential Housing

NO.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON RESIDENTIAL HOUSING (LRH)


Law on Residential Housing and this Decree; Where the provincial
Peoples committee has approved the plan for compensation, assistance,
resettlement, then the approved plan shall be continuously implemented.
5. Where a commercial residential housing has been handed over to the
purchaser by the developer but an application file for issuance of the
Certificate to such house has not been submitted to the competent State
authority up to the effective date of the Law on Residential Housing, the
purchaser of such house shall be permitted to transfer the contract for sale
and purchase of residential housing in accordance with guidance of the
Ministry of Construction.
6. Where an apartment building management committee has been
established prior to the effective date of the Law on Residential Housing
and such committee wishes to re-organize the operation model as
stipulated in the Law on Residential Housing, an apartment building
meeting shall be held in order to re-establish the apartment building
management committee in accordance with the Regulations on
management and use of apartment buildings issued by the Ministry of
Construction.
7. In cases of sale and purchase, hire purchase of residential housing
prior to the effective date of the Law on Residential Housing and the
parties have already agreed in the contract on the method of calculation
and record of the residential housing area, the warranty period of
residential housing, parking plot which are different from those
stipulated in Law on Residential Housing, they shall be entitled to
implement the signed agreements, unless otherwise mutually re-agreed
by the parties in accordance with Law on Residential Housing.

Page 14 of 14

COMMENTS AND RECOMMENDATIONS


have already been signed before the new LRH comes into effect eg sale
and purchase agreements, sale and purchase of assets to be formed in
the future, hire purchase agreements. Note that there are substantial
changes to terms and conditions for the conduct of residential housing
transactions which may affect all these agreements. It is not immediately
clear to what extent any existing agreements must be amended to
comply with the new LRH. This will cause a lot of uncertainty and
difficulty to both business entities and also individuals who have entered
into residential housing transactions. In order to prevent any negative
impact to the real estate sector and the economy, in general, we would
propose that all existing agreements continue to be implemented
according to the existing laws and no changes are required.
Recommendation: We suggest adding the following new provision to
Article 74 of the Draft Decree of LRH:
Agreements which have already been signed before the Law on
Residential Housing takes effect shall continue to be implemented in
accordance with the law at the time when they were signed.

Comments on draft Decree guiding implementation of Law on Real Estate Business

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT DECREE GUIDING IMPLEMENTATION OF LAW ON REAL ESTATE BUSINESS 2014 (THE 3 VERSION)
RD

Prepared by
Mr. David Lim ZICOLaw
VBF Land Sub - Group

No.

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


Article 3. Conditions applicable to organisations and individuals
conducting real estate business

1.
Any organization or individual conducting real estate business
must establish an enterprise or co-operative (hereinafter referred to
as enterprise) as set out in Clause 1, Article 10 of the Law on Real
Estate Business and must have the legal capital as follows:
a. Having the legal capital not less than VND50 billion for cases of
investment made in real estate projects for business purpose
for which competent State authorities shall decide the
investment in-principle decisions, investment in-principle
approvals in accordance with the provisions of law on public
investment, law on investment, law on residential housing, [and]
law on urban;
1

b. Having the legal capital not less than VND20 billion for cases of
investment made in real estate projects for business purpose
not under the category set out in Point a of this Clause;
c. Enterprises which have already had the real estate business
function before 01 July 2015 but not satisfied the requirements
on legal capital set out in Points a and b of this Clause shall be
permitted to continue conducting real estate business; however,
from 01 July 2016, if they continue to conduct real estate
business and fall under the categories with the legal capital
required in Points a and b of this Clause, they must satisfy such
sufficient legal capital in accordance with law.
2. Cases not required to satisfy the requirement on legal capital set
out in Clause 1 of this Article include:
a. Organisations, family households, individuals who sell,

COMMENTS AND RECOMMENDATIONS


Article 3.1 of the Draft Decree of LREB stipulates that any organization
or individual conducting real estate business must establish an
enterprise or co-operative. According to the laws on investment,
organisation or individual may also conduct real estate business by
way of entering into a business cooperation contract without
establishing a legal entity. Therefore, we suggest incorporating the
latter provision to the former provision.
Recommendation: We suggest amending Article 3.1 as follows: Any
organization or individual conducting real estate business must
establish an enterprise or co-operative or sign business cooperation
contracts with the entities conducting real estate business and must
have the legal capital to Article 3.1.

Further, Article 3.1(a) of the Draft Decree of LREB also stipulates that
real estate projects which are required to obtain the investment inprinciple decisions (IID), investment in-principle approvals (IIA)
shall have a minimum legal capital of VND50 Billion. We note however
that such minimum requirement of legal capital is not consistent with
Article 10.1 of LREB which provides that the enterprises conducting
real estate business must have a minimum legal capital of VND20
Billion.
The minimum requirement of legal capital of VND20 Billion is already
too high for small scale projects. Even companies with strong financial
resources will reconsider if it is commercially reasonable to contribute
a very high amount of capital for a project that has very low total
investment capital. A possible outcome of this policy is that it will
discourage real estate companies from undertaking small scale real
estate projects. This will seriously impact the real estate sector
negatively. The amount of legal capital should not therefore be

Page 1 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

No.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


transfer, lease out, hire-purchase real estate in small scale
and not on a regular basis set out in Article 5 of this Decree not
required to establish an enterprise and satisfy the requirement
on legal capital;

COMMENTS AND RECOMMENDATIONS


increased to VND50 Billion. We would propose that a percentage of
total investment capital be used instead. This will ensure that only
companies with sufficient financial resources undertake large scale
projects and will not penalise developers who undertake small scale
projects.

b. Enterprises conducting real estate services, individuals


conducting independent set out in Chapter 4 of the Law on
Real Estate Business not required to satisfy the requirement
on legal capital.

Further, the minimum requirement of legal capital applies to all real


estate business activities including activities which do not require a
high amount of capital e.g. lease and sublease of space. The
requirement for legal capital should only apply for real estate
construction and development projects whereby high investment costs
are required.

3. Enterprises conducting real estate business who must satisfy


the requirement on legal capital must be responsible for the
truthfulness and accuracy of the legal capital amount and must
maintain their legal capital not to be lower than the legal capital
amount set out in Clause 1 of this Article throughout their real
estate business duration.
4. Pursuant to the socioeconomic development conditions of the
country in each period, the Ministry of Construction shall research
and then make proposal to the Government for adjusting the legal
capital appropriately but not less than VND20 billion.

Recommendation: The requirement on legal capital is only applicable


to real estate construction and development projects according to the
value and scale of the projects which, in any event, shall not be more
than VND20 Billion. If a higher legal capital is required, a percentage of
total investment capital shall be applied.
-

According to Article 3.1(c) of the Draft Decree of LREB, the current


enterprises conducting real estate business will have one year to increase
their legal capital to VND20 Billion/VND50 Billion in accordance with the
LREB. This requirement will cause serious implications to projects which
have already been licensed and are currently being implemented. There
are currently many projects which are being implemented smoothly and it
is very difficult to understand why this is necessary. This also sends out a
very negative signal to the business community that rules and laws which
have been implemented can be changed at any time. We would
recommend that the new provisions should not be applicable to projects
which have already been licensed under the existing laws.
Recommendation: We suggest amending Article 3.1(c) as follows:
Enterprises which have already had the real estate business function
before 1 July 2015 but not satisfied the requirements on legal capital
set out in Points a and b of this Clause shall be permitted to continue
conducting real estate business; however, from 01 July 2016, if they

Page 2 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

No.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)

COMMENTS AND RECOMMENDATIONS


continue to conduct real estate business and fall under the categories
with the legal capital required in Points a and b of this Clause, they
must satisfy such sufficient legal capital in accordance with law.
-

Article 5. Regulations regarding organisations, family


households, individuals who sell, transfer, lease out, hirepurchase real estate in small scale and not on a regular basis
Organisations, family households, individuals who sell, transfer,
lease out, hire-purchase real estate in small scale and not on a
regular basis set out in Clause 2 of Article 10 of the Law on Real
Estate Business include the followings:
1. Organisations, family households, individuals who sell, transfer,
lease out, hire-purchase real estate that not by way of investment
in a real estate project for business purpose.

Recommendation: We suggest amending Article 3.3 as follows:


Enterprises conducting real estate business who must satisfy the
requirement on legal capital must be responsible for the truthfulness
and accuracy of the legal capital amount and must maintain their legal
capital not to be lower than the legal capital amount set out in Clause 1
of this Article throughout their real estate business duration.
Article 5.6 of the Draft Decree of LREB provides that organizations,
households, individuals investing in construction of residential houses
for sale, lease, lease-purchase which are not required to establish an
enterprise in accordance with the LRH are considered as conducting
real estate business in small scale and on irregular basis. It is however
not provided in the LRH and the Draft Decree of LRH which
organizations, households and individuals investing in construction of
residential houses for sale, lease, lease-purchase are not required to
establish an enterprise.
Recommendation: We suggest incorporating a clear provision in the
Draft Decree of LRH on which organizations, households and
individuals investing in the construction of residential houses for sale,
lease, lease-purchase are not required to establish an enterprise.

2. Organisations, family households, individuals who contribute


capital for business purpose by land use right, ownership of
housing and buildings.
3. Organisations who transfer the land use right, sell houses and
buildings as a result of bankruptcy, dissolution, division/splitting.

Article 3.3 of the Draft Decree of LREB, enterprises conducting real


estate business must maintain their legal capital amount as required
by the laws throughout their business duration. Please consider if it is
necessary impose this requirement for the enterprises who have
completed their projects whereby there are no future capital needs.
Real estate companies should be permitted to reduce capital where
there are no future requirements for capital. We would therefore
propose the removal of this requirement.

We note that there is no definition of conducting real estate business


in small scale and on irregular basis under the LREB and Draft Decree
of LREB.

Page 3 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

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DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


4. Banks, credit institutions who transfer land use right, sell
houses and buildings which are mortgaged for debt recovery.

COMMENTS AND RECOMMENDATIONS


Recommendation: We suggest providing a definition of conducting
real estate business in small scale and on irregular basis under the
Draft Decree of LREB.

5. Banks, organisations, family households, individuals who transfer


the land use right, sell houses and buildings for the purpose of asset
realization pursuant to a decision of a Court, of a competent State
authority upon settlement of a complaint or denunciation.
6. Organisations, family households, individuals who invest in
construction of residential housing for sale, lease, hire-purchase
not required to establish an enterprise in accordance with the
provisions of laws on residential housing.

7. Agencies, organisations who are permitted by a competent State


authority to transfer the land use right, to sell houses, buildings
under the State ownership in accordance with the provisions of
laws on public asset management.
Article 6. Types of contracts used in real estate business
The types of contracts used in real estate business set out in
Article 17 of the Law on Real Estate Business must be made in
writing in form provided for in the appendices to this Decree,
specifically as follows:
1. Contracts for sale and purchase of houses, buildings which are
existing or to be formed in the future must comply with the form
set out in Appendix 1.
2. Contracts for lease of houses, buildings which are existing or to
be formed in the future must comply with the form set out in
Appendix 2.
3. Contracts for hire-purchase of houses, buildings which are
existing or to be formed in the future must comply with the form
set out in Appendix 3.

According to Article 6 of the Draft Decree of LREB, real estate business


transactions must follow the templates provided in the Appendices
under this Decree. We are of the view that such templates should only
be a guide for the organisations/individuals engaging in real estate
transactions but it is not possible to have a complete set of provisions
covering all aspects of real estate transactions. The parties in a real
estate contract should therefore be allowed to supplement the
templates with provisions which are not contrary with the laws.
Recommendation: We suggest adding the following provisions to the
end of Article 6:
The parties in a real estate contract are allowed to adjust the
templates set out in appendices mentioned above, provided that such
adjustments are not contrary with the laws

4. Contracts for transfer, lease, sub-lease of land use right must


comply with the form set out in Appendix 4.
Page 4 of 13

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DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


5. Contracts for transfer of the whole or a part of a real estate
project must comply with the form set out in Appendix 5.
Article 11. Order of and procedure for transfer of contracts for
hire-purchase of existing houses and buildings
1. The transfer of contracts for hire-purchase of houses and
buildings must be made in writing in form set out in Appendix 6
attached to this Decree, with the confirmation of the lessor of a
hire-purchase in such transfer document.
Where a transferor of a contract is not an organisation having legal
entity status, the writing document for contract transfer must be
notarised/certified before sending to the lessor of a hire-purchase
for confirmation purpose. The notarising agency shall be
responsible to certify the writing document for contract transfer on
the parties production of the signed contract for hire-purchase of
house or building and their personal identification papers as
required by the notarising agency; in the cases of transfer made for
the second time onwards, then writing documents for contract
transfer of previous time(s) must also be shown.

COMMENTS AND RECOMMENDATIONS

Recommendation:
We
therefore
suggest
removing
notarisation/certification requirement under Articles 11.1 and 13.2.
-

2. After either the transferor or the transferee of the contract has


paid taxes in accordance with the provisions of law, within 05
working days at maximum from the receipt of writing document for
contract transfer, the lessor of a hire-purchase shall be
responsible to made confirmation in such writing document for
contract transfer and return it to the application file submitting
party and no fee shall be collected in relation to such contract
transfer.
3. From the date the lessor of a hire-purchase makes confirmation
in a writing document for contract transfer, the transferee of the
hire-purchase contract may continue exercise the rights and
obligations of a lessee of a hire-purchase of houses and buildings
to the lessor of a hire-purchase pursuant to the contract for hirepurchase of house or building signed between the lessor of a hirepurchase and the transferor of the hire-purchase contract.

Articles 11.1 and 13.2 of the Draft Decree of LREB provide that in case a
transferor of the contract is not an organisation having legal entity status,
the transfer contract must be notarised/certified. This requirement
imposes an additional procedure for conducting contract transfer and may
cause further delay on the transfer process.
the

According to Articles 11.1, 11.2, 13.2(a) and 13.2(b) of the Draft Decree of
LREB, the lease-purchase contract shall be confirmed by the developer in
the event that the transferor intends to transfer the lease-purchase
contract to other party. The lease-purchase contract shall be confirmed by
the developer upon (i) the notarisation/certification of the transfer of the
lease-purchase contract entered into between the transferor and the
transferee; and (ii) the payment of the applicable tax by the transferor or
transferee. The requirement to obtain confirmation twice from the
developer on the lease-purchase contract creates administrative burden
for a developer. The obligation to confirm the payment of tax should be on
the transferor or transferee and not the lessor.
Recommendation: We therefore suggest that the transferor shall only
be required to obtain confirmation from the developer once, i.e. upon
the notarisation/certification of the transfer of the lease-purchase
contract and the confirmation of payment of tax be made by the
transferor or the transferee.

It is unclear what the application file in Article 11.2 of the Draft


Decree of LREB refers to.
Recommendation: We suggest that this is clarified.

Page 5 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

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DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


4. For cases of transferring contracts for the second time onwards,
the same transfer procedure must also be performed as in the
case of transferring contracts for the first time.
5. The transferee of a contract for hire-purchase of house or
building finally shall be issued with a Certificate of land use right,
ownership of residential housing and other assets attached to the
land by the competent State authority in accordance with the laws
on land after all financial obligations relating to assignment taxes
have been paid in full in accordance with law.
6. In performing the procedure for issuance of the certificate of
land use right, ownership of residential housing and other assets
attached to the land, the party requesting such issuance must
submit to the certificate issuing authority such documents relating
to the transfer of contract, specifically as follows:
a. Contract for hire-purchase of house or building which has
been signed for the first time;
b.

Minutes of liquidation of the hire-purchase contract (in case


it has been liquidated);

c.

Writing document on contract transfer with confirmation of


the lessor of a hire-purchase and being notarised in
accordance with Clause 1 of this Article;
Receipt of tax payments for each time of contract transfer
in accordance with law or documents evidencing exemption
of income tax [payment] in accordance with law.

d.

Article 13. Order of and procedure for transfer of contracts for


sale and purchase, hire-purchase of residential housing to be
formed in the future
1. The order of and procedure for transfer of contracts for sale and
purchase of residential housing shall comply with the laws on
residential housing.

Page 6 of 13

COMMENTS AND RECOMMENDATIONS

Comments on draft Decree guiding implementation of Law on Real Estate Business

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Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


2. The order of and procedure for transfer of contracts for hirepurchase of residential housing shall be as follows:
a. The transfer of contracts for hire-purchase of residential
housing to be formed in the future must be made in writing
in form set out in Appendix 7 attached to this Decree, with
the confirmation of the investor in such transfer document.
Where a transferor of a contract is not an organisation
having legal entity status, the writing document for contract
transfer must be notarised/certified before sending to the
investor for confirmation purpose. The notarising agency
shall be responsible to certify the writing document for
contract transfer on the parties production of the signed
contract for hire-purchase of residential housing and their
personal identification papers as required by the notarising
agency; in the cases of transfer made for the second time
onwards, then writing documents for contract transfer of
previous time(s) must also be shown.
b. After either the transferor or the transferee of the contract
has paid taxes in accordance with the provisions of law,
within 05 working days at maximum from the receipt of
writing document for contract transfer, the lessor of a hirepurchase shall be responsible to made confirmation in
such writing document for contract transfer and return it to
the application file submitting party and no fee shall be
collected in relation to such contract transfer.
Article 15. Order of and procedure for transfer of the whole or
part of a project the investment of which is decided by the
provincial Peoples committee (decision made on the investment
policy, investment decision, documents approving the
investment)
1. The transferring investor shall submit 01 set of application file for
transfer of the whole or part of a project to the provincial Peoples
committee where the project is located (or to an agency which is
authorised by such provincial Peoples committee). The application file
for transfer of the whole or part of a project shall include:

COMMENTS AND RECOMMENDATIONS

According to Article 48 of LREB, investor of a real estate project is


allowed to transfer the whole or part of a real estate project to another
investor in order to conduct business development, provided that there
is no change in the objectives and contents of the project and the
interests of clients and related parties are ensured. Further, Article 49
regulating conditions for transferring the whole or part of a real estate
project does not provide the reason for transfer. Therefore, we
understand that investor of a real estate project may, at its own
discretion, decide to transfer the whole or part of a real estate project
to another investor, subject to the satisfaction of conditions to transfer
the real estate project as set out in Article 49 of LREB.

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DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


a. Request for transfer of the whole or part of the project
made by the transferring investor, in which specifying the
reasons for transfer; the status of investment project
implementation up to the time of request for transfer;
recommending an investor who receives the transfer; plans
for handling interests and obligations of customers and
concerned parties in form set out in Appendix 8 attached to
this Decree;
b. The file of the project or part of the project requested for
transfer shall include:
- Document permitting the investment or document
approving the investment made by the competent State
authority (certified copy));
- Decision on project approval (certified copy);
- Land use right certificate in respect of the whole or part of
the project requested for transfer (certified copy);
- Approved investment project, including the explanation and
basic design.

COMMENTS AND RECOMMENDATIONS


We note however that Article 15.1(a) of the Draft Decree of LREB
provides that the application request for transfer of the whole or part of
the project made by the transferor must clearly state the reason for
transfer. We are of the view that such requirement is unnecessary and
causes difficulties as well as restricts the investors from transferring
their projects.
-

Recommendation: We therefore suggest removing the reason for


transfer under Article 15.1(a), Part II of Appendix 8A and Part III of
Appendix 8B of the Draft Decree of LREB.

Article 15.1(d) provides that the application files for project transfer
shall include the business registration certificate. We note that these
conditions can apply to transferees being domestic investors and
foreign investors who already have existing projects in Vietnam;
however they cause many difficulties to investors being foreign
individuals and organizations who make investment in Vietnam for the
first time with the investment project being the transferred project.
Pursuant to the laws on investment, a foreign investor who makes
investment in Vietnam for the first time must have an investment
project to be entitled to establish an enterprise and obtain an
investment registration certificate and an enterprise registration
certificate. However, these provisions require foreign investor who
makes investment in Vietnam for the first time to set up a company
before it can be engaged in a project as required by the laws on
investment. This overlapping and conflicting regulation has restricted
the rights to receive transfer of real estate projects of foreign investors
who make investment in Vietnam for the first time.

Report on the project implementation progress made by the


transferring investor up to the time of transfer in form set out
in Appendix 9 to this Decree.
c. The file of the investor who receives the transfer shall
include:
- Request for receipt of transfer of the project or part of the
project, in which contains its undertakings on continue
implementing and investing in construction and business in
strict compliance with laws, ensuring the implementation
progress and particulars of the project upon its receipt of
project transfer (in form set out in Appendix 10 to this
Decree).
- Business registration certificate in which contains the
business line of conducting real estate business or
Enterprise registration certificate recording an amount of

Recommendation: We therefore suggest adding the phrase except for


investors being foreign individuals and organizations who make
investment in Vietnam for the first time to the second paragraph of
Article 15.1(d).
-

Article 15.1(d) also provides that the transferees will submit documents
evidencing the owners equity to the authority for the purpose of

Page 8 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

No.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


charter capital satisfying the requirements set out in Article
3 of this Decree (certified copy);
- Document evidencing that the investor owns an amount of
fund for implementing the project which is not lower than
20% of the total investment amount with respect to projects
with a land use size less than 20 hectares; and not lower
than 15% of the total investment amount with respect to
projects with a land use size from 20 hectares or more in
accordance with the provisions of laws on land or
confirmation document made by an independent audit firm
regarding the current available equity owned by the new
investor as recorded in the enterprises latest financial
statements (being the year of application [for project
transfer receipt] or the preceding year of such year)
satisfying the requirements on capital mentioned above for
project implementation.
2. Within 30 days from the receipt of valid application files in full,
the main agency which is authorised by the provincial Peoples
committee shall be responsible to organise the evaluation in
accordance with Article 17 of this Decree and report the evaluation
result to the provincial Peoples committee for [the latters]
issuance of a decision permitting the transfer. Where it has not
satisfied all conditions to be permitted for transfer, the provincial
Peoples committee must send a notice in writing to the
transferring investor specifying the reasons therefore.
3. Within 30 days from the issuance of a decision permitting the
transfer of a project or part of a project by a competent State
authority (in form set out in Appendix 11 to this Decree), the parties
must complete the signing of a transfer contract and complete the
handover of project or part of project. The investor who receives
the transfer shall be responsible to continue implement the project
or the part of project right after receipt of handover. The
transferring investor shall be responsible to hand over the investor
receiving the transfer all of the dossiers relating to the project or

COMMENTS AND RECOMMENDATIONS


obtaining the project transfer decision. We note however that it is
unclear what documents are required for evidencing the owners
equity.
Recommendation: We therefore suggest amending this Article as
follows:
Document evidencing that the investor owns an amount of fund for
implementing the project which is not lower than 20% of the total
investment amount with respect to projects with a land use size less
than 20 hectares; and not lower than 15% of the total investment
amount with respect to projects with a land use size from 20 hectares
or more in accordance with the provisions of laws on land (including (i)
bank statement; (ii) undertaking of the parent company or a financial
institution(s) to provide financial support; (iii) guarantee for the
financial capability of the investor; or (iv) other documents proving the
financial capability of the investor) or confirmation document made by
an independent audit firm regarding the current available equity owned
by the new investor as recorded in the enterprises latest financial
statements (being the year of application [for project transfer receipt]
or the preceding year of such year) satisfying the requirements on
capital mentioned above for project implementation.
-

Article 15.2 provides that within 30 days from the receipt of valid
application files in full, the agency that is authorised by the provincial
Peoples committee shall be responsible to evaluate and report the
evaluation result to the provincial Peoples committee for issuance of a
project transfer decision.
We note however that it is unclear under Draft Decree on how the
transfer will proceed if the project transfer decision is not issued within
30 days for any reason.
Recommendation: We therefore suggest amending Article 15.3 as
follows:
Within 30 days from the issuance of a decision permitting the transfer
of a project or part of a project by a competent State authority (in form
set out in Appendix 11 to this Decree) or where no decision permitting

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Comments on draft Decree guiding implementation of Law on Real Estate Business

No.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


part of the project, together with handover minutes and document
checklist. The handover of landmarks of the project on site shall
comply with the provisions of laws on land.

COMMENTS AND RECOMMENDATIONS


the transfer of a project or part of a project by a competent State
authority (in form set out in Appendix 11 to this Decree) is issued within
30 days from the receipt of valid application files in full and the
provincial Peoples committee has not issued a notice in writing to the
transferring investor specifying that all conditions to be permitted for
transfer have not been met, the parties must complete the signing of a
transfer contract and complete the handover of project or part of
project. The investor who receives the transfer shall be responsible to
continue implement the project or the part of project right after receipt
of handover. The transferring investor shall be responsible to hand
over the investor receiving the transfer all of the dossiers relating to
the project or part of the project, together with handover minutes and
document checklist. The handover of landmarks of the project on site
shall comply with the provisions of laws on land.

Before performing procedure for handover, the transferring


investor must send written notice to all customers (if any) and
notify on mass media 15 days in advance (at least on 03 consecutive
issues of a newspaper published in locality, a local television
channel or central television channel and the website (if any) of the
main agency at provincial level where the project is located which
conducts the project evaluation) regarding the transfer of project
or part of the project and interests of customers.
4. Where the investor who receives real estate project transfer is a
foreign invested enterprise, then after issuance of a decision
permitting the project transfer made by a competent State
authority, the transferring investor shall perform procedure for
returning the land to the State and the competent State authority
shall decide to allocate land or lease land to the investor who
receives the project transfer in accordance with the laws on land
within 30 days from the full receipt of valid dossiers.
5. Pursuant to the decision permitting transfer of the whole or part
of project made by the competent State authority and the contract
for transfer of the whole or part of the project which has been
signed by two parties, the natural resources and environment
management agency shall perform procedure for recovery of land
from the transferor and then allocate such land to the transferee
and organise the handover of landmarks of the project on site in
accordance with the provisions of laws on land.

Article 15.5 of the Draft Decree of LREB provides that pursuant to the
project transfer decision and the project transfer contract, the natural
resources and environment management agency shall perform
procedure for recovery of land from the transfer or and then allocate
such land and hand over the project site to the transferee in accordance
with the provisions of laws on land. It is unnecessary for the land to be
recovered and re-allocated to the transferees. The authorities merely
have to amend the land use rights certificate to record that the
transferee is the new land user since the transferee, being a successor
of the project, will have the continuous right to use the land for the
purpose of development of the project as a result of the project transfer.
Further, we note that the handover of the project site is repeated of the
last sentence in first paragraph of Article 15.3.
Recommendation: We therefore suggest removing Article 15.5 from the
Draft Decree of LREB:
Pursuant to the decision permitting transfer of the whole or part of
project made by the competent State authority and the contract for
transfer of the whole or part of the project which has been signed by two
parties, the natural resources and environment management agency shall

Page 10 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

No.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)

Article 16. Order of and procedures for transfer of the whole or


part of a project the investment of which is decided by the Prime
Minister (decision made on the investment policy, investment
decision, documents approving the investment)
1. The transferor shall be responsible, together with the transferee
of the whole or part of a real estate project, to prepare dossiers
and submit the same to the competent authority in compliance with
Clause 1, Article 15 of this Decree.

COMMENTS AND RECOMMENDATIONS


perform procedure for recovery of land from the transferor and then
allocate such land to the transferee and organise the handover of
landmarks of the project on site in accordance with the provisions of laws
on land.
-

We note however that it is unclear under the Draft Decree on what will
happen if the project transfer decision is not given within this timeline
for any reason.

2. Within 45 days from the full receipt of valid dossiers, the provincial
Peoples committee shall be responsible to organise the evaluation in
accordance with Article 17 of this Decree, and seek opinions of
specialised managing Ministry and the Ministry of Construction, and
then report to the Prime Minister for his decision.

3. Other contents in relation to the transfer of the whole or part of a


real estate project the investment of which is decided by the Prime
Minister shall comply with Article 15 of this Decree.
Article 17. Evaluation and granting opinions regarding the
dossiers for transfer of the whole or part of a project
1. The contents of evaluation and granting opinions regarding the
dossiers for transfer of the whole or part of a real estate project
shall include:
a. [Contents] regarding the dossiers requesting for transfer of
the whole or part of the project made by the project
investor.
b. [Contents] regarding the conditions of project or part of
project subject to transfer.
c. [Contents] regarding the condition of the transferring
investor.
d. [Contents] regarding the conditions of the investor who

Article 16.2 provides that within 45 days from the receipt of valid
application files in full, the provincial Peoples committee shall
evaluate and seek opinions of specialised managing Ministry and the
Ministry of Construction, and then report to the Prime Minister for his
decision.

Recommendation: We therefore suggest adding to the following to the


end of Article 16.2 If the decision is not given within the 45 days time
period for any reason, the transfer will proceed as if a decision to permit
the transfer of the whole or part of a real estate project has been
granted.

According to Article 17.1(c) of the Draft Decree of LREB, the authorities


shall evaluate and provide their opinions regarding the conditions of the
transferor. We note that the licensing authorities and the relevant
authorities have already evaluated the capacity and conditions of the
transferor before approving the investment by the transferor in the
project. We therefore are of the view that such requirements are
unnecessary and should be removed.
Recommendation: We suggest removing the conditions of the
transferors under Article 17.1(c) of the Draft Decree of LREB.

Page 11 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

No.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)


receives the project transfer.
2. The agency which takes the main role in evaluation task and
the agencies responsible for giving opinions regarding the dossiers
requesting for transfer of the whole or part of a real estate project
must give their opinions regarding the contents mentioned in
Clause 1 of this Article, and at the same time must specify their
opinions as to whether the project or part of project under transfer
has satisfied all conditions for transfer or not. Where it has not
satisfied all conditions for transfer, reasons must be specified for
the evaluation presiding agency to report the same to the agency
having authority for permitting the project transfer or respond to
the transferring investor clear reasons in case of refusal of project
transfer.
Transitional provision

COMMENTS AND RECOMMENDATIONS

Implementation of current agreements


There is no transitional provision to deal with implementation of
agreements, which have already been signed under the old LREB.
There are numerous agreements which have already been signed
before the new LREB comes into effect e.g. sale and purchase
agreements, sale and purchase of assets to be formed in the future,
contracts for mobilization of capital, hire purchase agreements, lease
and sub-lease agreements, project transfer agreements. Note that
there are substantial changes to terms and conditions for the conduct
of real estate business which may affect all these agreements. It is
not immediately clear to what extent any existing agreements must be
amended to comply with the LREB. This will cause a lot of uncertainty
and difficulty to both business entities and also individuals who have
entered into real estate transactions. In order to prevent any negative
impact to the real estate sector and the economy, in general, we
would propose that all existing agreements continue to be
implemented according to the existing laws and no changes are
required.
Recommendation: We suggest adding the following provision to the
Draft Decree of LREB:
Agreements which have already been signed before the Law on Real

Page 12 of 13

Comments on draft Decree guiding implementation of Law on Real Estate Business

No.

Vietnam Business Forum, 2015

DRAFT DECREE OF LAW ON REAL ESTATE BUSINESS (LREB)

COMMENTS AND RECOMMENDATIONS


Estate Business takes effect shall continue to be implemented in
accordance with the law at the time when they were signed.
-

Enterprises conducting valuation services


According to Article 80.1 of LREB, any real estate business enterprise,
including enterprises conducting valuation services currently operating
and not yet satisfying all the conditions stipulated in the LREB must
satisfy all the conditions within 1 year from the effective date of the
LREB, i.e 1 July 2015. We note however that Article 33.1 of Decree
89/2013 provides another timeline for current enterprises to comply
with the law on pricing, which is 25 September 2015. The difference of
the deadline provided under the LREB and Decree 89 will cause
confusion to enterprises.
Recommendation: We therefore suggest clarifying that current
enterprises conducting valuation services have to comply with
conditions provided under the law on pricing from 1 July 2016 only.

Page 13 of 13

Investment Law and


Enterprise Law

Comments on the draft Decrees on business registration and guiding the 2014 Law on Enterprises

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT DECREES ON BUSINESS REGISTRATION AND GUIDING THE 2014 LAW ON ENTERPRISES
As at 20 April 2015

Prepared by:
Allens
1
General comments
We understand that following the issuance of the 2014 Law on Enterprises (LOE), the Ministry of Planning and Investment (MPI) are collecting
opinions on the draft guiding decrees of the LOE, including (i) Decree on detailed guidelines for the implementation of the LOE (Draft
Implementing Decree) and (ii) Decree on business registration (Draft Registration Decree). As an overall view, the Draft Registration Decree
has been prepared in details and clarified some important points of the LOE while the Draft Implementing Decree is rather general and mostly
focus on providing guidelines for social enterprises, leaving a number of issues under the 2014 LOE unaddressed. Therefore, we would like to
take this opportunity to propose some issues which we think could be better addressed in the implementing decrees for these two drafts.
Our comments and suggestions are set out in the table below and sorted in ascending order of the relevant provision in each draft decree
version as of March 2015.
2

Main comments on the Draft Decrees guiding the 2014 Law on Enterprises
No.
A.

1.

Draft Decree
Issues
DRAFT BUSINESS REGISTRATION DECREE
25, 26
Article 25, 26 of the Draft Registration Decree set out the list of
documents required for enterprise establishment, which includes
a legalized copy of the incorporation certificate of a
member/shareholder being a foreign investor. This requirement
will apply even in the case when the legalized incorporation
certificate has already been submitted during the application
process for investment registration certificate (IRC).
Resubmission of another legalized copy would be redundant and
onerous for the foreign investors, especially if the IRC process is
prolonged and the legalized document prepared by the foreign
investor since the beginning of the IRC application process
becomes expired at the time of applying for the enterprise
registration certificate (ERC).

Page 1 of 6

Recommendation
We recommend that the applicant only needs to provide
certification of true copy of the incorporation certificate in the
ERC application if the IRC has already been granted. An updated
legalized incorporation certificate should only be required upon
request by the business registration office (BRO) if there is any
discrepancy with the IRC.

Submission on the draft Decrees guiding the 2014 Law on Enterprises

No.
2.

Draft Decree
33, 35

Vietnam Business Forum, 2015

Issues
Article 33 of the Draft Registration Decree gives a company the right
to request the BRO to provide a copy of an ERC.
Article 35 of the Draft Registration Decree gives organization and
individual the right to request for information on enterprise
registration of an enterprise.

3.

4.

48

55, 56, 57, 58

In practice, in order to lodge their request with the BRO, the


applicant is usually required to provide additional documents
proving the purpose for requesting such information and the
process is usually long due to the absence of a specified timeline.
The 2014 LOE allows for multiple legal representatives, yet, it is not
clear whether all legal representatives must be registered with the
BRO and specified in the companys ERC. Article 48 of the Draft
Registration Decree only provides procedures for change of legal
representative. No procedure for supplement/removal of legal
representative is specified in the Draft Registration Decree, and this
could be taken as implying that not all legal representative are
registered in the ERC.
Articles 55, 56, 57 and 58 of the Draft Registration Decree provide
procedures for various notification obligations of a company regarding
change in business registration information. Under these provisions,
the notification obligation of a company is deemed completed if the
company does not receive any additional request on amending or
supplementing the application file from the BRO after 3 business
days. No further details on notifying method of the BRO is provided. We
are concerned that in practice, notifications by the BRO might get lost
and/or unable to be received by the company due to some technical
reasons and that the BRO may still request for additional information
after 3 business days for this reason.

Page 2 of 6

Recommendation
To ensure timely information to facilitate business
activities/transactions, we recommend setting a timeline for
providing copy of an ERC under Article 33 and enterprise
registration information under Article 35 of the Registration
Decree of around 3 business days. The BRO may request the
applicant to specify the purpose of such request in the request
form but they should not be able to require any additional
supporting document attached to that request.

We would suggest the Registration Decree require all legal


representatives to be registered in the ERC and subsequently
listed in the National Portal for Enterprise Registration for easy
verification by third party.
Article 48 of the Registration Decree should cover procedures for
both change of legal representative(s) and supplemental/removal
of legal representative(s).
We recommend, for ease of implementation, adopting electronic
communications so that the BRO will send its rejection or
request for further information via email within 3 business days.
We also recommend a general prohibition in this provisions that
upon expiry of the 3 business days period, the BRO must not
request enterprises to supply any additional documents and the
company should be entitled to consider that its notification is
accepted and valid, if there is no email notification from the BRO
after this period.

Submission on the draft Decrees guiding the 2014 Law on Enterprises

No.
5.

6.

7.

8.

Draft Decree
60

Vietnam Business Forum, 2015

Issues
Article 60 of the Draft Registration Decree provides that the BRO
can consider and issue written receipt to the company within 3
days upon receive of notification of the company regarding
changes in its management personnel or its decision to issue
shares under private placement. It is unclear why the BRO need 3
days to issue its written receipt in these cases.
Article 83 of the Draft Registration Decree grants the BRO the
power to declare fraud and revoke the ERC. The BRO can involve
the police to identify fraud if doubt about the truthfulness of the
application. It is not clear whether involvement of the police is a
must or just a choice of the BRO.

Recommendation
We would recommend written receipt is given immediately upon
submission of the notification by the company to timely record its
fulfilment of the notification obligation. Immediate issuance of
receipt does not affect the right of the BRO to comment on the
application file later on (eg. Article 123 of the LOE provide 5
business days for the BRO to reject the private placement).
83
We suggest requiring police confirmation before any declaration
of fraud is made by the BRO as the BRO might not be in an
adequate technical position to confirm a fraud. Besides, there
should be criteria for suspecting fraud (eg. sign of rubbing,
inconsistency in information provided etc.) which will act as
grounds for the BRO to request police examination.
Not yet
Article 18 of the 2014 LOE provides that in case of request by the We recommend criminal records should not be requested on an
addressed
BRO, criminal record of the person registering for enterprise usual basis (i.e. not required in an application dossier for
(LOE ref: Art
registration must be submitted. It is not clear:
enterprise establishment), but only in suspicious cases and the
18)
Whether criminal record applies to the legal representative(s) or indicators of suspicious cases should clearly be set out. Besides,
only applies to the founding shareholders of a joint stock foreign investors who are not resided in Vietnam should be
company/members of a limited liability company/owners of a allowed to submit a legalized criminal record issued in their
home country.
privately owned company;
whether this must be included in the application dossier for
corporate formation or only when requested by the BRO and, if
so, the basis for such a request; and
as for foreign investors whose criminal records might not be able to
obtained in Vietnam, how this condition could be satisfied.
Not yet
In accordance with Article 202.2 of the LOE, one of the conditions According to Article 202.8 of the LOE, after the 180 day period, if the
addressed
for a company to apply for dissolution is that it must not be BRO has not received any comment on/rejection to the dissolution,
(LOE ref: Art. subject to any litigation or arbitration proceeding at the time it the BRO shall update the legal status of the company in the National
201.2)
files an application for dissolution. There is no clear provision on Portal for Enterprise Registration. Therefore, we recommend the
how to determine a company is subject to litigation or arbitration Registration Decree specifying that the company should be deemed
proceeding.
as having satisfied the condition on litigation or arbitration proceeding
after 180 days.
DRAFT IMPLEMENTING DECREE AND ISSUES UNADDRESSED IN THE 2014 LOE

Page 3 of 6

Submission on the draft Decrees guiding the 2014 Law on Enterprises

No.
9.

Draft Decree
18

10.

Not yet
addressed
(LOE ref: Art
48, 74)

11.

Not yet
addressed
(LOE ref: Art
36)

Vietnam Business Forum, 2015

Issues
Article 18 of the Draft Implementing Decree states that the
company might choose to have or not to have a corporate seal. In
case there is no corporate seal, it is not clear what criteria will be
used to verify a document issued by the company. On the other
hand, in case the company has a seal, is it necessary that any
document issued by the company must be chopped with a seal in
order to be valid?

Recommendation
To enable flexibility, we recommend stating that either (i) a signature
of one legal representative accompanied with a company seal or (ii)
signatures of two legal representatives would be sufficient to prove
the validity of a document issued by a company. In this case, a
company not having a seal might need to have at least two legal
representatives. Verifying a corporate document by two legal
representatives is consistent with international practice in corporate
governance.
The 2014 LOE states that the registered charter capital of an LLC We recommend the 90 day time limit for subsequent increase of
must be contributed within 90 days from the date of issuance of the charter capital should be waived to enable reasonable time for
ERC. It is not clear whether this 90 days period apply to all investors of large scale project to inject capital. The 90 day
subsequent increases of the charter capital or only to the original period might not be feasible in practice especially for projects
capital contribution upon establishment of the company.
requiring a large amount of capital.
In reference to the 90 day time limit for charter capital We would recommend the Implementing Decree to make clear
contribution, it is not clear whether the contribution of capital in that capital contribution in form of (value of) land use right can be
form of (value of) land use right is deemed contributed when (i) deemed contributed when the land use right transfer agreement
the land use right transfer agreement is signed/notarized or (ii) is signed/notarized. This is because if (ii) applied, it might not be
when the land use right certificate has been granted to the practically possible for the company to obtain the land use right
company.
certificate within 90 days, thereby violating the 90 day time limit
requirement.

Page 4 of 6

Submission on the draft Decrees guiding the 2014 Law on Enterprises

No.
12.

13.

Draft Decree
Not yet
addressed
(LOE ref: Art
13, 29)

Not yet
addressed
(LOE ref: Art
29)

Vietnam Business Forum, 2015

Issues
Method for choosing a new legal representative is not specified
when the sole legal representative being the member of a one
member LLC or a major shareholder of a joint stock company is
arrested or in similar situations. Such method is available for a
two member LLC only. In practice, there's case when a legal
representative being a major shareholder of a joint stock
company is arrested, resulting in the company's transactions
being stuck as a new legal representative cannot be appointed
absent vote from such major shareholder.
The 2014 LOE allows courts, in special circumstances, to appoint
a legal representative during court proceedings. However, what
could constitute a 'special circumstance' is not specified in
detailed in the 2014 LOE. The implementing regulations of the
2014 LOE should define the scope of these special
circumstances.
In accordance with the 2014 LOE, business lines of a company are
no longer required to be registered in the company's ERC and only
need to be notified to the BRO. It is not clear whether the BRO
would issue the ERC to the company and/or would accept the
notification of the company on changes of business lines in case the
company does not satisfy requirements for the conditional business
line (eg the company notifies real estate business but its registered
charter capital is below the minimum legal charter capital required
for real estate business).

Page 5 of 6

Recommendation
We recommend the Implementing Decree adds a provision
specifying cases where the court may appoint a legal
representative during court proceedings, which include, among
others, "when the sole legal representative being the member of
a one member LLC or a joint stock company is arrested or in
similar situations".

We would recommend the Implementing Decree adds a provision


to make clear that the BRO will not review business conditions of
the company when issuing ERC or receiving notification of the
company on changes of business lines. The company shall be
allowed to operate a specific conditional business line when it
has satisfied all conditions.

Submission on the draft Decrees guiding the 2014 Law on Enterprises

No.
14.

Draft Decree
Not yet
addressed
(LOE ref: Art
4.27)

Vietnam Business Forum, 2015

Issues
There is an significant inconsistency between Article 23.1 of the
2014 LOI and Article 4.27 of the 2014 LOE:
Under Art 23.1 of the 2014 LOI, FIE with 51% of the charter
capital held by a foreign investor (including those listed in
items (a), (b) and (c) of Article 23.1), will be subject to
investment conditions applicable to foreign investors;

However, Article 4.27 of the 2014 LOE provides that ownership


ratio of foreign investors is the total ownership of voting
capital of all foreign investors in a Vietnamese enterprises.
This definition is then not used anywhere in the 2014 LOE.

This inconsistency makes it unclear whether a shareholding


company established in Vietnam will be treated as a foreign
investor if it has both ordinary and dividend preference shares
and the foreign investors hold 51% of the ordinary (voting) shares
in the company which is less than 51% of its charter capital. This
is a significant issue that will affect structuring of M&A
transactions in Vietnam and should be clarified in the
implementing regulations.

Page 6 of 6

Recommendation
The Implementing regulations for the 2014 LOI and 2014 LOE
should clearly clarify this problem. We would expect that the
LOI's approach will prevail when identifying conditions applied for
FIEs.

Comments on draft Decree on business registration & guiding LOE

Vietnam Business Forum, 2015

COMMENTS ON DRAFTS DECREES ON BUSINESS REGISTRATION & GUIDING


THE 2014 LAW ON ENTERPRISES

Prepared By
Nagashima Ohno & Tsunematsu, Hanoi Branch
I. Comments on the Draft Decree on Business Registration Procedures

(replacing Decree 43/2010/ND-CP)


Articles

Comments

Article 7: Business lines

According to Article 29 of the Law on


Enterprises,

business

lines

(not

in

the

Article 7.2 provides that the codification of business

conditional sectors) will not appear on the BRC.

lines in the BRC is only for the statistics purpose;

However, under Article 7.2 of Draft Decree, it


seems that the business lines will be recorded

Article 7.6 provides that if a company register for a

in the BRC. This is not consistent with the LOE.

business line that is more detailed than the level 4

Please make it clear again, as in the LOE, that

[of Vietnamese system of industries], the companys

the

business

lines

other

than

those

in

business will be limited within such registered conditional sectors shall not be recorded in the
detailed business lines.

BRC, and companies can do any business other


than those conditional or prohibited freely
regardless of the registration (Article 7.1 of
LOE).

Article 22: Settlement of violation on intellectual

This suggestion cannot be realized in the

property rights

practice. This is because NOIP does not provide


searching service and the NOIPs online

Article 22.1 suggests the company to consult the database is not promptly updated.
Intellectual Properties Database of the National
Office of Intellectual Properties (NOIP) in order to
not infringe the intellectual properties of other
persons.
Article 26 and other articles on the company

In order to avoid the subjective assessment of

registration dossier

the licensing officer on the validity of a legalized


document,

please

expressly

stipulate

the

It is required that the incorporation certificate of a

validity duration of a legalized document (e.g.

foreign member/shareholder must be legalized.

three months, six months).

Article 30: Personal identity papers in a company

This kind of paper is not mentioned in the Law

registration dossier

on Entry, Exist, Transit, and Residence of


Foreigners in Vietnam. Please clarify (whether

Article 30.3 require a foreigner who resides in

this document is a Temporary Residence Card

Vietnam to provide the temporary stay certificate

or a certification letter issued by the police of

(Giy ng K Tm Tr) issued by competent

the ward where the foreign is living).

authorities of Vietnam.
Page 1 of 5

Comments on draft Decree on business registration & guiding LOE

Vietnam Business Forum, 2015

Articles

Comments

Article 34: Business Registration Database

This article does not mention to the circumstance

update & standardization

where

the

registration

information
database

on
is

the

company

incorrect/out

of

date/missing not due the companys fault, and the


company requests the licensing authorities to
amend/update/supplement. We suggest adding
such circumstance and timeframe for the
licensing

authorities

to

amend/update

the

information.
Article 50: Registration for change of member of

The Notification to the licensing authorities

limited liabilities company with two or more

must be accompanied with, among others,

members

documents evidencing the completion of capital


contribution of a new member/ completion of
the assignment process. This requirement is
also repeated in many other articles.
In practice, the licensing may have different
view on such document. Please clarify the name
of document (e.g. banking conform letter,
confirmation letter issued by the company).
Please note that, in practice, buyer thinks that it
is too risky to pay full amount of the transfer
price to the seller before completion of the
change of the registration. Thus, The receipt of
transfer price in full should not be required to
be submitted for the change of registration.

Article 58. Notification of change of foreign

Under Article 58 of the Draft Decree, the

shareholder in an unlisted company

Notification must be filed with, among other,


the resolutions and copy of the minutes of
meeting of the General Shareholders Meeting
(GSM). In the LOE, the assignment of shares
by a shareholder (except for transfer by a
founding

shareholder

to

non-founding

shareholder within the lock up period of three


years) is not need to be approved by the GSM.
This provision is not in line with the LOE.

Page 2 of 5

Comments on draft Decree on business registration & guiding LOE

II.

Vietnam Business Forum, 2015

Comments on the Decree guiding the LOE (replacing Decree 102/2010/ND-CP)

Below are our comments on specific provisions of the Draft Decree:


Articles

Comments
According to Article 10 of the LOE, one of the
conditions of a social enterprise (SE) is to
settle social, environmental matters for the
community benefits. However, there is no
definition of social, environmental matters. Is
an enterprise that is established to solve the
technical matter for the community benefits,
considered

SE?

Currently,

many

organizations established as a science and


technology organizations (i.e. under the
Vietnam Union of Science and Technology
Associations) desire to operate as SE.
However, without being defined, the general
term of social, environmental matters may
be construed, in a conservative way, to not
cover an enterprise that operates in science
and technology sector for the community
benefits.
Therefore, we suggest giving a definition of
social, environmental matters.
Article 7.2: Procedures to receive supports This provision is fine in case the SE receives
from individuals, organizations

the supports/donation from a few individuals,


organizations. However, if the SE receives the
supports/donation in small amount from
numerous individuals/organization, it may be
difficult and time consuming for the SE and
the donators to enter into support/donation
agreement and file a copy of such agreement
to the Business Registration Authority for
each

time

of

support/donation

receipt.

Therefore, it should have a provision on


documentation and reporting in relation to
this case.
Use of mobilized donation/support

The second version of the Draft Decree has


a provision (Article 4.5) on the use of
mobilized donation/support that provides:
Page 3 of 5

Comments on draft Decree on business registration & guiding LOE

Vietnam Business Forum, 2015

Articles

Comments

An SE is not permitted to use the


mobilized

donations/support

for

the

purposes other than to set off costs of


management and operation to settle the
social, environmental issues that the SE
has registered
This provision is necessary in order to
prevent the misuse of donation/support. We
suggest

retaining

this

provision

and

specifying the maximum limit of cost of


management and operation that an SE is
permitted to use. For example, the annual
cost of management and operation must
not

exceed

[X%]

of

the

total

donations/support that the SE mobilizes in


a fiscal year.
Article 10.1
Owner

of

Based on the languages of this Article, it is


private

enterprise,

owner, unclear who will need to make the

member, and shareholder of an enterprise commitment and form of commitment. It is


shall only assign its capital contribution, advisable to expressly provide that the
shares to other organization(s), individual(s) assignee
if there is a commitment to continue continue

must

commit

performing

in

writing

the

to

social,

performing the social purposes during the environmental purposes for community
registered term

benefits during the registered term.

Articles 14.3, 16.3, and 17.7 refer to Article Article 44 of the LOE is on the companys
44 of the LOE

seal. These Articles 14.3, 16.3, and 17.3 of


the Draft Decree should refer to Article 144
of the LOE.

Article 17.1.(a) provides that a SE will be This provision does not refer to the
converted into an enterprise upon the circumstance where the SE requests to
expiration of the period under which it extend the registered period to perform the
registered to perform the social targets.

social

targets.

We

suggest

adding

provision on the case where the SE


requests, with appropriate explanation and
reasons, to extend the registered period to
perform its social targets.
Article 18.3 provides:

It is impossible to return the remaining

In case of social enterprise liquidation, the assets to the donating or supporting


Page 4 of 5

Comments on draft Decree on business registration & guiding LOE

Vietnam Business Forum, 2015

Articles

Comments

remaining balance of assets or finances persons in case the assets origin from
received by the social enterprise shall be small amounts donated by many persons
returned to the donating or supporting during

long

period.

How

can

the

individuals, agencies and organizations, or enterprise determine the donators from


transferred to other social enterprises and whom the remaining balance of assets is
organizations pursuing similar social goals.

given? How can the enterprise track the


donators to return their donation if there
are numerous donators who gives small
amount? Will a donator be willing to take
back the donation, especially in case of
non-cash donation?
The solution to transfer the donation to a
SE having similar social targets to the
liquidated SE is more appropriate. However,
the mechanism of assets transfer under
Article 18.3 is very simple. This may
facilitate a long and inexplicit chain of asset
transfer

among

the

SEs

for

wrong

purposes. It is advisable to work out more


detailed conditions and procedures to
transfer the remaining asset of a liquidated
SE to another SE.

Page 5 of 5

Comments on the draft Decree guiding the 2014 Law on Enterprises

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT DECREE GUIDING THE 2014 LAW ON ENTERPRISES

Prepared by
Ms. Lan Phuong Nguyen
Baker & McKenzie (Vietnam) Ltd.

No.
1

Comments
Specific Modifications (if any)
General comments: From the investment procedure perspective of foreign investors, our most important comment on the Draft is to combine the
three procedures (i.e., in-principle/preliminary approval, issuance of the Investment Registration Certificate (IRC), and issuance of the Enterprise
Registration Certificate (ERC)) into one integrated chain of procedures. Following that, the investor only needs to submit an application dossier to an
investment registration authority, and then the relevant licensing authorities will automatically process the procedures in accordance with the
timeline provided by the law. Such chain of procedures should be applied for both green field investment and amendment of the project's or
enterprise's registration. Under the current draft decree, the investor is required to submit consular legalized copies of relevant documents twice,
which would result in duplication of expenses and time. Also under the current draft decree, the investor, although being issued with an Investment
Registration Certificate, is uncertain whether it is allowed to establish an enterprise to implement such approved investment project. This is
because the procedure for establish such an enterprise requires separate approving process.
Below is specific comments on each article:
Article 21 on naming the enterprises:
Our understanding is that, only if the enterprises want to have name
consultation then they will be required to consult with the business
registration authorities, and this consultation is not mandatory. Therefore,
Article 21.1 can be amended as follows:
1. Prior to registering the name of the enterprise, the enterprise
may refer to the names of operating enterprises recorded at the National
Enterprise Registration Database or consult with the Business
Registration Authority in writing.
In some other countries, there are mechanisms allowing enterprises to
reserve specific names. It is recommended to the drafting committee to
consider this kind of mechanism.
Article 25, 26 on Business Registration Dossier
We recommend that Point d should be separated from Clause 4. There
should be Clause 5 providing that investors obtaining IRC must submit an
ordinary copy of such IRC (without having to certify because the IRC is
recently issued by the same body) and need not to submit the dossier in
Clause 4 (because the business registration authority must know that the
investors have already submitted such dossier in order to obtain such an
Page 1 of 3

Article 25. Business registration dossier of multi-member limited


liability companies ("MMLLC"), joint stock companies("JSC") and
partnerships
1. Business registration request.
2. Company charter. Members, founding shareholders are jointly
responsible for the company charter.

Comments on the draft Decree guiding the 2014 Law on Enterprises

No.

Vietnam Business Forum, 2015

Comments

Specific Modifications (if any)


3. List of members of the MMLLC, members of the partnership, list of
founding shareholders and foreign investors of JSC.

IRC).

4. Valid copies of the following documents:


a) One of the personal identification documents specified at Article
30 of this Decree in case the founder of the company is an
individual;
b) Establishment decision, ERC or other equivalent documents, one
of the personal identification documents specified at Article 30 of
this Decree of the authorized representative and the respective
power of attorney in case the founder of the company is a legal
entity.
If the members, shareholders are foreign organizations, the
legitimate copies of ERC must be consular legalized.
5. Ordinary copies of the IRC if the enterprise is established or jointly
established by foreign investors in accordance with the provisions
of the Law on Investment. In this case, the foreign investors will
not need to submit the dossier stipulated in Clause 4.
4

Articles 45 to 60 on the registration of changes of business registration


content should have the provisions on the effective date of such changes.
In particular, it should be when the enterprises decide to make such
changes, or other dates as so decided by the enterprises.
Pursuant to the Draft, these procedures are simply notification procedures
and therefore it does not mean that the changes will only be effective when
the business registration body conducts some procedures.

In practice, enterprises get confused when they have to determine which


date is the effective date. For example, in case of changing the legal
representative of the enterprise, who will be the legal representative of the
enterprise when the enterprise already fired the former representative and
the new one has yet been recorded on the ERC?
Articles 50 and 51, the application dossier to register the change of the
enterprises ownership must include the transfer agreement and other
documents verifying that the transfer has been completed, with the
enterprises certification.
Page 2 of 3

Comments on the draft Decree guiding the 2014 Law on Enterprises

No.

Vietnam Business Forum, 2015

Comments
We recommend removing the above clause or clarifying what documents
would be considered as documents verifying that the transfer has been
completed. This requirement has caused a lot of difficulties in practice
because the investment registration authorities requested the transferree
to completely pay the tranferror. This interpretation is overly-rigid.
According to the Civil Code and the Commercial Law, parties in a
transaction are allowed to agree upon the payment term, and payment
method (in cash, by new shares, by offsetting debts, etc.) The payment
terms must not be included as part of the administrative process.

In addition, if the ERC does not record the name of the new investor, it
would not know whether the transaction has been completed or not.
Recommend additing provisions on the timeline for contributing charter
capital of the enterprise.
Under Law on Enterprises, the charter capital must be paid within 90 days
from the date of issuance of the ERC. This timeline is unfeasible in case of
real estates projects or PPP projects which need large amount of capital.
We recommend allowing that:
- The charter capital registered for establishing the enterprise can be
smaller than the contribution capital recorded in the IRC;
- The charter capital from [USD 1 million] or more (or another amount)
can be contributed by Promissory Note issued to the enterprise.

Page 3 of 3

Specific Modifications (if any)

Comments on Draft Decree on Business Registration

Vietnam Business Forum, 2015

COMMENTS ON DRAFT DECREE ON BUSINESS REGISTRATION

ARTICLE
NO.
Article 7.7

Article 9

Article
12.1

Article
35.1

NO.

Prepared by
TMI Vietnam
RECOMMENDATION

COMMENT
Article 7.7 provides that, declaration of business lines specified in Clauses 3 and 4
of this Article shall follow the provisions of Clause 6 of this Article. However, the
provisions of the Clause 6 as mentioned seem unable to be applied to the business
lines in Clause 4.
In particular, Clause 4 of Article 7 regulates about conditional business lines
not included in the Economic sector system in Vietnam but specified in other
normative regulations, i.e, the business lines under Clause 4 of Article 7 are
those that have not been listed in the Economic sector system in Vietnam.
Whereas, Clause 6 of Article 7 regulates that in case a business wants to
apply for more specific business lines than Category 4 descriptions, it shall
select a Category 4 business line from the Economic sector system in Vietnam
[]. Since the business lines under Clause 4 are not contained in the
Economic sector system in Vietnam, there will be no appropriate Category 4
descriptions that can be chosen for a business line as specified in Clause 4.
Article 9 provides that, enterprises shall submit 01 set of application dossier
when they apply for company registration, []. However, it is unclear that
one set of application dossier means (i) one set of original version only (if
this is the case, it must also specify whether copied versions are required or
not), or (ii) one set that includes an original version and a certain copied
version(s).
Under this Article 12.1, in case a founding member of an enterprise, or an
enterprise authorizes another entity to submit applications for implementing
company registration procedures, it is required to submit service
agreement between the enterprise founding member or enterprise and the
agency providing brokerage services for application submission [].
Currently, it is allowed to submit a POA; however, this provision keeps silent
on whether POA is acceptable in replacement for a service agreement or not.
Article 35.1 provides that, within 05 working days after release of the
Company registration certificate [], the business registration agency shall
forward such company registration information [] to tax administration
agency, statistics agency, labor administration agency and social security
authorities.
Page 1 of 3

We suggest amending this Article 7.7 to make it more


consistent and to have clearer guidance on the declaration
of the business lines specified in Clause 4 of Article 7.

In order to avoid confusion, we suggest clarifying the


number of original versions and the number of copied
versions acquired for 01 set of application dossier for each
case of application.

We suggest that other than service agreement, POA from


an enterprise founding member or an enterprise to an
agency should also be accepted.

We suggest that the tax authorities automatically carry out


tax registration and issue tax codes to enterprises upon
receiving company registration information from the
business registration agency, so the enterprises will not
have to apply for tax registration.

Comments on Draft Decree on Business Registration

NO.

ARTICLE
NO.

Article
39.2

Article
42.1, 42.2

Article 45,
46, 47, 48,
49, 50, 51,
52, 53, 54

Article
60.1

Article 61

Vietnam Business Forum, 2015

RECOMMENDATION

COMMENT
Pursuant to this provision, the business registration agencies shall send
company registration information to tax authorities, which means
enterprises do not need to do so. However, it is unclear that in such case,
whether the tax authorities will automatically carry out tax registration and
issue tax codes to enterprises, or enterprises still have to apply for tax
registration as under the current regulations.
Article 39.2 provides that, entities and individuals may choose to initiate
electronic online company registration or lodge an application physically at a
Business registration office.

Pursuant to Article 42.1 and 42.2, an enterprise founding member must by


himself/herself/itself register for a business registration user account and
shall use such account to apply for enterprise establishment. However, it is
unclear on whether a person authorized by an enterprise founding member
can do so either or not.
Articles 45 to 54 stipulate the cases that must be registered if there are any
changes in enterprise information. However, at several places in these
articles, it is still used with the enterprise shall submit a notice to the
Business registration office. The term notice may cause
misunderstandings with the cases where enterprises only need to send
notice to the Business registration office, as separately set forth in Articles
55 to 59, 60.2 and 60.3.
This provision states generally about report duty of enterprises on changing
information of the manager(s) of enterprises to the Business registration office
in accordance with Article 12 of the LOE; however, both Article 12 of the LOE and
this Draft keep silent about the detailed content that must be included in such
report.
This provision states generally about the duty of enterprises in sending
notice to business registration office to request for the publicity of enterprise
registration information. However, it is unclear about the detailed content
that must be included in such notice.
Page 2 of 3

We suggest amending this Article 39.2 as follows: entities


and individuals that are allowed to establish enterprises
under the Law on Enterprises may choose to initiate
electronic online company registration or lodge an application
physically at a Business registration office. By this way of
amendment, the right of foreign investors in choosing
electronic online company registration can be clearly stated.
We suggest that an authorized person can also create
account and do such application on behalf of the
enterprise founding member.

We suggest using unified term to help readers easily


distinguish between such two different circumstances of
registering and notifying.

We suggest specifying the detailed content that must be


included in the report on changing information of the
manager(s) of enterprises to the business registration
office.
We suggest specifying the detailed content that must be
included in the notice to request for the publicity of
enterprise registration information in each of the following
cases:

Comments on Draft Decree on Business Registration

NO.

ARTICLE
NO.

Vietnam Business Forum, 2015

RECOMMENDATION

COMMENT
Besides, it also keeps silent that for enterprises doing electronic online (i)
enterprise registration through the National website for company
registration, whether it is required that they must notify again the
information which has been declared onto the National website for company
registration when they apply for enterprise registration or not.
(ii)

Page 3 of 3

For enterprises doing electronic online enterprise


registration through the National website for
company registration: Since their information has
been declared onto the National website for company
registration when they apply for enterprise
registration, we suggest excluding such information
from the required content of the notice;
For enterprises doing paper enterprise registration:
the detailed content that must be filled in the notice in
this case.

Comments on draftt Decree on business registration

Vietnam Busines Forum, 2015

COMMENTS ON DRAFTS DECREES ON BUSINESS REGISTRATION (DRAFT)

Prepared by
ZICOlaw Vietnam

1.

Clause 3 Article 27 of the Draft provides that in the case of enterprise amalgamation, the
enterprise registration file must include contract for enterprise amalgamation, minutes of
meeting and decision of the Members Council for limited liability companies with two or
more members, or minutes of meeting and decision of the General Meeting of Shareholders
for joint stock companies, in relation to the amalgamation in accordance with Article 194 of
the Law on Enterprises.
However, pursuant to the 2014 Law on Enterprises, the Members Council for limited
liability companies and the General Meeting of Shareholders for joint stock companies shall
issue a resolution and not decision. Therefore, the wordings used in Clause 3 Article 27 are
not consistent with the 2014 Law on Enterprises.
Recommendation: We suggest amending Clause 3 Article 27 of the Draft as follows:
3. In the case of amalgamation of some companies into a new company, besides
documents and papers mentioned in Articles 22 and 23 of this Decree, the enterprise
registration file must include the contract for enterprise amalgamation, minutes of meeting
and resolution of the Members Council for limited liability companies with two or more
members, or minutes of meeting and resolution of the General Meeting of Shareholders for
joint stock companies, in relation to the amalgamation in accordance with Article 194 of the
Law on Enterprises and the Business registration certificate or Enterprise registration
certificate or other equivalent documents of the companies subject to amalgamation.

2.

Clause 3 Article 38 of the Draft provides that after receiving the seal specimen notice, the
business registration agency (BRA) must post the same on the national enterprise
registration website. However, the Draft does not provide a time-limit for the BRA to do so.
Since the change of seal may cause effect to enterprises operations as well as its partners,
the posting of change in seal must be posted promptly for the convenience of the enterprise
during its operation.
Recommendation: We suggest Clause 3 Article 38 of the Draft should provide a specific
time-limit for the BRA to post information on seal specimen in order to create favourable
conditions to enterprises in reference.

3.

Articles 41 and 42 of the Draft provide for the order and procedure for registering
enterprise via electric website using public digital signature, and the order and procedure
for enterprise registration not using public digital signature. However, both Articles fail to
provide a specific time-limit for performing such procedures. Pursuant to Clause 2 Article
27 of the 2014 Law on Enterprise, the business registration agency must issue an
Enterprise registration certificate within 3 business days from the receipt of dossiers,
except for the cases of refusing to issue Enterprise registration certificate. Therefore, the
registration of enterprises via electronic website must also comply with the time-limit set
out in Clause 2 Article 27 of the 2014 Law on Enterprises.
Recommendation: We suggest amending Clause 3 Article 41 and Clause 4 Article 42 of the
Draft as follows:
3. Where it satisfies all conditions for being issued with an Enterprise registration
certificate, the Business registration agency shall send information to tax authority to
automatically create a code for the enterprise. Upon receipt of enterprise code from tax
Page 1 of 2

Comments on draftt Decree on business registration

Vietnam Busines Forum, 2015

authority, the Business registration agency shall issue the Enterprise registration
certificate within 3 business days from the receipt of valid dossiers. In case of improper
dossiers, the Business registration agency shall consider and send notice via the Internet to
the enterprise for its dossier amendment and supplementation.
4. Where it satisfies all conditions for being issued with an Enterprise registration
certificate, the Business registration agency shall send information to tax authority to
automatically create a code for the enterprise. Upon receipt of enterprise code from tax
authority, the Business registration agency shall issue the Enterprise registration
certificate within 3 business days from the receipt of valid dossiers. In case of improper
dossiers, the Business registration agency shall consider and send notice via the Internet to
the enterprise for its dossier amendment and supplementation.

Page 2 of 2

Comments on draft Decree on the 2014 Investment Law

Vietnam Business Forum, 2015

DECREE IMPLEMENTING THE 2014 INVESTMENT LAW


AND THE ATTRACTION TO FOREIGN INVESTMENT TO VIETNAM

Prepared by
Dr. Le Net
LNT & Partners

Foreign investors are highly appreciative of Vietnam for adopting the revised Constitution in
2013, in which the right to do business is fully recognized, and the recognition of equal
treatment between state-owned, private and foreign invested enterprises. These
fundamental principles have shed light for many legislative reforms, including the Law on
Enterprise, the Law on Investment (LOI), the Housing Law, the Law on Real Estate
Business, the Civil Code, the Criminal Code and many other legal documents. Never before
has Vietnam undergone such major legal reforms. As much as foreign investors celebrated
the legal forms, they also hope that the achievement of the reforms would not be distorted
or undermined by arbitrary administrative actions and red tap. Our comments hope
contributing to clarification of unclear issues with respect to conditional projects as laid
out under the draft Decree implementing LOI (the LOI Decree).
Under the LOI, there are 267 lines of business that are considered conditional projects,
such as distribution, logistics, healthcare, education, tobacco production or printing.
Compared to equivalent concept in other countries, particularly Indonesia and China ,
Vietnams list is considerably longer. Each of them has around 30 40 areas where foreign
investment is restricted. Moreover, the procedure for obtaining approval for entry into the
areas of restricted investment are more straight forward than those under the LOI. In
China, a new draft foreign investment law has been released, in which investment in areas
that are in the restricted list, only requires approval from the Ministry of Foreign Commerce
(MOFCOM) instead of various of ministries as it was in the LOI Decree. The Chinese law also
makes it relatively easy for foreign investors to hold a minority, non-control based interest
in an industry where investment is restricted by the Chinese government . Whereas, the
draft LOI Decree does not change the existing Vietnamese provisions; and any investment
falling into the restrictive list, however small, still needs to be approved by a ministry-incharge.
1

To overcome the restrictive list, China has also allowed for the establishment of a local
holding company, hence officially providing protection for such investments. We understand
that establishing a local holding company is now allowed under Vietnam LOI if total foreign
equity holding of that holding company is lower than 51%. This principle should also be
repeated under the LOI Decree.
In order to maintain Vietnams attractiveness to foreign investors, as China and Indonesia
do, we propose the following changes in the draft LOI Decree. The concrete changes to the
draft are proposed in the Vietnamese version of our article. The proposed changes are as
follows:
4

See the negative list (including restrictive list) under Indonesian law at http://www.indonesiainvestments.com/news/todays-headlines/indonesia-revises-negative-investment-list-to-boostforeign- investments/item1966
2
See restrictive list under China law at http://www.bnn.ca/News/2015/3/13/China-issues-final-listof-restricted-foreign-investment-sectors.aspx
3
See comment from Morrison & Foerster on the new China Investment Law at
http://www.mofo.com/~/media/Files/ClientAlert/2015/02/150212ChinasDraftForeignInvestment.pdf.
4

See the graph of variable interest entity (VIE) under the new China Foreign Investment Law at Wall
Street Journal 28 Jan 2015, at http://www.wsj.com/articles/how-chinas-draft-rules-may-affectforeign-investors-1422412416

Page 1 of 3

Comments on draft Decree on the 2014 Investment Law

Vietnam Business Forum, 2015

1. Article 8.3.e, g: the list of conditions to investment should not be an open-ended list.
Therefore words such as other approvals from relevant authorities, other
requirements that may be requested from time to time by relevant authorities should
be deleted.
2. Art 9.2.b: the restrictive list should apply to Greenfield investment, not to M&A, as long
as foreign investors hold minority shareholders and the target is considered as a local
company. This principle is also applied in China. Therefore, the scope investment by
share or equity acquisition should be removed from the restrictive list.
3. Art 10: in order to make the LOI Decree become the single legislative document that
governs the restrictive list that should not be distorted by other regulations of other
authorities, we propose that the Decree prohibits ministries or the peoples committee
from issuing implementing guidance contrary to the Decree, or prohibits local
authorities to request ministries in charge to interpret the laws. The only authority
allowed to interpret laws should be the Ministry of Justice, in order to avoid deviation
from the principle of the LOI by way of interpretation.
4. Art 11.3 and 4: deviation from the LOI Decree should be restricted. Therefore, paragraph
3 and 4 should be deleted. Any proposal to amend the conditions for investment must be
approved by the MPI to guarantee consistent application which will have the effect of
enhancing legitimacy.
5. Art 13.1.f: any proposal to amend investment conditions from authorities must be
counter-argued or receive feedback from VCCI, Amcham, JBAH or Eurocham. Without
feedback, MPI may not approve/disapprove an application.
6. Art 14.3: the consultation from MPI mechanism should be replaced with approval
from MPI, based on the proposal of the ministries and feedbacks from investors
representatives. Investors that do not agree with the proposal on investment conditions
may lodge a complaint to the MPI.
7. Art 33A (supplement) the draft LOI Decree should make clear the principle under Art 28
LOI, that M&A projects do not need to obtain an IC for them to be completed. Moreover,
if the conditions for investment can be approved by the local department of investment
(DPI), then it is unnecessary to obtain ministries approval.
8. Art 37.1.b2 (supplement) that draft LOI Decree should allow FDI enterprises to have the
right to acquire/subscribe shares/equity in local companies. These principles are
already allowed under the Art. 23 and 28 LOI.
9. Appendix III: the appendix provides details of conditions that must be complied with in
order to invest in Vietnam, and the authorities that are in charge of this. Unfortunately,
the authorities in charge seemed to be overly large. For example, when an economic
needs test (ENT) should be granted, the authority to grant, under the current law, is the
local peoples committee and not the MOIT. Moreover, some conditions are very simple
to review and apply, such as the foreign shareholding ratio, the scope of services to
provide (logistics, real estates, agriculture etc,) we propose that the local DPI or
industrial zones authority may apply the LOI Decree and make the decision. There is no
need to refer ministries if the issue is only the interpretation of law. If there is a dispute
about a law that needs to be interpreted, then the place to ask or refer to should be a
court, or the Ministry of Justice, or the lawyers. For the sake of objectivity and fairness,
the authorities that draft the regulations should not be the authorities that interpret the
regulations. The details of comments are set forth in our Vietnamese version of this
article.
Vietnam is now reaching a pivotal point. China and Indonesia have already cast their
decisions on the direct of their foreign investment laws. At the opening of the ASEAN
Economic Community (AEC), and the Trans-Pacific Partnership Agreement (TPP), the
choice that Vietnam faces is not left or right, but up or down. Whether Vietnam can open up

Page 2 of 3

Comments on draft Decree on the 2014 Investment Law

Vietnam Business Forum, 2015

and liberalize its market, encourage its private sectors to engage with the world and
cooperate with foreign investors, and benefit from the rich fruits of the globalised economy,
or to restrain them from such cooperation and not enable them to access the foreign
technology, capital or expertise needed for a much more challenging and competitive AEC
and TPP environment, and go down the route of the natural resource curse and developingcountry trap; it is for the Government of Vietnam to decide.

Page 3 of 3

Comments on the draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT DECREE GUIDING THE 2014 LAW ON INVESTMENT

Prepared by
Ms. Nguyen Lan Phuong
Baker & McKenzie (Vietnam) Ltd.

No.
1

Comments
Specific Modifications (if any)
The procedures under the current Law on Investment (LOI) are moderately specific, therefore the guiding Decree needs to aim at detailing unclear
provisions of the LOI. At the moment, the draft decree provides a lot of references back to the LOI. From the drafting perspective, such backreferences make it difficult to read and understand the decree.
With respect to the investment procedures of foreign investors, our most important comment to the draft decree is that the draft decree should
combine three steps (i.e., in-principle/preliminary approval, issuance of the Investment Registration Certificate, and issuance of the Enterprise
Registration Certificate) into one integrated chain of procedures. Following that, the investor only needs to submit an application dossier to an
investment registration authority, and then the relevant licensing authorities will automatically process the procedures in accordance with the
timeline provided by the law. Such chain of procedures should be applied for both green field investment and amendment of the project's or
enterprise's registration. Under the current draft decree, the investor is required to submit consular legalized copies of relevant documents twice,
which would result in duplication of expenses and time. Also under the current draft decree, the investor, although being issued with an Investment
Registration Certificate, is uncertain whether it is allowed to establish an enterprise to implement such approved investment project. This is because
the procedure for establish such an enterprise requires separate approving process.

We hereby propose the following comments to the draft decree.


Article 2: Interpretation. The schedule of definitions/terms is not exhaustive. The
draft decree must exhaustively list out all relevant definitions/terms.
To add the definition of the "copy", whether a normal copy or a consular legalized
copy would suffice.
Article 6 requires the investors to submit the "original" in foreign language.
However, there are documents which the investors cannot provide the originals;
hence, copies of such documents must be acceptable.

Article 9: List of investment/business conditions applicable to foreign investors is


enclosed in Annex III of this Decree.
The list of these conditions can be published on the National Information Portal. This
is to prevent the circumstances where the specific laws are amended that cause
Annex III of the Decree to be amended as well.
Page 1 of 5

Article 6. Language
The investment project dossier and other official documents
submitted to Vietnamese authorities must be made in
Vietnamese. If the dossier includes documents in foreign
language, the investor must submit the original or copy in
foreign language of such document.

Comments on the draft Decree guiding the 2014 Law on Investment

No.

Vietnam Business Forum, 2015

Comments
For example, currently the draft is listing out all business conditions which were
provided for under Law on Real Estate Business 2006, yet these conditions have
been replaced by Law on Real Estate Business 2014.
Article 23.1, the investment registration authority suggests the project
implementation location to the investors.

Specific Modifications (if any)

This provision is unclear. The investors may interpret this to understand that
investment registration authorities are responsible to suggest them the locations to
implement their investment projects. Is this really a responsibility of the investment
registration authorities? If yes, are they subjected to any timeframe? If no, what is the
rationale behind this provision?
Article 24 is unclear as to whether Ministries' opinions are required in case of
investments in coastal areas (e.g., resorts) not close to land areas for security
purposes.
In addition, it is possible that foreign investors cannot know all coastal areas that
are planned for security purposes so that they can proceed with this procedure.
Therefore, we recommend allowing them to apply for the normal procedures to
obtain the Investment Registration Certificate or the in-principle approval, and the
investment registration authorities will seek opinions of the relevant Ministries
regarding the matter.
Articles 26 and 27 on in-principle approval: When combining the approving
processes of relevant authorities, the timeline of 35 days or 60 days would be
insufficient.
For example, the in-principle approval of the Prime Minister according to the
process under the LOI is 58 days, not to mention the amount of time attributable
for the in-principle approval of the provincial People's Committee and the Prime
Minister, who do not have specific timeline for approving in-principle.
Moreover, it is required 8 copies of the dossiers, including 2 original dossiers for
obtaining the in-principle approval from the PM. Why does the draft require 2
original dossiers?
Article 30.1(b), when amending the in-principle investment, the investor must submit:
b) A copy of the Identification Card, Citizen Card or Passport of the investor being
individuals; copy of incorporation certificate or equivalent documents certifying the
Page 2 of 5

Recommend adding the timeline for approving in-principle of


the provincial Peoples Committee and the Prime Minister,
and revising the total amount of time to ensure sufficiency.

Comments on the draft Decree guiding the 2014 Law on Investment

No.

10

Vietnam Business Forum, 2015

Comments
legal status of the investor being organizations;
We recommend removing this requirement. According to Clause 1(d), when
transferring the investment project to another investor, the application dossier
includes:
A contract on investment project transfer and the legal documents of the
transferred investor in case of changing the investor;
"Legal document" in item d) must be clarified as "copy of the Identification Card,
Citizen Card or Passport of the investor being individuals; copy of incorporation
certificate or equivalent documents certifying the legal status of the investor being
organizations"
Articles 30 and 32 need to specify as in the case of change of the investor due to
splitting, consolidation, merger, then it is not required to go through the procedure
to modify the in-principle investment because the investment projects are assets
attached to the splitting, consolidation, or merger.
Article 32, the procedure to amend the in-principle approval of the PM requires
investors to submit 18 copies of the application dossiers, including 2 original copies.
We understand this is a typo, and the procedure indeed just requires 8 copies of the
application dossiers. We recommend requiring the investor to submit only 1 original
copy.
Article 34, on the application dossier requesting the issuance of the Investment
Registration Certificate: lacking provisions for the investment projects requiring inprinciple approvals. In fact, dossiers for all projects are alike. We recommend
amending Article 34.1 as stated in the right column.
Article 34.2 applies in cases where investment projects accompanied with
establishment of an enterprise. We understand that, the MPI will issue a template
for the Request for the issuance of an Investment Registration Certificate. Such
form will include all information items listed in this clause 2. Therefore, it is
unnecessary to list all of the information as current drafted. Consider to amend as
stated in the right column.
The MPI may regulate the templates for requesting the issuance of the Investment
Registration Certificate and concurrently requesting the issuance of the Enterprise
Registration Certificate. The business registration authorities do not need to provide
separate templates.

Page 3 of 5

Specific Modifications (if any)

1. For projects not falling under the cases where in-principle


approval is required as stated in Articles 30, 31 and 32 of LOI,
the Investor submits the application dossier as mentioned in
Article 33.1 of this Law, accompanied with the request for
issuance of an Investment Registration Certificate following
the form provided by the Ministry of Planning and Investment.
2. In case of requesting the issuance of an Investment
Registration Certificate with the establishment of an
economic organization, the investor must submit a request
for the issuance of an Investment Registration Certificate
following the form as specifically provided by the Ministry of
Planning and Investment.

Comments on the draft Decree guiding the 2014 Law on Investment

No.
11

Vietnam Business Forum, 2015

Comments
Article 36 on Establishment of Economic Organization of foreign investors, economic
organizations with foreign capital, may be amended as stated in the right column.

Specific Modifications (if any)


Option 1: Article 36. Establishment of Economic Organization
of foreign investors, economic organizations with foreign
capital
Upon being issued with the Investment Registration
Certificate in accordance with Article 35 of this Decree, the
business registration authority will issue a Certificate for
the establishment of an economic organization for the
investor within 3 working days.
Option 2: Article 36. Establishment of Economic Organization
of foreign investors, economic organizations with foreign
capital
1. Upon being issued with the Investment Registration
Certificate in accordance with Article 35 of this Decree, the
foreign investor registers for establishment of an economic
organization to implement the investment project.
2. The application dossier, the procedure for registering the
establishment of the economic organization will follow the
regulations of the law on enterprises or relevant laws
corresponding to each type of economic organizations. The
investor is exempt from submitting documents which have
been previously submitted to the investment registration
authority when requesting the issuance of the Investment
Registration Certificate.

12

Articles 38 and 39 do not have any contents different from that of the LOI.
However, the draft decree has yet provided the procedure to amend the in-principle
approval if applicable. The draft needs to clarify as to whether the amendment of the
in-principle approval needs to be conducted before or after or simultaneously with the
registration procedure mentioned in Article 38.
In terms of the application dossier, please kindly note that the investor has
submitted the legal documents and capital transfer agreement in case of amending
the in-principle approval (35 - 60 days). In the procedure for notifying foreign
Page 4 of 5

Comments on the draft Decree guiding the 2014 Law on Investment

No.

13

14

15

16
17

18

Vietnam Business Forum, 2015

Comments
investment (15 days), the investor is also requested to submit the legal documents
and the capital transfer agreement (Article 26 of the LOI). Afterward, when
amending the Enterprise Registration Certificate, the foreign investor once again is
requested to submit the consular legalized copies of their legal documents. Please
revise this to establish a thorough process, and the investors will only have to
submit their legal documents one time.
Article 40, Within 30 days since being issued with the Investment Registration
Certificate, the foreign investor must conduct the procedure to register for the
establishment of an economic organization to implement the investment project in
accordance with Article 36 of this Decree.
We recommend following the shortened procedure as above mentioned.
Article 41 requests the investor to make a deposit to guarantee its investment project
implementation. This provision has yet provided clear guidance on where the investor
should make the deposit, i.e. the National Treasury, the MOF, or a blocked account of
the enterprise at a commercial bank?
Article 54 on periodical report.
Monthly, quarter reports have the similar contents. Please remove the requirement
of submitting the monthly report to reduce reporting burdens of the enterprises.
The draft has yet provided procedures for enterprises to return their Investment
Registration Certificate when they become enterprises without foreign ownership.
In addition, we recommend considering to allow foreign investors who own up to
49% of the charter capital to be exempted from obtaining the Investment
Registration Certificate, because the domestic investors own 51% or more.
Otherwise, the investor will have to conduct 2 steps to avoid doing the Investment
Registration Certification procedure: first to establish a domestic-owned enterprise,
then to have such domestic-owned enterprise to transfer up to 49% of its charter
capital to the foreign investor.
Lastly, the investment procedure applied for foreign investors establishing social
enterprises is unclear as to whether they are subjected to Investment Registration
Certificate. How should they describe the investment objectives? How to resolve the
case where the investors being non-profit organizations/NGOs do not have
documents as required by law, for example lack of most 2 recent financial
statements or lack of sufficient balance in their bank accounts?

Page 5 of 5

Specific Modifications (if any)

The draft must have specific regulations for these social


projects.

Submission on The Draft Decree Detailing The 2014 Law On Investment

Vietnam Business Forum, 2015

SUBMISSION ON THE DRAFT DECREE GUIDING THE 2014 LAW ON INVESTMENT


As at 20 April 2015

Prepared by
Allens

1.
General comments
The Draft Decree has detailed some of important points in the Law on Investment 2014 (2014 LOI). Nevertheless, it does not completely clarify
some issues raised from the 2014 LOI, which,in our view,would cause significant difficulties in practice.
One area where the Draft Decree can be improved is in respect of the process for issuance of investment registration certificate (IRC) and
enterprises registration certificate (ERC). It has been the business community's expectation from the consultation process with the MPI on the
2014 LOI that implementing regulations would try to minimise the administrative burden for foreign investors due to the splitting of the old
investment certificate (IC) into two separate IRC and ERC under the new law. This could be done by having the foreign investors only
submitting one application dossier to the licensing authority and there will be internal transfer between different departments in the authority
in order to provide to the investor at the end of that process boththe IRC and the ERC required for their project. This is notreflected at all in the
Draft Decreeand westrongly submit that the Government should carefully and thoroughly consider the design of this process to achieve the
original objective of the 2014 LOI, that is, to simplify the investment registration regime and make it easier to do business in Vietnam.
We also have a number of other comments set out in the table below and sorted in ascending order of the relevant provision in the Draft Decree.
2.

Main comments on the Draft Decree implementing the 2014 Law on Investment

No.

Draft Decree
Reference

Issues

Recommendation

Pursuant to Article 6, application dossiers for investment projects


submitted to the authority must be in Vietnamese; in case there are
some documents in foreign languages, the investor must submit the
original document in the foreign language.

The Implementing Decree should set out in details the


requirements for the original foreign documents in
application dossiers.

It is unclear what are the requirements for the original foreign


documents, whether they need to be legalised with the relevant
embassy/consulate or whether it is sufficient to have it certified
true and correct copy by an independent lawyer/notary officer. We
further note that in certain cases, it is not possible for the investor
to submit the original document (e.g. incorporation certificate) but
only certified true copy of the original document and the
Implementing Decree should specifically permit that.
Page 1 of 8

Submission on The Draft Decree Detailing The 2014 Law On Investment

No.
2

Draft Decree
Reference
7.1

9.1, Schedule 3

19

Vietnam Business Forum, 2015

Issues

Recommendation

Article 7.1 regulates the prohibited industries and trades


prohibited which are provided in Article 6 and Appendices 1, 2 and
3 of the 2014 LOI. However, Appendices 2 and 3 do not mention the
prohibited industries and trades, but rather the Schedule of
chemicals and minerals and the Schedule of endangered,
precious and rare species of wild flora and fauna of Group 1:
Endangered, precious and rare species of wild flora and fauna
banned from exploitation or use for business investment
purposes.
Article 9.1 and Schedule 3 provide a detailed list of conditional
business lines and business investment conditions for foreign
investors.

The wording in Article 7.1 could be amended as follows:


"Article 6 of the Law on Investment sets out the industries
and trades in which business investment is prohibited and
Appendices 1, 2 and 3 of the Law on Investment set out the
goods, flora and fauna in which business investment is
prohibited."

While this may be a good intention of the lawmakers to make it


easier for foreign investors when considering their business lines,
we are concerned that discrepancies may arise between Schedule
3 list and other industry specific laws, in which case it will cause
great anxiety to foreign investors in order to work out which
conditions they need to comply with. The 2014 LOI also does not
envisage that any separate list will be provided for foreign
investors but all business investment conditions will be published
on the National Portal For Enterprises Registration (National
Portal). Under Article 9.5 of the Draft Decree, foreign investors
will still have to go to the National Portal after consulting the
conditions in Schedule 3 list to see whether there are other
conditions applicable for their business.
Article 19 provides conditions and procedures for applying
investment incentives, in which Article 19.3 sets out the starting
date for project implementation in respect of those investment
projects that do not have an IRC (as it is not required) to record the
relevant investment incentives. It is not clear why Article 19.3 is
necessary and in any event it may not be appropriate for the
Implementing Decree to specify the starting time in this case
because each respective authority providing investment incentives
may have their own law specifying when the investment incentives
Page 2 of 8

We suggest Article 9.1 and Schedule 3 list should be deleted


from the Implementing Decree to reduce the risk of any
discrepancy between different laws and lists in the future. In
practice, all business investment conditions should be
published on the National Portal and the authority can make
information on the National Portal friendlier to the foreign
investors by having a separate table or make it easy to search
by key words for all those conditions and business lines that
are only conditional for foreign investors.
In case the industry specific law and the updated conditions
on National Portal are inconsistent, the former shall prevail.

We recommend removing item (3) in Article 19 and leaving it


to the relevant authority providing investment incentives to
specify the starting date when incentives will apply. If Article
19.3 was to be kept, clearer indication of timing should be
provided in paragraph (c).

Submission on The Draft Decree Detailing The 2014 Law On Investment

No.

Draft Decree
Reference

26.1

26.3

Vietnam Business Forum, 2015

Issues

Recommendation

will start to apply. Further, paragraph (c) of Article 19.3 refers to


the date of decision on investment of the investors which is not
clear enough and ambiguities can still arise in specific cases, such
as when the issuance date of the investor's resolutions differs from
the date of the General Meeting of Shareholders.
Article 32.1(a) of the 2014 LOI regarding the authority of Provincial
People's Committee on in-principal approval states that:
"Projects to which the State allocates or leases out land without
auction, tendering or transfer; and projects with a requirement for
conversion of the land use purpose."
It is not clear in reading the law whether the word 'transfer' in this
case refers to State allocation or lease of land without a transfer.
We understand that 'transfer' in this case refers to a project using
land acquired by way of transfer from another existing land user
(not the State) under the Land Law.

We propose Article 26.1 of Draft Decree should be amended


as follows:
"1. The authority to decide in-principal approval of the
Provincial People's Committee is regulated at Article 32 of
Law on Investment.

The Implementing Decree should clarify this but Article 26.1 of the
Draft Decree just refers back to Article 32 of LOI without any
clarification.
Pursuant to Article 26.3, the investor shall submit 06 dossiers to
the investment registration agency of the locality in which the
project shall be implemented. In case of irregular dossiers, the
investment registration agency shall send notification in writing to
the investor within 3 working days from the date of dossiers receipt.
This provision does not clarify whether the investors could assume
that their dossiers are accepted if the investment registration
agency does not send any written notification after the 3 working
day period expires.

34.1 and 34.2.d

Under Article 34.2.d, in case the request for the issuance of IRC
associated with the establishment of an economic organisation, the
written request for issuance of IRC must provide the information of
charter capital and capital contribution ratio.
However, the provisions does not specify whether the 'capital of the
Page 3 of 8

Projects to which the State allocates or leases out land by


way of auction, tendering or project using land acquired by
way of transfer from existing land user do not need to go
through the process of in-principal approval of the Provincial
People's
Committee."

Article 26.3 may be clarified as follows:


"The investor shall submit 06 dossiers to the investment
registration agency of the locality in which the project shall
be implemented. If the dossier does not conform with
requirements in the law, the investment registration agency
must notify the investor in writing within 3 working days from
the date of their receipt of the dossier in order for the
investor to amend or update the dossier. The investment
registration agency must not request the investor to amend
or update their dossier after 3 working days from the date of
their receipt of the dossier.
There is two spelling mistake as Article 34.1 should refer to
the 2014 LOI, not "this law", and in Article 34.2(d), the word
"gi trnh" should be replaced with "gii trnh".
In respect of the time-limit for capital contribution, we

Submission on The Draft Decree Detailing The 2014 Law On Investment

No.

Draft Decree
Reference

Vietnam Business Forum, 2015

Issues

Recommendation

project contributed by the investor' must be equal to the initial


charter capital of the FIE at the time of establishment and whether
this capital can be contributed over a period longer than 90 days
prescribed under the Law on Enterprises.

understand that the 90-day term stipulates the commitment


of the investor towards the project. However, for those
projects which cost billion US dollars, it is impossible for the
investor to contribute such capital within 90 days. We
recommend that one out of the two following regimes should
be applied with a view to avoiding the situation where the
equity capital in the large project must be contributed within
90 days:
(1) The Implementing Decree should explicitly recognise that
FIEs may have an initial charter capital that is lower than the
total capital to be contributed by the investors (e.g. $10 vs
$40 in our example here). This could be made clear at
Article 34.2(d) by providing that the required information
includes "explanation regarding charter capital and capital
contribution ratio, including any schedule for contribution of
charter capital and any other schedule for contribution of
investment capital over the life of the project."OR
(2) The Implementing Decree should mention the term
"owner's contributed capital" instead of "charter capital" as
in Article 39.6 of the 2014 LOI. Specifically, Article 34.2(d)
should require "information on value of owner's
contributed capital, investment capital and the capital
contribution ratio". When applying for the issuance of IRC,
the investor only needs to provide information about the
proposed owner's contributed capital and loan capital. The
owner's contributed capital is not necessarily contributed
within 90 days. When applying for the ERC issuance, the
investor only needs to provide information about charter
capital and this amount should be contributed within 90
days.
Article 35.1 should be supplemented as follows:
"1. [] The investor shall not be required to submit any
additional dossier to receive the IRC after the in-principle
approval for the project has been issued".

For example, the investment capital of the project is $100 of which


$40 is capital contributed by the investor and $60 is borrowed. Does
the FIE need to have $40 as its charter capital at the time of its
establishment or can the FIE have a lower initial charter capital
(e.g. $10) which the investor will contribute within 90 days and the
rest $30 will be contributed as increased charter capital of the FIE
later on? In another word, will the investment licensing authority
accept that the initial charter capital of the investment project will
be less than 15-20% of the total investment capital (in this example
it is only 10% and in real life, could be much lower as investors,
especially those in large-scale investment projects, would not want
to pump too much cash into the project company at the initial stage
when there is no operating or construction activities to be
occurred?). We understand that although it is not written, the 1520% ratio requirement is often used by the authority in deciding
whether to approve an investment project in practice.

35.1

Article 35.1 of the Draft Decree provides that: "The investment


registration agency shall issue an IRC to the investor within a timelimit of five working days from the date of receipt of the written
decision on the investment policy", which is more or less the same
as regulated in the LOI.
Page 4 of 8

Submission on The Draft Decree Detailing The 2014 Law On Investment

No.

10

11

Draft Decree
Reference

38.1

39.1

39.2

Vietnam Business Forum, 2015

Issues

Recommendation

In our view, the implementing regulations should make it clear that


the IRC will be issued by the licensing authorities
within 5
business days after an in-principle approval for the project has
been issued i.e. the foreign investor does not need to re-submit
any application file for the IRC.
Article 38.1 of Draft Decree states that when investing by way of
acquisition of capital contribution or shares of an economic entity
(M&A), the foreign investors do not need to apply for the IRC.
However, it is not clear if the target company still has to go through
the procedure to apply for IRC for their existing investment projects
after completion of the M&A transaction.
This is because from the wording of Article 36.1.(b) of LOI, a target
company with the total foreign ownership after completion of the
M&A transaction exceeding 51% will be subject to the IRC
procedure for their investment projects and this could be
interpreted that they will need to apply for IRCs for all of their
investment projects including those that they have already had or
have been carried out before the foreign investors acquires the
target.
Article 39.1 of Draft Decree states that:
"The dossier, procedure to register the capital contribution, share
purchase in economic organization will be implemented as regulated
at clause 2 and 3 of Article 26 of LOI."
As clause 2 and 3 of Article 26 of LOI is not clear what documents
are required as part of the application dossier, article 39.1 should
clearly specify whether a copy of the acquisition agreements or an
evidence of payment of the purchase price by the foreign investor
will be required as a part of the registration file. From the wording
of Article 39.1 of Draft Decree and Article 26.2 of the 2014 LOI, we
think that there is no such requirement.
Article 39.2 of Draft Decree states that the Department of Planning
and Investment will issue a notice regarding the registration of
capital contribution, share purchase in economic organization.
However, it is not clear under the Draft Decree which division of the
Page 5 of 8

The Implementing Decree should clarity this uncertainty and


it is recommended that no IRC will be required for the target
company. When a foreign investor submits their application
dossier for the M&A approval, the licensing authority will
have checked the required conditions of the foreign investors
and the target company before issuing an approval for the
M&A transaction to process. Therefore, an additional IRC for
the target company is not necessary.
Article 38.1 should be amended as follows:
"[1. ] In this case the investor and the target company do
not need to conduct the procedure for issuance of Investment
Registration Certificate."
Article 39.1 of Draft Decree should be amended as follows:
"39.1 The dossier, procedure to register the capital
contribution, share purchase in economic organization will be
implemented as regulated at clause 2 and 3 of Article 26 of
LOI. Besides the required documents in Article 26.2 of LOI,
the foreign investors do not need to submit any other
documents."

There is a spelling mistake as the words "cc p ng"


before "cc iu kin sau:" should be removed from Article
39.2.

Submission on The Draft Decree Detailing The 2014 Law On Investment

No.

12

Draft Decree
Reference

40.1

Vietnam Business Forum, 2015

Issues

Recommendation

DPI will have such authority (i.e. foreign investment division or the
business registration division). We propose that the foreign
investment division will have the authority to review the registration
as the registration relating to foreign investors.
Article 40.1 of Draft Decree states that within 30 days from the date
of issuance of IRC, foreign investors shall perform procedures for
registration of economic organizations establishment.

Article 39.2 of Draft Decree should be amended as follows:


"39.2 Foreign investment division of the Department of
Planning and Investment issues the notice []"

The period of 30 days since the issuance of IRC indicates that the
application file for issuance of IRC and ERC must be submitted at
different points of time. As noted in our general comment, we are of
the view that foreign investors should not be required to perform
any additional procedures to register the new FIE but this process
could be handled automatically and internally between the foreign
investment offices and the business registration offices of the
relevant DPI.
Further, this procedure would result in the following problems:
(i) Will the investment incentives in the IRC for foreign investors be
recorded in the ERC for FIEs (these incentives are applicable to the
enterprises, not the investors)?
(ii) If the investment incentives are fully recorded in the ERC, in
case of amendment or addition to investment incentives, must IRC
and ERC be amended?

13

41

(iii) The period of 30 days is too short for the investors to prepare
the application file for the issuance of ERC.
Article 41 only clarifies the exceptions where an investor does not
need to provide an escrow deposit for the performance of the
investment project.
However, the implementing regulations do not specify the
procedure for paying and refunding the performance bond as
required under the 2014 LOI.
Page 6 of 8

With a view to simplifying the procedures of application for


the issuance of IRC and establishment of the enterprise, we
suggest removing Article 40.1 and replacing it with another
regime as follows:
- The investment registration agency shall work internally in
order for the foreign investor to submit only one application
dossier at the investment registration agency and such
dossier will be automatically transferred to the enterprise
registration agency.
- Both IRC and ERC shall include the provisions of investment
incentives.
- In case of amendment or addition to investment incentives,
only ERC needs amending and the amended ERC shall be
applicable in priority.
- If this proposed regime could not be applied, we
recommend the Government to prolong the 30 day period
for preparation of application file for the issuance of ERC.

We recommend that the Draft Decree should regulate the


procedure for making the escrow deposit and for refunding
the performance bond e.g. time, method to calculate the
deposit, the sum of money refunded at different stages
regarding the schedule of the investment project, etc.
The Decree should also regulate all circumstances the
escrow deposit shall not be refunded.

Submission on The Draft Decree Detailing The 2014 Law On Investment

No.
14

15

Draft Decree
Reference
54.1

72.1

Vietnam Business Forum, 2015

Issues

Recommendation

Pursuant to Article 54.1, "economic organizations conducting


investment projects" must submit a report to the investment
registration agency and the local statistics agency every month
with very detailed information about the progress of the investment
projects.

The economic entities should not be required to provide


monthly reports and for statistical purposes, the investment
authority and statistics agency can obtain such information
from the relevant government agencies. If it is necessary for
the investment licensing authority to monitor the progress of
the investment project implementation, we suggest that
annual reports or half-yearly reports should be adequate for
such purpose.

We have significant concerns that this is an unduly onerous


reporting obligation on the companies, primarily FIEs, and a
duplication of many other types of reports that FIEs have already
had to do otherwise with the Tax Department, Customs or
Department of Labour, Invalids and Social Affairs.
Pursuant to Article 72.1 of Draft Decree, FIEs with IC are entitled to
continue their activities under the issued IC and the old Charter.
It is unclear whether this provision is also applicable to companies
that did not register to operate under the Law on Investment 2005.

16

75, 77

17

Example
relating to IRC
and ERC

Articles 75 and 77 provide the transitional provisions for investors if


they want to amend an existing IC for changes in the investment
project and in the FIEs respectively. Accordingly, new IRC or new
ERC will be issued with all the amended and unchanged contents
but there is no mention if the new IRC or ERC will replace the
existing IC wholly or partly. It will also be practically confusing if
the old IC is not replaced in whole but only partly and investors
have to maintain partly valid pre-2014 law document (IC) and post2014 law documents (IRC and ERC).
We would like to point out one remaining issue regarding IRC and
ERC.
For instance, a wholly foreign company sells 50% of capital
contribution to another foreign investor. Pursuant to the draft
Decree, the two following steps must be done:
(i) Register the M&A; and
(ii) Register to amend the ERC to record the change of the new
member.
Page 7 of 8

Modification is needed to avoid contradiction between Law on


Enterprise and Law on Investment.
It should also make clear whether companies not reregistered under Law on Investment 2005 are entitled to
continue operating without any further procedures.
We recommend that while it is not compulsory for companies
operating under an IC to take any step to convert it into the
new documents, if there is any request for amendment of the
existing IC like in these cases, the authority should just take
this opportunity to replace all pre-2014 law documents (IC,
investment licences) with the new IRC and ERC for
conformation with the 2014 LOI and easier administration in
the future.
We propose that whenever the amendment of the IRC is
required, the investment registration agency should record
the new investor in the IRC to put the investors' mind at ease.

Submission on The Draft Decree Detailing The 2014 Law On Investment

No.

Draft Decree
Reference

Vietnam Business Forum, 2015

Issues

Recommendation

As we understand from the Draft Decree that the IRC needs not
amending, there would be some issues arising as follows:
The name of the new investor is not reflected in the IRC. As
a result, inconsistency between IRC and ERC in regard of
the investors will be raised.
In case the IRC is amended to reflect the change of other contents,
will the name of the new investor be recorded in the IRC?

Page 8 of 8

Comments on draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

COMMENTS ON DRAFT DECREE GUIDING THE IMPLEMENTATION OF A NUMBER OF


ARTICLES OF THE 2014 LAW ON INVESTMENT

Prepared by
Nagashima Ohno & Tsunematsu, Hanoi Branch
Articles

Comments

Article 6: Applicable languages

The language of the provision is not clear. It is

[] In case the investment project

understood that the original foreign language version

dossier

and

is the original copy of a document. However, for certain

materials in foreign languages, the

documents (e.g. Incorporate Certificate) of a foreign

investor shall submit the original foreign

investor, this is only a copy of the original version and

language versions thereof.

that copy must be legalized.

contains

documents

Moreover, this provision is silent on whether or not a


notarized Vietnamese translation of a document in
foreign language is required.
We suggest amending as follows:
[] In case the investment project dossier contains
documents and materials in foreign languages, the
investor shall submit the original foreign language
versions or a legalized copy of the original language
versions, and the notarized Vietnamese translation
thereof.
Article 9 and Schedule III: Conditional

Schedule III of the Draft Decree repeats the restriction

businesses applicable to foreign

under

investors

industries, the restrict periods have been expired but

commitments

to

WTO.

Regarding

certain

remain appear in Schedules III. To make Schedule III


clearer, we suggest removing the restrictions that have
been expired.
Article 20: Adjustment and

Under Article 20.1, the investor may request the

supplementation of investment

Investment Registration Authorities to adjust or update

incentives

the investment incentives recorded in its Investment


Certificate. However, this Article does not provide the
required documents and procedures to be followed to
obtain extra incentives. The Draft Decree should set
forth such documents and procedures.
Under Article 20.2, the investor must return the
benefits previously awarded if it fails to meet the
Page 1 of 3

Comments on draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

conditions to eligible for such incentives. This provision


may create negative effects on the investors operation
and put the investor in a precarious situation. Of
course, the investor will not be eligible for incentive if it
no longer satisfies the incentive conditions. However,
the withdrawal of incentive should not be retroactive if
the investor fails to meet the incentive conditions
without its faults.
We

suggest

retaining

Article

28.2

of

Decree

108/2006/ND-CP that provides If, during performance


of an investment project, an investor fails to satisfy
conditions for enjoying investment incentives, the
investor shall not be entitled to such incentives.
Alternatively,

it

is

advisable

to

set

forth

the

circumstances under which the investor must return


the benefit previously awarded.
Artciel 24: Procedures for investment

Which article in LOE this Article 24 of the draft decree

preparation in island, border and

legally base on? The decree cannot provide unfavorable

littoral communes, wards and

condition to foreign investor which is not in the LOE.

townships
Articles 26.3 and 27.3: Authority,

It is requried that the investor must file at least one/two

dossiers and procedures for project

original copies of dossier. In practice, it take time to

preliminary acceptance by provincial

prepare an original copy. It may trouble the investor if,

level People's Committees/ Prime

upon filing the dossier, the authorities request more

Minister

original copy of the dossier. Please give an exact


number of the original copies (e.g. two or three copies)
that the investor must submit.

Article 30: Dossiers required to amend

According to Article 30.1.(g), the application dossier

investment policies

must contain a letter issued by the taxation authorities


to certify the performance of tax payment obligation. In
practice, it takes time and effort for a company to
obtain

confirmation

letter

from

the

taxation

authorities. Meanwhile, it would be easier for the


Investment Registration Authorities to request the tax
authorities to provide such letter. To create favorable
conditons for investors, we suggest removing this
requirement.
Page 2 of 3

Comments on draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

Article 41: Guarantee for the project

Neither this Article and Article 42 of the Law of

performance

Investment mention to: (i) the state authorities in

Article 41.2 provides:

charge of determining the escrow amount; (ii) the

The escrow amount to guarantee the organization where the escrow amount is hold (e.g.
project implementation shall be of 1% to

bank, State Treasury); (iii) the date on which the

3% of the project capital, subject to the

esscrow amount must be deposited; and (iv) who will be

size, nature and schedule of each

eligible to the interest earned on the escrow amount.

project.

We suggest specifying these matters in the Draft


Decree.

Article 54. Reporting content of reports

It is required that the company must file

montly report

and reporting period of economic

on the contribution of Charter Capital, Investment

organization implementing investment

Capital in terms of capital resources, investment items,

projects

net revenue, import, export, labor, taxes and amounts


payable to the State Budget. Besides, the company
must file quarter reports and annual report.
The requirement on monthly report may burden both
the company and the state authorities. In practice, it
take time to a company to collect data to prepare a
monthly report. Meanwhile, in practice, the officers of
Investment Registration Authorities in big cities (i.e.
Hanoi City, Ho Chi Minh City) are always overloaded and
seem to not have sufficient time to read all the reports.
Therefore, we suggest to simplify the contents of a
montly report (i.e. only limits to the material matters
such as the contribution of Charter Capital and
Investment Capital).

Page 3 of 3

Comments on draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

COMMENTS ON DRAFT DECREE GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF


THE 2014 LAW ON INVESTMENT

Prepared by
TMI Vietnam

Abbreviated words and phrases:


1.
Decree 108 means Decree No. 108/2006/ND-CP dated 22 September 2006;
2.
ERC means enterprise registration certificate;
3.
IRC means investment registration certificate;
4.
LOI 2014 means Investment Law No. 67/2014/QH13 adopted by the National Assembly on 26 November 2014;

Current Draft
Circular
Article 2

Article 2.4

No

Article 6

Existing
regulations

Article 4 of
Decree 108

TMIs Comments

Recommendation

The phrase Investment Law of 2005 is used twice in this Draft


Decree (i.e., in the definition of Investment Certificate and that
of Investment licenses and Investment incentive certificates)
but it has not been defined yet.
The word including is used many times in this Draft Decree.

There should be a definition of Investment Law of


2005 to ensure the use of such phrase is
consistent throughout the Draft Decree.

However, for the interpretation of this word in practice, it can be


interpreted as either (a) including, without limitation to (this is
the common interpretation of lawyers and investors) or (b)
comprising/consisting of (this is the common interpretation of
the State authorities). Accordingly, this cause may
controversies while implementing the regulations in practice.
Article 6 of the Draft Decree provides that the investment
project dossier must be made in Vietnamese language.
However, there is no definition of investment project dossier in
this Draft Decree, and it is unclear whether this phrase also
covers other phrases having the word dossier, such as
applicationdossier investment project preliminary acceptance
(as provided in Article 26.2 of this Draft Decree) or application
dossiers for preliminary acceptance adjustment (as provided in
Article 30 of this Draft Decree).
Page 1 of 7

To avoid the potential controversies, this word


should be consistently used as including, without
limitation to, which is commonly and globally
recognized.

Article 6 of the Draft Decree should be revised to


make clear its scope of governance.
Otherwise, Article 2 of the Draft Decree should be
added with a new definition of investment project
dossier or application dossier, as the case may
be, and this definition should be used consistently
throughout the Draft Decree.

Comments on draft Decree guiding the 2014 Law on Investment

No

Current Draft
Circular

Article 6

Article 6

Article 6

Vietnam Business Forum, 2015

Existing
regulations

TMIs Comments

Recommendation

Article 4 of
Decree 108

Since the word dossier and the phrase having the word
dossier are used inconsistently in this Draft Decree, there
would probably be disputes between investors and the State
authorities relating to the matter of whether a specific
document included in the dossier must be made in Vietnamese
language or not.
In this Article 6 of the Draft Decree, due to the lack of the
definition of investment project dossier and while Article 6 of
the Draft Decree requires the language of the investment
project dossier to be Vietnamese, it will unclear whether the
language of certain agreements/contracts which must be
included in the dossier (for example, the capital/share transfer
agreement or joint venture agreement) must also be made in
Vietnamese or not.

Article 6 of the Draft Decree should be revised to


make clear its scope of governance.

Article 4 of
Decree 108

Article 4 of
Decree 108

If it is a must, it will not be reasonable to foreign investors


who cannot read documents in Vietnamese and who are not
confident in signing on documents in Vietnamese.
Article 6 of the Draft Decree does not clarify which language of
the application dossier will prevail in case of discrepancy, while
Article 4 of Decree 108 clearly regulates this matter.
Due to the lack of this clarification, in case of discrepancy
between the Vietnamese version and the foreign language
version, the foreign investor wants to refer to the foreign
language version as it is the version that the investor fully
understand, but the licensing authority does not agree and still
refers to the Vietnamese version. As a result, the contents of
the IRC may not be satisfactory to the investor.
Article 6 of the Draft Decree provides that In case the
investment project dossier contains documents and materials
in foreign languages, the investor shall submit the original
foreign language versions thereof.
Page 2 of 7

Otherwise, Article 2 of the Draft Decree should be


added with a new definition of investment project
dossier or application dossier, as the case may
be, and this definition should be used consistently
throughout the Draft Decree.

Article 6 of the Draft Decree should be revised to


provide that In case of discrepancy between the
Vietnamese and the foreign language version of
the application dossier, the foreign language
version shall prevail.

This sentence of Article 6 of the Draft Decree


should be removed.

Comments on draft Decree guiding the 2014 Law on Investment

No

Current Draft
Circular

Article 7.1

Article 9.1

Article 10.1

Existing
regulations

Vietnam Business Forum, 2015

TMIs Comments

Recommendation

This document is vague and may lead to a scenario where the


foreign investor does not want to prepare the foreign language
version of the application dossier (for example, the foreign
investor totally trusts its lawyer and does not want to spend
time to sign the foreign language version), but the foreign
investor still has to do so as required by this article of the Draft
Decree.
Article 7.1 of the Draft Decree states that Banned investment
and business lines are specified in Article 6 and Annexes 1, 2
and 3, Investment Law.

The phrase and Annexes 1, 2 and 3, Investment


Law of this Article 7.1 of the Draft Decree should
be removed.

However, Annexes 1, 2 and 3 of the LOI 2014 only provide the


list of narcotic substances, chemicals and minerals, and rare
and/or endangered species of wild fauna and flora rather than
banned investment and business lines.
Article 9.1 of the Draft Decree provides that Annex III of the
Draft Decree will specify all investment and business eligibility
criteria for foreign investors.

Article 9.1 of the Draft Decree should be revised to


provide that this Draft Decree will prevail over
other decrees of the Government, and the relevant
authorities should ensure that the list in Annex III
Although it is good for foreign investors to collect such criteria from of this Draft Decree must always be very well
several decrees of the Government and provide a consolidated list of updated in correspondence with other decrees of
investment and business eligibility criteria for foreign investors in the Government.
only one legal document, there is a possibility that any of other
Decrees
of
the
Government
has
been
amended/replaced/supplemented but the list in Annex III of this
Draft Decree is not amended/replaced/supplemented accordingly.
In addition, if there is any discrepancy between the criteria
mentioned in the list in Annex III of this Draft Decree and the
criteria mentioned in another decree of the Government, it is
unclear about which one will prevail.
Article 10.1 of the Draft Decree states that The List of conditional
investment and business lines (hereinafter collectively referred to
as investment and business lines).
Page 3 of 7

Article 10.1 of the Draft Decree should be revised


to provided that The List of conditional investment
and business lines as provided in Annex 4 of the

Comments on draft Decree guiding the 2014 Law on Investment

No

10

Current Draft
Circular

Article 10.2

11

Article 25.2(b)

12

Article 30.1(b)

Existing
regulations

Vietnam Business Forum, 2015

TMIs Comments

Recommendation

Investment Law (hereinafter collectively referred


It is unreasonable to use the phrase investment and business to as conditional investment and business
lines as the abbreviated one for the phrase conditional investment lines)
and business lines because the word conditional is the most
important word but was omitted.
Article 10.2 of the Draft Decree provides that Investment and Article 10.2 of the Draft Decree should be revised
business eligibility criteria shall be defined in normative to provide that Investment and business eligibility
regulations enacted by the National Assembly and National criteria shall be defined in normative regulations
Assembly Standing Committee.
enacted by the National Assembly and National
Assembly Standing Committee and also in
However, Article 7.3 of the LOI 2014 stipulates that Conditions for international agreements to which the Socialist
making investments in the business lines mentioned in Clause 2 of Republic of Vietnam is a signatory .
this Article are specified in the Laws, Ordinances, Decrees, and the
international agreements to which the Socialist Republic of Vietnam
is a signatory.
This means Article 10.2 of the Draft Decree does not refer to
international agreements, so this article of the Draft Decree is
not consistent with the LOI 2014.
Article 25.2(b) of the Draft Decree refers to an investment
project proposal but this Draft Decree has no definition or
regulation on this investment project proposal.

Article 30.1(b) of the Draft Decree requires the investor to


submit Copies of personal ID card or passport for private
individuals; copies of Incorporation certificate or other
equivalent documents certifying the legal status for institutional
investors, which the investor already submitted at the time of
applying for the project preliminary acceptance, even though
there is no change to the investor of such project.
Page 4 of 7

This Article 25.2(b) of the Draft Decree should be


revised to provide that For started investment
projects, the investor shall submit reports on the
progress of the investment project up to the point
of applying for the Investment certificate, instead
of making project proposal and complete the
procedure specified in Article 35.2 of this Decree
Article 30.1(b) of the Draft Decree should be
revised to provide that these documents are only
required in case there is any change to the
investor of the project (as mentioned in Article
30.1(dd) of the Draft Decree).

Comments on draft Decree guiding the 2014 Law on Investment

No

Current Draft
Circular

13

Article 34.1

14

Article 34.2

Existing
regulations

Vietnam Business Forum, 2015

TMIs Comments
Because of this requirement, the investor will have to spend time
and money to prepare such document(s) again, and the licensing
authority will have to receive unnecessary document(s) as
attached in the application dossier.
Article 34.1 of the Draft Decree states that For projects not subject
to preliminary acceptance specified in Articles 30, 31 and 32,
Investment Law, investors shall submit application dossiers as
specified in Article 33.1 of this Decree. However, Article 33.1 of
the Draft Decree refers to investment and business eligibility
criteria instead of listing out the documents which must be included
in an application dossier.
Article 34.2 of the Draft Decree states that In case the
application for investment certification is associated with the
creation of an economic organization.

Recommendation

The cross-reference in Article 34.1 must be


revised.

To avoid any misunderstanding and to avoid any


conflict with the provisions of the LOI 2014, this
Article 34.2 should be removed entirely.

Based on the plain reading of this provision, it may be interpreted


that the foreign investor can concurrently conduct (a) the
registration of the investment project (i.e., applying for the IRC) and
(b) the registration of the establishment of the economic
organization (i.e., applying for the ERC).

15

Article 37.1(a)

However, this provision is contrary to the provision of Article


22.1 of the LOI 2014, which states that Before establishing an
economic organization, the foreign investor must have an
investment project and apply for an [IRC] and which means
the foreign investor must register the investment project to
obtain an IRC first before registering the establishment of the
economic organization to obtain an ERC, and also the provision
of Article 36 of the Draft Decree, which reiterates Article 22.1 of
the LOI 2014.
Article 37.1(a) of the Draft Decree mentions about
incorporation certificate. However, pursuant to Articles
26.2(b), 33.1(b), 55.1(b), 59.2(b) and 61.2(b) of the LOI 2014 and
Page 5 of 7

The phrase or incorporation certificate in this


Article 37.1(a) of this Draft Decree should be
removed.

Comments on draft Decree guiding the 2014 Law on Investment

No

16

17

Current Draft
Circular

Article 39

Article 41

Existing
regulations

Vietnam Business Forum, 2015

TMIs Comments
also Articles 30.1(b) and 45.2(d) of this Draft Decree,
incorporation certificate is one of the corporate documents that
the foreign investor must attached to the application dossier,
and this is not a certificate issued by the Vietnamese licensing
authority under the LOI 2014.
Article 26.2(a) of the LOI 2014 requires that the application
dossier must include a written application for registration of
capital contribution or purchase of shares/capital contributions,
and Article 26.2(a) of the LOI 2014 also list out the key contents
of this written for registration.
However, neither the LOI 2014 nor the Draft Decree confirms
whether the investor can make the written application for
registration in its own way and format, as long as such written
application has all contents required by law, or the investor
must make such writtenapplication for registration in a form
prescribed by the Ministry of Planning and Investment.
Article 42 of the LOI 2014 and Article 41 of the Draft Decree
mention about the project implementation bond. However,
there are a number of uncertainties about these provisions, in
particular:
a. The LOI and the Draft Decree provide that the bond will be equal to
1%-3% of the total investment capital of the project, but the LOI
and the Draft Decree do not identify the authority having the power
to decide the amount of the bond;
b. The LOI and the Draft Decree provide that the amount of the bond
will depend on the size, nature and schedule of each project.
However, these provisions are very vague and will give the
competent authority very broad discretion to decide;
c. Article 41.5 of the Draft Decree requires that the bond must
be transferred to the State treasury in case the project is
terminated as specified in Article 28.1(g) of the LOI 2014.
However, other than this project termination circumstance,
the LOI and the Draft Decree do not clarify where the deposit
Page 6 of 7

Recommendation

Article 39 of the Draft Decree should be added with


a new sentence to confirm this point.

Article 41 of the Draft Decree should be revised to:


a. Identify the authority having the power to
decide the amount of the bond;
b. Specify the criteria to determine the amount of
the bond; and
c. Identify the place where the bond will be kept
until being refunded to the investor.

Comments on draft Decree guiding the 2014 Law on Investment

No

18

19

20

Current Draft
Circular

Article 44

Article 45.2(d)

Chapter VI

Existing
regulations

Vietnam Business Forum, 2015

TMIs Comments
will be kept i.e., whether the investor can open an escrow
account in a commercial bank in Vietnam and then deposit
the bond to such escrow account or the investor must
deposit the bond to the State treasury from the beginning.
Article 44 of the Draft Decree regulates the cases of investment
project liquidation.
However, this article does not confirm whether the investor
must also liquidate the company in case the investor decides to
liquidate the investment project and the company only has such
project.
Article 45.2(d) of the Draft Decree requires the application
dossier to have documents evidencing the legal status of both
the transferee and the transferor.
However, since the transferor is the current investor of the
project to be transferred and the licensing authority already has
documents evidencing the legal status of the transferor from
the time the transferor applied for the issuance of the IRC, it is
unnecessary to require the transferor to re-submit such
documents.
Chapter VI of the Draft Decree lacks of provisions mentioning
about the circumstance where an investor already submitted an
application dossier for the issuance of the investment
certificate before 1 July 2015 but the investment certificate (or
the IRC and the ERC, as the case may be) will be issued after 1
July 2015.
Due to this lack, the licensing authority may suspend the
issuance of the IRC and the ERC for certain period to wait for
further guidance of the Government or the Ministry of Planning
and Investment on this matter. If it is the case, it will cause
many problems for the investor.
Page 7 of 7

Recommendation

Article 44 of the Draft Decree should be revised to


provide that the investor does not need to liquidate
the company as long as the company has other
investment project(s) or the investor commits to
register a new investment project for the company
within a specific period (for example, within 90 days
as from the date of the project liquidation decision).
Article 45.2(d) of the Draft Decree should be
revised to provide that only the transferee is
required to submit documents evidencing its legal
status.

Chapter VI of the Draft Decree should have


provisions stipulating that the licensing authority
must issue the ERC and the IRC (instead of the
investment certificate) and must not delay the
licensing process.

Comments on the draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

COMMENTS ON DRAFT DECREE GUIDING THE 2014 LAW ON INVESTMENT

No
1

Article
Article 9

Content

Prepared by
HSBC Vietnam

HSBCs Comments

Article 9. Investment and business sectors and Practice / Reason for the change:
1. The list of conditions applicable for foreign investors (stipulated in Clause 1
conditions for foreign investors
1. The list of investment and business conditions Article 9 of this Draft Decree) is the most important information that foreign
applicable to foreign investors is set forth in Appendix III investors would need to be and have the rights to be fully aware of. Therefore,
we recommend that, in addition to the general list of industries/sectors with
of this Decree.
conditions for investment/business (as stipulated in Appendix 4 of the Law on
2. Foreign investors, economic organizations as prescribed Investment), the list of conditions applicable for foreign investors (detailed
in Clause 1 Article 23 of the Investment Law shall comply content of Appendix III of this draft decree) must be publicly published and
with investment and business conditions for foreign regularly updated in both Vietnamese and English on the official website of
investors in the following cases:
National Business Registration Portal
a. Carrying out investment projects through economic http://dangkykinhdoanh.gov.vn/HelpAndSupport/tabid/104/CategoryID/45/langu
organizations established under the provisions of age/en-GB/Default.aspx)
Article 22 of the Investment Law;
b. Making an investment in the form of capital 2. In addition, we also recommend re-arranging this article to make it easier to
contribution, purchase of shares/of capital portions understand.
contributed in economic groups according to the
provisions of Article 24 of the Investment Law;
Recommendation: We recommend the amendments as below:
c. Performing a business cooperation contract in Article 9. Investment and business sectors and conditions for foreign investors
accordance with the provisions of Article 28 of the 1. Foreign investors, economic organizations as prescribed in Clause 1 Article
Investment Law.
23 of the Investment Law shall comply with investment and business conditions
for foreign investors in the following cases:
3. Investment and business conditions for foreign a. Carrying out investment projects through economic organizations
investors, economic organizations as prescribed in
established under the provisions of Article 22 of the Investment Law;
Clause 1 Article 23 of the Investment Law are stipulated b. Making an investment in the form of capital contribution, purchase of
in laws, ordinances, decrees, international treaties to
shares/of capital portions contributed in economic groups according to the
which Vietnam is a party and applied in the following
provisions of Article 24 of the Investment Law;
forms:
c. Performing a business cooperation contract in accordance with the
a. Conditions on the foreign investors holding ratio of
provisions of Article 28 of the Investment Law.
charter capital in economic organizations;
b. Conditions regarding investment forms;
2. Investment and business conditions for foreign investors, economic
Page 1 of 3

Comments on the draft Decree guiding the 2014 Law on Investment

No

Article

Appendix
III

Vietnam Business Forum, 2015

Content

HSBCs Comments

c. Conditions regarding the scope of investment and organizations as prescribed in Clause 1 Article 23 of the Investment Law are
business;
stipulated in laws, ordinances, decrees, international treaties to which Vietnam
d. Conditions
regarding
Vietnamese
partners is a party. The list of investment and business conditions applicable to foreign
participating in the execution of investment activities; investors is set forth in Appendix III of this Decree and applied in the following
dd. Other conditions as prescribed in international forms:
treaties to which Vietnam is a party.
a.
Conditions on the foreign investors holding ratio of charter capital in
economic organizations;
4. Foreign investors carry out investment and business b.
Conditions regarding investment forms;
activities in different sectors must meet all conditions as c.
Conditions regarding the scope of investment and business;
prescribed for such sectors.
d.
Conditions regarding Vietnamese partners participating in the execution of
investment activities;
5. In addition to the conditions as prescribed in Clauses 2 dd. Other conditions as prescribed in international treaties to which Vietnam is
and 3 of this Article, foreign investors, foreign-invested
a party.
economic organizations which carry out investment and
business activities in sectors included in the List of 3. Foreign investors carry out investment and business activities in different
sectors in which investment is conditional as prescribed sectors must meet all conditions as prescribed for such sectors.
in the Appendix 4 of the Investment Law must also satisfy
investment and business conditions for such sectors as 4. In addition to the conditions as prescribed in Clauses 2 and 3 of this Article,
set out in Clause 3 Article 8 of this Decree.
foreign investors, foreign-invested economic organizations which carry out
investment and business activities in sectors included in the List of sectors in
6. Where international treaties on investment contain which investment is conditional as prescribed in the Appendix 4 of the
provisions on sectors in which investment is conditional, Investment Law must also satisfy investment and business conditions for such
or investment and business conditions for foreign sectors as set out in Clause 3 Article 8 of this Decree.
investors which are different from the provisions of the
Investment Law, relevant laws, ordinances, decrees, the 5. Where international treaties on investment contain provisions on sectors in
provisions of such international treaties shall prevail.
which investment is conditional, or investment and business conditions for
foreign investors which are different from the provisions of the Investment Law,
7. Foreign investors governed by international treaties
relevant laws, ordinances, decrees, the provisions of such international treaties
which contain different provisions on investment and
shall prevail.
business sectors and conditions may elect to apply
provisions of any of such international treaties.
6. Foreign investors governed by international treaties which contain different
provisions on investment and business sectors and conditions may elect to
apply provisions of any of such international treaties.
LIST OF SECTORS IN WHICH INVESTMENT IS
In addition to Appendix III of this Draft Decree (LIST OF SECTORS IN WHICH
CONDITIONAL - APPLICABLE TO FOREIGN INVESTORS
INVESTMENT IS CONDITIONAL - APPLICABLE TO FOREIGN INVESTORS),
Page 2 of 3

Comments on the draft Decree guiding the 2014 Law on Investment

No

Article

Vietnam Business Forum, 2015

Content

HSBCs Comments
recently, the MPI has published 04 other appendices (Appendix 01 to Appendix
04) LIST OF CONDITIONS FOR INVESTMENT/BUSINESS APPLICABLE FOR
FOREIGN INVESTORS and invited public comments. We observe that Appendix
III and those 4 Appendices have some parts overlapped (i.e. the descriptions of
the applicable conditions for each sectors). This is very confusing.
We request the MPI to clarify the connection between Appendix III and those 04
Appendices, and suggest that they are merged into one to avoid confusion. We
also recommend numbering the Appendices using the Roman numbering to
ensure consistency of the Draft Decree.

Page 3 of 3

Comments on draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

COMMENTS ON DRAFT DECREE GUIDING THE IMPLEMENTATION OF A NUMBER OF


ARTICLES OF THE LAW ON INVESTMENT 2014

Prepared by
ZICOlaw Vietnam

1. Clause 3 Article 1 of the Decree provides that This Decree applies to investors and
organisations, individuals relating to business investment activities. However, please
note that Clause 14 Article 3 of the 2014 Law on Investment has defined investors
means organisations, individuals relating to business investment activities.
Therefore, the phrase and organisations, individuals relating to business investment
activities in Clause 1 Article 3 of the Decree is redundant.
Recommendation: We suggest amending Clause 3 Article 1 of the Decree as follows:
3. This Decree applies to investors in accordance with the 2014 Law on Investment.
2. Clause 4 Article 3 of the Decree provides that The rights and obligations in respect of
individuals, family households, economic organisations which are incorporated and
conducting business investment activities are in compliance with the laws on
investments, laws on enterprises and relevant laws. The content of this Clause are not
consistent grammatically with Clauses 1, 2, and 3 and itself is also unclear.
Recommendation: We suggest amending Clause 4 Article 3 of the Decree to be read as
follows:
3. Having other rights and obligations applicable to investors in accordance with the
laws on investment, laws on enterprises and other laws relevant to business investment
activities of the investors.
3. The requirement provided in Article 6 of the Decree that investors must submit the
original document in foreign language in case the project dossiers include documents
and papers in foreign language is inappropriate, since in many circumstances the
investors only have one original copy for some documents (such as the Business
licence, Charter, Approval issued by competent authorities of the country where the
foreign investors headquarter, etc.).
Recommendation: We suggest amending Article 6 of the Decree to be read as follows:
Investment project dossiers and official documents to be submitted to Vietnams State
authorities shall be in Vietnamese. Where the investment project dossiers include any
document or paper in foreign language, the investor must submit the original copy
thereof or the certified copy or the legalised copy of such document in foreign
language.
4. The contents of Clause 2 Article 8 of the Decree are the same as the contents of Clause
7 Article 7 of the 2014 Law on Investment.
Recommendation: We suggest removing this provision.
5. The contents of Clause 5 Article 8 of the Decree are redundant and unnecessary, which
make the Decree wordy, since:
(i) The conditional business lines are specifically provided for in the Law on Investment;
and
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Comments on draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

(ii) Pursuant to Clause 3 Article 7 of the Law on Investment, the conditions for making
investment and business are provided for in the law, ordinance, decree and
international treaties.
Recommendation: We suggest removing this provision.
6. The headline of Article 9 of the Decree should be stated specifically as Business lines
and industries and conditions for making investment and business applicable to foreign
investors and economic organisations mentioned in Clause 1 Article 23 of the Law on
Investment since this Article is applied only to economic organisations set out in
Clause 1 Article 23 of the Law on Investment.
7. Point c, Clause 2 of Article 9 provides that foreign investors and organisations set out in
Clause 1 Article 23 of the Law on Investment when perform business cooperation
contracts must also comply with the conditions for making investment and business
applicable to foreign investors. We are of the view that this provision is inaccurate;
particularly, only when the parties enter into business cooperation contract in order to
conduct conditional business lines, then foreign investors and organisations set out in
Clause 1 Article 23 of the Law on Investment must comply with the conditions for
making investment and business applicable to foreign investors.
Recommendation: We suggest amending the Point c Clause 2 of Article 9 to be read as
follows:
c. To perform business cooperation contracts in accordance with Article 28 of the Law
on Investment in order to conduct conditional business lines as set out in Appendix 4 to
the Law on Investment and Appendix III to this Decree.
8. Clause 3 of Article 9 is redundant and unnecessary since the list of conditions for
making investment and business applicable to foreign investors and economic
organisations mentioned in Clause 1 Article 23 of the Law on Investment which is set out
in Appendix III of the Decree has included the restrictions in terms on form of
investment, capital contribution ratio, and scope of investment and business.
Recommendation: We suggest removing this provision.
9. Regarding Clause 5 of Article 9: Reference to foreign invested economic organisations
in this Article is inaccurate since foreign invested economic organisations which are not
under the categories mentioned in Clause 1 Article 23 of the Law on Investment shall
not comply with Clauses 2, and 3 Article 9 of this Decree.
Recommendation: We suggest replacing the above phrase with the phrase economic
organisations set out in Clause 1 Article 23 of the Law on Investment.
10. Clause 3 Article 19 of the Decree only sets forth the timeline for conducting investment
projects for projects mentioned in Clause 2 Article 19 of the Decree and not provides the
timeline for applying investment incentives in these cases.
Recommendation: We suggest providing specific provisions on the timeline for applying
investment incentives for cases set out in Clause 3 Article 19 of the Decree.

Page 2 of 4

Comments on draft Decree guiding the 2014 Law on Investment

Vietnam Business Forum, 2015

11. Clause 2 Article 20 of the Decree provides that in the course of investment project
implementation, if the investor fails to satisfy conditions for being entitled to investment
incentives, the investor must return the investment incentives already enjoyed
previously.
We are of the view that this provision is unreasonable if it is applied to all investment
circumstances. For instance, in an investment project in a rural area, at the beginning of
the project implementation, the investor satisfies the condition being using 500
employees and therefore it is entitled to investment incentives set out in Point d Clause
2 Article 15 of the Law on Investment. However, due to economic reasons, after 1 year of
project implementation, the number of employees used by the investor is less than 500.
Therefore, the provision requiring the investor to return investment incentives enjoyed
in 1 year before the time it fails to satisfy the conditions for investment incentives is
unreasonable.
Recommendation: We suggest amending Clause 2 of Article 20 to be read as follows:
2. In the course of investment project implementation, if the investor fails to satisfy
conditions for being entitled to investment incentives, the investor shall no longer be
entitled to investment incentives from the time of failure to satisfy conditions for
investment incentives.
12. Article 33 of the Law on Investment provides that within 35 days from the receipt of
investment project dossiers, the investment registration agency must notify the result
thereof to the investor; within 07 business days from the receipt of documents and
assessment report from the investment registration agency, the provincial Peoples
Committee shall make in-principle investment decision. As such, the provisions in
Clause 4 Article 26 of the Decree are unclear and inconsistent with the provisions in
Article 33 of the Law on Investment, since Clause 4 Article 26 of the Decree is unclear
on whether 35 days from the receipt of valid dossiers means 35 days from the date on
which the investment registration agency receives valid dossiers from the investor
(pursuant to Article 33 of the Law on Investment) or 35 days from the date on which the
provincial Peoples Committee receives valid dossiers from the investment registration
agency.
Recommendation: We suggest amending Article 26.4 of the Decree to be read as
follows:
4. Within 35 days from the date on which the investor submits valid investment project
dossiers to the investment registration agency, the provincial Peoples Committee shall
make in-principle investment decision. The order, procedure, contents of assessment,
and in-principle investment decision shall comply with Clauses 3, 4, 5, 6, 7 and 8 Article
33 of the Law on Investment.
13. Clause 1 Article 40 of the Decree provides that within 30 days from the issuance of
Investment registration certificate, the foreign investor must perform procedure for
registering establishment of economic organisation in order to implement the
investment project. However, in our opinions, the time for the foreign investor to
prepare application file for register the establishment of economic organisation should
be longer since there are several documents and dossiers for which the investor needs
much time to prepare (such as legalisation of the copy of Enterprise registration
certificate or equivalent document in accordance with the laws on enterprises, etc.)
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Comments on draft Decree guiding the 2014 Law on Investment

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Recommendation: We suggest amending Clause 1 Article 40 of the Decree to be read as


follows:
Within 60 days from the issuance of Investment registration certificate, the foreign
investor must perform procedure for registering establishment of economic
organisation in order to implement the investment project in compliance with Article 36
of this Decree.
14. Clause 1 Article 71 of the Decree provides that the investor shall continue implement
the investment project in accordance with the Investment licence, Investment incentive
certificate, Investment certificate or other documents of equivalent legal value issued by
competent State authorities.
However, Clause 4 Article 71 of the Decree provides that the investor must perform
other rights and obligations pursuant to the provisions of the Law on Investment and
this Decree. We are of the view that this provision can cause conflict with the
provisions in Clause 1 Article 71 of this Decree in case there are provisions in the Law
on Investment and this Decree stipulating other contents (in a negative way) different
from those set out in the Investment licence, Investment incentive certificate,
Investment certificate issued to the investor.
Recommendation: Therefore, for consistency purposes, we suggest amending Clause 4
Article 71 of the Decree as follows:
4. To perform other rights and obligations in accordance with the Law on Investment
and this Decree in case the provisions therein are not contrary to those set out in the
Investment licence, Investment incentive certificate, Investment certificate issued to the
investor.
15. The list of areas/localities entitled to investment incentives set out in Appendix II to the
Decree does not include the areas of Industrial zones, processing-export zones, hi-tech
parks, economic zones in accordance with Point b Clause 2 Article 16 of the Law on
Investment relating to Areas/localities entitled to investment incentives.
Recommendation: We suggest adding the above areas/localities to the List of
areas/localities entitled to investment incentives set out in Appendix II to the Decree.

Page 4 of 4

Comments on draft Decree guiding the 2014 Law on Enterprises

Vietnam Business Forum, 2015

JBAVS OPINION ON DRAFT DECREE IMPLEMENTING SOME ARTICLES OF THE


ENTERPRISE LAW, DRAFT DECREE TO IMPLEMENT THE LAW ON INVESTMENT AND
DRAFT DECREE ON REGISTRATION OF ENTERPRISES

Prepared by
Japanese Association in Vietnam (JBAV)
Narrow scope of authorization to the government
The Enterprise Law 2014 of Vietnam (the Enterprise Law 2014) explicitly authorizes the
government to issue regulations which govern some specific issues such as the details of
social enterprises, corporate seals, cross shareholdings, etc.
We note that the scope of the Decree to implement some articles of the Enterprise Law 2014
is so narrow. It only provides for social enterprises, corporate seals and cross shareholdings.
We heard this is because the government interpretsthese authorizations in the Enterprise
Law2014 that the government may not issue regulations governing other matters which are
not explicitly authorized to issue those regulations by the provisions of the Enterprise Law.
We admit that it is not appropriate for the government to issue the regulations which
substantially supersede the provisions of the law made by the National Assembly.
However, we note the Enterprise Law 2014 has only 213articles which arefar smallerthan
those of the company laws in other jurisdictions. For example, the Company Law of Japan
has 979 articles and the government decree to implement the Company Law has 238
articles.
Given that the Enterprise Law 2014 has small number of the articles, we believe there must
be many issues which should be clarified in the government decree to implement some
articles of the Enterprise Law. For example, as we pointed out in our opinions on the Draft
Enterprise Law 2014 last November, our members expressed their concern about to what
ratio (less 65% such as 51% or 50.1%) the majority voting may be reduced in the provision of
the charter of an LLC having more than one members, while the default majority rule is 65%
voting rights for a decision on ordinary matters of a members meeting. Although some MPI
official has expressed his view that this point should be clarified in a guiding legal normative
document to implement the Enterprise Law, we note the Draft Decree to implement some
articles of the Enterprise Law 2014 does not provide for this issue. We believe this issue
should be clarified in the Decree to implement some article of the Enterprise Law
2014,regardless of whether the Enterprise Law 2014 explicitly authorizes the government to
issue a regulation which governs this issue or not.

Page 1 of 1

Comments on draft Decree guiding the 2014 Law on Enterprises

Vietnam Business Forum, 2015

COMMENTS ON DRAFT DECREE GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF


THE LAW ON ENTERPRISES 2014

Prepared by
TMI Vietnam

Abbreviated words and phrases:


1.
ERC means enterprise registration certificate;
2.
LOE 2014 means Enterprise Law No. 68/2014/QH13 adopted by the National Assembly on 26 November 2014;
No.
1

Current Draft
Circular
Articles 18.2
and 19.2

Articles 18 and
19

Existing
regulations

TMIs Comments

Recommendation

Article 18.2 of the Draft Decree provides that In case an enterprise


maintains multiple seals, the seals must resemble each other entirely in
terms of content, design and size.

The sentence of In case an enterprise maintains


multiple seals, the seals must resemble each
other entirely in terms of content, design and size
of Article 18.2 of the Draft Decree should be
removed.

Given that Article 44 of the LOE 2014 and Article 18.1 of the Draft Decree allow the
company to decide on the number and the contents of the seals, the company
may want to have different seals for different persons in the company (for
example, one for the Chairman of the Members Council and another one for the
General Director). Accordingly, other than the company name and the company
ID number as required by Article 44 of the LOE 2014, the company may want to
include in the content of each seal the title of the person holding such seal.
Therefore, the provision of Article 18.2 of the Draft Decree seems to be
unnecessary and will limit the right of the company in deciding on the
contents of the seals.
Article 18 of the Draft Decree only regulates the number, the contents, the To ensure that the authorities do not challenge the
shape and the internal use rules of the seals, but it does not mention about company in the circumstance where the color of
the color of the seals.
the seals of such company is not red, Article 18 of
the Draft Decree should be added with a provision
At the moment, the color of the seals must be in red but in practice, stating that the company can also freely decide on
depending on the desire of the companys owner(s) and/or the desire of the the color of its seals.
seal holder(s), the color of the seal may vary.

Page 1 of 1

Comments on the draft Decree guiding the 2014 Law on Enterprises

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT DECREE GUIDING THE IMPLEMENTATION OF LAW ON ENTERPRISES 2014

Prepared by
HSBC Vietnam

No.

Article

Content

HSBCs comments

Not
available

Not available

Practice / Reason for the change:


As per our observation, there are many cases where entitled foreign shareholders sign a POA to
authorize an individual to attend the meeting and cast the votes on their behalf. Issuing
companies often require that the POA is notarized and/or consularized before presented at the
meeting for the entrance registration. The process of notarization and consularization in foreign
countries may take up to one month to complete. In the meanwhile, there is no market-standard
format of the POA. Consequently, foreign shareholders cannot start executing the POA (ie
signing, notarisng and/or consularising) until the issuing company announces the accepted
template for their meeting (which is often no sooner than 7 days prior to meeting date).
It is stipulated in Clause 3 Article 139 of the Law on Enterprises that the issuing company must
attached the template for POA in their invitations of the Shareholder meeting which are sent to
the investors. However, the standardized template for such POA (which is accepted by all issuers
in Vietnam) is not specified.
Recommendations:
We would propose that a standard template for the POA is stipulated in decree to support foreign
investors to exercise their benefits. We are pleased to provide a sample of the standard POA
template for your reference. Please refer to the Sample enclosed in this correspondence.

Page 1 of 1

Comments on the draft Decree guiding the 2014 Law on Enterprises

Vietnam Business Forum, 2015

COMMENTS AND RECOMMENDATIONS ON THE DRAFT DECREE GUIDING THE


IMPLEMENTATION OF THE 2014 LAW ON ENTERPRISES

Prepared by
ZICOlaw Vietnam

1. Conversion of social enterprises (SE) to enterprises


Clause 4 Article 17 of the Draft provides that if a SE converts to an enterprise when (i) it
changes its objectives, or due to social and environment issues, or (ii) it is approved by
competent State authorities, the SE shall comply with the procedures set out in Clauses
4 and 5. The reference to the procedure for conversion of SE is inaccurate.
Recommendation: We suggest amending Clause 4 Article 17 of the Draft as follows:
4. An social enterprise must register for conversion to enterprise in the cases as set
out in Points b and c Clause 1 of this Article. The dossiers, order and procedures for
registering conversion of social enterprise to enterprise shall comply with Clauses 5
and 6 of this Article.
2. Enterprises seal
a. Content of the seal
Clause 5 Article 21 of the Draft provides that the enterprises seal must not include the
contents set out in Article 20 of the Draft. Reference made to Article 20 is inaccurate
since Article 20 of the Draft does not relate to seal.
Recommendation: We suggest amending Clause 5 Article 21 of the Draft as follows:
5. In addition to information on enterprises name and enterprises code, the enterprise
may add other language and image to the contents of the enterprises seal, except for
cases as set out in Article 23 of this Decree. Languages used in the contents of the
enterprises seal must be formed from Vietnamese alphabets and letters F, J, Z, and W
and numbers.
b. Seal management
Clause 1 Article 24 of the Draft provides that current enterprises who are using seals
issued by public security authority shall not be required to notify their seal specimen to
the business registration agency. The phrase current enterprises here is inaccurate
and confused. Current enterprises can mean either enterprises established before the
effective date of the 2014 Law on Enterprises or enterprises established after the
effective date of the 2014 Law on Enterprises and currently using enterprises seal.
Recommendation: We suggest clarifying the term current enterprises as provided for
in Clause 1 Article 24 of the Draft.
c. Change of seal
Clause 3 Article 24 of the Draft provides that the enterprises legal representative must
send notice to the business registration agency in the cases of (i) making seal or making
new seal; (ii) destroying seal; (iii) changes in number, contents or form of the seal; or (iv)
changes in the seals ink colour. However, Clause 4 Article 24 of the Draft provides that
the order, procedure and dossiers for notifying seal specimen, seal destruction, seal
changing and changing other contents as set out in Clause 3 of Article 24 shall be
provided for in another decree of the Government. Therefore, Clause 4 Article 24 of the
Draft is inconsistent with Clause 3 of the same Article.

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Comments on the draft Decree guiding the 2014 Law on Enterprises

Vietnam Business Forum, 2015

Recommendation: We suggest amending Clause 4 Article 24 of the Draft as follows:


4. The order, procedure and dossiers for notifying seal specimen, seal destruction, seal
changing and seals ink colour changing as set out in Clause 3 of this Article shall be
provided for in Decree No. . /2015/ND-CP of the Government dated _________ 2015 on
enterprise registration.

Page 2 of 2

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

SUMMARY OF ROUNDTABLE DISCUSSION ON THE DRAFT IMPLEMENTING DECREE TO


THE INVESTMENT LAW OF 2014

8. 00 12. 00, April 22, 2015


Representative office of Ministry of Planning and Investment, 178 Nguyen
Dinh Chieu Street, Ho Chi Minh City
Participants List: Please see attached.

A.
-

MEETING AGENDA
Overview of the implementing decree to the investment law
Comments to the draft implementing decree to the investment law
Responses by drafters
Discussion
Conclusion

Time:
Venue:

B. MEETING SUMMARY
1. Overview of the implementing Decree to the Investment Law
Mr. Tran Hao Hung, head of the Legal Affairs Department, MPI
- The 2014 Investment Law and Enterprise Law will have eight implementing documents.
The Enterprise Law will have four implementing documents: (1) implementing decree to
the Enterprise Law regarding specific parts the National Assembly assigned to the
government toprovideguidance, (2) decree on company registsration, (3) implementing
decree on defense and national security corporations and combination of defense,
national security and business as well as (4) implementing decree to the Enterprise Law
on disclosure of information on 100%state-owned enterprises. The Investment Law will
have four implementing documents:(1) implementing decree for specific provisions of
the Investment Law, (2) implementing decree on offshore direct investment regulated by
the MPI, (3) implementing decree for specific types of portfolio investment including
shareholding, stock, bonds, investment through mutual funds and offshorebrokerage
financial institutions regulated by the State Bank of Vietnam (SBV) and (4) the Prime
Ministers decision defining hi-tech industries.
-

Release pathway: The drafting of the eight documents has finished. In early May 2015,
the two most important draft decrees on company registration and implementation of
the Investment Law - will be completed and submitted to the Ministry of Justice for
review. The Prime Minister and MPI Minister have noted that the implementing
documents must be released from July 1, 2015.

The focus of the roundtable discussion will be on the draft implementing decree to the
Investment Law.
+

Chapter I: Justification and key concepts and definitions in Article 2. The article
repeats a number of familiar definitions, including those for investment licenses,
investment certificates, foreign-invested enterprises and international treaties
Vietnam is a party to. Particularly, international treaties and Vietnamsschedule for
service commitments to the World Trade Organization also recognize these
concepts. As a result, theseconcepts must be revisited to ensure continuity in
application of the Investment Lawand transparency in its implementation.
Participants in the roundtable are requested to have inputs on whetherthese
concepts and definitions are needed and whether they closely reflect Vietnams
currentdevelopment stage.
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Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

The provision on the language used has changed from Decree 108. While this isa
technical matter, it is important because it involves preparation of project
documents, their legality and the supporting documents investors need to submit to
competent authorities.
+

Chapter 2:Industries/trades for which investment and business undertakings are


banned and those subject to conditional investment and business undertakings
represent the biggest leap forward of the 2014Investment Law. The decree will
provide detailed guidance to ensuresuch dynamic aspectsofthe Investment Law
deliver meaningful results for investors. The most important change is the approach
tothe lawsapplication, from what investors can do to what investors can do without
breaking the law. Historically, rulings on trades/lines of business for which
investment is banned or subject to conditional investment overlapped in hundreds of
legislative instruments. The new Investment Law provides a uniform and explicit list
of lines of business banned from investment or subject to conditional investment.
Anything other than the listed items is open for investment and business. For foreign
investors, the new rules not only have a bearing on more transparentinvestment
opportunities, but also address inefficiencies inexisting rules. The Foreign
Investment Administration is moving to aggregate all eligibility investment criteria
applicable to foreign investors to heighten the Investment Laws effectiveness and
how it relates to investors as well as provideregulatory agencies with the rationale
for awarding investment certificates.
Four consultative topics:(i) Regarding regulations on posting the list of
industries/lines of business and criteria for making investment/doing business on
the National Website for Company Registration, the Investment Law highlights
prohibited or conditional lines of business. Thus, the eligibility criteria respective of
the lines of business specified in the Investment Law need to be aggregated and
published on thisNational Website. Consultative issues relate to the legality of
investment/business engagement criteria that the government will publish on the
National Portal. However, what arethe legal consequences if the government fails to
post in full or accurately, the eligibility criteria for investment/business undertaking
andwhichregulations apply?If information posted on the national portal is erroneous,
what legal ramifications will it have?
(ii) Eligibility criteria for investment/business undertakings specifically applicable to
foreign investors:Such criteria should be formalized in the decree. As far as the
drafters are concerned, the criteria for 267 lines of business specified in the
Investment Law are applicable to all investors, regardless of being in-country or
offshore investors. The criteria are presented in the form of business licenses as
well as practice, legal capital andqualification certificates. But for foreign firms,
apart from the 267 listed lines of business, some international treaties also provide
on other business lines which foreign investors are also subject to other specific
criteria applicable to domestic investors. For example, foreign investors form a
business entity, acquire equity or shares in Vietnamese firms or enter into business
cooperation contracts. Suchcriteria immediately applieswhen a foreign investor
applies for an investment certificate in Vietnam,capital contribution or share
purchase procedures. The drafters want to incorporate these criteria and make
itaccessible to all foreign investors through an exclusive rule. There have been
different views on whether there should be aseparate list for foreign investors or for
inclusion in theoverall list of eligible criteria for the 267 lines of business.
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Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

(iii) Mechanisms to revise and update banned or conditional lines of business in the
list enclosed with the Investment Law and changes to investment/business
engagement criteria respective of such lines:These lines of business havebeen fixed
in the Investment Law, but the current regulatory system may undergo other
changes.
(iv) Listeditems in Article 9 -specific rulings on lines of business and eligibility
criteria applicable to foreign investors:Is the language inArticle 9 easy to
understand?
+

Chapter 3 - Investment incentives: (i) Applicability of investment incentives in Article


16 and particularly the list of lines of business and locations entitled to investment
incentives; the draft document has specific criteria for new investment projects and
business expansion projects. Roundtable participants inputs are welcomed. (ii)
Regarding recognition of incentives in investment certificates, there have been
different views on whether suchincentives should be stated in the investment
certificate, including incentive types, contents, levels and grounds to
awardincentives.

Chapter 4 - Investment procedures: Includes rules on procedures for investment,


preliminary investment undertakings decision-making at National Assembly and
Prime Minister levels,release of the investment certificates for foreign investors and
formation of economic operators,procedures for capital contribution and share
purchasesas well asprocedures for project implementation. Part oneprovides
common steps for an investment project and this is important because the
Investment, Land and Environment lawshave inconsistent rulings.
Parts 2 and 3 highlight procedures for preliminary investment undertakings
decision-making by the National Assembly and Prime Minister. The Investment Law
isclear on the procedures for preliminary decision-making. But, are current
Investment Law rulings sufficient and is further guidance needed?The
draftersintention is thatParts 2 and 3 will only make reference to provisions inthe
law, before the MPI provides templates for procedures specified in the Investment
Law. The MPI is preparing templates associated with investment project documents
and forms for the preliminary decision and investment certificates.
Part 4 provides on procedures for award of investment registration certificates and
incorporation of economic operators by foreign investors. Participants comments on
investment certificate dossiers are needed to ensure a connection between
investment and business certificates for a company following its receipt of the
investment certificate and changes made to investment and company registration
certificates throughout a companys life cycle.
Part 6 provides on the implementation of investment projects with details on project
termination, withdrawal of investment certificates, transfer of projects, project
phase-out and resolution of issues pertaining to project close-outs and wind-upsif
investors are not present in Vietnam. Article 41, Part 6, addresses project
performance security issues, with clear provisions on deposits required, locations,
schedules, conditions and release of funds. These are new provisions in the
Investment Law, for which the government has the authority to provideguidance.
Other topics for discussionare Article 43 on project suspension,Article 44 on project
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Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

close-outs,Article 45 on adjustment of investment certificatesand Article 47


withdrawal of investment certificates.

on

Chapter 5 - government stewardship for investment: Part 2, Chapter 5, provides on


reporting schemes. Are regulations on reporting frequency, contents and format
reasonable?

Chapter on the sunset clause:This chapter provides for the sunset clause related to
investment incentives, renewal of company registration and non-refundable transfer
provided for in the former Foreign Investment Law. These are important practical issues
that should be addressed to avoid any negative impact on businesses.

2. Comments to the draft implementing Decree to the Investment Law


Ms. Nguyen Lan Phuong Lawyer, Baker & McKenzie
- The draft decree makes extensive reference to the Investment Law. From a drafters
perspective, too much cross-reference to the underlying Investment Law makes the
decree hard to follow. From a foreign investors perspective as an implementer, these
three steps should be combined to form a closed circuit -preliminary investment
undertakings acceptance, release of the investment certificate and company
registration certificate. Accordingly, investors will only need one application with the
investment registration authority, toaddress procedures in line with prescribed timeline
steps. The cycle should apply new awards and adjustments to projects and firms. The
draft decree requires investors to file consulate certified copies onat least three
occasions in theadjustment of an investment project, which incurs significant financial
and time costs for investors. The draft also neglects to point out whether upon receipt of
the Investment certificate, the investor can create a business to roll out aproject as
starting a business is considered a different procedure.
-

Article 2 -terms and definitions:If a list is given, all key terms should be listed in full in
the draft decree. There is a term for which a definition should be added copy/ies. A
large number of rules require foreign investors to file copies of documents
demonstrating their legal status. Do these require normal or consulate certified copies?

Article 6 asks investors to submit originals in foreign languages. While investors can
provide originals for some documents, this is not the case with other documents for
which the investor has one original. It would be useful to make changes to the draft to
allowinvestors submitting anoriginal or legitimate copy in a foreign language.

Article 9 - List of eligibility criteria for investment/business undertakings applicable to


foreign investors: These are aggregated in Appendix 3 of the draft decree. There is
aview that a full list should be provided in the decree so investors have a single source
for reference. But as provisions of the law frequently change, suchcriteria should be
listed on the National Portal. In this way, whenever the law changes there will be no
need to change the implementing decree to the Investment Law. For example, the
Trans-Pacific Partnership (TPP) Agreement expected to be soon endorsed will enclose a
list of eligibility criteria foreign investors must comply with.
Additionally, Appendix 3 of the draft decree lists eligibility criteria to enter property
business under the Property Trading Law 2006, replaced bythe Property Trading Law
2014 with altered criteria.
Page 4 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

In respect of the timeline to release an investment certificate to a foreign investor in a


conditional field of investment, while the Investment Law specifies the certificate will be
released within 15 days, some specialized laws require consultation with relevant
ministries. Examples include franchising or dealerships under Decree 23, which should
be consulted with the Ministry of Industry and Trade (MOIT). Is 15 days sufficientfor the
investment certifying agency, including consultation with the MOIT?
-

Article 23. 1 points to the investment registration agency recommending project site(s)
for investors. This is vague as investors are unclear on whether the investment
registration authority is obliged to recommends project site(s)? The length of the
process and purpose of this clause is unclear.

Article 24: Investment preparation for projects located in areaswithdefense interests:


The draft requires investments in littoral towns, such as resorts, should consult the
Ministries of Defense and Public Security and other relevant ministries. Article 24 is
ambiguous as which ministries should be consultedif a coastal town is not adjacent to
any national security or defense site? Should any consultation be needed in this case?
Thus, a normal investment certification procedure should be used and the investment
certifying agency shouldconsult relevant ministries if the project site is near a defense
area.

Articles 26 and 27 preliminary acceptance: An accumulation of technical steps from


relevant agencies may result in a period longer than the 35 or 60-day timeline set forth
in the draft. Clear indication of the turnaround time for acceptance by the provincial
People's Committee and Prime Minister, while reasonable changes tothe total
timeframe are also made. Therearealso a considerable number of dossiers applying for
Prime Ministerialacceptance eight sets of applications, including two originals. What is
the purpose of requiring two original sets of documents?

Article 30. 1b procedures for making changes to preliminary acceptance: Paragraph 1.


b specifies that applicants must submit a copy of the personal identity paper, corporate
articles of association or other equivalent documents. Do investors need to submit
documents substantiating their legal status again only to make changes to other parts
of the investment certificate? Investor needs changes to the investor of the project,
Paragraph 1d requires the dossier include an agreement for project transfer and legal
background of the project recipient if there are changes to investors. The legal identity
documents in Paragraph 1. d should include copies of personal identity paper or ID
cards for individual investors, copies of articles of association or other equivalent
documents that certify the legal status of institutional investors.

Article 30 additional provisions for changes to investors in spin-offs, mergers and


acquisitions that do not require adjustments to preliminary acceptance, because an
investment project is an asset which accompanies the company when it is divided,
merged or acquired.

Articles 38 and 39 procedures for capital contribution, and equity buyback: There is no
specific rulings on procedures for preliminary acceptance in cases of adjustments of
preliminary acceptance. Should this procedure take place before, after or at the same
time asregistration procedures of Article 38? In terms of dossiers, as part of the
procedure for preliminary acceptance adjustments, investors already submit legal
background documents and the fund transfer agreement. In the procedure for foreign
Page 5 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

investment notification, investors have also submitted legal background, fund transfer
agreement and consulate certified copies. A self-contained process is needed, where
investors only once submit legal background documents and fund transfer agreements.
-

Article 40: Within 30 days after receipt of the investment certificate, investors must start
the procedure to register economic operator creation for implementation of the
investment project under Article 36 provisions. The company registration agency may
automatically grant foreign investors a company registration certificate. But ifthe
investor is requested to submit a different set of application dossiers; the previously
submitted application will not be required again. Also, is 30 days long enough for
applicants to supplyneeded documents for re-submission if theyneed consularization?

Article 41: Requiring investors deposits as project performance security. In the


regulation providing for thefivedays after the investor presents in full supporting
documents proving completion of procedures for land allocation, land lease, transfer of
land use rights and other necessary documents, the approach adopted is broad
asinvestors may not know which papers to submit to receive the 5% of deposit fund.
When an investor receives allocated or leased land and has completed required
procedures to start construction, the ultimate license needed will be the building
permit. Foreign investors should only submit a copy of the building permit to the
registration authority to meet this articlesrequirements.
The ruling requiring within fivedays after the investor presents supporting documents
proving completionof its obligations for accepting all construction work, plant and
equipment, and application for necessary licenses for operation: Many building work
take place through different stages, have different components and time durations
which could testinvestors. Also, drafters should know businesses do not need to ask for
acceptance of an authority to operate their plant and equipment and there is no paper
proving that an investor has completed registration as required. Additionally,
arebanking fees on the account of the investor and if not, how will theybe treated?

Article 54 regular reporting: Monthly and quarterly reports are similar and
measurements and outcomes reported will not differ much for most companies.
Monthly reports should be removed to ease reporting burdens for firms and projects.
Also, the draft does not provide procedures for firms to return investment registration
certificates or for a foreign-invested firm to turn into an entirely Vietnamese business.
The drafters can consider a waiver forthe investment registration certifying procedure
for foreign investors who finance up to 49% of the charter capital. This is because the
remaining domestic investors own 51% or more of the charter capital in this case and
theinvestment registration certifying procedure is waivered. Without such a waiver,
investors will undergo two steps. The first is for the domestic partner to form a
Vietnamese company, before transferring 49% of the companys charter capital to the
foreign investor. With this two-step procedure, investors do not needto perform the
investment registration certifying procedure.

It is unclear whether foreign investors starting a social enterprise must apply for
aninvestment registration certificate. In the case of non-government and non-profit
investors, what will happen with dossier requirements?For example, what if there are
no financial statements or bank accounts for the last two years? While many foreign
investors want to engage in social projects in Vietnam, theymust still go through normal
investment registration procedures.
Page 6 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

Ms. Ha Chi Lawyer, Allens


- Article 9. 1, Appendix 3 - list of investment fields for foreign investors: This list helps
foreign investors know what criteria applies, butsome are concerned
aboutinconsistencies between this list and criteria included under the Investment Law
and other specialized laws. We suggest removal of this appendix list from the draft
implementing decree and post the information on the National Portal. A different subcategory may be created for foreign investors on the National Portal to accommodate
information searches.
-

Article 34. 2 Award of the investment certificate and economic operator creation: The
application for the investment certificate must provide information on charter capital
and equity sharing. The new Enterprise Law requiresfor a limited liability company with
two or more members to have all charter capital paid in within 90 days after
registration. This timeline seems unachievable for large projects.

Part 3, Chapter 4 - procedures for changes to preliminary acceptance: While the


application for adjustment of preliminary acceptance included updated documents,
adjustments of preliminary acceptance appearno different tothe original preliminary
acceptance procedure under the Investment Law. For projects having been preliminarily
accepted and in need of adjustments such as in cases of changes to investors or
increased project scale), should a more simplified procedure be in place?

Article 35. 1 The investment certificate should be released within fiveworking days
after receipt of preliminary acceptance. Does this ruling mean investors do not needto
submit any other documents when applying for investment registration certificate? A
suggested addition to Article 35. 1 is: The investment registration certifying agency
shall grant the investment certificate to the investor within fiveworking days after
receipt of the preliminary acceptance decision, and the applicant must not submit any
other documents to have the investment registration certificate granted after the
preliminary acceptance has been awarded.

Article 38. 1: In case of capital contribution and equity buybacks, investors do not needto
perform the investment registration certifying procedure. But, does a Vietnamese
company needto perform the investment registration certifying procedure when the
foreign investor acquires equity in it? A Vietnamese company with 51% or more of
foreign investor-ownedcharter capital will be considered a foreign-invested firm.
Foreign investors in this case will needto perform the investment registration certifying
procedure for projects. If a foreign investor buys into an existing Vietnamese company
implementing on-going projects, and the Vietnamese company doesnot have investment
registration certificate for these on-going projects,willthe foreign company buying 51%
or more of equity needto apply for an investment registration certificate for current
projectsor does it only need an investment registration certificate for upcoming
projects?

Article 39. 1 Dossiers and procedures for capital contribution registration: Do any
other papers aside from those specifiedin Paragraphs 2 and 3, Article 26, Investment
Law, need to be submitted, such as copies of sales agreements or evidence of foreign
investors payment?

Article 54. 1 Reporting by economic operators: The monthly reporting is unnecessary


for firms, asannual or semi-annual reporting is sufficientif the investment registration
agency requires a project status update.
Page 7 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

Ms. Trang Nguyen Lawyer, VILAF


- Application of the new or old law: What happens if an application is filed under the old
law prior to July 12015, but the investment certificate is not released before July 1? Will
the licensing agency continue to grant a company the registration and investment
registration certificates in line with the old law, or return the application and ask for a
new one?The draft decree must have aspecific solution for this. It issuggested the
licensing agency uses the old law because the license granted under the old law is still
valid.
-

If a foreign investor acquires 70%, 80% or 90% of equity ina Vietnamese firm and files an
application before July 1 2015, some licensing agencies may agree to grant an
investment certificate recognizing foreign investorownership and the new investment
certificate will replace the current investment registration and company registration
certificates of the companies. But under the new Investment Law, there will be two coexisting papers the investment and company registration certificates. Will a single
investment registration certificate be valid?

Capital accounts of foreign investors: The Investment Law has a specific provision on
offshore investment capital accounts, but no specific rulings on inbound investment
capital accounts. Circular 19/2014/TT-NNHN provides guidance that when foreign
investors buy into a Vietnamese firm and receive an investment registration certificate;
it will become a foreign-invested firm and be allowed to set up a direct investment
capital account. But under the current Investment Law, foreign investors buying into a
domestic firm will no longer receive an investment certificate. If investors cannot have a
direct investment capital account, which account should they use to transfer equity
acquisition funds? The MPI is encouraged to workwith the SBV to introduce a specific
provision on transactional accounts for foreign investors buying into Vietnamese
companies.

Article 22. 3, Investment Law foreign ownership: Rulings on foreign investors


ownership in listed and public companies are subject to securities laws. The current cap
is 49% under the Prime Ministers Decision 55/2009/QD-TTg, but Article 22. 3.c states
that for otherthan public companies, the ratio shouldbe defined in specialized laws.
According to Article 22. 3, if a company is at first a public company before divestment
into a joint stock company, will foreign investors who own 49% of equity needto reduce
holdings from 49% under specialized laws. If foreign investors withdraw investment,
how will their interests be protected? To addressthis issue, two options are
recommended. Firstly, foreign investors can continue to hold the 49% equity or
secondlyif foreign investors withdraw their investment; rules should be in place to allow
such divestment to take place within at least fiveyears to avoid the sales ofshares that
may affect the companys wellbeing.

3. Responses by drafters
Mr. Tran Hao Hung Director of Legislation Department, MPI
- Investment procedures: The recommendation for a conjoint procedure incorporating the
three stages of making an investment (preliminary acceptance, investment certification
and starting a business) is reasonable. For foreign investors, the laws set aside the
procedure for investment certification and company registration. Of the two, the
investment certification procedure should be done first, before starting a
businessandconsistently adhered to. The drafters of the implementing decree to the
Investment Law, however, have designed a procedural cycle that, even with the two
Page 8 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

segregated licensing steps, can still provide utmost convenience for clients. Not all
projects or investors need to cover all the three steps of preliminary acceptance,
investment certification and starting a business. For Vietnamese investors, there is no
investment certifying procedure and only a few projects need preliminary acceptance.
Regarding concerns about the feasibility of the 15-day time line, other relevant settings
have been coherently designed to ensure achievability. The draft decree provides
criteria for licensing and dossiers. Also, investment/business engagement criteria will
be publicly and transparently disclosed to investors. Moreover, the draft decree no
longer provides on procedures and steps for consultation. With respect to import-export
and distribution by foreign investors, the MPI is in discussion with the MOIT to revise
Decree 23, regarding procedures and steps.
There is agreement that once preliminary acceptance is granted, investors will not have
to submit any furtherpapers for the investment certifying procedure. For projects
requiring all three steps of preliminary acceptance, investment certification and starting
a business, the draft decree is designed to avoid documentation overlaps. A second rule
is no repetition andissues considered atthe preliminary acceptance step will not be
revisited at the investment certifying stage. A third rule is that if a procedure is dealt
with by different agencies, such agencies will share results and use documentation
already submitted by applicants.
-

Procedures for capital contribution and share purchases in Vietnamese firms by foreign
investors: The draft will be morespecific on who needs to perform the acceptance
procedure for capital contribution and share purchases the recipient of the capital or
foreign investor? With capital contribution and share purchases, there is no investment
certifying procedure and only aprocedure toreview investment criteria if foreign
investors undertakecapital contribution and purchase shares from the businesses
within conditional lines of business that foreign investors are subject to or have 51% or
more equity. The drafters will furtherexamine the issue of foreign investors financing or
acquiring equity in firms operating under a previously granted investment certificate.

The drafters have noted the comment on transition of companies filing an application
prior to July 1, 2015, as it has not been addressed in the draft decree, and willensure
unnecessary conflicts are avoided. The drafters particularly noted concern on capital
accounts and will take action accordingly. Vilafis requested toprovide specific comments
on the interpretation of provisions to inform drafters fordiscussions with the SBV.

4. Discussion
Mr. Do Tien Thinh Director, Business Registration Supporting Center, MPI
- Procedural reform and single-window mechanism: The Enterprise Law and Investment
Law have clearly spelt out requireddocuments for application dossiers tostart a
business and get a Investment certificate. Compliance with the law is expected. To have
a closed circuit for dossier processing, the drafters can look at internal rules associated
with stewardship responsibilities of relevant agencies.
-

Regulations on capital contribution and share purchases: The drafters can consider
highlighting several instances where capital contribution and share purchases are
prohibited to maintain the quality of foreign investment.

Page 9 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

When a start-up is formed based on an investment project and more than 51% of equity
is transferred to a Vietnamese investor, an investment certificate is no longer required.
Rules are needed for cancellation of granted investment certificates. In addition,
drafters couldconsider allowing for the renewal of original investment certificates in
this case. Historically, before a start-up was formed the investment certificate granted
to foreign investors withanimportant part of investment incentives. New rules should be
in place to provideoptions tocancel the investment certificate,orin the case ofa
Vietnamese legal entity acquiring equity from a company created based on an
investment project, the procedure for investment certificate renewal should allow the
company to enjoy all previously available investment incentives.

Succession procedures in the event of abusiness split-up: If a five-member company


has two foreign individuals who want to split off to another company and take an existing
project and investment certificate from the parent company to the spin-off, what
procedure will apply?

Dossier components for foreign direct investment (FDI) companies: FDI companies
operating under previousrules have different governance schemes, dossier components
and denominations. As such, the sunset clause should recognize resolutions
fromgeneral shareholder or owner boards or an equivalent meeting. If not, rulings on
dossiers will not be complied with when the company submits different papers.

The time gap between investment and business registration certificates: Thirty days
could be increased to 60 days. Also, this provision couldbe supplemented with a rule on
non-implementation of business registration beyond the 60-day timeline. Two options
are possible. Firstly, if company registration is delayed an administrative sanction could
apply and company registration cancontinue. Secondly, the draft decree couldbe more
flexible to facilitate smooth business operations. If the 60-day milestone is passed and a
legal entity is not formed, investors must notify changes tobe made to the investment
certificate. The certificate will be updated and allow theinvestor to continue business
registration and avoid a penalty.

Reporting by FDI companies: The drafters should work with MPIs supervision and
statistics departments to consolidate relevant circulars with a uniform reporting
scheme. The current business registration procedure removed most reporting duties
for businesses in favor of a national database, while the Investment Law makes rulings
on the foreign investment portal. Reports from the foreign investment system should be
generated with the removal of the reporting duty for several kinds of reports. Online
report submissions could also be considered and integrated into the decree. Hard copy
reports could still be needed onspecific occasions in relation to project progress, but
reports can be consolidated into one package on a biannual or annual basis.

The Investment Law and Enterprise Law do not specify whether foreign investors and
individuals cancreate a private company and thedecree couldinclude provisions on this.
Regarding business registrationapplications, private firms do not need to submit an
investment registration certificate.

Use of national portal for company registration for publication of list of business lines:
The drafters couldconsider explicitly pointing out the portal is only a means of diffusion
of policies, laws and regulationsand does not have the validity ofa legislative document.
Ifthere is a discrepancy on the portal related to the list of conditional lines of business
and eligibility criteria, relevant specialized laws will apply.
Page 10 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

Mr. Pham Trung Kien - HCMC Department of Planning and Investment


- Investment project: According to the Investment Law, an investment project is a mix of
proposals for mid- or long-term use of funds to make investments or do business.
Opaquedefinitions will see firms and investment regulatory agencies struggle to know
identify investment projects. For example, a foreign investor starting a foreign whollyowned enterprise will need to address investment registration certifying and business
start-up procedures, and thenthecompany want to carry out a new project in another
municipality. In such a case, will the firm needto follow the investment registration
certificate procedure for a second or third project?
-

In the new Investment Law, the number of entities subject to needing an investment
registration certificate has been minimized, but some public administration issues have
emerged. For example, how will statistical data on foreign investment capital be kept as
ifit only comes from taking stock of active businesses based on investment registration
certificates, it cannot cover all foreign investment entering Vietnam. Moreover,
unreliable data couldmislead policy-makers or socio-economic governance.

An intertwined process for investment registration certification and business


registration:Several challenges may emerge, such as if the investment registration
agency is the authority of a export processing zone, industrial park or hi-tech park, the
company or business registration agency is the business registration division of the
provincial Planning and Investment Department. As such, having such a conjoint
mechanism in place will be difficult. The drafters will work for a more viable solution.

Investment incentives: Should eligible incentives be recorded inthe investment


certificate? If entitled project incentives are specified in the law, there is no need to
repeat them in the investment certificate. But for projects with off-the-chart incentives
or those reached through agreement between investors and the Vietnamese
government, incentives should be noted.

Investment certificate adjustments: Procedures related to adjustments to investment


certificates in specific cases, such as a mergers or acquisitions, should be clarified.

For foreign investors, the draft decree shouldprovide guidance on provisions from
international agreements Vietnam is a signatory to. Drafters are determined tohelp
licensing agencies quickly complete procedures and avoid wasting time consulting
relevant agencies. If investment is proposed forareas not open to the market, but there
is thepromiseof jobs and local investment attraction, will the licensing agency consult
relevant ministries or turn down such proposals?

Splitting investment and company registration certificates: Should investment and


company registration certificates content be consistent? For example, should a
projects purpose be aligned with business lines acompany is engaged in after getting
the investment registration certificate to start a business? If discrepancies occur, will
the business registration authority reject the business start-up application and do
regulations on capital, charter, contributions to project implementation need to be
aligned?, Do project term and company life cycles need to match and should
aninvestment or a business registration certificate be adjusted first and should aproject
company or project be terminated first? The drafters should clarify these points and it is
recommended adjustments or withdrawals are made in first-in, first-out sequencing.

Page 11 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

It is recommended thedetermination of the legal validity of investment certificates is


made through recognition of investorsregistered investment activities and not those
certified by a government agency for such registration. Civil transactions pertaining to
an investment registration certificate must comply with the laws.

Ms. Nguyen Vu Bao Ngoc Legal Department, Mizuho bank


- Article 42, Investment Law - guidance on deposits: Can banks and investors directly
apply this rule or should they await further SBV guidelines?Our recommendation is no
further guidelines are needed, as foreign investors expect concise and explicit rulings
without further guidance from other specialized authorities.
The currency for the deposit account needs to be made clear.
Refund of deposit fund: The deposit fund shouldbe returned to investors, plus interest.
Ifthe investor fails to see the project through and the deposit is handed over to the State
budget, clear rulings on how interest should be treated are missing.
-

Article 41. 4 - Commercial banks: Credit institutions should be usedas commercial


banks do not cover foreign bank branches.

Representative of Dong Thap Planning and Investment Department


- Article 24. 1 rules that foreign investors withprojects in islands and border communes,
wards or townships must notify an investment registration agency of theintended site.
Article 24. 2 specifies the investment registration agency consults relevant authorities
on the project site. In an inland border economic development zone approved in the
zoning phase, with inputs from relevant ministries, if a foreign investor registers the site
is it necessary to consult relevant authorities again?
-

Article 34. 1: The investment certificate application and proposed investment project
outlines can be combined for a more streamlined procedure.

Ms. Le Huynh Chi Loan TayNinh Department of Planning and Investment


- Article 13. 4 specifiesthat after the draft law is integrated in the law and ordinance
development agenda of the National Assembly, the MPI shall follow a simplified
procedure and protocol. There is, however, no clear indication as to what a simplified
procedure and protocol may be. Clarification of such simplified procedure is needed.
-

Article 14 procedure for revising investment and business undertaking criteria rulings:
Ministries and ministerial level agencies that want to revise investment/business
engagement criteria now need to consult the MPI. What happens with
investment/business engagement areas under MPI jurisdiction? There should be a focal
agency, preferably the MPI. When other agencies want to make changes to
investment/business undertaking criteria, they can file a proposal to the MPI which will
hold consultations with relevant agencies on the proposal. The MPI will then directly
follow procedures to revise the respective normative document.

Business Representative
- Timing for project implementation: Projects needing preliminary acceptance may
commence after the acceptance decision is released. But after the preliminary
acceptance is granted, the project cannot commence immediately asit must wait for the
start-up to be formed. Clarification of the project commencement timing is needed.
Page 12 of 14

Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

5. Conclusion
Mr. Tran Hao Hung Director of Legislation Department, MPI
- The drafters will further look into the preferred option of using a list of investment
incentivizing sites annexed to this decree vis--vis the equivalent list of Decree
218/2013/ND-CP, guiding the implementation of the Corporate Income Tax Law. As this
decree comes out at a later date and is more up-to-date, it is more likely to mass inputs
from local teams.
-

Intertwined investment procedures: A closed-circuit process integrating preliminary


acceptance, investment certification and start-up registration is recommended. As the
Investment Law has specifically identified these as three stand-alone steps, compliance
with the law is expected. The drafters will meet relevant MPI agencies to review the
three procedures, filter out overlaps, and facilitate businesses with simplified
procedures.

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Summary of roundtable discussion on draft Decree on the 2014 Investment Law

Vietnam Business Forum 2015

Appendix 1: List of participants


No.

Full Name

Position

Department

Provincial Autorities
1

Tran Hao Hung

Director

Legal Department, MPI

2
3

Do Van Su
Dau Thi Bich Thuy
Pham Van Tuong

Nguyen Thanh Toan

Head of Division
Deputy Head of Division
Deputy Head of Division of
Training
Head of Division of Business
Registration Office

12
13

Le Huynh Chi Loan


Vu Thanh Tru

Representative
Representative

14

Nguyen Ba Toan

Representative

Foreign Investment Agency, MPI


Foreign Investment Agency, MPI
Can Tho Export Processing and
Industrial Zones Authority
Bac Lieu Planning and
Investment Department
Ba Ria- Vung Tau Planning and
Investment Department
Tra Vinh Economic Zones
Dong Thap Economic Zones
Economic Zones Management
Department
Planning and Investment
Department in HCM City
HCM City Export Processing and
Industrial Zones Authority
Tay Ninh Planning and
Investment Department
Southern Investment Promotion
Planning and Investment
Department in HCM City

6
7
8

Nguyen Hai Dang


Pham Tiet Khoa
Nguyen Thi Minh Tuyen

Representative
Representative
Representative

Le Tuyen Cu

Deputy Director

Pham Trung Kien


Nguyen Thi Bich Ngoc

Representative

15
16
17

Ta Chu Ngon Nguyen


Nguyen Duc Nghiem
Phan Thi Thanh Nhan

Deputy Head
Representative
Representative

Hepza
Southern Investment Promotion
Foreign Investment Agency

10
11

Representative

VBF Representatives
1
2

Nguyen Lan Phuong


Trinh Luong Ngoc

Lawyer
Legal Counsel

Baker & McKenzie


VILAF

Luong Van Trung

Lawyer

Bross & Partners

Nguyen Huy Hoang

Lawyer

Bross & Partners

Nguyen Trung Nam

Lawyer

EPLegal

Ha Chi

Associate

Allens

7
8

Trang Nguyen
Nguyen Minh Hoang

Associate
Associate

VILAF
EP Legal

Phan Thanh Son

Head of Operation Center

Hong Leong Bank Vietnam

10

Ho Thanh

Associate

EP Legal

11

Nguyen Thi Hong Van

Legal Counsel

HSBC Bank

12

Stephane Gripon

Mondelz International

13

Tran Viet Hai

General Manager
Trade and Investment
Advisor

14

Dang Thi Ngoc Huong

Legal Director

TVM Corp

15

Huynh Cong Tam

Associate

Russin & Vecchi

17

Ha Phung

Secretariat

VBF

Page 14 of 14

Embassy of Denmark

Other issues

Comments on the draft Circular on importation of used machinery

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT CIRCULAR REGULATING THE IMPORTATION OF USED


MACHINERY, EQUIPMENT AND PRODUCTION LINES

Presented by
Mr. Nestor Scherbey
AmCham Customs & Trade Facilitation Committee
-

The Circular is expressly intended to encourage imports of new machinery, equipment


and production lines that are manufactured with the latest technology, presumably to
enhance economic growth and development. Regrettably, the new restrictions in the
draft Circular are likely to have an effect opposite to that intended. A practical example:
progressive dies or other specialized new tooling and high-tech controls items are used
with multi-ton and multi-year capital equipment such as, stamping presses or machine
tools in many industrial applications. While the dies, specialized tooling and
computerized controls items may be new, the presses and machine tools in which they
are used have useful lives of many years, well exceeding the limits of 10 years or 80% of
useful life stated in the draft Circular. Rather than restriction, the goal of encouraging
such imports is better served by providing new duty and tax incentives for investment in
such new equipment and technologies. The restrictions will actually discourage such
investments and imports because of likely unintended coverage of long-term capital
equipment, parts and accessories due to the broad scope of the Harmonized System
customs classification codes involved.

The consideration of slowing or limiting transfer of useful high-technology


manufacturing equipment to Vietnam is particularly applicable to machines and
equipment used for semiconductor manufacturing. It is because it is faster and more
cost-effective for an investor to obtain high-quality used manufacturing machines for
this industry, than to order new ones because of long lead times for such equipment and
greater expense. Here is what a company in California that specializes in such
equipment reports:
...Since the demand for used semiconductor fabrication equipment gained traction in
the late 90s, around 2,000 companies emerged worldwide as buyers and sellers. The
reason for the demand for used or remanufactured equipment remains the same as
when SEC/N President Gary Alexander stated in 2000: that quality remanufactured
equipment is often available at a fraction of the cycle time and cost of new equipment.
In todays world of multi-million dollar capital equipment, the cost savings when buying
used can average as much as 50%. While the benefit of lower costs continues to be a
primary driver, other considerations have emerged as critical factors such as
installation, parts availability, maintenance, service, quality, training and safety"

The new draft Circular is also intended to ensure that such goods meet requirements of
quality, safety, energy saving and environment protection. Instead of enacting new
trade-restricting measures, a better approach that involves modernization and
enhancement of existing compliance regulations and their enforcement by regulatory
agencies through up-to-date implementation of international standards and electronic
processing of administrative procedures is recommended. Such an approach will be in
keeping with international trade agreement requirements for implementation of the
National Single Window by Vietnam.

Page 1 of 2

Comments on the draft Circular on importation of used machinery

Vietnam Business Forum, 2015

It is recommended that the standard for Quality that is specified as 80% of useful life
be defined in greater detail through objective measures because quality of machines
and equipment is typically defined by performance specifications of specific machines
and equipment, according to their purpose. For example, in the case of computer
printers, Mean Time Before Failure (MTBF) in terms of hours or pages printed is a
common measure, while in other cases, completely different parameters apply.

As a result, the AmCham Customs & Trade Facilitation Committee recommends that
the restriction on imports of machinery and equipment contained in the Circular be
removed, while administrative procedures to ensure compliance with safety, energy
savings and environmental requirements be simplified and incorporated into the
National Single Window project. It is also recommended that standards of quality based
upon industry standards for the particular machine or equipment be adopted, instead of
a general approach involving a specified percentage of useful life, as currently listed
in the draft Circular.

Page 2 of 2

Comments on Draft Circular on Used Machinery and Equipment

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT CIRCULAR REGULATING THE IMPORTATION OF USED


MACHINERY, EQUIPMENT, PRODUCTION LINES
(hereby referred to as " Draft Circular on Importation of Used Equipment" - the 3rd Draft)

Prepared by
Duane Morris
1. Necessity to issue the draft circular
While we understand the Government of Vietnam does not want Vietnam to become a
digital dumping ground of the world, we are concerned about possible negative impacts
the Draft Circular may have on the business community in Vietnam.
Specifically, given the difficulties and disputes among experts on how to assess quality of
the Used Machinery, we opine that the import and use of the Used Machinery should be
subject only to the other relevant laws effectively at present (e.g. - environment protection;
Vietnamese quality standards, etc.). In the past, by issuing Decision 46 (dated 4 April 2001)
removing technical criteria on import of the Used Equipment, the Government of Vietnam
has made a tremendous effort in boosting foreign investment in the country on one hand
and effectively controlled technologies imported in Vietnam on the other hand.
Our suggestion: Please consider the necessity of issuance of this Draft Circular and its
possible impacts on the business communities, especially manufacturing enterprises.
2. Lack of clear technical criteria
The Draft Circular sets out 02 major criteria for imported Used Machinery: (i) novelty (or
remaining quality) level and/or (ii) period of use. These two criteria can be used
separately or in combination depending on different categories of enterprises (please see
Section 4 below for further explanation). Pursuant to the Draft Circular, the minimum level
and period of use are 80% and 10 years respectively.[1]
In this regard, we understand that how to assess the remaining quality is still disputed
among the experts. For example, according to the public media, Mr. Nguyen Vu Hai, the
Deputy Head of Vietnam Register (Ministry of Transportation) said that they (i.e. - the
Vietnam Register) has been unable to assess how 80% remaining quality should be
assessed during their 20 years of operations. In fact, remaining quality is an ambiguous
concept and the assessment may vary by local assessment entities, qualifications of which
are questionable.
Even so, we opine that the 80% novelty requirement appears to be too high given the
status of Vietnam as a developing country that needs appropriate but affordable
technologies.
Our suggestion: Please consider removing the novelty requirement or at the very least
reducing it.
3. Impractical criteria
We are concerned that mistakes of the last draft and even Circular 20 are repeated. Again
the most controversial content is fixed criteria on the remaining quality and period of use
of the used equipment, machinery and production.
For one thing, each enterprise may have different commercial and technical demands for
appropriateness of used equipment, machinery and production lines to its operations. For
example, it is proven that a brand-new Chinese equipment may not have the same quality
Page 1 of 2

Comments on Draft Circular on Used Machinery and Equipment

Vietnam Business Forum, 2015

as its second hand Euro-made counterpart. On a similar basis, different categories of


equipment and machinery (e.g. - electronic, semiconductor, mechanical) may have different
life circles and should be therefore subject to different levels of novelty, period of use, etc.
Our suggestion: Please consider setting out the different criteria for equipment and
machinery produced in countries of different production levels.
4. Discrimination among enterprises
Pursuant to Article 6.4 and 6.5, criteria for import of the Used Machinery are different
between State-owned enterprises and the private sector. This approach may violate the
principle of equal treatments among enterprises irrespective of their form of ownership
and economic sector pursuant to Article 5 of the Enterprise Law of Vietnam (both 2005 and
2014 versions).
Our suggestion: Please consider unifying a single set of criteria for all enterprises
regardless of their source of capital.
5. General and ambiguous principles on management of import of the used machinery
Article 4 of the Draft Circular, the following principles in managing import of the Used
Machinery must be followed:
- Import of new machinery and equipment is encouraged.
- The Used Machinery must satisfy conditions on quality, safety, environment protection,
etc.
- The Used Machinery must satisfy conditions of other regulations than the Draft Circular.
Our comment: We are concerned that the final principal makes criteria on the import of the
Used Machinery open-ended. Specifically, by subjecting the import of the Used Equipment
to other regulations issued by State bodies from time to time, importers may be imposed
with more restrictions in future.

Page 2 of 2

Comments on the draft Circular on importation of used machinery, equipments and production lines

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT CIRCULAR REGULATING THE IMPORTATION OF USED MACHINERY, EQUIPMENT, PRODUCTION LINES
(hereby referred to as " Draft Circular on Importation of Used Equipment" the 3rd Draft)

Prepared by
The Japan Business Association in Vietnam
No.
1.

Draft Circular on Importation of Used Equipment

Comments/Recommendations

Article 1. Scope

1. This Circular specifies the eligibility criteria, dossiers and procedures for importation, and
inspection arrangements for used plant, equipment and production lines, including
components, spare parts and replacements for use in domestic business activities.

HS codes of 85.18, 85.19, 85.21, 85.22, 85.45 85.48


are not suitable with the purpose of this Circular.
Please consider removing these codes from the
applicable subject.
HS code 85.24 is not included, please kindly revise
to include it.

Plant, equipment, components, spare parts and replacements with HS codes specified in the
List of allowed imports and exports in Vietnam, annexed to Circular 156/2011/TT-BTC, dated
Nov. 14, 2012 of the Ministry of Finance, specifically in the following Chapters:
a) Chapter 84. Nuclear reactors, boilers, mechanical machinery and equipment, and their
components: HS codes of 84.02 84.87.
b) Chapter 85. Electric machinery and equipment, and their components; sound recorders and
playback equipment, television video and sound recorder and playback equipment, and
components and accessories of the above mentioned equipment: HS codes of 85.01 85.05;
85.07 85.09; 85.11; 85.14; 85.15; 85.18 85.22; 85.24 85.33; 85.35; 85.36; 85.43; 85.45
85.48.
2. This Circular shall not apply to the importation of the following used plant, equipment and
production lines:
a. Goods in transit and transshipment;
b. Temporarily imported and re-exported goods (except for outsourcing agreements,
importation for production purposes, construction as part of investment projects); and
temporarily exported and re-imported goods;
c. For performance of repair and maintenance service agreements.
d. For research and development of technologies that are unavailable domestically;
dd. For takeover from domestic export-processing zones and export-processing companies
(that are not based in export-processing zones); and between export-processing zones;
e. For national defense and security purposes;
f. In-kind aids from foreign non-governmental organizations; humanitarian and non-refund aids
Page 1 of 5

There is no HS Code to distinguish between new


and used machinery and equipment, which are
subject to amend of this Circular. We urge the MoST
to issue specific regulations and steps to determine
what is new and used machinery and equipment
during customs clearance.
Please clearly identify necessary documents,
needed to be submitted, of used plant, equipment
and production lines that are not applicable subjects
(especially in point c) d) e) g)).

Comments on the draft Circular on importation of used machinery, equipments and production lines

No.

2.

3.

4.

Draft Circular on Importation of Used Equipment


from governmental organizations, United Nations organizations, inter-governmental
organizations, foreign business entities or private individuals provided through official agreements
between the parties involved and approved by relevant authorities.
g. Items presented as gifts and donations for humanitarian purposes.
i) Plant and equipment that fall under the List of potentially unsafe products and goods (List of
Category 2 products) released by the Ministry of Transport under the provisions of the Law on
Product and Goods Quality, and spare parts, components and replacements of such plant and
equipment.
Article 3. Terms and definition
" In this Circular, the following terms shall be construed as designated below:
1. Plant and equipment refer to a combination of interlinked items and components, of which
at least an item or component has physical movements with relevant driving or controlling
mechanisms and electric circuits, being pieced together with customized applications,
particularly for use in manufacturing, processing, moving or packaging materials.
2. Production lines are equipment, tool and instrument systems installed based on
schematics and technological processes that ensure coherent operation for the
manufacture of products.
3. A comprehensive production line is one that incorporates equipment, tools and instruments
supplied, manufactured and installed in accordance with the designated design at a same
time, having the appropriate output/efficiency throughout the line, and can be used
automatically or semi-automatically.
4. Using time (in years) means a defined period from their manufacturing to importation,
until open customs declaration.
5. Remaining quality (in percent) compared with the original quality means the acceptable rate of
specifications of used machinery, equipment and production lines compared with these of brandnew machinery, equipment and production lines (100% new)."
Article 6. Eligibility criteria for importation of used plant and equipment

3. Being in line with the industrys master plan for development approved by the Prime Minister
and relevant Ministries and Departments.
Article 7. Eligibility criteria for importation of used production lines
"
1. Not falling under the categories specified in Article 5 of this Circular.
2. Meeting the requirements for safety, energy efficiency and environment-friendliness of
Page 2 of 5

Vietnam Business Forum, 2015

Comments/Recommendations

Definition of production lines is not clear, please


consider specifying according to HS code, or
removing production lines term from this Circuar.

Please clearly define and detail the industrys


master plan for development approved by the Prime
Minister and relevant Ministries and Departments
(plant and equipment and its corresponding plan).
Definition of production lines is not clear, please
consider specifying according to HS code, or
removing Article 7.
Please clearly define and detail the industrys

Comments on the draft Circular on importation of used machinery, equipments and production lines

No.

5.

6.

7.

Vietnam Business Forum, 2015

Draft Circular on Importation of Used Equipment

Comments/Recommendations

existing laws and regulations.


3. Being in line with the industrys master plan for development approved by the Prime Minister
and related Ministries and Departments.
4. Having 80% remaining quality or higher compared to the original state."
Article 8. Eligibility criteria for importation of components, spare parts and replacements
" Imported components, spare parts and replacements shall meet the following requirements:
1. Being technically compatible with the designated plant and equipment that needs
replacement or repairs.
2. Not yet readily available domestically.
3. Having 70% or higher remaining quality."

master plan for development approved by the Prime


Minister and relevant Ministries and Departments
(plant and equipment and its corresponding plan).

Article 10. Dossiers and procedures for importation of used production lines
"
1. State-owned enterprises and other importers shall complete importing procedures at the
designated customs office in charge of the importation. Apart from the normally required
importing documents, the importers shall also submit to the customs office one quality
inspection certificate in original, containing the key information required in Article 13.2 of this
Circular, issued by a qualified inspecting agency as defined in Article 15 of this Circular.
Inspection shall be done by the inspecting agency in the exporting country before the
production line is disassembled and packaged for shipment.
2. The customs office shall, based on the documents submitted by the importers, verify if the
used production line meets the eligibility criteria for importation specified in Article 7 of this
Circular, and proceed with customs clearance in accordance with prevailing regulations."
Article 15. Eligibility criteria and procedures for an inspecting agency to take part in the
assessment of used plant, equipment and production lines
"
1. Stage 1 as this Circular comes into effect till the end of 2016: subject to the Trade Law
a. Inspecting agencies incorporated under the provisions of the Trade Law, registered for
provision of plant, equipment and technology inspecting services, and meeting the
requirements of Article 14 of this Circular shall lodge an application for involvement in the
inspection of used plant, equipment and production lines, enclosed with an inspection
certificate sample (scan copy) to the Ministry of Science and Technology.
Page 3 of 5

MoST shall provide details of components,


accessories and replacements that can not be
produced in the country.
It should be clearly stated that components,
accessories and replacements that can not be
produced in the country do not include counterfeit
goods produced domestically.
Similar to Article 7, definition of production lines is
unclear. Please consider specifying according to HS
code, or removing Article 10.

From now until the end of 2016 - Stage 1, please


consider specifying conditions and procedures for
foreign inspection agency to carry out inspection
activities.

Comments on the draft Circular on importation of used machinery, equipments and production lines

No.

Draft Circular on Importation of Used Equipment

Vietnam Business Forum, 2015

Comments/Recommendations

Such application shall encompass at the minimum the following key information:
Name, address, website, email, telephone, fax of the organization.
Names of the organizations representative and subscriber of the inspection certificate.
A list of information demonstrating satisfaction of the provisions of Article 14 of this
Circular.
Track record of inspecting activities involved in over the last two years.
Compliance with prevailing laws and this Circular.
Signature and stamp of the head of the inspection agency.
b. Within 03 working days, if sufficient information required in a) of this paragraph above is
provided, the Ministry of Science and Technology shall issue a notice on the ministrys
website for interested regulatory agencies, organizations and individuals to know of and
choose to use the inspection agency.
c. To facilitate implementation at the early stage when this Circular comes into effect, the
Ministry of Science and Technology shall provide a List of qualified inspecting agencies in
Annex II of this Circular for interested regulatory agencies, organizations and individuals to
know of and choose to use.

8.

9.

This list shall be regularly updated based on the applications of other qualified inspecting
agencies."
Article 16. Cost of inspection

1. Cost of inspection for imported plant, equipment and production lines shall be paid by the
organizations or individuals requesting the inspection as agreed between the parties involved.
Article 20. Notifying and reporting schemes

3. December every year, inspection agencies participating in the assessment of used plant,
equipment and production lines shall report their performance of inspection work to the
Ministry of Science and Technology for aggregation and overall administration. A sample report
is provided in Annex IV of this Circular.

Page 4 of 5

Regarding cost of assessment done in Vietnam, it


should not base solely on agreement between the
parties involved. Instead, the MoST should prepare
a detail cost breakdown for each category.
Inspection agencies participating in the assessment
of used plant, equipment and production lines to
report their inspection work on imported machinery
and equipment into Vietnam is not feasible.
Assuming they do carry out the work, it will only
increase the cost of inspection.
Please consider removing this specific point or
passing the responsibility to the MoST to do the
reporting work.

Comments on the draft Circular on importation of used machinery, equipments and production lines

No.
10.

Draft Circular on Importation of Used Equipment


Article 23. Effectiveness

1. This Circular comes into effect from July 1, 2015.

Vietnam Business Forum, 2015

Comments/Recommendations
In relation to the appointment and announcement of
inspection agencies and assessment methodology, it
takes time to make necessary preparation. Besides,
there is a high possibility of arising difficulties when
this Circular comes into effect. Difficulties may
include delays during customs clearance for import
procedures. We suggest the MoST to appoint
domestic and foreign inspection agencies, then to
spend some time with related parties to deliver the
information before implementing the Circular.

Page 5 of 5

Comments on the draft Circular on importation of used machinery, equipment and production lines

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT CIRCULAR REGULATING THE IMPORTATION OF USED MACHINERY, EQUIPMENT, PRODUCTION LINES
(hereby referred to as " Draft Circular on Importation of Used Equipment" - the 3rd Draft)

Prepared by
Baker & McKenzie Vietnam
No.

Draft Circular on Importation of Used Equipment

Comments/Recommendations

Article 1. Scope
"1. This Circular specifies the eligibility criteria, dossiers
and procedures for importation, and inspection
arrangements for used plant, equipment and production
lines,
including
components,
spare
parts
and
replacements for use in domestic business activities.

Issues: Article 1.1 of the Draft limits the scope of application of this Circular to
"machinery, equipment, components, spare parts, replacements" of Chapter 84 and
Chapter 85 of the List of import, export goods in Vietnam that was issued together with
Circular 156/2011/TT-BTC.
Whereby, used products with HS code listed in the Draft may be imported if satisfying the
conditions stipulated in the Draft. These products must not be in the category of used
goods that are banned from import as stipulated in Decree 187/2013/ND-CP and Circular
04/2014/TT-BTC.

Plant, equipment, components, spare parts and


replacements with HS codes specified in the List of allowed
imports and exports in Vietnam, annexed to Circular
156/2011/TT-BTC, dated Nov. 14, 2012 of the Ministry of
Finance, specifically in the following Chapters
a. Chapter 84. Nuclear reactors, boilers, mechanical
machinery and equipment, and their components: HS
codes of 84.02 84.87;
b. Chapter 85. Electric machinery and equipment, and
their components; sound recorders and playback
equipment, television video and sound recorder and
playback equipment, and components and accessories
of the above mentioned equipment: HS codes of 85.01
85.05; 85.07 85.09; 85.11; 85.14; 85.15; 85.18
85.22; 85.24 85.33; 85.35; 85.36; 85.43; 85.45
85.48;"
Article 1. Scope
"...
2. This Circular shall not apply to the importation of the
following used plant, equipment and production lines:
a. Goods in transit and transshipment;

However, most of the products bearing the HS code under the scope of application of the
Draft also belong to the list of used goods that are banned from import as stipulated at
Appendix I of Circular 04/2014/TT-BCT.
Recommendation: To consider expanding the list of HS codes of used products governed
by the Draft so that the Draft could have a wider and more effective scope of application.

Issues: The Draft only allows Vietnamese enterprises to repair and maintain used
products for foreign customers. The Draft has not foreseen the case where
Vietnamese enterprises conducting refurnishing services. In practice, enterprises in
Vietnam also would like to import used machinery and equipment to repair, maintain
and refurnish in order to resell to domestic and foreign customers.
Page 1 of 7

Comments on the draft Circular on importation of used machinery, equipment and production lines

No.

Vietnam Business Forum, 2015

Draft Circular on Importation of Used Equipment

Comments/Recommendations

b. Temporarily imported and re-exported goods (except for


outsourcing agreements, importation for production
purposes, construction as part of investment projects);
and temporarily exported and re-imported goods;
c. For performance of repair and maintenance service
agreements;
Article 3. Terms and definition
"...
1. Plant and equipment refer to a combination of interlinked
items and components, of which at least an item or
component has physical movements with relevant driving or
controlling mechanisms and electric circuits, being pieced
together with customized applications, particularly for use in
manufacturing, processing, moving or packaging materials."

Recommendation: Supplement the Draft with the case of "import used machinery,
equipment, [and/or] production line to conduct repairing, renewal business or to
refurbish to supply, distribute in domestic market or to re-export."

Issues: There is no need to define "machinery, equipment". Machinery and


equipment that fall under the scope of this Draft is determined based on the
classification system of goods (HS codes) stipulated in the List of import, export
goods in Vietnam that was issued together with Circular 156/2011/TT-BTC.
Accordingly, machinery and equipment subject to the Draft and their components,
spare parts, replacements are already classified with respective HS codes.
Enterprises may refer to the HS codes to identify if their used goods fall under the
scope of the Draft or not, without having to refer to the definition of "machinery,
equipment".
Meanwhile, defining "production line" is necessary as there is no HS code for
"production line" and thus it requires enterprises to refer to a specific definition.

Article 3. Terms and definition


"...
3. A comprehensive production line is one that incorporates
equipment, tools and instruments supplied, manufactured
and installed in accordance with the designated design at a
same time, having the appropriate output/efficiency
throughout the line, and can be used automatically or semiautomatically."
Article 6. Eligibility criteria for importation of used plant
and equipment
"...
2. Meeting the requirements for safety, energy efficiency and
environment-friendliness of existing laws and regulations;"

Recommendation: Remove the definition of "machinery, equipment".


Issues: This term is not used elsewhere in the Draft.
Recommendation: There is no need to define this term.

Issues: This provision is necessary but rather vague and would lead to difficulties in
implementation. What mechanism will be used to determine and examine whether the
used machinery, equipment, production line meets with the requirements? Will the
examination organization when certifying the "remaining quality" will also check if the
used machinery/equipment/production line meets with these requirements?

Page 2 of 7

Comments on the draft Circular on importation of used machinery, equipment and production lines

No.

Draft Circular on Importation of Used Equipment

Article 6. Eligibility criteria for importation of used plant


and equipment
"...
4. Used plant and equipment to be imported by state-owned
enterprises: service length of no longer than 10 years and
80% remaining quality or higher;"

Vietnam Business Forum, 2015

Comments/Recommendations
Recommendation: The Draft needs to clarify the procedure as well as the
authorities/organizations authorized to verify whether the used equipments meet with
these requirements.
Issues: This is a new provision from Circular 20/2014/TT-BKHCN. The criterion "80%
remaining quality or higher" for all used machinery and equipment is not reasonable.
Machinery and equipment of each industry requires appropriate classification and
respective ratio.
There is no clear basis and criteria for the ratio 80%. Each nation and each producer
applies different quality standards; therefore, imported used machinery with remaining
quality lower than 80% will not necessarily have poorer quality than brand-new
machinery.
Besides, the requirement that the service length must not exceed 10 years is too short
and not reasonable. Machinery and equipment of each industry requires appropriate
classification and respective service length.

The different treatment toward State-owned enterprises (SOEs) and non-SOEs will affect
the competitiveness of SOEs. This provision will cause difficulties to SOES in balancing
business budgets, affect the business efficiency of the enterprises and State capital,
especially in the current economic situation.

Article 6. Eligibility criteria for importation of used plant


and equipment
"...
5. Used plant and equipment to be imported by non-public
organizations and private individuals (hereinafter collectively
referred to as other importers) shall meet either the
following two requirements:
a. Service length of no longer than 10 years, or
b. Remaining quality of 80% or higher."

Recommendation: To classify products in different groups to determine the appropriate


ratio and service length. To consider allowing SOEs to choose between two criteria being
"remaining quality" and "service length".
Issues: The third Draft increased the ratio to 80% from 70% as compared to the second
draft and the same as Circular 20/2014/TT-BKHCN. The criterion "80% remaining quality
or higher" for all used machinery and equipment is not reasonable. Machinery and
equipment of each industry requires appropriate classification and respective ratio.
There is no clear basis and criteria for the ratio 80%. Each nation and each
producer applies different quality standards; therefore, imported used machinery
with remaining quality lower than 80% will not necessarily have poorer quality
than new machinery.
Page 3 of 7

Comments on the draft Circular on importation of used machinery, equipment and production lines

No.

Draft Circular on Importation of Used Equipment

Vietnam Business Forum, 2015

Comments/Recommendations
Besides, the requirement that the service length must not exceed 10 years is too short
and not reasonable. Machinery and equipment of each industry requires appropriate
classification and respective service length.
Recommendation: To classify products in groups to determine the appropriate ratio and
service length.

Article 7. Eligibility criteria for importation of used


production lines
"...
4. Having 80% remaining quality or higher compared to the
original state."
Article 8. Eligibility criteria for importation of components,
spare parts and replacements
"Imported components, spare parts and replacements shall
meet the following requirements:
1. Being technically compatible with the designated plant and
equipment that needs replacement or repairs;
2. Not yet readily available domestically;
3. Having 70% or higher remaining quality."

Issues: Similarly, the criterion "80% remaining quality or higher" for all used production lines is
not reasonable. There is no basis or criterion for the ratio 80%.
Recommendation: To classify production lines of each industry to determine the
appropriate classification and respective ratio.
Issues: The Draft limits the import of components, spare parts and replacements for the
purpose of "replace, repair" other machinery and equipment only.
In addition, the second criterion of "not yet readily available domestically" is unreasonable and
against the principles of a market economy. It is difficult to determine which component, spare
part or replacement has been available domestically or not. Moreover, in the case where the
local products do not meet with the quality standards as so desired by the enterprises, it is
sufficient to allow them to import products. This criterion could be viewed as a protectionism
measure.
Again, the criterion "70% remaining quality of higher" for all used components, spare
parts and replacements is not reasonable. There is no clear basis and criterion for the
ratio 70%.
Recommendation: To determine a lower and more reasonable ratio of remaining quality
for each kind of components, spare parts and replacements. To allow enterprises to
select between two criteria being remaining quality and year of manufacture of
components, spare parts and replacements.
To remove the first criterion on import purpose. To allow enterprises to import for
business (for example, for renewal and refurbishing business, reselling to other
enterprises in Vietnam).
To remove the second criterion.
Page 4 of 7

Comments on the draft Circular on importation of used machinery, equipment and production lines

No.

10

11

12

Draft Circular on Importation of Used Equipment


Article 9. Procedures for importation of used plant and
equipment
"1. Importing state-owned enterprises:
...
a) Technical documents demonstrating the year of
manufacture of the imported plant and equipment: user
manual (guide) or year of manufacture certificate issued by
the manufacture in original;"

Article 9. Procedures for importation of used plant and


equipment
"...
2. For other enterprises:
a) Where the service length requirement specified in
Article 6.5.a of this Circular applies:
-Technical documents demonstrating the year of
manufacture of the imported plant and equipment, user
manual (guide) or year of manufacture certificate issued by
the manufacture in original;"

Vietnam Business Forum, 2015

Comments/Recommendations
Issues: The requirement for import enterprises to provide the original copy of technical
documentsdemonstrating the year of manufacture of the imported machinery and
equipment will cause difficulties to enterprises. Indeed, user manuals (catalogue) of
machinery and equipment normally do not show the year of manufacture; original copies
of the certificate recording the year of manufacture issued by the manufacture after 10
years usually get lost. Machinery and equipment which have been repaired, replaced
with new details and components will have many different technical documents.
Requiring enterprises to submit all of such documents will increase procedural burden
and be time-consuming.
Recommendation: To allow SOEs to submit other documents which also evidence the
year of manufacture if they cannot find the originals of the catalogue and the certificate
of the year of manufacture issued by the manufacturer.
Issues: The requirement for import enterprises to provide the original copy of technical
documentsdemonstrating the year of manufacture of the imported machinery and equipment
will cause difficulties to enterprises. Indeed, user manuals (catalogue) of machinery and
equipment normally do not show the year of manufacture; original copies of the certificate
recording the year of manufacture issued by the manufacture after 10 years usually get lost.
Machinery and equipment which have been repaired, replaced with new details and
components will have many different technical documents. Requiring enterprises to submit all
of such documents will increase procedural burden and be time-consuming.

Recommendation: To allow enterprises to prove the date of manufacture of machinery


and equipment by submitting other documents which also evidence the year of
manufacture if they cannot find the originals of the catalogue and the certificate of the
year of manufacture issued by the manufacturer.
Article 13. General requirements relating to the quality Issues: This provision will cause difficulties to enterprises conducting quality
assessment overseas to find an inspecting agency that satisfy the standards and provide
certificate
"2. The quality certificate shall encompass the following the quality certificate with all the content stipulated by the Draft.
information:
Recommendation: To amend this Clause as follows:
a. Information of the importing organization or individual (name, "2. The quality certificate may encompass the following information".
address, telephone, email, fax, name of representatives);
b. Information of the organization or individual authorizing
or delegating the importation (if any);
Page 5 of 7

Comments on the draft Circular on importation of used machinery, equipment and production lines

No.

Draft Circular on Importation of Used Equipment

Vietnam Business Forum, 2015

Comments/Recommendations

c. Information of the imported merchandise (name, origin,


year of manufacture);
d. Information of the importing organization or individual
(name, address, nation, telephone, email, fax, name of
representatives);
dd.
Purpose
of
importation
(for
direct
use/sales/implementation of investment projects);
e. Place of assessment, time of assessment, conditions of
assessment;
f. Methodology and standards used for assessment;
g. Assessment results:
h. The remaining quality compared to the original state;
i. Year of manufacture of the plant and equipment (where
applicable).
j. Warranty of the inspecting agency for neutrality, fairness
and reliability of the assessment results;
k. Date of certificate issuance and effectiveness;
l. Names and signatures of inspectors; name, position and
signature of the representative of the leadership of the
inspecting agency, and seal);
Using the above listed information, inspecting agencies shall
develop their sample quality certificates with their own
designs."

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Comments on the draft Circular on importation of used machinery, equipment and production lines

No.

13

14

Vietnam Business Forum, 2015

Draft Circular on Importation of Used Equipment

Comments/Recommendations

Article 15. Eligibility criteria and procedures for an


inspecting agency to take part in the assessment of used
plant, equipment and production lines
"1. Stage 1 as this Circular comes into effect till the end of
2016: subject to the Commercial Law
a) Inspecting agencies incorporated under the provisions of
the Trade Law, registered for provision of plant, equipment
and technology inspecting services, and meeting the
requirements of Article 14 of this Circular shall lodge an
application for involvement in the inspection of used plant,
equipment and production lines, enclosed with an inspection
certificate sample (scan copy) to the Ministry of Science and
Technology."

Issues: The Draft provides the conditions and procedures to recognize inspecting
agencies with two stages, enabling domestic inspecting agencies to gradually satisfy the
current inspecting standards. However, this provision indirectly limits the enterprises'
ability to choose a foreign inspecting agency, since the Draft only applies to "inspecting
agencies established in accordance with the Commercial Law".

Article 17. Responsibilities of relevant ministries, line


agencies and local governments
"...
2. Relevant ministries and line agencies shall, within their
respective jurisdiction and where needed, apply stricter
controls than the general requirements of Articles 6, 7 and 8
of this Circular, and set specific requirements for service
length and remaining quality for used plant, equipment
and production lines in different trades and industries as the
circumstances require.

Issues: The ratio for "remaining quality" and "service length" of the machinery,
equipment and production line ("Machinery") should be determined industry-byindustry. If it is required to apply a common standard for all machinery of all industries
for the time being, the Draft should determine the deadline for Ministries and relevant
authorities to adopt specific provisions on the "service length" and "remaining quality"
for Machinery under their management.

Where specific rulings from the relevant ministries and line


agencies are absent, the importation of used plant,
equipment and production lines shall follow the rulings of
this Circular."

Recommendation: To amend this provision as follows:


"
2. Before 30 November 2016, relevant ministries and line agencies shall issue specific
requirements on "service length" and "remaining quality" of used machinery, equipment,
production line under their specific industries and areas as the circumstances require.
Where specific rulings from the relevant ministries and line agencies are absent, the
importation of used plant, equipment and production lines shall follow the rulings of this
Circular."

Recommendation: To provide detailed provisions on eligibility criteria and procedures to


recognize inspecting results of inspecting agencies in the country of export for Stage 1.

The possible deadline for issuing such specific provisions may be 30 November 2016 in
line with that of Article 17.3 of the Draft (the date when Ministries and authorities must
provide the list of qualified inspecting agencies).

Page 7 of 7

Comments on draft Circular on used machinery and equipment

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT CIRCULAR REGULATING THE IMPORTATION OF USED


MACHINERY, EQUIPMENT, PRODUCTION LINES
(hereby referred to as " Draft Circular on Importation of Used Equipment" - the 3rd Draft)

Prepared by
VILAF
1. Definition of State Owned Enterprises (SOEs)
As from 1 July 2015, the new Enterprises Law will effective and accordingly the SOEs mean
enterprises wholly owned by the State.
However, under the 2nd footnote of the Draft Circular, we understanding that the MOST is
referring to another definition of SOEs which is stipulated at Decree 99/2012/ND-CP dated
15 November 2012 of the Government on assignment and decentralization of the exercise of
the rights and the performance of the responsibilities and obligations of the State (as the
owner) toward SOEs and State capital invested in enterprises (Decree 99). For
information, according to Decree 99, SOEs are defined to be enterprises, in which the State
holds over 50% of charter capital, including:
- enterprises in which the State holds 100% of charter capital and which are singlemember limited liability companies;
- enterprises in which the State holds over 50% of charter capital and which are jointstock companies or limited liability companies with two or more members.
Our suggestion: To avoid any confusion, it is advisable that the MOST should directly and
clearly detail the scope of SOEs at Article 2.1 of the Draft Circular, not refer to another
regulation at a footnote. The MOST may consider incorporating the definition of SOEs at
Decree 99 into the main part of Draft Circular.
2. Calculation of Usage Duration
Under the Draft Circular, the usage duration is one of statutory conditions for the import of
used machineries, equipments and technological lines. The usage duration shall be
calculated in years and counted from the year of manufacture to the year of customs
declaration in accordance with Article 3.4 of the Draft Circular.
Our suggestion:
In our view, to be more reasonable to the importers, it should be a duration in which the
used machineries, equipments and technological lines are actually used. Any duration of no
use or suspension to use would be excluded from the usage duration.
In addition, the usage duration with odd months may be rounded as follows:
- From full 1 month to under 6 months, it may be rounded down to zero;
- From full 6 months to 12 months, it may be rounded up to 1 year.
3. Determination of Remaining Quality
Similarly to the usage duration, the remaining quality in comparison with the original
quality is one of statutory conditions for the import of used machineries, equipments and
technological lines. Under Article 3.5 of the Draft Circular, it is defined to be rate to satisfy
specifications of used machineries, equipments and technological lines in comparison with
these of brand-new machineries, equipments and technological lines.
However, because of the absence of clarification on original quality, there are a lot of
different interpretations on ground or basis to determine the original quality. Each nation as
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Comments on draft Circular on used machinery and equipment

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well as each manufacturer may apply different standards to the same machinery,
equipment and technological line. Therefore, there is a scenario in which the quality of the
used machineries, equipments and technological lines is higher than the quality of brand
new ones.
Our suggestion: In our view, for the purpose of accurate and scientific quality assessment,
the MOST may consider preparing a system of standards applicable to each machinery,
equipment and technological line.
4. Quality Test Certificate
In certain cases under the Draft Circular, a quality test certificate is required to be
submitted to the customs authority as one of application documents for importing the used
machineries, equipments and technological lines (Quality Test Certificate). The Quality
Test Certificate must comprise compulsory contents as follows:
- Information of the importer (name, address, telephone, email, fax, name of
representative);
- Information of organization/individual authorized to import (if any);
- Information of imported goods (name, origin, year of manufacture);
- Information of the exporter (name, address, telephone, email, fax, name of
representative);
- Purpose of import (to serve activities of manufacture and business/re-sale/investment
project);
- Location, time and condition of assessment;
- Method and standards of assessment;
- Results of testing (the remaining quality in comparison with the initial quality, the year
of manufacture if necessary);
- Commitments of the assessment organizations of objectivity, fairness and accuracy of
assessment results;
- Date of issuance and term of effectiveness of assessment report;
- Name and signatures of the individual official in charge of assessment and the
representative of the assessment organization (together with the seal of such
organization).
Our suggestion: Because a Quality Test Certificate issued by a foreign assessment
organization is acceptable and recommended, the MOST should clarify whether the above
mentioned compulsory contents are also applicable to such certificate. As a matter of
practice, we understand that the foreign assessment organization always sets up its own
standard form of Quality Test Certificate or must comply with standard form stipulated by
relevant foreign laws. Therefore, there is a risk in which their standard form is inconsistent
with the requirements by the Draft Circular.
5. Appointment of Quality Assessment Organization
According to Article 15 of the Draft Circular, the ministries and State agencies will be
responsible for promulgating their guidance on procedure to appoint the quality
assessment organizations in respect of the used machineries, equipments and
technological lines under their assigned management authority. However, we understand
that the promulgation of such guidance will be time-consuming and the ministries and
State agencies are permitted to have one year (i.e. 2016) for preparation.
During this period, a temporary procedure of registration for quality assessment is
applicable instead. Accordingly, the quality assessment organizations must submit an
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application form (enclosed with its standard form of Quality Test Certificate) to the MOST
and afterwards a list of eligible quality assessment organizations will be announced by the
MOST.
Our comment: Nevertheless, we are aware that the delay in promulgation of guidance is not
rare in practice and the ministries and State agencies may not meet the scheduled
deadline. In such case, it is advisable that the temporary procedure of registration for
quality assessment with the MOST should be extended until the ministries and State
agencies promulgate its own guidance.
6. Cases of Exemption
Based on Articles 6 and 7 of the Draft Circular, it appears the conditions for import of the
used machinery, equipments and technology lines are compulsory and there are no cases
of exemption.
We are aware that some specialized regulations of Vietnam require a license/permit for the
import of such goods which is issued by the specialized State agency other than the MOST.
For example, according to the Law on Tobacco Control and its guiding regulations, the
import of (brand new or used) machinery, equipments and technology lines for tobacco
manufacturing and processing activities in Vietnam is subject to an approval of the Ministry
of Industry and Trade and may be an approval in principle of the Prime Minister in practice.
If these decision making State agencies accept to import the used ones whose quality is
lower than those stipulated by the Draft Circular, we are concerned about the confliction
between the Draft Circular and the approval of the relevant State agency.
In light of above, we recommend that the importer shall be exempted from the criteria of
import of the used machinery, equipments and technology lines stipulated by the Draft
Circular if it obtains a proper license/permit of import from the relevant State authority in
charge.

Page 3 of 3

Summary of consultative meeting on draft Circular on used equipment

Vietnam Business Forum, 2015

SUMMARY OF THE CONSULTATIVE MEETING ON THE DRAFT CIRCULAR ON IMPORTATION


OF USED MACHINES, EQUIPMENT AND PRODUCTION LINES
-

Date and time:


Venue:
List of participants:

8.30-11.30am, March 17, 2015


VCCI branch,171 Vo Thi Sau Str., District 3, Ho Chi Minh City
See appendix 1

I. MEETING AGENDA
- Content of the draft Circular on imports of used machinery, equipment and production
lines (draft Circular)
- Comments/feedback from businesses on the draft Circular
- Responses by Department of Technology Assessment-Evaluation-Verification, Ministry
of Science and Technology (MOST)
- Open discussion.
II. MEETING SUMMARY
1. Content of the draft Circular on imports of used machinery, equipment and production lines
Mr. Do Hoai Nam, Director General of Technology Assessment-Evaluation-Verification,
MOST
- Imports of used machinery, equipment and production lines must be reviewed and
imported production lines must be inspected prior to arriving in Vietnam. In other cases,
importers may provide a self-administered statement and customs may choose to
undertake an inspection or post-check for a faster clearance process.
-

For plant and equipment monitored by relevant ministries, such ministries may include them
in the list of plant and equipment not subject to this Circular. Already, the Ministry of
Transport (MOT) has proposed construction plant and equipment be left out of this Circular.

The MOST requests other ministries and line agencies list selected technology
inspection agencies. If ministries fail to list inspection agencies as required by the
Product and Commodity Quality Law, such agencies will be selected in accordance with
the Trade Law. The utilization of inspection agencies will span one year following this
Circular coming into effect. Thereafter, inspections will be further tightened in line with
provisions of the Product and Commodity Quality Laws implementing Circular.

As specified in the Technology Transfer Law, technology assessment and inspection


agencies must be eligible entities to operate and a technology appraisal service is
expected to be introduced as a result of the revised Technology Transfer Law drafted by
the MOST.

It should be noted that the use of the two criteria the service life since manufacturing
date (10 years) and the quality of plant and equipment (80%) was guided by inputs from
ministries and line agencies. As the lead agency in the process, the MOST assembled
this legislation based on recommendations from ministries, line agencies, companies
and associations.

From a State administration perspective, to ensure the best interests of the community
in the implementation of a national technology development strategy and technology
upgrade policy, the MOST must identify ways to prevent imports of plant, equipment and
production lines that are energy and material inefficient, polluting and unsafe for
workers to operate.
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2. Comments/Feedback from businesses on the draft Circular


Mr. Nguyen Van Dong, Chairman, Vietnam Printing Association
- For the Circular to meet expectations, a number of basic rules must be followed to limit
burdens on taxpayers and produce fair deterrents for wrongdoing. Based on this, the
following specific comments should be noted:
-

Article 1 Scope: Exclusion is recommended for listed plant and equipment assigned by
the government to relevant ministries for administration as per Decree 187/2013/ND-CP
on trading of international goods and dealership, trading, outsourcing and
transshipment of goods with foreign partners (Decree 187) as well as Decree
60/2014/ND-CP on printing activities. The two decrees specifies that the Minister of
Information and Communication provides specific rulings on plant and equipment
imports, based on development trends of printing technology and equipment over time.

Chapter 2, Article 6: The eligibility for importation of used plant and equipment fixed
with a 10-year length of service for all plant and equipment in different lines of business
is unreasonable in our view. This is particularly so in the case of printing, where typeset,
layout, electronic film making or digital printing equipment could be decommissioned
after just five years. Meanwhile, traditional printing machines such as offset, bronze
pipe, flexographic printers or manufacturing machines from Germany, Japan, USA or
the Italy may efficiently operate after 20 years. Moreover, some print products do not
require very high quality, such as common administrative papers in provinces.
Moreover, some provincial newspapers do not even require advanced printers and may
accept a decade-long length of service to save costs.
Overall, the required length of service less than 10 years for used printing plant and
equipment is rigid and lacks the necessary scientific and practical justification. The
drafting team is encouraged to separate eligibility criteria for different types of plant
and equipment and develop a list of plant and equipment with more reasonable lengths
of service.

Regarding the required remaining quality level of 80% or higher: While this is a
quantitative measure, the draft Circular fails to provide any scientific methods of
measurement such as:
+ A piece of equipment may consist of thousands of components, which degrade at
different degrees of use and may have different impacts on the quality of end
products.
+ Quality inspections cannot be done visually. Instead, they require machines to be
disassembled and even to undertake a test run with different types of materials.
+ In reality, only a handful of printing facilities in the printing sector directly import
used plant and equipment for use. Often this is done through specialized importers
of used equipment in Vietnam or overseas. Experts from such agents verify the
status, equipment quality and replace parts and reinstate equipment after trial runs
before sales to printing firms. As such, the status of imported plant and equipment
at border crossings and when first put into use is often different given the
considerable upgrade. Thus, inspections offer no real value.

Chapter 3 - Import dossiers and procedures: Any discrimination between State-funded


enterprises and other businesses is discouraged and overall coverage should be
applied.

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Inspection agencies: The Vietnam Printing Associations position is that only


professional companies specialized in used plant and equipment trading, printing
manufacturing and repairs can inspect used printing industry equipment. These
professionals, however, can only verify equipment after disassembling and undertaking
trial runs. Meanwhile, printing regulatory agencies and similar foreign bodies can only
verify supplies and goods quality based on specific standards.
Consequently, certification of the remaining quality of specific printing industry plant
and equipment is redundant and will burden firms with time and financial costs. This
could result in imported equipment left at border crossings for months or even years
pending inspection results.

Mr. Nestor Scherby, Chairman, AmCham Customs & Trade Facilitation Committee
- The draft Circulars new restrictions are likely, in fact, to have impacts opposite than
intended. Rather than applying restrictions, instead new duty and tax incentives should
be offered for investment in new equipment and technologies. The restrictions will
actually discourage such investments and imports because of likely unintended
coverage of long-term capital equipment, parts and accessories due to the broad scope
of the harmonized system customs classification codes.
-

The word dumping means unfair trade practices, where goods are exported to a
country at artificially low prices. There are better ways to tackle this problem such as
customs valuations or imposition of the 2005 Law on Import and Export Duties, and
other existing laws. It is recommend the markets view be accepted and supported with
reinforcement of existing laws.

It is faster and more cost-effective for an investor to obtain high-quality used


manufacturing machines than order new ones because of long lead times for such
equipment and greater expenses. A company in California, that specializes in
semiconductor fabrication equipment, reported that: the cost when buying used can
average as much as 50%. While the benefit of lower costs continues to be a primary
driver, other considerations have emerged as critical factors such as installation, parts
availability, maintenance, service, quality, training and safety.

Instead of enacting new trade restrictions, a more effective approach is recommended


that involves enhancement of existing compliance regulations and strict enforcement by
regulatory agencies through up-to-date implementation of international standards and
electronic processing of administrative procedures.

It is recommended that the standard for quality specified as 80% of useful life be
defined in greater detail through objective measures. This is because the quality of
machines and equipment is defined by performance specifications of specific machines
and equipment.

Only one country prohibits importation of used equipment - China. Vietnam would
benefit from the transfer of used equipment and production lines without engaging
normal trading firms, through the shifting of major global manufacturers with used
production lines from areas of higher production costs to cheaper areas. As such, the
adoption of this Circular will raise a barrier against such movements.
A team of Japan Inspecting Association experts came to Vietnam in 2014 to work with
the MOST and introduced various product quality inspection methods. Nevertheless,

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there is concern whether Japanese inspection methods for production lines, equipment
or parts imported into Vietnam will work.
-

There is agreement to remove Circular 20 and the MOST is encouraged to consider this
proposal. If the Circular is retained, the MOST must provide clear guidance on issues
pertaining to defining inspection agencies and procedures.

Ms. Duong Thi Toi, HCMC Bar Association member


- The MOSTs requirement for length of service seems reasonable, but imposing an active
period of no longer than 10 years for all plant and equipment is unreasonable. This is
especially true for heavy industry and mechanical equipment. Use of this requirement
on manufacturing or electronic production lines will even threaten to turn Vietnam into
a technology dumping ground. Thus, the MOST is encouraged to introduce more specific
criteria, at least for heavy and light industries.
Mr. Pham Ngoc Tuan, Vice Chair, HCMC Mechanics Association
- Mechanical equipment is different from other industries. In countries like Japan,
manufacturing equipment active for 50 years may still be in good condition. From global
experiences, there is no reason why Vietnam should go in the opposite direction while
local mechanical manufacturing slowly evolves. Therefore, the MOST is encouraged to
reconsider the active period requirement and other restrictions for importing used plant
and equipment.
-

The MOST also needs explicit inspection standards prior to releasing the Circular.

Ms. Le Nguyen Thuy Dung Legal Manager, Intel Co.


- Imported plant and equipment to Vietnam could come from numerous different
countries, hence making verification of equipment quality difficult.
-

Two groups of countries, one with liberal regulations (Japan, Singapore, Thailand) does
not restrict importation and closely regulates how equipment is utilized. The second
group has strict controls (China, India), but even these countries do not impose
restrictions on equipment used in export processing zones and there are no
requirements on remaining quality and length of service.

The MOST is urged to take these points into consideration and provide more supportive
rulings for export processing zones.

Ms. Nguyen Ngoc Bien Thuy Huong, Instructor, Law Department, Binh Duong University
- This Circular has several advantages, including removal of specific lines of business
from the regulated scope such as building or engineering machinery (assigned to the
Vietnam Register for inspection process). Yet, there are a number of shortcomings as
follows:
+ Using length of service as a condition for importation and how the active period is
determined from the year of manufacturing to that of importation is not advisable.
This is because through utilization, some replaced parts or components would not
be coherent in terms of time in service. Also, the purpose of setting importation
criteria is to restrict poor quality, used equipment. To meet this need, using the
quality criteria would be sufficient and there is no need for the length of service
condition.
An important question is why are used production lines, parts and components only
subject to 80% and 70% or higher remaining quality requirement, without the time
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in use condition, whereas both apply to plant and equipment? Is there inconsistency
and non-alignment between the provisions in the same piece of legislation?
Furthermore, what justifies the MOSTs setting of the 80% and 70% or higher
remaining quality requirement as an importation condition?
Discriminating between State-owned enterprises (SOEs) and non-public firms in
terms of importation criteria is unreasonable, while saying SOEs need more
stringent governance is unconvincing. The purpose of restricting importation of used
plant and equipment is to mitigate use of substandard quality and polluting
machinery in Vietnam. That purpose requires SOEs and non-public firms to adhere
to equal import criteria.
Article 9 - Import procedures and dossiers: There is a requirement that the dossier
consists of technical factsheets demonstrating the year equipment was produced. If
not, there must be a certificate stating when the equipment was produced from the
manufacturer. While the Circular sets the length of service at no longer than 10
years, it requires this paper be original hard copy. Is it practical to require an
original certificate of origin from the manufacturer when the equipment has been
used for 10 years? The document may be missing, damaged or rendered
meaningless as new components may have been replaced while the equipment was
in use.

Mrs. Vo Thi Nhu Ngoc, Vo Thi Nhu Ngoc Law Firm


- The Circular should not be applied to non-public firms.
-

When the Circular comes into effect, it will force major groups and companies to move
away from transferring technologies from other advanced countries to Vietnam.

Instead, there should be severe penalties to deter intentional importation of obsolete


and polluting production lines by institutional or personal entities.

Mr. Tran Thanh Trong, Chairman, Binh Duong Mechanical & Electrical Association
- Circular 20 is necessary to avoid Vietnam becoming a technology dumping ground.
Moreover, liberal importation of equipment may negate innovation incentives for
Vietnamese firms.
-

Regarding the manufacturing year and quality criteria, there is agreement with the
drafts 10-year active period requirement. However, the requirement for technical
factsheets demonstrating manufacturing years including user manuals, should be
removed as user manuals should not be used as evidence of the manufacturing year,
but only a manufacturers certificate. In addition, it should be made clear whether the
manufacturers certificate is issued at the time of manufacture or importation, and
whether the certificate should be stamped.

There is agreement with the need for inspection, but the MOST needs to provide more
specific inspection guidelines and standards and state who are permitted to undertake
such inspections.

Mr. Nguyen Van Binh, Counselor, HCMC Bar Association member


- While Decree 187/2013/ND-CP provides detailed guidelines for implementation of the
Trade Law regarding trading of international goods and dealership, trading, outsourcing
and transshipment of commodities with foreign partners, participants in this meeting
have concentrated on more technical sides. While the Trade Law encourages
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commerce, this Circular seems to contain implicit causes for disputes and hindrances
to the development of the market and firms. It is recommended that a different form of
regulation is used instead of a Circular, that should serve as an implementation
document and not to introduce rules.
Mr. Luong Thanh Quang, Raja &Tann LCTLawyers
- The importation of used equipment is supported and we do not believe used equipment
poses environmental threats.
-

Buyers of electronic goods like iPads or iPhones in the United States are charged
environment levies, but there is no such environment tax for equipment parts in
Vietnam. Use of a reasonable levy could be considered as a means of restricting
importation.

Representative of Long An Battery Co.


- Because used plant and equipment may seem unequal in terms of quality, this does not
mean they are not as efficient as some otherwise substandard counterparts, like those
from China. Importers understand the draft Circular has a governance purpose for
environmental protection or anti-dumping. But, there are also other administrative
instruments such as taxes, quality testing, safety and technical specifications that could
be used. These alternative instruments could be just as effective in restricting trade in
used equipment, equipment imports for re-export purposes or importation of used
equipment.
-

If the current version of the Circular is retained, will importers find other ways to still
bring substandard equipment into the country and leave a trail of corrupt practices
along the way?

Mr. Hoang Van Son, Counselor, HCMC Bar Association member


- The Circular needs to be reviewed and its provisions divided into different plant and
equipment categories if it is to be feasible. Inspections in this field have limitations and
if done incorrectly, may result in higher costs for firms.
-

Article 4.3 of the draft Circular is likely to place importers in a difficult position as it
requires Used plant, equipment and production lines to be imported, apart from
meeting the requirements of this Circular, shall satisfy existing regulations of the
government, and relevant ministries and line agencies on commodity importation.

Foreign investors sometimes do not register investment capital in cash but production
lines or equipment, then leave the country after a few years in operation. This is a real
concern and a difficult one for regulators.

The draft distinguishes between SOEs and foreign-invested enterprises. We advise


against such discrimination and instead groupings should include limited liability, joint
stock or privately held companies, if any.

3. Responses by the Ministry of Science and Technology


Response by Mr. Do Hoai Nam, Director General of Technology Assessment-EvaluationVerification, MOST
- This Circular follows Decree 187 and the Trade Law. The creation of the Circular was
assigned by the government, with the MOST the lead agency that collected inputs from
stakeholders for the government. The Circular will be released when considered
necessary. In addition, based on two pieces of Prime Ministerial legislation Directive
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17/CT-TTg on strengthening governance and management of corporate importation of


technologies, plant and equipment and Decision 929/QD-TTg approving the SOE
reform, focusing on state-owned business groups and large corporations for 20112015 project, the government has placed responsibility with relevant ministries and line
agencies in the overall management of plant and equipment imports, following the
cases of Vinashin and Vinalines.
-

Discrimination between SOEs and other types of business in the draft Circular is a
mistake. The drafting team intended to make a point related to used plant, equipment
and production lines imported using State funding.

Paper production: In term of investment, no paper factories with imported used


equipment and technologies have proven to be efficient to date, including state-funded
and private firms. The government recently turned down a Bai Bang Paper Factory
Phase 2 proposal to import used production lines, given the poor performance of used
equipment financed by external funding from the previous phase.

Concerns have been voiced to regulatory agencies about imported used equipment
turning the country into a technology dumping ground. That prompted the MOST to
request other ministries cooperate and propose lists of equipment subject to different
criteria, such as the mechanical engineering, building and health care sectors. In
accordance with the current law-making process, the drafting team is required to
collect formal written feedback from relevant ministries and line agencies and reflect
them in the draft Circular. Comments from participants in todays meeting will be
reflected in our report to the minister, who in turn will report to the government on
whether this Circular is needed.

As this piece of legislation may affect many firms, unanimous consensus and sharing
from the business community which takes into consideration broader community
interests, are vital.

The issue of inspections overseas and in Vietnam remains unclear. Foreign inspection
agencies must adopt mutually recognized standards between different countries and
territories. If they meet the inspection qualities as specified in the draft, they could be
viewed as equal to a Vietnamese inspection entity.

Regarding the issue of equipment origin, the drafters previously proposed there should
be separation between equipment from the European Union, United States and Japan
and equipment from China. Now Vietnam is a member of the World Trade Organization,
such discriminative rule is prohibited. Accordingly, Notice 2527/TB-BKHCN on
suspension of importation of used plant, equipment and production lines clearly
indicated a halt of importation of equipment from precluded countries.

The purpose of this Circular is to enhance regulations on plant and equipment that fail
necessary safety, energy efficiency and environmental protection requirements. Some
firms want to import used batteries for regeneration, while international rules and many
countries prohibit this. As a result, recycling must rely on the supply of used batteries
within Vietnam.

The MOST has consulted with the Ministry of Justice and received the latters
endorsement for the release of this Circular.
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As for high technology equipment, the governments position is to encourage


importation and this intention is reflected in the draft Circular to promote investment. In
2008, the National Assembly passed the High Technology Law, stating that firms
qualified to engage in hi-tech activities or use high technologies are entitled to the
highest levels of investment incentives available in current laws.
4. Open discussion
Mr. Nguyen Ngoc Thinh, Zien Solutions
- Zien Solutions has imported new products not available in the local market. However
since Circular 20 came into effect, it has encountered significant challenges working
with the Customs Office. The MOST is urged to consider introducing regulations that do
not create more barriers for importers or increase corrupt practices.
-

Response by Mr. Do Hoai Nam, Director General of Technology Assessment-EvaluationVerification Department, MOST
- Circular 20 only restricts and prohibits imported plant and equipment from China. Plant
and equipment used for scientific research and technology development does not fall
under the scope of this Circular.

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APPENDIX 1: list of participants


No

Name

Title
Director General of Technology
Assessment-EvaluationVerification Department

Company

Mr.

Do Hoai Nam

Ministry of Science and Technology

Mr.

Dau Anh Tuan

Director of Legal Department

Mr.

Nestor Scherbey

AmCham

Mr.

Tran Van Quang

Clean Development

Vietnam Chamber of Commerce


and Industry
AmCham Customs & Trade
Facilitation Committee
Dragon Capital Group Limited

5
6

Mr.
Mr.

Le Van Dong
Do Hong Trung Hoa

Mr.

Motohisa Nakagawa

Deputy Managing Director


HR & Administration Department
Chief of Business Environment
Committee/Lawyer

Les Vergers Du Mekong


MITSUI & CO., VIETNAM
JBAH/Nagashima Ohno &
Tsunematsu Hcmc Branch

Mr.

Long Nguyen

Associate

Nagashima Ohno & Tsunematsu


Hcmc Branch

Mr.

Chief Financial Officer

The Blue Circle

10

Mr.

Jean-Francois (Jeff)
Peron
Thinh Nguyen

Representative

Zien Solutions.

11

Mr.

Bui Thanh Tinh

Portfolio Project Manager

FrieslandCampina Vietnam

12

Mr.

Bui Thi Ngoc Thuy

Representative

Woo Jin Vina

13

Mr.

Nguyen Thi Thanh


Nhan

Customs/Trade Compliance
Manager

Intel Vietnam

14

Mr.

Le Nguyen Thuy Dung

Legal Manager

Intel Vietnam

15

Mr.

Associate

Baker&McKenzie

16

Mr.

Associate

Baker&McKenzie

17

Mr.

Andrew Fitanides
Nguyen Vu Quynh
Trang
Mai Chi

18

Mr.

Masayoshi Omichi

Sales Director

Vietnam Japan Gas JSC

19

Mr.

Nguyen Van Dong

Chairman

Vietnam Printing Association

20

Mr.

Truong Quoc Tuan

Representative

T.A.T Machine tool and Equipment


JS Co.

21

Ms. Duong Thi Toi

Member

HCMC Bar Association

22

Mr.

Pham Ngoc Tuan

Vice Chair

HCMC Mechanics Association

23

Ms.

Nguyen Ngoc Bien Thuy


Instructor, Law Department
Huong

24

Ms. Vo Thi Nhu Ngoc

Partner

Vo Thi Nhu Ngoc Law Firm

25

Mr.

Tran Thanh Trong

Chairman

Binh Duong Mechanical &


Electrical Association

26

Mr.

Nguyen Van Binh

Counselor

HCMC Bar Association member

27

Mr.

Luong Thanh Quang

Lawyer

Raja &Tann LCTLawyers

28

Mr.

Hoang Van Son

Counselor

HCMC Bar Association member

29

Ms. Ngoc Anh

Representative

VBF Secretariat

VILAF

Page 9 of 9

Binh Duong University

Summary of consultative meeting on draft Circular on used machinery

Vietnam Business Forum, 2015

SUMMARY OF THE CONSULTATIVE MEETING ON THE DRAFT CIRCULAR ON IMPORTATION


OF USED MACHINES, EQUIPMENT AND PRODUCTION LINES
-

Time:
Venue:
List of participants:

8:15am-12pm, Wednesday, March 18, 2015


7th Floor, VCCI building, No. 9 Dao Duy Anh, Hanoi
Appendix 1

A. MEETING AGENDA
-

Content outline of draft Circular on importation of used machines, equipment and


production lines (draft Circular) and key issues for businesses comments/
recommendations;
Presentations of business associations, chambers of commerce and companies
representatives
Feedback fromthe Department of Technology Assessment-Appraisal-Inspection,
Ministry of Science and Technology (MOST)

B. MEETING SUMMARY
I. Outline of draft Circular content and key issues for businesses comments/
recommendations
Ms. Tran Tuyet Nhung, Vice Director, Department of Technology Assessment-AppraisalInspection, Ministry of Science and Technology
- Circular-making concept:
+ Regulating used machines, equipment and production lies imported for use in
Vietnam
+ Preventing importation of used machines, equipment and production lines that are
obsolete, substandard, energy and material inefficient and pollutingto prevent
Vietnam becoming a technology dumping ground.
-

Normative references:
i) GovernmentDecree
187/2013/ND-CP,
providing
detailed
guidelines
for
implementation of the Trade Law regarding trading of international goods and
dealerships, trading, outsourcing and transshipment of commodities with foreign
partners. The MOST, as a lead agency and in collaboration with relevant ministries
and line agencies, developedthe draft Circular.
ii) Prime Ministers Directive 17/CT-TTg, August 9, 2014, on strengthening regulations
and monitoring of corporate importation of technologies, machines and equipment.

The MOST actedas a lead agency and worked with relevant ministries and line agencies
to draft the Circular. The business community and associations commented and
recommend how the draft couldbe improved.

During the drafting process, the drafting team studied and referred to other countries
practicessuch as:
+ Indonesia: Regulations under two codes HS84 and 85 for20 years, beyond which
reviews on a case-by-case basis, except HS 8471.41.10 and HS 8531.20.00,
whichcoverfiveyears
+ Thailand: No import restrictions. Any infringement onthe environment, quality and
safety laws during use may result in seizure and decommissioning. To benefit from
Page 1 of 10

Summary of consultative meeting on draft Circular on used machinery

+
+
+
-

Vietnam Business Forum, 2015

government incentives, used equipment must have an active period of no longer than
10 years and a remaining service life of five years.
China: A uniform timeframe of 10-14 years applies to the list of used mechanical and
electric equipment, with specific lists subject to 8-35 year timeframes. Applications
must be filed to authorities 90 days prior to importation.
India:Remaining quality of more than80%, to be inspected by the export
administration
Bangladesh:Service life of more than10 years
Taiwan: No importation.

Main parts of the revised Circular, third draft:


+ HS codes applied (Article 1): each chapter lists a four-digit HS code.
+ Import eligibility:
o Article 6, on used machines and equipment: Businesses are definedby whether
they are State-owned or not. State-owned enterprises(SOEs) are subject to
stricter controls, as they have to meet under-10 year length of service and more
than 80% remaining quality criteria.Other importers may choose one of the two
criteria.
o Article 7, on used production lines: Allfirms must satisfy the remaining quality
( 80%) requirement and inspections must be undertaken in the exporting
country, before disassembling and packaging for shipment.
o Article 8, on importation of used parts, components and replacements: These
provisions apply to machines and equipment in need of parts replacement and
repairs, not for disassembling for resale. The parts and components must not be
locally available and have remaining quality of 70% or more.
+

Quality requirement: Inthe case of SOEs,imported used machines, equipment,


components and parts must come with an inspection certificate issued by a qualified
inspecting agency.Other enterprises may choose self-claimed declarations or
inspection certificates.Production lines need an inspection certificate and the
inspection must be undertakenin the exporting country, before disassembling and
packaging within the past six months.

Qualifications of inspecting agencies:


o Phase 1 by the end of 2016:In accordance with the Commercial Law (inspecting
agencies registered to MOST for uniform regulations)
o Phase 2 from January 1, 2017: In accordance with Product and Goods Quality Law
(ministries/line agencies to select qualified inspecting agencies).

Customs clearance (Articles 9, 10 and 11): Atthe Customs office, which may request
re-inspection if documentary discrepancies are found. The MOST and relevant
ministries/line agencies may state their views ifneeded.

Responsibilities of ministries/line agencies (Article 16): Ministries and line agencies,


within their jurisdictions and in consideration of the need for stricter controls than
stated in Articles 6, 7 and 8 of this Circular, may set in place specific requirements
for special industries or sectors where needed.

Topics that need concentrated discussions:


+ HS codes to be four or two-digit, or no HS codes at all
+ Cases not subject to regulation of this Circular (Article 1.2). Please note item (i) the
List of Category 2 commodities is subject to the Product and Goods Quality Law,
Page 2 of 10

Summary of consultative meeting on draft Circular on used machinery

Vietnam Business Forum, 2015

released by the Ministry of Transport (MOT), whichcan also closely regulate


transport vehicles.
Import eligibility.

II. Presentations of business associations, chambers of commerce and company


representatives
Mr. Fred Burke, Head of VBF Investment and Trade Working Group
- Overall, it isnot a good idea to regulate used equipment in thisway and some articles
should be reconsidered. Existing regulations, including those related tohealth and
safety of workers and the environment, are sufficient to manage used equipment.
-

To conform to international commitments, no more burdens should be placed on


enterprises, whichare experienced enough tomake accurate assessments on used
equipment and on remaining quality than local assessment agencies.

The issue of competency deficiency of inspecting agencies is also a concern, whereas


there is no mention of involvement of international inspecting agencies.

Import eligibility criteria, such as 80% remaining quality or 10-year active period,
appearrandomly chosen.

Importers eligibility by whether a company is a SOE or a private firm also engenders


inequality, while the increasingly fading line between the two may lead to confusion
when applying regulations.

There is concern that somewill not be able to meet the requirements for import
customs documentation.

Many agree that it is unnecessary to issue the Circular and its feasibility as well as gaps
within legislation, such as energy efficiency and consumption, may be better addressed
by new standards than a new quality control or assessment regulation.

Mr. Nguyen Mai, Chairman, Foreign-owned Companies Association


- The Circular is unreasonable as itdiscriminates between SOEs and other firms, while it
is also contraryto the goal of a level playing field for all. The MOT does not fall under the
regulating scope of this Circular, hence there no nationwide consistency.
-

Thailands approach could be examined as it does not rely on specific rulings for used
equipment imports. Other countries practices related to used machine regulations
require only compliance with environmental protection, work safety and quality
standards. Otherwise, the firm will be closed down by the authorities.

The regulatory system and administrative procedures will move towards increased ease
of doing business for enterprises. Increased FDI is also expected with Microsoft and
Samsung withdrawing from China and selectingVietnam for their production facilities.
When moving their factories to Vietnam, these firms must first make sure operations
remain productive and it is unlikely authorities can authenticate operation performance
better than these prestigious firms.

Page 3 of 10

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The MOST could reconsider the necessity of this Circular, while on a personal level I do
not believe it is necessary. Disassembling and deciding on the quality of a piece of
equipment may also leadto corrupt practices. Regulations should pay more attention to
community benefits and energy concerns.

Mr. Vu Ngoc Bao Vice Chair and General Secretary, Paper and Pulp Association
- For the last 30 years, 30% of the paper industrys output has comefrom the State-owned
sector, but today it only contributes 7%.The sector has usedequipmentwith a length of
service of more than 50 years andhasprovided economic value and met environmental
criteria. A paper industry production line costs a minimum of USD100 million, and
advanced lines may cost USD100-200 million. However, inHanoi now there are still
machines over 70 years of age that produce saleable outputs and provide good profits.
-

Instead of the 10-year timeline or 80% of remaining quality, before importing any
equipment, it is suggested therelevant ministry or line agency submit a feasibility study
to the MOST to review and consider whether to allow importation.The current law has
sufficient codes and standards to meet the goals of this Circular in protecting the
environment, safety, costs and benefits. So,no new rules are needed.

The Circular should provide specific standards for safety, environmental protection and
technology specifications. For example, provide specific regulations on material
efficiency in the paper industry.

Mr. Kawanabe Kenta, Japanese Business Association in Vietnam


- For each field, Vietnam has in place a separate set of codes, for example with
production lines, quality, environment or safety.If these specific sets of rules strictly
apply, it will be possible to restrict and control importation of obsolete used equipment
that is unfit for today.
-

The MOST is encouraged to rescind this Circular. The current draft Circular has
reflected some Japanese Business Association feedbackby lifting some restrictions
onimportation of production lines.This allows non-public firms to meet just either
requirement, whether no longer of 10 years in active use or remaining quality of 80%.
But, it is difficult for inspections to tell ifa piece of machine is 80% of its original
state.Last year, experts from Japans inspecting agency association worked with
Vietnams MOST and introduced quality inspecting methods. But equipment imported
into Vietnam may originate from other countries, thus Japanese methods cannotcover
all types of equipment.Having a uniform inspecting method is also a challenge.

The association has two main recommendations: i) The MOST couldconsider removal of
Circular 20 and (ii) if the Circular must be released, the ministry must provide clear
regulations on the definition of inspecting agencies, procedures and methods used to
avoid confusion for stakeholders.

Mr. Nguyen Truong Vinh, Deputy Chief, Air Pollution Control Division, Pollution Control
Administration, Ministry of Natural Resources and Environment
- Consideradditions to the list of banned import equipment rejectedbyother countries
-

There should be no discrimination betweenSOE or other enterprise importers

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Consistency with regulations of other ministries/line agencies is needed. For example,


Decree 114/2014/ND-CP on subjects eligible and conditions for licensed import and
dismantlement of used vessels is implemented by the MOT, but the Ministry of Health
and Ministry of Agriculture and Rural Development also have rulings on imported
equipment

Specific environment-related rulings are needed. Under the Environmental Protection


Law of 2014, equipment must be environment friendly and consistof no ozone layer
destructive substances and PCB-based transformer oil

It is difficult todetermine the criteria for the80% quality and 10-year active period.
Therefore, inspecting proceduresmust be clearly stipulated and environment-related
findings should be integrated intoinspecting results.

Mr. Le Anh Ba, Vice chair, Vietnam Building Material Association


- Discrimination of SOEs and other firms by the Circular is unreasonable and inconsistent
with the new Enterprise Law that calls on equality between enterprises.The government
should play a constructive rather than penalizing role.The 80% quality requirement is
qualitative in nature and may entail complex administrative procedures.There is a need
for guidelines to raisetechnical barriers to prevent importation of non-productive used
equipment.
Mr. Nguyen Duc Thinh, Director, Mechanics Development Consulting Center, Mechanical
Engineering Companies Association
- Circular 20 aims to strike a balance between different stakeholders interests, to raise
barriers to protect the domestic mechanical engineering industry and promote
manufacturing capacity to support industrialization, while also protecting equipment
traders and users.The Circular should set barriers that safeguard domestic industry
and ease burdens on enterprises.
-

The 80%remaining quality issue has raised concerns,so rules should be firsttrialed for
improvements. The 10-year length of service requirement isgood, but 80% of quality is
high and could be 70%.

Mr. Phan Van Hai, Managing Director, Vietnam Building Machinery Development Co.
Vietnam needs viable legislative regulations that allow it to remain competitive with
other countries.For example, as the mechanical engineering and building machinery
industries in Vietnam remain underdeveloped, it dependent on imported machineries
with 90% of equipment imported. If this Circular becomes effective, the local
mechanical engineering and building machinery industries will find it even harder to
compete with other countries, since there is no restriction on the quality or length of
service for used equipment in other countries.Used equipment is also vital for small and
medium-sized enterprises, especially in the farming sector.If this restrictive Circular is
released, the local agribusiness may witherThe Circular needs to provide specific
rulings fordifferent lines of business, as any across-the-board attempt to implement the
Circular will be challenging.
Mr. Pham Hoai Long, Vice Director, Hanoi branch, Vinacontrol
- It is not advisable to segregate SOEs from other firms in the eligibility criteria, given
thegoal of an equal business climate

Page 5 of 10

Summary of consultative meeting on draft Circular on used machinery

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More research into the 80% remaining quality or 10-year time in use is needed to come
up with more specific criteria.The current Circular 20 is more related to the Trade Law
than Product Quality Law. In the future, Circular 20 may expand to the realm of the
Product Quality Law, where Category 2 products banned for importation fall under the
jurisdiction of relevant ministries and line agencies.

The MOST might need to look further into more specific eligibility criteria in terms of the
active period and remaining quality of equipment, drawing from practices adopted in
Indonesia, China and India, where such criteria are being used as technical barriers.

There is concern about the competencies of inspection agencies whether to adopt the
80% remaining quality or under 10-year time in use rules.A uniform set of assessment
criteria must bein place and recognized by regulatory agencies to formalize results.

Measuring an 80% quality ratio is difficult, but a professional panel may be used and the
results will be relative rather than absolute.It should be understood, however, whether
the 80% means performance or fuel/energy consumption, visual operational status,
output and product quality or systemic performance of the production line, itis just a
relative number.

Mr. Dau Anh Tuan, Head of Legal Department, VCCI


- Iscriteria like 80% remaining quality practically feasible asmany companies in the south
have unsuccessfully searched for a qualified inspecting agency for imported production
lines and equipment?
Mr. Vo Van Trung, Vietnam Building Machinery Association
- If the MOST is introducing this Circular to ensure safety and quality, it is unnecessary
given the current context in Vietnam.If the Circular proceeds, there are several
concerns with the thirddraft, such as:
-

Regarding scope,Chapter 84 encompasses codes 84.02- 84.07, while HS codes 84.29 and
84.30 should be removed as they are among Category 2 products under the MOTs
jurisdiction.Paragraph (i).2 requests the MOT disclose its Category 2 product list in line
with Circular 63/2011/TT-BGTVT dated December 22, 2011 promulgating the list of
products and goods likely to be unsafe subject to the state management by the MOT,
while this list may expand to an entire law behind this Circular.Other ministries should
have their own lists of products under specific jurisdiction and along with suchlists,
there should be laws in response to this Circular to support businesses.

Regarding eligibility criteria, years in use should be dropped and the quality
requirement should be limited, as the on-going inspection of all Category 2 products by
the Register Administration shows that determining the 80% quality status is difficult.
Even existing inspecting agencies, including the MOST, do not have the resources to
undertake such an assessment. In the 1990s, the MOST tried to use this 80% quality
standard but later moved away from it.Such requirement will be costly and burdensome
forimporters and Customs authorities, while the government will needmore taxes to
finance inspections.
Import procedures, Article 9.2, Chapter 3, distinguishes two types of businesses.While
the need for increased control of SOEs is justified, other importers must present
technical documents. This requirement is unnecessary; asimporters already have to
submit quality certificates for Customs clearance. Thus, only a copy of technical

Page 6 of 10

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Vietnam Business Forum, 2015

documents showing the manufacturing year of the imported machines and equipment
should berequired.
-

The quality assurance statement for Customs declaration should be removed,


asimporters already have to present the quality certificate for 80% of remaining quality,
effectively rendering the quality statement redundant.Moreover, if the statement must
be used, the sample should change the recipient from General Department of Vietnam
Customs to the Customs office where the importation takes place.

Roles and functions of regulatory agencies and inspecting agencies: Article 17.2 needs
to insure ministries and line agencies provide specific criteria of time in use and
remaining quality, as well as inspecting schemes to determine whether the 80%
requirement is met. Ministries/line agencies should have criteria in place before the
Circular comes into effect to allow importers to respond.

Mr. Nguyen Cong Tuan, Vietnam Printing Association


- Circular replacing Circular 20 will face multiple challenges. In terms of importing used
printing equipment, a very significant amount has been in use for up to 25 years.If this
Circular is released, a large number of used printing machines in operation will be
affected.
+

+
+

The 80% quality requirement is difficult to measure and in terms of time in use,
there have been no apparent problems, as machines of 50-60 years of age are still
functioning well and the 10-year limit will be burdensome.The time in use
requirement should be practical to have any real value.
Criteria should be specific forindividual sectors.
Some say ministries/line agencies need more practical regulations, but as
thisassociation sees it, this MOST Circular serves as an implementing document to
Decree 187, soother ministries/line agencies should also tighten their rules.

Mr. Young Jun Cho, ViceChairman, Korea Chamber of Commerce in Vietnam


- The 80% quality and 10-year time in use criteria are demanding and unspecific.While
more Korean companies are interested in doing business in Vietnam, many others
willmove elsewhere.The Korean business community already feels it is difficult to
import used equipment from China to Vietnam and this is a major barrier.More
thoroughly research from authorities and agencies is needed.
Representative of Microsoft Vietnam
- Microsofts policy is to move its China and Hungary factories to Vietnam tobecome the
corporations core production hub.However, the introduction of Circular 20 will affect
the technology transfer processsince the production lineshave been in use in other
countries for 15-20 years. Therefore, the 10-year limit of the Circular will raise a barrier
to foreign-owned companies that plan on technology transfer to and investment in
Vietnam. Thiswill adversely affect the overall investment landscape in Vietnam.
Microsofts recommendations include:
+ Regarding Articles 6 and 7, on production lines, equipment and machineries, the
safety, efficiency and environmental protection criteria remain unclear and lack the
grounds for measurement. This should be made clear for corporate stakeholders
and also allow inspecting agencies to have a foundation to have reliable inspection
certificates.

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It is hard to tell equipment and production lines apart at the time of


importation,because equipment and tools may be part of manufacturing lines, but
imported from different countries and are only put together in Vietnam to make
complete manufacturing or production lines.How should the 80% quality condition
be measured in this case?
How can tools, instruments and machinery referred to in Article 8 (replacement
parts) be determined to be made in Vietnam?Are made-in-Vietnam replacement
components and parts good enough to be used with imported lines?How do we know
replacement components or parts made in Vietnam meet MOST standards and
criteria and factories standards?
Regarding documentation, Circular 20 does not clearly state whether such transfers
and movements are subject to this Circular. In case of transfer - understood as
closing down a factory elsewhere and taking equipment to Vietnam for use in
production - it is sometimes impossible to get the original technical documents of
equipment from the first production facilities, since the installation was up to 10
years ago.Moreover, how long will it take to get a certificate and if a foreign
inspecting agency is used, what criteria should the agency meet to be qualified
under Vietnamese law?
Articles 14 and 15, related to inspection certificates, should point to the disclosure of
a list of qualified inspecting agencies in Vietnam and overseas, what criteria defines
that an agency is qualified according to Vietnamese norms and how to manage these
agencies, given that the process only gets access to the document and not the actual
inspection work.

Mr. Chu The Hung, Managing Director, APZ


- The 80% quality requirement is unreasonableand no business has the financial
resources to pay a foreign inspecting agency. Second, when the shipment arrives, apart
from the shipping documents, is there a need for other documents demonstrating the
quality of production lines through factsheets, sales contracts. Most sales contracts
describe the items as over 80% quality. Also an importers statement that the years
pertaining to the imported goods are authentic is needed. If a quality inspection
certificate from the exporting country is missing, an inspection must be done in
Vietnam.The current procedure should be reviewed.
Mr. Vu Ngoc Bao, Vice chair and General Secretary, Paper and Pulp Association
- An Indian company moved its factory to central Vietnam last year. A comparison with
wastewater norms for paper production showed that the equipment failed and this
actually resulted in the firm quitting the market.This shows that current laws in Vietnam
are sufficient and can achieve the Circularsgoals.
Mr. Doan Nang, former head of Legal Affairs Department, Ministry of Science and
Technology
- It is unwise to rescind altogether a law-making project that aims to build technical
barriers.Our suggestions are:
+ Goods, machines and equipment in the market vary in nature and specifications.
Thus, it is impractical to provide an all-in-one regulation. Instead there should be
specific categorization and quality requirements should follow groupingswith
specific criteria applied to inspection agencies.
+

Articles 6.1 and 6.2: An eligibility requirement for used machines and equipment to
be imported is that products are not among those specified in Article 5 and meet
Page 8 of 10

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Vietnam Business Forum, 2015

current safety, energy efficiency and environment norms.However, specific


requirements as to what safety, energy efficiency and environmental protection
norms entail should be provided.
+

Article 6.3: Imported machines and equipment must conform to industries master
plans.The Prime Minister or ministries/line agencies only approve industries
master plans, instead of specific rulings for types and quantity of equipment
imported.

Article 6.4 - SOEs to meet 10-year time in use and 80% remaining quality criteria:
There is discrimination between SOEs and non-public businesses, whereas all other
normative regulations are trying to promote equality.Equal treatment for both types
of enterprises is needed.The no longer than 10 years requirement should be
reconsidered, as sometimes a machine that is over 20 years old can still meet
current safety, efficiency and environment norms. .The quality requirement of more
than 80% is impractical, so segregation for different types of products is
needed.Ministries, line agencies and professional regulatory agencies will also have
specific rulings for the products under their jurisdictions.

Moreover, burdensome and time-consuming administrative procedures should be


reduced.Feedback on Circular 20 shouldbe collected, then good practices from other
countries, including China and Thailand, be studied to create an environment that
promotes strong international integration among local firms and sets in place
reasonable technical barriers.

III. FEEDBACK FROM THE GOVERNMENT


Ms. Tran Tuyet Nhung, Vice Director, Technology Assessment-Appraisal-Inspection,
Ministry of Science and Technology
- Criteria should be divided into groups (categorization of products by type), which may be
the best and optimal option, but application will not be simple.Electrics-electronics,
information technology, health care and foodstuff industries may adopt a length of
service requirement of no longer than five yearsand others like machine tools may use
10-12 years.As a public governance regulation, the Circular should harmonize interests
and come up with the most viable choices. Apart from general rules, specific
requirements may apply, and relevant ministries and line agencies can also use own
specific regulations as required in their lines of work.
-

For businesses other than SOEs, Customs procedures offer two alternatives - using
time in use or remaining quality criteria.If time in use is chosen, import documents
should consist of all documents required for clearance and the time in use must be less
than 10 years.If the time requirement is not met, the quality standard can be used.

The drafting team wants to modify the draft based on the most supported versions, but
unfortunately there is no version with full agreement.The drafting team anticipates that
there will be three to five options, and will try to selectthe one most appropriate one.

We received feedback from the Publishing Administration, but considering the unique
needs of the printing industry, we will continue collecting comments from this field
make adjustments accordingly.If stakeholders encounter problems, proposals can be
filed with relevant ministries and the MOST will revise regulations accordingly.Most
other ministries and line agencies have expressed agreement with the drafters.
Page 9 of 10

Summary of consultative meeting on draft Circular on used machinery

Vietnam Business Forum, 2015

APPENDIX 1: List of Key Participants


No

Name

Ms.

Tran Tuyet Nhung

Mr.

Dau Anh Tuan

Title
Vice Director of Technology
Assessment-AppraisalInspection
Director of Legal Department

Company

Mr.

Fred Burke

Head/Managing Director

Mr.

Hoang Duc Minh

Mr.

Kim Kyoung Don

Mr.

Nguyn Thng Hi

Lawyer
Manager of Investment
Department
Public Affairs

Mr.

Hiroshi Chisima

Director

JETRO
Japan Business Association
in Vietnam/
The Thang Long Industrial
Park 2 Corporation

Ministry of Science and


Technology
VCCI
VBF Investment and Trade
Working Group/
Baker&McKenzie Vietnam
Duane Morris Vietnam
KOTRA Hanoi
Intel Vietnam

Mr.

Kenta Kawanabe

Leader of the Working Group


on used machines regulation/
Director

Mr.

Koichi Yamaguchi

Chief Representative

JX METALS TRADING

10

Mr.

Kengo Ando

Secretary General

Japan Business Association


in Vietnam

11

Mr.

Masaaki Toma

Second Secretary

Embassy of Japan

12

Ms.

Nguyen Vu Quynh Lam

Senior Associate

VILAF

13

Mr.

Nguyen Mai

Chairman

Foreign-owned Companies
Association

14

Mr.

Vu Ngoc Bao

Vice Chair and General


Secretary

Paper and Pulp Association

15

Mr.

Nguyen Truong Vinh

Deputy Chief, Air Pollution


Control Division, Pollution
Control Administration

Ministry of Natural
Resources and Environment

16

Mr.

Le Anh Ba

Vice chair

Vietnam Building Material


Association

17

Mr.

Nguyen Duc Thinh

Director, Mechanics
Development Consulting
Center

Mechanical Engineering
Companies Association

18

Mr.

Phan Van Hai

Managing Director

19

Mr.

Pham Hoai Long

Vice Director, Hanoi branch

20

Mr.

Vo Van Trung

Representative

21

Mr.

Nguyen Cong Tuan

Representative

22

Mr.

YoungJun Cho

Vice-Chairman

the Korean Chamber of


Commerce in Vietnam

23

Mr.

Chu The Hung

Managing Director

APZ

24

Mr.

Doan Nang

former head of Legal Affairs


Department

Ministry of Science and


Technology

25

Ms.

Ha Phung

Coordinator

VBF Secretariat

Page 10 of 10

Vietnam Building Machinery


Development Co.
VINACONTROL
Vietnam Building Machinery
Association
Vietnam Printing Association

Section III

BANKING AND
CAPITAL MARKETS

Banking

Banking Position Paper

Vietnam Business Forum, 2015

BANKING POSITION PAPER

Prepared by:
Banking Working Group

SECTION A KEY AND EMERGING ISSUES


The Banking working group (BWG) hereby presents to the State Bank (SBV) the following
key issues.
1. Circular 301
On March 12, 2015, SBV has sent an official Letter No. 1464/NHNN-TTGSNH regarding
guiding implementation of Circular 30 (OL 1464) in response to BWG Letter No. VBFBWG-2014004 dated January 05, 2015. But Official letter 1464 did not provide a specific
guide for the Banking working group to actually start taking entrustment for lending
from corporate clients.
On May 4, 2015, the Banking working group had an official letter sent to SBV, Ministry of
Planning and Investment, Ministry of Finance and Ministry of Justice asking for your
joint guidance (we attached the official letter with this document for your reference). In
the letter, the Banking working group requested that SBV work with relevant agencies
to provide specific guides on how to perform entrusted lending transactions between
corporate clients and credit institutions/foreign bank branches as provided in Circular
30.
2. Circular 36/2014/TT-NHNN on safe operation limits and ratios of credit institutions
and branches of foreignowned banks (Circular 36)
The Banking Working Group appreciates the Official Letter 3110/NHNN-TTGSNH dated
May 6, 2015 providing responses to address queries and questions of credit institutions
and foreign bank branches regarding the implementation of Circular 36. Our bank
members are studying the responses given in the official letter to implement Circular 36
in line with other banks in the market. If there are still any encountered issues, we very
much hope that the SBV could facilitate further technical discussions with the working
group in the coming time.
3. Specific issues pertaining to foreign exchange governance
We valued the opportunity to meet the Foreign Exchange Administration on Feb. 5, 2015,
where numerous foreign exchange concerns were solved. We hope that more of such
efficient meetings at the working level between SBVs departments and the Banking
working group will continue in the future.
Here are some emerging concerns that we are facing and also some other issues that
await clarification. The Banking working group suggests that SBV walks us through this
to make sure we remain in compliance with the law.

Transfer of equity of non-resident foreign investors in a foreign invested enterprise


or foreign investment project to another non-resident foreign investor
Article 1.4, Ordinance 06/2013/PL-UBTVQH13, dated Mar. 18, 2013, revising the Foreign
exchange Ordinance, specifies; Enterprises with foreign direct investment and foreign

investors who are parties to business cooperation contracts shall set up a direct

Circular 30/2014/TT-NHNN dated November 06, 2014, providing on entrustment and fiduciary service delivery
by credit institutions and foreign bank branches

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investment capital account at an eligible credit institution. Equity financing and


transfers of the principal investment capital, earnings and other legal revenues shall be
made through this account Other legal transfer of funds related to investment
activities shall be subject to relevant laws and guidelines of the State Bank of Vietnam.
To guide the implementation of the above regulation, SBV released Circular 192.
According to the report: Transfer of equity in a foreign invested enterprise and foreign
investment projects of foreign investors shall comply with the provisions of the
Investment Law, Enterprise Law, Personal income-tax Law, Corporate income-tax Law,
while implementing the documents of these laws, existing regulations for foreign
exchange control and other relevant laws and regulations (Article 4.4). Transfer of
payments for the value of the transferred equity and investment projects shall be
subject to existing rules for foreign exchange control and other relevant laws and
regulations (Article 4.5).
Additionally, according to Article 7 on using foreign currency direct investment capital
accounts; collection of, and payments for the value of transferred investment capital
and investment projects may be executed through a foreign currency direct investment
capital account of the company with direct foreign investment or foreign investor being a
party to a business cooperation contract.
Our understanding is that according to the above rule, in case (1) a non-resident foreign
investor transfers his/her equity in a foreign invested enterprise or foreign investment
project to another non-resident foreign investor; (2) a resident Vietnamese investor
having foreign investment and a foreign investment project transferring to a nonresident foreign investor. The value of transferred equity may be determined and paid
in a foreign currency and must be made through a foreign currency direct investment
capital account of the company with direct investment or foreign investor in a business
cooperation contract maintained at an eligible bank. We need SBVs clarification on this.

Verification of supporting documents: Between Decree 703 (Article 16) and Circular 164
(Article 9), there is one inconsistent part on the obligation of banks related to verification
of supporting documents. We suggest that banks should only have the verifying
obligation to meet their customers practical needs (to avoid speculating acts) and make
sure the banks activities comply with the law. It is not advisable to rule that banks
should assume the obligation to make sure that their customers business activities
comply with the law, because that should be the obligation of the customers and other
regulatory agencies.

Circular 07/2012/TT-NHNN on the foreign exchange position of CIs and foreign bank
branches.
While banks may report foreign exchange positions that arise from monetary derivative
transactions (e.g. cross currency swaps (CCS) a useful instrument for customers to
hedge against interest rate and foreign exchange rate risks under Circular 01/2015/TT-

Circular 19/2014/TT-NHNN provides guidance on foreign exchange control for foreign direct investment in
Vietnam.
3
Decree 70/2014/N-CP, July 17, 2014, providing details on several provisions of the amendments to the
Foreign exchange Ordinance.
4
Circular 16/2014/TT-NHNN, Aug. 1, 2014, guiding use of foreign exchange accounts, VND accounts by
resident and non-resident persons at eligible banks.

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NHNN, Jan. 6, 2015), these positions are not included in the gross foreign exchange
position used to rate compliance with the foreign exchange position limit at day end.
Under-reporting of the gross foreign exchange position may lead to high risks for banks.
An example is when the positions generated from CCS deals are squared through spot
foreign exchange deals. Since the gross foreign exchange position only includes
positions generated from spot foreign exchange deals, and not those generated from
CCS deals, the total foreign exchange position reported under the current scheme will
be much greater than the real balance, and may even result in banks being in breach of
the foreign exchange position limit while in fact their real foreign exchange position is
much lower.
Calculation of foreign exchange positions generated from monetary derivatives will also
follow international practices because it reflects accurately and truthfully the actual
foreign exchange position of the banks. Moreover, reporting accurately and truthfully
the foreign exchange position by banks will also help the State Bank to have accurate
and reliable data for its decision making and introduce accurate and reasonable policies
relating to foreign exchange control.
We hope that SBV considers allowing foreign bank branches and wholly foreign-owned
banks to report their foreign exchange positions generated from monetary derivatives
by including them to the end-of-day total foreign exchange position, which will be used
to rate their foreign exchange position limit specified in Circular 07. Reporting this way
is also consistent with recent guidance in Official letter 7221/NHNN-TCKT, dated Oct. 1,
2014, which allows wholly foreign-owned banks to adopt international accounting
standards for foreign exchange transactions and derivative contracts related to financial
instruments until the Ministry of Finance has in place official financial standards.
-

Compliance with regulation on deposit


Art. 13.2 of Decree 70 (2014) states: only "resident individuals; being Vietnamese
citizens are allowed to place saving deposits in foreign currency at authorized credit
institution, and to withdraw the principal and interest amounts in the same currency".
As per Art. 4.13 of the LCI 2010, taking deposit by a credit institution does stand for the
receipt of funds deposited by customers; being organizations or individuals in form of
demand deposit, time deposit or saving deposit etc.
As such, and further to much clarification with the SBV, we clearly noted that:
+

A customer being an organization (domestic or overseas) or foreign individual


person (resident or non-resident in Vietnam) ("Customer") is not allowed to place a
saving deposit in foreign currency. In fact, an organization is not subject of saving
deposits despite clear guidance or regulation. By the way, there is no restriction
applicable to any time deposit in both foreign currency and VND placed by the said
Customer.

Circular 06/2014/TT-NHNN, Circular 07/2014/TT-NHNN and Decisions 2172 (2014),


and 2173 (2014) of the SBV providing guidance on time deposit of customers
including both individual and organizations do not distinguish the resident and nonresident. Needless to say, the interest rate cap for deposit in VND and foreign
currency only apply to time deposits, and no limit applied to savings deposits.

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Therefore, almost all CIs/FBBs to continue receiving time deposit in VND and foreign
currency from individual and organization (customer) being resident and nonresident in-line with the above regulation. Please correct us in writing if our
understanding and practice elaborate herein above is not accurate.

SBV has recently issued the draft regulation on deposits and requested credit
institutions and foreign bank branches to issue comments and recommendations. In
response to SBVs request, BWG has submitted a consolidated comment paper on the
draft regulation. We very much hope that SBV will consider our feedback and make
necessary changes in the regulation once it is issued.

Circular 16/2014/ TT-NHNN guiding uses of foreign currency and Vietnamese dong
accounts by resident and non-resident persons with eligible banks (Circular 16)
Article 3, Circular 16, provides on use of foreign exchange accounts by resident
institutional persons in fund transfers or cash withdrawals in foreign currencies to pay
salary, bonuses, and allowances for non-resident and resident foreign persons. And
cash withdrawals in foreign currencies to pay individuals working for the organization
when they are sent overseas for business purposes.
In practice, resident corporate persons often send their staff on business trips to work
on the companys projects or on study tours overseas. As such business trips or study
visits are often long-term (several months), taking cash with them (maximum USD5,000)
is unreasonable, and both the company and employee may wish to have the employees
salary transferred to the employees account opened overseas to use for personal
finance needs. Such salary transfers overseas will end once the employee comes back
home.
We suggest that SBV includes and provides guidance on the transfer of funds in foreign
currencies overseas for personal use by individuals working for their organization, when
they are send abroad on long-term business or study visits.

We need SBV to clarify the criteria determining the form of foreign direct investment:
(i) the foreign investors making capital contributions and getting involved in running the
business, or (ii) the company awarded an (foreign direct) investment certificate, or (iii)
both. In practice, many Vietnamese companies may also receive an Investment
certificate while a company may have foreign investors involved in governance but does
not have an Investment certificate. Also, please make clear how this should be done in
case of foreign banks in Vietnam?

4. BWGs recommendations on disclosing inspectors verdicts


Under the governments Decree 26/N-CP, dated Apr. 7, 2014 on the organization and
operation of banking inspectors and supervisors, and Circular 03/TT-NHNN, Mar. 20,
2015, guiding the implementation of specific provision of Decree 26; inspectors verdicts
may be disclosed, excluding its sensitive parts. Disclosure of inspectors verdicts,
however, may result in adverse consequences:
-

Creating a negative, knock-on effect to other credit institutions;


Disclosing only parts of the inspectors verdicts will lead to the fact that the public,
customers or other credit institutions and foreign bank branches cannot get the
whole picture of the inspection, which may hurt the reputation of the inspected entity.
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Customers dealing with an audited entity may not have a thorough understanding of
the inspectors verdicts, so they may have a negative view of the credit institution or
foreign bank branch.

For these reasons, we suggest that the State Bank considers a ruling that the entire
inspectors verdict is government classified information and no part of it must/to be
disclosed.
5. Circular 23/2014/TT-NHNN, guiding setting up and using transactional accounts at a
payment service provider

Translation to Vietnamese with notarization or consular certification of incorporation


decision or personal identity paper when setting up an account (Article 12.3, Circular
235)
We understand that this is a matter of national sovereignty when these documentations
are submitted to a government agency, but at the same time also realize that this ruling
will lead to a major procedural burden for commercial banks and foreign investors,
especially at a time when Vietnam is looking for serious international integration,
whereas commercial banks can read and understand well/completely comprehend,
documents in foreign languages. We recommend removal of this rule.

Item 2 Article 12 and Item 2 Article 13, Circular 23:


In the technical meeting with regard to the Foreign exchange management and payment
accounts between SBV and BWG VN Enterprise Forum (VEF), dated 5/2/2015; SBV did
make clear that (1) payment account is a general term, being deposit accounts without
tenor serving for payment purposes, hence indirect investment accounts should be a
particular type; (2) Circular 23 guides organizations operating in Vietnam territory ,
hence foreign investors opening indirect investment accounts wont be subjects
governed by Circular 23; (3) indirect investment accounts should not be listed in
payment accounts.
In addition, regulations guiding Laws on Security, such as Circular 213/2012/TT-BTC
dated 6/12/2012 of Ministry of Finance (MOF) guiding activities of foreign investors in
Vietnams securities market (Circular 213) and Circular 05/2014/TT-BTC dated
15/1/2015 of MOF guiding the securities depository, registration, clearing and
settlement (Circular 05 BTC), allow foreign investors, global custodians to use SWIFT
message to send instructions/orders to their local custodian in Vietnam. And are not
required to send manual instruction or provide IDs or signature specimens of
authorized signers, of chief accountant or accountant director.
Also, we would like to emphasize that, in the past, the State Securities Commission
(SSC) and Vietnam Securities Depository (VSD) required foreign investors to submit
an (1) Appointment Letter of representation for foreign investors and (2) Information slip
of appointed representative of foreign investors in the Securities Trading Code
Application package. However, later on, based on the feedback from foreign investors,
custodian banks and other market participants, MOF and SSC did consider and remove
such requests, reflected in the Circular 121/2008/QD-BTC dated 24/12/2008 of MOF.
This is absolutely in line with the Governments attempt to reform administrative
procedures to encourage foreign institutional investors in Vietnams securities market.

Circular 23/2014/TT-NHNN, guiding opening and use of transactional accounts at payment service providing
institutions.

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6. Recommendation for addition of banking products in SBVs upcoming normative


regulation amendment and enactment

New draft Circulars


Lending rules: Lending for restructuring loans with other credit institutions
In international banking practice, credit institutions issuing loans to restructure their
debts with other credit institutions do not alter the nature of the loan or mask bad debts,
and is a normal and common practice in the lending operation of credit institutions.
Lending rule 1627 and the draft Circular replacing Decision 1627 are not specific enough
on debt restructuring lending. But in the lending practices of CIs and FBBs, there have
been a number of procedures to restructure loans without altering the nature of the
loans on the side of the borrower, and not to mask bad debts, such as; mid-term and
long-term lending to restructuring short-term loans, lending in foreign currencies to
restructure loans in VND, lending in VND to restructure foreign exchange loans,
granting new loans to repay existing loans with other CIs. Also, in the recent harsh
times of business practices, the government and State Bank even advised CIs to do this,
considering it as a way to bail businesses and the market out of trouble.
Allowing CIs and FBBs to use lending for restructuring of debts is a necessary
regulation to give the borrower an opportunity to maintain and stabilize their business
operation, and generate income to repay their debts to the banks; which is consistent
with current international practices in bank lending.
As such, we suggest that the State Bank considers additional rulings on debt
restructuring lending in the draft Circular guiding credit institutions lending activities
which is being discussed as a replacement of the lending rules annexed to Decision
1267 to ease bottlenecks for customers. Including mid-term and long-term lending for
restructuring of short-term loans, lending in foreign currencies to restructure loans in
VND, lending in VND to restructure loans in foreign exchange, granting new loans to
repay existing debts at other CIs, providing that CIs and FBBs must make sure that the
(tenor?) of the loans match the customers business cycle and debt servicing ability, and
not for purposes of masking bad debt by CIs and FBBs, and hiding facts about the
customers unhealthy business and financial conditions, or distorting the customers
credit quality. We also hope that SBV considers and accepts allowing loan
renewal/rotation (under 01 year) and particularly, not equaling revolving credit as debt
rescheduling or a malpractice under rulings on reserve creation.

Agent banking
Article 106, CI Law, specifies that commercial banks may entrust, take entrustment and
act as agents in areas related to banking activities, insurance brokerage and wealth
management in line with the State Banks rulings. But SBV has not released an
implementing Circular addressing agent for banking activities. The Banking working
group is ready to share information on international practices and work with SBV in
pushing out early these rules to facilitate and meet real users needs for agent banking
offerings and developments of this field of expertise.

Cash Management product


Cash management activity offered by banks will provide clients with effective solutions
in the management of clients cash flow and liquidity. In Vietnam, the Law on Credit
Institutions classifies cash management as one of the banking activities which
commercial banks and foreign bank branches in Vietnam can provide to clients.
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However, in an absence of a specific legal framework and/or guidance from SBV on cash
management, banks could not be able to provide cash management service to clients.
This would cause clients; particularly multi-national companies with many subsidiaries
and affiliates to lack access to effective liquidity management tools such as cash
management offered by local banks and foreign banks in Vietnam. This could
potentially have an adverse impact on the competitiveness of Vietnams banking system
as well as the attraction of foreign investment into Vietnam. We recommend that SBV be
able to lay out the legal groundwork for cash management so that local banks and
foreign bank branches in Vietnam could be able to offer this service to clients.

Non- recourse discounting and factoring


Laws on Credit Institutions and Circular 04/2013/TT-NHNN dated 1/3/2013 only
recognize discounting and factoring activities on a with recourse basis to the seller. This
is not in line with international practices, for products/ solutions such as factoring, bill
discounting and any other product where the bank has enforceable recourse to the
buyer or the buyers bank.
The recourse imposed on the exporters restricts them from accessing good quality
funding to finance their working capital and reduce the payment risks from the buyer.
Aligning Vietnam with the international trade finance standards would help protect
exporters in Vietnam against buyers default and delays of payment, ensuring a steady
source of funding. As these products offer risk protections against buyers and buyers
country risks, Vietnamese exporters would be more comfortable developing commercial
relationships with new markets or counterparties to grow their exports. We recommend
that SBV issue the regulations allowing discounting and factoring activities on a with
recourse basis to both the seller and the buyer.
Notwithstanding the above, we would like the SBV to consider issuing a new or
supplementing regulation on business of discounting bills, notes and other valuable
papers without recourse and/or bill of exchange. By nature, it is a transaction under
which the bank extends credit to the buyer for yearly payments to the seller for
purchase of goods/services. Provided that the seller transfers its whole rights relating
to the sale contract/invoice executed with the buyer, and the buyer accepts to pay the
whole contract price/invoice amount to the bank by the original due date. The
discounting charge shall be the difference between the invoice amount and the one duly
paid early to the seller, converted into a percentage. The terms and conditions of this
type of credit extension are quite similar to lending to the borrower and disbursing
funds to the supplier of the borrower. The current guideline given by the SBV under OL
3212 of 08/05/2013 and OL 7294 of 05/10/2013 said that the above transaction scheme
(i.e. discounting bills, notes and other valuable papers without recourse and/or bill of
exchange) is not for credit businesses but would be regarded as international payment
services. Kindly be advised that under the (international) payment service, (i) the bank
only collect remittance fees (not the discounting charge) and (ii) the bank shall take the
fund of the buyer and transfer it to the seller, but not by using its own fund to pay to the
seller first, then collecting it from the buyer afterward.

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Decree 966
Decree 96 is clearly intended to strongly enhance the effectiveness of bank enforcement
and oversight in Vietnam. In this regard, we applaud the Government for such a
comprehensive and detailed approach.
The Decree 96 does not provide for the mechanism of applying the (lightened or
bleached?) sanctions based on circumstances stated in Articles 3 and 8 of the Ordinance
on Administrative Sanctions (2002) duly amended (2008). We understood these
circumstances shall be applied in any cases. However, Decree 96 provides for mainly
financial oriented sanctions, because when a violation may have been detected, stopped,
prevented in the future and its consequent has been recovered, the violating entity still
has to pay penalty with the lowest fine. This manner seems to not encourage the mind of
self-improvement of the internal control system of CI/FBB. If the revision of Decree 96
is time consuming, we would recommend the SBV to consider a Circular
implementation of such Decree with circumstances stated in Articles 3 and 8 of the
Ordinance be taken into account. For example, the sanction will be decided based on
the nature of violation and its consequence/impact, the actual status of remedy,
preventive measures taken etc. when it is known by the SBV. As such the reminder in
writing can be applied or all sanctions may be exempted.

Offshore Counter Guarantees


In the calculation of single credit limit in banking activities, local regulations on banking
guarantees and credit activities only exclude guarantee balance in case the guarantee
issuance is on the basis of the counter guarantee issued by local credit institutions or
foreign bank branches in Vietnam. In case the guarantee is issued on the basis of the
counter guarantee that is issued by a foreign bank overseas, for example, the foreign
branches of the foreign bank branches in Vietnam or the mother bank of the guarantee
issuing bank, such a guarantee is still subject to single credit limit calculations. In fact,
in both cases, the credit risk for the guarantee issuing bank associated with this
guarantee is almost the same since it already rests with the counter guarantee issuing
bank. This is also, not in line with international practices. The non-recognition of the
counter guarantee issued by a foreign bank as an exclusion in the single credit limit
calculation would potentially restrict the capacity of foreign bank branches in Vietnam to
issue large-amount guarantees to support large FDI projects in Vietnam. If however,
foreign bank branches in Vietnam could only rely on local banks as a counter guarantee
issuer with more limited capacity in terms of capital and credit worthiness in
comparison with foreign banks.
We recommend that SBV would allow the exclusion of the guarantees which are issued
on the basis of a counter guarantee issued by foreign banks overseas out of the single
credit limit calculation.

Close Out Netting and Set-Off


Currently, there is no regulation that addresses netting of market transactions. While
trading partners within Vietnam may agree to offset their positions or obligations, it is
unclear whether these agreements are permissible or enforceable under current local
laws. Besides reducing transaction costs, netting is a critical tool for efficient markets
as it reduces credit and liquidity risks, as well as ultimately, systemic risk. Additionally,
given that netting results in more favorable capital treatment for credit risks; netting
arrangements are crucial for Vietnamese-domiciled banks as it may help to improve
Decree 96/2014/ND-CP on Civil penalization in relation to monetary and banking practices

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their credit ratings when they participate in the international markets in order to hedge
their positions. We recommend SBV to propose to the Government and work with
relevant authorities; industry and external experts to develop regulation on close out
netting and set-off in line with international best practice.
SECTION B REVIEW OF PENDING AND LONG OUTSTANDING ISSUES
The working group respectfully recommends that SBV reviews and provides its guidance on
the following matters raised previously.
1. Licensing
New licenses for existing activities under old regulations/licenses
Recently SBV issued several regulations which require credit institutions (CIs)/foreign
bank branches (FBBs) to have such businesses stated in their specific license for doing
so while the relevant old regulations did not require a license (Circular 01/2015 on
Interest Rate Derivatives transactions) or the license shall be invalid upon the
effectiveness of the new regulation (Circular 21/2014 on FX licenses which covers
factoring business), ...).(??)
The Circular 01 became effective since March 2nd, 2015. The CIs and FBBs submitted
applications to SBV for a while but the licensing departments were overloaded and could
not grant the license on time. Circular 21 provides the deadline for obtaining FX license
from SBV is 14 Oct 2015. We assume the situation shall be similar and this will take the
CIs/FBBs into an uncertain position and to be challenged by SBVs inspectors.
We would ask for SBVs comprehensive consent permitting CIs/FBBs to continue with
those activities under the old regulations waiting for new licenses from SBV.

FX license
We recommend that banks should be allowed to carry out basic FX activities in both
domestic and international markets so as to meet clients needs, properly hedge
associated risks, and ensure liquidity. Importantly, there should be no limitations on
basic FX activities in the international market performed by foreign bank branches in
term of client categories. Basic FX activities in the international market should be
licensed on an umbrella basis, to reduce the unnecessary and heavy administrative
workload for both banks and the SBV.

Update of general banking license


We understand that SBV has put a lot of efforts to work out an approach to sort out the
existing licensing risks faced by all banks in the market. This approach is applauded and
appreciated by all banks across BWG. However, the latest updates from SBV, shows that
all license updates are put on hold until the new regulation on license re-issuance is
issued. This exposes many legal risks to banks (or interruption of financial services to
clients) and we are looking forward to the guidelines to be issued soon by SBV on this
matter.
During the interval period, we highly appreciate if the SBV can confirm in writing that
CIs/FBBs; being applicants who were conducting the businesses (i) mentioned in all
current licenses and (ii) as stated in specific regulations at the moment of submitting
the application for a comprehensive license, can continue such business pursuant to
technical regulations applicable to each type of product.
Regarding Circular 01 , the BWG has made a written request to SBV asking for a grace
period in applying for an interest rate derivative license. Meanwhile, several banks have
submitted an application but are still awaiting approval. The BWG is in a view that while
waiting for the approval, banks may still engage in interest rate derivative activities.
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Regarding Circular 21, most foreign banks have not applied for renewal of a banking
eligible certificate as most of them are still preparing their dossier.
Pending of approval for organizational structure of FBBs
Article 89.1 of the Law on Credit Institutions requests FBBs to obtain SBVs written
approval of organizational structures before the implementation. However, all the
applications to the Licensing Department - SBV for organizational structure of FBBs
was kept pending and no approval has been granted so far, with the reason being that
there is no guideline for such an approval process. This takes the FBBs into a risky
situation since we could not wait and had to implement the organizational structure
without approval from SBV.
We would suggest SBV to push this process and, during the interim period, to allow
FBBs to implement their organizational structure without SBVs approval in order to
meet their business requirements.
Update of commodity product license
Currently SBV only allows credit institutions and foreign bank branches to offer
commodity derivatives on a pilot basis which is normally for one (01) year and subject to
SBV approval for any extension. Uncertainty in licensing could result in disruption to
banking services to clients, and also to banks risking legal breaches with existing
transactions committed to them. We request that the SBV re-evaluate the pilot
license framework for commodity derivatives as a more permanent approach. The BWG
will continue to work with SBV to develop the regulation on commodity derivatives to
facilitate this process.
2. Reimbursement of interest subsidy
Over the last years, banks have been waiting for the reimbursement of 20% of due
interest subsidies under the interest rate support initiative that ended in 2009. Following
our previous meetings with SBV in late 2012, we note that the figures have been checked
and finalized for a number of BWG members. We also understand that this is a
complicated matter that may have bearings on the public funding balance sheet and
nations financial health. However since the unpaid accumulated reimbursements are
presenting themselves as a problem with the banks in relation to their internal
accounting systems and audited financial statements, the working group would
appreciate if SBV wraps this up and starts releasing this interest rate refund as soon as
possible.
3. Anti Money Laundering (AML)
The working group is delighted that Circular 31/2014/TT-NHNN, revising Circular
35/2014/TT-NHNN on anti-money laundering was released on Nov. 11, 2014, in which
many BWGs recommendations have been accepted. There are, however, several points
in the new Circular 31 revising Circular 35, and Decree 116 that are in fact very hard or
impossible to implement. So the BWG would hereby update SBV of the following
information:
-

Obtaining information of personal residential address, of the representative person


of the parent company, subsidiary, representative office for foreign customers and
information of beneficiary individuals, entities (ID, passport, tax code, etc.)
It is difficult to obtain such information for foreign/non-resident customers. The
verification of the foreign beneficial owner is impractical to perform in case there is
data privacy law in their country that prohibits the information sharing with the bank
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in Vietnam as in many cases, even the branch or affiliate under the same bank in that
country is not permitted to collect the information pursuant due to the countries
regulations.
-

Meeting customers at first establishment of relationship


This is impractical for foreign investors. Moreover, in accordance with Article 14.3.b
of Circular 23/2014/TT-NHNN guiding the opening and usage of payment account at
the institutions providing payment service, the bank is not required to meet in person
when opening the payment account for entity clients. We recommend SBV to
acknowledge that this point is the further guidance for the similar requirement in
AML regulations.

Information sharing in anti-money laundering between the headquarters, branches


and subsidiaries.
The draft Circular revising, Circular 35/2013/TT-NHNN addresses information
sharing in anti-money laundering between the headquarters, branches and
subsidiaries in a same institution, which is a must. And for information treated as
confidential in banking business, reporting entities may only provide it to offshore
financial institutions which they have an agent banking relationship with for the
purposes of anti-money laundering efforts if they are accepted by the SBV Governor.
This rule however is not included in Circular 31 revising Circular 35. We hope SBV
clarifies this.

CONCLUSION
Many of the issues and comments mentioned in this paper come from a clear and urgent
drive by the State Bank of Vietnam to create a better governed more transparent banking
system. We are moving steadily and progressively to this aim and there is increasing
confidence that we are moving in the right direction. As noted in the beginning, we believe
that Vietnam can shortly begin work on other aspects of developing the financial markets,
so that Vietnam has a solid and robust financial sector for future growth.
The BWG remains committed to help in any way possible in furthering Vietnams financial
market development to serve the needs of our customers and the nation.

Page 11 of 11

Capital Markets

Recommendations of Capital Markets Working Group

Vietnam Business Forum, 2015

RECOMMENDATIONS TO PROMOTE AND DEVELOP THE STOCK MARKET IN VIETNAM

Presented by
Mr. Kien Nguyen
Representative
Capital Markets Working Group

In our view, the stock market in Vietnam has been going backwards, especially when
compared with other ASEAN countries. Although the State Securities Commission (SSC)
has been listening to investors concerns and trying its best to support its investors, the
factors attributable to the stock market going down appear to be beyond the SSCs control
and require immediate and decisive response from the Government.

Vietnam, with a population of 91 million people, has the stock market capitalization
of approximately $46 billion, being only 25% to its GDP;

The Philippines, with a population of 99 million people, has the stock market
capitalization of approximately $184 billion (4 times bigger than Vietnam), being 65%
to its GDP;

Thailand, with a population of 69 million people, has the stock market capitalization
of approximately $418 billion (9 times bigger than Vietnam), being 112% to its GDP;

Malaysia, with a population of 30 million people, has the stock market capitalization
of approximately $287 billion (6 times bigger than Vietnam), being 88% to its GDP;

Singapore, with a population of 5 million people, has the stock market capitalization
of approximately $415 billion (9 times bigger than Vietnam), being 135% to its GDP;
and

Indonesia, with a population of 251 million people, has the stock market
capitalization of approximately $397 billion (8 times bigger than Vietnam), being 45%
to its GDP;

As a result, in our view, the current stock market of Vietnam will be unable to support the
privatization process. To our knowledge, the estimated total value of the SOEs to be
privatized in the next 3 years is US$25 billion. If the Government offers to sell only 15% of
the shares, the market will need US$3.75 billion to buy those shares. Thus, the capital
mobilized locally will certainly not be enough to buy the shares, and a new flow of foreign
capital will be needed to purchase those shares.
However, for the period between 1 January and 19 May 2015, there was only a new foreign
capital of US$5 million to Hanoi Stock Exchange and US$113.3 million to Ho Chi Minh Stock
Exchange.
To promote and develop the stock market in Vietnam, we have 3 suggestions as follows:
1. PRIVATIZATION AND LISTING OF PRIVATISED SOES
We suggest that the Government take into account the following factors concerning
privatization:
(a) the privatization must go together with the listing of privatized companies; and
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(b) to create liquidity for the aftermarket, the privatization should be done through a
global syndicate and 25-30% should be sold off.
2. INCREASING FOREIGN OWNERSHIP LIMITS
(a) For 3 years, foreign investors have been waiting for the Government to increase
FOLs in public companies, and we are currently still waiting for the amended Decree
58/2012/ND-CP;
(b) To attract a new flow of foreign capital to the stock market and also to the newly
privatized SOEs, Vietnam should proactively and decisively abolish the restriction of
49% foreign ownership currently applicable to public companies, and:

apply Vietnams WTO commitments to public companies providing services; and

open up the stock market by removing all ownership restrictions applicable to


public companies and other businesses which do not fall into the Vietnams WTO
commitments (except business lines which are subject to special conditions or
related to national security).

3. CREATION OF PENSION FUNDS


We urge the Government to pass the draft Decree on pension funds quickly because:
(a) these funds will provide a significant demand for the financial market and
privatization; and
(b) for the long term, pension funds will also help to reduce the pressure on the current
Social Security Fund, and provide Vietnam with an advanced social security platform,
being a multi-tiered system, which is well recognized to enhance benefits for
employees.

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TALKING POINTS
MEETING BETWEEN STATE SECURITIES COMMISSION AND
CAPITAL MARKETS WORKING GROUP VIETNAM BUSINESS FORUM
The Capital Markets Working Group Vietnam Business Forum highly appreciates the
efforts of the Ministry of Finance, the State Securities Commission (SSC), the Stock
Exchanges and the Vietnam Securities Depository (VSD) in recent years to improve the legal
framework in order to create more favorable conditions for indirect investment activities of
investors. For your consideration, we would also like to share some of the difficulties that
we are facing, they are as follows:
Part I KEY MATTERS
1. Privatization of SOEs: We understand that following Decision 511 on privatization of SoEs of
the Prime Minister, the Government has been making effort to expedite the privatization process.
We also appreciate the Prime Ministers recent re-enforcement of the transfer of the State
ownership in SoEs to the State Capital Investment Corporation (SCIC) under Circular
118/2014/TT-BTC.
In our opinion, compulsory listing of privatised SoEs is a significant breakthrough and a
wise decision, showing the Prime Ministers determination towards the process of
privatization.
However, again we would like to emphasize that the compliance and enforcement of, as
well as the supervision of compliance and enforcement of, the Decision 51/2014 will play a
crucial role in the success of the privatization of the SOEs.
To our understanding, the estimate total value of the SoEs to be privatised in the next 3
years is US$25 billion. If the Government offers to sell only 15% of the shares, the market
will need US$3.75 billion to buy those shares. Thus, the capital mobilised locally will
certainly not be enough to buy the shares. As a result, the Government should assertively
open up the stock market as suggested in more detail in the items below.
To make the privatization process succeed, and also meet the expectation from both the
Government and investors, we would like to emphasize on the following:
a. the Government should publicly publish a list of SoEs to be privatised. The list should
contain names of SoEs, estimated time for privatization, and estimated price to be
offered to the public;
b. to create liquidity for the aftermarket, the privatisations should be done through a global
syndicate and 25-30% should be sold off;
c. The Government should pro-actively establish rules on good corporate governance
based on the international practice, and apply those rules to the privatised SoEs; and
d. The Government should expedite the creation of domestic pension funds as these funds
will provide a significant demand for the financial market and privatisation.

Decision No. 51/2014/QD-TTg on Guidelines on the capital divestment, sale of shares, trading registration,
and share listing on the stock exchange of state-owned enterprises (SOEs) dated September 15th, 2014 issued
by the Prime Minister (Decision 51/2014).
1

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2. Amendments to Decree 58/2012/ND-CP - Foreign ownership limits: We wish to express


our appreciation for the SSC seriously taking into account our comments on the proposed
amendments to Decree 58.
In our view, those amendments need to show the Governments true and strong
determination to open up the stock market to foreign investors. To attract the new flow of
foreign capital to the stock market and also to the newly privatised SoEs, Vietnam should
proactively and decisively abolish the restriction of 49% foreign ownership currently
applicable to listed companies, and:
a. apply Vietnams WTO commitments to listed companies providing services; and
b. open up the stock market or remove all ownership restrictions applicable to listed
companies which do not fall into the Vietnams WTO commitments (except business
lines which are subject to special conditions or related to national security).
We hope that those proposed amendments, when passed, will be a positive and significant
breakthrough of the Vietnamese Government to open up the stock market, which is also a
critical factor supporting the process of SoE privatization and contributing to State coffers
to offset budget deficits.
We hope that the SSC will provide investors with frequent update on the progress of passing
those new amendments.
3. NVDR (Non-Voting Depository Receipt): In our view, even though the Government truly
determined to open up the stock market, there will be companies subject to foreign
ownership restrictions (for instance, companies doing businesses which are subject to
special conditions or related to national security).
Based on our study, issue of non-voting depository receipts (NVDRs) to foreign investors
can be an effective option that may have a relatively broad-based effect on the performance
of the stock market, and at the same time maintain the ownership restrictions. On the one
hand, it helps promote the inflow of foreign investment, improve market liquidity whilst at
the same time reducing the capital costs of companies. On the other hand, it may also bring
a positive impact to the state budget and higher revenue from the payment of fees, taxes on
securities investments, and help to speed up the privatization (equalization) process.
Concerning the risks associated with NVDRs, firstly, the so-called foreign control risk
remains minimal. Thailand and Malaysia can be used as prime examples of this, as they
both allow nearly unlimited foreign investment in NVDR's.
Based on the experience of other countries in the region, we suggest that the Government
consider applying NVDRs in Vietnam as follows:
a. allow non-voting depository receipts (NVDRs) by adopting Thailands model, for a pilot
period of two years;
b. allow NVDRs to be issued in the trial period at a cap of 20% of the total shares; and
c. following the 2-year pilot project, if the NVDR option really does help improve market
performance, without conflicts of interests between local and foreign investors, loosen
or remove the above NVDR ratio.

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4. Proposed Amendments to Circular 213/2012/TT-BTC: We wish to thank the SSC for


proposing amendments to Circular 213.
We have already submitted a separate submission on those proposed amendments. For the
purpose of our dialogue with the SSC, we wish to raise our concern about the introduction
of new definition of group of related foreign investors in the current Circular 213 and also
in the proposed amendments. This definition has created unnecessary and troublesome
reporting obligations for foreign investors in the stock market in Vietnam. In addition,
present reporting requirements arising from this definition effectively prevent foreign
investors from engaging more than one fund manager for its investments in Vietnam.
We suggest that the definition of group of related foreign investors be deleted in the
amended Circular 213 and also in draft amendments to Circular 52/2012/TT-BTC on
Information Disclosure.
5. Pension Funds
We appreciate the effort of the Ministry of Finance in preparing the draft Decree on the
pension funds. We very much hope that the draft Decree will be submitted to the
Government in August this year under the current schedule, and be soon passed by the
Government so that the market participants will be able to establish the pension funds at
the earliest.
We particularly appreciate the Governments effort to set up a legal frame work for the
pension funds for following reasons:
a. these funds will provide a significant demand for the financial market and privatization;
b. the capital invested in the pension funds will be used to re-invest in the Government
bonds (our research shows that, according to the international practice, 40 to 60% of
the assets of pension funds are invested in the Government bonds. This practice is also
reflected in the draft Decree on pension funds). The capital invested in the pension
funds will also help reducing the investment in Government bonds by commercial
banks, which is currently at the alarming level (the commercial banks currently hold
83% of the total issued Government bonds as at the end of 2014);
c. the establishment of the pension funds will also help to reduce the pressure on the
current Social Security Fund (SSF). The SSF has been going through many changes
(including amendments on the Law on SSF) to ensure that it will sustainably grow and
not make losses. The pension funds will also provide Vietnam with an advanced social
security platform, being multi-tiered system, which is well recognized to enhance
benefits for employees; and
d. the pension funds will enhance benefits for their members as there is no contribution
limit in those pension funds (as opposed to the limited contributions to the current
SSF).
6. Accelerate the process of listing commercial banks which are public companies
We recommend the SSC to closely work with the SBV to enforce the process of listing
commercial banks which are public companies, and regularly provide official updates on
the progress to foreign investors.
7. Permit FX forwards for investors
We recommend the SSC to propose to the SBV to permit FX forwards for local institutional
investors, fund managers and foreign investors to hedge exposure, so that we can best
support and encourage investors investment activities in Vietnam market.

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8. Create a Securities Borrowing Lending (SBL) market aligned with international


practices
In addition to the SBL activities to support conversion transactions of ETFs and fails
management, we recommend the SSC to consider creating a SBL market with commercial
loans aligned with international practices so that we can attract more qualified investors to
Vietnam market.
9. Mitigating counterparty risks relating to Settlement bank
We appreciate the effort of the Ministry of Finance, SSC, VSD and the State Bank of Vietnam
(SBV) to lower counterparty risk relating to Settlement bank, i.e. the plan and
implementation of transferring cash payment function for government bond trades from
commercial bank (via Bank for Investment and Development of Vietnam - BIDV) to the SBV
as per the Resolution of the government. Foreign investors have been showing great
interest with this plan and regularly ask for updates on the implementation progress.
However, though the plan has been announced for a long time, we have not received any
official updates on the progress in the last year.
Currently, all payment activities of securities transactions are still being made via BIDV- the
designated settlement bank. We recommend the SSC to work with the SBV to speed up the
process of transferring cash payment function for government bonds from BIDV to the SBV,
and regularly update the market with the progress.
Also, foreign investors would expect the shift of cash settlement for equity trades from BIDV
to the SBV after the shift for bond trades and look forward to an update on the plan.
PART II SPECIFIC MATTERS
A PROCEDURES FOR MARKET ENTRANCE
1. Procedure of certification, notarization
1.1. Practice/Reason for the change
We would like to share some feedbacks from the investors during their preparation process
for the STC applications as below:
- In case the investment entities (normally big funds) use the global custodians, the global
custodians are the entities who will prepare the documents for the investors STC
applications. Global custodians are often big financial institutions, with professional
activities and good reputation globally. There are staffs of these global custodians being
in-house Public Notaries. In these cases, the documents of the investment funds will be
certified-true-copy by these in-house Public Notaries.
- In addition, it is a fact that many investment funds register their establishment in one
country but their fund managing companies or global custodians locate in another
country. The preparation of the STC applications for the investors often takes place in
the country where the fund managing companies or global custodians locate. Thus,
acceptance of notarization in such countries will facilitate foreign investors investment
activities, save time and costs for the investors (in comparison with notarization
mandatorily made in country of domicile).
1.2. Recommendations
- In order to save time and cost and to support the investors in Vietnam market, we
propose the SSC to accept documents of offshore funds using global custodians which
are certified/verified by in-house Public Notaries being staff of global custodians.
- We propose the SSC and the VSD to accept documents for STC applications of
investment funds being notarized at countries not being countries of domicile in order to
save time and cost for the investors.
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2. Acceptance of company secretarys certification of the authorized signature list


2.1. Practice/Reason for the change
In accordance with international practice, companys secretary or secretarial
executive/manager is a senior position in a company and is stated in the Law on
Corporations, normally in the form of a managerial position or above. Basically, companys
secretary plays the following roles:
+ Ensuring that an organisation complies with relevant legislation and regulation, and
keeps board members informed of their legal responsibilities.
+ Acting as companys representative on legal documents, and it is their responsibility to
ensure that the company and its directors operate within the law.
+ Being responsible for registering and communicating with shareholders, to ensure that
dividends are paid and to maintain company records, such as lists of directors and
shareholders, and annual accounts.
In several countries, company secretary may be an individual or an organization whom is
licensed to implement company secretarys tasks. However, they must be members of
well-known accounting/administration associations.
2.2. Recommendations
In view of the important roles the company secretary plays in business, PLCs and large
companies require the company secretary to be suitably trained, experienced and
professionally qualified for these responsibilities. Therefore, company secretary is qualified
to certify the validity of an authorized signature list issued by such organization.
3. Simplified procedures for Licensing and Registration
We suggest that the SSC reviews its licensing and registration processes to simplify the
time and cost burdens for itself and domestic fund managers. For opened-end funds, given
the small number of banks providing such services, the SSC should be able to set up a list
of approved banks for supervisory, custody, fund admin and technical assistance services.
Similarly for select distributors an accredited list should be compiled. Subsequently when
applying for a new fund license, fund managers would not have to submit an identical set of
(normally dozens of) documents as they will often use the same service providers for all
funds in the same family of funds.
B SECURITIES TRADING AND SETTLEMENT
1. Coordination between stock exchanges and the VSD to announce the first trading date
for the bonus shares
1.1. Practice/Reason for the change
Currently, the investors generally and foreign investors particularly, after receiving bonus
shares or stock dividend, are having difficulties locating information on first trading date of
that shares. Especially for foreign investors, when such information is publicly announced
but only in Vietnamese, they can only rely on local service providers (i.e. securities
companies, custodian banks, etc.) who do the translation of the information and forward it
to them. Particularly, for investors using custodian banks, it is even more difficult to access
the information as the custodian banks are not members of the stock exchanges, hence, do
not receive listing announcement directly from the stock exchanges.
Moreover, due to the same reason that custodian banks are not trading members of Stock
exchanges, custodian banks have to manually access Stock exchanges websites on a daily
basis to track any announcement on the first trading date of the new stocks. This is an effort
to ensure that the custodian banks can timely un-block the new stocks of the clients in their
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book, allowing the investors to start trading these stocks as soon as possible in the morning
trading session on first trading date.
In our view, this is not only the responsibility of the company but also the Exchange to
contact and notify registered shareholders or custodian banks of the first trading date.
1.2. Recommendations
We propose the SSC to set up a mechanism for coordination between the stock exchanges
and VSD so that (i) the payment date of the bonus shares/stock dividend is announced to all
depository members as soon as such information is received at the VSD; or (ii) so that the
payment date of the bonus shares/stock dividend is also the first trading date of the new
shares; or (iii) at least the first trading date will be announced on the payment date of the
bonus shares/stock dividend. This is to ensure that all investors (being clients of both
securities companies and custodian banks) can equally receive this information at the same
time.
2. Allowing right trading in stock exchanges
2.1. Practice/Reason for the change
Transactions of the rights of listed shares are being executed between the investors in OTC
market during one or two months from the record date of the event to the subscription date.
The transfer of the rights is made through the VSDs system.
In many markets, the rights are traded as securities via the trading system of stock
exchanges.
2.2. Recommendations
We propose the SSC to consider allowing right trading via the system of stock exchanges.
3. Removal of pre-funding requirements and enhancement of risk mitigating measure in
securities trading
3.1. Practice/Reason for the change
While there is no doubt that the requirement of pre-funding serves the purpose of keeping
failed trades to a minimum, it is inefficient from the perspective of foreign investors. In
most markets, foreign investors have to fund their accounts in the market on the
settlement date, whereas in Vietnam accounts have to be funded 3 daysprior to settlement
date in the case of equity trades. This prevents effective utilization of investors assets and
lowers the returns generated.
In addition, this requirement has created a manual process in the market wherein brokers
have to confirm sufficiency of balances in investors accounts with custodians. This is done
via phone callsand is a risk-prone process as several brokers could be calling custodians in
a very short window of time. As volume of trading grows, this risk will only increase.
3.2. Recommendations
We recommend the SSC to replace the pre-funding requirements with other risk mitigating
measures (i.e. CCP with a settlement guarantee fund and a CCP driven buy-in mechanism)
for the cash equities market to begin with and not wait for a derivatives market to be
established.
In case our recommendation cannot be implemented in the near future, we propose that
the VSD should leverage its new gateway to allow brokers to confirm balances in an
automated manner. Custodians could be asked to upload cash and securities balances into
a VSD run database to which the brokers could connect and block balances real-time.
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4. Odd-lot transactions via HOSE system


4.1. Practice/Reason for the change
Currently, the process of odd-lot trading in Vietnam market is actually inconsistent. For
securities listed on HNX, investors can carry out odd-lot transactions through the stock
exchanges system and make settlement through VSD system which is similar to round-lot
transactions. However, for shares listed on HOSE, odd-lot transactions are still executed
off-exchange, the investor will have to sign a contract with a securities company or the
issuer. Settlement processes for cash and securities for odd-lot transactions of securities
listed on HOSE are completely separated and depend on the agreement between the buyer
and the seller. Regarding securities settlement, investors will have to prepare and submit
dossiers for transfer of odd-lot securities through VSD as per stipulated process.
For foreign investors who do not have a commercial representative in Vietnam, the biggest
difficulty in the preparation process for transfer of odd-lot shares is the title verification for
authorized signatures. In many cases, proving the legality and validity of the odd-lot
transactions of listed securities on HOSE and completing the transfer procedures via the
VSD system are very expensive compared to the value of the odd-lot transactions and very
time consuming due to the notarisation/consularissation procedures.
Many investors when carrying out odd-lot transactions have requested to write-off their
ownership of odd-lots securities. However, the legal framework in Vietnam market has not
provided any stipulation on write-off securities ownership.
4.2. Recommendations
We recommend the SSC and HOSE to consider centralizing odd-lots trading (which is
similar to odd-lot transactions via HNX system) at the soonest to reduce the trading costs
and minimize difficulty on execution of odd-lot transactions of securities listed on the HOSE.
At the same time, we also recommend the SSC to consider approving a mechanism
allowing investors to write-off ownership of odd-lot securities. These securities can be
transferred back to the issuer without any payment obligation or transferred to a joint
account at the VSD to be centrally handled by the VSD, the issuers or securities companies.
5. Procedure for handling collaterals being securities in transactions of commercial loans
with the involvement of the VSD
5.1. Practice/Reason for the change
In VSDs new rules on securities registration issued in March 2015, it is stipulated that in
case the borrower and lender authorize the VSD to be the intermediary to manage the
collaterals, the dossiers and procedure for handling of the pledged securities would be
subject to the contract signed by the VSD with the 2 parties. This new rule has drawn the
attention of many foreign investors (being financial institutions) looking for involvement in
commercial loans with collateral securities in Vietnam but still concerning about the risks
arising during the handling of the pledged assets. However, currently, detailed guidance for
this case is not available so that the new rule can be implemented in practice.
5.2. Recommendations
We recommend the SSC/VSD to provide detailed guidance on the procedure for the abovementioned cases to support commercial loans of foreign investors in Vietnam.
6. Same day cash settlement and securities settlement for purchase transactions
executed on stock exchanges
6.1. Practice/Reason for the change
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We truly appreciate the efforts by the MOF, SSC and VSD to shorten the timeline for
settlement of trades executed on the stock exchanges. However, the fact that cash
settlement and securities settlement for purchase trades are currently executed on two
different days (i.e. on T+2 and T+3 respectively) is causing difficulties for foreign investors in
cash management activities, trade record and reconciliation of their investments in Vietnam
market. In addition, separated settlement of cash and securities as mentioned above is not
aligned with the international practices in almost other securities markets which results in
foreign investors having to intervene and amend their reporting systems at huge costs so
that trade reports and information consolidation on their transactions in Vietnam can be
properly completed. These investors even have to replace their automation tools with many
manual reporting processes to adapt the unique practice of Vietnam market. This has
considerably increased the costs for foreign investors when trading in Vietnam securities
market.
Moreover, cash settlement and securities settlement executed on two different days means
that exposure to settlement bank has increased from intra-day to overnight which becomes
a concern of foreign investors in terms of risk management when they consider trading in
Vietnam market.
6.2. Recommendations
We propose that the MOF, SSC and VSD work on a new settlement cycle in which cash
settlement and securities settlement both take place on T+2.
C- CORPORATE GOVERNANCE OF PUBLIC COMPANIES
1. To enhance the information disclosure quality of public companies, listed companies to
ensure equal rights for foreign investors
1.1. Practice / Reason for the change
Currently, the number of foreign investors participating in the Vietnam stock market is
increasing. Recently, the SSC has announced plans for upgrading Vietnam's stock market
from Frontier market to Emerging markets in MSCI (Morgan Stanley Capital International)
market classification. This classification is widely used by foreign investors in their
strategic planning of global investment. Under this plan, the SSC is actively encouraging
public companies to publish information in English on the companys website.
1.2. Recommendations
General Shareholder Meetings minute is an important document / isthe base to allow
investors to track and supervise the companies activities for implementation of voting
contents in General Meeting. Therefore, we recommend a legal requirement of
publishment of English reference translation of the General Shareholder Meetings minute
applied to companies with capital ranging from average to large size (in.e. having a
chartered capital of VND 100 billion or more) in Article 3 Circular 121/2012/TT-BTC.
2. Ensuring meeting materials and final voting items are sent to shareholders along with
the meeting invitations for annual/extraordinary shareholder meetings
2.1 Practice / Reason for the change
Clause 4.2 Article 7 Circular 52/2012/TT-BTC on Information disclosure in securities market
stipulates that: Such public company shall publish on its website all documents regarding
the annual/extraordinary General Shareholder's Meeting: meeting notices, proxy
designation forms, agendas, ballots, discussion documents as the basis for decisionmaking and draft resolutions on each issue set forth in agendas and send notices of such
meeting and guidance on logging on the website on such meeting and documents regarding

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such meeting to shareholders fifteen (15) working days at the latest prior to the
commencement of such meeting.
However, per our observation, issuers usually send the meeting invitations within the above
timeline; meanwhile, meeting materials are sent to the shareholders much later (usually
no sooner than 5 days prior to meeting date, or even later). In many cases, the voting items
stated in the meeting materials (sent to the shareholders earlier) are changed/added
during the meeting without any prior notice to the investors.
These have been causing many difficulties to investors, especially for foreign investors and
their proxy, due to the 2 following reasons:
- Due to language barriers, foreign investors must wait until the meeting materials to be
translated into English so that they can read, understand and decide their votes. In most
of the cases, foreign investors must rely on their depository members to obtain English
version of such documents. Late dispatch of the meeting materials will not allow foreign
investors/depository members to have sufficient for all these steps.
- Foreign investors are usually not able to physically attend the meetings to cast the
votes, but authorize their proxy to vote on the items specified in the meeting materials
they received before the meetings. Late dispatch of the meeting materials or sudden
changes of voting items with no prior notice would not allow foreign investors to prepare
the authorization for their proxy as well as provide the voting instructions to their proxy.
2.2 Recommendation
We recommend the SSC to stipulate new sanctions for this violation in relevant regulations
to enforce public companies to strictly comply with the stipulations on information
disclosure as mentioned above, and amend Article 3 Circular 121/2012/TT-BTC to specify
the shareholders rights/public companys obligations to receive/provide full information of
the meeting, including meeting materials, final voting items, draft resolution, etc. at least
15 days prior to meeting date. This timeline is also in compliant with relevant stipulations in
Circular 52/2012/TT-BTC on Information disclosure in securities market.
D OTHERS
1. Electronic system for proxy voting (E-voting)
1.1. Practice/Reason for the change
We appreciate VSDs proposal on an electronic system for proxy voting to support investors
in exercising their voting rights in Vietnam. for a country with stretching geography and
more than 31 million internet users like Vietnam, local investors also benefit from e-voting
system. Korea, Taiwan and India are few examples of using e-voting systems.
The new Law on Enterprises has also introduced new provisions being the very first legal
base for the operation of such e-voting system.
However, this is a brand new system and its inauguration may reveal technical issues of the
system its own or issues from depository members sides (due to the limitations of their
systems, techniques, operational processes, internal policies, information security,
limitation on human resources, etc.) Therefore, the members do need sufficient time for
comprehensive preparation before the inauguration of e-voting system.
In addition, the investors also need sufficient time to study and prepare to contribute
comments to the design of the system, as well as prepare to participate in the voting via evoting system in Vietnam.
1.2. Recommendations

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We would propose the SSC and the VSD to share with the members and investors further
details on the proposed operating model of e-voting system and VSDs draft rules on voting
activities via this system, so that the members/investors can contribute consistent,
comprehensive, useful comments to VSDs draft rules.

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Comments on the draft amendments to Decree No. 58 (dated Jan 22, 2015)

Vietnam Business Forum, 2015

COMMENTS ON THE DRAFT AMENDMENT/SUPPLEMENT TO DECREE NO.58/2012/ND-CP


(Dated 26th February 2015)

Prepared by
VBF Capital Markets Working Group

No.

DRAFT DECREE

COMMENTS /PROPOSALS ON THE DRAFT DECREE

CHAPTER I GENERAL PROVISIONS


Article 2: Interpretation of Terms
Securities business organization.

1.

2.

Article 2a: Ownership ratio of foreign investors in


Vietnams securities market
2 [...]
d) For a public company which does not operate in the
industries or fields as stipulated in Points A, B and C of
this clause, the foreign ownership ratio is implemented
as stipulated in the Company Charter (if any), but
should not exceed the maximum ownership ratio as per
the decision by the Prime Minister.

Comment:
Although the Decree refers to the concept of Securities business organization, the
Decree and the Law on Securities have yet to define this concept
Currently, this concept is defined in Item 8, Article 2 of Circular 213/2012/TT-BTC on the
Guidelines of Operation of Foreign Investors in Vietnams Securities Market (Circular
213/2012) as follows:
Securities business organization includes securities company, fund management
company and branch of foreign fund management company in Vietnam.
Proposal: We propose this definition in the draft Decree should be modified as follows:
Securities business organization includes securities company, fund management
company, and branch of foreign fund management company in Vietnam.
Comment:
As per our understanding, one of the purposes of amending Decree No.58/2012 is to
replace Prime Ministers Decision No.55/2009/QD-TTg dated 15th April 2009 on the holding
ratio of foreign investors in Vietnams securities market (Decision 55/2009).
However, the proposal to the Prime Minister to promulgate another ownership ratio
stipulation as per Point D, Item 2, Article 2a of the Draft appears inconsistent with the
purpose itself on amending Decree 58/2012.
Besides, this proposal shall also bring two negative influences to the securities market:
(a) Firstly, this proposal make all regulations on the ownership ratio of foreign investors
in Vietnams securities market stipulated at Article 2a to be unreliable, and;
(b) Secondly, this proposal will cause another delay to the implementation of Decree 58
(amended) because foreign investors shall have to wait on another Prime Minister
decision on the ownership ratio.

Page 1 of 7

Comments on the draft amendments to Decree No. 58 (dated Jan 22, 2015)

No.

3.

Vietnam Business Forum, 2015

DRAFT DECREE

COMMENTS /PROPOSALS ON THE DRAFT DECREE


Proposal: We propose the ownership ratio as stipulated in Point D, Item 2, Article 2a of the
Draft shall be enclosed in the Appendix of the Draft and propose Point D, Item 2, Article 2a of
the Draft should be modified as follows (underlined):
2 [...]
d) For a public company which does not operate in the industries or fields as stipulated in
Points A, B and C of this clause, the foreign ownership ratio shall be implemented as stipulated
in the Company Charter (if any), but should not exceed the maximum of ownership ratio as
stipulated in Appendix ### of this Decree. as the decision by the Prime Minister;
Article 71: Requirements applicable to shareholders and capital contributing members of a securities business organization.
9. Foreign investors stipulated in Item 21, Article 2 of Comment:
this Decree are permitted to purchase shares or capital There are many unreasonable aspects in Article 71.9 of the Draft.
contribution portions to own unlimited charter capital As per the regulation in Item 9 of Article 71 of the Draft, foreign investors who satisfy the
of the securities business organization as per the
conditions prescribed in Items 7, 8 and 10 of the Decree are permitted to purchase shares
following conditions:
or capital contribution portions to own unlimited charter capital of the securities business
a) Only a foreign institution which satisfies the
organization.
conditions prescribed in Item 10 of this Article is The first unreasonable point in Article 71.9: The structure of shareholders and capital
permitted to purchase to own more than 51% of the
contributing members in a securities company is stipulated in Item 7 of Article 71. Point 1, Item
charter capital of securities business organization
7 of Article 71 requires a minimum of two (02) founding shareholders. However, does a foreign
b) Complying with the stipulation in Items 7 and 8 of
investor allowed to purchase unlimited shares in a securities business organization need to
this Article.
keep two such founding shareholders in the structure of shareholders? If the answer is yes,
then Item 7 is inconsistent with Item 9 of Article 71.
The purchase of shares and capital contribution The second unreasonable point in Article 71.9: It is stipulated in Point B, Item 7 of Article 71:
portions as well as the capital contributions to establish
The ownership ratio of shares and capital contribution portions of founding shareholders
securities business organizations by foreign investors
and founding members must be a minimum 65% of charter capital, of which an
shall be implemented in accordance with Ministry of
organization being an insurer or commercial bank must own a minimum 30% of the
Finance guidelines.
charter capital.
However, do foreign investors allowed to purchase an unlimited number of shares of a
securities business organization always need to maintain shares of capital contributions of
founding shareholders and founding members at a minimum 65% of charter capital, while
an organization such an insurer or commercial bank must own a minimum 30% of the
charter capital? If the answer is yes, Article 71.7, Item b will again be inconsistent with Item
9 of Article 71.

Page 2 of 7

Comments on the draft amendments to Decree No. 58 (dated Jan 22, 2015)

No.

DRAFT DECREE

Vietnam Business Forum, 2015

COMMENTS /PROPOSALS ON THE DRAFT DECREE


The third unreasonable point in Article 71.9: The regulation in Point A, Item 8 of Article 71 is
also illogical in the same manner as the first highlighted unreasonable point.
The fourth unreasonable point in Article 71.9: The regulation in Point B, Item 8 of Article 71
is also illogical in the same manner as the second highlighted unreasonable point.
The fifth unreasonable point in Article 71.9: It is stipulated in Point D, Item 8 of Article 71
that the fund management company and relevant person are not allowed to own 5% or
more of shares of a fund management company or another securities company.
Point d, Item 7 of Article 71 of the Decree only states that a securities company is not
allowed to own more than 5% of another securities company (as per Point d, Item 7 of
Article 71). However, a securities company is not prohibited from owning another fund
management company.
However, Point D, Item 8 of Article 71 of this Decree states that a securities company is not
allowed to own more than 5% of another fund management company and a fund
management company is also prohibited to own more than 5% of charter capital in any
other securities company.
The case of allowing a securities company own an unlimited amount of a fund management
company but the reverse not applying, is illogical as the operations of a fund management
company and securities trading run in parallel. Moreover, from the aspect of the actual
owner, groups of such companies still have the same owner in any case.

The sixth unreasonable point: Point B, Item 10 of Article 71 requires foreign investors to
present written approval from an overseas regulator to make a capital contribution to
establish a securities business organization in Vietnam. This is also an illogical and
unenforceable regulation because such regulators cannot not interfere in an enterprises
investment or business beyond its territory.
The seventh unreasonable point: Point C, Item 10 of Article 71 requires a foreign investor
contributing capital or purchasing to own 51% or more of the charter capital of securities
business organization to be from the country in which the regulator has authority in the
banking, securities or insurance sectors and the State Securities Commission (SSC) has
signed an unilateral or bilateral co-operative agreement for the purpose of exchanging
information and co-ordinating in management, inspection and supervision of securities and
securities market activities.

Page 3 of 7

Comments on the draft amendments to Decree No. 58 (dated Jan 22, 2015)

No.

DRAFT DECREE

Vietnam Business Forum, 2015

COMMENTS /PROPOSALS ON THE DRAFT DECREE


The SSC website states the its has not signed any agreement to exchange information with
equivalent regulators from other countries. Therefore, this regulation is not only illogical
and unpractical, but also does not reflect favorably on the Vietnamese Governments
progress in opening the market upon World Trade Organization (WTO) commitments
though use of technical barriers not in compliance with WTO Commitments.
The eighth unreasonable point: Although the Draft has prescribed detailed conditions for
investors to invest in a securities business organization in an unlimited manner, it has also
prescribed foreign investors purchase of shares, capital contribution portions or capital
contributions for the establishment of a securities business organization to be
implemented as per Ministry of Finance guidelines. It is understood that the SSC can
license a fund management company and securities company with 100% foreign owned
capital according to the old Decree 58 without any Ministry of Finance guidelines.
Therefore, the request for foreign investors to wait for the guidelines is not necessary and
shall extend