ENERGY & RESOURCES

Vietnam is known as a rich of natural resources country.  The energy industry of Vietnam has developed for a number of years but the lack of modern technology and capital, that makes Vietnam has still stalled in this potential field.  By the strength of resources, cheap labor, transport, Vietnam is attracting many foreign investors to invest in energy industry. Our energy and resources lawyers in Vietnam always monitor the legal environment and keep our client posted to changes that could impact their business.

In particular, Vietnam has considerable supplies of oil, natural gas and refineries.  Proven oil reserves in Vietnam amount to 3.3 billion barrels as the second-most in Southeast Asia, after Indonesia.  Revenues from oil and gas contribute about 30% of Vietnam’s GDP. Vietnam Oil and Gas Group (PetroVietnam), a state-owned company is eligible to conduct petroleum activities, sign cooperation contracts and govern petroleum industry in Vietnam.

For exploration and production, sea zones in Vietnam are divided into different geographic “blocks” based on the advice of Petro Vietnam. The size and scope of these blocks can vary from year to year, depending on the scale of the activities undertaken by the company currently assigned to it.  According to Law on Petroleum 1993, amending in 2000 and 2008, to participate in this field, the investors have to join the bidding for researching and exploiting petroleum.  In special case, the Vietnam Government may appoint the contractor to select investor wishing to engage in petroleum. Then the investor must enter into a dividing products or joint venture or other contract in which contents all terms as required by Article 15 (amended), managed by Vietnam Government. This contract’s term shall not exceed 25 years in which period of research and exploration not exceed 5 years.  The duration may be extended 5 years for the contract and 2 year for period of research and exploration.  In case projects encouraged to invest in petroleum and exploring natural gas, the term can be 30 years and 7 years for period of research and exploration.

Taxation for petroleum activities is based on type of natural resources exploited, economic, technical conditions of the mines, the amount produced.  According to law on Petroleum and other provisions on taxation, natural resources tax rate is from 4% to 25% for crude oil, 0% to 10% for natural gas.  To ensure the reserve aiming to domestic demand, Vietnam has regulated export rate for natural resources, especially tax rate at 20% for crude oil and coal.   This regulation was implemented to encourage companies in Vietnam to refine crude oil in country as the new refineries come online.

Vietnam has more potential in petroleum and energy industry.  ANT Lawyers research and advise clients in energy and resources regulations in Vietnam.   Our relationship and collaboration with with international lawyers and law firms in different part of the world, especially major oil and energy production areas in the Middle East, former Soviet Union countries give us advantage in assisting international clients in the energy and resources legal matters.  ANT Lawyers is the Vietnam exclusive member of Prae Legal, a global law firm network which allow us to take on international projects.

For advise or service request, please contact us via email ant@antlawyers.vn, or call +84 8 3520 2779.  To learn more about us, please visit www.antlawyers.vn 

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

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US INVESTORS SET UP BUSINESS IN HO CHI MINH CITY

United States (US) businesses are expecting to pour investment capital and set up business in Ho Chi Minh City (HCMC) in the near future, when Vietnam and the US are members of the Trans-Pacific Partnership agreement (TPP).

Statistics from the Department of Planning and Investment of HCMC showed that in 2015, the city has attracted 26 investment projects from the US with a total capital of approximately 135.4 million USD. In the first 2 months of 2016, the US has invested an additional of 4 new projects with total capitals of 1.56 million USD. It is forecasted that after TPP takes effect, the number will increase exponentially.

The industrial zones in HCMC are attracting the most investment within three years. Currently there are more than 300 projects worth more than 600 million USD. With the launching of TPP, the city hopes to receive a new wave of investment from US businesses. The efforts to reform the city’s administration procedures are creating favorable environment for US businesses to increases investment in HCMC.

According to the representative of the US Consulate in HCMC, diplomatic relation between Vietnam and the US is getting better, creating conditions and opportunities for US investors to come and set up business in HCMC. As recognized by the American Chamber of Commerce in Vietnam (Amcharm), businesses from the 2 countries feel very excited after exploring the investment environments of each other.

According to the Amcham’s representative, the promotion of the free trade agreements and especially TPP is bringing Vietnam and the US to the center of trade cooperation. It is reflected positively in 2015 with growth rate reached 45 billion USD in terms of sales, increased by 20% compared with 36 billion USD in 2013. Currently, Vietnam is also the leading countries in ASEAN on trade balance with the US when Vietnam accounting for 25% of export turnover of the area and this figure will continue to increase in 2020.

According to representatives of the Department of Planning – Investment in Ho Chi Minh City, Vietnam American investors to increase mainly in the field of real estate, banking, services, processing technology. This is a positive signal for bringing high-income jobs for local workers. The goal of the 2020 Vietnam brought exports to the US increased by 300 billion dollars.

According to representatives of the Department of Planning and Investment of Ho Chi Minh City, investment from the US to Vietnam increased mainly in the field of real estate, banking, services, processing technology. This is a positive signal because it brings high-income jobs for local workers. The goal of Vietnam is that till 2020, export turnover to the US will increase by 300 billion USD.

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MARITIME INSURANCE: COMPLEX AND DISPUTES

In the insurance sector, the insurance of goods transported by sea is much more complex and causes most disputes in the process of claim settlement.

Marine  Insurance  is  the  insurance  operations  related  to  the  operation  of  the ship, the  human or the  goods are transported on the sea or the  insurance operation risks at sea, on land, in river relating to sea voyage

The import and export activities of Vietnam are growing strong in recent years. Therefore, the revenue from cargo insurance is growing well. Insured clients are companies export and import of goods, logistics companies, shipping companies, the investors and contractors of projects…

Risks for cargo insurance is not high, mainly are risks occurred during transportation.The  loss ratio of the market is quite low, which was 27% in 2012, 21.6% in 2013 were 21.6% (excluding the losses that are resolving), with the causes mainly are deficiencies and damages in transportation process.

Understanding the principles of the compensation in maritime insurance will help us to limit the disputes.

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LEGAL PROCEDURES THAT ENTERPRISE MUST PERFORM

After establishing a company, the leader has to perform many legal procedures.

First, they have to declare the license tax. The tax declaration should be submitted to supervisory tax authorities. If the taxpayer has branch in the same province, the tax declarations of the branch should be submitted to the taxpayer’s supervisory tax authority. On the other hand, if the taxpayer has branch in another province, the tax declarations of the branch should be submitted to the supervisory tax authority of the branch. In case when the taxpayer does not have a permanent business location, the tax declaration should be submitted to the supervisory sub-department of taxation where the business located or where the taxpayer resides. License tax is submitted annually and if the taxpayer has declared and paid license tax, he is not required to submit license tax declaration in the next year if the amount of license tax payable is not changed. In case the taxpayer amount of license tax payable in the next year is changed, tax declaration shall be submitted by December 31st of that year.

Second, the enterprise has to conduct the VAT (value added tax) declaration. The taxpayer that has just begun his business shall declare VAT quarterly. In the next calendar year after 12 months of business, VAT declarations shall be declared whether monthly or quarterly depending on the revenue from the sale of goods and/or services in the preceding calendar year (12 months).VAT shall be declared monthly or quarterly throughout the calendar year and the 3-year period. For example, the first stable period begins on October 1st, 2014 and ends on December 31st 2016.

Third is the CIT declaration (corporate income tax). The CIT declaration should be submitted to the supervisory tax authorities. According to business result, the taxpayer shall make the quarterly tax payment within 30 days of quarter succeeding the quarter in which tax is incurred; they shall not submit the provisional CIT declaration quarterly.

The fourth is the invoice. Before the placing first order for invoices, the company must send a written request for permission to use ordered invoices to the supervisory tax authority. Before the business uses invoices for its sale of goods and services, except for invoices purchased from or provided by the tax authority, the business have to send a notice of invoice publication together with a sample invoice to the supervisory tax authority.

Every quarter, seller of goods and services shall submit the invoice using report to the supervisory tax authority, even when there are no invoices have been used during the period. The report of the first quarter shall be submitted by April 30th, second quarter by July 30th, third quarter by October 30th, and forth quarter by January 30th of the next year. If no invoices are used during the period, the quantity of used invoices in the report shall be zero (0).

The fifth is the bank account. The opening of bank account to trading with customer is necessary because according to the ministry of Finance, the invoice valued of 20 million VND or above should be transferred through bank. Within 10 days from the day that enterprise opens bank account, the company have to notify the bank account number to the competent tax agency.

The sixth also the last one is labour and social insurance. If the contract between enterprise and employee has duration of over 3 months, it is subjected to compulsory social insurance.

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REAL ESTATE LEGAL MATTERS IN VIETNAM

In general, it is not permitted to own land in Vietnam as a private entity because the land belongs to the people and the State of Vietnam thereby operates as the administrator.

However an ownership of a right to use land is permitted according to Vietnamese Law.  This so-called Land Use Right (“LUR”) Certificate provides the means to lease land from the State for Vietnamese and foreign people.  This LUR Certificate entitles the land users to protect their legitimate rights and interests.  The sale of a house or real estate is in fact the transfer of the rights for house ownership combined with the transfer of the land from the seller.  The right to use land can be directly acquired by different ways that are: lease from the state; sub-lease from a developer of a zone; transfer from another land user; allocation from the state.  The legal grounds for Land andHouse Law of Vietnam are stipulated in the Law on Housing 2005 of Vietnam as well as in the Law on Land 2003.  The rights and entitlements of holders of house ownership and the holders of the LUR Certificate are settled in this law.

According to Article 12 of the Law on Housing 2005, the name of the individual who holds the house ownership shall be written in the house ownership right certificate and his/her rights are stipulated in Article 21 that include for example the rights to posses; use; sell; lease; donate; exchange; lend or to let other people stay temporarily in the house.  As stipulated in Article 106 of the Law on Land 2003, the one who holds the LUR and house ownership certificate is entitled to exercise the full range of rights over the land/house. As such, land use rights and ownership of assets on the land are combined in the Certificate of Land Use Right and House Ownership Right (LURC).

But the possibilities to acquire land or houses depend on the individual/organization that wishes to do so, because Vietnamese, overseas Vietnamese and Foreigners do not have the same rights.  Especially for foreigners, it was often quite challenging to acquire land or houses in Vietnam. Before the year of 2009, foreigners could not legally acquire property but only could make a joint venture with a Vietnamese company. But the Resolution No. 19/2008(ND-QH12, effective January 2009, started to entitle foreigners to own houses in Vietnam under the conditions that the foreigner 1) is hired by an enterprise that currently operates in Vietnam and 2) must have at least a temporary residence card to purchase and own an apartment unit in Vietnam. This five-year piloting program that would end in 2014 is now discussed by the Vietnamese Prime Minister to continue this program after the first five years to support the real estate market and to make it more attractive for foreigners.

Even though about 80,000 expats live and work in Vietnam, only more than 400 cases of foreigners buying houses in Vietnam could be registered. Of course, this might be due to the difficulties for foreigners to buy houses before this pilot program . But this Resolution No. 19, which was guided by Decree No. 51/2009/ND-CP, still does not make it easy to operate in the real estate market in Vietnam for foreigners because of the complicated procedures to register ownership. After the first 5 years, the government stated to have the plan to review the pilot policy and the Ministry of Construction also opened up for the idea to allow foreigners to buy houses no matter if they work and do business here or if they want to buy real estates in Vietnam.

As the Vietnam’s real estate situation seems to stand before a turning point, it is necessary to keep up to date with all legal changes and developments. Due to the fact that Vietnamese law has special provisions for every organization or individual who wishes to operate with land and real estates related to House Law, it is inevitable to know about this legal circumstances in Vietnam.

ANT Lawyers could assist in different land and house related projects and matters such as land ownership, house purchase or sale and is aware of the differences between provisions on house law for foreigners and Vietnamese. Our professionals could advise clients about possibilities and potential risks concerning real estate laws, housing laws in Vietnam and furthermore could support clients with required procedures with the Vietnamese authorities.

ANT Lawyers constantly researches for the latest legal updates to ensure that we provide best and up-to-date services to clients whom are interested in real estate and and housing matters in Vietnam.

For advice or service request, please contact us via email ant@antlawyers.vn, or call +84 8 3520 2779.  To learn more about us, please visit www.antlawyers.vn.  

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

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JUDICIAL RECORD CARD IN VIETNAM

Judicial record card in Vietnam Procedures to obtain judicial record card (criminal record/ police check) in Vietnam is regulated in the Law no. 28/2009/QH12  of National Assembly of Vietnam on Judicial Record.

Judicial record card means a card issued by an agency managing the judicial record database and valid to prove whether or not an individual has a previous criminal conviction, is banned from holding certain posts, establishing or managing enterprises or cooperatives in case enterprises or cooperatives have been declared bankrupt by court.

Judicial record cards include: judicial record card No. 1, which shall be issued to Vietnamese citizens and foreigners who resided or are currently residing in Vietnam; and judicial record card No. 2, which shall be issued at the request of individuals who want to know their judicial records.

To obtain judicial record card No.1, the requesters who is Vietnamese citizens must apply at provincial-level Justice Departments in localities where they permanently reside or at the provincial-level Justice Department in the locality where the requester temporarily resides (in case they have no place of permanent residence) or at the provincial-level Justice Department in the locality where he/she resided before his/her departure (in case the requesters are residing overseas). The foreigners residing in Vietnam shall apply at provincial-level Justice Departments in localities where they reside or at the National Center for Judicial Records (in case they have left Vietnam).

Documents required include:

i) declaration requesting the issuance of judicial record cards;

ii) a copy of the identity card or passport of the person requested to be issued a judicial record card;

iii) a copy of the household registration book or certificate of permanent or temporary residence of the person requested to be issued a judicial record card.

In case of requesting the issuance of card No.1, individuals may authorize other persons to carry out procedures for requesting the issuance of judicial record cards.

Procedures for issuance of judicial record cards No. 2 to individuals comply with the provisions for card No.1. However, individuals who request the issuance of a judicial record card No. 2, may not authorize others to carry out procedures for such request.

During the process of applying for the Criminal Record, the applicant might have to work with the police agencies; the Court: in case there are not sufficient evidence at the police agencies to conclude that the applicant has no criminal records or the content of the applicant’s criminal records is not clear; People’s Committee of communes, wards and townships; agencies, organizations and agencies related proceedings: in case of coordination to verify the conditions of having his/her conviction automatically written off.

Let ANT Lawyers help your business in Vietnam.

For advice or service request, please contact us via email ant@antlawyers.vn, or call +84 8 3520 2779.  To learn more about us, please visit www.antlawyers.vn.  ANT Lawyers has law offices in Hanoi, Ho Chi Minh, and Da Nang City.

ANT Lawyers is a Vietnam law firm with international standards, recognized by Legal500, IFLR1000.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

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REPORT THE DEMAND TO USE FOREIGN WORKERS IN VIETNAM

In order to manage the usage of foreign workers in Vietnam, the Vietnam state authority has requested employers to provide explanation for such need to use foreign workers.

This will be the preliminary procedure before applying for work permit in Vietnam then temporary residence card in Vietnam for foreigners.  The report of demand to use of foreign workers has to meet the following requirements:

Demand to use foreign workers: The employer (except contractors) is responsible for determining the demand to use foreign employees for each position that the Vietnamese employee has not met the requirement and submit written explanation. In case the employer is a contractor, in the bidding documents, it is required to declare the number, qualifications, professional competence and experience of foreign workers mobilized to implement bidding packages.

Recipient: Chairman of People’s Committees of provinces and cities under central authority (hereinafter referred to as the provincial People’s Committee) where the employer is headquartered.

Periodic notification period: Every year, the employer (except contractor) is responsible for determining the demand to use foreign employees for explanation.

The period of notice for the first time: Before at least 30 days from the date the employer (except contractor) plans to recruit foreign employees, the employer must report explanations as provided in Paragraph 1 Article 4 of Decree No. 102/2013 / ND-CP on the demand to use foreign workers, including work position, number, qualifications, experience, salary, working hours and submit directly to the Department of Labour – Invalids and Social Affairs of provinces and cities under central authority (hereinafter referred to as the Department of Labor – Invalids and Social Affairs) where the employer is headquartered.

The period of notice the adjustment: The employer whom is approved to use foreign employees, that have changes in the demand for foreign workers, has to directly submit the report explaining the adjustment and supplementation at least 30 days before the expected day for new recruitment, additional recruitment or recruitment to replace foreign workers with the Department of Labour – Invalids and Social Affairs where the employer is headquartered.

ANT Lawyers will be available to assist the clients when required dealing with the employment matters for foreign workers in Vietnam.

For advice or service request, please contact us via email ant@antlawyers.vn, or call +84 8 3520 2779.  To learn more about us, please visit www.antlawyers.vn.  

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

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WHAT TRANS-PACIFIC PARTNERSHIP AGREEMENT IS ABOUT?

On Jul 31st, 2015 the Trans-Pacific Partnership (TPP) negotiation ended without a resolution although a great progress has been made. The sad thing is that “they finished the part of the agreement that would raise environmental standards in Vietnam, Malaysia and the other countries in the bloc” according to The Wall Street Journal. It is expected the deal will continue to be worked on in the upcoming future meeting.

US, Japan, Vietnam and 9 other countries hoped to complete the signing of TPP in 2015. If successful, TPP is expected to be a major event occurred to Vietnam in 20 years (from the time Vietnam and the United States decided to normalize relations in 1995).

1. TPP is a free trade agreement between 12 countries with the aim of promoting economic integration in Asia – Pacific area. Twelve members of TPP include Australia, Brunei, Chile, Malaysia, Mexico, New Zealand, Canada, Peru, Singapore, Vietnam, the USA and Japan. South Korea, Colombia, Costa Rica, Indonesia, Taiwan, Thailand and many other countries are planning to participate in TPP. Originally, TPP started from an agreement among Singapore, Chile, New Zealand and Brunei in 2009, before the United States decided to join and lead.

2. The main objectives of TPP are the elimination of taxes and barriers for goods and trading services between member countries.

3. In addition, TPP will also unify laws, common rules between countries, such as intellectual property, food quality or work safety.

4. The current members of TPP accounted for 40% of the world GDP and 26% of global merchandise trade.

5. The United States expects the TPP will be the key point of their new destination in Asia. China has sometimes expressed their intention to join the TPP, but many of TPP’s current provision seem to be designed not to let China have the opportunity to participate in this agreement.

6. TPP is expected to set out the international rules that transcend the scope of the WTO, such as investment policies, protect intellectual property rights, control of state companies, and the quality of product and labor.

7. TPP is expected to create international laws capable of adjusting the policies and directions of the law in each member countries. In other words, the laws of the member countries will have to follow the orientation of the TPP. Many laws in TPP also influence the changes of the legal regime of the country. For example is the legislation to encourage the members of the TPP to open a government agency, with mechanism and the way to work like in the US to perform strengths-weaknesses analysis before issuing new domestic laws.

8. TPP includes 29 chapters, in which there are only 5 chapters are directly related to the issue of exchange of goods and services, the remaining chapters addressed many issues related to different benchmarks, standards about environment, labor quality, financial rules, food and medicine. TPP will remove many benefits of state companies which is currently playing a big role in i.e. Vietnam economy, to create competitive opportunities for private companies.

9. With TPP, foreign and international companies, corporations will be able to bring the government of the member country to TPP’s special court when these countries pose the rules that go against the norms of the TPP. This special court has full authority to make the government to compensate for damage not only occurred, but also the loss of opportunities in the future of international corporations, companies.

10. The TPP members have to sign non-disclosure agreement in the detailed negotiation process about the rules of TPP. These countries may only disclose information to government agencies, organizations, and individuals that are directly related to trade policy advisory.

For advice or service request, please contact us via email ant@antlawyers.vn, or call +84 8 3520 2779.  To learn more about us, please visit www.antlawyers.vn.  

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

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10 QUESTIONS TO ASK BEFORE SETTING-UP COMPANY IN VIETNAM

Foreigners are encouraged to make investment in Vietnam through direct investment by setting up company in Vietnam.

However there are restrictions in some cases in regard to investment capital, investment area, special licenses required. The investor is suggested to consult with a law firm in Vietnam for advice and service offering.

Before setting up business in Vietnam, ask yourself the following questions:

1. Which business should I invest in Vietnam?
There are non-conditional investment areas and conditional investment areas.  Establishing company in the non-conditional investement areas are more simple than in conditional investment areas.  Investment in IT services, manufacturing, management consulting, business promotion are a few samples of non-conditional investment areas.  Example of conditional investment areas are real estate, trading, travel agencies, freight forwarding…which are more complicated with investment conditions.  Investment conditions might also be changed over the time depending on the WTO commitments which Vietnam enters.

2. What should I name the business in Vietnam?
The company in Vietnam has to have Vietnamese name, and English name. The company could also have abbreviated name.  The name of the company in Vietnam indicates the structure of the company, the business lines, and the name that differentiate against other businesses.  For instance, the company could be named Alpha consulting limited liability company.

3. Where should I register the address of the business in Vietnam?
Not every address could be used to register a company.  The address has to be an address of a house with leasing agreement or office building which owner has license to operate as office building.

4. What is the legal structure of the company?
Depending on the number of investor contributing capital, company could be set-up as one member limited liability company or two ore more member limited liability company or joint stocks company.

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Forms of Investment in Vietnam

5. How much capital is required to set-up a company in Vietnam?
The investment amount depends on the business plan and is subject to the approval of the provincial Department of Planning and Investment evaluating application dossier. In some business areas like real estate, banking and finance, minimum capital is required. In general for non-conditional investment area, the law does not specify the minimum capital to establish a company in Vietnam however the State agencies that evaluate investment plan could reject the investment project which are not feasible. Bank statement in foreign banks could be used to prove sufficient fund of investment capital.

6. Whom will be legal representative and work permit in Vietnam?
The investor will need to appoint the legal representative in Vietnam to oversee the business performance and take legal responsibility in Vietnam. If the legal representative is an expatriate, whom is a capital contributing member or owner of a limited liability company or a member of the Board of Management of a shareholding company which is registered to operate in Vietnam, he or she will be exempted from work permit in Vietnam. Otherwise, he or she will need to have a work permit to work in Vietnam legally.  The work permit holder would then apply for temporary residence card to live in Vietnam as long as the work permit allows.

7. How long does it take to set-up a company in Vietnam?
It depends on what type, scale, and whether or not conditions are required. For a simple minimum capital without conditions to set-up, it would take 30 working days. For setting up company in conditional investment areas i.e.  trading company in Vietnam, time would be lengthen due to the involvement of a number of State agencies approving the investment project and it would take 60 working days. For setting up company in other investments in areas requiring conditions to meet, time might be taken depending on the type of conditions and the government agencies evaluating the conditions of investment.

8. Whom will be granting the investment license in Vietnam?
For most of the investment projects, the provincial state agencies with the approval of the Department of Planning and Investment (DPI) will be granting the Investment Certificate in Vietnam. However, depending on the type, scale, and whether or not conditions are required, other Vietnam State agencies might be involved. For the case of trading company, ministry of trade and commerce, ministry of finance, provincial people’s committee will be reviewing the investment application dossier as well.

9. What are the tax liability in Vietnam?
Major taxes in Vietnam are corporate income tax, import and export tax, value added tax, and personal income tax in Vietnam. In some special areas, there are other taxes. The corporate income tax is currently at 22% and will reduce to 20% beginning 2016. Export is mostly encouraged as such the export tax is 0 however there are special cases when export tax is larger than 0. Import tax varies according to tariff. Value added tax is mostly at 10% however in some cases, VAT could be 5% or 0%. Personal Income tax varies according to income level and is applicable from VND 9,000,000 above.

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Major Taxes in Vietnam

Personal Income Tax in Vietnam

10. What are mandatory reports submissions requirement in Vietnam?
Companies are required to keep accounting books, prepare and submit tax reports on monthly, quarterly and annually. Foreign companies are also required to have financial audit taken before the financial year end. The financial year in Vietnam is from January to December and the deadline to submit financial report is March 30th for the previous year. Other reports are required to be submitted at other State agencies.

At ANT Lawyers, a law firm in Vietnam with offices in Hanoi, Da Nang and Ho Chi Minh City, we are always capable to assist clients in licensing and post-licensing matters to help clients with all questions and services in setting up and maintaining the company in Vietnam. We could be reached at email: ant@antlawyers.vn or office tel: +848 35202779.

ANT Lawyers is a Vietnam law firm with international standards, recognized by Legal500, IFLR1000.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

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BLOOMBERG: M&A IN 2016 IN VIETNAM WILL HIT RECORD

According to Bloomberg, the mergers and acquisitions activity (M&A) in Vietnam will hit record since the foreign investors are very interested in the consumer sector – which is developing very fast.

The Institute of Mergers, Acquisitions and Alliances in Vietnam announced that the M&A activities related to Vietnam companies increased by 40% in 2015, reaching 4.3 billion USD and surpass the record of 4.2 billion USD in 2012.

Meanwhile, according to Baker & McKenzie and Duane Morris LLP,  M&A activities in Vietnam will grow strongly in 2016 after the implementation of free trade agreements (FTA) and the Investment Law is passed by the Government.

Foreign investors feel very exciting with the forecasted economic growth of 6.7% in 2016, the fastest growth in 9 years and the consumer market with 60% of customers are under 35 years old.

According to Bloomberg, Vietnam is having a lot of changes in the Law on Investment therefore the acquisition of companies in the country is took place faster and more transparent. Meanwhile, consumer spending also rose sharply. According to the forecast of Euromonitor, consumer spending will increase by 47% from now till 2019. Particularly the beer market will grow by 33% in the next period, reaching 4.8 billion liters, while the consumption of this product will decrease in Thailand. Moreover, the middle class in Vietnam will continue to expand their investment portfolio in the domestic market.

With these advantages, M&A activities in Vietnam in 2016 will be quite exciting. ANA Holdings Inc – owner of the Japan largest airlines has agreed to buy 8.8% stake in Vietnam Airlines with price of about 109 million USD. In March 2015, France’s Aeroports De Paris has expressed its intention to acquire stake in Airports Corporation of Vietnam.

In October 2015, the information about the divestment of the State at Vinamilk with 45% stake worth nearly 3 billion USD has led many foreign investors revealed their ambitions to buy the company with the largest listing in Vietnam market.

In late 2015, Boon Rawd Brewery Co., – the oldest brewing in Thailand has agreed to invest 1.1 billion VND in Masan Group – the biggest deal in the last 3 years in Vietnam.

Obviously, the investors who are interested in M&A in Vietnam are having a clearer path. With this trend, M&A will be more exciting in 2016.

If the Government continues to improve the investment environment then the foreign investment flows will continue to increase, especially in 2016 and 2017. Along with the advantages, Vietnam still has much to do to attract the flow of investment capital such as customs procedures, taxation and access to loans. The deeper and wider integration into the economy will offering Vietnam with more opportunities in M&A activity.

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WHICH FORM OF INVESTMENT – BRANCH OR COMPANY?

Foreign entities can set-up company or branch offices in Vietnam to carry out business activities.

There are several main different aspects between opening a branch office or establishing a foreign owned company in Vietnam.

1. Conditions

• Permits for establishment of Vietnam-based branches of foreign enterprise shall each have a valid term of five years.
• Foreign enterprise must choose between establishing a 100% foreign capital enterprise or forming a joint-venture with domestic investor or company.

2. Certificate

• The Branch office needs to apply and obtain the operation license of a Branch;
• A foreign owned company will need to apply and obtain the investment certificate (“IC”) to operate in Vietnam.

3. Capital

• Optional, foreign entity will decide how much money to invest in branch. The allocation capital for branch is capital for the subordinate units.
• Mandatory, foreign entity will need to provide minimum capital as required by Vietnam Law in conditional investment area.

4. Obligation of owner

• For branch office in Vietnam, owner takes full responsibility;
• For company, owner takes responsibility within the capital contributed into the company in Vietnam;

5. Other matters

• For branch office setting up in Vietnam, the procedure is less complicated compared to those for the establishment of a 100% foreign owned company;  the branch office is able to carry out trading and some other activities as stipulated by Vietnam laws and the WTO commitments which Vietnam enters.  The business lines of a branch have to be aligned with the business lines of the headquarter of the foreign entity.
• Setting up foreign owned company would be more complicated than the setting up of the branch office, however this form of investment has more flexibility and freedom as it is a stand alone Vietnam entity recognized under Vietnam laws.

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WHICH AUTHORITY APPROVES BUSINESS SETTING UP IN VIETNAM?

Investment projects in Vietnam could be evaluated and approved for business setting-up at top level of the government, at ministerial levels or at the provincial levels.

The licensing authorities for business setting up in Vietnam has been divided to distribute workloads at different state agencies with aim to speed up the process and attract more quality investment projects in Vietnam.

In practice, the process for establishing companies or executing investment projects in Vietnam would take from one month for simple project, three to six month for areas categorized under conditional investment areas, requiring sub-licenses, or additional time for more complicated projects.  At the provincial levels, there might be inconsistency between cities and provinces due to different interpretation of laws.  For investment project with difficulty to manage, the provincial levels would need to consult with technical department of central government agencies, as such the time taken to process the investment certificate would be lengthen.

Understanding the mechanism and the work division of Vietnam authorities that evaluate and approve business licensing at different government agencies would help foreign investors to smoothen the process and improve their experience in Vietnam.

It is notable that, the government level will be focusing on significant projects, in special area at large investment capital with impact on social economic situations.  Most of the investment licensing procedures will be carried out at the provincial levels where the investment projects exist.

The following will point out directions for foreigners to approach respective agencies based on the particular area of interests, scale, and nature of the investment.  However, to avoid delay and increase effectiveness, it is advisable that the foreign clients would consult with Vietnam law firms to help advise and represent them in preparing and executing the investment in Vietnam.

I. Projects evaluated and granted investment licensing at government level

Depending on the business nature, industry sector, investment scale, and investment policy, the Vietnam Prime Minister, on behalf of the government will evaluate and approve investment licensing for setting up business.

1. The investment project in Vietnam the government will evaluate and approve regardless of funding, the scale of investment are in the following areas:

a) Development and commercialization of airports and air transport;
b) Development and commercialization of national port;
c) Exploration, mining and processing of oil and gas; exploration and exploitation of minerals;
d) Radio, television;
e) Casino;
f) Production of cigarettes;
g) Establishment of university level educational institute;
h) Establishment of industrial zones, export processing zones, high-tech zones and economic zones.

2. Although investment projects which do not fall under the cases listed above, but the government of Vietnam also evaluates and approves investment project with investment capital of VND 1,500 billion (around USD 75 mil) upwards regardless of funding and in the following areas:

a) Sales of electricity, mineral processing, metallurgical;
b) Construction of railway infrastructure, roads, inland waterways;
c) Production, sales of wine and beer.

3. Further, the government of Vietnam also evaluates and approve investment projects with foreign investment in the following areas:

a) Maritime transport;
b) Establishment of networks and provision of postal services, courier, telecommunication and internet; network setup and signal transmission;
c) Printing and distribution of newspapers; publication;
d) Establishment of independent scientific research.

4. Where the investment projects specified in the above cases are in the plan which the Prime Minister has approved or authorized other agencies to approve, and that the investment projects meet the conditions prescribed by law and treaties to which Vietnam Nam is a member, the agency granted investment certificates perform the procedure for issuance of investment certificates is not required to submit to the Prime Minister to decide on the investment policy.

5. Where the investment projects specified in the above case is not in the plan which has been approved by the Vietnam Prime Minister or authorized other agency to approve, and that the projects do not meet the conditions for market access provisions in international treaties which Vietnam is a member, the agency granted investment certificates shall consult with other of relevant industries and submit to the Prime Minister for investment policy decision.

II. Projects evaluated and granted investment licensing at ministerial level

1. The Vietnam Ministry of Planning and Investment shall evaluate and approve licensing for investment projects in the form of BOT, BTO, BT.

2. Other ministries will be evaluating and granting license for investment in some sectors.

a.Vietnam Ministry of Commerce and Industry shall evaluate and approve licensing for investment project in oil and gas sector;

b. Vietnam State Bank shall grant licensing for financial institutions;

c. Vietnam Ministry of Finance shall be responsible for issuing license for investment project of insurance business.

III. Projects evaluated and granted investment licensing at provincial levels

1. Department of Planning and Investment shall be the single point of contact that receive the application and evaluate the investment plan of the foreign investors wishing to establish business in Vietnam for projects

a. Outside of Industrial Zone, Industrial Processing Zone;

b. Infrastructure development project for Industrial Zone, Industrial Processing Zone which management board of industrial zone and industrial processing zone are not yet established.

2. The management board of Industrial Zone, and Industrial Processing Zone:

a. For investment projects within the Industrial Zone, and Industrial Processing Zone which are not under the authority of the Prime Minister;

b. Infrastructure development project to for industrial zone and industrial processing zone.

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