DECREE 15/2015/ND-CP ON INVESTMENT IN THE FORM OF PUBLIC – PRIVATE PARTNERSHIPS

With the increasing infrastructure demands, while the budget and ODA resources are limited, the call for private investment in infrastructure projects is seen as viable solution. Thus, the Government issued Decree 15/2015/ND-CP on February 14th 2015, provides for regulations on investment in the form of public-private partnerships (PPP) which will partially solve the real problems when implementing PPP projects in Vietnam.

Decree 15 has some new and notably regulations as follows:

1. Decree 15 provides for forms of project contracts, including build – transfer contract (BT contract); build – transfer – lease contract (BTL contract) and build – lease – transfer contract (BLT contract). Thus, investors do not necessarily have to transfer the work to the State. They can choose different solutions depending on the requirements of the investors and fund lenders of the project.

2. Decree 15 clearly stipulates the form of investment and project classification that can apply the form of PPP. Besides the projects on physical infrastructure such as bridge, road, building…, the works on trade, science, technology, meteorological, economic zone, industrial park, tech park, information technology park; information technology application are also included in the list of projects that can apply the form of PPP.

3. Decree 15 also stipulates that the PPP projects will be classified according to national important projects, projects of groups A, B and C. Thanks to this, small projects will be approved more quickly. Accordingly, the project in group C will not have to carry out the procedures for investment registration issuance.

4. Decree 15 regulates that the state capital in the project implementation process will be used primarily to support the construction of auxiliary facilities, the organization of compensation, site clearance and resettlement. However, the decree does not specify the value of land use rights that have been included in the total cost of investment or not.

5. One of the conditions for the selection of projects is that projects must have a total investment of 20 billion VND or more (excluding O&M projects and a number of special projects). In addition, the project has the ability to recover capital from business activities will be prioritized.

6. In terms of the project proposal contents, beside the contents on project information, technical factors …, the contents on expected risk assessment in the course of project implementation and allocation of risk between the competent state agencies and investors should also be mentioned.

7. Decree 15 also provides for the time of project contracting. Accordingly, investors negotiate and sign off the contract project first, and then they will be granted the investment registration certificate. The final step is the signing of the project contract. Thus, the losses, changes or arising before contracting the project will arise legal consequences or not? This issue has not yet been answered.

8. In terms of the project contract contents, Decree 15 lists the necessary contents in a PPP contract and the necessary attached documents. In addition, the Decree also stipulates open so that ministries and provincial People’s Committees are allowed to propose a different form of contract with the form prescribed in Decree 15 to submit the Government for consideration and decision.

9. Decree 15 allows the transfer of rights and obligations under the project contract, or transfers a part or the whole project. This open opportunity to securitize the project, relieving nervous for donors or banks with the project finance issues, especially when investors are not qualified to continue to perform project.

10. Regarding the applicable law, Decree 15 allows the contracting parties may agree to the application of foreign laws to regulate the project contract in which one party is foreign investor or the contracts that are guaranteed by the Government for performance obligation. This is a major change and allowing the international financial consultants to involve deeply in the project.

11. Decree 15 provides for the obligation to guarantee the implementation of project contract, however, this matter will be resolved by the Law on Procurement. The issue of Government guarantee is not clearly defined and it was handed over to Ministry of Finance and Ministry of Justice to study.

12. For the project enterprise, after being granted the investment registration certificate, investors then establish the enterprises to implement projects that consistent with the objectives and scope of activities as agreed in the contract plan. The establishment of the project is implemented in accordance with the business law.

13. Decree 15 clearly stipulates the obligation to monitor the project contract implementation of investors, project business and competent state agencies. The specific allocation of responsibilities is necessary to ensure that the project is monitored to implement carefully. In terms of prices, cost of goods, services and revenue, Decree 15 respects the agreements of the parties in the project contracts and creates conditions for investors to recover capital and profit. This is an important basis for investors to negotiate the price with the supplier or the buyer of the state if there is any disadvantage binding to investors.

14. Decree 15 also specifies the time limit for project settlement. Accordingly, within 6 months from the completion day of the construction, the investor shall make final settlement of investment capital.

15. In terms of the mortgage of assets and the right to operate the project, Decree 15 specifies that investors and project business can mortgage the property, land use rights and the right to operate the project to the lenders under the provisions of the civil law and the law on land, provided that the mortgage term is not exceed the project contract period.

However, the mortgage term may exceed the project contract period if there is an agreement in the project contract. Regarding the form of mortgage agreement, the mortgage agreement of assets and the right to operate the project must be made in writing and signed by the lending party and the contracting parties of the project. Thus, the interests of the lending party to the project will somewhat be secured.

16. On the use of foreign currency in the project, Decree 15 stipulates the principle of ensuring the balance of foreign currency. Accordingly, investors and project enterprises can purchase foreign currency from credit institutions that are licensed to operate foreign exchange in order to meet the needs of current transactions, capital transactions and other transactions or transfer of capital, profits and proceeds from liquidation of foreign investments under the provisions of law on foreign exchange management.

17. On the issue of dispute resolution, Decree 15 classifies disputes into:

(i) Disputes between competent state agencies and investors or project enterprises and disputes between project enterprises and economic organizations participating in the project implementation;

(ii) Disputes between competent state agencies and foreign investors or project enterprises that established by foreign investors;

(iii) Disputes between the project enterprises and foreign organizations, individuals or economic organizations of Vietnam and disputes between investors.

Accordingly, the dispute settlement body corresponding to the above cases is the arbitration organization or the courts of Vietnam in accordance with the law of Vietnam; The arbitration or the Court of Vietnam or the arbitral tribunal are established upon agreement of the parties and are settled according to the provisions of the Investment Law. Disputes that are resolved by arbitration under the provisions of the project contract and related contracts are commercial disputes. The decision of foreign arbitration is recognized and enforced under the provisions of the law on recognition and enforcement of foreign arbitration decisions.

18. Decree 15 stipulates the responsibilities of the concerned ministries and agencies. In particular, the Ministry of Planning and Investment, in addition to other responsibilities, shall have to issue, modify and revoke the certificate of investment registration to projects under their jurisdiction; evaluate the State investment capital participating in the project within its jurisdiction; contribute opinion on issues within their functions and competence required by ministries, agencies and provincial People’s Committees. Ministry of Justice, in addition to other responsibilities, shall have to issue legal opinion to the project contract, guarantee document of the Government and the documents relating to the project signed by the state agencies.

19. As for the project contracts that are signed off before Decree 15 takes effect, they will not have to be renegotiated. Thus, the BT projects that are suspended previously can be redone.

To sum up, the changes in Decree 15 on PPP brought many positive signals to investors and sponsor banks. Many PPP projects are continuing to start, especially in the field of transport, showing that this will be the motivation to promote the development and proper management of infrastructure project.

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INFRASTRUCTURE ENERGY PROJECTS IN VIETNAM

At ANT Lawyers, we represent clients in infrastructure, energy and resource projects. We are exclusiveVietnam law firm member of Prae Legal, a global law firm network with more than 150 law firm members globally.  For cross-border transactions, the team coordinates and utilizes relevant Prae Legal member offices to provide necessary advice on local laws, taking into account the client’s needs in Vietnam.  For inbound and domestic transactions, our project lawyers advise on Vietnam laws to review and prepare documentation for licensing application where foreign investors are involved.

We have been involved in several major projects:

• Telecomunications (Nortel Networks Canada, a contractor in HTC infastructure mobile networks project for Vietnam Mobile opetator) ;
• Infrastructure (Antara Koh Pte. Ltd, a Singaporean EPC contractor in Dung Quat Oil refinery plant in Quang Ngai province);
• Energy and power (Shanghai Electric Group Co., Ltd, an EPC contractor in Vinh Tan 2 Thermal Power plant in Binh Thuan province).

Please contact us through email ant@antlawyers.vn, call our office at +84 8 3520 2779 or talk to our partner directly at +84 912 817 823.

Let ANT Lawyers help your business in Vietnam.

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TAX OBLIGATIONS FOR FOREIGN ENTITY DOING BUSINESS IN VIETNAM

The applicable taxes including value added tax (VAT), corporate income tax (CIT) and personal income tax (PIT).

On August 6th 2014, the Ministry of Finance issued Circular No. 103/2014/TT-BTC guiding the implementation of tax obligations that are applicable to foreign organizations and individuals doing business in Vietnam or having incomes generated in Vietnam.

Taxpayers: foreign contractors, foreign subcontractors; organizations established and operated under the law of Vietnam, organizations register to operate under the law of Vietnam, other organizations, individuals producing and trading.

The applicable taxes including value added tax (VAT), corporate income tax (CIT) and personal income tax (PIT).

Taxable income of foreign contractors and foreign subcontractors is income derived from the provision and distribution of goods; provision of service, service in association with goods in Vietnam on the basis of the contractor contract and subcontractor contract.

CIT Payable

=

Revenue subject to CIT

x

CIT rate calculated on taxable turnover

Subjects liable for VAT: services or services associated with goods provided by foreign contractors, foreign subcontractors on the basis of the contractor contract, subcontractor contract to use for manufacturing, trading and consumption in Vietnam.

Incomes arising in Vietnam of foreign contractors and foreign subcontractors are earnings received in any forms on the basis of the contractor contract, subcontractor contract (except for cases specified in Article 2, Chapter I of this Circular), regardless of the place conducting business operations of foreign contractors and foreign subcontractors.

Circular specifically instruct the following cases:

1. Pay VAT by deduction method; pay CIT on the basis of cost and revenue declaration to determine taxable income.

2. Pay VAT and CIT by percentage on turnover.

3. Pay VAT by deduction method; pay VAT by percentage on turnover.

Issued together with Circular 103 is the tax declaration form for foreign contractor.

This Circular takes effect from October 1st 2014, replaces Circular No. 60/2012/TT-BTC dated April 12th2012 of Ministry of Finance guiding the implementation of tax obligation applicable to the foreign organizations and individuals doing business in Vietnam or having income in Vietnam.

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BUSINESS CONDITIONS FOR CONDOMINIUM MANAGEMENT TRAINING SERVICE

On July 1st 2016, the Government issued Decree No. 79/2016/ND-CP guiding the business of training service, improving the professional knowledge, management profession and operation of condominium.

Accordingly, organizations and individuals providing the above services must fully satisfy the 05 following conditions:

– First, the organization was established and operating in Vietnam; has the function of vocational training or college, university or postgraduate education as prescribed.

– Second, has facility and classroom to ensure sufficient seat for students and location for student to practice on professional knowledge and practice.

– Third, has syllabus or teaching materials consistent with training framework program that promulgated by the Ministry of Construction.

– Fourth, has a minimum of 40% of the teachers on the payroll or a contract of indefinite term (has social insurance contribution) in accordance with the training framework program under the guidance of the Ministry of Construction.

– Fifth, being recognized by the Ministry of Construction or the agency authorized by the Ministry of Construction as qualifying for business of condominium management training service.

In addition, this Decree also provides for conditions for business of real estate brokerage practice training service as follows:

– First, the organization was established and operating in Vietnam; has the function of vocational training or college, university or postgraduate education as prescribed.

– Second, has facility and classroom to ensure sufficient seat for students and location for student to practice on knowledge of real estate brokerage and administration of real estate trading floor.

– Third, has syllabus or teaching materials consistent with training framework program that promulgated by the Ministry of Construction.

– Fourth, has a minimum of 30% of the teachers on the payroll or a contract of indefinite term (has social insurance contribution) in accordance with the training framework program under the guidance of the Ministry of Construction.

Decree No. 79/2016/ND-CP officially takes effect upon signing.

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

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HOW PATENT ATTORNEY IN VIETNAM COULD HELP?

At ANT Lawyers, we provide Patent attorneys in Vietnam with specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice in Vietnam.

The inventors may obtain a patent in Vietnam without the assistance of a patent lawyer if they wish. However, this is almost full of risks. Ignoring the complexity of filing the registration application, the primary concern is whether an inexperienced inventor can write an application which satisfies rules as the requirement of Vietnam Intellectual Property law.

It can be said that Vietnam intellectual property law and procedure on patent registration are complex. That’s why valuable legal rights can easily be lost if the patent application and prosecution of that application are not handled carefully and precisely by one skilled in such matters. Companies that file lots of patent applications use patent attorneys for a reason that you almost certainly will get a better patent if it is done by a patent attorney.

If the inventor does not work with a patent attorney, some of dangers may occur in registering patent in Vietnam as following:

• Failure in providing enough file for patent registration;
• Making inaccurate statement such as incorrect description;
• Wasting time because the documents is not valid;
• Loss of patent right because of other patents;
• Loss of capability on exploiting economic from patent right;

With the above – mentioned risks, patent registration in Vietnam with the assistance of the patent attorney seem to be an effective way to ensure the client’s right.  The patent attorney in Vietnam may help clients obtain patent quickly. The inventor also save time to focus on their core specialization if they use patent filing service.

The patent attorney assist clients as following:

• Advise about the procedure for registration prior submitting application;
• Compile all forms related to patent registration procedure;
• Prepare for registration dossier and conduct the registration;
• Subscribe to the application already filed and report to clients on the status of the application;
• Inform, advise and handle mission or refusal of Patent Agency;
• Get Patent and hand over to clients after receiving patent from patent Agency;
• Consult clients about the use of the invention, rights and obligations related to invention after successful registration.

All things become easy, convenient and safe if you get the assistance from a patent attorney in patent registration.

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Vietnam's M&As to hit a record high of $6bln in 2016

Foreign retailers are flooding into the country as consumer spending is set to grow 47 percent in the next four years.

The number of announced mergers and acquisitions (M&A) over the past five years is valued at $18 billion, according to the Ministry of Investment and Planning.

M&A deals in 2015 increased 40 percent from 2014 with total value of $4.3 billion, according to data released by Institute of Mergers, Acquisitions and Alliances.

Vietnamese mergers and acquisitions, after having reached the value of $3.2 billion in the first seven months of this year, are expected to hit $6 billion for the whole year, beating last year’s record as foreign investors have shown increasing interest in the country’s booming retail sector spurred by strong economic growth.

Emerging retail market

Vietnam’s retail market has grown at roughly 10 percent per year in recent years. The market is forecast to reach $109 billion in sales next year, according to the Economist Intelligence Unit. The country has also climbed up to 11th place on the A.T. Kearny 2016 Global Retail Development Index, which indentifies the world’s top 30 retail markets with the most potential investment opportunities.

Retailers have seen Vietnam’s relatively young population and expanding middle class as the main drivers of robust retail market growth. Almost 60 percent of Vietnam’s population of 93 million people are under 35 with rising incomes, averaging $2,111 last year, according to World Bank data.

EuroMonitor International predicts that Vietnam’s consumer spending is about to grow 47 percent in the next four years to $184.9 billion.

The World Bank forecast Vietnam’s $200 billion economy is likely to grow to a trillion dollars by 2035 with more than half of its population, compared with only 11 percent today, expected to join the ranks of the global middle class with consumption of $15 a day or more.

As incomes rise, people are also shifting shopping habits. Spending at modern supermarkets, convenience stores, and shopping malls is expected to rise to 40 percent of total consumer spending by 2020, up from the current 25 percent, the government data show.

Vietnam has thus seen a surge in M&A deals in the retail sector.

Korean retail conglomerate Lotte Group targets to open 60 supermarkets in Vietnam by 2020.

Thailand’s Central Group has acquired a 49 percent stake in consumer electronics retailer Nguyen Kim and sealed a $1.14 billion buyout of hypermarket Big C Vietnam. Another Thai giant, TCC, last year took over Metro Cash & Carry wholesale operation in Vietnam for $720 million.

Japanese retailers have also set eyes on Vietnam. Supermarket chain operator Aeon bought a 30 percent stake in Fivimart and a 49 percent stake in Citimart. Both are top players in the market with supermarkets and convenience stores in Hanoi and Ho Chi Minh City.

Meanwhile, convenience store giant 7-Eleven has laid out its expansion in Vietnam with its first store to be open early 2018.

Even luxury brands like the Japanese Takashimaya are already entering the Southeast Asian country. The group has invested about 5 billion yen ($47 million) in Vietnam since 2012. That includes the new 15,000 square-meter department store in the Saigon Center in Ho Chi Minh City which is set to open this month.

Vietnamese local businesses have also begun to pick up speed.

Property giant Vingroup has decided to make retail business its core, said Chairman Pham Nhat Vuong, contributing to around 50 percent of the group's total sales in the years to come, compared to the current 20 percent.

Vingroup aims to open as many as 500 supermarkets and 8,000 convenience stores under its VinMart and VinMart+ brands in the next five years.

In an attempt to get ready for the expansion, the real estate group has bought an 80 percent stake in Giang Vo Exhibition Center in Hanoi and acquired a 100 percent ownership of Vinatexmart which has as many as 39 supermarkets and retail stores in 19 provinces and cities throughout Vietnam.

Official statistics show Vietnam now has about 9,000 traditional outdoor markets, 800 supermarkets, 160 department stores and shopping malls and more than a million household stores.

M&A upward trend sees no signs of stopping

Foreign investors are also attracted by Vietnam’s high economic growth rate which has remained at an average of more than 5 percent since 1999. The Southeast Asian country’s economy aims to expand 6.7 percent in 2016 after growing at 6.68 percent in 2015, the fastest pace since 2007.

The Vietnamese government has shown strong commitment to making Vietnam a more attractive investment destination. A revised rule, which came into effective last month, has drastically shortened the process of acquiring an investment license to 15 days instead of 45 days.

The government on July 20 officially scrapped a long standing foreign-ownership cap on many publicly listed companies, allowing foreign investors to own a 100 percent stake in several listed companies in various industries, including consumer, property, transport, construction, manufacturing, financial services and agriculture, up from 49 percent.

The SCIC, the state's investment arm, has confirmed that it will divest from Vinamilk, the country’s largest dairy firm, valued at $7.6 billion, by selling its 45 percent stake worth $3.5 billion.

Another reason for booming mergers and acquisitions in Vietnam is foreign investors want to take advantage of Vietnam’s low-cost manufacturing. As Vietnam has concluded a variety of free trade agreements, especially the Trans-Pacific Partnership, the country is highly likely to become a global outsourcing hub.

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Free trade between Vietnam and Eurasian economies to open on October 5

Vietnamese products will have better opportunities to penetrate the market of 175 million people.

The free trade agreement (FTA) between Vietnam and the Eurasian Economic Union will go into effect on October 5, 2016, Vietnam's Government Portal reported August 19.

Vietnam is the first partner to sign an FTA with the Eurasian Economic Union, opening the door for Vietnamese goods to enter a market of 175 million people with an estimated GDP of $2.5 trillion and stable growth.

Under the agreement, tariffs applied to many Vietnamese goods will be reduced, liberalizing multilateral trade. The agreement concerns trade in goods, trade remedies, rules of origin, sanitary and phytosanitary measures, intellectual property and other joint commitments.

The agreement will help Vietnam attract foreign investment in the mining and processing, energy production, machinery and chemistry sectors, which are key strengths in the Eurasion union. In return, the Southeast Asian nation can benefit from this FTA by investing in light industry, petroleum mining and processing.

The FTA will also facilitate exchange of knowledge, experience, experts and labor among member countries. It is expected help improve Vietnam’s investment environment, making it more transparent and efficient.

Negotiations for the FTA between Vietnam and the Eurasian Economic Union, which includes Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia, kicked off in March 2013. After two years of talks, the deal was finally signed on May 29, 2015, in Burabay, Kazakhstan.

Further reading

How patent attorney in Vietnam could help?

Infrastructure energy projects in Vietnam.

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Infrastructure energy projects in Vietnam

At ANT Lawyers, we represent clients in infrastructure, energy and resource projects. We are exclusiveVietnam law firm member of Prae Legal, a global law firm network with more than 150 law firm members globally.  For cross-border transactions, the team coordinates and utilizes relevant Prae Legal member offices to provide necessary advice on local laws, taking into account the client’s needs in Vietnam.  For inbound and domestic transactions, our project lawyers advise on Vietnam laws to review and prepare documentation for licensing application where foreign investors are involved.

We have been involved in several major projects:

·         Telecomunications (Nortel Networks Canada, a contractor in HTC infastructure mobile networks project for Vietnam Mobile opetator) ;

·         Infrastructure (Antara Koh Pte. Ltd, a Singaporean EPC contractor in Dung Quat Oil refinery plant in Quang Ngai province);

·         Energy and power (Shanghai Electric Group Co., Ltd, an EPC contractor in Vinh Tan 2 Thermal Power plant in Binh Thuan province).

Please contact us through email ant@antlawyers.vn, call our office at +84 8 3520 2779 or talk to our partner directly at +84 912 817 823.

Let ANT Lawyers help your business in Vietnam.

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