New Amendments to Vietnam Construction Law

The National Assembly has passed the Law Amending and Supplementing some Articles of the Construction Law 2014 (Construction Law 2020). The Construction Law 2020 will take effect from 1 January 2021 and contain some notable points as below.

1. Pre-feasibility study

Construction Law 2020 promulgates new projects that are subject to preparing a pre-feasibility study (Pre-FS). In particular, the projects that must prepare a Pre-FS include:

  • Projects of national importance. This requirement is the same under Construction Law 2014. Criteria to determine whether a project is of national importance is regulated under the Law on Public Investment 2019;

  • Group A projects financed by public investment capital (vốn đầu tư công). Construction Law 2014 requires all Group A projects to prepare the Pre-FS. Criteria to determine whether a project falls within the scope of Group A projects is regulated under the Law on Public Investment 2019;

  • PPP projects under regulations governing PPP projects. Construction Law 2014 does not specify the requirement of preparing the Pre-FS of a PPP project; and

  • Projects that are subject to obtaining in-principle approval from the National Assembly or the Prime Minister. Construction Law 2014 does not require these projects to prepare the Pre-FS. Under the Investment Law 2020, the Pre-FS can serve as the proposal for implementing a project.

Read MoreInfo
Comment
Written by Nguyen Quang Vu On In ,

Determination of a group of affiliated enterprises under Vietnam merger control regulations

“Group of affiliated enterprises” (Nhóm công ty liên kết) is an important concept under the merger control regulations in Vietnam. This is because this concept is used to calculate (1) the relevant notification thresholds (e.g., market share, revenue, or total assets) of an economic concentration, and (2) the market share of a party to an economic concentration. Unfortunately, Decree 35/2020 provides an unclear definition of a group of affiliated enterprises. In particular, Decree 35/2020 defines that a group of affiliated enterprises means a group of enterprises which are jointly subject to control and governance by “one or more of the enterprises” within said group, or which shares the same management.

The following issues may arise from the definition of a group of affiliated enterprises under Vietnamese merger control rules:

Read MoreInfo
Comment
Written by Nguyen Quang Vu On In ,

Major New Restrictions On Telemarketing In Vietnam

In August 2020, the Government passed a new Decree 91/2020 to govern all forms of advertising via telecommunications means such as SMSs, e-mails, and phone calls. Decree 91/2020 will take effect from October 2020 and replace Decree 90/2008. Decree 90/2008 used to only impose restrictions on marketing text messages and e-mail (but not telephone). However, Decree 91/202 now introduces a range of new restrictions on telemarketing activities and corresponding sanctions. Texts, emails, or phone calls that are not compliant with these requirements will be deemed spam. In this post, we briefly discuss some notable points of Decree 91/2020.

Requirements for prior consents of the targeted consumers

Under Decree 91/2020, telemarketers are not permitted to make any marketing calls before obtaining the prior consent of the targeted consumers. Decree 91/2020 abolishes the “opt-out” regime where a marketer can consider the lack of response from a targeted customer as consent for receiving advertising messages.

Read MoreInfo
Comment
Written by Nguyen Quang Vu On In

Merger filling requirement arising from enforcement of security over shares or capital contribution under Vietnamese Competition Law

Under Competition Law 2018, in general, any economic concentration transaction (i.e., any M&A transaction) triggering the filing thresholds prescribed in Decree 35/2020 must be notified to National Competition Committee (NCC). Accordingly, enforcement of security over shares or capital contribution by a lender, which result in a change of control of the borrower, may be considered as an economic concentration and subject to merger filing requirements under Competition Law 2018. This could pose a serious timing problem for the lender (e.g., a Vietnamese bank or a foreign lender) (the secured creditors) in enforcing mortgaged/pledged shares or capital contribution in practice.

Read MoreInfo
Comment
Written by Nguyen Quang Vu On In , ,