The case against Mr Nguyen Duc Kien and its potential implication

The first hearings of the criminal cases against Mr Nguyen Duc Kien, former Board member of Asia Commercial Bank (ACB) and Ms Huynh Thi Huyen Nhu, former staff of Vietinbank, a large State-owned bank have raised many fundamental issues about the business law framework in Vietnam. Unfortunately, without a full transcript of the hearings, one cannot comment on the legal interpretation adopted by the courts.

That being said, newspaper reports about Mr Kien’s conviction of illegally doing business (tội kinh doanh trái phép) have shed some light about the court’s interpretation of “doing business” under Article 4.2 of the Enterprise Law. The background of the case is as follows:

• Mr Kien set up two companies which do not register for the business lines of sale and purchase of shares but for other business lines;
  

• These two companies acquire and/or sell shares in other companies;
  

• The procurator takes the view that the two companies have illegally done business which are not recorded in their business registration certificates. Under Article 9.1 of the Enterprise Law, a company is required to do business within the scope of its business registration certificates;
  

• Mr Kien takes the view that under Article 13 of the Enterprise Law, a company is entitled to acquire shares in another company. Therefore, there is no need for Mr Kien’s companies to register for the business lines of sale and purchase of shares. In practice, the approach taken by Mr Kien’s companies is widely common. Some business registration authorities even refuse to register the business line of sale and purchase of shares on the basis that this activity is permitted by the Enterprise Law already; and
  

• The first instance court hold that because Mr Kien’s companies do not do any business other than sale and purchase of shares, these companies are considered as engaging in the business of sale and purchase of shares.
  

 Article 4.2 of the Enterprise Law provides that “doing business” (kinh doanh) means the continuous conduct of one, several or all of the stages of the investment process, from production to sale of products or provision of services in the market for profits. There is no further interpretation of the term “continuous conduct”. Now, it seems that the court will consider a business conduct by a company to be a continuous conduct if such business conduct is the only business conduct of the company. In light of this interpretation, owners of companies in Vietnam will likely pay more attention to ensure that their companies will at least actually engage in some business lines as provided in their business registration certificates.

Can a limited liability company in Vietnam sell its new capital contribution for a premium?

A profitable and well-run company usually demands a “premium” when it issues new equity to investors. This means that in a profitable company, a new investor may be required to pay more than the price paid by an existing investor for the same amount of equity and voting rights in the past. Usually, the difference between the price of the new equity portion and the nominal value of such equity portion is referred to as premium.

However, it appears that a limited liability company (LLC) in Vietnam may not be able to do so without changing the voting rights of existing members. This is because:

• Other than in the context of a joint stock company (JSC), there is no legal concept of equity capital premium in the Enterprise Law and in accounting regulations. “Par value” of shares only exists in the context of shares in JSCs. And under Circular 19/2003, the difference between issuance price of new shares by a JSC and their aggregate par values could be recorded as “capital premium accounts”. On the other hand, capital contribution in a charter capital of a LLC does not have a “par value”.  There is no legal concept for the difference between the price of the new capital contribution portion and the nominal value of such capital contribution portion. Therefore, LLC does not have capital contribution premium if it issues new capital contribution;

• Decree 102/2010  further provides that charter capital of a LLC with two or more members is “the total value of capital portions” already contributed or undertaken to be contributed within a certain period by its members and is stated in the company charter. If the value of all assets contributed by members of a LLC including new members constitutes the charter capital of such LLC then there is no capital contribution premium in a LCC. In addition, under Decree 102/2010, all amounts paid by a new member of a LLC should carry voting rights; and

• Tax regulations only expressly exempt corporate income tax on share premium received by a JSC. Therefore, there is no certainty that a LLC will be exempted from capital contribution premium.

In light of the above, a LLC wishing to issue new capital contribution at a premium may consider an alternative structure which allows such a LLC to record the actual value of the amount to be contributed by the new member and at the same time maintains the desired ownership percentage and voting among all members.

“Legal capital” for companies in Vietnam

In other countries, legal capital is often understood to be “the amount of a company's equity that cannot legally be allowed to leave the business and cannot be distributed through a dividend or any other means. The closest meaning to this under Vietnamese law is “charter capital”.

However, for a Vietnamese company, the term “legal capital” has a different meaning than it is usually understood in other countries. Currently, under the Enterprise Law, “legal capital” (vốn pháp định) is defined as the minimum amount of capital required by law for the establishment of an enterprise engaging in certain conditional business (e.g. real estate, banking or securities). “Charter capital” is the amount actually contributed or will be contributed by the shareholders of a company. Therefore, the “charter capital” must be at least equal to the “legal capital”, and in most cases are much higher than the “legal capital”. Usually, legal capital is fixed at a specific number. For instance, an entity engaged in real estate business must have a “legal capital” of VND 6 billion. This means that the entity must have a charter capital of VND 6 billion or more.

The above difference may cause certain confusion when interpreting Vietnamese law. For example,

• Before 1 July 2006, for foreign-invested enterprises, under the old Foreign Investment Law, the term “legal capital” is defined to mean the equity capital contributed (or to be contributed) by the investors in a foreign invested enterprise. Certain laws or regulations still use the term “legal capital” in this sense. These laws and regulations are usually issued before 1 July 2006. However, by mistakes, some laws or regulations issued after 1 July 2006 still use the term “legal capital” in this sense (e.g. the amendment to the Law on Cinematography issued in 2009).

• The WTO Commitments of Vietnam also contain various references to “legal capital” in the context of applicable foreign ownership limits. Again the term “legal capital” in this context should be understood as “charter capital”.  

That being said, there is no express guidance about how to interpret the term “legal capital” used in the above scenarios. Therefore, if the authority happens to take a restrictive view then the foreign ownership limit in certain sectors provided in the WTO Commitments or certain laws and regulations may be subject to a much lower limit.

“Bailiff” services in Vietnam

Vietnam has just introduced bailiff services (dịch vụ thừa phát lại) on a nationwide scope under a Joint Circular 9/2014 between the Ministry of Justice and the Supreme Court issued on 28 February 2014. A bailiff service company may provide services:

• To serve notices relating to court proceedings;
• To prepare certified written minutes (vi bằng) to serve as evidence for use before the courts; and
• To verify the conditions of the debtor for enforcement of a court judgements and to enforce court judgments.

The introduction of bailiff services will hopefully improve the poor state of dispute settlement through courts in Vietnam. 

Vietnam Business Law Blog

New Foreign Exchange Rules for Foreign Investment in Vietnam

about a week ago

The State Bank of Vietnam (SBV) officially issued Circular 38/2026/TT-NHNN dated 31 July 2026 on foreign exchange management for foreign investment activities in Vietnam (Circular 38/2026). Effective from 18 August 2026, Circular 38/2026 replaces Circular 06/2019/TT-NHNN (Circular 06/2019) as amended by Circular 03/2025/TT-NHNN (Circular 03/2025), which has governed the direct investment capital account (DICA) regime since 2019. Circular 38/2026 also terminates Articles 11.3 and 11.4 of Circular 03/2025 on opening and use of VND-denominated accounts for conducting foreign indirect investment in Vietnam and amends Circular 16/2014/TT-NHNN on the use of foreign currency and Vietnamese dong accounts of residents and non-residents.

When Does CIT Arise on a Foreign Seller’s Share Transfer — At Signing or at Closing?

about a week ago

A typical share sale agreement (SPA) takes effect on signing. Closing, when the buyer and the seller exchange money and title to the shares, usually comes later, once conditions have been met. One might expect tax on the sale to be imposed when the shares are sold, that is, at closing. But where a foreign enterprise with no permanent establishment (Foreign Seller) in Vietnam sells shares in an unlisted Vietnamese company to a resident buyer, Article 5.2(a) of Circular 20/2026 provides that revenue is taxed when the initial capital-transfer contract takes effect. On the face of that Article, the SPA can be that contract, and signing can be when it takes effect. The fact that closing has not yet occurred might not, by itself, defer the tax. Until Circular 20/2026, that was not so.

Whether a JSC may issue new voting preference shares to founding shareholders after ERC issuance?

about a week ago

Similar to the Enterprise Law 2005 and the Enterprise Law 2014, the Enterprise Law 2020 is silent on whether founding shareholders may hold voting preference shares newly issued after the issuance date of the enterprise registration certificate (ERC), and only provides at Article 116.1 that the voting preference of founding shareholders is effective for three years from that date. This blog will examine different views on this issue.

On the one hand, one may support the view that founding shareholders are entitled to hold voting preference shares issued after ERC issuance date because:

Major Reductions in Fire Safety and Environmental Administrative Procedures in Vietnam

about a week ago

Based on Resolution No. 206/2025/QH15 of the National Assembly on special mechanisms to address difficulties and obstacles arising from legal regulations, the Government has issued several Resolutions on administrative procedure reduction (such as Resolution 66.16/2026/NQ-CP, Resolution 66.18/2026/NQ-CP, etc.). Most of these provisions remain effective until 28 February 2027. If new provisions covering the same subject matter are promulgated to replace them during this period, the relevant provisions of these Resolutions will automatically cease to be effective.

Key Concerns In Draft Cyber & PDP Sanctions Decree On Personal Data Protection

about a month ago

On 16 March 2026, the Ministry of Public Security (MPS) issued the draft decree on administrative sanctions in the fields of cybersecurity and personal data protection (the Draft Decree) for public consultation. It is the first step to put concrete penalties behind the PDPL 2025, which took effect on 1 January 2026 but left the enforcement details to the Government. The Draft covers a wide range of sectors, such as cybersecurity, personal data, AI, telecommunications, and digital signatures. This post focuses on the personal data provisions (Articles 57 to 69 of the Draft Decree), which raise potential concerns for businesses.