Article 13 of Decree 35/2020 sets out two different sets of merger filing threshold. In particular, the one provided under Article 13.2 (Special Threshold) applies to transactions involving regulated companies such as credit institutions, insurance companies, and securities companies (Special Company), whereas the remaining one under Article 13.1 (Regular Threshold) applies to transactions involving remaining types of companies (Regular Company). The two sets of different merger filing thresholds give rise to various uncertainties for a M&A transaction involving a Special Company.

First, in the case of a transaction involving a Special Company and a Regular Company, it is not clear if a merger filing must be made when:

• Situation 1: The Regular Company does not trigger the Regular Threshold but the Special Company triggers the Special Threshold; or

• Situation 2: The Regular Company triggers the Regular Threshold and the Special Company triggers the Special Threshold; or

• Situation 3: The Regular Company triggers the Regular Threshold but the Special Company does not trigger the Special Threshold.

It is not clear whether, in case of a de-merger of a Vietnamese company, the remaining company must comply with the procedures for transferring contractual rights and obligations under the Civil Code 2015 including obtaining consents from its contracting parties. Under Enterprise Law 2020, a limited liability company or a joint stock company (remaining company) may be de-merged by the following mechanics:

· transferring a part of assets held by remaining company to a new company; and/or

· transferring a part of the rights and obligations of remaining company to new company.

And the remaining company continues to exist after the de-merger.

Decree 47/2021 implementing the Enterprise Law 2020 and Decree 10/2019 implementing the Law on Management State Capital 2014 provide helpful clarification on (1) the entities who can act as the owner representative agency (cơ quan đại diện chủ sở hữu) of the State in a SOE, and (2) calculation of State shareholding in an enterprise. In particular,

• Under Decree 10/2019, the Institutional Representative only include (i) the Commission for the Management of State Capital at Enterprises (CMSC); (ii) Ministries, Ministry-equivalent agencies, Governmental agencies, provincial People’s Committee; and (iii) the State Capital Investment Corporation (SCIC). Accordingly, other SOEs such as EVN or PVN are not regarded as an Institutional Representative. In the past, it is not clear an SOE can be regarded as the Institutional Representative in another SOE.