When determining who is a related person of a non-public joint stock company (JSC), as a routine, one would turn to Article 4.23 of the Enterprise Law 2020. Article 4.23 lists out the related persons of a company. However, Article 167.1 of the Enterprise Law 2020 on related party transactions (RPTs) applicable to JSCs suggests that the list of related persons under Article 4.23 might not be exhaustive.

Article 167.1 reads that: the General Meeting of Shareholders or the Board of Directors approve contract and transactions between the JSC and “the following related persons”:

(a) shareholders, authorized representatives of shareholders holding more than 10% ordinary shares and their related persons;

(b) members of the Board of directors, (general) director and their related persons; and

(c) enterprises that the members of the Board of directors, supervisory committee, (general) directors, and other managers of the company have an interests and must report to the JSC in accordance with Article 164.2 of the Enterprise Law 2020.

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.