A closer look at the use of DICA account for M&A transactions in Vietnam – Part 1

A closer look at Circular 6/2019 of the State Bank of Vietnam (SBV) reveals that it could create more problems than it solves. The key issue under Circular 6/2019 is the broader use of the “direct investment capital account” (normally referred to as DICA).

To understand the issue, one would need to know how DICA works. Under the foreign exchange regulations, DICA must be opened by a company in Vietnam, which has “foreign direct investment” (the FIE). Foreign investor/shareholders of an FIE will contribute capital to the FIE by transferring monies to DICA. Foreign investors/shareholders will get their monies back from Vietnam also by transferring monies from DICA to their own bank accounts (even in case the foreign investor/shareholder sells its investment to another investor). This simple arrangement works well for simple foreign direct investment activities in the 1990s where there is limited M&A activities and foreign investors are mostly foreign manufacturers who do not plan to sell their investment down the road.

Relationship between Vietnamese State-owned enterprises (SOEs) under control of the “Super Committee.”

Since the end of 2018, the Commission for the Management of State Capital at Enterprises (CMSC) will become the new Owner Representative Agency (Cơ quan đại diện chủ sở hữu) of 19 large SOEs including State Capital Investment Corporation (SCIC), Petro Vietnam (PVN), Vietnam Electricity (EVN), Vietnam National Petroleum Group (Petrolimex). This change causes some SOEs to have CMSC as the common Owner Representative Agency, which may cause these SOEs to become related persons according to the Enterprise Law 2014, because:

New guidance of the State Bank of Vietnam (SBV) on foreign direct investment

M&A lawyers in Vietnam usually spend a great deal of time (and client’s monies) to figure out how and when payment for an M&A transaction should be made. This is partly due to the fact that the SBV has not issued any guidance on foreign exchange control for investment activities under the Investment Law 2014 since 2015. From September 2019, hopefully, the situation will be significantly improved thanks to the new Circular 6/2019 of the SBV. Under Circular 6/2019,

· Foreign-invested enterprises, which must open a Direct Investment Capital Account (DICA), include, among others, (1) enterprises which are incorporated by, among others, foreign investors and are issued an Investment Registration Certificate (IRC), and (2) enterprises which are first incorporated by Vietnamese investors but are later acquired by foreign investors who own 51% or more of the charter capital of such enterprises. Previously, enterprises under (2) are not required to open a DICA if they do not have an Investment Registration Certificate. However, it appears that an enterprise, which is a subsidiary of a DICA enterprise, is not required to open a DICA.

· The DICA is used by a DICA enterprise to handle fund transfers for capital transactions such as capital contributions by shareholders/members of the DICA enterprise or loans from foreign lenders. For M&A transactions including secondary transfer of shares/capital contribution, the DICA plays an important role because the SBV requires payment for secondary transfer of capital in a DICA enterprise to be made via DICA. The bank which operates DICA could require various supporting documents in order to allow monies can be transferred in or out of the DICA.

Latest proposed amendments to the Investment Law 2014

The latest proposed amendments to the Investment Law 2014 submitted to the National Assembly in June 2019 include the following points, among others:

· The Investment Law will not apply to PPP projects which will be subject to a separate law.

· Investment conditions are not separated into two groups (1) operational conditions which apply to the operation of an investment project and (2) market access conditions which apply to foreign investors who wish to invest in sectors/industry which have market access restrictions.

· The proposed definition of foreign-controlled enterprises is removed (http://tinyurl.com/y2nl4ork). Accordingly, the regime regarding deemed foreign-invested enterprises under the Investment Law2014 remains unchanged. This should be a major relief for transactions which have relied on existing definitions of deemed foreign-invested enterprises.

· A foreign investor which incorporates a “start-up innovative” enterprise will not need to obtain an Investment Registration Certificate.

· Foreign investors investing in public companies or securities companies under the Securities Law are not subject to the investment conditions and investment procedures under the Investment Law 2014.

· Outbound investments by Vietnamese investors are now subject to more restrictions. The draft amendments include sectors where outbound investments are prohibited or subject to conditions (including financial services, securities, real estates and technologies).

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Vietnam Business Law