Mortgage of land use rights where land rental is exempted

Under Decree 46/2014, a land user in Vietnam who leases land under lump sum payment for the entire lease term and is exempted from all land rental may have the option to pay the exempted land rental in order to enjoy the rights and obligations applicable to a normal land user including the right to mortgage the relevant land use right with credit institutions.

This is an important new point for many BOT projects which need to be able to mortgage their land use rights in favour of their lenders. Under the old land regulations, investors in a BOT project are exempted from land rental payment. However, this investment incentive has caused considerable difficulties for project sponsors in offering an acceptable security package to foreign lenders. 

Potential restriction on foreign investment in printing business

Under the commitments of Vietnam to the WTO (WTO Commitments), printing service is considered as a part of services incidental to manufacturing (CPC 88442). Accordingly, under the WTO Commitments,  from 11 January 2015, a foreign investor should be allowed to set up a wholly owned printing subsidiary in Vietnam.

However, under Decree 69/2014, a company involved in the printing of newspapers, statutory forms issued by the State authorities, anti-counterfeit stamps, and “financial invoices” must “have Vietnamese owners”. It is not clear if this means that (1) all owners of such printing company must be Vietnamese or (2) at least one owner of such printing company must be Vietnamese. In either case, the restriction under Decree 69/2014 seems to be contrary to the WTO Commitments. 

Further guidance on divestment of State capital in Vietnamese State-owned enterprises

The Vietnamese Government has been pushing hard for divestment of State capital in Vietnamese State-owned enterprises whether by way of equitisation or sale of existing State capital. One of the key issues that hinder this process is the actual areas that the Government should be pushing. To address this issue, finally, in June 2014, the Prime Minister issued Decision 37/2014 setting out the State-ownership limit in various sectors or industries. This replaces Decision 14/2011 of the Prime Minister. In particular,

• Comparing older regulations, Decision 37/2014 has  opened for private ownership regarding a number of business sectors including (i) managing and exploiting important seaports, airports (exclusive of airports having important decision on national defense); (ii) producing cigarette; (iii) Radio broadcasting and television, and (iv) controlling and maintaining dykes, flood division and disaster prevention. Previously, companies in these sectors must be wholly owned by the State;

• Decision 37/2014 also removes the restriction on state ownership on enterprises operating in (i) producing pig-iron, steel with capacity up to 500,000 tons/year; (ii) producing rotary kiln cement with capacity up to 1.5 million tons/year; (iii) producing newspaper printing paper, writing paper of high quality; (iv) Building and repair of air transport facilities; and (v) producing large-scale power from 500 MW upwards. Previously, the State must own a majority of the capital in companies in these sectors;

• The State shall remain to hold 100% of charter capital for enterprises operating in, among other things, (i) business of lottery, publishing, (ii) business relating to national defence and security, and (iii) enterprises play a key role in the activity of production and business, development strategy, holding business keys and technology that the groups and state corporations need to hold 100% of the capital in order to carry out the tasks and main business line assigned;

• The State shall hold from 75% of charter capital for enterprises operating in, among others things, (i) providing telecommunication infrastructure, (ii) exploiting the mineral with large scale and (iii) exploiting oil and natural gas;

• The State shall hold between 65% and under 75 % of charter capital for enterprises operating in, among others things, (i) processing oil and natural gas, (ii) producing cigarette, (iii) wholesaling foodstuffs, medicine and gas and oil, (iv) banking finance (exclusive of insurance, security, fund management company, finance company and finance leasing company) (v) air transportation, and (vi) power distribution; and

• The State shall hold between 50% and under 65 % of charter capital for the enterprises operating in, among others things, international maritime transport and railway transportation.

The classification based on the voting thresholds of 65% and 75% under Decision 37/2014 may become obsolete if the voting thresholds under Enterprise Law are reduced to 51% and 65% under the proposed amendments to the Enterprise Law. 

Further guidance on “fundamental” principles of Vietnamese law

“Fundamental” (or basic) principles of Vietnamese law are an important concept. For example, while certain contracts with Vietnamese counterparties could be governed by foreign law, the choice of foreign law must not be contrary to fundamental principles of Vietnamese law. Vietnamese courts may refuse recognition of foreign arbitration awards if such awards are contrary to fundamental principles of Vietnamese law. Until recently, there is no clear guidance about what fundamental principles of Vietnamese law are. In March 2014, under Resolution 1/2014 implementing the Law on Commercial Arbitration, the Supreme Court seems to be for the first time has given some limited guidance on fundamental principles of Vietnamese law. In particular,

• The court considers a fundamental principle of Vietnamese law to be a fundamental principle of conduct which applies broadly (hiệu lực bao trùm) to the drafting and implementing of Vietnamese law; and

•  The courts refer to certain principles contained in the Civil Code, the Commercial Law and the Law on Commercial Arbitration as example of fundamental principles of Vietnamese law.