UPSTREAM REGULATIONS IN VIETNAM – CONFLICT OF INTERESTS

In Vietnam, foreign and Vietnamese organizations and individuals carry out the petroleum operations based on a petroleum contract signed with Vietnam Oil and Gas Group (PVN) or other agreements signed with PVN or the Government of Vietnam in accordance with the Law on Petroleum 1993.

A petroleum contract can be a production sharing contract (PSC), joint venture agreement or other forms if approved by the Prime Minister. Unless otherwise approved by the Prime Minister, a PSC must comply with the model petroleum product sharing contract promulgated by the Government under Decree 33/2013.

PVN is entitled to participate in petroleum operations as an investor while concurrently has rights and power to manage contractors’ activities and, in some cases, is authorized to act on behalf of the Government in relationship with other investors under PSCs. This results in a material conflict of interests for PVN in acting as an investor under the PSC and as a regulator at the same time. Vietnamese law does not have a clear provision to control the conflict of interests where PVN participates in capital investment with other investors in petroleum operations and concurrently exercise rights and powers which should belongs to a State agency in relationship with such contractors under a PSC.

That said, in theory, the Competition Law 2015 may provide some restrictions on PVN’s authorities under the Law on Petroleum 1993. For example, when exercising the power conferred to it under the Law on Petroleum 1993,

· if PVN is regarded as a State agency then the Law on Competition prohibits “State agency” to force enterprises, organizations, and individuals to purchase services or goods from enterprises as specified/selected by such State agency/State management agency; and

· if PVN is regarded as an enterprise then PVN could be deemed to have significant market power (sức mạnh thị trường đáng kể) and is prohibited from abusing such power.

This post is contributed by Ha Thi Dung, a partner at Venture North Law.

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Licensing requirements for export, import rights of Foreign Invested Enterprises (FIEs) having distribution rights in Vietnam

In a recent post, we have discussed the concept of “wholesale” and “retail” as two forms of activities under the regulations concerning trading activities by FIEs in Vietnam. From the commercial perspective, “distribution” (phân phối) activities should involve the purchase or import of goods from suppliers for selling to customers. Thus, if an FIE has registered distribution business (i.e., wholesale or retail), it should naturally be able to import goods to sell within its distribution rights without being subject to further licensing requirements. However, this may not be justified from the legal perspective as the purchase of goods to sell in Vietnam or abroad by an FIE is classified as other forms of trading and should be licensed before implemented. Under Vietnamese regulations,

Wholesale/retail concepts under the commercial law of Vietnam

Decree 9/2018 introduces a new approach regarding trading activities of foreign invested enterprises (FIE) in Vietnam. In particular, wholesale of most goods is not subject to the requirement of Trading License (Giấy Phép Kinh Doanh). However, Decree 9/2018 is still uncertain on the category of wholesale versus retail activities. A clearer definition of these concepts is important because an FIE conducting retail activities must apply for a Trading License with the Ministry of Industry and Trade (MOIT).

Under Decree 9/2018,

“wholesale” means the activities of selling goods to (a) wholesalers, (b) retailers, and (c) other traders, organizations; exclusive of retail activities;
“retail” means the activities of selling goods to (a) individuals, (b) households, and (c) other organizations for consumption purposes.

There are some issues arising from the above definitions under Decree 9/2018:

New amendments to regulations on foreign investment in education sector in Vietnam

In June 2018, the Government issued Decree 86/2018 on cooperation with and investment by foreign investors (Decree 86/2018). Decree 86/2018 replaces Decree 73/2012 as from August 2018. In comparison with Decree 73/2012, Decree 86/2018 introduces certain notable changes as follows:

Decree 86/2018 no longer applies to foreign investment in vocational education (đào tạo nghề).
For the first time, joint cooperation with foreign investors is permitted at all level of education including preliminary schools, secondary schools and high schools. Under Decree 73/2012, joint cooperation is only permitted for university education.
Decree 86/2018 expressly provides that a foreign investor to invest in education sector by contributing capital or to purchase shares and capital contribution from (1) a Vietnamese educational institution or (2) a foreign-invested business entity that establishes an educational institution in Vietnam. Decree 86/2018 also defines a foreign-invested educational institution as an education institution invested by foreign invested business entity.
Decree 86/2018 increases the cap on number of local students that a foreign-invested primary, secondary school, or a high school can enrol to 50% of the total students. Under Decree 73/2012, the cap is 20%.
Decree 86/2018 makes it more difficult for foreign investors to invest in universities in Vietnam by increasing the minimum investment amount to VND 1,000 billion (from VND 300 billion).

This post is contributed by Ha Kieu Anh, a legal trainee at Venture North Law.

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Vietnam Business Law