Sale of Shares to Strategic Investors During Equitisation
Below are some selected issues relating to the sale of shares to Strategic Investors during equitisation of a State-Owned Enterprise (Equitised SOE). These issues are discussed in more detail in my book on equitisation of Vietnamese SOEs.
Timing
Under Decree 59/2011, the proposed sale price for shares offered to Strategic Investors will be decided based on, among other things, the timing of the proposed sale (i.e. whether before or after the sale of shares to public investors in the equitisation (the Equitisation IPO)).
However, Decree 59/2011 also provides that for certain special Equitized SOE, if it is “absolutely necessary” to select Strategic Investors before the Equitisation IPO, the Prime Minister will decide the criteria for selecting Strategic Investors, the method of sale and the number of shares to be sold to Strategic Investors. This provision implies that the option to sell shares to Strategic Investors before the Equitisation IPO is only available to certain special Equitised SOE and is subject to approval by the Prime Minister.
Applicability of private placement rules
Decree 58/2012 implementing the Securities Law does not contain specific provisions stating that the sale of shares in the joint stock company established from the Equitised SOE (the Equitised JSC) to Strategic Investors by the Equitised SOEs is not subject to private placement regulations under Decree 58/2012. Instead, Decree 58/2012 states that a limited liability company privately issuing shares in order to convert to a joint stock company will be subject to private placement regulations. It is therefore not clear whether the private placement regulations under Decree 58/2012 will apply to a private placement of shares by an Equitised SOE to a Strategic Investor during the equitisation of such Equitised SOE. If the provisions of Decree 58/2012 applies then it would certainly make the situation much more complicated due to potential overlapping and conflicting requirements between two different sets of regulations.
For a sale of shares to Strategic Investors after the Equitisation IPO, the sale price must not be less than the lowest successful auction price in the Equitisation IPO (Minimum IPO Price). Decree 59/2011 provides that for the sale of shares to Strategic Investors “who have registered for purchase of shares” before the Equitisation IPO, the sale price to the Strategic Investor must not be lower than the Minimum Offer Price. The wording of this provision seems to suggest that a Strategic Investor needs only register to purchase shares before the Equitisation IPO in order to be entitled to the floor price, which is the Minimum Offer Price.
Previous equitisation regulations required that the sale price to Strategic Investors in an Equitised JSC must not be less than the average successful auction price of the Equitisation IPO. Compared to previous equitisation regulations, Decree 59/2011 provides more certainty and flexibility regarding the sale price to a Strategic Investor in the event that the sale occurs before the Equitisation IPO. This is because under Decree 59/2011, a potential Strategic Investor will be aware of the Minimum Offer Price before making a binding offer to the Equitised SOE. Under previous regulations, very few Strategic Investors could make a binding offer before the Equitisation IPO because the average successful auction price in the Equitisation IPO, and accordingly, the minimum purchase price, were still unknown and no sensible investors would write a blank check to the Equitised SOE.
Decree 59/2011 provides that the shares in an Equitised JSC sold to a Strategic Investor are not transferrable for at least 5 years from the incorporation of the Equitised JSC, unless otherwise approved by the General Meeting of Shareholders of the Equitised JSC.
Auction sale vs. direct negotiation
Decree 59/2011 provides that “in case of direct negotiation with or auction among Strategic Investors”. As such, Decree 59/2011 appears to allow the sale of shares to Strategic Investors to be conducted either through an auction process or through direct negotiation.
Circular 196/2011 provides that if there are more than three Strategic Investors registering to purchase shares in the Equitised JSC, then the Equitised SOE must hold an auction among the interested Strategic Investors. In addition, if there are up to three Strategic Investors registering to purchase shares in the Equitised JSC and the number of shares registered for purchase exceeds the number of shares allocated to interested Strategic Investors, then the Equitised SOE must also hold an auction among the interested Strategic Investors.
If there are less than three Strategic Investors registering to purchase shares in the Equitised JSC and the number of shares registered for purchase do not exceed the number of shares allocated to interested Strategic Investors, then the Equitised SOE can directly negotiate with each Strategic Investor for sale of shares in the Equitised JSC.
Article 23.1 of Vietnam's 2023 Law on Real Estate Business explicitly allows real estate developers to sell future properties, such as houses, buildings, or floor areas within a building. However, the law is silent on the leasing of future properties (except for hire purchase transactions). This omission has led to uncertainty regarding the legality of such transactions.
On the one hand, leasing of future properties was clearly permitted in a similar Article of the Law on Real Estate Business 2014. Accordingly, one could argue that the omission of leasing from Article 23.1 of the Law on Real Estate Business 2023 indicates that a real estate developer cannot lease future properties.
Under Article 84.2 of the Civil Code 2015, a branch (chi nhánh) of a legal entity has the duties to perform all or parts of the legal entity’s functions. However, a branch is not allowed under the Civil Code 2015 to act as an authorized representative of a legal entity. Accordingly, it is not clear in what capacity a branch would perform the functions of a legal entity.
Logically, in order for a branch to perform all or parts of the legal entity’s functions, either
Option 1: a branch could be allowed to act as an authorized representative of a legal entity under another law; or
Option 2: a branch could perform the functions of a legal entity in its own name and capacity. In other words, a branch can perform the functions of a legal entity without needing an authorization from the parent entity and the action (or inaction) of a branch will be deemed an action or inaction of the parent entity.
The term “economic organisation” (tổ chức kinh tế) was first introduced under the Investment Law 2014 and refers to, among other things, any company or organisation incorporated in Vietnam. Over time, the term “economic organisation” has been used consistently in other legislations and allows for a consistent application of the law. However, the Land Law 2024 has introduced significant confusion as to the meaning of the term “economic organisation”. In particular, it is not clear under the Land Law 2024, if the term “economic organisation” only refers to companies or organisations, which are not controlled by foreign investors and do not include companies or organisations which are controlled by foreign investors. The lack of clarity has important implication on how the Land Law 2024 is implemented. For example, if the term “economic organisations” under the Land Law 2024 includes organisations which are controlled by foreign investors then a foreign bank branch could have a clear legal basis to take mortgage over land use rights and assets attached to land.
The corporate bond crisis in Vietnam started in 2022 during which many corporate bonds issued before September 2022 under Decree 153/2020 were defaulted by the issuers (Pre-2022 Bonds). To facilitate the potential restructuring of Pre-2022 Bonds, in 2023, the Government issued Decree 8/2023 which allows for the bond issuers and the bondholders to agree to amend the terms of a Pre-2022 Bonds including the extension of the duration for the Pre-2022 Bonds to up to two years. However, the rights of a bondholder who disagrees with a restructuring proposal for a Pre-2022 Bond are not clear.
Under Decree 8/2023, the duration and the repayment schedule of a Pre-2022 Bond could be extended if the proposed extension is approved by bondholders representing 65% or more of the total number of outstanding bonds. Decree 8/2023 further provides that for bondholders who do not agree to changes in the conditions and terms of a Pre-2022 Bond (dissenting bondholders), the issuer is required to negotiate with the dissenting bondholders. If a dissenting bondholder does not accept the proposed negotiation plan, the issuer must fully fulfill its obligations to that dissenting bondholder in accordance with the original bond issuance plan. This requirement holds even if the proposed changes have been approved by the other bondholders who hold 65% of the outstanding bonds.
Under anti-money laundering (AML) regulations, reporting entities (e.g., credit institutions) are required to be aware of several key watchlists, maintained by relevant Vietnamese authorities, to ensure compliance with their AML obligations. This blog will introduce those watchlists and discuss specific requirements related to them.
Essential watchlists under AML regulations
Under AML regulations, the Vietnamese Government maintains the following watchlists:
(1) A Blacklist (danh sách đen in Vietnamese): including (a) list of organizations and individuals involved in terrorism and terrorism financing compiled by the Ministry of Public Security (MPS), and (b) a list of organizations and individuals designated as being involved in the proliferation and financing of the proliferation of weapons of mass destruction, compiled by the Ministry of National Defense (MND);
(2) A warning list/Grey list (danh sách cảnh báo in Vietnamese): A list of organizations and individuals compiled by the State Bank of Vietnam (SBV) to warn about those with a high risk of money laundering; and
(3) A list of Foreign politically exposed person (PEP List) (danh sách cá nhân nước ngoài có ảnh hưởng chính trị in Vietnamese): A list of foreigners who hold a senior position in foreign agencies, organizations, and international organizations, notified by the SBV.
There are no specific guidelines on how to access these watchlists or the procedure for screening data against them. However, except for the Grey List, which has not yet been published by the SBV, the Blacklist ((1)(a) and (1)(b)) and PEP List can be found via the national portals of the MPS, MND, and SBV (see embedded links).
Under the Housing Law 2023, a developer of a commercial housing project could raise financing from the following sources:
equity capital of the developer;
capital raised from joint venture, business cooperation, and contribution from other organizations or individuals (BCC Capital);
capital raised from issuance of corporate bonds, shares, and fund units;
pre-sale proceeds raised from sale and purchase agreements or hire and purchase agreements with regards to future houses signed with customers;
debt financing raised from credit institutions or finance organizations operating in Vietnam (bank loans).
In comparison with the Housing Law 2014, the Housing Law 2023 clearly includes capital raising from issuance of bonds and fund units but excludes pre-sale proceeds of leasing agreements for future houses. In this post, we will discuss each of the sources of financing for a commercial housing project. The Housing Law 2023 still does not allow a developer of a commercial housing project to raise debt financing from offshore lenders.
This post continues discussing some additional changes of the LCI 2024. For changes discussed in our Part 1, please see here.
1. Lowering the limit on total credit balance
The LCI 2024 lowers aggregate credit limit over the CI’s equity capital for a customer, a customer and its related persons over different periods. Specifically:
On 26 March 2024, the Supreme People’s Procuracy of Vietnam (the Supreme Procuracy) issued Official Letter no. 1083/VKSTC-V9 (the Official Letter) to respond to inquiries from local procuracies regarding supervision in legal proceedings regarding civil, marriage and family matters. Although these clarification and interpretation are non-binding, they constitute an important source of interpretation for the procuracy system to rely on. However, one should note that interpretation by a procurator is not binding on the court and therefore is not as important as a guidance issued by the superme court.
In this post, we will discuss some statements of the Supreme Procuracy under the Official Letter that we find interesting or noteworthy:
1) Q&A no. 34: If (i) a civil transaction is not in the required form for it to be legally effective, (ii) the obligation therein cannot be quantified, and (iii) the court cannot determine how many parts of the obligation has been performed by the obligor then (a) Articles 129.1 and 129.2 of the Civil Code 2015, which allow an otherwise invalid transaction to remain valid if two thirds of the relevant obligations have been performed, would not be applicable to recognize the validity of such transaction and (b) such civil transaction would be consider invalid.
Our comments: The Supreme Procuracy seems to have taken the view that a party (i.e., the obligor who has performed a certain amount of work under such transaction) may only seek for recognition of the validity of a civil transaction if their situation is captured under Articles 129.1 and 129.2 of the Civil Code 2015.
Although this might be an understandable deduction from the straightforward reading of Article 129’s wordings, we believe that the aforementioned party should be able to request the court to consider their claim according to Article 14.2 of the Civil Code 2015 (i.e., the court should seek to apply customary practice, analogous law, basic principles of civil law, case law, and equity law to the case if Article 129 is not applicable) instead of being rejected immediately.
There have been numerous discussions about the new direct power purchase mechanisms (DPPA) introduced under Decree 80/2024 our own briefing note. In this post, we focus on issues which are unclear under Decree 80/2024 and require more clarification. Terms defined in our briefing note will have the same meaning when used herein. These issues are:
Decree 80/2024 introduces the concept of “Authorised Electricity Retailer in Zones” (Đơn vị bán lẻ điện tại các mô hình khu, cụm được ủy quyền). However, it is not clear who will verify and determine whether an electricity retailer will qualify as an Authorised Electricity Retailer in Zones. Decree 80/2024 does not make clear if the parties to the DPPA mechanism can verify the qualification of an Authorised Electricity Retailer in Zones or will require a third party (even the authority) to do so.
To purchase power via a DPPA mechanism, a customer is required to consume an average 200,000 kWh per month. If a Consumer consumes less than 200,000 kWh per month then the DPPA relating to such Consumer may have to be terminated. However, it is not clear if the 200,000 kWh threshold includes the amount of power purchased from (1) both EVN and the RE Generator or (2) EVN only. In other words, it is not clear Decree 80/2024 requires a Consumer to purchase at least 200,000 kWh from EVN. This interpretation seems not logical but not impossible.
On 16 May 2024, the Government of Vietnam promulgated Decree 55/2024 to elaborate some articles of the Law on Protection of Consumers’ Rights (Decree 55/2024) which replaced the Decree 99/2011 from 1 July 2024. Decree 55/2024 introduces some noteworthy amendments on requirements applied to standard form contracts (Standard Contracts) and general trading conditions (T&Cs) as follows:
Multilingual Standard Contracts and T&Cs:
Decree 55/2024 allows additional languages to be used in the Standard Contracts and T&Cs as agreed by the parties alongside Vietnamese. Previously, Decree 99/2011 only allowed the use of Vietnamese. This change accommodates international trade practices and facilitates clearer communication between parties.
Please download the pdf version here.
Decree 80/2024 outlining mechanisms for direct power purchase agreement (DPPA) between renewable energy generators and large electricity consumers (Decree 80/2024) was issued by Vietnamese Government and became effective 3 July 2024. This Decree is considered as a significant policy that aims to promote the development of renewable energy in Vietnam and enhance the competitiveness of Vietnam’s retail electricity market.
This briefing note discusses the significant highlights of DPPA mechanism to be applicable to renewable power developers, including rooftop solar power developers in Vietnam as introduced by Decree 80/2024. This post is written by Nguyen Thi Kim Anh and Ha Thanh Phuc and edited by Nguyen Quang Vu.
Under Article 27 of Decree 80/2024 on mechanism for direct sale and purchase of renewable energy with large electricity customers, the Ministry of Industry and Trade (MOIT) will be entitled to suspend or terminate a Direct Power Purchase Agreement (DPPA) if there is an “act of taking advantage of the mechanism, policy for making profit”. For termination, the consequences of such act needs to be irremediable and the MOIT will need to obtain opinion from related authorities (presumably from the Ministry of Public Security).
Any large customer or any renewable energy producer enters into a DPPA will need to comply with (or “use”) the DPPA mechanism. In addition, obviously, the parties to a DPPA enter into the DPPA for the purpose of making profit (or saving costs). But Decree 80/2024 is not clear when the use of the DPPA mechanism would be considered as “taking advantage” (lợi dụng) of the mechanism or when an entity is deemed to make so much profit that the relevant DPPA may need to be suspended or terminated.
Since 2019, Hanoi Stock Exchange (HNX) has operated a website to publish information on private corporate bonds (Private Bond Information Website). Currently, on the Private Bond Information Website, several outstanding private bonds issued under Decree 153/2020, which have reached maturity but have not been repaid by the relevant issuers, are marked as “cancelled” (bị hủy) by HNX (the Cancelled Bonds). This classification by HNX raises several issues as discussed below.
Legal status of the Cancelled Bonds
One may argue that HNX’s announcement of the Cancelled Bonds implies that the Cancelled Bonds are invalid and that bondholders can no longer claim outstanding payment from the issuer. However, Vietnamese law also contains several provisions suggesting that the Cancelled Bonds remain valid and the issuer must fulfill outstanding payments to the bondholders:
Under Decree 153/2020, the bondholder is entitled to “be paid on time by the issuer the full amount of principal and interest when they become due […] under the terms and conditions of the bond and the agreements with the issuer”. This suggests that even when the Cancelled Bonds have matured, the issuer must still fully pay the outstanding amount to the bondholders under the Bond terms & conditions (Bond T&C) and bond subscription agreement;
Under Decree 153/2020, as a condition for the new issuance of private bonds, the issuer must “have fully paid the principal and interest on the issued bonds (if any) or having fully paid out debts on maturity within three (3) years immediately preceding the issue tranche […]”. This provision suggests that the issuer must pay in full all of the debts, including outstanding bonds that have matured (e.g., Cancelled Bonds), to be eligible to issue new private bonds; and
Under Decree 65/2022, if the Cancelled Bonds have matured but the issuer has not paid the principal and interest of the Cancelled Bonds in full, the issuer is only allowed to negotiate with bondholders regarding changes of plan to pay the principal and interest of the Cancelled Bonds. If bondholders disagree with the proposed plan by the issuer, the issuer must fully comply with the Bond T&C and bond subscription agreement. At law, there is no provision allowing the issuer to terminate the validity of the Cancelled Bonds purely because they have matured.
In the modern day, signing of contracts is increasingly done through the creation and exchange of pdf copies of the agreed contract by the relevant parties instead of physically signing and exchanging hard copy documents. Previously, the Law on Electronic Transactions 2005 allows the parties to have substantial flexibility in agreeing on how contracts can be signed by way of creating and exchanging pdf copies. However, from 1 July 2024, several new provisions under the Law on Electronic Transaction 2023 (LET 2023) could affect how the parties could sign a contract via the creation and exchange of pdf copies of the agreed contract. In particular,
The LET 2023 appears not to allow an individual to have an e-signature which can be created from a scanned signature of such individual. Accordingly, the practice of having the signature page printed, signed, scanned and attached to the body of the contract may not be considered as signing the contract by the relevant individual.
The LET 2023 requires an electronic record (thông điệp dữ liệu) converted from a hard copy document to have a specific indication that it has been converted from a printed copy and the details of the person/entity conducting the conversion. Accordingly, a simple scanned pdf copy of a contract without the required information may not qualify as an electronic record of such contract.
On 15 May 2024, a new Decree on non-cash payments has been passed by the Government (Decree 52/2024) to replace the old Decree 101/ND-CP of the Government on non-cash payment dated 22 November 2012 (Decree 101/2012) from 1 July 2024. In this post, we will introduce certain key changes of Decree 52/2024.
Supplementing e-wallets as one of the permitted non-cash payment instruments
Decree 52/2024 provides a specific definition of non-cash payment instruments which are instruments issued by organizations providing payment services, finance companies authorized to issue credit cards, intermediary payment service providers offering electronic wallet services, and used by customers to conduct payment transactions. Furthermore, e-wallets are supplemented as one of the non-cash payment instruments.
Banks, foreign bank branches or intermediary payment service providers may provide E-wallets service. Due to the increase in illegal payments via e-wallets (such as online gambling, or scamming), Decree 52/2024 only allows customers to use e-wallets linked to his or her own payment account or debit card. This regulation may prevent people from renting or lending their identities and documents to alleged violators for opening bank accounts or e-wallets.
On 27 May 2024, the Ministry of Industry and Trade (MOIT) issued Decision 1260 approving the electricity generation price (EGP) range for the year 2024 applicable to LNG combined-cycle gas turbine (CCGT) thermal power plant (nhà máy nhiệt điện tua bin khí chu trình hỗn hợp sử dụng LNG in Vietnamese).
The ceiling price of such EGP range is VND 2,590.85 per kWh (about 10.67 UScents at the exchange rate of 1 USD = 24,262 VND), exclusive of VAT. Such ceiling price was calculated based on the following factors:
Background
Under the business cooperation contract (BCC) structure, the parties do not establish an entity but usually cooperate to use their available resources, including land use rights (LUR) to do business. The party having LUR (Landlord) will “contribute” its LUR to the BCC and allow the other party (Developer) to develop house/construction works on the land while retaining title to the LUR.
Discussion
Under the current land law, implementing a project involving LUR via BCC is arguably possible. However, the relevant regulations seem vague and may give rise to certain legal issues. With new regulations of the Land Law 2024, the BCC structure will have a more concrete legal framework. In particular,
Article 148 and 149 of the Land Law 2024 now codifies regulation on granting ownership certificates to owners of ready-built house/construction works who are not simultaneously land user under Decree 43/2014 guiding the Land Law 2013. In this regard, the Land Law 2024 now expressly recognizes BCC as valid evidence of the owners’ lawful right to use the other party’s land for building their houses/construction works. In light of this clear regulation, the Developers to the BCCs now may find it confident that its title to the building on land will be protected.
Please download the pdf version here.
In this post, we compare the rights and obligations of land users being domestic economic organizations (Domestic EOs) according to Land Law 2013 and Land Law 2024. Our comparison is provided in the contexts of land allocation/land lease with one-off rental payment and land lease with annual rental payment.
This post is written by Cao Khanh Linh, Nguyen Hoang Duong, and Nguyen Quang Vu.
The Land Law 2024 introduces major amendments to the land use regime in Vietnam. One of the most interesting new amendments is the ability of a land user who lease land from the Government with annual rental payment (such user, Annual Land User) could now sub-lease or, subject to certain conditions, sell the land (via a sub-lease or sale of the lease rights) together with the assets attached to such land to another person. Previously, most land users who pay land rental for the whole term in advance could sublease or sell its land to another person. In our opinion, if implemented properly, the new amendment could improve the supply side of the real estate market substantially.
While it is common in practice for the Chief Representative of a Representative Office (RO) to act on behalf of the RO in opening and using the RO's bank account, there are instances where the parent company may wish to authorize another person (Authorized Person) to handle these matters. The key question is the validity of such authorization and whether the Chief Representative's acknowledgment of such Power of Attorney (POA) should be sought.
Short answer: The authorization for the Authorized Person should originate from the RO, not the parent company. If the authorization is granted by the parent company, it should be recognized by the Chief Representative as the "legal representative" of the RO. This acknowledgment would then serve as a concurrent authorization by the RO.