It is not clear under Vietnamese law if a company may sublease its spare office or factory space without having to register for “real estate trading” and to have a minimum capital of VND 6 billion.  

•   Article 4.2 of the Enterprise Law provides that “doing business” (kinh doanh) means the continuous conduct of one, several or all of the stages of the investment process, from production to sale of products or provision of services in the market for profits. There is no further interpretation of the term “continuous conduct”. Therefore, it is not clear if a company which enters into only one subleasing contract for its spare office or factory space could be considered as having a continuous conduct of leasing or not.

• In an official letter dated August 2011, the Ministry of Planning and Investment took the view that a company subleasing its spare office or factory space is considered as providing real estate trading service and is required to register for “real estate trading” and to have a minimum capital of VND 6 billion.

• On the opposite end, in November 2013, in an official letter to Long An Department of Planning and Investment, the Ministry of Construction takes the view that  a company subleasing its spare office or factory space is not considered as providing real estate trading service and is not required to register for “real estate trading” and to have a minimum capital of VND 6 billion.

It appears that the Ministry of Construction considers that entering into one sublease contract does not constitute a continuous conduct. On the other hand, the Ministry of Planning and Investment took the opposite view. The issue in question could also extend to other normal corporate activity such as intercompany lending or providing parent guarantee.