Vietnamese merger regulations
Under the Vietnamese Competition Law, an “economic concentration” is defined to include the following types of transactions:
(a) Merger of enterprises means the transfer by one or more enterprise(s) of all of its lawful assets, rights, obligations and interests to another enterprise and at the same time the termination of the existence of the merging enterprise(s).
(b) Consolidation of enterprises means the transfer by two or more enterprises of all of their lawful assets, rights, obligations and interests to form a new enterprise and at the same time the termination of the existence of the consolidating enterprises.
(c) Acquisition of an enterprise means the purchase by one enterprise of all or part of the assets of another enterprise sufficient to control or govern the activities of one or all of the businesses of the acquired enterprise. Controlling or governing all or one of the businesses of another enterprise means an enterprise (controlling enterprise) obtains ownership of the assets of another enterprise (controlled enterprise) sufficient to give the controlling enterprise 50% of the voting rights at the general meeting of shareholders, the board of management or other level sufficient according to law or the charter of the controlled enterprise to enable the controlling enterprise to govern the financial policies and operations of the controlled enterprise aimed at receiving economic benefit from the business operations of the controlled enterprise.
(d) Joint venture between enterprises means two or more enterprises together contribute a portion of their lawful assets, rights, obligations and interests to form a new enterprise.
Article 20.1 of the Competition Law provides that if the parties to a merger have a combined market share in a relevant market from 30% to up to 50% then the parties must notify the Vietnam Competition Authority of the enterprise acquisition before completing the merger unless the parties to the merger still remain a small and medium enterprise after the merger. A small and medium enterprise under Vietnamese law is subject to different criteria based on its business lines. But in general, a small and medium enterprise should not have more than 300 employees and a charter capital of more than VND 100 billion (about US$ 4.8 million). An economic concentration with a combined market share of more than 50% is prohibited unless an exemption is granted.
The new Anti-Corruption Law 2018 expands to regulate anti-corruption practices in private sectors and includes a new mechanism on controlling conflict of interests. For private sectors, the provisions on controlling of conflict of interest under Anti-Corruption Law 2018 apply to, among other things, public joint stock companies, and credit institutions. It appears that other private companies are not subject to the provisions on controlling of conflict of interest under Anti-Corruption Law 2018.
Under the Anti-Corruption Law 2018, conflict of interest means a situation where the interest of a company official or his/her relative have or likely to have an influence on performance of such official’s duties. Company officials who may be subject to the rules on conflict of interest under the Anti-Corruption Law 2019 include:
Article 14 of the Law on Real Estate Business 2014 has the title “Entities which can purchase, receive assignment, lease, hire-purchase (thuê mua) real esates from real estate companies”. Article 14.2 of the Law on Real Estate Business 2014 provides that a foreign-invested enterprise (FIE), as a customer of a real estate company, is allowed to “purchase, hire-purchase houses, construction works to use for offices or business facilities in accordance with use function of such houses, construction works”. Article 14.2 does not include “leasing from real estate companies” from the permitted scope of purchase by an FIE. Technically, this could mean that an FIE is not allowed to lease office from real estate developers in Vietnam.
After years of existence, it is still arguable whether e-cigarette (thuốc lá điện tử) should be regarded as actual tobacco (thuốc lá). Accordingly, it is not clear how e-cigarette business should be regulated under Vietnamese law.
Under the Law on Tobacco Prevention 2012, tobacco is defined to be “a product wholly or partly manufactured from tobacco ingredients, processed in the form of cigarettes, cigars, tobacco shreds, pipe tobacco and other forms”. The word “other forms” could broadly cover many forms of product. However, from the definition, the key when identifying whether a product is a tobacco product is not its form, but its ingredients.
In most cases, e-cigarettes are battery-operated devices that work by heating a liquid solution (e-liquid), from which vapor is then produced. This e-liquid usually contains nicotine – a stimulant typically made from tobacco plants. Meanwhile, the definition of tobacco ingredients under the Law on Tobacco Prevention 2012 includes multiple forms of tobacco leaves, tobacco shreds, tobacco stalks and other substitute ingredients used for tobacco production.
A notable change of the new Anti-Corruption Law 2018, among other things, is that the Anti-Corruption Law 2018 applies to not only State agencies, organizations, units and public officials, but also to non-state enterprises, organizations, and officials. However, a closer reading of Article 22 on the giving and receipt of gifts under Anti-Corruption Law 2018 may indicate otherwise. In particular,
(a) Article 22.2 provides: “Agencies, organizations, units, and public officials are not allowed to directly or indirectly receive gifts in any form from agencies, organizations, units, individuals which are relating to the affair which they are handling or fall under their management”; and
(b) Article 3.9 of the Anti-corruption Law 2018 defines “agencies, organizations, units” under the Anti-corruption Law 2018 as agencies, organizations, units of the State.
Based on the definition in Article 3.9 and the wording of Article 22.2, it is arguable that the regulations and restrictions regarding gifts-giving under the Anti-corruption Law 2018 only apply to State-owned enterprises, state agencies, organizations, units, and public officials but not to non-state enterprises, organizations, and officials.
Decree 40/2019 amending four separate decrees on environment protection takes effect from 1 July 2019. Below are some of the key amendments introduced by Decree 40/2019:
· The term “Industrial zones” is expanded to include all kinds of zones, such as export processing zones, high-tech zones, or industrial areas.
· “Main works or items of a project” is the main project component specified in the feasibility study of the project.
· List of projects subject to environmental impact assessment (EIA) is adjusted. For example, investment in a golf course is now subject to EIA. Certain projects which do not have wastewater treatment work or waste treatment work are exempted from post-construction examination. Only residential projects with capacity of 2000 (instead of 500) or more inhabitants are subject to EIA. Only hotel projects with capacity of 200 rooms (instead of 50) are subject to EIA.
· Industrial manufacturing is classified in various sectors with different level of risks to the environment. Development of manufacturing projects with very high risks to the environment is subject to consultancy with environmental experts and scientists, and appraisal of EIA reports of these projects must be conducted by an appraisal panel.
Various provisions of the Enterprise Law 2014 can now allow parties to an M&A deal in Vietnam to have more flexibility in designing a closing mechanics. In particular,
· Multiple legal representatives – In a M&A deal involving a change of control, the buyer would want to control the legal representative position on the closing date. But this involves registration with the Business Registration Authority. Many sellers are reluctant to change the legal representative position before closing without receiving payment of the purchase price.
In the past, a company can only have one legal representative. However, under the Enterprise Law 2014, a company can have two or more legal representatives. As such, the parties can agree that the target company will have two legal representatives appointed by the seller and the buyer. The legal representative appointed by the seller will continue to run the target company up until closing and will resign on closing. The legal representative of the buyer will assume control on closing. And after closing, the target company will deregister the legal representative appointed by the seller.
Unclear definition of 51% FIE
Under Circular 6/2019, enterprises with foreign direct investment (FIEs), which must open DICA include (1) enterprises which are established by foreign investors (with or without local partners) (Incorporated FIEs); and (2) enterprises which do not fall under (1) but 51% of which are owned by foreign investors (51% FIEs). Normally, one would expect that a 51% FIE must be a FIE, 51% of which is actually owned by foreign investors (Actual 51% FIEs). However, Circular 6/2019 provides that a 51% FIE include enterprises which have foreign investors making capital contribution or purchasing shares resulting in foreign investors’ owning 51% of the FIE. The use of the words “resulting in” suggests that a 51% FIE could be a 100% locally-owned company, which has potential foreign investors who may acquire 51% or more of its charter capital (Future 51% FIEs).
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.
On 8 July 2019, the State Bank of Vietnam (SBV) expresses its view and recommendation to credit institutions in Vietnam (CIs) on peer-to-peer lending activities (P2P Lending). The SBV’s view is as follows:
· P2P Lending is built on a digital platform which connects borrowers and lenders without having to go through financial intermediaries (such as CIs). All lending activities will be recorded on the platform.
· The SBV acknowledges that P2P Lending is not specifically regulated by current regulations.
· Besides its potential to create additional way to mobilize capital, P2P Lending can give rise to the following risks: (1) misleading information provided by P2P Lenders about the product’s safety, (2) the lack of oversight on P2P Lending’s platform in terms of cybersecurity, (3) P2P Lenders’ using customer information for predatory lending activities, and (4) P2P Lending being considered as activities of CI.
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: