In December 2015, the Ministry of Industry and Trade (MOIT) confirmed in a Letter No.12933 that a Vietnamese company in which foreign investors invest will need to comply with the regulations under Decree 23/2007 regarding import and distribution activities of foreign invested enterprises regardless of the level of foreign ownership in the Vietnamese company. This means that most local companies which register for import and distribution businesses and have foreign investors will need to obtain a Trading Licence (Giấy phép kinh doanh) under Decree 23/2007 even if there is no investment certificate for the investment by the foreign investor. The MOIT requires compliance with Decree 23/2007 even when it is contemplating further changes to Decree 23/2007. The MOIT’s confirmation has certain important implication:
According to the MOIT, now companies even with 1% foreign ownership will need to comply with Decree 23/2007 regarding import and distribution. Before 1 July 2015, one can rely on Article 29.4 of Investment Law 2005 to argue that a company with no more than 49% foreign ownership should be treated as a domestic company and does not need to comply with Decree 23/2007;
The view taken by the MOIT applies even to public joint stock companies including listed companies. However, it would be impractical for a public listed company to control or manage its foreign ownership unless the listed company expressly prohibits or limits foreign investment in its charter; and
The process to obtain a Trading Licence under Decree 23/2007 is quite lengthy and cumbersome. So by expanding its application, the MOIT could make an acquisition process of a company involved in import and distribution much longer.