The 51% simple majority voting in a general meeting of shareholders of a joint stock company (JSC) under the Enterprise Law 2014 is a major change compared with the Enterprise Law 2005 which provides for a 65% simple majority. However, if a JSC incorporated under the Enterprise Law 2005 already follows the Enterprise Law 2005’s voting rules, then such JSC will need to amend its charter to enjoy the new lower voting thresholds under the Enterprise Law 2014. And such amendment is still subject to the old 75% super majority vote under the Enterprise Law 2005.

For Public JSCs, in March 2016, under Official Letter 1183/UBCK-QLCB, the SSC instructed Public JSCs to publish voting and quorum rules in accordance with the Enterprise Law 2014 before the annual meetings of the Shareholder Meeting. While it is not clear, it appears that the SSC instructed Public JSCs to adopt the minimum voting and quorum threshold of the Enterprise Law 2014 without amending the charter of such Public JSCs. The instruction of the SSC seems to be contrary to the Enterprise Law 2014 since the higher voting and quorum thresholds provided in the charter of a Public JSC still comply with the Enterprise Law 2014 and should be complied with. The SSC, in this case, could be considered preventing shareholders of a Public JSC from complying with its charter.

In a dispute between Masan Food and Cholimex (a company listed on HSX), in April 2017, the appeal court in Ho Chi Minh City has confirmed that Cholimex must still follow the voting thresholds under its charter, which is adopted under the Enterprise Law 2005 and contains the voting threshold of 75% instead of the minimum voting thresholds of 51% under the Enterprise Law 2014. The appeal court’s judgment has made the SSC’s instruction less reliable in practice.

Vietnam Business Law