Category: Vietnam – General

Posted on by Dr. Oliver Massmann

VIETNAM – Power Development Planning VIII (“PDP8”) – Vietnam Government’s plan to De-carbonize the Country – what you must know:

Question#1. What impact is PDP8 likely to have on the country’s efforts to decarbonize the economy?

Answer#1:
The draft Power Development Planning VIII (“PDP8”) reinforces the Vietnam Government’s current view on prioritizing renewable energy sources to minimize negative impacts caused by electricity production on the environment. Importation of fuels (coal, LNG) are encouraged as a way to diversify the country’s primary energy sources, and the same goes for the establishment of transmission and distribution grid links with China, Laos and Cambodia in order to maximize each country’s energy potential. Imported electricity sources from neighboring countries are to be considered as prioritized projects because imported electricity will reduce environmental impact compared to domestic production.

As of 2020, the country’s total generation capacity is about 69.3 gigawatt (GW), including 16.5 GW of solar power (approx. 24% of the total capacity) and 0.6 GW of wind power. More than 50% Vietnam’s electricity generation came from coal in 2020. Vietnam’s reliance on coal-fired power remains heavily to meet rapidly increasing electricity demand. Hydroelectric generation is also significant as the country is home to a number of large rivers. Non-hydro renewable sources such as wind and solar made up 5% of Vietnam’s electricity generation in 2020. Under the draft PDP 8, Vietnam plans to increase solar capacity to 18.6 GW and wind capacity to 18 GW by 2030.

Question#2. Does PDP8 target specific regions of the country? Are these regions that are more likely to be impacted by the transition to a low carbon economy?

Answer#2:
Yes, one of the most notable differences between the Draft PDP 8 and Revised PDP 7 (the latest official national power development planning) is the level of power demand between the North and the South. According to PDP8, the proportion of commercial electricity in the North will gradually increase from 42.4% in 2020 to 45.8% in 2045, while the South will decrease its proportion from 47.4% in 2020 to 43.6% by 2045. By 2040, the North’s commercial electricity demand will start to exceed that of the South. As a result, this will significantly affect the strategy in PDP8 to develop the transmission grid and generation sources (including RE sources) to meet the demand.

The draft PDP 8 is oriented to focus on the development of transmission grid of at least 220KV to solve overcapacity issues that has been occurring in recent years. As to grid development, in the period of 2021-2030, MOIT sees the need to build 86 GVA with a capacity of 500kV per station and nearly 13,000 km of DLZ. From 2031-2045, an additional construction of 103 GVA with capacity of 500kV and nearly 6000 stations is required. The 220kV power grid needs construction of 95 GVA, nearly 21,000 km DMZ and 108 GVA, more than 4000 km NE. Total investment capital for electricity development in the period 2021-2030 is roughly USD 128.3 billion USD, of which: USD 95.4 billion for the power sources, USD 32.9 billion for the grids. The average structure of capital investment shall be 74% / 26%.

The draft PDP8 appears to concern a surging oversupply of solar power in 2030 in many regions, such as the Central Highlands (estimated 1,500 MW but registered 5,500 MW), the South Central (estimated 5,200 MW but registered 11,600 MW), or the Southern (estimated 9,200 MW but registered 14,800 MW). The wind power shares the same situation as the registered capacity exceeds normal estimated capacity in Central Highlands (estimated 4,000 MW but registered 10,000 MW) and Southern (estimated 6800 MW but registered 17,000 MW). Accordingly, the draft PDP8 must solve this unbalance to ensure the sustainable development of the renewable energy sources in Vietnam. It is expected that future policy on renewable energy will base on auction rather than FIT.

For example, below is the draft policy for solar power projects. In late January 2021, the Ministry of Industry and Trade (“MOIT”) issued the draft Decision of the Prime Minister guiding the selection of investors implementing solar power projects under the bidding mechanism (“the Draft”). According to the Draft, the Decision would be applicable to projects with grids connected directly to the national power network. The Ministry of Industry and Trade shall coordinate with the Electricity of Vietnam and the People’s Committees of localities to organize the formulation and approval of the renewable energy power source development plan for a period of 5 years and every 2 years to serve as a basis for the bidding system. In addition, every 02 years, the Ministry of Industry and Trade shall issue a Price Framework for electricity generation in order to determine the ceiling price for bidding to select investors of solar power projects with COD in the next 02 years. The plan for development of renewable energy power sources for a period of 5 years shall include the total capacity scale for each renewable energy power source in the 5-year period, the total capacity scale for each renewable energy power source for each load region (8 regions) and a list of transmission lines and substations (220 kV at least) to be put into operation for a period of 5 years. The 02-year plan shall have similar content but for a 2-year period only and shall be more provincial specific.

Question#3. Were issues of economic, racial, and gender equity considered in the development of PDP8?

Answer#3:
Yes, any policy of the Government must consider these issues but it is very challenging to identify whether they are well reflected into the policy including PDP8. This is a very broad and difficult question.

Question#4. Was there a debate amongst political leaders about the costs and benefits of PDP8?

Answer#4: Yes, of course. It appears that the new Government now has different views and priorities than the former and as a result the PDP8 must be revised to reflect such priorities.

As you may know, in late March 2021, the very first draft of PDP8 PM Decision (“Draft Decision”) has been published through unofficial sources (i.e. not through the Ministry of Industry and Trade (MOIT)’s website). Such PM Draft Decision was planned to be signed off at the end of March during the last days of Prime Minister Nguyen Xuan Phuc’s administration, but it was delayed as the hand-over to new administration was already under way. It appeared that the investors and LNG-to-power projects in this first PM Draft Decision were scaled down comparing to those in the PDP8 proposal published by Ministry of Industry and Trade (MOIT) earlier.

On 23 April 2021, the Deputy Prime Minister (DPM) Le Van Thanh directed a Government’s meeting on the PDP8 and concluded that, among others, PDP8 must be (i) updated with qualifications for prioritized projects, and (ii) revised to reasonably review and allocate development of power sources, especially LNG-to-power projects in PDP8 in order to ensure the competition, optimization on development of power system. DPM asked the MOIT to careful review and digest opinion from EVN in its official letter No. 1645/EVN-KH dated 2 April 2021. Finally, the DPM required the MOIT to submit the updated PDP8 proposal prior to 15 June 2021.

Unfortunately, due to Covid-19 situation and heavy workload on updating the PDP8 proposal, MOIT failed to submit a revised proposal to the Government for consideration. On 17 June 2021, the MOIT Minister arranged a press meeting to update the PDP8 progress and planned to submit the revised PDP8 proposal to the Government within June 2021. So far, based on our intel, the MOIT is still reworking its draft and PDP8 is expected to be approved COB this year ideally.

Question#5. What role did various stakeholders (e.g., business, not-for-profits) take in advocating for or against PDP8 or trying to influence its development?

Answer#5:
Yes, there are many stakeholders here, e.g., EVN, local developers, business communities (such as Chambers and VBF) and state authorities. However, please kindly note that the draft PDP8 is mainly drafted by the Energy Institution (NB: an institution under EVN until it was taken over by MOIT since 2010). The MOIT was collecting opinion from all stakeholders for the draft PDP8 made by the Energy Institution. It is worth noting that the opinion from EVN is always critically important as it (including its affiliates and subsidiaries) still remains the position of a monopoly wholesaler in the market. The new Government requested the MOIT to revisit EVN’s opinion for revising the current draft PDP8.

Question#6. Which key stakeholders were in favour of PDP8? How did they organize and influence decision making?

Answer#6:
Yes, it is very challenging to answer black or white on this question. PDP8 is the prioritized policy of the Government for the energy sector. Thus, there is always a favorable trend for this policy to come out soon. We however do note that there are different views on the contents of the PDP8, but not an issue of support or opposition.

Question#7. Which key stakeholders were against PDP8? How did they organize and influence decision making? Were there specific measures to address their concerns?

Answer#7:
Yes, it is very challenging to answer a black or white question. PDP8 is the prioritized policy of the Government for the energy sector. Thus, there is always a favorable trend for this policy to come out soon. We however do note that there are different views on the contents of the PDP8, but not an issue of support or opposition.

Question#8. Has PDP8 been well-received by the public?

Answer#8:
Yes, it has been well received by the public. However, the foreign invested business communities still have some concerns, among others, over the current PDP8:
• No clear plan for variable renewable energy in the technology mix. PDP8 must ensure Vietnam planning remains cutting-edge to include full representation of variability and assessing power system reliability.
• No plan for nuclear power.
• Need to construct a regulatory and permitting environment that attracts private sector investment in clean energy generation and energy efficiency.
• Need a clear policy to ensure EVN to share the market risks: e.g., a bankable (take or pay) power purchase agreement with generators.
• Need to halt further development of coal based projects: it is recommended to suspend the approval of any new coal thermal power plants and conducting a strategic review of those that are already approved but which do not have financing or power purchase agreements.
• Need to develop a flexible transmission network in view of the market orientation and increased variable renewable energy.
• Need to build schemes to address the uncertainties: from fuel prices to demand growth and oversupply and curtailment.

***

For more information on the above, please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM – THE GOVERNMENT ISSUES FAVORABLE POLICIES ON TAX AND FEES FOR BUSINESSES AMID THE WORST COVID-19 OUTBREAK

Recently, the Ministry of Planning and Investment issued the Draft Decree on the Government’s incentives for businesses suffering from the consequence of the corona virus pandemic. It is aimed that by the end of 2021, at least 01 million businesses will have access to favorable credit policies, reduction or termination of payment of tax, land fees as well as electricity, water, telecommunication charges. The Draft Decree is pending the Prime Minister’s approval.

Under the Draft Decree, there are four key groups of tasks for government agencies.

Group 1: Implement flexible and effective measures to prevent and control the COVID-19 pandemic, creating conditions for enterprises to stabilize and maintain production and business activities.

Group 2: Ensure stable production, smooth and efficient circulation of goods, overcome supply chain disruptions

_ Apply fast-track customs clearance for aid or donation from abroad for the healthcare sector to deal with the pandemic
_ Allow enterprises to submit scanned copies certified by digital signatures for documents that must be submitted as originals in the form of paper/notarized/certified original to resolve bottlenecks of customs clearance of goods

Group 3: Support to cut costs, remove difficulties in cash flow for businesses

_ Propose policies suspending or reducing the social insurance premiums in 2021 for businesses until June 2022.
_ Develop a plan to support air transport enterprises, and report to the Prime Minister in September 2021.
– Requesting shipping companies to publicly and transparently list shipping rates to eliminate unreasonable increase in freight rates that lead to cost burden for enterprises
_ Reduce of electricity prices for goods warehouses of logistics and processing enterprises in the agriculture, forestry, fishery and a number of commodity industries with export turnover of over USD 1 billion USD. Continue to reduce electricity prices for tourist accommodation establishments.
– Expeditiously implement the issued policies on relaxation and reduction of taxes, fees, charges and land rents; implement preferential tax policies for imported goods to finance COVID-19 prevention and control after being approved by the Government.
– Extend the deadline for paying excise tax on automobiles manufactured or assembled in Vietnam. Continue to reduce registration fees for domestically manufactured or assembled cars for an additional period of time in line with the COVID-19 pandemic.
_ Research to allow travel businesses to temporarily withdraw deposits for domestic and international travel and tourism services; reduce deposit withdrawal settlement time from 60 days to 30 days; continue to extend the reduction of the license fee for travel service business and issue tourist guide cards until the end of 2021.
_ Continue to administer monetary policy to control inflation, contributing to stabilizing the macro-economy; encourage credit institutions to continue reducing lending interest rates for existing loans and new loans to support production and business.
_ Supplement policies on debt rescheduling, exemption and reduction of interest and fees, keeping the same debt group for customers affected by the Covid-19 epidemic
_ Research and consider the exemption of trade union fees for members of businesses affected by the COVID-19 pandemic in 2021 and 2022

Group 4: Regarding labor issues, experts

_ Propose policies to flexibly apply and relax regulations and conditions on the grant and extension of work permits for foreign experts working in Vietnam
_ Adjust regulations on tax finalization and bad debt and for borrowing capital to pay wages to employees when restoring production and business.

This is the second Draft Decree issued by the Ministry of Planning and Investment upon collection and investigation of opinions from Deputy Prime Minister Vu Duc Dam, Deputy Prime Minister Le Van Thanh and opinions of 15 ministries. As such, it has reflected the current situations as well as takes into consideration the cities’ and provinces’ proposals. The Vietnam Government has continuously proved that it accompanies the business community to immediately implementing measures to remove difficulties and bottlenecks in production and business with the motto “soonest – most effective” in order to minimize damage and negative impacts on the business sector.

For more information on the above, please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM – THE LATEST DRAFT DECREE ON PROVISION OF INTERNET SERVICES AND CROSS-BORDER INFORMATION

On November 2020, we reported on the first draft decree amending and supplementing Decree No. 72/2013/ND-CP and Decree No. 27/2018/ND-CP regarding the management, provision and use of Internet services and online information. Since then, the business community, among others, have been vocal on the shortcomings of the draft and offered up many comments and suggestions to address concerns. Taking these into accounts, on 5 July 2021, The Ministry of Information and Communications issued the second Draft Decree amending and supplementing Decree No. 72/2013/ND-CP and Decree No. 27/2018/ND-CP (“the Draft”). The Draft will affect telecommunications businesses, publishers of video games and businesses that engage in producing and utilizing electronic newspapers, social networks, and sales websites.

Notable provisions in the Draft

On Aggregate information:

1. Aggregate information is information retrieved from Vietnamese press sources and must relate to the following 08 sectors: science, technology, economy, culture, sports, entertainment, advertising and social security.

2. Organizations’ internal websites and specialized website providing aggregate information must obtain aggregate information website license. This measure aims to prevent internal websites from illegally posing as aggregate information websites in order to lure in viewers. Multinationals which usually have their own global websites for staff members across the world must take extra caution when handling information already published by the Vietnamese press.

3. Aggregate information websites are also required to have electronic tools to receive and handle users’ complaints about content and copyright.

4. Press agencies that have electronic newspapers/magazines are not allowed to have aggregate information websites.

On Re-releasing published contents:

1. Aggregate information websites, application distribution stores and social networks can only re-released content published by Vietnamese press sources at least 30 minutes later than the time of publishing the source content. Re-released content must be removed immediately after the source content has been removed.

2. Agreggate information must state clearly the author’s name, the source’s name, the time of posting and place a link to the source content right below the re-released content. Aggregate information must not include readers’ comment of the re-released content (except for aggregate information websites constituted by press agencies).

3. Aggregate information must not concern other localities. This measure is somewhat impractical given the fact that in this era global events closely interwove with and have direct effects on people’s everyday life, this is especially true for international organizations, and thus viewers are increasingly looking for information about other countries. For example, the war in Yemen can drive up oil price in Vietnam or the gold price fluctuates with the hourly results of the US presidential election. Putting such measure could hinder aggregate information website’s business growth.

On Cross-border provision of public information:

Foreign entities engaging in this service must comply to Vietnam laws. Failure by investors in handling violating information can lead to the Ministry of Information and Communications proactively implementing technical interventions.

Foreign organizations and individuals providing cross-border information services that have rented a place to store digital information in Vietnam or have regular access by a number of people in Vietnam (UV- Unique Visitor) within 01 (one) month from 100,000 (one hundred thousand) people or more, have the obligation to:

– Notify/confirm the notice of operation with the Ministry of Information and Communications and coordinate with the Ministry of Information and Communications to handle violating information;
– Have a process to prevent and remove infringing services and information within 24 hours upon request from Vietnamese competent authorities.

On Social networks:

1. Social networks are classified into social networks with high levels of interaction and ones with low level of interaction based on the monthly number of interaction or registered users. Social networks with high levels of interaction (at least 1 million interactions and/or 10,000 registered users per month) have to obtain a Social Network License issued by the Ministry of Information and Communications. Social networks with low levels of interaction need only notify the Ministry of Information and Communication on its operation.

2. Only licensed social networks have the right to charge fees and perform livestream services. The Ministry of Information and Communications will also embed a tool to monitor interaction levels for licensing-related purpose.

These measures, if come into effect, would seriously hamper the development of new social networks that rely on service fees in order to further expand their business. The possibility that such new social networks have to go through lengthy administrative procedures before they can carry out any fees collection and the possibility that entities have to amend their information technology system to accommodate the Ministry’s monitoring tool would not only cause them financial burdens but also interfere with their freedom of doing business.

3. Social network owners must have a solution to prevent members from taking advantage of social networks for journalistic activities. According to the Draft, only accounts that have been identified with 2 authentication layers (authenticated accounts with real names and phone numbers) can write articles, post comments, livestream, otherwise only allowed to read news and articles.

4. The license to set up an aggregate information website and the license to provide social networking services is also shortened to a maximum of no more than 5 years and renewed only once, each time not exceeding 02 years. Previously, the maximum license term was 10 years and could be renewed twice.

On Online games:

1. The Draft removes the requirement for online game providers to obtain a master license/certificate. A Dissemination License is now only required for each G1 game, while a Certificate for Game Dissemination Registration is required for each G2-4 games.

2. Providers must also show that they have (i) A head office with clear address and contact; (ii) Capacity to register and store users’ personal information including national identification information; (iii) Capacity to control players’ playtime, including restriction on children’s playtime.
The application of an uniform policy for all online games creates an imbalance in management as new games that need to prioritize attracting players or new developers short on funds must adhere to the same standards for established games/developers, thus creating difficulties in online games distribution.

3. Payment system of online games (if any) must be located in Vietnam and connected with Vietnamese payment service providers.

4. A number of regulations were also included in the Decree for the first time, such as the application dossier for G1 video games must contain “Certificate of legal copyright and consular legalization in the host country of a written agreement for enterprises to publish online video games in Vietnam”. This is to ensure that the game is licensed with the right copyright in Vietnam.

5. The licenses shall be revoked if the enterprises do not provide online game services within 12 months from the licenses’ issuance date.

Within this era of ever-changing technological advances and the society’s increasing dependence on technology, the Draft Decree would play a very important role in managing this under-regulated sector. Duane Morris will keep our readers informed on the status of the Draft.

Please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM – AGRICULTURE 4.0 – ECONOMIC TIMES INTERVIEWING DR. OLIVER MASSMANN

1. How would you comment on Vietnam’s advantages and disadvantages in attracting FDI into the agriculture sector?

Advantages:

In the general growth of the whole economy in the first 6 months in 2021, the agriculture, forestry and fishery sector increased by 3.82% over the same period last year (contributing 12.15% to the overall national growth).

Recently, the Government has issued many policies to attract businesses to invest in the agriculture sector. For example, enterprises with special agricultural projects that rent or sub-lease land and water surface from households and individuals to implement investment projects are entitled to the Government’s investment incentives. The country will provide funding equivalent to 20% of the land rent and water surface rent for the first 5 years since the project is completed and put into operation. Or, the government supports agricultural product processing establishments, livestock and poultry slaughter establishments with 60% of the investment capital and not more than 15 billion VND/project to build infrastructure for waste treatment, transportation, electricity, etc.

Disadvantages:

Human resources are not maximized: Abundant labor force is an advantage, but vocational training programs and projects are not really appropriate and effective, so the quality of labor is still low. In 2020, untrained agricultural, forestry and fishery workers was around 12 million people, accounting for 89.97% of the total number of agricultural, forestry and fishery workers in working age.

Small production is still the majority, quality of products is not high: Development and production is still scattered and small. Most of the production units are of small scale with low investment capital, so the production and business efficiency is not high.

Environmental pollution is still a big issue: The production of agriculture sector has revealed more and more clearly the weaknesses in protecting the ecological environment in recent years. The collection and treatment of waste are still inadequate. The disposition of bottles and packaging of pesticides right in fields, lakes, ponds, canals, rivers and streams is quite common. In 2020, there are 4,096 communes nationwide that do not have a collection point for bottles and pesticide packaging, accounting for 49.37% of the total number of communes in rural areas.

Non-advanced agricultural technology: most (if not all) of agricultural production remain outdoor, making it easily directly affected by risks from natural disasters, epidemics (in cultivation and animal husbandry, aquaculture) at any time, affecting production and profits of enterprises.

2. Under Decision No.255/QD-TTg approving the Plan on restructuring the agricultural sector in the 2021-2025 period, the country would focus on developing sustainable agriculture as well as enhancing quality, added value, and competitiveness of local agricultural product. From this, how do you forecast some prospects for appealing FDI in the agricultural sector in the years to come?

According to Decision 255, the following fields will be of focus in the next 4 years:

a) Cultivation field
Vietnam aims to increase the proportion of fruit trees to 21%, vegetables to 17% to meet the consumption demand of the market, contributing to ensuring national food security.

b) Livestock field
Adjust the structure of livestock herds, aiming to reduce the proportion of pigs, increase the proportion of poultry and herds of cattle.

c) Fishery field
Promote offshore agriculture, focusing on objects of high economic value; development of organic aquaculture.

d) Salt industry
To renovate, upgrade and modernize infrastructure, apply technical advances to increase production of industrial salt and clean salt; to form a key industrial-scale salt production area in the South Central provinces; sharply reduce the area of manual salt production, converting inefficient salt production areas to other areas with higher economic efficiency.

3. It can be said that one of the bottlenecks of investment into the agricultural sector is the local mindset. What are the solutions to overcome the barriers and attract more foreign investors into Vietnam’s agricultural sector?

– Creating investment incentives for FDI projects in the agricultural sector, for example: preferential loans for projects investing in developing raw materials for the sector, projects that apply biotechnology; support scientific research activities, tax incentives, land levy.
– Applying guarantee mechanisms for FDI businesses, work with banks to create favorable access of foreign companies to private capital.
– Developing support mechanism for projects suffering from natural disasters or at risk of market price fluctuations.
– Developing one-stop-shop regulations for FDI investors, simplify investment procedures especially with regard to land clearance.
– Developing the vocational training system in rural areas. Vietnam has a lot of protocols with other countries in the EU aiming at the exchange of agricultural knowledge in various forms that should be maximized.
– Promoting the role of local organizations in supporting FDI investors to approach local farmers.

4. As FDI into the hi-tech and sustainable agriculture is considered as a current trend and solution. What have been the main concerns of foreign agribusiness regarding sustainable development?

The biggest difficulty when investing in agriculture for FDI enterprises is securing agricultural land. Even when there is a land fund for agriculture, the procedures are also relatively time consuming and difficult. In addition, the transportation of agricultural products between production place and consumption place is still difficult due to the lack of synchronous infrastructure.

Currently, foreign investors are not allowed to receive the transfer of agricultural land use rights, are not allowed to rent agricultural land directly from households, nor are they allowed to use this leased land as collateral for loans, leading to limited access to land resources and it is impossible for foreign investors to form a large enough land area to implement big projects. Nevertheless, in some localities, if there are land funds, priority is given to the planning of industrial parks because they will generate higher and faster revenue.

5. Which strategies should the Government adopt in the 2021-2025 period in order for the country to realize those targets?

Besides those mentioned in Answer 2 above, some other recommended strategies include:

_ Guide e-commerce trading floors to facilitate sellers and traders of agricultural products to join the floor; and
_ Promote the application of high technology in transporting agricultural products. Currently, the process of transporting and exporting agricultural products often damages about 40% of products, causing great cost to the economy.

Please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM – SOLAR POWER AUCTION SYSTEM: WHAT YOU MUST KNOW

In late January 2021, the Ministry of Industry and Trade (“MOIT”) issued the draft Decision of the Prime Minister guiding the selection of investors implementing solar power projects under the bidding mechanism (“the Draft”). Since the latest Decision 13/2020/QD-TTg applies to grid-connected projects with Commercial Operation Date (“COD”) by 31 December 2020 latest, it is expected that the Draft will soon be finalized and become effective so solar energy developers as well as relevant government authorities can have guidelines for projects with COD from 2021. As of July 2021, it is reported that a newer version of the Draft is being prepared by the MOIT and will soon be published for public comments. MOIT is directing its Electricity and Renewable Energy Department to coordinate with international agencies including the World Bank and Asian Development Bank to develop the bidding mechanism for renewable energy development that is expected to apply after 2021

According to the Draft, the Decision would be applicable to projects with grids connected directly to the national power network. The Ministry of Industry and Trade shall coordinate with the Electricity of Vietnam and the People’s Committees of localities to organize the formulation and approval of the renewable energy power source development plan for a period of 5 years and every 2 years to serve as a basis for the bidding system. In addition, every 02 years, the Ministry of Industry and Trade shall issue a Price Framework for electricity generation in order to determine the ceiling price for bidding to select investors of solar power projects with COD in the next 02 years.

The plan for development of renewable energy power sources for a period of 5 years shall include the total capacity scale for each renewable energy power source in the 5-year period, the total capacity scale for each renewable energy power source for each load region (8 regions) and a list of transmission lines and substations (220 kV at least) to be put into operation for a period of 5 years. The 02-year plan shall have similar content but for a 2-year period only and shall be more provincial specific.

Some notable points in the Draft

Selection of investors to implement solar power projects is conducted either by (i) Bidding to select investors according to project location or (ii) Investor approval. Bidding for projects or for project development areas will be implemented if at least 02 independent investors participate.

Requirements for Investors participating in bidding:
a) Investors must be independent legally financially independent from each other;
b) The investor is not named in two or more Technical Proposals as an independent investor or as a member of a consortium;
c) Investors do not have shares or contributed capital of more than 20% of each other when participating in the pilot program; and
d) An investor (or a member company of the investor) does not share a controlling shareholder (holding 26% of the shares of the enterprise) with any other Investor (or a member company of this investor).

Applicable solar power purchase price is the price for the connection point proposed by the winning bidder/investor in the bidding dossier (excluding value added tax).

Adjustment to investment schedule: if the investor is permitted to adjust the investment schedule and the project’s COD occurs after the commitment date stated in the bidding documents, the applicable electricity price of project is the electricity selling price specified in point (1) with a cumulative reduction rate of 4% for every 90 days of schedule delay. Project delay time must not exceed 12 months.

Bidding guarantee: Investors must apply the bid security measure, which is equal to 0.5% of the total project invesment, before the bid is closed.

The standard power purchase agreement issued alongside as part of the Decision must be used in transactions between Power Seller and Power Buyer being EVN or an entity authorized by EVN. The power purchase agreement is valid for 20 years from commercial operation date.

Costs associated with the investor selection process are to be borne by the local Provincial Committee or another legal funding source and to be accounted for as part of the project’s total investment capital. Expenses related to the preparation of Bids (including technical proposals and financial proposals) are the responsibility of the investor.

Bidding procedure: Within 6 months since the Ministry of Industry and Trade approved the Solar Power Development Plan for a 2-year period, the Provincial People’s Committees shall organize the formulation, approval and completion of the implementation of the Plan for selecting investors to develop solar power projects locally every 2 years.
The plan for selecting investors of a solar power project must be publicly announced on the National Bidding Network System, serving as a basis for determining the number of investors and investment projects registered to participate. The content of information to be disclosed include investor selection plan, solar power investment project, time limit for receiving bids, contact information of the bid organizer and competent state agencies.
The bidding organization applies the open bidding process according to the one-stage, two-envelope bidding process. People’s Committees of localities to publish the bidding dossiers. The investor submits a Bid which includes Technical Proposal and Power Price Proposal. Bid opening will be conducted twice, Technical Proposal will be opened right after the deadline for submission of bids, investors who satisfy technical requirements will have their Power Price Proposals examined for evaluation.

Documents to be submitted by the Investor to participate in bidding:
• Decision of the competent authority approving the inclusion of the project into a power development plan;
• Documents proving the investor’s eligibility;
• Financial statements for the last 2 years, audited or certified by tax authorities, and other documents proving the investor’s independent financial accounting;
• Documents proving the investor’s capacity and experience; and
• Documents proving the ability of the investor to raise investment capital.

Once the Draft comes into effect, the Feed-in tariff (FiT) mechanism will no longer apply to solar energy projects. MOIT has proposed that the same strategy to be executed for wind power projects after 2023. The employment of bidding method will enable for the selection of capable developers through transparent procedures in order to eliminate projects that run behind schedule for years.

The Vietnam Government has continuously promoted the development of renewable energy sources as a feasible and effective solution to counter the country’s ongoing power shortage issue because renewable energy projects can be constructed quickly and promptly for operation in the period of 2021-2023, while taking advantage of the country’s natural potential without relying on imported fuels and is eco-friendly. By the end of 2020, the total solar power capacity (including floating solar energy systems) put into operation was about 17 GW, concentrated in the southern provinces and the Central Highlands. The Government plans to bring the total solar power capacity to about 40 GW by 2045.

For more information on the above, please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM TO IMPLEMENT DIRECT POWER PURCHASE MECHANISM AFTER 2021

On 8 April 2021, the Ministry of Industry and Trade published the latest Draft Circular on the pilot implementation of the direct power purchase between renewable power project developers (RE GENCO or GENCO) and consumers (“the Draft”). As of July 2021, it is reported that MOIT is in the middle of preparation for Applicants Conference and Launch Event for the DPPA pilot program launch as well as reviewing transaction agreements, a one-stop-shop website for all information on the scheme and facilitating an application review process.

This mechanism suits customers who are committed to clean, sustainable energy use. DPPA allows direct access to and purchase of an amount of electricity generated from a renewable-energy generating unit through a long-term, bilateral contract with the price and duration of the contract mutually agreed by both parties. As a result, DPPA can help corporates to manage price fluctuations and reduce energy bills as well as facilitating a positive public image.

The pilot is to be implemented nationwide with a total capacity of selected wind and solar projects of 1 GW (or 1000 MW) at max. The nominal capacity of each project must be 30 MW and the project must have been listed in a National Power Development Plan. The GENCO and Consumer must apply online together for participation in the pilot scheme. Consumers can directly negotiate, purchase electricity with GENCO under a Fixed-term Contract. The two parties shall agree upon electricity price and output in the Contract for future trading cycles. GENCO and the consumer must also calculate and carry out payment for the contract output under the Contract for the difference between the contract price and the market price (i.e. reference price). Do note that consumers can be a single entity or a consortium of Consumers.

Under the Draft, renewable energy generators are defined as:
• organizations, individuals owing a grid-connected solar or wind power plant;
• installed capacity of the plant is more than 30 MW (conversion rate for solar plants: 01 MWp equals 0.8 MW);
• project already included in the power development plan that has been approved by competent authority;
• have a binding principle agreement with consumers to sell electricity; and
• are selected for the pilot implementation of DPPA by competent authority.

Electricity consumers are:
• organizations, individuals purchasing electricity for industrial production at a voltage level of 22 KV or higher;
• have a binding principle agreement with the RE GENCO to purchase electricity; and
• are selected for the pilot implementation of DPPA by competent authority.

Selection criteria of the pilot implementation participants:
For electricity generators:
• have a committed COD deadline of the whole power plant of no more than 270 working days since the date of announcement on the plant being selected to participate in the pilot implementation; or
• have written document of financial institutions on the financing for the power plant.

For consumers:
• have renewable energy usage commitments or is a manufacturing enterprise in the
supply chain of corporations or enterprises that have renewable energy usage commitments; or
• commit to contract at least 80% of total electricity consumption from the RE GENCO

The evaluation and selection of registration dossiers for participation in pilot direct electricity purchase and sale shall be carried out through a service unit selected by the Ministry of Industry and Trade and announced on the DPPA website.

Applicable power purchase agreement template:
• Between developer and EVN: the published contract templates in Decree 18/2020/TT-BCT for solar energy project and in Circular 02/2019/TT-BCT for wind energy project
• Between developer and consumer: to be drafted by the parties
• Between consumer and EVN: to be drafted by EVN, taking into consideration consumers’ opinion.

Transactions in the DPPA mechanism:
a) Between GENCO and spot electricity buyer: GENCO to submit the price quotation to the electricity system and market operator in which the offer price is zero (VND/kWh) for offered capacity ranges, and the capacity in the quotation is the announced capacity of GENCO.
b) Between spot electricity buyer and EVN: Electricity purchase price and payment payable by EVN must comply with the Regulation on operation of competitive wholesale electricity market promulgated by the Ministry of Industry and Trade.
c) Between EVN and Consumer: EVN sells power to Customers as per the electricity purchase price of EVN on spot electricity market plus the cost of direct electricity trading services (e.g. transmission costs, distribution costs).
d) Between Consumer and GENCO: The price and output of electricity committed in the contract for future trading cycles shall be agreed upon by the parties.

The direct power purchase agreement mechanism can bring about numerous benefits, namely enabling the imposition of take-or-pay obligation on off-takers in order to guarantee developer’s revenue stream, fixed electricity purchase price that is not subject to change in or delay on the implementation of national legislation, flexibility in monthly exchange rate calculation and increasing consumer’s environmental commitments. Developers and consumers must incorporate international standards regarding step-in right, dispute settlement, and termination clauses in order to make the direct power purchase agreement bankable. A bankable DPPA put developers in advantage when seeking financial supports from banks and other credit institutions.

On 23 June 2021, the Renewable Energy Buyers Vietnam Working Group, alongside the Clean Energy Investment Accelerator and the USAID Vietnam Low Emission Energy Program II co-hosted a webinar to discuss the development of the DPPA pilot program. In which, it was advertised that the US International Development Finance Corporation (“DFC”) offer financing tools such as long-term loans or equity financing to political risk insurance and technical assistance development. The DFC is looking to collaborate with DPPA Pilot Program participants.

MOIT is currently reviewing the Draft DPPA Circular based on the feedback of the private sector , then will circulate throughout the rest of the government before being legally approved and going into effect, ideally by the end of 2021. Within 15 working days from the effective date of the DPPA Circular, MOIT will announce the pilot scheme for direct electricity trading. Within 15 working days after that, MOIT will open the registration portal on the DPPA website and publicize the service unit responsible for reviewing application dossiers. Duane Morris will keep our readers updated of any new revisions to or decision regarding the Direct Power Purchase Agreement mechanism.

For more information on the above, please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM: DIRECT POWER PURCHASE AGREEMENTS (DPPA) AND SOLAR ROOFTOP- UPDATING DEVELOPMENT OF NEW REGULATIONS ON DPPA AND C&I ROOFTOP IN VIETNAM

Both draft regulations for the Direct Power Purchase Agreement (DPPA) pilot program and the C&I Rooftop Solar are now still under review by the competent authorities. Below are some key updates in these two sectors in Vietnam up to June 2021:

1. Key updates on the Direct Power Purchase Agreement (DPPA) pilot pro-gram:

· MOIT is still reviewing the 2nd draft Circular on the pilot implementation of the direct power purchase between RE GENCO and the consumer (“Draft DPPA Circular”). The Circular will then be circulated throughout the rest of the gov-ernment before being legally approved and going into effect, ideally by the end of 2021;

· The Draft DPPA Circular maintains a target size of 1 GW for PDP-approved wind and solar projects above 30 MWac;

· RE Generation Companies (RE GENCO) and industrial Consumer(s) must apply together for participation in the DPPA Pilot Program through the DPPA online application portal;

· The RE GENCO must commit to reaching commercial operation date (COD) within 270 working days from the date of selection announcement;

· The DPPA Mechanism per the Draft Circular dated 8 April 2021 remains un-changed.

· DPPA Pilot Program Timeline:

– Pilot Project Planning (May-December 2019): MOIT Public Consulta-tion; First Action Plan agreed with ERAV; Market Preparation;

– Legal Approval/Invitation to Participate (Q2-Q4/2021): MOIT Circular draft published for public comment; MOIT Circular goes into effect; Pilot Program launched;

– Project Selection (Q1-Q2/2022): Applications to MOIT submitted and evaluated; Transaction documents executed; Operational capacity devel-oped.

(Source: DPPA Pilot Program Update (V-LEEP II, June 2021))

2. Key updates on the C&I Rooftop Solar:

· In 2020, Vietnam recorded 102,000 rooftop systems and reached 9.58 GW in capacity;

· The FIT 2 scheme expired at the end of 2020 and now the market is still waiting for the new Government’s new regulations on FIT 3;

· The draft regulations on FIT 3 for rooftop solar projects are still under re-view with the proposed FIT 3 as below:

ℴ For projects that achieve commercial operation in 2021, the FIT-3 in-centive will depend on project size:

– Less than 20kWp system: 6.84 UScent/kWh
– 20kWp to less than 100kWp: 6.35 UScent/kWh
– 100kWp to 1,250kWp: 5.89 UScent/kWh

ℴ For projects COD in 2022 and onward: MOIT to review and propose new tariff on annual basis;

ℴ Rooftop solar systems will be required to have a minimum self-consumption rate of 20% or a maximum excess power sale of 80% gener-ation;

ℴ Rooftop solar systems over 100kWp in size may be required to install mini-SCADA systems to support remote monitoring and system controls.

For more information on the above, please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Di-rector of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM – POWER DEVELOPMENT PLAN VIII (PDP8) – Upcoming List of LNG-to-Power Projects – What you must know:

As you may know, in late March 2021, the very first draft of the Prime Minister’s Decision on the Approval of National Power Development Planning VIII (PDP8) (“Draft”) has been published through unofficial sources (i.e. not through MOIT’s website). Such Draft was planned to be signed off at the end of March during the last days of Prime Minister Nguyen Xuan Phuc’s administration, but it was delayed as the hand-over to new administration was already under way. It appeared that the investors and LNG-to-power projects in this Draft were scaled down comparing to those in the PDP8 proposal published by Ministry of Industry and Trade (MOIT) earlier.

On 23 April 2021, the Deputy Prime Minister (DPM) Le Van Thanh directed a Government’s meeting on the PDP8 and concluded that, among others, PDP8 must be (i) updated with qualifications for prioritized projects, and (ii) revised to reasonably review and allocate development of power sources, especially LNG-to-power projects in PDP8 in order to ensure the competition, optimization on development of power system. DPM asked the MOIT to careful review and digest opinion from EVN in its official letter No. 1645/EVN-KH dated 2 April 2021. Finally, the DPM required the MOIT to submit the updated PDP8 proposal prior to 15 June 2021.

Unfortunately, due to Covid-19 situation and heavy workload on updating the PDP8 proposal, MOIT failed to submit a revised proposal to the Government for consideration. On 17 June 2021, the MOIT Minister arranged a press meeting to update the PDP8 progress and planned to submit the revised PDP8 proposal to the Government within June 2021.

So far, it is not crystal clear whether the MOIT has finished the revised PDP8 proposal. However, on 2 July 2021, an article from Bloomberg naming “The U.S. Risks Losing Out From Its Own Trade Push in Vietnam” pointed out that Vietnam may not want to support LNG-to-power projects from USA investors as the need to reduce trade deficit with USA is phasing out due to change of strategic approaches from the President Biden’s administration. This article also questioned about the feasibility of all LNG-to-power projects proposed by USA investors so far: “The IEEFA has raised questions about the feasibility of at least seven of the proposed projects. Several of them had appeared on the nation’s previous power plan of nine proposals, or on the draft of a new plan that expanded to more than 40 projects by February. The plan, which was supposed to have been approved in early April, was kicked back to the trade ministry by Deputy Premier Le Van Thanh for reconsideration and whittling down to the most viable.” This might be a signal from the MOIT that the LNG-to-power projects in the final PDP8 would have been scaled down and restructured to greenlight only projects with strong support from USA government and clear financial capability.

Pending the draft PDP8’s finalization, we advise that the investors follow-up and coordinate with MOIT and their local partners/ consultants on the process/ progress for inclusion of LNG projects into the future PDP8. We could assist you to review and identify the application, documents and licensing process issues and advise to facilitate the process including meeting and negotiating with relevant stakeholders.

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Please do not hesitate to contact Dr. Oliver Massmann under omassmann@duanemorris.com if you have any questions or want to know more details on the above. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC.

Posted on by Dr. Oliver Massmann

VIETNAM – INVESTMENT IN THE HEALTHCARE AND MEDICAL DEVICE SECTORS

A. Overview of Vietnam´s healthcare sector

There is no denying that Vietnam truly is an attractive investment destination in South East Asia. It has great potential to develop a qualitative, self-sustaining life science sector. Improvements on the healthcare sector will lead to several benefits. With increasing focus on healthcare, manufacturing, service providers, clinical research organizations and others are being stimulated. As a result, small and medium-sized enterprises (SMEs) are boosted and exports could replace the need for foreign aid by attracting sustainable FDIs and PPPs.

Of particular importance for a positive development is the close cooperation between the major stakeholders from the private and public sector. In this process, certain core goals should be set. Significantly, it is important to ensure swift, sustainable access to medical treatment and to urgently improve the quality of the treatment process. High-quality domestic treatments not only improve patient satisfaction but also improve one’s own economy by counteracting outgoing medical tourism.

Furthermore, it should be ensured that the existing investors remain in Vietnam and new ones are pulled ashore. To do this, investors must be shown that the Vietnamese market does not contain undetected risks, but is stable and predictable. Further, integrate opportunities for collaborations and partnerships to develop local capability.

B. Outpatient: Home care and home-treatment

One major issue regarding Vietnams Healthcare sector is the limited capacity in hospitals. There is a gap between bed capacity and demand of inpatient treatment. The Ministry of Health has its hands full to counteract the overloading of hospitals. Even institutions with larger bed capacity have eventually set up a home care service to enhance the follow-up monitoring of chronic and long-term illnesses for patients that have been released from the hospital.

Patients in Vietnam are financially overburdened with the costs of treatment therefore affordable treatment is needed. This however, has to be reached without the loss of quality. Especially the indirect costs of healthcare, such as travelling, meals during hospitalization and loss of income during treatment put patients and their families under enormous financial pressure. Due to the overload situation at hospitals and the fact that home care service is not fully developed yet, patients tend to take care for themselves with the help of their family. This leads to potential additional health complications due to the lack of professional follow-up. Furthermore, patients will often have to come to the hospital eventually and in some cases, with more severe conditions.

As such, professional homecare programs should be further investigated and developed, with access to the programs should be simple for everyone. This is especially necessary for the chronically ill. Home care and home-treatment can help to reduce public spending on chronic diseases and thus spare the health budget.

C. Implementation

There are two major requirements for putting the homecare structure into practice. First, the creation of a straightforward, transparent legal framework that contain incentives for investors. This encourages multinational companies to invest and transfer their know-how and technology to Vietnam, improving the revenues and quality of the country health care sector. Second, to streamline the administrative process to shorten the process of delivering new, high-quality patient care solutions, and to respond to the growing need for a growing Vietnamese population for rapid and sustainable access.

D. Medical Devices Industry Code of Conduct

Background of the Code of Conduct for medical devices is the various risks associated with the industry, in particular unfair competition between industry players. The Code is intended to facilitate ethical interactions among members of society who develop, manufacture, sell, distribute or distribute medical technology in Vietnam and individuals and organizations that apply, recommend, buy or prescribe medical technologies in Vietnam. The content of the Code of Conduct should focus on 1) strict compliance with laws and regulations in the area; 2) prioritization of people and health and safety of patients and 3) promoting scientific and educational activities to best benefit the patient.

For multinational companies, the compliance area is usually very pronounced and strict. It is therefore particularly important to invest in an ethical business environment, especially when investing in high-risk jurisdictions. The commitment to uphold high ethical standards would certainly bring about long-term benefits for the health sector in Vietnam and attract more investors.

E. Outlook on Major Trade Agreements TPP 11, EUVNFTA and Investment Protection Agreement

In January 2017, US President Donald Trump decided to withdraw from the US’ participation in the TPP. In November 2017, the remaining TPP members met at the APEC meetings and concluded about pushing forward the now called CPTPP (TPP 11) without the USA. On 12 November 2018, Vietnam officially became the seventh member of the CPTPP.

The CPTPP targets to eliminate tariff lines and custom duties among member states on certain goods and commodities to 100%. An increase of trade will have great influence to the health- and medical sector. The agreement is suitable to support Public-Private Partnerships (PPPs), which could lead to a positive impact in development of innovative technologies of medical devices and facilitate the transfer of necessary know-how. Lower or no trade tariffs can lead to lower import costs for the essential components of medical devices. This, in turn, results in lower acquisition costs for the medical practices and hospitals, thus eventually lowering the treatment costs.

The annexes of the CPTPP (TBT chapter) deal with specific challenges of trading regarding pharmaceuticals, medical devices and technology products. The provisions require the Members to define what medical products are and when they are subject to the state laws, and this information have to be published. This requirement helps to ensure timely mitigation measures if a product application is not approved or is deemed deficient. Such increased transparency brings great benefits for all traders of medical devices, employees in the medical industry as well as for patients.

A specific example is before the CPTPP comes into force in Vietnam, Canada faced tariffs of 7% imposed by Vietnam regarding exports of life sciences products such as medicines in doses for retail sale. From 14 January 2019, these tariffs are fully eliminated. As a result, Canada and other countries are exporting more and more products to Vietnam, gradually improving the quality of Vietnam’s medical facilities.

One another notable major trade agreement is the European Union Vietnam Free Trade Agreement (EVFTA), which came into force on 1 August 2020. The EVFTA offers great opportunity to access new markets for both the EU and Vietnam and to bring more capital into Vietnam due easier access and reduction of almost all tariffs of 99%, as well as obligation to provide better conditions for workers. In addition, the EVFTA boosts the development of (almost) all economic sectors in Vietnam. Both agreements promise great benefits for the health and medicine sector.

Both the CPTPP and the EVFTA include a chapter on Government Procurement, which deals with the requirement to treat foreign and domestic bidders equally when a government buys goods or requests for a service worth over the specified threshold. Vietnam undertakes to timely publish information on tender, allow sufficient time for bidders to prepare for and submit bids, maintain confidentiality of tenders. The GPA in both agreements also requires its Parties assess bids based on fair and objective principles, evaluate and award bids only based on criteria set out in notices and tender documentation, create an effective regime for complaints and settling disputes, etc. At the moment, Vietnam has implemented online bidding mechanism with easily accessible information for foreign investors.

The EVFTA comes with the EU-Vietnam Investment Protection Agreement (EVIPA) that is being reviewed for ratification by EU Member States. Foreign investors are given high level of protection under the EVIPA. This agreement is a combination of the New York Convention 1958 and the ICSID 1965. The EVIPA, and CPTPP, make it possible for foreign investors to sue the Vietnamese Government for its investment related decisions. The final arbitral award is binding and enforceable without any question from the local courts regarding its validity.

At the moment, Vietnam has reserved the right to fulfill the commitment on Investor-State Dispute Resolution for 5 years from the effective date of the EVIPA. Nevertheless, Duane Morris Vietnam has the legal and technical tools to make such provisions work in favor of investors from now.

For more information on the above, please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

Posted on by Dr. Oliver Massmann

VIETNAM – LATEST GUIDE TO CONTRACT MANUFACTURING AND TOLLING AGREEMENTS

I. VAT and Customs

In many cases, the principal in the contract manufacturing relationship owns some or all of the raw materials, work-in-process and finished goods throughout the manufacturing process. The principal and many of the suppliers are typically outside of the manufacturing jurisdiction.

1. What Are The VAT, Customs And Related Costs (e.g. Broker Fees) That Arise When A Foreign Principal Has Goods Drop-shipped Into Your Jurisdiction To The Local Contract Manufacturer? In Particular, Is There Any Non-recoverable VAT? Are There Strategies For Avoiding Or Reducing This VAT Cost?

Most regulations on the Vietnamese VAT regime are included in the Law on Value Added Tax No. 13/2008/QH12 of the National Assembly, as amended by Law No. 31/2013/QH13 and Law No. 71/2014/QH13.
Under Article 17.3 of the Law on Tax Management 2019, importers are obliged to pay tax in full and in a timely manner, including the VAT.

This norm includes the concept of drop shipping, which means an arrangement between a seller and the manufacturer or distributor of a product to be sold. According to the arrangement the product will be shipped to the buyer directly by the manufacturer or distributor and not by the seller. This definition can be understood as an alternative form of import. The law does not make any differences on the way that goods are delivered. Therefore drop shipping is not subject to tax exemptions or reductions.

It should be noted that no VAT is raised for goods in transit or transshipment or crossing Vietnamese borders as well as goods temporarily imported and re-exported and goods temporarily exported and re-imported. There are no further special regulations for drop shipping supplies.

2. In Many Cases The Principal Supplies Equipment That The Local Contract Manufacturer Uses In The Manufacturing Process. This Equipment May Remain In The Local Jurisdiction For A Substantial Period Of Time. Any Addition VAT Or Customs Issues That Are Unique To The Capital Equipment That The Principal May Import?

Capital equipment is not subject to the catalogue of VAT exemptions. According to the Law on Amendments to the Law on Value Added Tax 2013, the following objects are exceptionally not subject to VAT: “Machinery, equipment, parts, and materials that cannot be produced at home and need to be imported to serve scientific research, technological development; machinery, equipment, parts, specialized vehicles, and materials that cannot be produced at home and need to be imported to serve petroleum exploration; airplanes, oil rigs, and ships that cannot be produced at home and must be imported to form fixed assets, or need to be hired from foreign partners to serve production, business, or to lease back.”

3. Have There Been Any Recent Developments That Impact The VAT, Customs And Related Costs Applicable To Such Structures?

On 25 March 2015, the Ministry of Finance issued Circular No. 38/2015/TT-BTC, according to which machinery and equipment suitable for investment field, target, and scale of the investment project, satisfying other certain conditions, imported as fixed assets of investment projects in the fields or areas eligible for preferential import tax are exempted from taxes.

In 2016, the Government issued a Draft Decree on the implementation of the law on import and export tax, but to date, it still has not been approved.

Vietnam’s accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) on 14 January 2019 and its ratification of the EU-Vietnam Free Trade Agreement (EVFTA) on 1 August 2020 have eliminated import and export taxes for numerous tariff lines. For instance, nearly 100% of Vietnam’s exports to the EU will be eliminated import tax after the 10-year journey of EVFTA. So far, this is the highest level of commitment a partner gives Vietnam in a trade agreement. This is especially meaningful when the EU has been one of the two largest export markets of the country.

II. Permanent Establishment

1. As Noted Above, The Principal May Own Raw Materials, Work-In-Process And Finished Goods In The Local Jurisdiction. Is There Any Significant Risk That The Principal Could Have A Local PE Due To The Fact That It Has Such Inventory In The Country? Does It Matter Whether The Principal Has A Local Warehouse?

In Vietnam companies overseas conducting business activities through resident establishments in Vietnam are liable to pay corporate income tax.

According to the definition in Article 2.3 of the Law on Corporate Income Tax, Resident establishment means a business establishment through which a company overseas conducts all or a part of its business activities in Vietnam. A resident establishment of a company overseas can take different forms that are listed in the Law on Corporate Income Tax.

This list includes a representative in Vietnam that has authority to enter into contracts in the name of the oversea company or a representative that is not competent to enter into contracts on behalf of the foreign company but regularly engage in delivery of goods or provision of services in Vietnam.

This very broad reference might also include principals with assets as named above. These elements are not likely to form the risk of a permanent establishment in Vietnam but the authorities decide about permanent establishments on a case-by-case basis.

Where a treaty on avoidance of double taxation to which the Socialist Republic of Vietnam is a signatory contains different provisions relating to resident establishments, such treaty shall prevail over local laws as determined therein.

2. Does The Answer Change If The Principal Also Owns Capital Equipment That It Has Provided To The Local Contract Manufacturer?

The ownership of capital by the principal does not necessarily bear the risk of a permanent establishment.

3. In Many Cases The Local Contract Manufacturer Purchases The Raw Materials (Either In Its Own Name Or As A Purchasing Agent Acting On Behalf Of The Principal) Because It Knows The Production Schedule Better Than The Principal. In Addition, In Some Cases The Contract Manufacturer May Have More Leverage With The Suppliers. Please Address Any Additional PE Issues That May Arise If The Contract Manufacturer Also Acts As A Purchasing Agent On Behalf Of The Principal.

The Law on Corporate Income Tax provides that the business conducted by a company overseas can be regarded as a resident establishment if the company has an agent that has authority to enter into contracts in the name of the company overseas. Given this the situation above might likely give rise to a PE.

4. In Certain Cases, The Principal Will Have Its Own Employees Or Agents In The Factory To Supervise The Contract Manufacturer, Provide Quality Assurance And Sometimes Technical Information. To What Extent Would Independent Or Dependent Agents (That Do Not Have Contract Concluding Authority) Providing Such Services, Combined With The Other Facts Set Forth Above, Result In A PE For The Principal. To The Extent That Actual Employees Or Staff May Result In A PE, Can The Principal Avoid The PE By Forming A Local Subsidiary To Employee The Staff? If So, Can The Subsidiary Be Compensated On A Cost Plus Basis?

Considering the aforementioned definition of a resident establishment under Law on Corporate Income Tax, if the principal wants to avoid having a PE issue, he/she might establish a Representative Office [“RO”] to perform the tasks named above. This is possible as long as the RO is not doing business.

According Commercial Law and its guiding decrees, any foreign business entity that has lawful business registration in accordance with the law of the foreign country and has operated for at least 01 (one) year shall be issued with a license to establish a representative office in Vietnam.

5. To The Extent That A PE May Arise In Any Of The General Fact Patters Described Above, Comment On Whether Additional Income Would Be Attributable To The PE. Can The Principal Argue That It Has Paid An Arm’s Length Gee Such That There Is No Additional Income That Such Be Taxed In The Jurisdiction? If So, What Transfer Pricing Methodologies Would Typically Be Used To Determine The Amount Of Income Attributable To The PE?

If there are no special rules in tax agreements, the principal can calculate on an arm’s length basis.

The Ministry of Finance has released a Circular on Transfer Pricing that requires companies to make a full self-assessment of their profits, calculated on an arm’s length basis. According to this Circular, companies will be required to declare the related party transactions in a prescribed form and submit it within 90 days from the year end. Furthermore, the Circular provides an obligation for companies to maintain transfer-pricing documentation to set out the evidence that they have taken place on arm’s length terms.

If companies fail to comply with these terms they risk double taxation and penalties.

III. Local Incentives

1. Is The Taxpayer’s Ability To Obtain A Tax Incentive Or Holiday Diminished By Operating Under A Risk-Stripped Structure Where The Local Entity Receives Cost Plus Remuneration?

Exemptions from and reductions of Corporate Income Tax are listed in Law on Corporate Income Tax 2008, Circular 78/2014/TT-BTC, Circular 151/2014/TT-BTC and Circular 96/2015/TT-BTC.

Tax incentives are provided in cases of encouraged investments. This term covers enterprises located in special export processing zones, enterprises that export a certain percentage of the manufactured goods or enterprises with a certain number of Vietnamese employees or laborers.

The contract manufacturer may carry forward their losses of a financial year to offset against future profits for a maximum of 5 years after the year incurring loss. The enterprise can freely choose how to allocate the loss to the later 5 years. When the 5 years period has lapsed but the loss has not been fully carried forward, the loss cannot be carried forward to the next year.

2. Is The Taxpayer’s Ability To Obtain A Tax Incentive Diminished By The Lack Of Locally Owned Intangible Property?

Vietnam tax law does not address this issue.

3. Are There Any Other Aspects In Contract Manufacturing Structures That May Impact A Taxpayer’s Ability To Obtain A Tax Incentive Or Holiday?

Law on Investment 2021 and its guiding decree No. 31/2021/ND-CP include an extensive list of projects entitled to tax incentives. Dependent on the project’s location, business lines, number of employees, etc., the tax reduction can range between 10 and 50%.

IV. Conversion And Transfer Pricing Issues

In many cases, U.S. and European multinationals initially establish their local manufacturing operations in Asia as buy/sell entities because they have a local income tax holiday or exemption of some kind for a period of years. The local entity may even own intangibles and bears risk. When the local holiday or exemption ends (or the CFO decides the tax rate is too high), the parent may wish to convert the local entity into a contract manufacturer for a principal in a low-tax jurisdiction to reduce the income earned locally.

1. In Some Jurisdictions, The Local Authorities May Find That The Local Entity Owns Some Goodwill Or Going Concern Value As A Result Of Its Historic Operations. The Authorities May Assert Capital Gains Tax And Possibly Dividend Withholding Tax On Value Of The Goodwill Or Going Concern Value On The Theory That The New Principal Is Somehow Acquiring The Goodwill Or Going Concern Value In Connection With The Conversion. Is This An Issue In Your Jurisdiction? If So, What Planning Steps Can Be Taken To Minimize This Cost?

This issue is not relevant in Vietnam.

2. In Many Cases, The Local Contract Manufacturer Is A Wholly-Owned Subsidiary Of The Principal. In Such Cases, The Principal May Wish To Compensate The Contract Manufacturer On A Cost Plus Basis, With The Uplift Being A Percentage Of The Manufacturing Costs (And Not The Value Of The End Product). Is This Approach Viable In Your Jurisdiction and What Issues/Exposures Arise In Connection With The Use Of Cost Plus Transfer Pricing?

Transfer pricing rules in Vietnam require that the enterprise pays and Vietnam receives a reasonable rate of return on its activities as if the parties were unrelated [the arm’s length principle]. Vietnamese tax law does not provide special rules regarding cost plus transfer pricing.

For more information on the above, please do not hesitate to contact the author Dr. Oliver Massmann under omassmann@duanemorris.com. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC, Member to the Supervisory Board of PetroVietnam Insurance JSC and the only foreign lawyer presenting in Vietnamese language to members of the NATIONAL ASSEMBLY OF VIETNAM.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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