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Lawyer in Vietnam Dr. Oliver Massmann Public Mergers and Acquisitions: market analysis overview 2018

Largest / most noteworthy public M&A transactions in the past 12 months
Oil gas and chemicals
In May 2017, Earth Chemical bought 100% stake in A My Gia Joint Stock Company at about USD79.2 million.
Financial
In July 2017, Vietnam International Joint Stock Commercial Bank bought 100% business of Commonwealth Bank of Australia (Ho Chi Minh Branch).
In December 2017, Shinhan Bank Vietnam Ltd. (“Shinhan Bank Vietnam”) acquired ANZ Bank (Vietnam) Limited’s retail business. This successful transaction has been considered as a big step for Shinhan Bank Vietnam’s development in Vietnam market, as well as a rapid growth for Vietnam retail banking in the upcoming time.
Other
Retail. Noteworthy public M&A deals include the following:
• In January 2018, Creador (a private Kula Lumpur-based investment fund) bought 35% shares of Mobile World Investment JSC at USD43 million.
• ThaiBev buying more than 53% shares in Sabeco – a company owned by the Ministry of Industry and Trade at USD 5 billion.
• In November 2017, JD.com bought shares in Tiki JSC at USD 44 million.
• In June 2017, Alibaba Group additionally bought shares of Lazada at USD1 billion, thus increasing its shares in Lazada to 83%.
• In July 2017, Sea Limited (Singapore) bought 82% shares of Foody Corporatio at USD64 million.
• In April 2017, Shinhan Vietnam Bank bought the retail business of ANZ at an undisclosed value.
• In May 2017, Bien Hoa Sugar Company and Thanh Thanh Cong Tay Ninh Sugar Company bought 100% charter capital of HAGL Sugar at about USD58.52 million.
• Synnex Technology International bought 30% shares of FPT Retail and 47% shares of FPT Trading from FPT Corporation at around USD 41 million.
Food. Noteworthy deals include the following:
• In mid- November 2017, Jardine Cycle & Carriage Limited (JC&C), via Platinum Victory Pte. Ltd bought 5.53% shares of Vinamilk at USD616.6 million.
• In late March 2017, CJ Cheiljedang Corporation bought 20% stake in Saigon Trading Corporation at USD8.2 million, bringing its total ownership in Cau Tre Export Products Processing Joint Stock Company to 71.6%.
• In May 2017, Kido Corporation bought 27% stake in Vietnam Vegetable Oil Industry Corporation, bringing its total ownership in the company to 51%.
Real estate. Noteworthy deals include the following:
• Warburg Pincus in joint venture with VinaCapital bought 50% shares in Sofitel Legend Metropole Hanoi at about USD100 million.
• Warburg also established a joint venture with Becamex Industrial Development Corporation to invest in industrial real estate and logistics services with a capital of USD200 million.
• In May 2017, Elite Capital Resources Limited bought 100% shares of VinaLand Fund (VinaCapital) in Thang Long Limited Company (project owner of Times Square Hanoi) at USD41 million.
• In the first quarter of 2017, Sulyna Hospitality bought 70% stake in a 4-start resort in Phu Quoc from Berjaya Land at USD14.65 million.
• In the first quarter of 2017, An Gia Investment Corporation and its partner Creed Group bought 5 apartment blocks of La Casa Project of Van Phat Hung Corporation at about USD40 million.
• In March 2017, Keppel Corporation increased its shares in Saigon Centre project ato 16% at USD37 million.
• In January 2017, CapitaLand announced the purchase of 90% stake in CapitaLand Thanh Nien.
• Shinhan cooperated with Vinacapital to invest USD100 million in Novaland
Insurance. Noteworthy deals include the following:
• In April 2017, Aviva Insurance Corporation bought 50% stake of VietinBank Aviva Joint Venture Company from Vietnam Joint Stock Commercial Bank for Industry and Trade.
The major trends in the structuring of public M&A transactions
In Vietnam, M&A transactions usually take the form of either share or asset acquisitions, with share acquisition transactions outnumbering asset acquisition transactions.
Share acquisitions by foreign purchasers are commonly structured as offshore direct investments. The new investor can:
• Acquire shares or capital contributions from an existing shareholder in the target (for example, a joint stock company, limited liability company, and so on).
• Subscribe for newly issued shares of the target (for a joint stock company).
• Make further capital contributions to the target (for a limited liability company).
In the case of an asset deal, a foreign purchaser must generally establish a new subsidiary in Vietnam.
In addition, M&A transactions can also take the form of a merger. One or more companies of the same type can be merged into another company by transferring all assets, rights, obligations and interests to the merged company, terminating the existence of the merging company.
The 2014 Enterprise Law sets out the types of business structuring that can be used by investors as a result of M&A transactions. In addition, the 2014 Investment Law is the first law that regulates M&A transactions and clearly provides that such transactions do not require an investment registration certificate. Now, the foreign investors must seek approval from the local Department of Planning and Investment of the transaction if the:
• Target company operates in conditional business sectors applicable for foreign investors.
• Investment leading to foreign ownership of the target company is 51% or more (in particular, from below 51% to more than 51% and from 51% to above 51%).
In other cases, the target company only needs to register a change of membership/shareholding at the Business Registration Division. This change has ended years of uncertainty and frustration faced by foreign investors seeking entry into the Vietnam market or expansion through M&A transactions.
The level/extent of private equity-backed bids in the past 12 months
Investment in the form of M&A transactions is still the most popular form compared with private equity investment. In recent months, private equity funds have been following the securities market in Vietnam, especially companies carrying out value chain operations. Consumer goods and infrastructure are the sectors that attract the most attention. However, due to limited publicly available information, it is not possible to fully assess the level of private equity-backed bids.
The approach of the competition regulator(s) in the past 12 months
The Vietnam Competition Authority under the Ministry of Industry and Trade (VCA) must be notified of the transaction if participating companies have a combined market share in the relevant market of 30% up to 50%. The VCA will then examine whether the calculation of the combined market share is correct and whether the transaction is prohibited (that is, whether the combined market share exceeds 50%, except in certain cases). The transaction can be conducted when the VCA issues a written confirmation that the transaction is not prohibited under competition law.
In recent Grab buying Uber case in South East Asia, the VCA has started its investigation of possible violation of Vietnam’s Competition Law. The case is still at the examination stage.
For more information on the VCA, see www.vca.gov.vn/Default.aspx?lg=2.
Main factors affecting the public M&A market over the next 12 months
The country’s deeper and wider integration into the world’s economy is offering new opportunities for M&A activities.
Another factor includes the high pressure faced by the government to privatise state-owned enterprises to meet requirements under signed trade pacts, especially the EU – Vietnam Free Trade Agreement, which is expected to come into force in 2019.
Encouraging signs for foreign investment include:
• Reformed policies to allow wider access to foreign investors.
• ASEAN Economic Community single market and production base.
• The conclusion of free trade agreements (FTAs), including the EU – Vietnam FTA and The Comprehensive and Progressive Trans-Pacific Partnership (CPTPP).
• Vietnam’s super rich population is growing faster than anywhere else and is on track to continue leading the growth in the next decade.
• Equitization of state-owned enterprises will speed up.
The introduction of the new Investment Law, Enterprise Law, Resolution No. 42 on handling bad debts and other laws and policies are creating an improved legal environment for investment and trade in general, and the M&A market in particular. However, the following factors also affect M&A transactions:
• Divergent interpretations and implementations by local licensing authorities of international treaties such as Vietnam’s WTO Commitments.
• Different licensing procedures applied to different types of transactions (for example, for foreign invested companies and domestic companies, public companies and private companies, and for buying state-owned shares or private shares).
Although legal and governance barriers, along with macro instability and the lack of market transparency are still the greatest concerns for investors, M&A deals in Vietnam are still expected to be one of the key, effective channels for market entry.
The major expected trends in the Vietnam M&A market include:
• Bank restructurings.
• Acquisitions and anti-acquisitions, particularly in the real estate sector.
• Growing Japanese and Thai investment in Vietnam through M&A transactions.
• Reform of SoEs.
***
Please do contact the author Dr. Oliver Massmann under omassmann@duanemorris.com if you have any questions on the above. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam.

Vietnam – Top Five Issues Affecting Real Estate Market

According to recent statistics, the property sector was behind the manufacturing and processing industry, which has so far attracted a total of USD12.84 billion, equaling 72.9 per cent of the total foreign direct investment (FDI) inflow to Vietnam.1

Laws governing real estate sector, including the Law on Real Estate Business 2014 (LREB) and the Law on Residential Housing 2014 (LRH) coming into effect on 1 July 2015. There are also other documents, for example, Decree No. 01/2017/ND-C P in effect on 3 March 2017 guiding the Land Law 2013 (Land Law). These new legislations set a legal framework for real estate industry. They have introduced breakthrough improvements by reducing investment barriers and expanding the scope of real estate business. Nevertheless, there are some remaining issues as analyzed below.

  1. Delay in issuing land use right certificate (LURC) for foreigners

Under Decree 99/2015, foreigners are not allowed to own houses in national defense and security areas indicated by the Ministry of National Defense and the Ministry of Public Security. Based on such list of areas, the provincial People’s Committee will direct local Departments of Construction to publish a list of commercial housing projects where foreign entities are not permitted to own houses (Foreign Ownership Prohibited Projects List). To date, such list has not been issued. Therefore, the provincial Department of Natural Resources and Environment has delayed the issuance of LURCs. This serious issue has caused confusion for buyers. Indeed, while the Government seems to have made a positive move in allowing foreigners to own a house in Vietnam, the lack of important guidance has shed doubts among foreigners who want to get in Vietnam’s real estate market.

  1. Uncertainties in the required approvals for residential developments

It is not clear in what circumstances a transfer of land is covered by allocation and lease by the State. In accordance with Article 32 of the Law on Investment (LOI), the in-principle investment decision (IDD) applies to projects which the State allocates or leases out land without auction, tendering or transfer. In contrast, the Land Law specifies that the only way an investment project receives land be by allocation or lease. It is uncertain under which circumstances a project can receive land by way of transfer. The absence of detailed guidelines continues to affect the normal business operations.

  1. Lengthy investment approval processes

A foreign invested company engaging in residential developments is required to obtain an IID or an in-principle investment approval (IIA) as well as an Investment Registration Certificate (IRC). If an IID is required, the IRC will be issued within 5 working days from the issuance of the IID. As the contents of both the IDD and IRC are related, the IRC requirement, in this case, is not relevant. On the other hand, for projects which require the IIA, the investor shall first obtain the IRC, set up a company and then apply for the IIA. There are circumstances where the investor has already set up the company but still not managed to get the IIA. This makes the investor unable to develop the project. In addition, the application process is complex, onerous in a sense that it takes at least 153 days. In particular, after the IRC is issued, the next step is to obtain an enterprise registration certificate, then a decision on selection of developer, the 1/500 planning approval and finally the IIA. Since the issuance of the IIA and IRC is based on the 1/500 planning approval, the requirement of an IRC it is unnecessary in case an IIA is already required.

  1. Restrictions on sources of capital

Under Article 69 of the LRH, developers of residential housing can only raise capital from sources such as loans granted by credit institutions, or financial institutions running business in Vietnam, capital contribution, investment cooperation, business cooperation, joint business, and association of organizations or individuals. It means that developers are no longer allowed to obtain capital from offshore credit and non-credit institutions. We think that there is no reason to limit the scope of residential investors to raise capital from legitimate sources. This issue, if remains existing, will affect the competitiveness of investors and their investment plan.

  1. The absence of detailed explanation of “foreign invested enterprise (FIE)”

There is inconsistency in the interpretation of an FIE among main laws governing real estate sector. The Land Law stipulates that FIEs are joint venture enterprises, 100% foreign invested enterprises, and domestic enterprises in which the foreign investor has invested via share purchase, merger, or acquisition. This regulation does not provide any ownership percentage. Meanwhile, the LOI states that, an economic organization with a foreign investment capital means an economic organization with a foreign investor being a member or shareholder, and enterprises with a foreign ownership of less than 51% will be treated the same as local ones. Different from the LOI and the Land Law, the LREB does not define a foreign invested enterprise. This inconsistency and lack of guidance result in confusion about which threshold defines a foreign invested enterprise in the LREB and create unnecessary obstacles for foreign projects.

Conclusion

Unfortunately, there are inconsistencies in the laws, which have caused confusion for buyers. In addition, the enforcement of current laws has been challenging due to the lack of specific guidelines. In fact, the restrictions provided in the legislations have limited the rights of investors and created barriers to foreign investment in the sector. Therefore, it is necessary to adopt consistent guidelines to avoid any delays. Vietnam should also continue to take steps to reduce administrative burdens, remove onerous requirements, and simplify complex processes. This is to ensure a bright future for Vietnam’s real estate industry.

***

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.

Thank you!

 

 

 

 

VIETNAM INSURANCE GUIDE

Market overview

Global

  • Member of International Association of Insurance Supervisors (IAIS) ?

Yes, Vietnam became member of IAIS in 2007.

  • Global regulators, bodies and legislation applicable to country

A project “ComFrame” set up by the Internationally Active Insurance Groups (IAIG related to IAIS), is planned to establish regulatory framework with mandatory standards. For now, it remains at the test phase but would become effective by 2019. Vietnam, as a member of the IAIS will have to comply with its regulations.

As a member of the WTO and WHO, Vietnam must also comply with regulations of these organizations with respect to insurance. In its bilateral / multilateral agreements such as Korea – Vietnam FTA, EU- Vietnam FTA, Hong Kong –  ASEAN FTA, ASEAN- China FTA, ASEAN – Australia – New Zealand FTA, commitments on insurance are also binding on Vietnam

In addition, Vietnam is a member of the OECD, which issues guidelines and good practices of non-binding nature for member countries.

European (if applicable) Not applicable for Vietnam

  • Supervised by EIOPA?
  • Does Solvency II apply?
  • Key regulators and rulebooks

Domestic

  • Key regulators

The Ministry of Finance is in charge of the state regulation on insurance business. In addition, on 12 February 2009, the Ministry of Finance (MOF) issued Decision No. 288/QD-TTg to establish the Insurance Supervisory Authority (ISA) under the MOF. The ISA will assist the Minister of the MOF to regulate insurance business nationwide; directly govern and supervise insurance business activities and services related to insurance business in accordance with law.

In June 2009,  Insurance Research and Training Centre (IRTC) under the ISA was established according to Decision No.  1379/QD-BTC . The IRTC is tasked with organizing scientific study and training on insurance and insurance market.

  • Laws and relevant court decisions/judgements

The following laws and regulations mainly govern insurance business in Vietnam:

  1. Law on Insurance Business issued by the National Assembly on 09 December 2000, as amended by Law No. 61/2010/QH12 dated 24 November 2010 (Law on Insurance Business);
  2. Decree No. 73/2016/ND-CP on guiding the implementation of the Law on Insurance Business issued by the Government on 01 July 2016 (Decree 73);
  3. Decree No. 98/2013/ND-CP on administrative sanctions on insurance business and lottery business issued by the Government on 28 August 2013 (Decree 98);
  4. Circular No. 195/2014/TT-BTC on guiding the assessment and classification of insurance companies issued by the Ministry of Finance on 17 December 2014 (Circular 195);
  5. Circular No. 101/2013/TT-BTC on guiding the management and use of fund for policy-holders, issued by the Ministry of Finance on 30 July 2013 (Circular 101);
  6. Decision No. 1826/QD-TTg of the Prime Minister on approving the Plan on “Restructuring the securities market and insurance companies” on 28 December 2012 (Decision 1826).
  • Key rules and requirements may include
  • Senior management responsibilities
  1. Promulgation of legal instruments and implementing guidelines on insurance business; formulation of strategies, policies, master planning and specific plans for the development of the Vietnamese insurance market;
  2. Issuance and withdrawal of licenses for establishment and operation insurers and insurance brokers, and of licenses for establishment of representative offices of foreign insurers and foreign insurance brokers in Vietnam;
  3. Promulgation, ratification and guiding the implementation of insurance regulations, provisions, scales of premiums and commissions;
  4. Supervision of insurance business activities via professional activities, financial status, enterprise management, risk management and compliance with the law on insurers and brokers; application of necessary measures to ensure that insurers satisfy the financial requirements and fulfil their undertakings to purchasers of insurance;
  5. Organization of provision of information on the status of the insurance market and market forecasts;
  6. International cooperation in the area of insurance;
  7. Consent for overseas operations of insurers and insurance brokers;
  8. Administration of the operations of representative offices of foreign insurers and foreign insurance brokers in Vietnam;
  9. Organization of the formation and training of a workforce of insurance management personnel and insurance professional experts; and
  10. Inspection and checks of insurance business activities; resolution of complaints and denunciations, and dealing with breaches of the laws on insurance business.
  • Whistle-blowing rules

There is no such rules specifically for the insurance sector.

  • Foreign ownership limit in an existing shareholding company

ü  The maximum shareholding by an individual shareholder is limited to 10% of the charter capital of the target company;

ü  The maximum shareholding by an institutional shareholder is limited to 20% of the charter capital of the target company; and

ü  The maximum shareholding owned by a shareholder and related persons/affiliates in aggregate is limited to 20% of the charter capital of the target company.

Capital reserve requirements

Reserve funds

Insurers and insurance brokers must establish a compulsory fund to supplement their charter capital and ensure their solvency. Appropriations for the compulsory reserve fund shall be made annually at 5% of after-tax profits. The maximum amount of compulsory reserve fund is equivalent to 10% of the charter capital of the insurance enterprise or issued capital of the foreign branch.

In addition to this compulsory reserve fund, insurers and insurer brokers may establish other reserve funds from their after-tax profits of the fiscal year as determined in their charter. It is noted that after-tax profits must not be first shared among shareholders but only after 5% of such profits is contributed to the compulsory reserve fund.

Insurance reserves

Insurance reserve means an amount of money which an insurer must set aside to pay for its insurance liabilities determined in advance and arising from the insurance contracts which it has entered into.

Insurance reserve must be established for each type of insurance product or insurance contract with respect to that part of liability retained by the insurer or foreign branch. Specific amount contributed for insurance reserve is not yet provided by the MOF given the recent effectiveness of Decree 73.

Security deposit

Insurers must pay a security deposit into a commercial bank operating in Vietnam in an amount of  2% of the legal capital as specified for each type of insurance company (for example, a health insurance company must pay a security deposit of  VND6 billion or USD270,000) within 60 days from the issuance date of the operating license in Vietnam. An insurance enterprise or foreign branch may only use its security deposit to meet undertakings to purchasers of insurance when its solvency is inadequate and upon written approval of the MOF. The whole amount of their security deposit can only be withdrawn upon termination of their operation.

Product specific legislation

Relevant advisory documentation or other requirements, including tax.

  • Life

Legal capital

ü  For life insurance business (excluding unit linked insurance and retirement insurance) and health care insurance business: VND600 billion

ü  Life insurance business and unit linked insurance business or retirement insurance business: VND800 billion

ü  Life insurance business, unit linked insurance business and retirement insurance business: VND1,000 billion.

Qualifications of the appointed actuary

ü    Not be prohibited from managing an enterprise according to Vietnam laws;

ü    In the three consecutive years prior to the time of appointment:

o   Not have been subject to an administrative penalty for a breach in the insurance business sector with the form of penalty being compulsory dismissal from his or her position as a manager or executive, approved by the MOF, or with the form of penalty being suspension from a position to which such person was appointed by an insurance enterprise, insurance broker or foreign branch;

o   Not have been disciplined in the form of dismissal for a breach of internal rules on underwriting, assessment, compensation and indemnity, internal control, management of finance and investment or management of a re-insurance program in an insurance enterprise or foreign branch; or for a breach of the rules on professional insurance broking operations, on internal control or professional ethics of an insurance broker;

o   At the time of being appointed as a manager or executive of an insurance enterprise or foreign branch, not be directly related to any case prosecuted by a competent agency.

ü Have undergone training as an appointed actuary, and have at least 10 years’ work experience as an appointed actuary in the life insurance and be a fellow of one of the Associations of Actuaries which are widely recognized internationally such as the Institute of Actuaries of England; the Society of Actuaries of the USA; the Institute of Actuaries of Australia; the Canadian Institute of Actuaries; or be a member of another Association of Actuaries which is an official member of the International Associations of Actuaries; or have at least 5 years’ work experience as an appointed actuary in the life insurance or health insurance sector from the time of becoming a fellow of one of the above associations.

ü Not have committed any breach of the professional ethics of actuaries.

ü Be an employee of the life insurer.

ü Be resident in Vietnam during the term of office.

Permitted scope of business

Life insurers are not allowed to do non-life business.

Life insurance products must be approved by the MOF in advance.

Insurance reserve

Insurance reserve for life insurance companies includes: actuarial reserve, unearned premium reserve, compensation reserve, profit distribution reserve, committed interest rate reserve and balance reserve.

Investment of idle capital from insurance reserves

Investments of idle capital from insurance reserves of insurance enterprises or foreign branches may be made directly by the insurance enterprise or foreign branch or by entrusting another entity to make the investment, but shall only be invested in Vietnam in the following sectors:

ü Purchase of Government bonds, Treasury bills, Treasury bonds, public bonds for construction of the Homeland, local authority bonds and Government guaranteed bonds without any restriction;

ü Deposits with credit institutions without any restriction;

ü Purchase of shares, bonds of enterprises and fund certificates but not to exceed 50% of idle capital from insurance reserves;

ü Real estate business in accordance with the Law on Real Estate Business but not to exceed 20% of idle capital from insurance reserves;

ü Capital contribution to other enterprises but not to exceed 20% of idle capital from insurance reserves.

  • General insurance

Under Vietnam laws, general insurance is called non-life insurance, which means the types of insurance products being property insurance, civil liability insurance and other products which are not life insurance.

Legal capital

– For non-life insurance business (excluding aviation insurance business and satellite insurance business) and health insurance: VND300 billion

– For non-life insurance business (including aviation insurance business or satellite insurance business) and health insurance: VND350 billion

– For non-life insurance business, including aviation insurance business and satellite insurance business and health insurance: VND400 billion

Qualifications of an appointed actuary regarding reserves and solvency of non-life insurer

ü    Not be prohibited from managing an enterprise according to Vietnam laws;

ü    In the three consecutive years prior to the time of appointment:

o   Not have been subject to an administrative penalty for a breach in the insurance business sector with the form of penalty being compulsory dismissal from his or her position as a manager or executive, approved by the MOF, or with the form of penalty being suspension from a position to which such person was appointed by an insurance enterprise, insurance broker or foreign branch;

o   Not have been disciplined in the form of dismissal for a breach of internal rules on underwriting, assessment, compensation and indemnity, internal control, management of finance and investment or management of a re-insurance program in an insurance enterprise or foreign branch; or for a breach of the rules on professional insurance broking operations, on internal control or professional ethics of an insurance broker;

o   At the time of being appointed as a manager or executive of insurance enterprise or foreign branch, not be directly related to any case prosecuted by a competent agency.

ü Be an associate of an Association of Actuaries which is an official member of the International Associations of Actuaries; or

ü Have at least five years’ work experience in the non-life insurance sector and have evidence of passing two exams of one of the following Associations: the Institute of Actuaries of England; the Society of Actuaries of the USA; the Institute of Actuaries of Australia, and the Canadian Institute of Actuaries, or evidence of passing exams of a training course or program on actuaries recognized by the above Associations as equivalent to two exams of the above Associations; and

ü Not have committed any breach of the professional ethics of actuaries.

Permitted scope of business

Non-life insurance companies are allowed to do health insurance business.

Insurance reserve

Insurance reserve for non-life insurance companies includes unearned premium reserve, claim reserve, and large loss fluctuation reserve.

Investment of idle capital from insurance reserves

ü  Purchase of Government bonds, Treasury bills, Treasury bonds, public bonds for construction of the Homeland, local authority bonds and Government guaranteed bonds without any restriction;

ü  Deposits with credit institutions without any restriction;

ü  Purchase of shares, bonds of enterprises, fund certificates and capital contribution in other enterprises but not to exceed thirty five (35) per cent of idle capital from insurance reserves; and

ü  Real estate business in accordance with the Law on Real Estate Business but not to exceed ten (10) per cent of idle capital from insurance reserves.

  • Reinsurance

Legal capital

–          For non-life reinsurance business or both non-life reinsurance business and health reinsurance business: VND400 billion;

–          For life reinsurance business or both life reinsurance business and health reinsurance business: VND700 billion;

–          For business in all three types of life reinsurance, non-life reinsurance and health reinsurance, VND1,100 billion.

Qualifications of an appointed actuary regarding reserves and solvency of reinsurer

Same as in non-life insurance.

Permitted scope of business

ü  An insurance enterprise or may transfer part but is not permitted to assign all of the liability for which insurance has already been accepted in an insurance contract to one or a number of domestic and foreign insurance enterprises, and other foreign branches;

ü  The maximum level of the liability retained on each risk or on each separate loss shall not exceed 10% of equity.

ü  If an insurance enterprise cedes reinsurance as appointed by an insured person, the maximum rate for re-insurance by appointment shall be 90% of the liability insured;

ü  An insurance enterprise may accept reinsurance of the liability for which another insurance enterprise has already accepted insurance.

Insurance reserve

–          For non-life reinsurance: unearned premium reserve, claim reserve, and large loss fluctuation reserve;

–          For life reinsurance: actuarial reserve, unearned premium reserve, compensation reserve, profit distribution reserve, committed interest rate reserve and balance reserve;

–          For health reinsurance: actuarial reserve, unearned premium reserve, compensation reserve, and balance reserve.

Investment of idle capital from insurance reserves

–          For non-life reinsurance: same as non-life insurance

For life reinsurance and health reinsurance: same as life insurance and health insurance

  • Commercial insurance

Please refer to the Section on General insurance above.

Investment management and markets

Overview of relevant regulation affecting insurers’ investment portfolios, including Asset Liability Management (ALM).

An insurance enterprise can make investment from its equity, idle capital from insurance reserves and other lawful sources.

In addition to rules of domestic investment of idle capital from insurance reserves as mentioned above for each type of insurance business, the following principles apply:

ü  It is not permitted to borrow loans for purposes of direct investment or entrusted investment in securities, real estate, or capital contribution to other enterprises;

ü  It is not permitted to reinvest in any form [being lending to or reinvesting with] capital contributing shareholders (members) or related persons [affiliated persons] as defined in the Law on Enterprises, except for deposits with shareholders (or members) which are credit institutions;

ü  It is not permitted to invest more than 30% of its investment capital sources in companies within one Group or within one group of companies with a mutual ownership relationship (this provision shall not apply to deposits at credit institutions and offshore investment capital sources in the form of establishment of enterprises or branches overseas);

ü  In the case of investment entrustment, the organization accepting entrustment must be issued by the competent agency with a licence to carry out the activities of acceptance of investment entrustment in compliance with the contents of acceptance of investment entrustment.

An insurance enterprise may also make offshore investment but only to set up offshore insurance company or an offshore insurance branch. Such offshore investment must be approved by the MOF.

Enforcement and investigation

  • Rules of regulatory investigation

Insurance business activities must be checked without overlapping and no more than once in respect of one item in any one year with respect to enterprises (except for the case of an extraordinary or unscheduled check).

  • Complaints procedure

There is no specific rule on complaints handling procedure in insurance enterprises. Instead, such rules are as indicated in the insurance contracts and must follow relevant regulations of the Civil Code and economic agreements.

Complaints on administrative decisions will be handled according to laws on complaints and denunciations, which are applied for all sectors.

  • Redress, including Ombudsman service

Depending on the nature and seriousness of violations, the violators may be subject to administrative sanctions (warnings, monetary fines, suspension of operation, remedies) or criminal penalty. In case of causing damages, they must compensate according to Vietnam laws.

  • Insurance mediation compensation schemes

As indicated in the insurance contract. The insured person has maximum one year to claim for indemnity from the date of occurrence of the insured event. Upon occurrence of such insured event, the insurer must pay the indemnity with the time-limit stated in the insurance contract. If there is no statement in the contract, the time-limit is 15 days from the date of receipt of a complete and proper application requesting payment of indemnity.

Personal accident and health care insurance

–          Personal accident insurance: the insurer must pay insurance proceeds to the beneficiary up to the sum insured, based on the actual injury of the person insured and as agreed in the contract.

–          Health care insurance: the insurer must pay insurance proceeds to the beneficiary up to the sum insured, based on the costs of medical examination, treatment and convalescence of the insured person arising as a result of an illness or accident and as agreed in the contract.

Property insurance

–          Property insurance below value: the insurer is only responsible to indemnify in accordance with the ratio of the sum insured to the market value of the insured property at the date of entering the contract.

Double insurance contracts

Upon occurrence of the insured event, each insurer is only responsible to indemnify in accordance with the ratio of the agreed sum insured to the total sum insured under all insurance contracts which the purchaser of the insurance has entered into. The total sum of indemnity payable by all the insurers will not exceed the value of the actual property damage.

Insolvency and policy-holder protection

  • Relevant resolution regime?

There is no separate insolvency regime for insurers. Instead, the Law on Bankruptcy which deals with bankruptcy and insolvency in all sectors will apply.

The general procedure to handle bankruptcy cases is as follows:

ü  Filing the petition to the court to commence bankruptcy procedures (by creditors, employees, grass-root trade union, legal representative of the company, shareholders, Chairman of the Board of Management, etc.)

ü  The court will handle the bankruptcy case according to its competence within 6 working days from the receipt of the petition. Decisions to open bankruptcy procedure must be sent to all relevant parties and published on local newspapers and the People’s Supreme Court web portal.

ü  Calling for the meeting of creditors

ü  Depending on the Resolution of the Creditors’ meeting, the company’s operation can be recovered or the court is requested to announce the bankruptcy.

ü  Management and liquidation of assets are conducted by a liquidator or company that is appointed by the court and specializes in the management and liquidation of assets.

Data protection

There is no separate rule governing data protection in the insurance sector in Vietnam. Instead, Vietnam’s data protection laws are scattered in many legislations, which include the Civil Code, the Penal Code, the Law on Cyber Information Security, the Law on Information Technology, the Law on Telecommunications, the Law on Consumer Protection, the Law on E-Transactions and relevant Decrees guiding implementation of the mentioned laws. These laws include provisions to prevent, detect, stop and address spam, computer viruses and cyber-attacks, and protect information exchanged in cyberspace.

There is no consistent definition of “personal information” in Vietnam laws. General speaking, personal information could be any information that could be used to identify a specific person, including information on payment transactions.

Organisations processing personal information must take appropriate management and technical measures to protect personal information that they have collected and stored and ensure that the personal information is not lost, stolen, disclosed, modified or destroyed without consent.

Depending on the nature of violations of data protection policies, administrative fines (warning, monetary fine) and possible remedial measures or criminal penalties might apply.

Corporate governance

Managers and executives of insurance enterprises, foreign branches and insurance brokers are:

ü  Chairman of the board of management (chairman of the members’ council or company chairman); members of the board of management (members of the members’ council);

ü  Head of the inspection committee; head of the internal audit committee; inspectors (if the enterprise does not establish an inspection committee);

ü  General Director (Director); Deputy General Director (Deputy Director);

ü  Head of the internal control or audit division; chief accountant; branch directors; heads of representative offices; heads of professional sections; appointed actuaries (in the case of a life insurer or health insurer); appointed actuaries regarding reserves and solvency (in the case of a non-life insurer or foreign branch).

Allocation of these people must follow the below principles:

ü  A member of the board of management or members’ council of an insurance enterprise or insurance broker is not permitted to concurrently be a member of the board of management or members’ council of an enterprise operating in the same sector (non-life insurance, life insurance, reinsurance or insurance brokerage);

ü  The general director (director) or deputy general director (deputy director) of an insurance enterprise, foreign branch or insurance broker is not permitted to concurrently work for another insurance enterprise, foreign branch or insurance broker operating in the same sector in Vietnam; and the general director (director) of an insurance enterprise, foreign branch or insurance broker is not permitted to be a member of the board of management or members’ council of another insurance enterprise or insurance broker operating in the same sector in Vietnam;

ü  The general director (director), deputy general director (deputy director), a branch director or a head of a representative office of an insurance enterprise or insurance broker is only permitted to concurrently be the head of no more than one branch or representative office or professional section of the insurance enterprise or insurance broker. The director or deputy director of a foreign branch is only permitted to concurrently be the head of no more than one professional section of such branch;

ü  An appointed actuary of a life insurer or health insurer, an appointed actuary regarding reserves and solvency of a non-life insurer, of a reinsurer or of a foreign branch has the duty of organizing implementation of work to ensure the financial safety of the insurance enterprise or foreign branch. An appointed actuary or an appointed actuary regarding reserves and solvency has independent rights regarding his or her professional specialty and is not permitted to concurrently be the general director (director) or chief accountant.

Financial crime prevention

  • Member of FATF? On FATF blacklist?

Not a members of FATF and not blacklisted either.

***

If you have any question on the above, please do not hesitate to contact Mr. Oliver Massmann under omassmann@duanemorris.com, Oliver Massmann is the General Director of Duane Morris Vietnam LLC.

Thank you very much!

 

 

 

EU- VIETNAM FREE TRADE AGREEMENT – MARKET ACCESS OPPORTUNITIES

On 02 December 2015, after nearly 3 years with 14 rounds of negotiations, the Minister of Industry and Trade of Vietnam, H.E. Vu Huy Hoang and the European Commissioner for Trade, H.E. Cecilia Malmström have signed the Vietnam-EU Free Trade Agreement (FTA). Both parties will finalize the ratification process as soon as possible for the FTA to take effect from the beginning of 2018.

The FTA is considered one of the most comprehensive and ambitious trade and investment agreements that the EU has ever concluded with a developing country. It is the second agreement in the ASEAN region after Singapore and it will intensify the bilateral relations between Vietnam and the EU. Vietnam will have access to a potential market of 500 million people and a total GDP of USD15,000 billion (accounting for 22% of the global GDP). The other way around, exporters and investors from EU have further opportunities to access one of the fastest-growing countries of more than 90 million people in the region.

The real wages of skilled laborers may increase by up to 12% while real salary of common workers may rise by 13%. The macro economy will be stable and inflation rate is controlled. Vietnam’s business activities will be booming in the next few years once the EU- Vietnam FTA officially comes into force and Government’s policies as well as institutional reforms start showing their positive effects.

Vietnam’s GDP is expected to increase by 0.5% annually; increase in exports is 4-6% per year. If this trend continues until 2020, Vietnam’s exports to EU will increase by USD 16 billion. Until 2025, the FTA is estimated to generate an additional 7-8% of GDP above the trend growth rate.

Market access for goods

 Nearly all customs duties – over 99% of the tariff lines will be eliminated. The small remaining number is partially liberalized though tariff tare quotas. As Vietnam is a developing country, it will liberalize 65% of import duties on EU exports to Vietnam at entry into force and the remaining duties will be eliminated over the next ten years. For some products, EU duties will be eliminated over a seven-year period such as motorcycles with engines larger than 150 cc, car parts, about half of EU pharmaceutical exports. The market will be opened for most of EU food products, i.e. wine, spirits and frozen pork meat after seven years and for dairy products after a maximum of five years. This is unprecedented far-reaching tariff elimination for a country like Vietnam, proving its targets of deeper integration and trading relations with the EU.

From the EU side, it agrees to eliminate duties for 85% of the tariff lines for goods imported from Vietnam immediately at the entry into force of the FTA. Within 7 years from the effective date of the FTA, there is more than 99% of the tariff lines being eliminated for Vietnam. The EU will eliminate duties for some sensitive products in the textile and footwear sector over a 5-7-year period, with a fabric-forward rule (instead of a strict yarn-forward rule as in the TPP) and allowing Vietnam to import fabrics from South Korea. The EU also offers access to some Vietnamese sensitive agricultural products via tariff rate quotas (TRQs), in addition to a number of main Vietnamese exports such as mobile phones, computer accessories, and sport shoes. Vietnamese exports of textile, clothing and footwear to the EU are expected to more than double in 2020 as a result of the FTA.

We note that besides Vietnam in the region, Singapore also concluded an FTA with the EU in 2014. However, this does not affect the competitiveness of Vietnam in trading with the EU. This is due to the fact that Vietnam mainly exports textiles, footwear, agricultural products, etc. while Singapore’s main exports are machines, chemical products and transport equipment. Moreover, while the EU is accelerating procedures to negotiate FTAs with different countries in the ASEAN region, Vietnam should take advantage of this golden time before FTAs with others in the region are concluded and become effective.

 Market access for EU service providers

Although Vietnam’s WTO commitments are used as a basis for the Chapter on Trade in Services and Commitments, Vietnam has not only opened additional (sub)sectors for EU service providers but also commits deeper than in the WTO, offering its EU partners best possible access to Vietnam’s market.  (Sub)sectors that are not committed under the WTO but under which Vietnam makes commitments are, for example:  Interdisciplinary R&D services; Nursing services, physiotherapists and para-medical personnel; Packaging services; Trade fairs and exhibitions services; Building-cleaning services. Moreover, it is noteworthy that the FTA contains a provision that allows one party to grant the other party the best treatment that the former is negotiating with other partners under other framework (for example, TPP, Regional Comprehensive Economic Partnership,  Vietnam – European Free Trade Association) on 17 July 2015.

We set out below certain Vietnam’s commitments in key sectors with reference to its commitment in the WTO.

 

Distribution sector

WTO requires an Economic Needs Test (ENT) for establishment of outlets for retail services (beyond the first one). EVFTA requires the same but adds cases for ENT exemption and timeline for ENT abolishment.

 

processed oil and crude oil by foreign investors are still prohibited

WTO EVFTA
The establishment of outlets for retail services (beyond the first one) shall be allowed on the basis of an Economic Needs Test (ENT) In case of establishing an outlet less than 500m2 within the area planned for trading activities and already completed construction of infrastructure, ENT is not required.

5 years from the date of entry into force of the Agreement, the requirement of the ENT will be abolished.

 

Power/ Energy

 

WTO EVFTA
N/A Commitments are made in 3 sub-sectors: (i) Production of electricity; transmission and distribution of electricity on own account; (ii) Manufacture of gas; distribution of gaseous fuels through mains on own account; and (iii) Production of steam and hot water; distribution of steam and hot water on own account.

 

Maritime Transport

 

Sub-sectors WTO EVFTA
Maritime transport services Mode 3 Market Access (MA): joint venture with maximum 49% foreign ownership Mode 3 MA: joint venture with maximum 70% foreign ownership
Internal Waterways transport

+ Passenger transport

+ Freight transport

 

Mode 1: No commitment

Mode 3: joint venture with maximum 49% foreign ownership

Mode 1: No restriction

Mode 3: joint venture with maximum 51% foreign ownership

 

Securities services

 

WTO EVFTA
Commitments on 6 sub-sectors

 

 

Mode 3:

foreign securities service suppliers are permitted to establish representative offices and joint ventures with maximum foreign ownership of 49%.

 

After 5 years from the date of accession, securities service suppliers with 100% foreign-invested capital shall be permitted.

Same commitments in 6 sub-sectors

 

 

Commitments on 2 additional services: Provision and transfer of financial data processing; and credit reference and analysis.

 

Mode 3: Same as the WTO

 

Telecommunication Services

 

  • Non facilities-based services: WTO/ AFAS: maximum 65% foreign ownership forever but in the EVFTA after 5 years, this could be 75%.
  • Other services – Virtual Private Network (VPN): maximum 70% foreign ownership forever but in the EVFTA after 5 years, this could be 75%.

Conclusion

 Vietnam is a country of changes and currently offering increasing opportunities for foreign businesses. The underlying strength of the economy is reflected in, among others, controlled macroeconomic indicators, strong productivity gains and extensive integration into regional and global economy. It is now exactly time for foreign investors to start their business plans and grasp the upcoming clear opportunities.

***

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

 

 

 

 

 

 

 

 

Vietnam – Building better Investor Protection Framework – What you must know:

 

  1. Vietnam stock exchange already gained significant milestones in developments, but why it still does not attract big domestic companies to list so far?

 Tightened monetary policies leading to limited capital inflow to the securities market, its low liquidity and significant decrease in stock price partly contribute to the low attractiveness of Vietnam’s stock exchange. In addition, although Decree No. 60 loosens foreign ownership in public companies, detailed foreign ownership applicable for conditional business sectors has not been issued. This makes Decree No. 60, which is said to be rather promising to the market, invalid in whole or in part.

Another reason is Vietnam’s stock exchange lacks good stocks. In other words, the number of listed state owned enterprises seems to outweigh private entities. It is the fact state owned enterprises still do not attract foreign / private investment due to their history of bad performance. Meanwhile, successful private entities have not been listed.  It seems like a vicious circle, when not many companies want to be listed due to low attractiveness of the securities market and unlikely increase in price of stocks after being listed.

Finally, investors and owners are held back to list at the Stock Exchange in Vietnam as Vietnam has not adopted international Corporate Governance Standard and effective means of implementation and enforcement of those. But latest in mid-2017 Vietnam is obliged to adopt these rules.

Vietnam is currently working with the IFC/World Bank on establishing Corporate Governance standards for investors interests. Thus we believe the situation will improve within the next year once Vietnam has fulfilled this task.

  1. What benefits for companies if they list on Singapore or Hong Kong? But how high is the cost they would endure to comply with stricter regulations?

 Singapore and Hong Kong are large capital markets where companies in Vietnam could find it much easier to call for capital. Investors in these countries already have certain knowledge about investment in Vietnam and the companies themselves, so if successfully listed, these companies will become more attractive to the investors there.

However, the cost to comply with very strict listing requirements is relatively high, especially when the Vietnam’s companies have never implemented similar requirements in Vietnam. The barriers are, among others, international standard audited financial statements, detailed foreign ownership, proven record of corporate management and complex tax rules. Considering that the cost could be as high as up to USD 1 million, it is recommended that only big companies with high financial capacity list their stocks on Singapore or Hong Kong stock exchange.

  1. But at the moment, we don’t see any Vietnam firms listed successfully abroad. May be the procedure is a huge obstacle for them to move abroad? What do Vietnam companies need to do for completing listing on Singapore stock exchange?

Procedure and strict requirements as mentioned in Point 2 are huge obstacles for companies who want to list abroad. The first and foremost condition is Vietnam companies must understand very well structure of Singapore stock exchange. Next, be prepared for complying with requirements on financial capacity, assets, corporate management, number of shareholders, etc. It is highly advisable that Vietnam companies seek advice of international lawyer with good local legal knowledge so that Vietnam companies could implement their plans successfully.

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

 

 

Lawyer in Vietnam Oliver Massmann Public mergers and acquisitions: market analysis overview

Largest / most noteworthy public M&A transactions in the past 12 months
Financial
Noteworthy public M&A transactions include the following:
• In May 2015, Sai GonThuong Tin Commercial Joint Stock Bank (more commonly known as Sacombank) merged with Southern Commercial Joint Stock Bank. Following the merger, Southern Bank shareholders obtained a 0.75 Sacombank share for each share they held. The merged entity, to be called Sacombank, will have a charter capital of more than VND18.85 trillion (US$856 million) and total assets of over VND290.86 trillion (US$13.2 billion). Sacombank’s shareholders agreed to the merger by a 93.7% vote.
• In May 2015, the merger between the Mekong Housing Bank and the Bank for Investment and Development of Vietnam was completed.
• In May 2015, the Vietnam Bank for Industry and Trade (Vietinbank) merged with Petrolimex Group Commercial Joint Stock Bank (PG Bank). The change rate for PG Bank shares to Vietinbank shares was 1:0.9, which means Vietinbank exchanged 270 million of its shares for 300 million of PG Bank shares. The merger increased Vietinbank’s total assets by VND25 trillion (US$1.19 billion) to VND685 trillion (US$31.7 billion), and its chartered capital by VND3 trillion (US$142.86 million) to more than VND40 trillion (US$1.85 billion).
• In May 2015, Credit Saison spent about JPY5 billion to take a 49% stake in HDFinance, Vietnam’s third largest consumer finance business.
• In August 2015, the Mekong Development Bank (MDB) was set to merge with the Vietnam Maritime Commercial Bank (Maritime Bank) to form an institution that would be among the country’s five largest banks in terms of charter capital. Currently, Maritime Bank’s charter capital is US$373.8 million and MDB’s is US$175.23 million, meaning that the new banking institution would have a charter capital of US$549 million and total assets of US$5.28 billion.
Other
Retail.Noteworthy public M&A deals include the following:
• On 29 April 2016, Thailand’s Central Group bought Big C from Casino at a value of USD1.14 billion.
• In June 2015, WarbusPincus invested $100 million into Vincom Retail and still remained as a minority shareholder.
Food. Noteworthy deals include the following:
• In May 2015, Masan Group acquired 52% of the total shares in Vietnam French Cattle Feed JSC (Proconco). The acquisition occurred when the group bought 99.99% of the total shares in Sam Kim Limited Liability Company and renamed it Masan Nutri-Science Company.
• In May 2015, Filipino firm Pilmico Foods Corporation acquired some feed companies in Vietnam in an expansion bid. Pilmico, a subsidiary of the Aboitiz Group, had bought 70% of the total shares in VinhHoan 1 Feed JSC (VHF) at US$28 million in 2014.
• In July 2015, Mondelēz International completed the acquisition of 80% of the total shares in Kinh Do Corporation, a popular snack business in Vietnam, for about US$370 million.
• On 30 June 2016, Masan Nutri-Science Joint Stock Company bought additionally 30% of Agricultural Nutrition Joint Stock Company, leading to its 100% ownership in the company.
Real estate. Noteworthy deals include the following:
• In May 2015, Duc Long Gia Lai obtained 97.73% of Mass Noble with a transaction value of $11.7 million.
• In June 2015, 89.42% of Vefac was acquired by VinGroup, although the total transaction value was not disclosed.
• In June 2015, Gaw Capital Partners (GCP), the Hong Kong-based private equity firm, acquired an existing portfolio of real estate projects in Vietnam. The portfolio was purchased for US$106 million and is comprised of four of the remaining projects originally held under Indochina Land Holdings 2 Ltd.
• In June 2015, an acquisition between Muong Thanh hospitality and Phuong Dong hotel was completed. Muong Thanh hospitality acquired 100% of Phuong Dong hotel, a part of the Phuong Dong Petroleum Tourism JSC.
• At the beginning of July 2015, Gamuda Land Vietnam, a division of Malaysian property developer GamudaBerhad acquired Celadon City from the Saigon Thuong Tin Real Estate JSC (Sacomreal) and the Thanh Thanh Cong JSC (TTC) for an estimated VND1.4 trillion (US$64.1 million). The estimated original investment is VND24.8 trillion (US$1.1 billion).
• In 2015, Vingroup has become a dominant local M&A acquirer with a long list of transactions in the real estate, retail and logistics sectors. Its most notable additions include:
o Masteri Thao Dien for US$75 million;
o 30% stake ownership in Vinatex for US$26 million;
o 90% stake ownership in Giang Vo Trade Show Center for US$69 million; and
o 30% stake ownership in Hop Nhat Express for US$52 million.
• In December 2015, VinGroup acquired 100% of Hoa Huong Duong company with the deal value of US$252 million. This transaction has also made VinGroup the holder of 98.3% of Vinaconex-Viettel as this company is a subsidiary of Hoa Huong Duong.
• In March 2016, Lotte bought 70% of the total shares of Diamond Plaza in Ho Chi Minh from Posco. Deal value was not disclosed.
• In April 2016, Muong Thanh Corporation bought 95% of the total shares of Cienco 5 Land at the value of VND3,500 billion.
Insurance

• In April 2016, the merger between ACE Life and Chubb Life was completed, with ACE Life changing its name into Chubb Life in Vietnam.
• Two months later, FWD insurance company, a branch of Pacific Century, started the process of acquiring Great Eastern Vietnam after receiving the license for this acquisition.
The major trends in the structuring of public M&A transactions
In Vietnam, M&A transactions usually take the form of either share or asset acquisitions, with share acquisition transactions outnumbering asset acquisition transactions.
Share acquisitions by foreign purchasers are commonly structured as offshore direct investments. The new investor can:
• Acquire shares or capital contributions from an existing shareholder in the target (for example, a joint stock company, limited liability company, and so on).
• Subscribe for newly issued shares of the target (for a joint stock company).
• Make further capital contributions to the target (for a limited liability company).
In the case of an asset deal, a foreign purchaser must generally establish a new subsidiary in Vietnam.
In addition, M&A transactions can also take the form of a merger. One or more companies of the same type can be merged into another company by transferring all assets, rights, obligations and interests to the merged company, terminating the existence of the merging company.
The 2014 Enterprise Law sets out the types of business structuring that can be used by investors as a result of M&A transactions. In addition, the 2014 Investment Law is the first law that regulates M&A transactions and clearly provides that such transactions do not require an investment registration certificate. Instead, if the target company operates in conditional business sectors applicable for foreign investors, or the investment leading to foreign ownership of the target company being 51% or more (in particular, from below 51% to more than 51% and from 51% to above 51%), the foreign investors must seek approval of the local Department of Planning and Investment of the transaction. In other cases, the target company only needs to register change of membership / shareholders at the Business Registration Division. This change has ended years of uncertainty and frustration faced by foreign investors seeking entry into the Vietnam market or expansion through M&A transactions.

The level/extent of private equity-backed bids in the past 12 months
Investment in the form of M&A transactions is still the most popular form compared with private equity investment. In recent months, private equity funds have been following the securities market in Vietnam, especially companies carrying out value chain operations. Consumer goods and infrastructure are the sectors that attract the most attention. However, due to limited publicly available information, it is not possible to fully assess the level of private equity-backed bids.

The approach of the competition regulator(s) in the past 12 months
The Vietnam Competition Authority under the Ministry of Industry and Trade (VCA) must be notified of the transaction if participating companies have a combined market share in the relevant market of 30% up to 50%. The VCA will then examine whether the calculation of the combined market share is correct and whether the transaction is prohibited (that is, whether the combined market share exceeds 50%, except in certain cases). The transaction can be conducted when the VCA issues a written confirmation that the transaction is not prohibited under competition law.
For more information on the VCA, see www.vca.gov.vn/Default.aspx?lg=2.

Main factors affecting the public M&A market over the next 12 months
The country’s deeper and wider integration into the world’s economy is offering new opportunities for M&A activities.
Another factor is the Government’s being put under high pressure to privatize State-owned enterprises to meet requirements under signed trade pacts, especially the Trans-Pacific Partnership (TPP).
Encouraging signs for foreign investment include:
• Economic recovery.
• Reformed policies to allow wider access to foreign investors.
• Formation of the ASEAN Economic Community at the end of 2015.
• The conclusion of free trade agreements (FTAs) and the TPP.
• The bouncing back of the stock market.
• New regulations that increase the authorised levels of foreign investment in public listed companies.
The introduction of the new Investment Law, Enterprise Law and other laws and policies are creating an improved legal environment for investment and trade in general, and the M&A market in particular. However, the following factors also affect M&A transactions:
• Divergent interpretations and implementations by local licensing authorities of international treaties such as Vietnam’s WTO Commitments.
• Different licensing procedures applied to different types of transactions (for example, for foreign invested companies and domestic companies, public companies and private companies, and for buying state-owned shares or private shares).
Although legal and governance barriers, along with macro instability and the lack of market transparency are still the greatest concerns for investors, M&A deals in Vietnam are still expected to be one of the key, effective channels for market entry.
The major expected trends in the Vietnam M&A market include:
• Bank restructurings.
• Acquisitions and anti-acquisitions, especially in the real estate sector.
• Growing Japanese and Thai investment in Vietnam through M&A transactions.
• Reform of SoEs.
The derivatives market is expected to open in 2016, which will help in preventing risks, boosting the growth of the stock market and in promoting M&A deals.

Please do contact the author Oliver Massmann under omassmann@duanemorris.com if you have any questions on the above. Oliver Massmann is the General Director of Duane Morris Vietnam

Horse Race Betting in Vietnam: Don’t Back the Wrong Horse

Investors wishing to invest in horse race betting projects in Vietnam may find themselves in dead end if they do not equip themselves with the appropriate tools to tackle legal challenges in this emerging market

Even though horse race betting was allowed in two pilot projects in Phu Tho (1998) and Vung Tau (2000), there has been no concrete legal framework in place to address the licensing and operation of the horse race betting projects.

In 2010, the Government of Vietnam decided to draft a decree, which is the most superior executive regulation, to formally legalize horse race betting in Vietnam and provide criteria for businesses to invest and operate in this field. This is an effort of the government to maintain the balance between the economic benefits of these hugely profitable businesses and the need to have sufficient governmental control to eliminate the “social evils” which may associate with these projects. The Standing Committee of the National Assembly, which is the legislative body of Vietnam, approved the general policy of this decree; however, the Standing Committee also asked for an empirical study on the pros and cons of horse race betting, together with other forms of betting such as soccer or greyhound race betting. In a recent regular session of the Government in 2015, the Prime Minister instructed the Ministry of Finance to continue working on the draft, based on recommendations from other branches and the National Assembly. There has been no time limit fixed for the issuance of this decree. One of the reasons why there has been significant delay was because of the ambitious target of this decree, which aims to govern not only horse race and greyhound race betting but also soccer betting. Soccer betting has been a sensitive topic in Vietnam and there is a wide prejudice that it associates with crimes, bankruptcy, sports cheats, and money laundering. To speed up the process, the government is considering separating soccer betting from this regulation and focusing on horse and greyhound race betting only.

Even though the latest draft of the decree is not final, investors can find some helpful guidelines for their future investments in horse race betting in Vietnam. In particular, the draft proposes that an entity can only do horse betting once they have received an investment certificate (which, for a foreign invested company also serves as a certificate of incorporation) and a certificate for satisfaction of business conditions. The Prime Minister will decide the issuance of the investment certificate and such certificate will only be granted for horse race betting projects with minimum investment capital of 1 thousand billion Vietnamese Dongs, or equivalent to 459 million United States Dollars. The project must be put into operation within four years from the date of issuance of the investment certificate. Meanwhile, the Ministry of Finance will grant the certificate for satisfaction of business conditions to entities with adequate financial resources, business plans and an appropriate betting and racing bylaws.

While the decree allows Vietnamese players to participate, it limits the maximum bet to one million VND (or less than fifty USD) a day and provides that the minimum bet is ten thousand VND (or less than fifty cents). There should be no more than three races in a week at each location. The minimum rebate shall be 65% of the revenues from selling wagering tickets. In terms of labor, the jockeys must be employees of the horse race operators.

While it remains unknown whether the decree on horse race betting will be issued, investors should not play the “wait and see” game. Instead, they should be proactive in approaching the government authorities for specific guidelines and having a thorough legal strategy to deal with the known and unknown regulatory obstacles. They may also consider setting up a small entity to carry out a pilot project, which is generally subject to lower regulatory thresholds than a regular project, to test the water and set up the basic infrastructure necessary for future investments. These plans cannot be successful if the investors do not have proper legal and financial advice.

The horse race betting market in Vietnam is a difficult race to thrive in and only the most well prepared investors can reap the huge rewards.

***

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

Thank you very much!

Vietnam – Banking – Solutions for Liquidity and Non-performing Loans

The State Bank of Vietnam (SBV) is in the verge of creating a better administered and transparent banking system. To become an international attractive financial market, the SBV needs to implement the planed Circulars and adopt international financial standards as described below.
Foreign exchange governance
The Foreign Exchange Ordinance is revised by Article 1.4, Ordinance No. 06/2013/PL-UBTVQH13 which specifies that enterprises with foreign direct investment and foreign investors shall set up a direct capital account in an eligible credit institution, and all transactions regarding equity financing and capital earnings shall be made through this account. The SBV implemented Circular 19 to guide the Ordinance and clarified that foreign invested companies and foreign investment projects have to comply with all relevant national regulations, i.e. Investment Law, Enterprise Law, Personal income-tax Law, Corporate income-tax Law.
It is recommended that SBV includes and provides guidance on the transfer in foreign currency since it is only allowed to take US$ 5,000 abroad and the transfer of funds in foreign currencies is restricted.
Possible additional banking products by the SBV
The draft Circular which is replacing Decision 1627 is not specific enough on debt restructure lending. Credit institutions and branches of foreign banks have adopted a various number of procedures to restructure loans without altering their nature or mask bad debts, for example, by using mid-term or long-term loans to restructure a short-term loan or lending in foreign currency to restructure a VND loan. Allowing such restructuring measures would help the borrower to stabilize their business, financially recover and be able to repay the loan.
Licensing
The Government is recommended to allow banks to carry out activities in both domestic and international markets in order to provide their clients with necessary information and service while doing business in Vietnam and overseas. This is to ensure their liquidity and more importantly, there should not be any limitation on basic foreign exchange activities.
Furthermore there is a need to update general banking licenses. All applications for re-issuance of the eligible certificate are put on hold and this could raise certain legal risks to banks.
Even if Article 89.1 of the Law on Credit Institutions requests branches of foreign banks have a written approval for the time being, the approval procedures are pending at the Licensing Department because there is no guideline on how to approve the organizational structure of branches of foreign banks.
The SBV is recommended to push the process and allow branches of foreign banks to implement their structure without its approval during the interim period.

—o0o—

Please do not hesitate to contact Mr. Oliver Massmann under omassmann@duanemorris.com if you have any questions on the above.
IF YOU ARE INTERESTED IN DOING BUSINESS IN VIETNAM PLEASE VISIT: www.vietnamlaws.xyz
THANK YOU VERY MUCH!

More room for foreign investors in Vietnam’s securities market

On 26 June 2015, the Government issued Decree No. 60/2015/ND-CP to amend and supplement certain provisions of Decree No. 58/2012/ND-CP on detailing and guiding the implementation of certain provisions of the Law on Securities and the Law on amending and supplementing certain provisions of the Law on Securities (“Decree 60”).
More flexible foreign ownership ratio in public listed companies
Previously, foreign ownership ratio in public listed companies is the same for all sectors and subsectors. Decree 60 now provides different foreign ownership ratio for each sector and subsector, in particular:
– Requirements on foreign ownership limits in international treaties to which Vietnam is a party will prevail;
– In case public listed companies do business in sectors, subsectors where foreign ownership limits are stipulated by the investment law and its related requirements, such limits will apply;
– In case public listed companies do business in conditional sectors or subsectors applicable for foreign investors but there is not yet a specific requirement on foreign ownership limit, such limit would be 49%;
– In case public listed companies do business in different sectors or subsectors with different requirements on foreign ownership limits, the applicable foreign ownership limit will not exceed the lowest foreign ownership limit required for sectors or subsectors that the company does business in, except otherwise stipulated by the international treaties;
– There would be no limit on foreign ownership ratio for other public listed companies, except otherwise stipulated by the company’s charter.
Decree 60 is thus expected to have a positive impact on the development of the securities market by attracting more foreign investment in the market and expedite the current equitization process.
Unlimited foreign investment in Government bond
Decree 60 allows foreign investors to make unlimited investment in Government bonds, bonds guaranteed by the Government, bonds of the provincial authority or enterprises.
Foreign investors may also invest in securities investment fund certificates, shares of securities investment companies, non-voting shares of public listed companies, derivative securities, and depository receipts without limit.
New delisting requirements
If the listing company does not meet the listing requirements after its offer for sale, issues 50% or over of its existing shares in exchange for shares or contribution part in another company, the securities delisting is compulsory.
The company may also voluntarily delist their securities with the condition that there is approval of at least 51% of the voting shares of all shareholders (not including major shareholders) instead of 50% in the previous requirement. The delisting can only be conducted after at least two years from the listing date on the stock exchange.

—o0o—

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

INTERESTED IN DOING BUSINESS IN VIETNAM? VISIT: www.vietnamlaws.xyz

THANK YOU VERY MUCH

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. Generally Speaking, What Are The VAT, Customs And Related Costs (e.g. Broker Fees) That Arise When A Foreign Principal Has Goods Dropped Shipped Into Your Jurisdiction To The Local Contract Manufacturer? In Particular, Is There Any Non-recoverable VAT? If So, Are There Strategies For Avoiding Or Reducing This VAT Cost? With Respect To Customs, Please Provide The Range For The Customs Rates That May Apply. Also Are There Any Planning Techniques That Taxpayers Typically Employ To Reduce Customs Costs? Please Address The Same Issues In Connection With The Export Of The Finished Goods Outside Of The Country.

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. 71/2014/QH13.

Due to Article 7.3 of the Law on Tax Management, 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 that shall 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 Value Added Tax the following objects are exceptionally not subject to VAT: “Machinery, equipment and supplies which cannot be manufactured domestically and need to be imported for direct use in scientific research and technological development activities; machinery, equipment, spare parts, special-purpose means of transport and supplies which cannot be manufactured domestically and need to be imported for prospecting, exploring and developing oil and gas fields; aircraft, drilling platforms and ships which cannot be manufactured domestically and need to be imported for the formation of enterprises fixed assets or which are hired from foreign parties for production and business activities or for lease.”

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.

4. To The Extent That There Are Significant VAT Or Customs Issues That Arise If The Factory Imports And Owns The Raw Materials And Work-In-Process That Are Contract Manufacturing Specific, Please Let Us Know.

Raw materials and supplies imported for production of goods for export shall be subject to import duties and VAT and shall be entitled to refund of import duties and VAT corresponding to the ratio of exported goods on the basis of the levels of use of raw materials and supplies [Article 114, Circular No. 38/2015/TT-BTC in respect of raw materials and other supplies for production of goods for export].

According to Point c.5) of Circular No. 38/2015/TT-BTC dated 25 March 2015, enterprises that import raw materials for productions [“importing enterprise”] and then sell their products to another enterprise to directly produce or process products for exports [“exporting enterprise”], after the actual export by the exporting enterprise the importing enterprise is entitled to request for refund of import duty tax equivalent with the materials that the exporting enterprise already used.

5. Are There Any Additional Issues Taxpayers Should Be Aware Of In Connection With Locally Procured Raw Materials And/ Or Finished Goods That Are Sold In The Local Market?

Circular No. 128/2013/TT-BTC on guiding imported goods export, import, processing, liquidation and consuming products of foreign invested enterprises dated 10 September 2013 stipulates that:

– In the case of the sale of domestic goods to an export processing enterprise, the seller shall be exempt from export duties.

– In the case of the purchase by an export processing enterprise of domestic goods for export (without conducting any production activity), the export processing enterprise must pay export duties.

– In the case of the purchase by an export processing enterprise of domestic goods for the production of goods for export, the export processing enterprise shall be exempt from export duties upon export.

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 which earn income. A resident establishment of a company overseas can take different forms that are listed as well in the Law on Corporate Income Tax.

This list includes a representative in Vietnam in a case where it has authority to enter into contracts in the name of a company overseas or a representative which is not competent to enter into contracts in the name of a foreign company but regularly delivers goods or provides 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.

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

Also 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 rise 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?

Article 1.4.b of Decree No. 24/2007/ND-CP (as amended and partially superseded by Decree No. 218/2013/ND-CP and Decree No. 12/2015/ND-CP) (“Decree No. 24/2007/ND-CP”) stipulates that a business is considered as resident establishment if it takes the form of a “location of supervisory activities for construction, construction works, or installation and assembly works.

If the principal wants to be safe regarding the avoidance of a PE, he might establish a Representative Office [“RO”] to perform the tasks named above. This is possible as long as the RO is not doing business. Article 13.1.c of Decree 45 on Representative Offices allows to “monitor and activate the implementation of signed contracts of the foreign business entity or foreign tourism enterprise for which it acts as a representative.” This covers the activities named above.

According to Article 37 of the Commercial Law and Article 5 of Decree 45 any foreign business entity or foreign tourism enterprise which has lawful business registration in accordance with the law of the foreign country and has operated for at least 05 (five) years shall be issued with a license to establish a representative office in Vietnam.

5. To What Extent Do The Answers To These PE Questions Change If The Factory’s Sole Activity Is Acting As A Contract Manufacturer For A Single Principal.

This constellation is not directly addressed in Vietnamese Laws. Contract manufacturing for only one single principal might give rise to a PE if tax authorities interpret the business activities of the overseas company according to Article 1.4.b of Decree No. 24/2007/ND-CP [pls. see above under point II.4] as a form of “installation and assembly works”.

6. Assume An Extreme Set Of Facts Where In Addition To The Factors Set Forth Above The Principal Has A High Degree Of Control Over The Operations In The Factory. Assume For Instance That The Principal Hires The Employees And Its Employees In The Factory Have The Power To Stop Production To Correct Problems. At What Point Does The Principal’s Control Over The Factory Activity Give Rise To A PE?

We refer to point II.5 above. These business activities will be even more likely be considered as PE.

7. 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’s basis.

The Ministry of Finance has released a Circular on Transfer Pricing which requires companies to make a full self-assessment of their profits, calculated on an arm’s length’s basis. According to this circular, companies will be required to declare the related party transactions in a prescribed for 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’s terms.

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

III. Local Incentives

In many of your jurisdictions, the government grants tax incentives or holiday for taxpayers that invest in the local economy and manufacture within the country. In many contract manufacturing structures, however, the contract manufacturer receives a cost plus return, and the contract manufacturer generally does not own intangibles.

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 based on Chapter V of Decree No. 24/2007/ND-CP on Corporate Income Tax.

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 is not allowed to 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?

This case is not addressed by the Vietnamese tax law.

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

Chapter V of Decree No. 24/2007/ND-CP provides detailed regulations on all CIT incentives.

Investment projects in certain industries and sectors listed in an appendix to the Investment Law shall be entitled to incentives as well as projects employing average numbers of employees, that are defined in Article 41.

According to the project type and the region of its location the tax rate can be 10, 15, 20 or 50 per cent.

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 bear 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. If There Are Locally Owned Product Intangibles, Is There A Capital Gains Tax On The Sale Of These Intangibles To A Foreign Owner And If So What Is The Rate? Assume The Local Contract Manufacturer Sells The Intangibles For Cash And Then Declares A Dividend Equal To The Amount Of The Sales Proceeds. Any Dividend Withholding Tax? If So, What Is The Rate? If There Is A Capital Gains Tax Or A Dividend Withholding Tax, in Addition To Discounted Cash Flow, What Other Valuation Approaches, If Any, Are Commonly Used? Are There Other Strategies For Reducing These Costs?

The taxation of the sale of intangibles is addressed in Article 32 of Decree No. 133/2008/ND-CP as amended by Decree No. 120/2014/ND-CP on technology transfer. This norm provides that the transferor has the obligation to pay tax on the amount of money generated from the technology transfer.

2. 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.

3. Assume The Local Entity That Historically Manufactured Goods On A Buy/Sell Basis Also Performs R&D And Marketing Activities. In Connection With The Conversion, Should These Activities Be Moved Into Separate Subsidiaries? If So, What Additional Issues Arise In Connection With This Conversion?

Please see point IV.2.

4. 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. Please see point 2.7 for further information on the Circular on Transfer Pricing.

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

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