massmann – Page 8 – Duane Morris Vietnam

September 27, 2016September 27, 2016 by Dr. Oliver Massmann

Successful business in Vietnam – What you must know and do :

What are the benefits for foreign enterprises when they buy goods in Vietnam?

Vietnam offers young workforce and the wages that are roughly half those in China. Therefore, it is reasonable for Vietnamese goods to be far cheaper than other nations in the world. Moreover, not only are the prices low, the quality of Vietnamese goods is considerably high. With several Free Trade Agreements signed, including the Trans-Pacific Partnership, Vietnam has been improving its goods’ quality in order to increase its competitiveness in the global market. As a result, Vietnamese goods should be attractive to foreign enterprises.

What is special about Vietnamese companies and what makes them outstanding in comparison to other Asian companies?

In addition to young workforce and low wages as mentioned in the above answer, Vietnam also offers the long coastline from the North to the South of the country, which no other country in Asia has. This does not only provide the nation with excessive resources but also opportunities to promote the tourism industry. Moreover, unlike many developed countries in Asia such as China or Singapore, Vietnam is still at its developing stage. This also contributes to the attractiveness of the market here.

What is special about the Vietnamese market and its structure?

Although Vietnam is an effervescent market, the production of some types of goods still does not meet the demand. If the investors study this market well and focus on investing into these sectors, it is likely that they will succeed.

How can foreign companies get in contact with Vietnamese companies? Do you think it is necessary to use the support of a consultant company for example?

Foreign companies should search for contacts of Vietnamese ones online or via some reliable webpages such as https://dangkykinhdoanh.gov.vn/. Through this website, information regarding the founders, chief executive officers, their business lines and other information regarding companies in Vietnam could be found.

What do Vietnamese companies expect from their foreign cooperation partner?

Vietnamese companies, like the majority, seek for profit. As long as the cooperation follows the contract and results in profit, the Vietnamese companies’ expectations should be fulfilled. In order to do this, foreign investors should be able to fully understand the Vietnamese market as well its culture, strictly follow the law and provide great business plans.

If the right partner is found, the cooperation should be maintained in form of a contract or is a handshake enough?

It depends on the level of cooperation you wish to have. If you want to enter into a serious cooperation, for example, to do a business in Vietnam via an entity, although oral contracts are just as valid as written ones, a cooperation contract should be in writing, or that a contract be evidenced in writing (although the contract itself may be oral). Therefore, it is recommended that all cooperation should be signed under a legally binding contract.

Of what value is a contract in Vietnam in general and what options are available to enforce the content legally?

According to Article 401 of the Civil Code, a contract legally entered into shall take effect from the time when it is entered into, unless otherwise agreed or otherwise provided by law. From the effective date of the contract, contracting parties must mutually exercise rights and perform obligations as agreed. A contract may be amended or terminated as agreed by the parties or prescribed by law.

To enforce your contract in Vietnam, you should start by contacting the other party to see if she intends to perform and fulfill her part of the agreement. If the other party has not substantially performed on the contract after being provided notice, you may institute legal action for breach of contract. Before taking legal action, check the terms of your contract to see if arbitration, mediation or court proceeding is required. Even if not required, you may opt to enter settlement negotiations with the other party or see if the problem can be settled through mediation or arbitration.

Which place of jurisdiction should be included in the contract, should it be Vietnam or another country?

If one signing party is a foreign entity or partly owned by another foreign entity, the parties could opt to use foreign law as the governing law of the contract. In addition, regardless of whether one party is a foreign entity or not, the parties could decide to settle any dispute arising out of the contract by a foreign settling body. Having said that, implementation of the contract must still comply with Vietnam laws.

The legal situation in Vietnam is somewhat obscure for a foreign investor. What do you recommend foreign investors in this matter, so that they can focus on their business content?

It is a must that foreign investors ask all consultants in Vietnam whether they have a professional liability insurance according to international standards. Most of Vietnamese law firms have not. Their professional liability insurance is capped at low levels and subject to Vietnamese courts, that’s useless because Vietnamese courts aren’t reliable.

Before you sign any services agreement with any legal advisor / law firm/ consulting firm in Vietnam, please do the following: COPY PASTE THIS REQUEST IN YOUR EMAIL TO THEM AND WAIT FOR THE REPLY:

“Dear Ms/Mr ….,

Please send us the valid evidence that your company has an international standard and enforceable offshore professional legal liability insurance with dispute resolution offshore Vietnam and not subject to Vietnamese court or Vietnamese arbitration.

We would be happy to cooperate and retain your services if you can prove that your company is professionally insured to provide legal services to international clients according to international standards.

Thank you very much

Best regards”

Do you recommend an intercultural training to foreign entrepreneurs in advance?

Every market has its own distinctive features and the Vietnamese market is not an exception. Moreover, as the Vietnamese and foreign cultures are considerably distant, it can be expected that there may be several differences between the two markets. Therefore, familiarize oneself with the market before investing through intercultural training programs can always be a great solution to foreign entrepreneurs. In this way, not only will these people learn about the Vietnamese culture, but they will also learn about how to do business in this country.

A good friend of you wants to produce in Vietnam and export Vietnamese products into the foreign market. What are your recommendations? Whatshould he consider in order to succeed?

First of all, it should be noted that the Vietnamese market is open to foreign investors. Also, although the free trade agreement between Vietnam and EU has not been signed, the negotiation has already been finalized. Therefore, this could be another advantage to foreign SMEs. However, as mentioned, the Vietnamese law could be considerably ambiguous. Consequently, it is recommended that these SMEs strictly follow the law and consult legal agencies for appropriate advices. Also, cultural features can either be an advantage or a disadvantage. If a company knows how to utilize the cultural differences appropriately, that company is likely to succeed in the Vietnamese market. Otherwise, these differences can become obstacles to them. As a result, intercultural training programs should also be considered.

Please contact Oliver Massmann under omassmann@duanemorris.com; in case you have questions on the above. Oliver Massmann is General Director of Duane Morris Vietnam LLC.

August 31, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann LEGAL ALERT ON EMPLOYMENT ISSUES

This Legal Alert is prepared based on recent official and unofficial discussions with the Ministry of Labor, Invalids and Social Affairs of Vietnam (MOLISA) and its in-charge persons in various meetings/seminars on labor laws of Vietnam.

We highlight below key employment-related issues discussed for your information and specific actions, where necessary.

Proposed Amendments of the Labor Code

The MOLISA is working on a draft that amends a number of articles of the Labor Code to reflect TPP and other international treaties and correct shortcomings of the current Labor Code. New issues including setting up independent trade unions, calculation of minimum salaries, working time. It is anticipated that the new Labor Code will be issued in late 2017.

Recommendations/Notes: We will keep you updated of proposed changes to the Labor Code.

Minimum Salaries

According to the MOLISA, there will be an increased range from VND180,000 to VND250,000 (equivalent to approximately US$8-12) of minimum salaries in 2017.

Recommendations/Notes: Please prepare for this inevitable situation, especially with respect to your business plan for the year of 2017.

Work Permits (WP) for Foreign Employees

Under the Labor Code, only experts; managers, executive directors and technical employees are permitted to work in Vietnam.

One of key considerations is that the concept of managers who are permitted to work in Vietnam are now limited to the narrowly defined ‘managerial positions’ under the Enterprise Law of Vietnam (EL). As such, only few people qualify for managerial positions (e.g. – members of the Members’ Council, general directors or other individuals have authority to enter into transactions on behalf of the relevant enterprises) pursuant to these enterprises’ charter (or the articles of association in other jurisdictions).

According to the MOLISA, a new circular guiding WPs will be issued soon.

Recommendations/Notes: In order to recruit a foreign manager who unfortunately disqualifies the managerial position criteria, the employers often expand managerial position definition in its charter or persuade the DOLISA, the issuing body of WPs, to accept them as ‘expert’ who in turn need only to satisfy general conditions (e.g. – acknowledged by the head quarter as expert; having obtained bachelor degree or equivalent; and having had at least 3 years of experience in relevant industry).

Overtime

In response to request for additional overtime hours, the MOLISA confirms that the amended Labor Code will deal with this issue. The specific overtime hours vary by industry and subject to agreements between employees and employers.

Social Insurance

As of 1 January 2018, all employees having labor contract term from 1 month or more including foreigners working in Vietnam must pay compulsory social insurances. However, according to the MOLISA, Vietnam is negotiating with some countries to relax the above rule given more financial burden to be shouldered by foreign invested enterprises. For example, Vietnam and Germany have basically reached in-principle agreements on possible exceptions to the above rule.

Recommendations/Notes: From a financial perspective, the payment of social insurance of expatriates may increase more burdens for enterprises. Please take into account this type of payment when calculating benefits payable to foreign employees and building up your business plan for the year of 2017.

Payments of Compensations under Training Contracts

As a matter of practice, a number of foreign invested enterprises send their local staff abroad for training. In exchange, the relevant employee agrees to enter into a training contract which requires him/her to work for the employer for a fixed period of time following his/her completion of the training courses.

In this regard, the Labor Code makes it pretty clear that any employees who terminate labor contracts illegally (either not having termination grounds or failing to send termination notice on time). Nevertheless, the law is silent on whether an employee who has terminated his/her labor contract in accordance with the laws will still be subject to reimbursement of training fees.

According to the MOLISA, employees are still required to reimburse training costs under training contracts regardless of whether they terminate labor contracts legally or not.

Recommendations/Notes: It is of utmost importance that the employer must have a well-drafted and detailed training contract at the outset. Actual [and reasonable] costs that the employer may incur for the benefits of the employee during the training period should also be clearly stated in the training contract. If not, the employee will stick to the fixed amount as agreed in the training contract to limit its reimbursement only.

Employment of Local Staff by Offshore Entity

As a matter of practice, many offshore entities including parent companies of FIEs in Vietnam seek to employ local staff to work on either a seasonal or long-term basis. The Labor Code is silent on whether a labor contract governed by Vietnamese law can be entered into between parties. In such absence, a provision of Circular 30 guiding the Labor Code on labor contracts dated 25 October 2013 makes a list of persons who can act on behalf of the employers. Unfortunately, there is no reference to a person who can act on behalf of the offshore entities. According to a senior expert of the MOLISA, such absence would mean a No for a direct labor contract between offshore employers and local employees.

Recommendations/Notes: A number of offshore entities seek to circumvent the above restrictions by entering into:

(i). an individual service/consultancy contract with the local employees;

(ii). a professional service contract with a local partner under which the local employees will work for the offshore entity; or

(iii). a labor outsourcing contract with a labor outsourcing company.

Each of the above options presents its pros and cons and care should be taken in adopting specific plan. For example, direct involvement of local employee may result in a permanent establishment status under tax laws.

Change of Types of Labor Contract

Vietnamese law prohibits employers to enter into more than two fixed term labor contracts with each not exceeding 36 months from the signing date. The third labor contracts in such case must be a non-fixed term.

A number of employers seek to avoid this restriction (i.e. – entering into non-fixed term labor contracts with employees) by first terminating fixed term labor contracts upon their expiry, giving a temporary suspension of works for employees and then signing a new fixed term labor contracts.

In this respect, the MOLISA and the Supreme Court of Vietnam opine that such an arrangement can be challenged because a real termination must result in completion of all related works including return of social insurance books, employees’ books and settlement of all benefits, etc.

Please do not hesitate to contact 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!

August 26, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann – Legal Alert TRADING AND DISTRIBUTION BY FOREIGN INVESTED ECONOMIC ORGANIZATIONS WHAT YOU MUST KNOW:

Status

Following the issuance of the Investment Law (2014), the Government of Vietnam is speeding up the drafting of a new decree (the Draft Decree) guiding trading and distribution of foreign invested economic organizations (FIEOs) in Vietnam. The Draft Decree, once issued, will replace Decree 23 on trading and distribution of foreign invested enterprises dated 12 December 2007 (Decree 23).

What is new in the Draft Decree?

Below are some new features introduced by the Draft Decree

[Effective] expansion of business lines to be subject to baby permits;

Demerger of baby permits from the investment registration certificate (IRC);

Delegation of the licensing authority with respect to issuance of the baby permits to provincial department of industry and trade (DOIT);

Setting out circumstances where FIEOs are exempt from baby permits;

Clarification of criteria for establishing retail outlets including economic needs test (ENT);

More detailed licensing process.

Detailed comments on the Draft Decree

General understanding of baby permit requirements

For a general understanding, for some specific business sectors, the Investment Law requires foreign investor and their local companies to satisfy 02 layers of conditions before officially entering the market. The first one is investment conditions (điều kiện đầu tư) and the second being business investment conditions (also know as business condition or baby permit), (điều kiện đầu tư kinh doanh). Their major differences are presented in the below table:

Criteria	Investment Conditions	Business Conditions
*Function*	Market access conditions applicable to foreign investment	Professional conditions in order to actually conduct business or investment activities
*Time of application*	Before investment in Vietnam	After investment in Vietnam
*Applicable Entities*	Foreign investors and FIEOs with 51% or more foreign ownership (if acting as an investor in another entity)	Basically, all FIEOs and local companies.
*Forms*	Investment registration certificates or ‘approval’ of the DPI in case of formation of new entities or acquiring existing local companies respectively	Sub-licenses such as licenses, certificates, etc. In case of trading and distribution by FIEOs, it is the approval for sale and purchase of goods of the DOIT.
*Relevant Authority*	DPI/industrial zone authorities at provincial levels.	State bodies of many levels. In case of trading and distribution, the DOIT

Expanded coverage of baby permit requirements

The Draft Decree makes a specific list of ‘purchase and sale of goods’ and ‘activities directly related to the purchase and sale of goods’ by FIEOs, namely:

Trading (import and export) rights;
Distribution;
Commercial promotion services
Commercial intermediary services
Goods leasing services
E-commerce services
Logistics services;
Commercial assessment services
Goods auction services
Goods and service bidding services
Commodity exchange
Other activities directly related to the purchase and sale of goods’.

For the purpose of this note, the above services/activities are collectively referred to as ‘Conditional Businesses’

Comparing with Decree 23, albeit referring to a variety of trading related activities (e.g. – advertisement, promotion, etc.), mainly subjects trading and distribution by FIEOs to baby permits. Hence, with activities being specified as above, it is more likely that licensing authorities would request all Conditional Businesses to be subject to baby permits. If this is the case, this fact can be seen as a ‘one step back’ in terms of relaxing licensing process for foreign investment. Specifically, licensing authorities will be given discretion in granting baby permits for Conditional Businesses which are in fact fully opened to foreign investment.

Demerger of baby permits from the investment registration certificate (IRC);

Previously, investors applying to setup a trading/distribution FIE need only to obtain an IRC which simultaneously serves as a baby permit. However, with the delegation of the IRC licensing authority from the provincial people’s committees to DPIs under the Investment Law, it is still unclear as to licensing process for issuance of baby permit.

The Draft Decree gives the answer. DPIs and the DOITs are responsible for the IRCs and baby permits respectively. DOITs are required to obtain approvals of the MOIT and, under some circumstances, relevant State bodies. This new licensing process, when implemented, will effectively create a 03-layer approval for FIEs which are (i) IRCs at DPI; (ii) baby permits at DOIT and actually approvals at MOIT. This is even more critical because in order for the DPI to issue IRCs including Conditional Businesses they, as a matter of practice, often seek the DOIT/MOIT’s greenlight. As such, 04 rounds for approvals would be required for some service sectors that Vietnam has been open to foreign investors for years under its respective international treaties.

Issuance of a decree on trading rights and distribution activities of foreign invested economic organizations (FIEOs) in Vietnam.

Delegation of the licensing authority with respect to the baby permits to provincial department of industry and trade (DOIT);

As said, the DOIT will be responsible for issuing baby permits. In doing so, it must first seek greenlights of the MOIT.

Baby Permit Exemption

There are roughly 04 possible scenarios where FIEOs are exempt from baby permits

a.FIEOs import/export/process or dispose products in accordance with its registered businesses or in combination with their registered services;

b.FIEOs already licensed to conduct trading and distribution rights;

c.FIEOs already licensed to provide logistics and commercial assessment services; and

d.FIEOs with foreign owner holding not more than 35% voting shares (in case of joint stock companies) or 35% charter capital or a lower voting ratio stipulated in charter (in case of limited liability companies).

With respect to FIEOs in item (b) and (c) above, it is not clear as to whether such exemption applies to FIEOs established before or after the effective date of the Draft Decree.

Retail Outlet Criteria

Retail outlets by FIEs are still subject to ENT criteria except for:

a.The first retail outlet;

b. A retail outlet other than the first one having area of less than 500m2 in commercial centers; or

c.Retail outlets other than the first one having total area of less than 500m2 in the same commercial centers.

The Draft Decree introduces more specific metrics to measure ENT criteria including geographic size of the relevant area, number of existing retail outlets, possible impacts of retail outlet to be applied on the stability of market, population density and possible contribution of the retail outlets to the socio-economic developments of the area.

Licensing Process

FIEOs send the application file to the licensing authority for issuance of baby permits per post, online or direct submission.

The licensing period varies by nationalities of the investors/FIEOs. For example, investors from jurisdictions which have entered into international treaties with Vietnam on market access, the period for the MOIT and other State bodies to give opinions will be 07 working days only. Other investors (e.g. – investors from BVI or other tax heavens) may suffer a 15-day licensing period. The direct licensing authority (e.g. – the DOIT) will issue baby permits within 05 days from the date of receipt of greenlights of the MOIT and other relevant State bodies, if any. In case of refusal, explanations must be given to the applying entities.

***

Please contact Oliver Massmann under omassmann@duanemorris.com; in case you have questions on the above. Oliver Massmann is General Director of Duane Morris Vietnam LLC.

August 12, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann WTO Dispute Shrimp Case Agreement reached

On 18^th July 2016, the United States (US) and Vietnam reached an Agreement on the Imposition of Anti-dumping Duty on Certain Frozen Warm-water Shrimp from Vietnam to resolve two long standing WTO disputes brought by Vietnam: United States – Anti-dumping Measures on Certain Shrimp from Vietnam (DS404) and United States – Anti-dumping Measures on Certain Shrimp from Vietnam (DS429).

The history of these disputes could be traced back to 31^st December 2003, after the very first anti-dumping case against Vietnam carried out by the U.S. in June, 2002 when the Vietnamese fishing industry had to confront another anti-dumping petition against certain frozen and canned warm-water shrimp imported into the U.S. by the U.S Shrimp Trade Action Committee, an ad hoc representative of the U.S. Southern Shrimp Alliance.

In this case, Vietnam was not the only respondent but there were five other countries including Brazil, Ecuador, India, Thailand and China. The case was investigated by the US Department of Commerce (DOC) and the US International Trade Commission (ITC). According to the ITC, shrimp imports account for eighty-seven percent of the one billion pounds of shrimp consumed in the U.S. annually.[1] Of that, shrimp imports from the six countries in the petition make up seventy-five percent of the total shrimp imports into the U.S. market. According to the petitioner, the alleged dumped products from these countries caused the price of the U.S. shrimp harvest to decrease by fifty percent from 2000 to 2002, falling from $1.25 billion to $560 million;[2] thus the U.S. shrimpers could not compete, leading to nearly 70,000 job losses in the shrimp industry within the eight states.[3] The DOC then initiated its dumping investigation on 8 January, 2004.

The DOC again upheld its conclusion from the Catfish case that Vietnam is a non-market economy (“NME”) after examining six criteria prescribed in the Tariff Act of 1930 in determining whether a country operates on market economy principles. Upon determining that Vietnam is a NME, in order to determine the normal values and export values of Vietnamese fish, the DOC had to find “an economically comparable ME that is a significant producer of comparable merchandise”[4] that could substitute for Vietnam’s costs of production. In this case, Bangladesh was chosen as a surrogate country.

The US utilized zeroing method to determine dumping margin in the case at hand. As a matter of general understanding, zeroing referred to the practice of some WTO Members in calculating dumping margin by comparing weighted-average normal value to individual export prices. Under this methodology, the difference between normal value and export price was calculated per transaction. Positive margins, i.e., the export price is lower than the normal value, were taken as is. However, negative margins, i.e., the export price is higher than the normal value, were counted as zero. Zeroing drops transactions that have negative margins, thus resulting in higher overall dumping margins and as a matter of fact, higher applied anti-dumping duty.

In contrast with the E.U.’s prospective zeroing system, under the U.S. retrospective system, the anti-dumping duty imposed at the end of the original investigation following the calculation of the dumping margin only serves as a temporary estimation for future liability.[5] The actual payment of anti-dumping duties will be determined during the annual administrative or duty assessment reviews. As mentioned above, zeroing increases the level of dumping margin. When used in the retrospective system, the impact of zeroing is amplified as it adds an element of uncertainty. The importer of goods subject to anti-dumping order only has an estimate of its extra duty. He will be unwilling to import goods from the subject exporter because of the possibility of a higher duty when the U.S. authority conducts the administrative review.[6]

During the process, several companies were investigated. The mandatory defendants were Minh Phu Seafood Corporation, Kim Anh Limited Company, Minh Hai Joint Stock Seafoods Processing Company and Camau Frozen Seafood Processing Import – Export Corporation (Camimex). Some voluntary defendants that could be mentioned are Cai Doi Vam Seafood Import Export Company, Can Tho Agriculture and Animal, Products Import Export Company; Can Tho Animal Fisheries Product Processing Export Enterprise, Cuu Long Seaproducts Company, Danang Seaproducts Import Export Company. However, Kim Anh Limited Company, one of the compulsory defendants, refused to cooperate due to abundant amount of data that needs to be collected, resulting it being subject to the very high country-wide rate.

Eventually, after over a year of investigation, ITC announced that Vietnamese shrimp are sold at dumping prices and the import of this shrimp is detrimental to the shrimp industry of the US. As a result, Vietnamese shrimp were subjected to anti-dumping duties at varying rates depending on the results of the investigation. In the second and third administrative reviews, the DOC decided to impose an insignificant duty rate of 0-0.01 percent on mandatory respondents, but not on voluntary respondents. These voluntary respondents were subject to the initial rate of 4.57 percent. The country-wide rate was the same as in the initial determination, i.e., 25.76 percent.

These results have raised a lot of controversial responses. Beside Vietnamese companies whose rights and benefits were directly affected by this decision, some US parties have also shown disagreements towards this announcement. Mr. Adam Sitkoff, Executive Director of Amcham Vietnam in Hanoi, stated during his interview with VnExpress that the duties applied on Vietnamese shrimp were unreasonable as Vietnam, similar to other shrimp exporters, utilized the most advanced shrimp production methods, something that American shrimp providers did not have. As a result, the Vietnamese shrimp prices became lower, which is not a sign of dumping.

For fear that the DOC would continue using the same calculation methodology used in the second and third administrative reviews, resulting in unfair treatment for Vietnamese enterprises in the fourth administrative review, the Vietnam Association of Seafood Exporters and Producers (“VASEP”) and the Vietnam Chamber of Commerce and Industry (“VCCI”) recommended the Government to initiate the WTO dispute settlement mechanism by first holding consultation with the U.S. on this matter on 01 February 2010. The consultation failed and the Government of Vietnam requested the establishment of a panel on 07 April 2010. Vietnam challenged, inter alia, “(i) the application of zeroing to individually-investigated respondents in the second and third administrative reviews, and its continued application in the subsequent reviews; (ii) the U.S zeroing methodology ‘as such’; and (iii) the use of the zeroing methodology to calculate the “all others” rate in the second and third administrative reviews.”[7] On 11 July 2011, the Panel issued its report of the case.

The Panel ruled in favor of Vietnam that the DOC’s zeroing methodology in determining dumping margin for mandatory respondents in the second and third administrative reviews was inconsistent with Article 2.4 of the Anti-Dumping Agreement (“ADA”). Moreover, the Panel also ruled that the using of zeroing in any administrative review constituted a violation under Article 9.3 of the ADA and Article VI:2 of the GATT 1994.[8]

This ruling of the Panel is considered to be consistent with the decisions of other WTO panels and Appellate Body in previous cases regarding the U.S. zeroing methodology. Although the US never opposed to this decision, they did continue applying zeroing methodology for subsequent administrative reviews and the first sunset review.

The case would not have been a success without the active participation of several associations, including VASEP and the VCCI. From the very beginning, these associations did evaluate the case from Vietnam’s viewpoint and in accordance with international practice. Then, they recommended the government to start the proceedings based on convincing arguments, as well as propaganda to gain support from the public. VASEP and VCCI also contributed a lot to the success of the case by proposing experienced international trade lawyers.

Although the case is among more than 480 WTO disputes since 1995, US – Shrimp marks a significant and critical change in Vietnam’s use of WTO dispute settlement mechanism, leaving a lot of lessons learned by Vietnamese enterprises and associations.

On 20^th May 2016, upon Vietnam’s request, the DOC has implemented procedures to comply with the WTO Panel’s decision. Eventually, on July 18^th, 2016 Vietnam and the US finally signed an agreement, according to which a Vietnamese exporter of frozen warm-water shrimp – Minh Phu Group – will no longer be subject to the antidumping duty order. In addition, certain domestic litigation will be resolved and duty deposits will be refunded to the Minh Phu Group. The antidumping duty order will remain in place for all other exporters of warm-water shrimp from Vietnam.

This move shows negotiation efforts of Vietnam and the US’ goodwill to respect its WTO obligations. It also reflects the US’s goodwill to strengthen its multi-faceted cooperation with Vietnam, especially in the context that the two countries participate in the Trans-Pacific Partnership (TPP) agreement.

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 !

[1] U.S. Slaps Tariffs on Shrimp from China, ‘Vietnam: Commerce Department Acts after Complaints from American Harvesters’, Chicago Sun Times, 2004, p. 62.

[2] Burnett, Richard, ‘Struggling U.S. Shrimpers File Anti-dumping Petition: An Industry Group Says Six Countries Sold Shrimp at Artificially Low Prices’, 2004, http://articles.orlandosentinel.com/2004-01-01/news/0401010416_1_shrimp-petition-industry).

[3] Southern Shrimp Alliance, Press Release: Shrimpers Hail Finding of Dumped Shrimp from China and Vietnam, 30 November 2004, http://www.shrimpalliance.com/Press%20Releases/ 11-30-04%20DOC%20Final.pdf.

[4] Section 773(c)(4), Tariff Act of 1930.

[5] Chad P. Bown and Thomas J. Prusa, US Anti-dumping – Much Do about Zeroing, 2010, p.30.

[6] Ibid., p.33.

[7] http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds404_e.htm.

[8] Panel Report, US – Shrimp, para. 8.1.

August 11, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann Equitization Quality over Quantity

VIETNAM – Comment on a recent draft from the Ministry of Finance on strategic investors purchasing stakes from equitized state-owned enterprises (SOEs)

Author: Oliver Massmann – Chairman of the Legal Sector Committee – European Chamber of Commerce in Vietnam

On 4th August, the Ministry of Finance announced a Draft Decree on converting 100% state-owned enterprises (SOEs) into joint stock companies, which will replace Decree No. 59/2011/ND-CP, Decree No. 189/2013/ND-CP and Decree No. 116/2015/ND-CP.

Although the currently in force Decrees have brought positive results in the re-structuring of state-owned enterprises since the beginning of the process in 2011, the restructuring quality has proven to be inefficient considering the small percentage of private participation in the company’s charter and management after the privatization. In addition, many big corporations with long financial history will need much more time and have to follow specialized rules to complete the privatization procedure. Many strategic investors have thus found it less attractive to participate in the process.

In order to tackle the above issues and bring substance to the equitization process in the context of new Enterprise Law, Investment Law, etc., there is a need to introduce a new Draft Decree on converting 100% state-owned enterprises into joint stock companies.

In particular, the draft’s Article 6 stipulates that a strategic investor must have the same business sectors as equitized SOEs. In addition, the strategic investor must have at least two years of profits (as of the time for buying stake of SOEs). Moreover, its equity in the latest financial report (which has to be audited by an independent auditing firm) must be sufficient for purchasing the stakes that it registers to buy.

Under the current regulations in Decree 59/2011/ND-CP, the strategic investor is only required to have sound financial capacity, and have a written commitment endorsed by an authorised agency. The commitment must state that after SOEs are equitized, the strategic investor must support SOEs in terms of technology transfer, human resource training, corporate governance, material supply and development of output markets.

This new stricter regulations in the draft will affect foreign firms who wish to buy stakes from SOEs and become strategic partners. In particular, foreign firms must be aware that they are not allowed to freely invest in any SOEs that have business activities not relevant to what they are doing, despite their strong interest in those sectors. This is to prevent cases where inexperienced foreign investors get into the management of the SOEs without having track record ability to manage them, and for example, aim at targeting Vietnam as a trial market for their business expansion.

In addition, we believe that the Government is showing its strong effort to select eligible investors to improve the equitization quality, and to make sure that the investors have proven financial status to efficiently recover the operating at loss status of SOEs. With stricter requirements, the Government will be able to attract investors with serious investment targets and with ability to contribute to the long-term development of SOEs.

Considering these new proposed stricter requirements, it is highly recommended that foreign investors conduct sufficient due diligence on the targeted SOEs, prepare themselves ready in terms of financial capacity and proven management skills, obtaining knowledge about Vietnam’s stock exchange market as well as regulations on bidding to come to a smart investment decision. We expect that with more substantive equitization, foreign investors will have more voice in the SOEs, via which being able to adopt development plans that serve the equitized companies’ future business outcomes, not any individual’s benefits.

THANK YOU !

July 26, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann Impact of WTO Accession – An analysis

Question: How would you generally describe the impact of the Vietnamese WTO accession on the country?

Answer:

Generally speaking, the WTO accession has created more opportunities and advantages than disadvantages to the Vietnamese economy.

However, without appropriate macroeconomic policies and necessary reforms, these opportunities sometimes did become challenges to Vietnam.

Accordingly, appropriate policy measures following the accession, especially in training and education, migrations, regional and social protection policies were of great importance.

– Macroeconomic impacts:

+ When Vietnam joined the WTO, the world was facing the Great Recession. After the accession, impacts from the global market have become greater due to close connections with other markets, creating more risks to the Vietnamese economy. However, the increase in economic growth is also considerable due to great amount of investment.

+ The import of the heavy industry in Vietnam accelerated after the accession.

+ Vietnam switched from exporting primary commodities to exporting goods produced with high technologies.

+ Since the accession, Vietnam has diverted from agriculture-driven economy to focus more on developing industrial sectors. Areas requiring high technologies have become very attractive.

– Impacts on agriculture:

+ Although the share of agriculture in GDP in Vietnam is decreasing, this field remains crucial to the Vietnamese economy. Agriculture is facing several issues after the accession including quality and competitiveness.

– Impacts on the society:

+ The WTO accession has created several working opportunities for unemployed people.

+ It has also lessen the gap between the rich and the poor and eradicated several gender inequlities in Vientnam.

+ The number of juvenile laborers has largely decreased.

Question: How would you describe the impact of the accession on politics and the economy of Vietnam?

Answer:

a) Impact on the Economy:

+ Positive impacts on economic growth:

Trade liberalization was promoted following the accesion.
Market access was also improved for the country’s exports.
After Vietnam joined the WTO, foreign capital flows strongly poured into the economy and improved the economic growth of Vietnam.
Import clearly has a greater growth due to increase in investment as well as higher average income, allowing access to foreign goods.
Approximately 5.7 million jobs were created prior to the accession (2000-2006).
The annual growth rate of the economy of Vietnam gradually increased from 2001 until 2005 and remained stable, reaching over 8% until 2007.
Limiting poverty. For instance, in the Red River Delta area, the figure for poverty decreased from 62.7% in 1993 to 8.8% in 2006.

+ Negative impacts on economic growth: inequalities among the citizens

b) Impact on the Politics:

– Market opening and international economic integration has put Vietnam’s economy right at the door of opportunities and challenges.

– Vietnamese law has become more transparent and uniform.

– There has been a reduction in administrative procedure, creating flexibility in the market.

– WTO accession has laid a good foundation for Vietnam’s deeper integration into the world’s economy.

– The process of economic integration, particularly since Vietnam joined the WTO, however, revealed the immanent weaknesses of the Vietnamese economy.

– The current situation requires an effective import-export strategy to improve efficiency of resource allocation, improve competitiveness of the economy and macroeconomic stability.

– In this context, it is important to focus on macroeconomic stability, growth paradigm shift towards quality and efficiency as outlined in the Strategy of Social – Economic Development in the period from 2011 to 2020.

Question: In which domains was this impact particularly strong?

– One of the crucial terms of the WTO agreement is trade liberalization.

– After the WTO accession, Vietnam has made a commitment to open markets for services sector. Thus, Vietnam are obliged to open the market (allowing foreign investors to participate in the provision of services in Vietnam or to organizations and individuals in Vietnam) at least at the levels of the commitment. This is one of the main reasons leading to the rise in investment in this sector. Particularly high investment growth in the property business was derived from the transfer of capital from investors from risky markets to the emerging markets with higher returns.

– In the first few years of joining the WTO, the sector has the strongest investment growth in the economy was the property and business consulting services (an increase of 263.0% in 2007 and 15, 0% in 2008); market sectors open to foreign investment, such as finance and credit (up 87.4% in 2007 and 5.8% in 2008); transport, storage and communication (29.5% in 2007 and 5.8% in 2008).

– Growths of this sector are mainly due to the contribution of foreign investments and economic sectors outside the state.

Question: How important would you say is compliance to international trade law – represented through the WTO – in policy making in Vietnam?

Answer:

– WTO is a community which allows easier trading terms among countries with fewer barriers and this was reinforced by international trade law set forward by the WTO.

– Therefore, being in compliance with the international trade law is one of the crucial requirements in joining the WTO as it promotes the integration of the Vietnamese economy into the international economy and it also creates similar opportunities for Vietnam in order to further develop its economy.

Question: Would you say that organizations such as the American Chamber of Commerce or the European Chamber of Commerce in Vietnam gained more leverage in representing their interests through the legal WTO commitments?

Yes.

Part 2: Questions about a concrete policy case in Vietnam

Case description:

In February 2014, the Vietnamese Ministry of Finance set up and amendment draft to the Law on Special Consumption to impose a 10% tax on sugar-sweetened, non-alcoholic carbonated beverages. This caused resistance by different parties, such as the Ministry of Trade and in particular, the American Chamber of Commerce, representing foreign producers of soft drinks. One of the main arguments of the opponents to the tax was that Vietnam could violate its commitment to the principle of “national treatment” because 88% of the products that would be affected by the tax are foreign branded. In the monthly resolution of the government in July 2014 (Document Number: No 56//NQ-CP, point 8), the government declared to not include the proposed tax within the Law on Special consumption.

Letter of the American Chamber of Commerce to the Vietnamese Prime Minister:

http://36mfjx1a0yt01ki78v3bb46n15gp.wpengine.netdna-cdn.com/wp-content/uploads/2014/06/140602-Letter-to-PM-Nguyen-Tan-Dung-re-proposed-excise-tax-on-CSD-En.pdf

Questions:

Are you familiar with this case? Did you hear about it when it happened?

– Yes.

How would you generally describe this case? Is rather ordinary or more special?

The main reason that the Ministry of Finance proposed such amendment was its concern about the health impacts of sugar-sweetened, non-alcoholic carbonated beverages, such as causing diabetes, obesity, stomachache, gout or even cancer. Concern about health leading to the authority’s decision to impose higher special consumption tax rate is quite ordinary. Many other countries in the region such as Thailand or Cambodia also impose higher tax rate for certain types of beverages not good for public health. In Vietnam, goods such as beer, cigars or alcoholic beverages are also subject to very high special consumption tax rate.

Would you say that the claim of a violation of the principle of “national treatment” is justified?

I believe you are referring to Article III:2 of the GATT 1994. Generally speaking, this Article prohibits members from treating imported products less favourably than like domestic products once the imported product has entered the domestic market.
As you can see, the objective of this article is imported products vs. domestic products. The discrimination in this article is not a discrimination of nationality of investors. For your information, in the Vietnam’s market, most of sugar-sweetened, non-alcoholic carbonated beverages are produced or imported by foreign invested companies in Vietnam. All locally produced and imported goods are subject to this type of tax. However, I agree with the AmCham position paper that despite this equal application, the overall effect of the measure benefits local producers at the expense of foreign producers. Thus, a violation of the NT principle could be established.

Would you say that compliance to WTO law was one factor that caused the tax proposal to fail? If so, how important was that factor compared to others?

WTO has a dispute resolution regime for any members violating its commitments. If there is any dispute arising and the disputing parties have to go to the Dispute Settlement Body, it will not only harm trade relations but also political relations between the parties. Vietnam always wants to comply with the commitments it made for its own sake.

Would you say that the tax – if applied – could have justified a claim through the WTO dispute settlement mechanism?

Vietnam could use Article XX GATT 1994 to make its claim, but it will be hard for Vietnam to meet strict requirements under this exception, especially when there is no established scientific-based evidence available at that time.

***

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

THANK YOU !

July 22, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann Real Estate for Foreigners – Opportunities From New Policies

Since 1st July 2015 two new laws are in place, the Law on Real Estate Business and the Law on Residential Housing. Those laws allow foreigners to purchase, own and transfer real estate, houses and condos. On 10 September 2015, the Decree implementing the Law on Real Estate Business was adopted, shedding light on provisions of the related law. The law and its guidance have been in effect for one year and the market has witnessed positive improvement.

In general, there are two different possibilities to become owner of property in Vietnam. The first option is to make investment in construction projects of residential housing in Vietnam. The second option is to purchase the house or condo after its completion of construction.

The Law on Residential Housing provides that foreign individuals who are permitted to enter the country are allowed to own property in Vietnam. It grants even more rights to foreign individuals who are married to a Vietnamese citizen. In particular, once married to a Vietnamese, a foreigner is put in the same category with Vietnamese investors in the market and exercises the right to legally purchase and own property on a long-term basis.

Meanwhile, foreigners not married to a Vietnamese can only own houses for a duration of 50 years. After this period, the owner can require an extension of the ownership and the government will decide whether and for how long it will extend the ownership duration. Beside this 50-year limit, there are also other restrictions on the number of properties that can be owned by a foreigner according to the Law on Residential Housing.

As a result of these changes, Vietnam’s property market is heating up. According to the HCMC Real Estate Association, since the new laws were put into effect, more than 1,000 transactions were made by foreign clients to purchase properties in HCMC, while the were only 250 similar transactions made during the period of four years between 2009 and 2013 in the entire nation. Experts have predicted that 2016 would be another prosperous year for the Vietnamese real estate industry. The country is now considered to be one of the prime real estate investment locations in the world. With this development, there has never been a better time to invest in the property developments in Vietnam.

However, some problems still exist in the field. Until now, it has been announced that the Government will issue a detailed guidance on how foreign individuals become eligible to own property in Vietnam. This document is, however, not in place yet, despite the reputation of the new Housing Law and Law on Residential Housing.

Consequently, although the Vietnamese market is considerably attractive, foreigners are still hesitant to tap the opportunities from new laws as transparent guiding documents have not yet been released. In other words, the opportunities are clear but the Government has been quite delayed in materializing them for foreigners. It is reported that in the first half of the year, there are 25 new projects in real estate sector being licensed with total investment capital of more than USD600 million. In contrast with the busy M&A and new foreign investment in the sector, our own experience in dealing with our foreign client’s request to assist in the application for the red book shows that the licensing authority is still hesitant to grant such certificate. There are many reasons for this reaction, among those are lack of clear legal basis, verification of the nationality of foreigners as well as how to calculate the 50-year ownership.

Foreign investors being still cautious in searching for the market cycle, trying to conduct appropriate procedures as Vietnam is a new market for them, especially when information about the new law is limited, also explains limited transactions made by foreigners and foreign entities.

In conclusion, although the law has provided foreigners with opportunities to purchase house in Vietnam, there are still several obstacles that need to be tackled. The responsibilities lie both in the policy-makers, who are urged to create more transparent and detailed legal guidance, and the Vietnamese who are also required to create a convenient and efficient transaction system.

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

THANK YOU !

July 20, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann Solutions for Management of State Owned Enterprises

Comments to Vietnam Investment Review on a recent MPI draft decree supporting the establishment of a state-level management Committee to steer SOEs

Vietnam’s Ministry of Planning and Investment has announced a draft decree highlighting the need to establish a committee exclusively in charge of managing state-owned enterprises (SOEs). Currently SOEs are managed by different localities, ministries, and sectors.

It is expected that this Committee will manage up to 30 economic and corporations. It will also separate the state’s role of state management from the role as a trader and a producer.

Do you think that the establishment of this Committee is good for Vietnam’s economic now? Why?

I believe the establishment of a Committee exclusively in charge of managing SOEs, separating SOEs from their managing Ministries is a positive move of the Government.

The Ministries will not be put in a position when they have to adopt policies to regulate all enterprises within their managing authority and at the same time having to care about their interests in their SOEs. With the establishment of the Committee, the Ministries will have no chance or no incentive to be biased towards SOEs. In other words, all enterprises will be treated equally, regardless of whether they are SOEs or private.

The proposal to establish the Committee is extremely important, especially when SOEs are proved to continue operating at loss, investment activities are inefficient, state ownership capital is poorly managed,all leading to loss of state assets. I note that SCIC was established with the expectation to perform the same duties of representing state ownership in SOEs. However, SCIC is only an agency under the Ministry of Finance, which makes it not of equal leverage with and independent of other ministries and unable to regulate big SOEs. Thus, it is necessary to have another independent Committee to take over SCIC’s responsibilities.

In many nations, is this model applied?

This model is very similar to that in Germany when there was reunification between East and West Germany. The current model in China is considered as closely similar to the proposed one in Vietnam. However, instead of only establishing a Committee at a central level, meaning the Committee will not take over SOEs under provincial management, Ministry of Public Security, Ministry of National Defence, public enterprises and state-owned commercial joint stock banks, such Committee in China is established at all levels, from central to provincial one.

It could be a good start to have the Committee at central level. I recommend that after a trial period to supervise the efficiency of the model, it should be implemented at all provincial level under central management as well.

Do you have any recommendations?

According to the Draft Decree, chairman and vice-chairmen of the Committee will be appointed by the Prime Minister. I am concerned that ministers or vice-ministers of other ministries may have to take the chairman or vice- chairmen position of the Committee concurrently with their minister role. This will not be efficient. Instead, the management of the Committee must include both Vietnamese and foreigners. I recommend at least one foreign expert who has worked as manager for private companies and has a success track record should be member of this Committee. I can recommend some people if the Government could approve the budget for this position. I myself am very willing to be a member of the Committee to assist. The foreign expert must not necessarily be the decision-making person, but at least (s)he is there to give advice to the Committee.

Members of the Committee must be independent. They should not comprise of representatives from selected ministries who have certain interest in some SOEs, or else neutrality cannot be ensured. The Committee must act as an investor responsible for all investment activities of state capital before the Government. Only by doing so can SOEs play the same game with same rules as in the private sector.

In addition, it is important to create an operation regime for this Committee towards transparency for public supervision. Transparency is a critical issue, especially for a Committee which holds huge state assets worth around VND5.4 quadrillion.
Please do contact the author Oliver Massmann under omassmann@duanemorris.com if you have any questions. Oliver Massmann is the General Director of Duane Morris Vietnam and the Chairman of the Legal Sector Committee of the European Chamber of Commerce in Vietnam (”Eurocham” Vietnam)

July 13, 2016 by Dr. Oliver Massmann

ベトナムにおける弁護士　オリバー　マスマン：一般企業のM&A

ベトナムが2007年に世界貿易機関（WTO）の正式メンバーとなってから、ベトナムにおけるM&A活動は着実に成長しています。最初のベトナムにおけるM&Aの波は2008年～2013年の期間に起こり、総価格は150億米ドルと報告されています。日本の投資家は2012年におよそ12億米ドル相当の取引をしています。日本は量及び価値の両方の面に関して、ベトナムのM&A取引のための主要国です。これにより2012年にベトナムのM&A市場が51億米ドルの最高額に達しました。不動産はM&A取引の総価格が20件の取引で16億3700万米ドルまで達し、ベトナムの外国人投資家によるM&A価値は全体の69％を占め、最も魅力的な分野だと考えられています。小売、消費財、産業財及びサービス部門もまたM&A取引において高価値で非常に活発な分野となっています。

ストックプラス社が行った調査によると、ベトナムのM&A市場は2014年に大きく回復し毎週6件の取引が報告されています。2015年にはM&A取引が合計341件あり、価格が52億米ドルとなり、取引件数は23.1％増加し、前年と比べて取引価格が9.7％上昇しました。

株式会社のコントロールをする為には？

株式会社に対するコントロールを得るために最も一般的な方法は以下の通りです。

o 株式/定款資本の買収を通して

o 同社の既存株主から株式/定款資本を購入

o 証券取引所で上場企業の株式/定款資本を購入

o 公開株式購入オファー

o 合併を通して。2014年企業法では、合弁会社へ全ての合法的な資産、権利、義務そして利益を譲渡する方法で企業合弁する手順及び、合弁している企業の同時終了のための手順が述べられています。

o 資産の買収を通して

外国人投資家は地場企業の株式/定款資本の購入に対して制限があります。さらに、外国人投資家が当事者にあたる場合、合併または資産買収取引は法律で禁止されています。

公開企業の証券は取引前にベトナム証券保管振替機構にて登録及び保管しなければなりません。

株式数の購入に応じて、投資家は支配株主になることができます。ベトナム証券法に基づき、直接的、または間接的に発行機関の議決権株式を5％以上保有する株主は大株主になります。証券会社の払込み済み定款資本を10％以上保有する取引は国家証券委員会（SSC）の承認を求めなければなりません。

入札者が一般的に入札を行う前に疑問に思うこと

正式に可能性のある対象企業に連絡をする前に、入札者はに公に入手可能な情報をもとに事前評価を行います。入札者は次に対象企業へ連絡を取り、株式を購入/株式に応募する意向を表し、当事者はデューデリジェンスの前に機密保持契約を締結します。機密保持契約は原則的に取引を行う際の守秘義務を含みます。ベトナムの裁判所による機密保持契約の施行はまだ試されていないままです。

入札者の法的なデューデリジェンスは次の事項が含まれます。

対象企業やその子会社、関連会社及び対象企業の一部である他企業の企業詳細
偶発債務（過去または紛争中の訴訟）
雇用問題
対象企業の契約上の同意
対象企業の事業活動に関しての法定の承認及び許可
保険、税金、知的財産、債務及び土地関連の問題
独占禁止、腐敗及びその他の規制問題

主要株主の株式譲渡に対する制限

創立株主は唯一企業登録証明書の発行から3年以内に会社の別の創立株主へ株式を譲渡することが出来ます。その後、株式を自由に譲渡することができます。株主総会での内部承認が常に必要な際は以下の場合です。

企業が新株式を発行することにより資本を増加する場合。
上記3年以内に創立株主の株式譲渡する場合。

販売及び購入が株式発行に関して企業と売り手の間で直接契約している場合、販売価格は販売時の市場価格よりも低く、あるいは市場価格が存在しない場合は株式を売るための計画承認時の株式の簿価よりも低くなくてはなりません。さらに、国内外のバイヤーに販売価格が同じでなければなりません。

公開買い付けが必要になる時？

公開買い付けは以下の場合必要となります。

株式保有が無いあるいは25％以下の株式保有で、購入者が25％以上の株式を買収する企業の循環株の購入。
25％以上の株式を保有し、（購入者の関連者など）購入者がさらに企業の循環株の10％以上を買収する企業の循環株の購入。
25％以上の株式を保有し、（購入者の関連者など）購入者がさらに以前のオファーの完了日から1年未満に企業の現在の循環株の5～10％を買収する企業の循環株の購入。

金融派生商品を使用することによる利益構築に関するガイダンスはありません。さらに、入札者は公開買い付け期間中に株式を購入することや、購入権を外部提供者へ共有することはできません。

入札者は公開買い付けを電子新聞、新聞及び（上場企業の場合のみ）証券取引所の3連続版に、公開買い付けの登録に関する国家証券委員会（SSC）の意見を受理してから7日以内に公表しなければなりません。SSCが意見を提供し、入札者によって以下が公表された後に公開買い付けは実行されます。

入札を公開すること

申し込みタイムテーブルは以下の通りです。

入札者は株式を購入するため公開入札の書類を準備します。
入札者はSSCへ承認を得るために入札登録証を送り、同時に対象企業へ登録証を送ります。
SSCは7日以内に入札書類を確認します。
対象企業の取締役会は入札書類の受領後から14日以内にSSC及び対象企業の株主へオファーに関する意見を渡さなければなりません。
入札はマスコミへ公表されます。（法的要件ではありません）
募集期間は30日～60日間です。
入札者は完了してから10日以内にSSCへ入札の結果を報告します。

銀行や保険などの特定の分野における事業を行う企業は、異なるタイムテーブルを受けることができます。

対価の形と最低水準

ベトナムの法律に基づき、株式は現金、金、土地使用権、知的財産権、技術、技術的なノウハウやその他の資産を提供することにより購入することができます。実際に、買収は一般的に現金で行われています。

国営企業の完全買収の場合、株式購入の為の最初の支払いは該当株式の価格の70％以上で12ヶ月以内に残金を支払わなくてはなりません。

国営企業による株式の競売を含む譲渡において、購入者は対象企業の規定に含まれる入札日の最低5営業日前までに最低競売価格に基づいて購入予約の為、株式登録の価格の10％支払わなければなりません。

さらに、購入者は競売結果の発表10営業日以内に競売を行う機関の銀行口座へ株式の全報酬を譲渡しなれければなりません。

公開株式の場合、公開株式買い付け為に任命された証券代行会社による株式の支払い及び譲渡は政令58/2012/ND-CPに従って行われます。

企業の上場廃止

企業が自主的に上場を廃止する場合は、以下の書類を含む上場廃止に関する申請書を提出しなければなりません。

上場廃止のための依頼書
合弁会社の場合

o 株主総会で株式の上場廃止の承認

o 債券の上場廃止に関する取締役会の承認

o 転換社債の上場廃止に関する株主総会の承認

債券の上場廃止に関する（複数人から構成される有限会社の）社員総会または（1人有限会社の）企業のオーナーの承認。
証券投資ファンドに関しては、ファンドが持つ証券の上場廃止の投資家による議会承認。
公共証券投資企業に関しては、株式上場廃止の株主総会の承認。

上場廃止が主要株主以外の議決権の50％以上で可決された株主総会の決定によって承認される場合、上場企業は唯一証券の上場廃止をすることができます。

企業が自主的にハノイ証券取引所またはホーチミン証券取引所へ上場廃止を申請する場合、上場廃止に関する申請書類は株主または投資家の利益への対応策を含めないといけません。それぞれハノイ証券取引所またはホーチミン証券取引所は有効な申請書類の受領から10～15日以内に上場廃止の為の要請を検討しなければなりません。

企業の株式売却に関する譲渡の支払い

売り手が個人か企業かによって次の税金が適用されます。

キャピタルゲイン税。キャピタルゲイン税は資本に対する投資家の実際の利益、あるいはその資本を購入するための費用を支払う外資企業及び地場企業は20％の法人税が対象になります。しかしながら、資産譲渡が証券の場合は外資企業の売り手は総譲渡価格の0.1％の法人税が対象になります。
個人所得税。売り手が個人の居住者の場合、個人所得税は利益の20％が対象となり、もし資産譲渡が証券の場合販売価格の0.1％が対象です。所得税を支払う居住者は以下に定義された人です。

o 暦年内で183日以上ベトナムに滞在する人

o ベトナムで12ヶ月連続して滞在する人

o ベトナムで永住権を保有している人

o 課税年度中に賃貸契約に基づきベトナムで最低90日家を賃貸している人

売り手が個人で非居住者の場合、キャピタルゲイン税の有無に関係なく総譲渡価格の0.1％が個人所得税の対象となります。

上記の譲渡税の支払いはベトナムでは必須です。

規制当局の承認

投資家は下記のいずれかの場合、株式の出資及び購入の際に登録する必要があります。

対象企業が2015年投資法で言及された267の条件付き分野の一つである場合。
対象企業の定款資本の51％以上を保有する外国人投資家による株式の出資及び購入。（特に51％以下から51％以上、51％から51％以上になる場合）

対象企業が所在する現地の計画投資省では有効な登録申請の受理から15日以内に最終承認の発行をしなければなりません。しかしながら、実際にはこの手続きは特定中央当局の作業負荷及び不透明なガイダンスにより数ヶ月かかっています。従って、登録要件は全体のM&A手続きにかなりの遅れが生じる可能性があります。

他の例では、対象企業は企業登録部門で会員または株主の登録変更をする必要があります。

利益の本国送還または外資企業のための外国為替規制に関する制限

ベトナムにおける対象企業が既に投資証明書を保有している場合、ベトナムの許可銀行で直接投資資本勘定を開かなければなりません。外国人投資家による株式購入のための支払いはこの口座を通して行われます。この口座はベトナムドンまたは外貨建てで行えます。さらに、外国人投資家がオフショア投資家の場合は、ベトナムの商業銀行にて売り手の口座へ支払い及び利益を受け取るための資本口座を開設する必要があります。

ベトナムにおける対象企業が投資証明書を保有していない場合、外国人投資家は売り手への支払い及び利益の送金の為に間接投資資本勘定を開く必要があります。

〈ご注意〉こちらの記事は皆様に情報をお届けする目的でのみ作成・掲載しておりますので、法的なアドバイスとして提供・構成することを目的としておりません。詳細につきましては、当法律事務所の注意書きをご一読下さい。

オリバー・マスマンはドウェイン・モリス・ベトナム法律事務所のディレクターです。上記に関するご質問等はomassmann@duanemorris.comまでお気軽にご連絡ください。

July 13, 2016July 14, 2016 by Dr. Oliver Massmann

Lawyer in Vietnam Oliver Massmann Why it is best to start preparing for transactions now in Vietnam ?

Vietnam has concluded the Trans-Pacific Partnership (“TPP”) and the EU- Vietnam Free Trade Agreement (“EVFTA”). Meanwhile, the ASEAN Economic Community (“AEC”), which Vietnam became a full member in 1995, has been established since the end of 2015. With such deep integration into the multilateral and regional economy, Vietnam is expected to be an attractive investment environment for investors and witness a significant growth in the upcoming years.

Vietnam has made progress over 3 continuous years to reach 56^th position in 2015 on the Global Competitiveness Index list, a jump of 12 positions compared to 2014. It is noteworthy that Vietnam is more competitive than 6 European Union countries on this list. Even more notably, 4 out of these 6 countries, namely Slovenia, Cyprus, Slovakia and Greece, are considered as advanced global economies, and have the GDP per capita of at least USD17,700, eight times more than Vietnam.

Samsung Electronics Company has decided to choose Vietnam as the Number 1 country to put their world largest mobile and tablet production and invested more than 6 Billion USD after a researching worldwide. Also major Japanese companies are convinced Vietnam is a top investment destination and become the largest investors in Vietnam.

The Vietnamese Government has made great attempts to develop itself by opening its economy to international trade, investments and free movement of people. The following section provides an overview of these free trade agreements and the AEC to help investors understand what is awaiting them ahead and decide their investment in Vietnam.

TPP

The TPP was originally known as the Trans- Pacific Strategic Economic Partnership concluded in 2006 among Singapore, New Zealand, Chile and Brunei (P-4 agreement) as a means to promote trade liberalization in the Asia- Pacific Region. As its name indicates, the original purpose of the agreement was only to address economic issues. As the number of participating countries in the P-4 agreement increased, starting with the United States in September 2008 and other countries to follow being Australia, Peru, Vietnam, Malaysia, Canada, Mexico and Japan until July 2013, the agreement is agreed to be “a comprehensive, next-generation regional agreement that liberalizes trade and investment and addresses new and traditional trade issues and 21st-century challenges” by TPP Trade ministers. In June 2015, the United States approved the trade promotion authority for President Obama. The Agreement finally becomes as it is today through tough negotiation rounds, while the last round in Atlanta in September 2015 was considered the most intensive one. The TPP was already concluded on 06 October 2015.

TPP Market Snapshot

· GDP: US$28,136.0 billion (2012)

· GDP per capita: US$35,488 (2012)

· Population: 792.8 million (2012)

· TPP % of world GDP: 39.0% (2012)

· TPP % of world population: 11.3% (2012)

· TPP % of world trade: 25.8% (2012)

The TPP includes thirty chapters with deep focus on comprehensive market access, a fully regional agreement, cross-cutting issues (regulatory coherence, competiveness and business facilitation, small and medium sized enterprises, and development), and new trade challenges (particularly rules on state owned enterprises and government procurement).

The TPP would expand market access in goods and services among its signatories. The market access issues include liberalization of trade barriers protecting dairy, sugar, and rice; tariffs and origin rules affecting textiles, clothing, and footwear; and services trade reforms, especially financial services, insurance, and labor services.

Vietnam would be the largest beneficiary of this trade pact, resulting from its strong trade ties with the United States, high level of protection against its main exports (i.e., apparel and footwear), and its highly competitive positions in industries such as manufacturing where China is gradually losing its competitive advantage. Statistics shows that by participating in the TPP, Vietnam’s GDP would add an additional increase of 13.6% to the baseline scenario.

TTP will help Vietnam make good use of international cooperation opportunities, balance relationships with key markets, approach larger markets including the U.S, Japan, Canada, boost import-export, reduce import deficit, and attract foreign investment. In addition, TTP will also help Vietnam’s economy allocate its resources more effectively, enabling active supports to the processes of restructuring, innovation and improving regulations, and improve administrative reforms.

Higher income will help Vietnam to invest more and grow more

Vietnam is among the largest income gains in TPP

The TPP is now being submitted for ratification in each country before it officially takes effect. Despite all political concerns, we strongly believe that the TPP will finally be implemented in 2018.

AEC

The AEC originates from the ASEAN Vision 2020, which was adopted in 1997 on the 30th anniversary of the Association of Southeast Asian Nations, made up of Brunei Darussalam, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam (ASEAN). With a population of more than 600 million and a nominal GDP of about $2.31 trillion, ASEAN is a strong economic community in Asia and also a driver of global growth.

The AEC encompass the following characteristics: (i) a single market and production base, (ii) a highly competitive economic region, (iii) a region of equitable economic development, and (iv) a region fully integrated into the global economy.

The AEC is expected to be an area where goods can circulate freely and in which custom duties on goods will be gradually reduced to 0%. It will establish ASEAN as a single market and production base, making ASEAN more dynamic and competitive with new mechanisms and measures to strengthen the implementation of its existing economic initiatives; accelerating regional integration in the prioritized sectors; facilitating movement of business persons, skilled labor and talents; and strengthening the institutional mechanisms of ASEAN.

The free flow of investment will also offer enhanced investment protection to all ASEAN investors and their investments in other ASEAN member countries, including the settlement mechanism of an investor state dispute based on a non-discrimination principle when investing in other ASEAN countries. Those principles play a very important role in providing investor confidence when making cross-border investment.

Once the AEC is completed, it will be a unified market, a common manufacturing area seeking for more dynamic and competitive development and to create new opportunities for tariff reductions as well as other trade incentives.

AEC Market Snapshot

· GDP: US$2311.3 billion (2012)

· GDP per capita: US$3748.4 (2012)

· Population: 620 million, 60% under the age of 35

· AEC % of world GDP: ~3.3%

· AEC % of world population: 9%

· AEC’s merchandise exports: US$1.2 trillion – ~54% of total ASEAN GDP and 7% of global exports

· If ASEAN were one economy, it would be the 7^th largest in the world – 4^th largest by 2050 if growth trends continue

EVFTA

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 EVFTA. Both parties will finalize the ratification process as soon as possible for the EVFTA to take effect from the beginning of 2018.

The EVFTA is considered one of the most comprehensive and ambitious trade and investment agreements. It is the second agreement in the ASEAN region after Singapore and it will intensify the bilateral relations between Vietnam and the EU.

The agreement has separate chapters on Trade of Goods, Rules of Origin, Customs and Trade Facilitation, Sanitary and Phytosanitary measures and Technical Barriers to Trade, Trade in Services, Investment, Trade Remedies, competition, State-Owned Enterprises, Government Procurement, Intellectual Property, sustainable Development, Cooperation and Capacity Building, Legal and Institutional Issues.

Nearly all customs duties – over 99% of the tariffs will be eliminated. The small remaining number is mainly due to the transition period. Vietnam will liberalize 65% of import duties on EU exports to Vietnam at entry into force and the remaining duties will be eliminated due to the next ten years; EU duties will be eliminated over a seven year period. The market will be opened for most of EU food products, i.e. wine, spirits and frozen pork meat will be liberalized after seven years and dairy products after a maximum of five years. The EU will eliminate duties for some sensitive products in the textile and footwear sector. The EU has offered access to Vietnamese exports via tariff rate quotas (TRQs), because some sensitive agricultural products will not be fully liberalized. Furthermore, the agreement will contain an annex with provisions to address non-tariff barriers in the automotive sector. Vietnamese exports of textile, clothing and footwear to the EU are expected to more than double in 2020 as a result of the EVFTA.

The EVFTA will help to increase quality of investment flows from EU, accelerate the process of sharing expertise and transfer of green technology and the creation of more employment activities.

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 EVFTA 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 EVFTA is estimated to generate an additional 7-8% of GDP above the trend growth rate.

In 2013, the EU was Vietnam’s second biggest trade partner with a total value of trade in goods of EUR 24.2 billion. In the same the EU was also Vietnam’s biggest export market with EUR 21 billion, representing 19% of Vietnam’s total export. Vietnam’s export to EU increased by 28% from 2012 to 2013. In addition, the EU is among the biggest investors in Vietnam, with 1,810 FDI projects in 2013. The EU committed to continuing to support with the foreseen assistance amount of EUR 400 million in the coming six years. EU exports to Vietnam are dominated by high-tech products including electrical machinery and equipment, aircraft, vehicles, and pharmaceutical products. Vietnam’s key export items to the EU include telephone sets, electronic products, footwear, textiles and clothing, coffee, rice, aqua products, and furniture.

Conclusion: Why investment in Vietnam now?

Vietnam ties in first place with Singapore, thus it provides highest possible protection for investment

Country	Limitation of market access*	Country	Limitation of market access*
Malaysia	medium	Myanmar	high
Indonesia	medium	Cambodia	medium
Philippines	medium	Laos	medium
Singapore	low	India	high
Thailand	medium	China	medium
Brunei	high	Vietnam	low

*Typical restrictions: number of opened sectors, JV requirement, limits on foreign-owned shares, permission requirement

Vietnam has the fastest growing middle class with a very good demographic situation: about 90 Million people of which about 50 percent are under 30 years old.

Expectations of Vietnam parties might get unreasonable, the same as after Vietnam acceded to the WTO in 2007 and no projects could be done.

Market opening in certain sectors, for example, media, and there could be more competing companies from the AEC with better market access to Vietnam. Thus, it is vital that investors start working on their projects now to position themselves as early as possible before the coming into effect of the trade pacts.

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