New Laws on Investment and Enterprise
These come into effect on 1 July 2015 and may lead to changes to certain of the issues dealt with below.
Forms of Business
A foreign entity may establish its presence in Vietnam as a limited-liability company with one or more members,
A joint-stock company, a partnership, a branch, a business cooperation contract or a representative office.
Foreign investors may also buy an interest in an existing domestic enterprise, subject in some cases to ownership limitations which vary depending on the industry sector.
The choice of investment vehicle will depend on factors such as the number of investors, industry, and size of the project and whether there is any intention to list.
1. Limited-liability Company
A limited-liability company is a legal entity established by its members through capital contributions to the company. The capital contribution of each member is treated as equity (charter capital). The members of a limited-liability company are liable for the financial obligations of the limited-liability company to the extent of their capital contributions.
The management structure of a limited-liability company would normally consist of the members’ council, the chairman of the members’ council, the general director and a controller (or board of supervisors where the limited-liability company has more than 11 members).
A limited-liability company established by foreign investors may take the form of either:
A 100% foreign-owned enterprise
(Where all members are foreign investors); or
A foreign-invested joint-venture enterprise between foreign investors and at least one domestic investor.
2. Joint-stock Company
A joint-stock company is a limited liability legal entity established through a subscription for shares in the company.
Under Vietnamese law, this is the only type of company that can issue shares. The charter capital of a joint-stock company is divided into shares and each founding shareholder holds shares corresponding to the amount of capital the shareholder has contributed to the company.
A joint-stock company is required to have at least three shareholders. There is no limit on the maximum number of shareholders in such companies.
The governance of a joint-stock Company includes a general Meeting of shareholders, the board of Management, the chairman of the board Of management, the general director And a board of supervisors (where the
Joint stock company has more than 11 individual shareholders, or if a corporate shareholder holds more than 50% of the shares of the joint-stock company).
A joint-stock company may either be 100% foreign-owned or may take the form of a joint venture between both foreign and domestic investors.
A partnership may be established between two individual general partners. The general partner has unlimited liability for the operations of the partnership.
This is not a common form of foreign direct investment and is only permitted in a few sectors. Branches of foreign companies are different from representative offices in that a branch is permitted to conduct commercial activities in Vietnam.
5. Representative Offices
Foreign companies with business relations or investment projects in Vietnam may apply to open representative offices in Vietnam.
A representative office is not an independent legal entity and may not conduct direct commercial or revenue-generating activities (i.e., the execution of contracts, receipt of funds, sale or purchase of goods, or provision of services).
However, a representative office is permitted to:
Thus representative offices can provide a wide range of ancillary support to
Their head offices overseas. This is a very common form of presence in Vietnam for foreign companies, particularly those in the first stage of a market entry strategy.
A BCC is a cooperation agreement between foreign investors and at least one Vietnamese partner in order to carry out specific business activities.
This form of investment does not constitute the creation of a new legal entity. The investors in a BCC generally Share the revenues and/or products arising from a BCC and have unlimited liability for the debts of the BCC.
A Public and Private Partnership (‘PPP’) contract is an investment form carried out based on a contract between the government authorities and project companies for infrastructure projects and public services.
PPP Contracts includes Build-Operate-
Transfer (‘BOT’), Build-Transfer (‘BT’), Build-Transfer-Operate (‘BTO’), Build-Own-Operate (‘BOO’), Build-Transfer-Lease (‘BTL’), Build -Lease-Transfer (‘BLT’) and Operate-Manage (O&M) Contracts.
Both public and private investors are encouraged to participate in PPP Contracts. The rights and obligations of the foreign investor will be regulated by the signed PPP contracts and the applicable regulations governing such contracts. Investment sectors include:
Transportation infrastructures and relevant services;
Lighting systems, clean water supply systems, water drainage systems, water/waste collection and treatment systems, social/resettlement houses, cemeteries;
Power plants and power transmission lines;
Infrastructures for healthcare, educational and training, cultural, sport and relevant services, offices for government authorities;
Infrastructure for commerce, science and technology, hydrometeorology, economic zone, industrial zone, high-tech zone, centralized information technology zone, information technology application;
Infrastructure for agriculture and rural development, services for enhancing the correlation of agricultural production with processing and consumption of agricultural products; and
Other sectors according to the Prime Minister’s decisions.
Setting up a Business
In order to set up a limited liability Company, a joint stock company, a partnership or enter into a business cooperation contract with one or more Vietnamese partners, the foreign investors must obtain an investment registration certificate from the licensing authorities, which may be either (i) the provincial people’s committee (for projects located outside of industrial zones, export processing zones, high- tech zones and economic zones), or (ii) the provincial industrial zone management authority or economic zone management authority (for projects located in industrial zones, export processing zones, high-tech zones and economic zones).
After the issuance of the investment registration certificate, the foreign investors must conduct procedures with the licensing authorities to obtain a business registration certificate. Under the regulations, the licensing process should take around 18 working days. In practice it usually takes longer.
Investment in “conditional” sector activities is subject to the more cumbersome appraisal (as opposed to registration) procedures. These require, inter alia, the license application to be reviewed also at the central government ministry level in Hanoi.
Approval for the establishment of a representative office of a foreign
Company is granted in the form of a license issued by the provincial people’s committee. Procedures for setting up a representative office are quite simple in comparison with those for a company and it normally takes 2 - 4 weeks to obtain a representative office license from the date of submission of a complete application dossier.
For PPP projects, foreign investors must sign PPP contracts with an authorised State body, and then establish a project company in the form of a limited liability company or a joint stock company.