ANT Lawyers

Vietnam Law Firm with English Speaking Lawyers

ANT Lawyers

Vietnam Law Firm with English Speaking Lawyers

ANT Lawyers

Vietnam Law Firm with English Speaking Lawyers

ANT Lawyers

Vietnam Law Firm with English Speaking Lawyers

ANT Lawyers

Vietnam Law Firm with English Speaking Lawyers

Thứ Năm, 28 tháng 4, 2016

NOTABLE CHANGES OF VIETNAM LAW ON ENTERPRISES

On November 26th, 2014, the new version of Law on Enterprises has been adopted by Vietnam’s National Assembly. The act will come into effect on July 1st, 2015 and replace Law on Enterprises 2005. It comprises 10 chapters and 213 articles, which seek to improve Vietnamese business environment. Key points of the amendment include.

setting up company in vietnam
how to setting up business company in Vietnam
Company seals will be made optional
Pursuant to the prior Law on Enterprise, the Gorvernment shall stipulate the content of seals, conditions for making seals and regulations on seals usage. Now this regulation has changed under the new law. According to Article 44 of the new law, the company shall be entitled to decide the design, number and content of seals. The seals must supply the following information:
– Tax number of the company Before using, the company must supply the seal sample to business registration office to post on National Portal of Business registration. The usage of seals must be in conformity with the company’s bylaw. Seals shall be used in case stipulated by law or agreed between transactional party.
 Limited company, joint-stock company may have more than one representatives
Article 13 of the law states that limited company or joint-stock company may have one or many representatives. The number of representatives, titles, rights and obligations of each representative are set out by the company’s bylaw. The company must ensure that at least one representative lives in Vietnam and that representative, if leaving Vietnam, must authorize another person in writing to perform on behalf of him.
The director or general director of joint-stock company will not be prohibited being concurrently the director or general director of another enterprise
Under the Law on Enterprises 2005, the director or general director of the company cannot be concurrently the director or general director of another enterprise. This regulation has been removed by the new amendment. The only exception is the one who is appointed by the state as owner representatives of state capital portions in state-invested enterprises.
ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice. The firm provides a wide range of services, including M&A, corporate establishment, business advisory, tax advisory, dispute resolution for multinational and domestic clients.
This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. For further details or to contact the firm, please email ant@antlawyers.vn or call us at +848 35202779.

WHICH AUTHORITY APPROVES BUSINESS SETTING UP IN VIETNAM?

Investment projects in Vietnam could be evaluated and approved for business setting-up at top level of the government, at ministerial levels or at the provincial levels.
The licensing authorities for business setting up in Vietnam has been divided to distribute workloads at different state agencies with aim to speed up the process and attract more quality investment projects in Vietnam.

In practice, the process for establishing companies or executing investment projects in Vietnam would take from one month for simple project, three to six month for areas categorized under conditional investment areas, requiring sub-licenses, or additional time for more complicated projects.  At the provincial levels, there might be inconsistency between cities and provinces due to different interpretation of laws.  For investment project with difficulty to manage, the provincial levels would need to consult with technical department of central government agencies, as such the time taken to process the investment certificate would be lengthen.
Understanding the mechanism and the work division of Vietnam authorities that evaluate and approve business licensing at different government agencies would help foreign investors to smoothen the process and improve their experience in Vietnam.
It is notable that, the government level will be focusing on significant projects, in special area at large investment capital with impact on social economic situations.  Most of the investment licensing procedures will be carried out at the provincial levels where the investment projects exist.
The following will point out directions for foreigners to approach respective agencies based on the particular area of interests, scale, and nature of the investment.  However, to avoid delay and increase effectiveness, it is advisable that the foreign clients would consult with Vietnam law firms to help advise and represent them in preparing and executing the investment in Vietnam.
I. Projects evaluated and granted investment licensing at government level
Depending on the business nature, industry sector, investment scale, and investment policy, the Vietnam Prime Minister, on behalf of the government will evaluate and approve investment licensing for setting up business.
1. The investment project in Vietnam the government will evaluate and approve regardless of funding, the scale of investment are in the following areas:
a) Development and commercialization of airports and air transport;
b) Development and commercialization of national port;
c) Exploration, mining and processing of oil and gas; exploration and exploitation of minerals;
d) Radio, television;
e) Casino;
f) Production of cigarettes;
g) Establishment of university level educational institute;
h) Establishment of industrial zones, export processing zones, high-tech zones and economic zones.
2. Although investment projects which do not fall under the cases listed above, but the government of Vietnam also evaluates and approves investment project with investment capital of VND 1,500 billion (around USD 75 mil) upwards regardless of funding and in the following areas:
a) Sales of electricity, mineral processing, metallurgical;
b) Construction of railway infrastructure, roads, inland waterways;
c) Production, sales of wine and beer.
3. Further, the government of Vietnam also evaluates and approve investment projects with foreign investment in the following areas:
a) Maritime transport;
b) Establishment of networks and provision of postal services, courier, telecommunication and internet; network setup and signal transmission;
c) Printing and distribution of newspapers; publication;
d) Establishment of independent scientific research.
4. Where the investment projects specified in the above cases are in the plan which the Prime Minister has approved or authorized other agencies to approve, and that the investment projects meet the conditions prescribed by law and treaties to which Vietnam Nam is a member, the agency granted investment certificates perform the procedure for issuance of investment certificates is not required to submit to the Prime Minister to decide on the investment policy.
5. Where the investment projects specified in the above case is not in the plan which has been approved by the Vietnam Prime Minister or authorized other agency to approve, and that the projects do not meet the conditions for market access provisions in international treaties which Vietnam is a member, the agency granted investment certificates shall consult with other of relevant industries and submit to the Prime Minister for investment policy decision.
II. Projects evaluated and granted investment licensing at ministerial level
1. The Vietnam Ministry of Planning and Investment shall evaluate and approve licensing for investment projects in the form of BOT, BTO, BT.
2. Other ministries will be evaluating and granting license for investment in some sectors.
a.Vietnam Ministry of Commerce and Industry shall evaluate and approve licensing for investment project in oil and gas sector;
b. Vietnam State Bank shall grant licensing for financial institutions;
c. Vietnam Ministry of Finance shall be responsible for issuing license for investment project of insurance business.
III. Projects evaluated and granted investment licensing at provincial levels
1. Department of Planning and Investment shall be the single point of contact that receive the application and evaluate the investment plan of the foreign investors wishing to establish business in Vietnam for projects
a. Outside of Industrial Zone, Industrial Processing Zone;
b. Infrastructure development project for Industrial Zone, Industrial Processing Zone which management board of industrial zone and industrial processing zone are not yet established.
2. The management board of Industrial Zone, and Industrial Processing Zone:
a. For investment projects within the Industrial Zone, and Industrial Processing Zone which are not under the authority of the Prime Minister;


b. Infrastructure development project to for industrial zone and industrial processing zone.

NEW GUIDANCE ON VIETNAM CORPORATE LAW FOR LISTED COMPANY

ANT Lawyers – A new law provides guidance on Vietnam corporate laws for consolidated or merged companies listed on Vietnam Stock exchange has been issued by Vietnam Ministry of Finance.  The recently issued Circular 73/2013/TT-BTC specifically provides guidance on the conditions and procedures for listing shares of a company after consolidation or merger. The circular references a number of articles of the Securities Act by the Vietnam Ministry of Finance and provides guidelines for listed securities already stated in Decree 58/2012/ND-CP on Law on Securities. According to the new guidelines, listed companies that consolidate with companies that are not listed on the HCM City Stock Exchange and want to list shares after the merger, must arrange it so the unlisted company meets the following conditions before the merger takes place: 

  • At least 2 years of operation in the form of a joint stock company by the time the company was formed after the consolidation; the after-tax rate of ROE (return on equity) for the last year must be at least 5% and the businesses and operations of two years immediately preceding the year of the merger must be profitable;
  • No debt overdue for more than 1 year;
  • No accumulated losses until the consolidation;
  • Finally, the company must meet the general conditions for listing securities of the Securities Decree 58/2012/ND-CP.
 This Circular is effective from the date of July 15th 2013.
ANT Lawyers
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FORMS OF COMPANY TO BE SET-UP IN VIETNAM

According the Vietnam Law on Enterprises, there are four common types of companies:

Forms of Company to be Set-up in Vietnam
Forms of Company to be Set-up in Vietnam
  • Private enterprise is an enterprise owned by an individual who is liable for all of its operations with his/her entire property;
  • Partnership is an enterprise in which (i) there are at least two partners who are co-owners of the company, jointly conduct business under one common name; in addition to general partners, there may also be limited partners; (ii) general partners to a partnership must be individuals who are liable for all obligations of the partnership with his/her own entire property; (iii) Limited partners shall be liable for debts of the partnership only to the extent of their capital contribution to the partnership;
  • Joint stock company is an enterprise where (i) Its charter capital is divided into equal portions known as shares; (ii) Shareholders may be organizations and/or individuals; the minimum number of shareholders shall be three and shall not be restricted to any particular maximum number; (iii) Its shareholders shall be liable for debts and other property liabilities of such enterprise within the limit of the value of their capital contribution to the enterprise; (iv) Shareholders shall be entitled to freely transfer their shares according to the provisions of law;
  • Limited liability company (multi-member limited liability company and single-member limited liability company). A one-member limited liability company is an enterprise which is owned by one organization or individual (hereinafter referred to as the company owner); the company owner is liable for debts and other property liabilities of the company within the charter capital of the company. A limited liability company is an enterprise of which: (i) Members may be organizations and/or individuals; the total number of members shall not exceed fifty; (ii) Members are responsible for debts and other property liabilities of the enterprise within the amount of capital that they have committed to contribute to the enterprise; (iii) Capital shares of the members may only be transferred in accordance with the provisions of law.
Our lawyers of foreign investment practice at ANT Lawyers are available to advise and provide client with service and representation in Vietnam.  In order to seek further advice or request service to set up company in Hanoi or Ho Chi Minh City, please contact us at ant@antlawyers.vn or call + 84 912 817 823.

CONDITIONS OF SETTING UP IMPORT AND EXPORT COMPANY IN VIETNAM

Before Vietnam joined World Trading Organization (WTO), distribution and import, export activities conducted by foreign owned entities are strictly regulated by Vietnam government.  As such, foreigners could only conduct the import of goods through the Vietnam agents.


Since 2007, Vietnam has become an official member of WTO and it had to commit a route to open local market to foreign companies and traders, including foreign distributors.  Within 02 years from the date of accession to WTO, regulations with services and trading activities have been eased up gradually to be more open.  Since 2009, foreigner investors have been entitled to set up 100% foreign-owned companies to conduct activities related to the sale and purchase of goods including import and export, and distribution including acting as agents for purchase and sale, wholesale, retail and franchising.   This opens up opportunities for foreign investors to expand their trading activities in Vietnam.
1. Conditions for foreign-owned company in import and export or distribution field:
According to Article 4, Decree No. 23/2007/ND-CP on 12 February 2007 by the Government providing regulation for implementation of Commercial Law regarding purchase and sale of goods and activities directly related to the purchase and sale of goods by enterprises with foreign owned capital in Vietnam (“Decree No. 23”), the conditions for an enterprise with foreign owned capital to be granted a business license for activities of purchase and sale of goods and activities related to purchase and sale of goods in Vietnam shall comprise:
a. It is an investor belonging to a country or territory participating in an international treaty of which the Socialist Republic of Vietnam is a member and in such treaty Vietnam has undertaken to open the market on activities of purchase and sale of goods and activities directly related to purchase and sale of goods;
b. The form of investment is consistent with the schedules undertaken in international treaties of which the Socialist Republic of Vietnam is a member and is consistent with the law of Vietnam;
c. The goods and services in which business is conducted are consistent with Vietnam’s undertaking to open the market and are consistent with the law of Vietnam;
d. The scope of operation is consistent with Vietnam’s undertaking to open the market and is consistent with the law of Vietnam;
e. It has approval from the competent State body.
With respect to foreign investors not in the category stipulated in clause (a) above, the Minister of Industry and Trade shall consider each application on a case by case basis and must approve activities of purchase and sale of goods and activities directly related to purchase and sale of goods before the authorized State body grants a business license.
2. Conditions of foreign-invested enterprises on implementation export rights
According to Circular No. 08/2013/TT-BTC dated on April 22, 2013 issued by the Ministry of Industry and Trade detailing the goods trading and directly related activities of foreign-invested enterprises in Vietnam (“Circular No.08”), foreign-owned enterprises which have been licensed to conduct export activities are permitted to export, purchase goods in Vietnam for export, including goods imported in Vietnam by them or other enterprises already finished tax liability and other financial obligations, under the following conditions:
a. Export goods which are not in the list of those banned from export, list of those temporarily suspended from export, list of those of which the right to export is not granted according to international commitments;
b. For export goods in the list of conditional export goods, enterprises must meet conditions as prescribed by law;
c. For export goods in the list of goods to be exported under roadmaps specified in international commitments, enterprises must comply with the committed roadmap;
d. The export commodities must be suitable with content of the right to export which enterprises have been licensed for implementation.
The foreign-invested enterprises already licensed for right to export are entitled to directly do procedures for export of goods at customs agencies as prescribed by law.
The foreign-invested enterprises already licensed for right to export are entitled to directly purchase only goods of Vietnamese traders who have business registration or right to import, right to distribute such goods for export; not entitled to organize the network of goods purchase in Vietnam for export, unless otherwise provided by law of Vietnam or International treaties to which the Socialist Republic of Vietnam is a contracting party.
3. Conditions of foreign-invested enterprises on implementation import rights:
Under Circular No. 08, foreign-owned enterprises which are licensed to import goods are permitted:
a. Import goods which are not in the list of those banned from import, list of those temporarily suspended from import, list of those of which the right to import is not granted according to international commitments;
b. Import goods belong in the list of conditional import goods, enterprises must meet conditions as prescribed by law;
c. Import goods belong in the list of goods to be imported under roadmaps specified in international commitments, enterprises must comply with the committed roadmap;
d. The import commodities must be suitable with content of the right to import which enterprises have been licensed for implementation.
The foreign-invested enterprises already licensed for right to import are entitle to directly do procedures for import of goods at customs agencies as prescribed by law.
The foreign-invested enterprises already licensed for right to import but not yet licensed for right to distribute are entitled to directly sell import goods for Vietnamese traders who have business registration or right to export, right to distribute such goods; not entitled to organize or participate in the network of goods distribution in Vietnam, unless otherwise provided by law of Vietnam or International treaties to which the Socialist Republic of Vietnam is a contracting party.
4. Conditions of foreign-owned enterprises on implementation distribution rights:
Distribution is defined as Decree 23 as “activities of wholesaling, retailing, agency  for purchase and sale of goods and franchising in accordance with the law of Vietnam”. The right to distribution is defined as “the right to undertake directly activities of distribution”.
Under Circular No. 08, foreign-owned enterprises which have been licensed to conduct distribution activities shall be permitted:
a) To conduct wholesaling, retailing, franchising and agency for trading goods manufactured in Vietnam and goods imported into Vietnam, except:
i) For goods on the list of those banned from business and list of those of which the right to distribution is not granted under international commitments;
ii) For goods restrained for business or goods of conditional business, enterprises must meet conditions as prescribed by law;
iii) For distribution goods in the list of goods to be distributed under roadmaps specified in international commitments, enterprises must comply with the committed roadmap.
b) The distribution commodities must be suitable with content of the right to distribution which enterprises have been licensed for implementation.
Depending on the method of business, investor could choose one of activities belonging to distributions rights. With each method, the investor needs to apply a suitable business registration issued by competent authorities.
Further, foreign invested enterprises whose investment registered retail business line in their investment certificate could open a single retail outlet in order to sell their goods to the end of user or customers.  The setting up of retail establishments including the first retail establishments must abide by law regulations on state management for retail activities and be conformable with the related master plans of central-affiliated cities and provinces, where are expected for setting up of retail establishments.   The setting up of retail establishments in addition to the first retail establishments are considered for each specific case based on the examination on economic demand of each locality where place retail establishment under the criteria: Quantity of retail establishments, stability of market, residential density and scale of district-level localities where are expected for the setting up of retail establishments.
Our lawyers of foreign investment practice at ANT Lawyers, a law firm in Vietnam are available to advise and provide client with service and representation for setting up a trading company in Vietnam.
In order to seek further advice or request service, please contact us at ant@antlawyers.vn or call + 84 912 817 823.

HOW TO SET-UP TRADING COMPANY IN VIETNAM

Investment in setting up trading company in Vietnam is considered as investment in conditional investment areas

Once an underdeveloped country, in the last two decades Vietnam has shown an incredible growth in the world economic scene, especially in the criteria of investment attraction. For a foreign company that is interested in expanding the business in a new country or region, Vietnam is a promising destination. In order to start a company or specifically a trading company in Vietnam, foreign investor should comprehensively understand the formality and function of the legal entity to be formed according to Vietnam Law. The consultancy and guidance of skilled and qualified lawyers in Vietnam law firm throughout the process shall mostly be needed.
Set-up Trading Company in Vietnam
Set-up Trading Company in Vietnam
The legal basis for a foreign company to set up a company in Vietnam is stated in the Enterprise Law of Vietnam: foreign organizations and individuals will be entitled to establish and manage enterprises in Vietnam in accordance with this law, with some exceptions.  Foreign investors may invest in the form of 100% foreign- owned capital to establish limited liability companies, joint-stock companies, partnerships or private enterprises under the provisions of the Enterprise Law and relevant laws.
The foreign investor shall mostly needs to fulfill the investment registration procedures at provincial-level state agencies in charge of investment in order to be granted the investment certificates, in accordance with Vietnam law in investment. The dossier required for the investment registration shall comprise of an examination dossier, papers showing the capability to satisfy the conditions which the project is required by law to satisfy, for investment projects in conditional investment domains i.e. specific goods to be traded at HS code level, experience in trading area, how the trading procedures would be carried out, potential business in Vietnam.
In particular, for investment capital, it should be noted that, trading company needs to commit larger investment in terms of capital, since its function is to identify competitive suppliers, negotiate and purchase their products and sell them through a distribution network in Vietnam. In the meantime, the investor needs to have experience in trading to run the business smoothly and efficiently. The investor should explain why the company would contribute to the development in Vietnam when applying for investment license at Department of Planning and Investment, and Ministry of Trade and Commerce.
Our lawyers of foreign investment practice at ANT Lawyers are available to advise and provide client with service and representation in Vietnam.

Thứ Hai, 25 tháng 4, 2016

WHY INVESTORS SHOULD SET-UP BUSINESS IN PHU QUOC

The improvement in infrastructure system along with the preferential policies have stimulated investors to come to Phu Quoc to set-up company and do business.

Phu Quoc, an island in Kien Giang of Vietnam is in the top of three islands having tourism potential in Southeast Asia comparable to Phuket in Thailand and Bali in Indonesia.  Phu Quoc has become a magnet for attracting huge investment flows from foreign investors in the area of real estate, entertainment, casinos, restaurant or food and beverage service business.

Phu Quoc has temperate weather throughout the year. There are also fresh and friendly forest – sea ecology and the modern transport system on the island with international airport and international hospital. Moreover, many infrastructure projects and international schools are under construction, which are necessary and favorable conditions to invite and attract investors to the Pearl Island for doing business.
Capital inflows to Phu Quoc have really exploded after the “knots” in investment were removed. The new airport went into operation that can welcome larger aircraft and serve more flights, in which there are more international direct flights from China, Singapore, Russia and Cambodia. The 51km long radial route on the island has been basically completed; the road around the island and the branch roads are also being deployed. The power grid was pulled from the mainland to the island, replacing the very high cost gasoline power in the past.
The real estate and tourism consultants all agree that Phu Quoc fully convergent elements of an attractive beach for tourist with year-round sunshine, many beautiful beaches such as Long Beach, Truong Beach, Khem Beach and immense virgin forest. Moreover, Phu Quoc has a strategic location with just 1-2 hours flight to the key tourism markets in Southeast Asia.
Both investment and tourism in Phu Quoc have entered the acceleration phase. By the end of July 2015, Phu Quoc has attracted nearly 200 investment projects, including 136 projects that are being implemented in the area of over 5,100 ha with total registered capitals of 6.5 billion USD. Just one part of those projects become reality then it will make Phu Quoc to become a leading tourist destination in Vietnam, ahead of Da Nang and Nha Trang, competing with the top destinations in the area as Phuket and Bali.
Some of the largest Vietnam corporations such as Vingroup, Sun Group, CEO Group, BIM Group are implementing the huge projects that could alter the appearance of the island. In which the giant in real estate sector – Vingroup has invested projects as: Vinpearl Resort on an area of 300 ha in Long Beach, the combining of golf course and safari zoo on an area of more than 2,000 ha, and the 80 ha commercial complex.
The improvement in infrastructure system along with the preferential business and legal environments i.e. favourable land rental rates, corporate income tax, exemption of visa for foreign tourists make Phu Quoc island of Kien Giang, Vietnam a new attractive place for investment.
ANT Lawyers, a law firm in Vietnam could offer service to set-up company in Phu Quoc through its affiliate office.  We assist clients needing legal service in obtaining investment certificate, business registration, or other  licensing procedures in Phu Quoc, Kien Giang Province, Vietnam.

WHY DA NANG IS A PLACE FOR SETTING UP BUSINESS

Da Nang has been creating flexible policies, good environments attracting foreign investors setting up company, building factory, and developing service business.

Da Nang is a social and economic center of central area of Vietnam with the role as the center of industry, trade and tourism and service.  It is a seaport city, an important transport hub for the transit of domestic and international transportation. Presently, Da Nang has been rising as a comprehensive and sustainability developing city.

With the advantages of geographical location, people and nature, the leader of Da Nang is planning to build the city becoming a major tourist center of the country, developing tourism industry with entertainment centers and luxury resorts in Vietnam.
In practice, Da Nang has been reducing administrative procedures, creating favorable conditions for investors in obtaining certificate for investment.  In the meantime, the city also supports investors understanding the information and maintaining direct dialogue mode with businesses leaders and managers in order to promptly assist any difficulties encountered by investors in the process of project implementation. Da Nang’s leaders are famous in being proactive in providing the latest information about the law in investment, especially information on the process of changing investment certificate… to facilitate the investment plan of the investors whom are investing in Da Nang.  For investment projects in infrastructure construction using ODA capital, the city has been quickly implemented the clearance and compensation in time to hand over the project site to the investors as planned.
To ensure the tourism environment and sustainable development, the city focuses on attracting projects in high technology industry, supporting industry and services with high added value i.e. information technology, education, healthcare and logistics…, especially favouring clean and quality projects rather than large projects but are likely to cause environmental issues.
Along with economic development, Da Nang also has activities and measures for environmental protection by investing in building projects to protect and improve the environment such as: modernization the sewer and wastewater treatment system (JICA), building east-west economic corridor (ADB)… to ensure sustainable and long term development of the economy.
An important element for economic development is the local security. Da Nang has done a great job in maintaining public security in order to guarantee investors a stable and safe political, social environment for investors.
It can be seen that Da Nang converges suitable elements and really is a promising land for investors both domestic and international, to invest in entertainment, real estate, tourism, IT, healthcare, education services.
ANT Lawyers, a law firm in Vietnam offers clients legal service in Da Nang through our affiliate office located in Hoi An (covering Da Nang, Hoi An, Hue City), managed by an experienced corporate lawyers whom bring along extensive experience from leading law firms in Vietnam including Mayer Brown, handling a wide range of corporate and commercial matters with a particular emphasis on foreign investment, mergers and acquisitions and real estate; from planning, consultation to execution.