A major difficulty for a lawyer advising a foreign buyer purchasing equity interest in a local Vietnamese company (Local Co) is to determine whether an Investment Certificate (IC) should be obtained for the investment and if so, how the IC should be issued (e.g. to the foreign buyer or to the Local Co and for which project?). By way of background, the key incorporation document recording key corporate details such as name, address, business lines, owners, and capital structure of a Local Co is the Enterprise Registration (Đăng Ký Doanh Nghiệp) or Business Registration Certificate (Đăng Ký Kinh Doanh). Both terms are commonly abbreviated as BRC. On the other hand, a foreign investor setting up a new company in Vietnam will be issued an IC as the key incorporation document.
The Hanoi Department of Planning and Investment (Hanoi DPI) seemed to share the lawyers’ frustration when in May 2013, it sent a request to the Ministry of Planning and Investment (MPI) seeking clarification on the rules. We do not know whether and how the MPI responded to the Hanoi DPI’s request. However, the Hanoi DPI’s letter to the MPI provides many useful information about the licensing practice in this regards. In particular, according to Hanoi DPI,
· Before May 2013, when a foreign investor purchases equity interests in a Local Co, Hanoi DPI would issue a new IC to the Local Co to replace its existing BRC. After acquisition, the Local Co will have the new IC as its incorporation document and will be treated as a foreign-invested enterprise (doanh nghiệp có vốn đầu tư nước ngoài) for all purposes;
· After May 2013, the Hanoi DPI will not continue the current practice and will not accept new IC applications submitted by foreign buyers purchasing equity interests in a Local Co in Hanoi until there is further guidance by the MPI;
· There has been inconsistent guidance by different departments of the MPI. The Business Registration Department of the MPI took the view that there is no procedure for “replacing” a BRC with an IC if a foreign buyer purchases equity interests in a Local Co. The Foreign Investment Department on the other hand has advised a Local Co to (1) amend the existing BRC to record the new foreign buyer as an owner and (2) thereafter, apply for a separate new IC recording the project that the Local Co is implementing;
· MPI were asked to provide guidance on (1) timing, sequence, and procedures to amend an existing BRC of a Local Co to record a new foreign buyer and, if applicable, to obtain a new IC, (2) in what circumstances a new IC is required (depending on the business lines of the Local Co or the level of foreign ownership in the Local Co?), (3) can the foreign buyer voluntarily apply for a new IC even if one is not required, (4) if a new IC is issued in subsequent to a BRC, what happen if a new IC is not issued after the BRC has been amended, (5) which tax department will be in charge of a Local Co after a foreign buyer’s purchase (the tax department in charge of foreign-invested companies or the tax department in charge of domestic companies), (6) licensing procedures and management regime for branches of Local Co after a foreign buyer’s purchase, especially in case the Local Co is involved in conditional businesses for foreign investors such as retail, restaurant), (7) exact definition of foreign-invested enterprises in light of a very broad definition provided in the Investment Law for the purpose of land regulations, tax regulations and reporting obligations; and (8) procedures to record foreign buyers being non-founding shareholders in the BRC of a Local Co being joint stock company;
· The Business Registration Department of the MPI considers an “acquisition” (mua lại) of a Local Co being the purchase of 100% charter capital of such Local Co which must be a sole-owner company (doanh nghiệp tư nhân). In January 2010, the Foreign Investment Department of the MPI agreed to the Ho Chi Minh DPI that a new IC will be issued to replace the existing BRC of a Local Co if the foreign buyer acquires 100% equity interest of such Local Co. In February 2013, the Business Registration Department of the MPI took a different view that there is no procedures for replacing an existing BRC with a new IC;
· In Ho Chi Minh City, when a foreign investor purchases equity interests in a Local Co, HCMC DPI would (1) amend the current BRC of the Local Co to record the foreign buyer and (2) thereafter, issue a new IC to the Local Co for an investment project. Hanoi DPI disagrees with HCMC DPI’s approach due to the uncertainties (see above);
· In Vinh Phuc province, the Vinh Phuc DPI applies Hanoi DPI’s approach;
· In Can Tho province, the Can Tho DPI applies Hanoi DPI’s approach for Local Co being manufacturing entities. Can Tho DPI does not accept purchase of equity interest by foreign buyers in Local Co being trading or services entities;
· In Da Nang, if a foreign buyer acquires no more than 49% equity interest in a Local Co, Da Nang DPI will only amend the existing BRC and will not issue an IC. If a foreign buyer acquires from 51% to less than 100% equity interest in a Local Co, Da Nang DPI adopts HCMC DPI’s approach. If a foreign buyer acquires 100% equity interest in a Local Co, Da Nang DPI will issue a new IC to replace the existing BRC; and
· In Binh Duong, if a Local Co is a manufacturing entity then Binh Duong DPI adopts Hanoi DPI’s approach in case the foreign buyer acquires 51% or more of the Local Co. If foreign buyer only acquires no more than 49% of a Local Co being a manufacturing entity then Binh Duong DPI only amends the existing BRC and does not issue an IC. If a Local Co being trading or services entity then Binh Duong will issue a new IC to replace the existing BRC even the foreign buyer only acquire 1% of the charter capital.
(Vietnam Business Law Blog)