Injection of increased capital into DICA of foreign invested companies in Vietnam after expiry of contribution time limit

Under Circular 6 of the State Bank of Vietnam dated 26 June 2019 guiding the forex management on direct foreign investment into Vietnam (Circular 6/2019), foreign and Vietnamese investors (Investors) of a foreign invested enterprise (FIE) are required to inject capital contributions to the FIE through its direct investment capital account (DICA) opened at a bank in Vietnam. This article will discuss whether the Investors can inject the increased charter capital (Increased Capital) into the DICA if the time limit for making the capital contribution under the IRC already expired.

Stricter conditions for foreign borrowings by Vietnamese entities under draft circular

The State Bank of Vietnam (SBV) is drafting a circular (Draft) to replace Circular 12 dated 31 March 2014 on conditions for enterprises to borrow foreign loans not guaranteed by the Government (Circular 12/2014). The Draft has some remarkable changes to the conditions of foreign borrowings by Vietnamese companies and credit institutions, and generally will tighten such conditions.

Notice on mortgage over receivables in Vietnam

Mortgage over receivables (thế chấp khoản phải thu) is a very common type of mortgage in Vietnam. Article 33 of Decree 21/2021 provides that a mortgage over receivables does not require a consent by the obligor but such person must be notified by the secured party to know before implementing the obligations in accordance with agreement or law. Under the Civil Code 2015, only a transfer of rights (not mortgage of rights) need to be notified to the obligor. It is not clear if the notice requirement is a perfection requirement and what the consequence is if the notice about the mortgage over receivable is not made to the relevant obligor.

Could contractual options be considered as derivative securities under new Securities Law 2020?

Contractual option agreed privately between two parties is unlikely to be considered as a type of derivative securities under the new Securities Law 2020 and Decree 158/2020. This is because Decree 158/2020 has substantially reduced the scope of underlying assets (tài sản cơ sở) of derivative securities subject to securities regulations. Under the old Securities Law 2006 and Decree 42/2015, a private contractual option could still be considered as a derivative securities under the securities regulations.