Uncertainties regarding merger filing involving regulated companies in Vietnam

Article 13 of Decree 35/2020 sets out two different sets of merger filing threshold. In particular, the one provided under Article 13.2 (Special Threshold) applies to transactions involving regulated companies such as credit institutions, insurance companies, and securities companies (Special Company), whereas the remaining one under Article 13.1 (Regular Threshold) applies to transactions involving remaining types of companies (Regular Company). The two sets of different merger filing thresholds give rise to various uncertainties for a M&A transaction involving a Special Company.

First, in the case of a transaction involving a Special Company and a Regular Company, it is not clear if a merger filing must be made when:

  • Situation 1: The Regular Company does not trigger the Regular Threshold but the Special Company triggers the Special Threshold; or

  • Situation 2: The Regular Company triggers the Regular Threshold and the Special Company triggers the Special Threshold; or

  • Situation 3: The Regular Company triggers the Regular Threshold but the Special Company does not trigger the Special Threshold.

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Written by Nguyen Quang Vu On In ,

Requirement for contracting parties’ consent in case of de-merger of a Vietnamese company

It is not clear whether, in case of a de-merger of a Vietnamese company, the remaining company must comply with the procedures for transferring contractual rights and obligations under the Civil Code 2015 including obtaining consents from its contracting parties. Under Enterprise Law 2020, a limited liability company or a joint stock company (remaining company) may be de-merged by the following mechanics:

· transferring a part of assets held by remaining company to a new company; and/or

· transferring a part of the rights and obligations of remaining company to new company.

And the remaining company continues to exist after the de-merger.

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Written by Nguyen Quang Vu On In ,

A Detailed Analysis Of Decree 31/2021 Implementing The Investment Law 2020

On 26 March 2021, the Government issued Decree 31 to detail and guide the implementation of the Investment Law 2020 (Decree 31/2021). Decree 31/2021 took effect on the signing date and replaced Decree 118/2015 guiding the Investment Law 2014 and other related documents. Decree 31/2021 provides some notable points which are new in comparison with Decree 118/2015 and other related documents. This post will discuss such new points in details as below.

This post is written by Trinh Phuong Thao and edited by Hoang Thi Thanh Thuy.

Please download the post in pdf here.

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Written by Nguyen Quang Vu On In ,

New Amendments To Investment Law, Enterprise Law, Electricity Law, Residential Housing Law and Other Laws

On 11 January 2022, the National Assembly passed a new law amending 09 laws, including Public Investment Law, Public-Private Partnership Law, Investment Law, Residential Housing Law, Tendering Law, Electricity Law, Enterprise Law, Law On Special Consumption Tax, and Law On Civil Judgment Enforcement (Law 03/2022). Law 03/2022 will come into effect on 1 March 2022. In this post, we will discuss some new key points of Law 03/2022.

1) Enterprise Law 2020

Change of the term “members of the Members’ Council” into “members of the company”

As discussed before, the Enterprise Law 2020 (Articles 49 and 50) only provides for the rights of members of the Members’ Council, but not the rights of the members of the LLC. And many rights of the members of the Members’ Council should be the rights of the members of the LLC such as rights to subscribe for new capital increase or to receive dividends paid by the LLC. The change of the term “members of the Members’ Council” into “members of the company” in Articles 49 and 50 has successfully resolved this problem, although in other provisions, the Enterprise Law 2020 still does not distinguish between the positions of members of the LLC and members of the Members’ Council of the LLC.

Removal of requirement on signatures of dissenting members on meeting minutes; personal liability of the chairperson and the person writing the minutes

The requirement that meeting minutes of the Members’ Council must include signatures of members who disagree to pass such meeting minutes is now removed.

In addition, in the event that the chairperson of the meeting of the Members’ Council/Board Of Directors or the person writing the minutes refuses to sign the meeting minutes, for such minutes to be effective, the Enterprise Law 2020 no longer requires all attending members of the meetings to sign, and only the signatures of the attending members who agree to pass the minutes are necessary. Also, in such event, the chairperson or the person writing the minutes who refuses to sign such minutes must bear personal liability for any loss arising to the company due to their refusal.

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Written by Nguyen Quang Vu On In , , , ,