Which Form of Investment – Branch or Company?

 Foreign entities can set up company or set up branch offices in Vietnam to carry out business activities.

There are several main different aspects between opening a branch office or establishing a foreign owned company in Vietnam.

1.Conditions

-Permits for establishment of Vietnam-based branches of foreign enterprise shall each have a valid term of five years.

-Foreign enterprise must choose between establishing a 100% foreign capital enterprise or forming a joint-venture with domestic investor or company.

2.Certificate

-The Branch office needs to apply and obtain the operation license of a Branch;

-A foreign owned company will need to apply and obtain the investment certificate (“IC”) to operate in Vietnam.

3.Capital

-Optional, foreign entity will decide how much money to invest in branch. The allocation capital for branch is capital for the subordinate units.

-Mandatory, foreign entity will need to provide minimum capital as required by Vietnam Law in conditional investment area.

4.Obligation of owner

For branch office in Vietnam, owner takes full responsibility;

For company, owner takes responsibility within the capital contributed into the company in Vietnam;

5.Other matters

-For branch office setting up in Vietnam, the procedure is less complicated compared to those for the establishment of a 100% foreign owned company;  the branch office is able to carry out trading and some other activities as stipulated by Vietnam laws and the WTO commitments which Vietnam enters.  The business lines of a branch have to be aligned with the business lines of the headquarter of the foreign entity.

-Setting up foreign owned company would be more complicated than the setting up of the branch office, however this form of investment has more flexibility and freedom as it is a stand alone Vietnam entity recognized under Vietnam laws.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have law firm in Hanoi, law firm in Ho Chi Minh City and law firm in Da Nang.

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Differences Between Limited Liability Company and Joint Stock Company

 

How to distinguish differences Between Limited Liability Company and Joint Stock Company

Vietnam Law allows the establishment company in Vietnam in various forms. It is an important step in investment process.

Investors could choose different forms depending on the needs and capacity on the ability to raise capital and sharing the risk in business as well as the management and operating costs. Each form will have its own organizational structure, operating mechanism, rights and obligations specified under Law on Enterprise 2014.

Currently, Limited Liability Company (“LTD”) and Joint Stock Company (“JSC”) are two popular enterprise forms operating in Vietnam.

So, what are the differences Between Limited Liability Company and Joint Stock Company?

I. Organizational Structure:

Differences Between Limited Liability Company and Joint Stock Company are as following:

Number of members/shareholders:

LTD

-Single member LTD: Having only one member (member can be an organization or an individual);

-Multi members LTD: Having at least 2 members and not exceed 50 members (member can be an organization or an individual).

JSC

Joint Stock Company has at least 3 shareholders and not limit the maximum number.

Management structures

LTD

-Single member LTD

Single member LTD owner by an organization shall be organized under two models: Company president, Director/General director and Supervisor; (OR) Members Council, Director/General director and Supervisor.

Single member LTD owner by an individual shall be organized as follows:  Company president, Director/General director.

-Multi members LTD

Multi members shall be organized by: LTD Council members, Chairman of the Members Council and Director/General director;

Multi members LTD having 11 members or more shall establish the Board of Supervisors.

JSC

JSC can be organized under two models: General Meeting of Shareholders, Board of Directors, Board of Supervisors and Director/General director; (OR) General Meeting of Shareholders, Board of Directors (Board of Internal Supervisors under Board of Directors) and Director/General director.

II. Capital Contribution: 

Differences Between Limited Liability Company and Joint Stock Company are as following:

Raising capital

LTD

-Single member LTD: Owner increases charter capital

-Multi members LTD: Members increase their charter capital, or increasing the number of capital contributors

JSC

Different from LTD, JSC can raise its capital by various methods as follows: Selling shares to existing shareholders; Selling shares individually to non-shareholders; Issuing shares on the stock market.

Transfer of contributed capital

LTD

-Single member LTD: Owner transfers a part of contributed capital to other persons and this could lead to changes of the type of business or other procedures if all capital is transferred (for instance in a M&A deal).

-Multi members LTD: Offer the stakes to other members in proportion to their stakes in the company under the same conditions;  The stakes could only be transferred to other persons if the members do not buy or do not buy completely within 30 days from the offering date.

JSC

The shareholders of JSC are free for transfer their contributed capital after 03 years from the establishment.

Having said that, LTD is a type of enterprise that the capital contribution is not the only link between the members of the company but they are also linked together by relationship. They may be acquaintances and trust each other to jointly contribute capital to establish an enterprise. Therefore, the management of the LTD is as complicated as JSC. With the larger the number of shareholders, the level of capital mobilization, voting power to decide on issues of the company based on the ratio of capital contribution of each shareholder, the management and operation of the JSC is more complex.

The ability to raise capital of a JSC is higher than a LTD. Because, JSC can issue shares to the public in the form of securities. When the stocks are listed on stock exchange, the information of company’s business operations must be public and more transparent.

The procedure to set up a company in form of an LTD or a JSC has not much differences.

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What Are the Advantages of Foreign Investors in Setting Up Business in Vietnam

 Located in an important position of Southeast Asia, Vietnam has a long coastline of more than 3,000 km. With a diverse geographical structure interspersed with mountainous, highland and coastal areas suitable for general economic zones, Vietnam has ideal conditions to develop the trade and tourism industries. When setting up business in Vietnam, investors can enjoy financial advantage such as corporate income tax, import and export tax and land finance incentives.

Incentives of taxes for setting up business in Vietnam

Incentives on corporate income tax: In recent years, Vietnam has gradually reduced the corporate tax rate (CIT). In the 2004-2008 period, CIT was 28%, in the 2009-2013 period it was 25%, from 2014 to 2015, 22% and from January 1, 2016 until now, 20%. In addition, the provision of high corporate income tax incentives for a number of key fields that need to be encouraged for investment has contributed to attracting investment, encouraging business, creating favorable conditions for enterprises to increase accumulation, increase investment in the economy, and promote growth, hence promoting investors in setting up company in Vietnam.

Import and export tax incentives: The 2016 Import and Export Tax Law has added regulations that high-tech enterprises, science-technology enterprises, science-technology organizations are exempted from import tax on raw materials, materials and components that cannot be produced domestically within 5 years from the date of commencement of production. There are also import and export tax incentives being applied such as:

(i) Exemption from import tax for goods imported for processing for foreign countries and when exporting and returning products to foreign parties, they are exempt from export tax;

(ii) Goods imported for processing that are exempted from tax, goods temporarily imported for re-export and goods being raw materials and supplies in service of the production of exported goods can be extended the tax payment time to 275 days from the date of filing the customs declaration; goods temporarily imported for re-export may be extended the tax payment time to 15 days from the expiration date;

(iii) Exemption from import tax on goods to create fixed assets for investment projects in areas of special investment encouragement, investment promotion fields and investment projects in the locality have difficult socio-economic conditions.

Incentives of land rent for setting up business in Vietnam

Incentives on land finance: Foreign enterprises investing in Vietnam can be applied adjusted reduce rate (%) calculating the general land rent from 1.5% to 1%. In addition, the State also stipulates the application of the land price adjustment coefficient in determining the land price to calculate the land rent, therefore, making Vietnam increasingly becoming a favourable destination to attract foreign investment and company establishment in Southeast Asia.

Benefits of development of legal system for setting up business in Vietnam

In addition, the development of a transparent and consistent investment legal system is increasingly becoming a good tool to promote foreign direct investment inflows into Vietnam in the spirit of the state ensuring the rights of the investors’ ownership, investment capital and other interests of foreign organizations and individuals, creating favorable conditions and simplifying procedures for such organizations and individuals to establish company in Vietnam.

Compared with the foreign investment laws of some countries in the region, the law on foreign investment in Vietnam is considered by the international public to be more open and attractive, for example applying the form of 100% foreign capital ownership, administrative procedures are simplified, non-discriminatory between Vietnamese enterprises and foreign-invested enterprises.

The law has been transforming in the direction of considering investment and business as the matters of enterprises and investors, which the investors have full authority to make decisions from investment projects to the formation and business of the enterprise and that the government only guides, creates an open legal environment, has favorable mechanisms and procedures, supervises and enforce the law.

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What Foreign Investors Should Know When Setting up company in Vietnam in 2022?

 In the period of global economic integration, especially Post-Covid-19 era,  Vietnam – a developing country is considered one of the countries with potential markets that foreign investors choose to establish the business here taking advantage of the government policy to promote the economy i.e. “new normal” adaption living with Covid-19, quick opening of border allowing tourists to visit Vietnam since Apr 2022,  tax reduction, public investment increase…

Whom can set up business in Vietnam?

First, the objects allowed to establish and manage enterprises in Vietnam are all organizations and individuals who are not in the following cases: (i) Minors; people with limited legal capacity; incapacitated people; people having difficulties controlling their behaviors; organizations that are not juridical persons; (ii) People who are facing criminal prosecution, kept in temporary detention, serving an imprisonment sentence, serving an administrative penalty in a correctional institution or rehabilitation center, has limited legal capacity or is incapacitated, is not able to control his/her own behaviors, is banned by the court from holding certain positions or doing certain works; other cases prescribed by the Law on Bankruptcy and the Anti-corruption Law. At the same time, individuals with foreign nationality implementing business investment activities in Vietnam are considered foreign investors. The implementation of investment forms; the scope of operation as well as related procedures must meet the conditions under the Investment Law; related legal documents; other conditions of international treaties that Vietnam is a member.

How to invest and set up business in Vietnam?

Second, foreigners, foreign investors must explore legal forms of investment in Vietnam including: (i) Investing in establishing economic organizations; (ii) Invest in capital contribution, share purchase and purchase capital; (iii) Implementing investment project; (iv) Investment in the form of BCC contract; (v) Forms of investment and new economic organizations according to the Government’s regulations. They need to consider projects planning to invest in Vietnam in case of requesting approval of investment policy of 2020 Investment Law. The investment project of foreign investors is required to carry out procedures for granting investment registration certificates. If the case must be proposed to approve the investment policy, they must prepare dossiers and carry out procedures to request approval of investment policies. When completing the procedure, they will be granted a written decision on investment policy and investment registration certificates. If not falling in the case of approval of investment policy, foreign investors conduct procedures for applying for investment registration certificates.

What documents required to set up company in Vietnam?

Third, after being granted a certificate of foreign investment registration, foreign investors shall continue the procedures for enterprise registration. Vietnam laws do not have to limit the type of enterprise to foreign investors, hence investors can choose: One member limited liability Company; Two-member limited liability companies or more; Joint stock company; Partnerships. Each type of business has different advantages and disadvantages, and foreign investors should base on the purpose and investment scale to choose the type of suitable form of investment. In addition, the investment under the conditional business lines need to fully meet the conditions according to the provisions of law. Depending on the type of business, there will be the document requirements that need to register accordingly. And most importantly, foreign investors must prepare necessary conditions and sufficient conditions (validated documents for use in Vietnam, business name, head office address, business line, charter capital, legal representative,…) attached to the understanding and implementation of the order and procedures when they want to establish a certain type of enterprise in accordance with the Enterprise Law 2020.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Forms of Foreign Investment in Vietnam

 From 01/01/2021, the Law on Investment 2020 in Vietnam came into force. According to the Vietnam Law on Investment 2020, there are five types of foreign investment in Vietnam.

- Investment in the establishment the economic organizations:

This type comprises two methods: Establishment of a company with 100% capital from foreign investors or establishment of a company between the domestic investors or the domestic government and foreign investors.  Before establishing the economic organizations, the investors must have the investment project, perform the procedures for issuance of the Investment Registration Certificate, satisfy the conditions on the percentage of charter capital ownership according to the Law on Securities, on equitization and transformation of state-owned enterprises, and the other conditions according to the international treaties that Vietnam signed (if any).

- Investment in the capital contribution, purchase shares, purchase contributed capital:

Capital contribution, purchase shares, purchase contributed capital are the types of indirect investment for foreign investors through the purchase of stocks, bonds, and other valuable documents. Investors must conform to the legal provisions on capital contribution, purchase share, and purchase contributed capital.

- Implementation investment project:

Foreign investors can sign the PPP contract. This is an investment method based on limited-term cooperation between the State and private investors through the signing of PPP contracts to attract private investors to participate in the implementation of investment PPP projects.

- Investment under the BCC contract:

BCC contract is signed between the domestic investors according to the Civil Law. BCC contract with at least one party being a domestic investor that performs the procedures for granting the Investment Registration Certificate.

- New forms of investment and economic organizations according to the Government’s rules.

We could assist the client to set up company in Ha Noi, Ho Chi Minh City, Da Nang or in other provinces in Vietnam.

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Setting Up a Company in Conditional Investment Areas in Vietnam

 In the evolving economic climate of Vietnam, setting up a company in conditional investment areas in Vietnam requires keen insight and adherence to specific regulations. For foreign investors, it’s not just about complying with the general laws of investment but also about demonstrating expertise and meeting stringent conditions in their respective areas.

The Essence of Experience and Expertise 

For instance, when setting up a trading company in Vietnam, foreign investors must showcase their experience in the trading arena.

The conditions are particularly crucial in sectors like banking, financial services, real estate, and security services, audit, accounting, legal services…

It’s imperative for investors to understand that while Vietnam encourages foreign investment, certain sectors are categorized as “conditional,” meaning they require additional scrutiny and adherence to specific requirements due to their potential impact on areas such as national defense, security, public health, culture, and the environment.

How to Establish a Company in Vietnam?

Navigating Legal Requirements in Setting Up a Company in Conditional Investment Areas in Vietnam

The legal framework for setting up a company in conditional investment areas in Vietnam is complex and multifaceted.

Foreign investment lawyers play a crucial role here, offering indispensable advice on investment licensing matters. For a new project, it is essential for foreign investors to meet all business conditions stipulated by Vietnamese law before they can be granted an investment license. This underscores the importance of professional legal counsel in navigating these processes.

Investment Licensing and Business Requirements

Obtaining an investment license is a critical step in setting up a company in conditional investment areas in Vietnam. However, it’s important to note that the conditions laid out by Vietnamese investment laws are requirements that must be met in pre or post-incorporation process. These conditions can range from the forms of investment, nationality of the investors, their professional expertise and licensee, foreign ownership ratios, to the scale and type of the investment projects.

Financial Planning and Capital Requirements

Given the sensitive nature of conditional investment areas, foreign investors must be prepared to meet higher capital requirements. This is reflective of the increased risks and regulatory demands associated with these sectors. Robust financial planning is therefore a cornerstone for successfully setting up a company in these areas.

Compliance and Long-term Strategic Planning

Staying compliant with local laws and regulations is crucial when setting up a company in conditional investment areas in Vietnam. This includes adhering to sector-specific regulations such as those impacting public health, culture, and the environment. Furthermore, long-term strategic planning is essential, keeping in mind the dynamic nature of legal frameworks and market conditions in Vietnam.

Setting up a company in conditional investment areas in Vietnam offers unique opportunities but comes with its set of complexities and stringent requirements.

Thorough preparation, understanding of the legal framework, strong financial backing, and a flexible business strategy are crucial for navigating this landscape successfully.

With Vietnam continuing to grow as a key economic player in Southeast Asia, the role of experienced foreign investment lawyers in Vietnam and a deep understanding of Vietnamese investment laws become invaluable for any investor looking to establish a presence in its conditional investment areas.

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