List of investment conditions applicable to foreign investors in Vietnam

Monday - 01/06/2020 14:56
The Ministry of Planning and Investment (MPI) published a consolidated list of investment conditions applicable to foreign investors in Vietnam (FDI Condition List) as of 27 December 2015 in its website.
List of investment conditions applicable to foreign investors in Vietnam
For easy reference, a consolidated list based on the information published on MPI’s website can be downloaded from here (EN) and here (VN). The FDI Condition List represents a major effort of the MPI to help foreign investors to navigate a mirage of domestic laws and investment treaties which may apply to a foreign investor in Vietnam.
 
That said, when relying on the FDI Condition List, one should take note of the following:
 
The FDI Condition List is updated as at 27 December 2015 only. As such, at least one still needs to do research for regulations issued after 27 December 2015. Updating the FDI Condition List may take substantial time and effort since it requires MPI to request and obtain responses from all other ministries (about 20 in total). Therefore, it is not clear how frequently the MPI could keep the FDI Condition List updated (e.g. when the EU-Vietnam FTA and TPP are approved).
 
The FDI Condition List only specifically covers 12 international treaties including WTO, Vietnam-Japan BIT, Vietnam-Korea FTA, Vietnam – US BTA, Vietnam – Japan EPA, ASEAN – Japan EP. Therefore, commitments under other international treaties are not covered.
 
The FDI Condition List does not cover sectors (Uncommitted Sectors), which is not included in the 12 international treaties or which are included in 12 international treaties but Vietnam is not required to have any market opening commitment for such sectors and which is not subject to any specific investment conditions under Vietnamese domestic law. For Uncommitted Sector, a foreign investor will need to seek approval from the relevant ministries. This requirement seems to be contrary the advertised principle of Investment Law 2014 that an investor is entitled to invest in any sector that is not prohibited by law.
 
Investors from Japan are expressly allowed to be treated as Vietnamese investors except in sectors listed in Annexes 1 and 2 of the Vietnam-Japan BIT.
 
The MPI seems to step back from the principle under Decree 118/2015 that if there has been a foreign investor who has been licensed in an Uncommitted Sector and the Uncommitted Sector is included in the MPI Condition List then other foreign investors may be allowed to invest in such Uncommitted Sector.
 
It is not clear if a sector listed in the FDI Condition List as having no investment condition will be considered as a conditional investment sector or unconditional investment sector.

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