Legal Advice: Five conditions for foreign enterprises to be licensed to purchase and sell goods

1.    A foreign-invested enterprise being an investor from a country or region must accede to treaties to which Vietnam is a contracting party and under which Vietnam has committed to open its market for goods purchase and sale or other activities directly related to the purchase and sale of goods.

According to Circular 08/2013/TT-BTP, foreign-invested enterprises are entitled to invest in order to carry out goods trading and other directly related activities only within the scope prescribed in the Investment Certificate, Business License or Retail Establishment License, and other relevant regulations. The following activities are included:

•    Goods export;

•    Goods import;

•    Goods distribution;

2.    The form of investment must be in accordance with Vietnamese law and the schedule committed in treaties to which Viet Nam is a contracting party. There are two forms of investment:

•    Direct investment:

+    Establish economic organizations with 100% foreign-invested capital;

+    Establish joint ventures between domestic and foreign investors;

+    Invest in business development;

+    Invest in the forms of BCC, BOT, BTO or BT contracts;

+    Purchase shares or contribute capital to participate in investment management;

+    Invest in the merger or acquisition of enterprises.

+    Other forms of direct investment.

•    Indirect investment:

+    Purchase shares, share certificates, bonds and other valuable papers;

+    Invest through securities investment funds;

+    Invest through other intermediary financial institutions.

In the event where a Vietnamese law promulgated after Vietnam becomes a contracting party to a treaty contains provisions which are more favorable than those of the treaty, investors are entitled to select to comply with either the provisions of such treaty or the Vietnamese law.

3.    The goods and services to be traded must be consistent with Vietnam’s market-opening commitments and Vietnamese law and not included in the list of goods prohibited from trading.

4.    The scope of operation must be consistent with Vietnam’s market-opening commitments and Vietnamese law. Foreign-invested enterprises are permitted to operate within the scope of their Business License.

5.    Approval from competent authorities must be granted, specifically as follows:

•    After obtaining a written approval from the Ministry of Industry and Trade, foreign-invested enterprises already granted with Investment certificate will be granted a Business License by the provincial-level People's Committee to conduct purchase and sale of goods and other activities directly related to the purchase and sale of goods.

•    In case where a foreign investor invests in goods trading or other activities directly related to goods trading in Vietnam for the first time, such investor shall need to submit a dossier for carrying out investment procedures to the investment-managing state agency. Such agency shall consult the Ministry of Industry and Trade and only grant the Investment Certificate for goods trading or other activities directly related to goods trading after receiving a written approval from the Ministry of Industry and Trade. In this case, a valid Investment Certificate also acts as a Business License. In addition, investment procedures shall be carried out in accordance with Law on Investment.

•    In regards of foreign investors solely investing in import or export activities, or foreign-invested enterprises only requesting for supplement of import or export activities, not goods distribution or activities directly related to goods trading, the investment-managing state agency shall, based on the market-opening schedule committed in treaties to which Vietnam is a contracting party, grant or supplement the Investment Certificate without having to obtain approval from the Ministry of Industry and Trade.

•    Setting up retail establishments in addition to the first one (in case the first one has been established in compliance with provisions of law but has yet to be granted a Retail Establishment Certificate) shall be decided by the provincial-level People's Committee after receiving approval from the Ministry of Industry and Trade.

For foreign investors not from a country or region acceding to treaties to which Vietnam is a contracting party, before a competent agency grants a Business License, the Minister of Industry and Trade shall, on a case-by-case basis, consider and approve goods trading activities and other activities directly related to goods trading.   

(Source:VNNet)