Market access conditions applied to foreign investors by virtue of decree n ° 31/2021 / nd-cp

On March 26, 2021, the Vietnamese government issued Decree No. 31/2021 / ND-CP, which entered into force on the same day, to detail and guide the implementation of a number of articles of the law on l ‘2020 investment (“Decree 31/2021“). This decree concretized the provisions of the Investment Law 2020 on the principle that foreign investors must have access to the Vietnamese market as national investors, with the exception of investments appearing on the list of access restrictions. to the market for foreign investors. Thus, trades in Vietnam can be divided into 03 groups depending on the conditions of access to the Vietnamese market for foreign investors as follows:

1. Group 1: Professions on the list of professions with prohibited market access for foreign investors

According to section A of annex I of decree 31/2021, foreign investors are not allowed to invest in 25 sectors of activity[1], including certain professions such as:

  • Trade in goods and services included in the list of goods and services under state monopoly;
  • Press activities and news gathering;
  • Capture or harvest marine resources;
  • Guest worker services;
  • Public investigation services;
  • Trading of goods;
  • Temporary importation for re-exportation of goods;
  • Export, import, distribute certain goods on the list of goods that foreign investors and foreign-invested enterprises are not allowed to export, import or distribute;
  • Industrial property representative services and intellectual property valuation services;
  • Travel services, except international travel services for inbound tourists;
  • And a few other industries.

2. Group 2: Professions on the list of professions with restricted access to the market for foreign investors

According to Decree 31/2021, there are 59 sectors of activity with conditional access to the market for foreign investors, listed in section B of annex I. To be able to invest in these sectors of activity in Vietnam, foreign investors must meet the conditions for market access. published on the National Investment Portal[2]. These lines of business include, to name a few:

  • Manufacture and distribution of media products;
  • Provision of audio and television broadcasting services;
  • Assurance; banking; securities trading and related services;
  • Postal and telecommunications services;
  • Advertising services;
  • Education services;
  • Transportation of goods and passengers by rail, air, road, river, sea, pipeline;
  • Real estate affairs;
  • Legal services;
  • Tourist services;
  • Health and social services;
  • Sports and entertainment services;
  • Auditing, accounting and tax services;
  • Assessment services;
  • Electronic commerce activities;
  • And a few other industries.

Decree 31/2021 also states that in the event that Vietnamese law and international investment treaties have stipulated market access conditions for foreign investors but these conditions have not been updated on the list of market access restrictions for foreign investors and have not been published as prescribed, the provisions of Vietnamese law will be applied[3].

3. Group 3: The remaining professions

For sectors of activity not appearing in the lists of group 1 and group 2 mentioned above, in accordance with decree 31/2021, foreign investors will have access to the market as national investors if Vietnamese law does not provide for no regulations restricting market access for foreign investors to these activities. lines. Conversely, if Vietnamese law contains provisions restricting market access for foreign investors to these sectors of activity, foreign investors are only allowed to invest in Vietnam if they meet the conditions of Vietnamese law.[4]. This regulation can be considered more progressive and favorable to foreign investors when investing in Vietnam than the provisions of the Investment Law 2014, in which, the Investment Law 2014 and its guidance document state that “With regard to sectors and sub-sectors excluded from commitments or not specified in Vietnam’s WTO Schedule of Commitments and other international investment treaties, if the investment conditions applied to foreign investors do not are not provided for in Vietnamese legislation either, the investment registration authority consults the Ministry of Planning and Investment and relevant ministries“[5].

In cases where foreign investors have fulfilled the market access conditions in accordance with Vietnamese law and Vietnamese law has new regulations on market access conditions, foreign investors can continue to carry out trading activities. investment under the previous conditions. If foreign investors wish to make additional forms of investment, or adjust and complement the investment objectives and business lines of approved forms of investment, which must meet the conditions for market access under the new regulations, foreign investors must meet the conditions of the newly issued regulations. In this case, the competent state agency should not reconsider the conditions of access to the market for the lines of activity in which foreign investors have been authorized to invest in[6].

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