On 1 July 2019, the Competition Law 2018 (i.e. the Law No. 23/2018/QH14) came into force, replacing its 14-year-old predecessor, the Competition Law 2004, and related guiding instruments. One of the most significant changes introduced by the new Law is a shift in regulatory approach from form-based to effects-based, whereby the antitrust authority will employ the substantial lessening of competition test to decide whether to greenlight a merger.
Other notable reforms include the new jurisdictional thresholds and a two-phased appraisal process. A decree providing guidelines for implementation of the Competition Law 2018 (i.e. Decree 35/2020/ND-CP), which sets out, inter alia, filing thresholds and criteria for substantive assessment, is slated to take effect on 15 May 2020 (Guiding Decree). Another decree dealing with competition violations (i.e. Decree 75/2019/ND-CP) has also been promulgated, outlining the administrative sanctions and remedies for breaches of merger control regulations, among other relevant matters.
Vietnam’s merger control regime is characterised by two core features. First, it is ex ante in nature, which means parties to a contemplated transaction must notify their transaction prior to completion if it qualifies as an economic concentration within the meaning of the Competition Law 2018 and crosses any of the jurisdictional thresholds. The current regime does not provide for any filing exemption or clearance exemption, which means notification is mandatory if the above pre-requisites are satisfied.
The second core characteristic of Vietnam’s merger control regime is the standstill obligation. This entails that merger parties are required to put the anticipated transaction on hold until it is cleared, either automatically or after a full review.1
The Competition Law 2018 prohibits any economic concentration that causes or is capable of causing significant anti-competitive impact on the Vietnamese market. An economic concentration encompasses a merger, consolidation, acquisition, joint venture and other types of concentration provided by laws.
A merger is defined as when one or more undertakings transfer all of their lawful assets, rights, obligations, and interests to another business and, concurrently, terminate their business activities or cease to exist.
A consolidation is defined as when two or more undertakings amalgamate all of their lawful assets, rights, obligations, and interests to establish a new entity and, concurrently, terminate their business activities or cease to exist altogether.
An acquisition is defined as when an undertaking acquires all or part of the capital contribution or assets of another undertaking sufficient to control the acquiree or any of its business lines.
A joint venture is defined as when two or more undertakings jointly establish a new undertaking by contributing a portion of their lawful assets, rights, obligations, and interests.
The last definition focuses on the legal form of the joint venture rather than its activities. Only joint ventures incorporated as legal entities or juridical persons are relevant under Vietnam’s merger control regime, while purely contractual joint ventures are not regarded as an economic concentration for the purposes of Vietnam’s competition law. Unlike the EU’s full-function test, the definition is not concerned with whether the joint venture carries out any business activities, or the degree of its autonomy from the parent companies. If a joint venture exists as a legal entity, it will be construed as an economic concentration subject to merger filing requirement, irrespective of whether it is a greenfield joint venture with no actual business operation, or whether it relies almost exclusively on its parent companies for sales revenue on a lasting basis.
As a matter of principle, whether a transaction constitutes a concentration depends on whether it satisfies any of the respective statutory definitions stipulated in the Competition Law 2018 or, where applicable, other legislation. As such, on a literal interpretation, the concept of ‘economic concentration’ may encompass intra-group mergers, i.e. parent-subsidiary mergers and other types of internal restructuring. However, these transactions arguably should not trigger a full review because they are inherent reorganisation and essentially have no impact on market competition.
It is the authors’ understanding that the authority also shares this view, albeit unofficially. It remains to be seen whether intra-group mergers would be exempted in the future.
Certain mergers in the insurance, finance and telecommunications sectors are regulated by sector-specific legislation. It is important to note that these provisions do not override merger control regulations under the Competition Law 2018, but rather exist in tandem with the latter. Mergers in the insurance and finance and banking sectors are subject to a separate set of filing thresholds under the Competition Law 2018 as further discussed below.
A written approval of the Ministry of Finance is required when an insurer:2
A credit institution must obtain a written approval of the State Bank of Vietnam when it is restructured by way of division, demerger, consolidation, merger, acquisition or conversion of legal form.3
An anticipated concentration resulting in the market share of a post-merger telecoms business of 30% to 50% must be notified in advance to the telecoms regulator, i.e. the Vietnam Telecommunications Authority under the Ministry of Information and Communications.4
As the Competition Law 2018 adopts the effects-based approach when it comes to merger control, an offshore transaction will be caught if it has an actual or potential significant restrictive impact on the Vietnamese market.
As a general rule of thumb, parties to a contemplated foreign-to-foreign merger that have local subsidiaries or generate sales in and/or into Vietnam must notify such merger if any of the filing thresholds is met.
The Competition Law 2018 no longer relies on market share as the sole jurisdictional threshold. The current regime also adds financial criteria to its filing test, namely total assets, total turnover, and transaction value. The Guiding Decree sheds light on these changes, introducing two sets of jurisdictional thresholds, one applicable to transactions in virtually all sectors, the other reserved for transactions involving credit institutions (CIs), insurers and/or securities companies.
A contemplated concentration, except for one involving CIs, insurers and/or securities companies, must be notified to the competition authority if any of the following thresholds is met:
A contemplated transaction involving CIs, insurers and/or securities companies must be notified if it crosses any of the following thresholds:
The introduction of financial criteria, coupled with the reduction in the combined market share threshold from 30% under the former regime to 20%, will likely increase the number of M&A transactions caught by the filing requirement. The potential increased influx of notification files has raised concern about the authority’s ability to meet the statutory deadline for merger appraisal.
The ‘control’ concept, which is broadly defined and includes de facto control, is applicable in cases of acquisition and so-called ‘group of affiliated undertakings’ (as further discussed below). In particular, an undertaking (A) is deemed to control or govern another undertaking (B) if:
Neither the Competition Law 2018 nor the Guiding Decree explicitly provides for ‘negative control’ or the veto right. Applying the ‘control’ definition, it arguably follows that a minority shareholder may be deemed to exert ‘control’ over the target business if, for example, decisions that are critical to the target business’ commercial policies such as operating capital, markets, and/or business lines, require unanimity or a supermajority. The authors understand that the regulators also share this view, albeit unofficially.
“Group of affiliated undertakings” is a crucial element in the asset and turnover tests, especially in transactions that involve a member company of a corporate group. The Guiding Decree defines a ‘group of affiliated undertakings’ as a collection of businesses which are under the common control or governance of one or more undertakings within the group in question, or which shares the same management.
“Assets” in this test refers to assets in the Vietnamese market of each party in the anticipated merger or, where such party belongs to a so-called ‘group of affiliated undertakings’, the total assets in the Vietnamese market of the whole group. By taking the group’s assets into account, this test would in effect nullify any attempt to circumvent the filing requirement by simply establishing an SPV to acquire a target business.
The asset test is applied in a non-discriminatory way; that is, assets of the entire corporate group on the Vietnamese market will be taken into account irrespective of whether other member undertakings have relation to the target business or whether they are offshore.
It is also worth noting that the current merger control regime does not define ‘assets’. Thus, references can arguably be made to the financial statements of each relevant party for their respective asset value.
In this test, the relevant turnover is the turnover for the relevant goods or service in question on the Vietnamese market, i.e. sales in and/or into Vietnam, of each party in the transaction or the group of affiliated undertakings.
Of note, when calculating the turnover of the group of affiliated undertakings, intra-group turnover should be excluded.5
As provided by the Guiding Decree, transactions taking place entirely outside of Vietnam are exempt from the transaction value test.6
The instrument, however, is notably silent on how this test would apply in, for instance, stock swap transactions or transactions where part of the consideration is not fixed but subject to the target’s performance in the future. In these transactions, the deal value is not always clear-cut, making application of the test a practical challenge.
Combined market share is the sum of market share in the relevant market of all undertakings involved in the anticipated merger. The market share of the member undertaking in a group of affiliated undertakings corresponds to that of the entire group.
The ‘relevant market’ refers to the market of interchangeable goods and services (i.e. relevant product market) in particular geographical areas with similar competitive conditions and which are in stark contrast with neighbouring areas (i.e. relevant geographical market). As such, the relevant market is determined on the basis of relevant product market and relevant geographical market.
The Guiding Decree provides for two sets of factors to assess the interchangeability of the goods or services in question.
The first set comprises of primary factors, namely the characteristics, user purpose, and price of such goods or services. In typical cases, the Vietnam competition authority, i.e. Vietnam National Competition Committee (VNCC), will rely on two out of these three factors to identify the relevant product market.
If on the basis of the first set of factors the regulator is unable to ascertain the degree of interchangeability of the goods or services in question, they will make use of any one, or a combination of several, additional factors including the rate of change in demand, switching costs, consumption habits, and the differentiation between selling and purchasing prices for different customer groups.
In special cases involving one particular or one particular group of goods or services, the relevant product market is ascertained based on the characteristics of the goods or services in question, consumption habits and/or specific methods of trading including the application of information technology.
The assessment of specific relevant product market may also involve considering market of ancillary products, which are add-ons to enhance the features of, or demand for, the main product. Accordingly, add-ons’ price fluctuation may affect the demand curve of primary product.
The Guiding Decree identifies the boundary of the geographical area on the basis of, inter alia, costs and time of transporting goods or providing services, market barriers, and consumption habits.
A given geographical area is considered to have similar competitive conditions and be in stark contrast with neighbouring areas if:
Notwithstanding the guiding provisions on determination of the relevant market, application of the market share test remains a thorny issue. The general lack of reliable and accessible market data in Vietnam has made it challenging for undertakings to determine their respective and combined market share. Critics perceive the test as a burden on businesses and argue that it should not have been retained. On the other hand, proponents maintain that market share is a relevant filing threshold and it is inconceivable that a business cannot determine its position on the market.
The VNCC employs the ‘substantial lessening of competition’ approach to decide whether to block a merger.
In the initial review phase, the VNCC primarily relies on the combined market share of the involved parties, the Herfindahl-Hirschman Index (HHI) and the Delta between pre-merger HHI and post-merger HHI to determine whether a contemplated transaction should be greenlit. In the later phase during which a more comprehensive appraisal takes place, the VNCC will assess both the significant restrictive impact and positive effects of the anticipated merger.
When it comes to assessing the significant restrictive impact or the ability to cause such impact, the VNCC mainly focuses on competition issues such as the ability of the post-merger undertaking to foreclose the market or raise market barrier. As mandated by the Guiding Decree, the VNCC needs to take all of these factors into account:
In assessing the positive effect, the VNCC also considers efficiencies. Accordingly, the VNCC is required to rely on any one or a combination of the following factors:
It is the authors’ understanding that in practice the VNCC is open to expand the factors relevant to the positive effect test: the aforementioned list is not exhaustive and other factors such as contribution to GDP or State budget may also be taken into account so long as the supporting data is bona fide.
In general, mergers which have a net positive impact will be more likely greenlit than not, although conditions and remedies may apply. As we experienced in the past with the former regime, this largely depends on the authority’s discretionary assessment as there was no specific guidelines as to how each factor should be included in the equation. This may be changed in the future, however, as the VNCC has unofficially confirmed its intention to issue such guidelines by end of 2020. Until then prior merger consultation with the authority is recommended to anticipate a reasonable timeline for closing of a merger. Please refer to the Pre-notification Phase below.
In the initial review phase, the VNCC will unconditionally greenlight a horizontal merger if:
For a transaction between parties which have a complimentary relationship in the chain of production, distribution and supply, clearance is unconditionally granted if the market share of each merger party in each relevant market is less than 20%.
Safe harbours for conglomerate mergers do not specifically exist under the Competition Law 2018 or the Draft Guiding Decree. As far as the authors are aware based on verbal consultation with the authority, however, the regulator takes the view that conglomerate mergers tend to have the least restrictive impact on the market and would more likely be greenlit than not.
A contemplated transaction that fails to pass the safe harbour test must go through a more thorough assessment, which ascertains whether it will be greenlit (conditionally or unconditionally) or blocked as discussed below.
A pre-notification or exploration phase does not officially exist under the current regime, yet it is a crucial step in the entire merger filing and appraisal procedures.
In this stage, merger parties who are uncertain about the filing requirements or anticipate that the contemplated transaction will likely raise competition concern may seek consultation on whether the transaction is reportable and/or which information is relevant and of interest to the VNCC. The merger control authority has in the past received multiple consultation requests7 and, to the best of the authors’ knowledge, welcomes any such requests and even signals that a merger guideline is in the work. The pre-notification phase, though informal, has helped the parties gain an insight into the authority’s early concerns and how best to address them in the notification file.
In practice, this stage should not last more than 30 calendar days for most cases.
Neither the Competition Law 2018 nor the Guiding Decree provides for a notification deadline. As a matter of practice, notification can be filed as soon as a term sheet is available, preferably once the transaction structure and principle terms are sufficiently clear to identify the relevant parties and market.
After receiving the notification file, the VNCC must inform the filing parties whether such file is valid and complete within seven working days. If the notification requires further clarification and/or amendment the parties will have 30 calendar days to finalise it.
The preliminary appraisal or initial review phase (Phase I) is the first in the two-staged regulatory process. Phase I formally starts once the VNCC accepts a full and valid notification file. After a 30-caledar-day period lapses, the VNCC shall:
It is noteworthy that the Competition Law 2018 introduces for the first time the concept of automatic clearance, meaning merger parties may proceed with the transaction if they did not receive any response from the authority within 30 days from receipt of merger notification. The VNCC cannot retroactively investigate and prosecute mergers which have been automatically greenlit even if such mergers may later be found to have a significant restrictive impact on market competition. Neither does the VNCC have grounds to impose remedies or conditions on such merger.
The Competition Law 2018 is silent on whether the VNCC can request additional information after Phase I has commenced. This ambiguity has raised concerns that the VNCC may in practice require the parties to supplement documents in the notification file any time they wish, thereby prolonging the initial review process. As far as the authors are aware, the authority has verbally assured that that would not be the case and the statutory timeframe would be upheld.
Anticipated transactions that fail to satisfy the safe harbours will proceed to the official appraisal or full review phase (Phase II).
Depending on the complexity of a case, the VNCC shall, within 90 calendar days for typical mergers or a maximum of 150 calendar days in complex cases of the announcement of Phase I findings, decide whether a proposed merger is unconditionally greenlit, conditionally cleared, or entirely blocked.
Of note, the VNCC in Phase II has the power to ‘stop the clock’ and request the parties to provide further information: the timeframe is suspended unless and until the parties have adequately satisfied all VNCC’s information requests. This ‘stopping the clock’ power has limitation, however, as such requests can only be made at most on two occasions.
The VNCC is also empowered to request consultation from relevant industry regulators, who are mandated to respond within 15 calendar days from receipt of the consultation request, and other third parties such as experts and industry associations, who are responsible for timely furnishing the VNCC with complete and accurate information upon request. The Competition Law 2018 is notably silent on what would happen if the consultation request is not answered or not answered adequately. In these cases, it is arguable that the VNCC will rely on all information available to it at the point of assessment to produce the final findings without making any further request for information, similarly to where the filing parties fail to comply with the VNCC’s second information request.8
There is no formal process for complaints about, or objections to, merger clearance decision under the Competition Law 2018. An appeal can nevertheless be filed on the basis of administrative legislation, namely the Law on Complaints 2011 (as amended) and the Law on Administrative Proceedings 2015, which provide for two distinct formal appeal regimes, respectively: administrative complaint or re-consideration, and administrative litigation.
Accordingly, any party (including competitors, consumers and other third parties) dissatisfied with the decision on merger clearance9 may choose either procedure to raise complaint or objection.
The procedure unfolds in two steps:
Alternatively, a party may choose to initiate administrative proceedings before the courts. Any administrative claim must be filed within one year from the VNCC’s decision on merger clearance or the decision on complaint resolution by either the VNCC or the Minister of Industry and Trade. As such, this procedure can commence without or after the conclusion of the administrative complaint but not concurrently.
Essentially, violations of merger control regulations under the current regime can be categorised into three types: gun jumping, unlawful mergers and unfulfilled remedies.
The first type of merger control violation can itself be divided into two sub-groups.10
The merger control regulations however stop short of specifying which activity constitutes an implementation of concentration. The authors understand that it may not encompass auxiliary or preparatory actions such as the cessation or termination of an existing cooperation agreement between the target business and the seller. Nonetheless, this ambiguity again underscores the importance of the pre-notification phase during which the parties may seek consultation from the competition authority on whether auxiliary arrangement is acceptable and if so, to what extent.
The second type of violations consists of the two following conducts:
Given that a merger can only be blocked on the basis of prohibited concentrations, these violations may seem similar on the surface, as they concern the unlawful completion of mergers. The key difference lies in whether a merger has been notified or not. If the parties fail to notify a reportable transaction and such transaction is later found to be a prohibited concentration, they will be held liable for two violations under Vietnam’s ex ante merger control regime: conducting an unnotified and unlawful merger.
Merger parties who are granted a conditional clearance but fail to satisfy any of the entailing conditions will face a fine as high as 3% of total turnover.
In addition to pecuniary penalties, the Competition Law 2018 also provides for supplementary sanction, i.e. revocation of certificate of incorporation, and remedies, either in the form of clearance conditions or remedial measures for illegal mergers.
Essentially, like many other regimes, there are two types of remedies: structural and behavioural. The former includes mandatory demerger or divestiture whilst the latter is available in the form of subjection to the State’s control in terms of price or other commercial terms. The VNCC may, if necessary, propose other remedies aimed at alleviating the restrictive impact and/or enhancing the positive effects brought by the merger.
Although the Competition Law 2018 does not explicitly provide for a framework for remedy negotiation, the merger parties may nonetheless discuss with the VNCC on the matter at virtually any time during the regulatory process, given the authority’s openness to consultation requests. Any meaningful discussion rounds will most likely take place during Phase II, particularly once the VNCC has gathered all necessary data and the authority’s information requests are addressed.
In addition to proposed remedies, merger parties may also, and are recommended to, bring forward ancillary restraints (e.g. non-competition agreement in discussion) so as to avoid being challenged by the VNCC in the future. Of note, ancillary restraints are not covered by the merger clearance decision (i.e. only the merger itself is greenlit) but may nonetheless be included therein as part of clearance conditions. Accordingly, as competition issues are one of the VNCC’s main focuses in Phase II, the authority may require the merger undertaking to remove or revise ancillary restraints if they give rise to competition concern.
Given the absence of provisions on a negotiation process for proposed remedies and ancillary restraints, whether these remedies and restrictions will be accepted in whole or in part is entirely at the discretion of the VNCC, who has considerable leeway to review and approve them. In general, the authority will more likely accept proposed remedies than not if they are offered in good faith and adequately address all competition concerns.
With the introduction of the Competition Law 2018 and new statutory guiding instruments, the competition landscape in Vietnam is expected to see a drastic change in the coming years. The newly adopted effects-based approach is arguably the most welcome reform as it reflects the shift in how the VNCC would analyse and appraise each merger on the merit of its impact on the domestic market, rather than the sole market share of the post-merger undertaking as was the case under the former regime.
The Competition Law 2018 is not without its shortcomings, however. Many have voiced concern over the jurisdictional thresholds, particularly the retention of the market share test, the authority’s ability to conclude the appraisal process within the statutory timeframe, as well as the lack of clear and practical guidance. The competition authority has repeatedly communicated their willingness to engage in discussions with merger parties in the pre-notification phase and did in fact accept multiple consultation requests in the past. Whilst this approach should address most of the aforementioned concerns, it is critical that the VNCC issues a clear set of guidelines to remove any uncertainty and ensure consistent and effective enforcement.
1 OECD Competition Committee, Suspensory Effects of Merger Notifications and Gun Jumping – Background Note by the Secretariat, DAF/COMP(2018)11, 20 February 2019, p 5, https://one.oecd.org/document/DAF/COMP(2018)11/en/pdf; OECD Competition Committee, Executive Summary of the Roundtable on Investigations of Consummated and Non-Notifiable Mergers, DAF/COMP/WP3/M(2014)1/ANN3/FINAL, 11 March 2015, p 2, http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/WP3/ M(2014)1/ANN3/FINAL&doclanguage=en.
2 Law on Insurance Business 2000 (as amended), Articles 69(1)(e),(h).
3 Law on Credit Institutions 2010 (as amended), Article 153(1).
4 Telecommunications Law 2009 (as amended), Article 19(5).
5 Guiding Decree, Article 10(1)(b).
6 Guiding Decree, Article 13(3).
7 In 2018 alone, the Vietnam Competition and Consumer Authority (i.e. the former competition watchdog) accepted three consultation requests and four notification files, appraised five mergers and investigated one case according to the VNCCA annual report, available at: http://www.vca.gov.vn/books/BaocaothuongnienCucCT&BVNTD2018.pdf (last accessed: 03 January 2020).
8 Competition Law 2018, Article 39(3).
9 Even the omission of act by the VNCC at the end of Phase I, i.e. not issuing any Phase I findings at all, can be appealed as well.
10 OECD Competition Committee, Summary of discussion of the roundtable on Suspensory Effects of Merger Notifications and Gun Jumping, DAF/COMP/M(2018)2/ANN4/FINAL, 21 October 2019, p 4, https://one.oecd.org/document/DAF/COMP/M(2018)2/ANN4/FINAL/en/pdf.
11 The total turnover used in this section refers to that in the relevant market of each respective violator in the fiscal year prior to the violation.