Notable Recent Projects

Apolat Legal’s teams have advised on numerous market-shaping transactions across an array of industries in the energy sector, e-commerce, technology, retails, logistic, real estate,…

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Corporate and Investment

  • Foreign Investment
  • Compliance
  • M&A
  • And more

International Commercial & Trade

  • International Trade
  • Sales & After Sales
  • Distribution
  • And more

Dispute Resolution

  • Mediation & Conciliation
  • Litigation & Enforcement
  • Arbitration
  • And more

Employment

  • International Labor
  • Employee Benefits
  • Day to Day HR Management
  • And more

Intellectual Property

  • Franchising
  • Trademark and Industrial Design
  • Copy Right and Patent
  • And more

Real Estate

  • Real Estate
  • Infrastructure
  • Leasing
  • And more

International reach

apolat-legal-international-law-firm

Apolat Legal has become the law firm member of MSI Global Alliance (MSI) exclusively in Viet Nam jurisdiction.

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We always believe in

At Apolat Legal, diversity, inclusion and equality are a part of how we live our values.

We apply our values to all our activities world-wide. They describe our culture and personality both internally and externally, the way we work and what we stand for.

Our Vision

Integrity, Understanding and Innovation

We in the next decade is to be the truly and reliable business law firm for middle market with a commitment to integrity, understanding and innovation. This will be a stepping-stone for the future leading the legal market in Vietnam.

Our Clients

Dedication & Professional

Our People

Unity, Diversity, Supportive, Trust

Our Working-Environment

Open and Respect The Dissimilarities

Our Work

Focus, Determination, Ambitious

Our Community

Responsible and Respect The Diversity

The latest

News

Apolat Legal – Tet Holiday Notice 2021

 

Apolat Legal Law Firm (“Apolat Legal”) would like to send sincerely thank you for your trust in our legal services.

Closing time: From Saturday, February 6th, 2021 to Tuesday, February 16th, 2021 ( From December 25th  Lunar Calendar to January 5th  Lunar Calendar ).

Resuming time: Wednesday, February 17th, 2021 ( January 6th  Lunar Calendar ).

Vietnamese Lunar New Year 2021 is coming, Apolat Legal wish you a prosperous and successful year ahead.

Best regards.

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Apolat Legal_New Year Letter 2021

Dear Our Valued Clients,

First of all, Apolat Legal would like to send our sincere thanks for your trust and accompanying Apolat Legal during the past time. On the eve of the Buffalo’s New Year 2021, Apolat Legal wishes Our Valued Clients will have the new year with security, good health, and prosperity.

In the year 2020, the world has many upheavals, ups and downs and faces difficulties due to the effects of the Covid – 19 pandemic. Like most enterprises affected by the pandemic, Apolat Legal always understands, shares, and accompanies Clients to overcome difficulties. With the efforts of our lawyers and flexibility in handling situations, Apolat Legal has assisted many domestic and foreign Clients in solving complex business problems, handling legal risks caused by Covid– 19 which brings and contributes to the development of recovery activities, investment, and growth of the economy.

The year 2020 also marks the maturity, development and affirms Apolat Legal’s position in the Vietnamese legal market. Apolat Legal is delighted to have contributions, positive role in the Vietnamese legal market, contribute to the success of outstanding transactions including merge and acquisition (M&A), foreign investment, intellectual property, dispute settlement, corporate consulting and State policy responses, domestic and foreign investment. In order to have a professional working environment, we have moved to a new office to meet the criteria for a comfortable, full, and professional workplace. Besides, the human factor which is the core value that creates the prosperity and the strength of the business is especially focused. Apolat Legal constantly organizes intensive legal training activities, attracting good lawyers and develop talents in universities. We are always ready to satisfy the diverse and complex legal demands of customers.

The year 2021 will be a challenging year for Apolat Legal when the Covid – 19 pandemic continues developing complicatedly in both the world and Vietnam. Apolat Legal commits ourselves to always supporting and accompanying our Valued Clients to overcome difficulties and face challenges. To preserve the orientation of becoming the innovative law firm and be able to adapt legal service with international standards, Apolat Legal will constantly innovate, improve the quality of our legal services, diversify fields, and strongly promote the potential of our excellent teams. In 2021, Apolat Legal will continue to make the most of our role and work more actively at international legal and trade organizations and alliances to have further enhanced and affirm the position of Apolat Legal in global legal markets.

In order to get the current achievements as well as have motivation for future purposes, the trust of Clients is a huge incentive besides our relentless effort. Apolat Legal sincerely thanks our Valued Clients who believe in our commitment to our service quality. Once again, Apolat Legal wishes all of you a new year of peace and all the best of luck.

Respectfully,

APOLAT LEGAL LAW FIRM

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Articles

E-Commerce business in Vietnam: Conditions for foreign investors

As reported by Google, in terms of scale, Vietnam is the third-largest e-commerce market in Southeast Asia with 7 billion USD in 2020, following the biggest scale of 32 billion of Indonesia and Thai Lan with 9 billion USD. It is expected that by 2025, Vietnam will peak the highest growth rate of 34% in the region. The huge potential thus found in Vietnam’s E-commerce market will attract many foreign investment capitals. However, in order to access the market, foreign investors have to surpass several legal barriers.

As defined in Decree 52/2013/ND-CP, the e-commerce activity means conducting a part or the whole process of commercial activity by electronic means connected to the Internet, mobile telecommunications networks, or other open networks. The e-commerce activities are classified into 02 categories, including:

  • An E-commerce website for sales is an e-commerce website developed by traders, organizations or individuals by themselves for commercial promotion, sales or service provision.
  • An E-commerce service provision website is an e-commerce website developed by traders or organizations to provide an environment for other traders, organizations, or individuals to conduct their commercial activities, including: (i) E-commerce trading floor;(ii) Online auction website;(iii)Online promotion website;(iv) Other types of website as stipulated by the Ministry of Industry and Trade.

With the typical purpose of introducing goods and services of its owner, there are no additional sub-licenses for an e-commerce website, however, its owner must inform the Ministry of Industry and Trade on the establishment of the website. For foreign-invested enterprises carry out retailing activities through an e-commerce website for sales, other than the mentioned notification obligation, it is mandatory to apply for a business license in retail sales since it is a conditional business sector for foreign-invested enterprises under the Decree 09/2018 / ND-CP.

The activity on an E-commerce website for e-commerce service provider is essentially the activity in which traders provide a platform for other traders, organizations, or individuals to carry out commercial activities, is also a conditional business sector for foreign-invested enterprises. Since providing an e-commerce service is directly related to the purchase and sale of goods acitvity under the regulations of Decree 09/2018/ND-CP, the foreign-invested enterprises are  also required to apply for a business license to perform activities related to the purchase of goods. 

Under the Decree 09/2018/ND-CP, in order to be granted a business license, the following conditions must be satisfied 

  • Meet market access conditions prescribed in international treaties to which Vietnam is a signatory;
  • Acquire a financial plan deemed qualified to apply for a business license;
  •  Incur no overdue tax if it has been established in Vietnam for at least one year.

However, the provision of e-commerce services is a business service that has not yet been committed to open markets in international treaties to which Vietnam is a signatory. Therefore, the issuance of a business license will depend on the capacity of the investor as well as the appraisal by the competent authority of the Ministry of Industry and Trade. In addition to meeting the forementioned conditions, the following sub-criteria will be applied to consider licensing for providing e-commerce services, including:

  • In compliance with provisions of specialized law;
  • In conformity with the extent of competitiveness of domestic enterprises within the same sector;
  • Employment creation for domestic workers;
  • Potential and actual contribution to state budget.

After being granted a business license to provide e-commerce services, a foreign-invested enterprise must register an e-commerce service website at the Ministry of Industry and Trade under the Decree 52/2013 / ND-CP. This condition is generally applied for all enterprises with foreign investment and enterprises with 100% of the capital of Vietnam. In case of failure to register, enterprises may be fined from VND 40,000,000 to VND 60,000,000.

The above are the fundamental conditions for foreign-invested enterprises to provide e-commerce services in Vietnam. In addition to the existing market access conditions, during operation, businesses will need to comply with the regulations on information storage under Decree 52/2013 / ND-CP as well as regulations on assurance information security under the Law on Cyber Information Security.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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Income tax implications on the assignment of capital in cross-border transactions

A. Direct Capital Transfer in Viet Nam

Where the assignor is an entity, gains derived from the assignment of capital in a Vietnamese company are subject to corporate income tax (CIT) rate of 20%. This is generally referred to as capital assignment profits tax (CAPT). The taxable gains are determined as the excess of the sale proceeds less cost (or the initial value of contributed charter capital for the first transfer) less expenses relating to the transfer. 

Where the assignor is a foreign entity, a Vietnamese assignee is required to withhold the tax due from the payment to the assignor and account for this to the tax authorities. Where the assignee is also a foreign entity, the Vietnamese company in which the capital is transferred is responsible for conducting the CAPT obligations on behalf of such foreign assignor. The CAPT declaration and payment are required within 10 days from the date of official approval of the assignment of capital by a competent body or, where approval is not required, 10 days from the date the involved parties reach the agreement on the assignment of capital.

For individual assignees, tax implications on the assignment of capital will be different subject to the tax resident rule

Tax-residents are those individuals meeting one of the following criteria: 

  • Residing in Vietnam for 183 days or more in either the calendar year or the period of 12 consecutive months from the date of arrival.
  • Having a permanent residence in Vietnam (including a registered residence that is recorded on the permanent/temporary residence card or a rented house in Vietnam with a lease term of 183 days or more in a tax year in case of foreigners) and unable to prove tax residence in another country.

Individuals not meeting the conditions for being tax residents are considered tax non-residents in Vietnam.

Base on the above, residents transferring capital shall declare tax upon each transfer. Gains from capital assignment are determined as the excess of the sale proceeds less the initial value of contributed charter capital for the first transfer and expenses relating to the transfer. Personal income tax (PIT) will be calculated at the rate of 20%. On the other hand, non-residents, when transferring capital, will pay PIT at the rate of 0.1% of the transfer price of each transaction.

Vietnamese tax authorities have the right to adjust the transfer price for CAPT/PIT purposes where the price is not proper with arm’s length principle or where the price is not stipulated in the capital transfer agreement.

Recently, Vietnamese tax authorities challenge not only the capital transfer in a Vietnamese entity, but also the capital transfer transactions of an overseas parent entity who hold the (direct or indirect) capital in Vietnamese entities.

Below is the summary of tax implications on the assignment of capital in Vietnam:

Transferors Tax rate
Individual shareholder (PIT) Resident 20% on gains
Non-resident 0.1% on gross sale proceeds
Corporate shareholder (CIT) Foreign entities 20% on gains
Local entities  20% on gains

B. Indirect Offshore Capital Transfer

Currently, there have not been any specific regulations on the taxing mechanism regarding the offshore capital transfer leading to the indirect transfer of the ownership of a Vietnamese company. Consequently, many foreign investors with offshore capital acquisitions leading to the indirect transfer of the Vietnamese enterprise do not declare any tax in Vietnam.

So far, the taxing mechanism on the case of indirect transfer of capital is non-officially guided by official letters of tax authorities. Basically, the main rules are similar to that applied in case of direct capital transfer, as follows:

  • the income derived from the assignment of capital of a transferor will be subject to corporate income tax and personal income tax respectively;
  • if both transferor and transferee are non-tax resident, the indirect transferred Vietnamese companies are responsible for declaring and paying tax imposed on such offshore transfer of capital on their behalf;

Regarding the determination of the transfer price and the profit of the transaction, despite of the unclear regulations, there are some solutions which have been applied on this matter in practice:

  • The transfer price could be allocated separately among the indirect transferred Vietnamese entity and other subsidiaries within its group based on either (i) the ratio of capital contribution of the transferred foreign company to the indirect transferred Vietnamese entity; or (ii) the ratio of total assets of the indirect transferred Vietnamese entity and other subsidiaries according to the audited report for capital gains tax computation.
  • The gain may be determined based on (i) the difference between the business valuation and the contributed capital of the transferred Vietnamese entity; or (ii) the difference between the possible transfer price and its contributed capital.It is worth noting that the tax authority can reassess the transfer price as being made at market value for tax purposes even if the indirect transfer is made without creating gain for any relevant parties.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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Note in negotiating payment periods in M&A transactions

Payment is one of the important provisions and is always considered by the parties in M&A transactions in Vietnam, especially one of the parties being foreign individuals/organizations.

Most M&A transactions in Vietnam, the Seller is mainly an individual/Vietnamese organization owning shares/capital contribution in a company. Buyer means foreign investors including foreign individuals and organizations wishing to invest in Vietnam through the purchase of shares/ capital contributions of a Vietnamese company with experience, position and finding capacity in the field that the Investor wishes to invest in.

Regular M&A transactions through multiple due dimming processes, legal, due dosimetry, and the conclusion of the M&A Contract. However, Buyers, especially foreign investors, are always careful and want to pay the transfer price after holding all the papers, documents, and requirements set out in the transaction that the Seller has fully implemented.

Accordingly, in the current transactions, foreign investors all outline a payment roadmap with many stages for the Seller to gradually implement and complete the conditions set by the Investor before paying the full transaction value. This roadmap can last for several years depending on the size of the Target Company and the parties’ agreement.

This seems very reasonable and persuasive to ensure the buyer’s risk limitation if the Seller has received sufficient funds but does not cooperate in carrying out administrative procedures to recognize the buyer as a new member/shareholder of the Company.

The actual agreement is so, but Vietnamese law has provisions that make it difficult in this agreement. Specifically as follows:

According to the provisions of Clause 2, Article 30 of the Law on Enterprises 2020, “Enterprises are responsible for registering to change the contents of the Enterprise Registration Certificate within 10 days from the date of change”, i.e., enterprises with capital changes will have to register the change of charter capital and record new capital contributing members/shareholders of the Company on the Enterprise Registration Certificate. This means that, in several stages, the Target Company must make adjustments to its respective charter capital and recognize the Investor as a new member/shareholder of the Company within 10 days from the date the Investor makes the payment.

Therefore, investors need to understand this regulation and have a plan to agree with the target company members/shareholders to speed up the transaction or agree in more detail about the rights and obligations of the Investor after owning the capital contribution/shares in the Target Company while the transaction is not finished.

In addition, foreign investors should pay attention to the following provisions in case of the agreement to pay the full value of the transaction after the Target Company implements procedures at the state agency noting that the Investor becomes a member/shareholder of the company/owner of the entire capital contribution/share on the enterprise registration certificate of the target company.

According to the provisions of Clause 2, Article 52 and Clause 1, Article 58 of Decree No. 01/2021/ND-CP, when changing company members or updating foreign investors to the Department of Planning and Investment, they must submit transfer contracts or papers proving the completion of the transfer.

For some provinces in Vietnam, the application of relatively different laws, some provinces/cities will require the Company to provide the contract for the transfer of contributed capital/shares and documents proving the completion of the transfer. However, these “documents proving the completion of the transfer ” do not have a clear definition. The specific guiding legislation that leads to the understanding and applying state agencies in the provinces/cities is different.

Some provinces/cities will request to provide a bank account statement of Buyer who has recorded the full value recorded in the Transfer Contract. Some provinces/cities only require written confirmation of the completion of the transfer confirmed by Buyer and Seller.

Therefore, the agreement on the completion of the payment after the Seller has completed administrative procedures to recognize the buyer as a new member/shareholder of the Company may not be suitable for some transactions performed in the provinces/cities that require the provision of bank account statements of Buyer recorded the full value in the transfer contract.

Therefore, the agreement and delivery of the payment roadmap should also take into account the views of the state agencies in the Province / City where the Seller’s Company is headquartered, from which buyer can consider and select appropriate payment options, balance the interests of the two parties and limit the risks when making transactions.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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