E-commerce is a conditional business for foreign traders and investors, one of the new contents as stipulated in Decree No. 85/2021/ND-CP dated September 25, 2021, amending, supplementing a number of articles of Decree No. 52/2013/ND-CP on e-commerce dated May 16, 2013. The Decree 85/2021/ND-CP shall take effect on January 1, 2022.
Pursuance to Decree 85/2021/ND-CP, foreign traders and investors conduct e-commerce activities in Vietnam in 03 forms as follows:
- Foreign traders having websites providing e-commerce services in Vietnam;
- Foreign traders selling goods on Vietnamese e-commerce floors;
- Foreign investors invest in the business of providing e-commerce services in Vietnam in the form of setting up enterprises or purchasing shares and equity in Vietnamese enterprises.
1. Feign traders or organizations have websites providing e-commerce services in Vietnam with one of the following forms of operation: (i) e-commerce websites under Vietnamese domain names; (ii) e-commerce websites with display language in Vietnamese; (iii) e-commerce website with over 100,000 transactions from Vietnam in a year.
Foreign traders or organizations must: register for e-commerce activities and establish a representative office in Vietnam in accordance with the laws of Viet Nam or appoint an authorized representative in Vietnam.
Regarding the determination of transactions from Vietnam as mentioned in point (iii) is based on the following sources:
(a) Traders, organizations voluntarily report according to the provisions of this Decree;
(b) According to official data of Vietnam's management authorities, including customs offices, the state management agency in charge of the Internet; State management agencies in charge of banking and tax;
(c) According to reports and publicly available information that the relevant state management agencies prove to be authentic.
2. Foreign traders (without a presence in Vietnam) selling goods on the Vietnamese e-commerce trading floor:
(i) Foreign traders or organizations selling goods according to the regulation on the operation of Vietnam's e-commerce trading floor;
(ii) Enterprises providing services of Vietnamese e-commerce trading floor are responsible for verifying the identity of foreign traders and organizations selling goods on such e-commerce trading floor, and choose to perform one of the following responsibilities:
(a) Request traders to exercise the export and import rights of foreign traders without a presence in Vietnam in accordance with laws. Under applicable regulations, foreign traders must apply for certificates of registration of right to export [and/or] import at the Ministry of Industry and Trade of Vietnam; or
(b) Organize the implementation of import activities as entrusted by buyers for goods traded by foreign traders on the e-commerce trading floor; or
(c) Request foreign traders to appoint their commercial agents in Vietnam.
(ii) Import and export goods transacted via e-commerce shall carry out customs procedures in accordance with the customs laws.
3. Foreign investors invest in the business of providing e-commerce services in Vietnam in the form of setting up enterprises or purchasing shares and equity in Vietnamese enterprises;
In case foreign investors dominate 01 or more enterprises in the group of 05 leading enterprises in the e-commerce service market in Vietnam according to the list announced by the Ministry of Industry and Trade, the Ministry of Public Security's assessment opinion on national security must be obtained when granting and adjusting business licenses.
Foreign investors dominate enterprises providing e-commerce services in one of the following cases:
- Foreign investors hold ownership of more than 50% of charter capital or more than 50% of voting shares of the enterprise;
- The Foreign investor directly or indirectly decides to appoint, relieve from duty or dismiss the majority or all of the members of the Board of Directors, the chairman of the Members' Council, the director or general director of the enterprise;
- Foreign Investors have the right to decide on important issues in business activities of enterprises, including the selection of technology platforms and business organization forms; selection of industries, occupations, geographical areas, and business forms; choose to adjust the scale and business lines; select the form and method of mobilizing, allocating and using the business capital of that enterprise.
The group of 05 leading enterprises in the market is determined based on the criteria of number of visits, number of sellers, number of transactions, and total transaction value.
This update of law is for your information only and shall not form a binding agreement between the Law Firm and the Client.
Lawyer Vu Thi Nhung
