Vietnam’s Land Law Overhaul: Transforming Land Acquisition for Project Development

April 25, 2024
DUYEN HA VO Vietnam’s land acquisition landscape is poised for a transformation with the upcoming enforcement of the recently approved Land Law, scheduled to take effect on January 1, 2025. This article explores the potential implications of these changes on the land acquisitions of developers engaged in real estate, energy, and infrastructure projects. The new Land Law extends and further intricately categorises the list of “projects eligible as socio-economic development based on national and public benefit considerations” (Land Revocation Eligibility Projects). The implications of the Land Revocation Eligibility Projects list can be summarised as follows: a. Proposals for such a project enable the State to reclaim land from existing occupants to allocate or lease to the investor. b. Investor selection for these projects must undergo tendering requirements in certain cases. c. It is permissible to propose such a project on land acquired through a private agreement with existing land users, subject to approval from the provincial People’s Committee. Examples of new items added to this list are medical facilities, educational and training facilities, projects of renovation and rebuilding of apartment buildings and sea reclamation projects. Examples of projects not considered “Land Revocation Eligibility Projects” are hotel projects, housing development projects and commercial complex projects. Another revolutionary change introduced in the Land Law is the introduction of a regime for “private agreement” on land acquisition for project development, which may apply in cases that land is not under control by any State agency. This private agreement scheme is applicable regardless of whether the proposed project is a Land Revocation Eligibility Project or otherwise, provided that: a. for a commercial housing...

M&A Arbitration in Vietnam

April 25, 2024
Evaluating Admissibility of Confidential Information as Evidence in Disputes BUI NGOC HONG, LE THANH CONG AND NGO DINH THIEN To start a legal due diligence (LDD) investigation, it is customary for the purchaser to be bound by confidentiality obligations under a Non-Disclosure Agreement (NDA) signed with the target/sellers. The NDA is expected to prevent the purchaser from disclosing the confidential information gained during the LDD process. When an M&A dispute arises, the following questions become practical for dispute resolution: • Is the disclosure of information to the arbitral tribunal or arbitration center considered a breach of the NDA? • Will the arbitral tribunal accept the confidential information as evidence for resolving the dispute? The following case in this article will offer practical insights into the legal considerations surrounding the disclosure of confidential information in arbitration proceedings in Vietnam. Case Background The M&A transaction in this case involves a purchaser contemplating to acquire a majority stake in a target that operates an international hospital in Vietnam. Before commencing the LDD investigation, the parties executed an NDA specifying that all information provided must remain confidential, with the sole exception being disclosure required by State authorities. During the LDD investigation, a misdiagnosis incident was disclosed to the purchaser. However, it was asserted by the sellers/target that this incident does not qualify as medical malpractice and accordingly, the sellers warranted that, to the best of their knowledge, no medical malpractice involving the target has occurred. Nevertheless, after closing, the purchaser became aware of other documents raising concerns about this incident potentially being a medical malpractice. The purchaser then sought to terminate this transaction,...

Navigating the Borrowing Landscape in Vietnam

April 25, 2024
NHUT NGUYEN HUU MINH In our recent survey of in-house counsel, Russin & Vecchi was selected as a Law Firm of the Year in the Banking & Finance category. Nhut Nguyen Huu Minh, a partner in the Ho Chi Minh City office shares his views on the borrowing landscape in Vietnam. What Are Your Observations Regarding The Borrowing Trends Within The Vietnamese Market Currently And For The Next 12 Months? After a low-slung 2022, offshore borrowings turned around and gained an uptick in 2023. Offshore borrowings by the private sector in 2023 reached around 26% of the GDP, surpassing 2021’s figure of 23%. The FDI segment remains the key player, taking most of the big ticket borrowings. For example, we acted in several construction financings in 2023, like the financing for the construction of the largest water purifier production facility in Vietnam by Kangaroo International JV. The momentum is expected to continue for the next 12 months, as many FDI companies make efforts to come back when the world recession improves. How Does The Regulation Of Offshore Borrowing Compare To That Of Onshore Borrowing In Vietnam? Offshore borrowing is regulated differently than onshore borrowing in a number of aspects. The government regulates offshore borrowings mainly from the perspective of managing the volume of foreign currency inflows and outflows. One key difference is offshore loans must be used for a limited number of specific purposes, for example, as one of the permitted purposes, an offshore loan can only be used to refinance an existing offshore debt (not an onshore debt) of the borrower. Generally, medium or long-term offshore loans (having...

Kinstellar Launches Sister Law Firm In Southeast Asia

April 10, 2024
Kinstellar has joined forces with Asia Counsel, which will continue to operate under the existing “Asia Counsel” brand, now in association with Kinstellar Southeast Asia. Asia Counsel is a prominent and highly regarded law firm based in Ho Chi Minh City, Vietnam’s business capital. It has over 20 Vietnamese and foreign lawyers, including three partners. This strategic move marks a significant milestone and a launchpad for the Kinstellar group’s expansion plans in the emerging markets of Southeast Asia. Kinstellar’s new Vietnam and Southeast Asian platform will offer clients significant synergies with the existing Kinstellar full service firm operations in Bulgaria, Croatia, Czech Republic, Hungary, Kazakhstan, Romania, Serbia, Slovakia, Ukraine, Turkey and Uzbekistan. “Bringing Asia Counsel into the Kinstellar family marks a significant milestone for our group and for its development plans for Southeast Asia. We are excited to have a firm of the quality of Asia Counsel in our group and about pursuing the next steps in Southeast Asia, commented Kinstellar Senior Partner Jason Mogg. Asia Counsel has built an excellent reputation over a decade of on-the-ground experience and excellence. It acts for multinational corporations, UK, US, European, Japanese, Chinese and other Asia-Pacific law firms, as well as global, regional and local investment funds, venture capital funds, private equity investors and financial institutions. It also serves an array of high-profile Vietnamese corporations with their full business lifecycle. “As we embark on this exciting new chapter, our commitment to delivering exceptional services and maintaining the highest standards remains unwavering. The shared values and goals of Asia Counsel and Kinstellar Southeast Asia undoubtedly will benefit both us and our existing and...

Baker McKenzie Appoints Oanh Nguyen as New Vietnam Managing Partner

January 4, 2024
Baker McKenzie has appointed Oanh Nguyen as the managing partner for the Vietnam offices for a three-year term, effective January 1, 2024. Oanh will be the first female lawyer to lead the offices in Ho Chi Minh City and Hanoi. She succeeds Manh Hung Tran, who transitions to the role of co-chair of the Asia Pacific Intellectual Property and Data & Technology Practice Groups. Oanh joined Baker McKenzie in 1995. Over her 28 years with the Firm, she has led the Banking & Finance and Capital Markets practices in Vietnam and acted on many market-first transactions, including most recently Vietnam’s first local-currency sustainability bonds issue. She has served as a legal adviser to the Capital Markets Committee of Ho Chi Minh City American Chamber of Commerce. “It’s a great honor. Baker McKenzie has been in Vietnam for 30 years and continues to be one of the most recognized law firms in the country. I am both excited and humbled by the opportunity to lead this office and look forward to building on the Firm’s first position in the market, and steer our team toward new opportunities and heights,” Oanh said. Shih Yann Loo, Baker McKenzie’s Asia Pacific regional chair, said, “I would like to congratulate Oanh on her appointment. Oanh’s appointment is further evidence of our steadfast commitment to recognizing high performers and supporting women. I am confident that Oanh will continue our growth in the Vietnam...