March 28, 2011
Vietnam has recently passed some new regulations which may have an impact upon foreign investors in the country. This update briefly describes these new regulations and also considers some recent developments relating to corruption risks and anti-bribery enforcement actions relating to Vietnam.
Nationally Important Projects
Under Vietnamese law, "nationally important" projects not only require the normal approvals from the various People’s Committees and other licensing authorities, they also require the approval of the Vietnamese National Assembly. The definition of "nationally important" included (amongst other things) threshold amounts over which Vietnamese National Assembly approval was required. The Vietnamese National Assembly recently passed Resolution 49/2010/QH12 ("Resolution 49") which raised the threshold amount of investment capital that would require National Assembly approval. Under Resolution 49, investment projects with investment capital of over VND35 trillion (about US$1.67 billion) of which at least VND11 trillion (about US$527 million) is funded by the Vietnamese government, would require the National Assembly’s approval. Previously, the thresholds were set at VND20 trillion (approximately US$958 million) in investment capital with 30% of the funds supplied by the government. Resolution 49 also added another category of investment project which would require National Assembly approval, namely the conversion of 500 hectares or more of rice-growing land.
New Powers for State Bank of Vietnam
The Vietnamese National Assembly recently passed a new Law on the State Bank of Vietnam ("SBV") which provides the SBV with more flexibility to act as a central bank and more autonomy in deciding monetary policy (the key objectives of which are stated to be stabilization of the currency and control of inflation). The new law grants SBV several additional powers in the regulation of the banking sector including:
However, SBV has been reclassified as a ministerial level entity (as opposed to a governmental body), directly under the supervision of the government and the prime minister. This move has the unfortunate consequence of hindering the independence of SBV and placing it under more political pressure from the government and prime minister.
New Public-Private Partnership Framework
On November 9, 2010, the Prime Minister of Vietnam issued Decision No. 71/2010 QD-TTg (the "Decision") which provides a framework for Public-Private Partnership projects ("PPP") in Vietnam. It took effect on January 15, 2011 and is intended to promote a wide range of infrastructure projects.
The Decision lists the following criteria for the government to consider as to whether a particular project qualifies to be designated a PPP:
The Decision envisions a split between state and private capital contributions with state capital being limited to 30% of the total cost of the project. In addition, the state’s contribution cannot take the form of an equity contribution and can only be used to:
Approved projects are to be administered by an "authorized state body" which may include ministries or local people’s committees, depending on the nature and scope of the project.
Once the government selects an appropriate investor, the parties will have 30 days in which to come to terms on the project contract. Once the contract has been agreed, the investor must apply to the Ministry of Planning and Investment, which has 45 days to issue the investment certificate. It will be interesting to see if parties are able to comply with these rather ambitious time constraints.
The winning investor (or the newly formed project company) must also provide a performance guarantee of at least two percent (2%) of the total investment capital to the government.
For its part, the government may provide tax incentives, reduced import and export duties, and exemptions from land use fees and rent for the duration of the project. In addition, the company has the right to pledge and mortgage the assets and land use rights of the project. The company will also be allowed to buy foreign currency from authorized institutions for making foreign payments, importing goods and services, repaying loans and remitting capital.
In certain cases, the government may provide a guarantee for (i) the supply of materials, sale of goods or other contractual obligations to the investor and (ii) the obligations of any state-owned enterprises who may be selling materials or purchasing the services of the project company.
The Decision also allows lenders to take over all or part of the rights and obligations of the project company with the parties’ acquiescence. Finally, the Decision allows the tendering invitation dossier to specify a foreign law to be chosen as the governing law of the PPP.
The Decision also solicits potential investors to suggest their own potential PPPs. However, it does not incentivize such private-sector initiated PPPs by according them any extra priority in the approval process.
However, as with previous prime ministerial decisions, the Decision will need further implementing regulations in order to flesh out its broad overall goals and ambitions.
Capital Contributions by Foreign Investors
The Vietnamese Ministry of Finance recently issued Circular 131/2010/TT-BTC dated September 6, 2010 ("Circular 131") which was supposed to guide the implementation of Decision 88/2009/QD-TTg dated June 18, 2009 ("Decision 88") from the prime minister and clarify the issues regarding foreign investors contributing capital to, or acquiring shares in, Vietnamese enterprises. Unfortunately, Circular 131 does little to illuminate Decision 88, fails to resolve many of its uncertainties and even introduces additional uncertainties of its own.
Under Circular 131, foreign investors may contribute capital or purchase shares without limitation in all types of Vietnamese enterprises except for the limits already set-out under other regulations such as securities laws, specialized branch laws, international treaties and state-owned enterprise equitization plans. The circular itself lays out in detail the many permutations of when a foreign investor may invest in a Vietnamese enterprise. However the pertinent changes in the law are twofold: (i) how "foreigner" is defined and (ii) capital accounts.
Circular 131 applies to "foreign" investors who are defined as: (i) organizations established and operating pursuant to foreign law and their branches both overseas and in Vietnam; (ii) organizations established and operating in Vietnam (including investment funds and securities investment companies) with more than 49% of foreign charter capital; and (iii) any non-Vietnamese national (including "overseas" Vietnamese who do not hold concurrent Vietnamese citizenship). Thus, unlike Decision 88, Circular 131 makes it clear that overseas Vietnamese will be considered foreign investors unless they also happen to hold Vietnamese citizenship (which few do).
Circular 131 requires that all investments by foreign investors must be made through an investment capital account at a commercial bank in Vietnam. This account requirement poses many problems. For example, it is unclear how a foreign party would be able to make an in-kind or other non-monetary contribution to a Vietnamese enterprise if it must be done through an investment capital account. In other words, Circular 131 seems to suggest that all investments by foreigners must be in the form of capital. In practice, many foreign investors have entered into loan agreements by which the foreign investor agrees to provide a loan facility to a local enterprise in exchange for a transfer of its charter capital contribution or shareholding when the loan comes due. Assuming that many of these previous loan transactions did not involve the opening of a Vietnamese capital account, it is unclear how the foreign investor may enforce the loan under the regime envisioned by Circular 131. Also, if one foreign investor purchases shares or invests in a foreign invested Vietnamese enterprise, under the rules of Circular 131, both parties would have to have Vietnamese capital accounts which would complicate the transaction and open the foreign parties to foreign exchange risks.
Changes to Real Estate Development Laws
Decree No. 71-2010-ND-CP dated 23 June 2010 ("Decree 71") and Circular 16-2010-TT-BXD dated 1 September 2010 ("Circular 16") set out detailed implementing regulations on the Law on Residential Housing which clarified several key matters and also introduced some new rules and initiatives in relation to residential development projects in Vietnam.
Decree 71 introduces the concept of an "investment approval" with respect to residential development projects which will be required of all residential projects regardless of the identity of the developers (i.e. Vietnamese or foreign). The approvals must be sought from the relevant district or provincial People’s Committees (with developments of more than 2,500 units requiring prime ministerial approval). Foreign developers must still obtain an investment certificate for any residential development they seek to undertake in Vietnam.
Decree 71 also allows developers to raise capital from loans, bonds, capital contributions and business cooperation contracts. However, in an acknowledgment of widespread practice of developers using pre-sale contracts to fund their activities, Decree 71 attempts to rein in such practices. Previously, the threshold question of whether pre-sales could be undertaken depended on whether the "foundations" of the development were complete. Given this ambiguous definition, Decree 71 provides more clarity by specifying four events which must have occurred before pre-sales contracts may be entered into:
In addition, to combat widespread use of investment cooperation and capital contribution agreements, Decree 71 limits the number of dwellings in a development which may be pre-sold by these methods to 20%. Finally, Decree 71 and Circular 16 allow a purchaser to assign his rights under a housing sale and purchase contract provided that the contract has been duly notarized and applicable taxes have been paid even if the certificate of ownership has not been issued.
Private Placement of Shares
Prior to the issuance of Decree 01 by the government of Vietnam, which came into force on 25 February 2010 ("Decree 01"), Vietnamese law regulated public offers of securities but mentioned nothing concerning the private placement of shares. Decree 01 states that any joint stock company cannot issue shares without first completing the following:
Decree 01 does not address whether there are exceptions to these requirements, for example, for small, private companies hoping to raise additional capital by issuing new shares to its existing shareholders. It would seem to place an unnecessary and onerous burden on these small businesses to privately place shares. Hopefully, future circulars will clarify the issue and allow for such an exception.
New Regulations on Remittance of Profits Overseas
The Vietnamese Ministry of Finance recently issued Circular No. 186/2010/TT-BTC ("Circular 186") on the remittance of profits, in cash or in kind, overseas by foreign organizations from their direct investments in Vietnam. Circular 186, which took effect on January 3, 2011 and replaced Circular 124/2004/TT-BTC, no longer requires foreign investors to obtain certification from the Vietnamese tax authorities that they have paid taxes on their profits prior to remitting profits abroad. Instead, foreign investors need only provide at least seven days notice of their intent to remit profits to the tax authorities. However, whereas foreign investors were previously able to remit their profits quarterly or even semi-annually, Circular 186 only allows for overseas remittances on an annual basis. Circular 186 also prohibits overseas remittances for the current year where there was an accumulated loss that was carried forward from the previous year. However, if the current year’s profits exceed the accumulated losses from the previous year, the foreign organization would be allowed to remit its net profits overseas.
Corruption and Anti-Bribery Developments in Vietnam
Since relations were normalized between the U.S. and Vietnam in 1995, trade between the two countries has steadily increased, reaching over US$15 billion in 2009. Set out below are some corruption risks companies should be mindful of while operating in Vietnam and recent anti-bribery enforcement actions in Vietnam. It provides an overview of the Foreign Corrupt Practices Act ("FCPA") and the recently enacted United Kingdom Bribery Act ("Bribery Act"). It also analyzes a number of themes that have emerged from the recent enforcement actions and highlights specific corruption risks that companies doing business in Vietnam must understand and address.
Overview of Selected Anti-Bribery Laws
The FCPA’s anti-bribery provisions make it illegal to offer or provide money or anything of value to officials of foreign governments or foreign political parties with the intent to obtain or retain business. These provisions apply to "issuers," "domestic concerns," and "agents" acting on behalf of issuers and domestic concerns, as well as to "any person" that violates the FCPA while in the territory of the United States. The term "issuer" covers any business entity that is registered under 15 U.S.C. § 78l or that is required to file reports under 15 U.S.C. § 780(d). In this context, the approximately 1,500 foreign issuers whose American Depository Receipts ("ADRs") are traded on U.S. exchanges are "issuers" for purposes of the statute. The term "domestic concern" is even broader and includes any U.S. citizen, national, or resident, as well as any business entity that is organized under the laws of a U.S. state or that has a principal place of business in the United States.
In addition to the anti-bribery provisions, the FCPA’s books-and-records provision requires that issuers make and keep accurate books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the issuer’s transactions and disposition of assets. Finally, the FCPA’s internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. Regulators frequently invoke these latter two sections–collectively known as the accounting provisions–when they cannot establish the elements for an anti-bribery prosecution or as a mechanism for compromise in settlement negotiations. Because there is no requirement that a false record or deficient control be linked to an improper payment, even a payment that does not constitute a violation of the anti-bribery provisions can lead to prosecution under the accounting provisions if inaccurately recorded or attributable to an internal controls deficiency. For more information on the FCPA, please see Gibson Dunn’s "2010 Year-End FCPA Update."
(ii) The United Kingdom Bribery Act
The Bribery Act, which is expected to come into force later this year, will dramatically impact corporations that carry on any part of their business or maintain any presence in the United Kingdom. In contrast to the FCPA’s complementary anti-bribery and accounting provisions, the Bribery Act creates four separate offenses that address both public and private-sector bribery: (1) bribing; (2) being bribed; (3) bribing a foreign public official; and (4) failing to prevent bribery (applicable to corporate entities only). Penalties for violating the Act include unlimited fines for companies and individuals and/or a term of imprisonment of up to ten years for individual defendants.
With respect to jurisdiction, the Act has a substantial extra-territorial reach. Indeed, for bribing, being bribed and bribery of a foreign public official, any individuals "closely connected" with the U.K. (i.e. U.K. companies, U.K. citizens, and U.K. residents) can be found liable under the Act. Non-U.K. nationals and entities could also be liable if any part of the offense took place in the U.K. Jurisdiction to prosecute entities for failure to prevent bribery is also quite broad–the corporate offense applies to all companies and partnerships that carry on any part of their business in the U.K., regardless of where they are incorporated or where the bribe was paid. Therefore a non-U.K. company that conducts any business in the U.K. can incur liability under the Act, even if all misconduct occurs outside the U.K.
Further, compliance with the FCPA does not necessarily ensure compliance with the Act. Unlike the FCPA, for example, the Act does not permit facilitation payments or provide an affirmative defense that covers certain business promotion expenditures. For additional information on the sweeping impact of the Bribery Act, please see Gibson Dunn’s recent client alert, "UK Enacts New Bribery Act." Please also see related Gibson Dunn alerts.
(iii) Vietnamese Corruption Laws
Vietnam has its own anti-corruption laws in the form of the Vietnamese Criminal Code and the Anti-Corruption Law. Further amendments to these laws are expected soon as the Vietnamese government aims to implement the United Nations Convention against corruption.
The Vietnamese Criminal Code and Anti-Corruption Law prohibit both the paying and receiving of bribes. However, those found guilty of receiving a bribe may be subject to a more severe sentence or to additional punishment than those convicted of paying a bribe. The sanctions for individuals include fines, fixed-term imprisonment and life imprisonment. A person who is found guilty of receiving bribes is subject to additional sanctions, which may include prohibition from holding certain jobs for a period of one to five years, fines up to five times the amount of the bribe or confiscation of assets, and even the death penalty.
In order to establish a bribery conviction under Vietnamese law (Article 279 of the Criminal Code) the following must be demonstrated:
Although the Criminal Code requires that crimes, including acts of corruption, be reported, this obligation only applies to individuals, not companies. Under the Anti-Corruption Law, both individuals and companies are required proactively to prevent, discover, and report an act of corruption, including bribery. A company must also cooperate with competent bodies or individuals in their investigation of individuals suspected of bribery. However, the Anti-Corruption Law does not penalize companies that fail to fulfill the legal reporting requirements, only individuals.
Under Vietnamese law, a public official is not permitted to:
Gifts are defined broadly to include money, property or other material interests.
Developments in Vietnam
Vietnam has recently been the focus of anti-corruption enforcement actions by the SEC and DOJ as well as authorities outside of the United States. Since 2006, authorities have initiated seven corporate and eight individual anti-corruption enforcement actions relating to business activities in Vietnam. These actions cut across numerous industries–including telecommunications, automotive, healthcare, insurance, technology, and infrastructure–and illustrate the unique risks faced by multi-national companies doing business in Vietnam.
Corruption is widely perceived as a serious problem in Vietnam with the country ranking 116 out of 178 countries on Transparency International’s 2010 Global Corruption Perception Index. According to TRACE International’s 2010 Global Enforcement Report, 2.1% of enforcement actions between 1977 and 2010 involved payments to government officials in Vietnam. Although the Communist Party of Vietnam (CPV) has been implementing market-oriented reforms since 1986, the legacy of burdensome bureaucracy and centralized state management persists. State-owned enterprises account for approximately 40% of GDP and ambiguous laws and regulations are left to government institutions to interpret. These factors contribute to an environment where government procurement decisions are unpredictable and opaque, institutions including the judiciary may be politicized and corruption reportedly thrives. In fact, in a 2005 diagnostic study on corruption in Vietnam, a third of the public officials and civil servants surveyed said that they were willing to accept bribes and half reported that intermediate and higher level offices are involved in corruption.
The CPV has grown increasingly aware that widespread corruption undermines development, foreign investment, and the party’s legitimacy and consequently has implemented laws like the 2005 Anti-Corruption Law, as well as other regulations and oversight bodies to fight corruption. Although the political will and legal framework for combating corruption is well established, anti-corruption initiatives and law are poorly implemented and enforced. One cause of this implementation gap is a lack of coordination between multiple government institutions tasked with implementing and enforcing anti-corruption laws. Another major obstacle is the lack of protection offered to whistleblowers who expose corrupt practices. For example, though the CPV initially asked the media to act as a watchdog, this effort was severely undermined by the detention of several journalists for their role in reporting major corruption scandals.
These corruption risks and the increased level of global enforcement in Vietnam have caused a number of themes to emerge that companies operating in Vietnam must understand and address. Specifically (1) the potential risks of third-party intermediaries and joint ventures; (2) the prevalence of prosecution of individuals; (3) the dangers posed by the provision of gifts and entertainment as part of business dealings; and (4) the rise in anti-corruption enforcement actions by governments other than the United States.
Third Party Intermediaries
Corporate liability for improper payments made by third-party intermediaries is a feature in almost all of the Vietnam-related anti-corruption enforcement cases. Since 2006, various companies including Veraz Networks, Inc.; Securency; Aon Ltd; and other blue-chip companies have been charged with allegedly using third-party intermediaries to make improper payments to government officials.
- Veraz Networks, Inc.
On June 29, 2010, the SEC filed a settled civil action charging Veraz Networks, Inc., a California-based telecommunications firm, with violating the FCPA’s books-and-records and internal controls provisions in connection with sales in China and Vietnam. In Vietnam, a Veraz employee allegedly used a Singapore-based distributor to offer and make unspecified amounts of improper payments to the CEO of a government-controlled telecommunications firm. Without admitting or denying the allegations, Veraz agreed to pay a US$300,000 civil penalty and consented to an injunction from future violations of the FCPA’s accounting provisions. There is no indication that there will be a corresponding criminal case brought by DOJ.
- Aon Ltd
On January 8, 2009, the British Financial Services Authority ("FSA") announced a settlement with London-based reinsurer Aon Ltd. According to the FSA, between 2005 and 2007, Aon made nearly US$7 million in payments to multiple firms and individuals as a consequence of the company’s alleged failure "to properly assess the risks involved in its dealings with overseas firms and individuals who helped it win business" in five countries, including Vietnam. In announcing the £5.25 million fine, the highest ever imposed by the non-governmental U.K. financial regulator, FSA Director Margaret Cole said the action "sends a clear message to the U.K. financial services industry that it is completely unacceptable for firms to conduct business overseas without having in place appropriate anti-bribery and corruption systems and controls."
In accordance with FSA settlement procedures, the company’s substantial cooperation and early agreement to settle qualified it for a 30% reduction of what would otherwise have been a £7.5 million fine. Further, the FSA commended Aon’s current management for identifying the past issues and substantially improving the firm’s systems and controls, an approach that the regulator called "a model of best practice that other firms may wish to adopt."
- Securency International Pty Ltd.
On November 19, 2009, Australian federal police raided the Melbourne offices of Securency International Pty Ltd. and the homes of two of its executives as part of an investigation into allegations that the company used its agents to make unspecified amounts of improper payments to Vietnamese government officials to secure government contracts. In October 2010, the U.K. Serious Fraud Office arrested five individuals in connection with an investigation into Securency and two of its executives who conduct a major part of their work from England. Both investigations are ongoing; if Australian authorities charge Securency and its executives, it would be the country’s first prosecution for foreign bribery.
Prosecution of Individuals
A second major theme in Vietnam-related cases is the focus on prosecuting individuals for anti-corruption violations.
- Nexus Technologies, Inc.
On September 4, 2008, DOJ filed an indictment charging the export company, Nexus Technologies, Inc. and four employees–An Nguyen, Kim Nguyen, Nam Nguyen and Joseph Lukas–with money laundering and conspiring to violate and violating the Travel Act and FCPA, in connection with alleged corrupt payments to officials of various Vietnamese government agencies. According to the indictment, over a ten-year period the defendants paid at least US$150,000 in bribes, styled as "commissions," to Vietnamese government officials to secure contracts for the supply of a wide variety of equipment and technology. On March 16, 2010, Nexus, Nam Nguyen, Kim Nguyen and An Nguyen pleaded guilty to conspiracy, money laundering, and violating the FCPA. All but Kim Nguyen also pleaded guilty to violating the federal Travel Act. As part of the plea, Nexus agreed to cease operations in the United States and Vietnam within 90 days. The individual defendants received sentences ranging from two years of probation and a monetary fine to 16 months in prison and supervised release.
- Pacific Consultants International
On January 29, 2009, Tokyo-based consulting company Pacific Consultants International and three of its former executives were convicted of bribing a senior Vietnamese official to secure contracts for road projects backed by Japanese aid money, in a Japanese court. The executives admitted at trial to paying US$820,000 in bribes to a senior transport official in Ho Chi Minh City. After the conviction and issuance of a ¥70 million fine, however, the judge suspended the sentences of all three convicted men, a common result for white-collar criminals in Japan who admit the allegations against them. The convictions represent Japan’s first foreign bribery prosecution. As a result of the investigation surrounding the case, Japan suspended all aid to Vietnam. However, on February 23, 2009, the Japanese Ministry of Foreign Affairs announced that it was resuming the loan program after requests from the Vietnamese government and the arrest of the alleged recipient of the bribes. On October 18, 2010, Vietnamese officials sentenced the alleged recipient of the bribes to life in prison for "abuse of power."
Gifts and Entertainment
Many Vietnam-related FCPA prosecutions over recent years have involved the provision of gifts to government officials. For example, the SEC alleged that Veraz reimbursed its employees for "questionable expenses" relating to the Vietnamese state-controlled company, including gifts and entertainment for staff members and flowers for the CEO’s wife. Similarly, other companies were alleged to have given gifts to Vietnamese officials in exchange for business from the government and controlled customers.
Increased Global Anti-Corruption Enforcement Actions Relating to Vietnam
Although the United States has historically led the charge on anti-corruption enforcement, the recent cases demonstrate the recent growth of Vietnam-related anti-corruption actions by countries who have not been active in this arena in the past. Australia might have its first foreign anti-bribery case if it decides to charge Securency and/or its executives; Japan had its first foreign bribery prosecution in Pacific Consultants International; and the Vietnamese government in Pacific Consultants International demonstrated a willingness to prosecute its own officials if their corrupt actions endanger economic relationships with foreign partners.
Perhaps the most important new force in the field will be the U.K., especially with the enactment of its new Bribery Act. Prior to the enactment of the Bribery Act, the British FSA imposed its largest fine for a foreign corruption case in its settlement with Aon Ltd. As previously mentioned, the Bribery Act gives British authorities expansive jurisdiction to investigate and prosecute bribery around the world. The recent British investigation into Securency shows that the Serious Fraud Office will readily use the Bribery Act’s expansive jurisdiction to bring cases against companies and executives who mostly operate outside the U.K.
With the enactment of the new Bribery Act, the increased global focus on corruption, and continued corruption risks in Vietnam, anti-corruption enforcement actions in Vietnam can only rise. Although companies subject to the FCPA may already have anti-corruption policies and procedures in place, it is important to ensure such compliance procedures also meet the requirements of the Bribery Act and the laws of other countries that might exercise jurisdiction over their activities.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn lawyer with whom you work, or any of the following lawyers:
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