1. Legal basis in the field of e-commerce activities of foreign investors in Vietnam

– Law on Enterprises 2020

– Law on Investment 2020

– Decree 52/2013/ND-CP on e-commerce

– Decree No. 85/2021/ND-CP amending and supplementing a number of articles of Decree No. 52/2013/ND-CP on e-commerce

– Decree 09/2018/ND-CP detailing the Commercial Law and the Law on Foreign Trade Management on goods purchase and sale activities and related activities – foreign-invested in Vietnam.

2. E-commerce activities of foreign investors

According to Clause 1, Article 3 of Decree 52/2013/ND-CP, it is specified as follows:

“E-commerce activities are the conduct of part or all of the process of commercial activities by electronic means connected to the Internet, mobile telecommunications networks or other open networks.”

Entities participating in e-commerce activities as prescribed in Article 24 of Decree 52/2013/ND-CP and Article 1 of Decree 85/2021/ND-CP include:

• Traders, organizations and individuals who set up e-commerce websites to serve their trade promotion activities, sell goods or provide services (owners of sales e-commerce websites).
• Traders and organizations providing e-commerce services.
• Traders, organizations and individuals who use the websites of traders and organizations providing e-commerce services to serve their trade promotion activities, sell goods or provide services (sellers).
• Traders, organizations and individuals who buy goods or services on e-commerce websites selling goods and websites providing e-commerce services (customers).
• Traders and organizations providing technical infrastructure, logistics services and other supporting services for e-commerce activities.
• Traders, organizations and individuals use electronic devices with other networks to conduct commercial activities.

E-commerce activities can be divided into five types, including:

• sales e-commerce website,
• e-commerce exchanges,
• online promotions,
• Online Auction
• and electronic contract authentication activities.

3. Market access conditions

Pursuant to Article 67c of Decree 85/2021/ND-CP, foreign investors who choose to invest in the field of e-commerce in Vietnam must meet two conditions on

• Form of investment: foreign investors who want to invest in Vietnam in the field of e-commerce must still establish an economic organization in Vietnam, or through capital contribution, purchase of shares, or contributed capital.
• According to the Ministry of Public Security’s national security regulations, if foreign investors dominate one or more enterprises in the group of 5 leading enterprises in e-commerce services in Vietnam according to the announcement of the Ministry of Industry and Trade. This condition will be exempted in case the acquired enterprise is an innovative start-up small and medium-sized enterprise.

Asprescribed in Clause 3, Article 67c of Decree 85/2021/ND-CP, foreign investors dominate enterprises providing e-commerce services when they fall into one of the following cases:

• Foreign investors holding ownership of more than 50% of charter capital or more than 50% of voting shares of enterprises;
• The investor directly or indirectly decides to appoint, dismiss or dismiss the majority or all members of the board of directors, the chairman of the board of members, the director or general director of the enterprise;
• Investors have the right to decide on important issues in the business activities of the enterprise, including the selection of technology platforms, forms of business organization; selection of branches, trades, areas and forms of business; to choose to adjust the scale and business lines; to choose the form and method of mobilization, allocation and use of business capital of that enterprise.

4. Administrative procedures for e-commerce activities of foreign-invested economic organizations

a) The process of notifying an e-commerce website for sales

Step 1: Log in to the E-commerce Management Portal system at www.online.gov.vn address

Step 2: Proceed with the website announcement

Step 3: Enter information about the website, choose the appropriate type of goods and submit the required documents

b) Procedures for issuance of business licenses for foreign investment activities in the field of provision of e-commerce services

The dossier comprises:

– An application for a business license;

– An explanation with contents;

– Explanation of conditions for issuance of business licenses;

– Business plan;

– Financial plan;

– Business situation of goods purchase and sale activities and activities directly related to goods purchase; the financial situation of the foreign-invested economic organization up to the time of applying for a business license;

– Documents of the tax authority proving that there is no overdue tax debt

– Copy: Certificate of enterprise registration; Certificate of investment registration of the project of goods trading activities and related activities.

c) Procedures for registering to set up a website/application providing e-commerce services

The dossier comprises:

– Application for establishment of a website providing e-commerce services;

– Copy: Establishment decision (for organizations), Business Registration Certificate, Investment Certificate/Investment License for traders);

– Scheme on provision of services as prescribed in Clause 3, Article 54 of Decree No. 52/2013/ND-CP;

– The Regulation on management of the operation of websites providing e-commerce services complies with the provisions of Decree 52/2013/ND-CP and relevant legal provisions;

– Form of service provision contract, general transaction conditions (if any);

– General transaction conditions applicable to the purchase and sale of goods and provision of services on the website (if any).

The above is the content of KALF’s consultation on foreign investors in the field of e-commerce and related issues. All of our above advice is based on applicable legal regulations. If you have any questions or requests about legal issues, please contact us for timely answers.

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