A. INTRODUCTION
The legal framework for the real estate sector in Vietnam is set
with the Law on Real Estate Business 2014 (LREB), the Law on
Residential Housing 2014 (LRH) (both effective since 1st July
2015). The LREB is guided by Decree No. 76/2015/ND-CP, the LRH
respectively is guided by Decree No. 99/2015/ND-CP. In addition,
long-awaited Decree No. 01/2017/ND-CP was released on 6 January
2017 and is amending three decrees guiding the law on land 2013
(Land Law).
The provisions of the mentioned regulations have brought more
investment in the real estate market to Vietnam. They have reduced
barriers for investment and widened accessibility to properties in
Vietnam.
B. ISSUES
However, not every issue is solved yet.
1. Delay in issuance of land use right certificate (LURC) for
foreign investors
The issuance of the land use right certificate to foreigners is one
essential requirement for developing projects on purchased land.
Article 75 of Decree 95/2015 provides the obligation for the
Department of Construction on issuing the "Foreign Ownership
Prohibited Projects List". However, the list is not released
yet. As result of that, the Department of Natural Resources and
Environment is refraining from issuing LURCs to foreigners.
As conclusion, the Foreign Ownership Prohibited Projects List
should be issued as soon as possible so that foreigners purchasing
land in Vietnam can obtain the LURC and are able to develop their
projects.
2. What are ''foreign invested enterprises"?
The LREB, the Land Law and the Law on investment 2014 (LOI) rule
about "foreign invested enterprise". There remain
uncertainties about this term.
The LREB is not providing any definition for foreign invested
enterprises. Furthermore, the Land Law is providing that joint
ventures enterprises, 100% foreign invested enterprises and
Vietnamese enterprises of which foreigners are buying shares,
merche with and acquire are included as foreign invested
enterprises without any given guidance about percentage of
ownership. Under the LOI an economic organization with foreign
investors being member or shareholder shall be a foreign invested
enterprise if part of ownership of the foreigner in the economic
organization is 51% or more. On the other hand, organizations with
foreign members or shareholders holding less than 51% are not
classified as domestic enterprises under the LOI.
However, this issue is crucial due to different treatment of
foreign invested and domestic enterprises. For example, domestic
enterprises are able to transfer land use rights in form of
division whereas this is prohibited to foreign invested
enterprises.
Further, the Document No. 386/BXD-QLN (28 February 2017) issued by
the Ministry of Construction states that the LREB does not need to
provide provisions relating to foreign invested enterprise as the
LOI has already did. However, Document 386 does not state that LREB
can adopt the same definition of foreign invested enterprise the
term remains ambiguous under the LREB.
3. Restrictions on sources of capital
Due to limiting the sources of capital for residential housing by
the LRH, foreign developers cannot obtain loans from offshore
credit institutions and non-credit institutions anymore. This
measure is reducing the ability and opportunity to raise capital
effectively and the competitiveness for foreign developers. Even
though, there is no necessity for limiting opportunities to raise
capital from legitimate sources.
4. Change of land user rights in case of acquisition of shares/
capital contribution
Article 2.27 of Decree 01/2017 provides the obligation for
enterprises on assigning for land use rights or registering changes
in the land and assets attached to the land when there is any
change in the land user in case of acquisition shares or
contribution of capital with land use rights included. In case of
acquiring land, the land still remains with the same enterprise.
Furthermore, the assigning process can impose financial
obligations. This issue can lead to difficulties for investors when
they acquire shares or contribute capital in enterprises.
5. Investment Approvals
The main approval for residential developments is either an
investment in-principle decision (IID) or investment in-principle
approval (IAA). In addition, an investor wishing to establish a
company in Vietnam needs an investment registration certificate
(IRC).
a. Circumstances requiring an IID:
Article 32 of the LOI is ruling the requirement of the IID that is
only applying to projects where developers receive land use rights
from State directly by way of allocation or lease of land without
auction, tendering or transfer. Furthermore, the Land Law states
the only way developers can receive land from State is either by
way of allocation or lease of land. As a result, it is uncertain in
which way developer can receive land by transfer.
b. Investment approval for capital contribution by way of land use
rights:
Under a joint venture between a domestic and foreign investor to
develop residential housing projects, the domestic investor will
contribute capital by way of land use rights. In such case the IID
is required only in cases of allocation or lease of land by the
State without auction tendering or transfer. It is uncertain if the
IIA will be required in cases of tendering or transfer.
Under the Law of Construction 2014 the developer has to obtain the
construction permit before he can commence the project. It is not
clear if the IIA is required to obtain the construction permit.
This requirement could lead to lack of ability on proceeding the
project in cases where obtaining the IIA failed.
On the other hand, if the IID is required, the developer will have
more assurance because of the possibility to obtain the IID before
the land use right is contributed.
c. Overlapping investment approvals
As mentioned above, the LOI provides the requirement of the IRC
apart from the IID and IAA. For projects which require the IID, the
IRC will be issued automatically after 5 working days from the
Issuance of the IID. The content of the IID is similar to the IRC
and no additional documents are necessary for issuance of the IRC.
As a result, the IRC is not necessary when the IID is issued.
For projects requiring the IIA, the developer shall obtain the IRC
first, then set up the company before obtaining the IIA. As
mentioned above, the developer is unable to develop the project
without IIA in cases of failing to obtain the IIA. Furthermore, the
IIA and IRC are dealing with authorities and their approvals and
the IIA is issued based on the 1/500 planning approval so that the
necessity of the IRC is not given.
6. Capital contribution in the form of land use right
The Land Law and the Law on Enterprises 2014 provide possibility of
contribution land use rights by individuals of a peace of land as
capital to an enterprise for a certain time period.
Under Article 80 of Decree No. 43/2014/ND-CP (15 May 2014) on
guiding the Land Law, capital contribution in form of land use
rights shall terminate if the individual capital contributor passes
away. As a result, if the capital contributor is passing away the
capital contribution agreement will be terminated which will cause
affection of the enterprise's LURC and its land use rights. On
the other hand, the Law on Enterprise 2014 stipulates that if an
individual contributes land as capital the enterprise will have the
right over the land.
Therefore, Article 80 of Decree No. 43/2014/ND-CP has caused
confusion and uncertainty for developers in case to consider
receiving land use rights from individuals.
7. Conducting real estate business on land contributed as
capital
Under the Land Law, domestic and foreign invested enterprises are
entitled to receive capital contribution by way of land use rights.
However, there is no provision in the LREB regarding contributions
as capital for organizations and individuals. As a result,
organizations are not entitled to receive capital contribution by
way of land use rights for developing real estate projects. This is
causing inequalities and an unfair competition in the real estate
sector.
C. OUTLOOK ON MAJOR TRADE AGREEMENTS TPP 11 AND EUVNFTA
In January 2017, US President Donald Trump decided to withdraw
from the US' participation in the TPP. In November 2017, the
remaining TPP members met at the APEC meetings and concluded about
pushing forward the now called CPTPP (TPP 11) without the USA. The
agreement shall be signed by all member states by the first quarter
of 2018. After that, it has to be ratified in each member state
before taking effect.
The effects of the TPP 11 promising great benefits for the real
estate sector in Vietnam. The TPP 11 is targeting to eliminate
tariff lines and custom duties among member states on certain goods
and commodities to 100%. This will make the Vietnamese market more
attractive and could cause motivation for foreign enterprises to
settle to Vietnam for building warehouses, offices, setting up
plants or even for investing in the real estate sector because the
market is becoming more dynamic with the TPP.
One another notable major trade agreement is the EUVNFTA between
the European Union and Vietnam. The EUVNFTA offers great
opportunity to access new markets for both the EU and Vietnam. It
will help to bring more capital into Vietnam. In addition, the
EUVNFTA will boost the most economic sectors in Vietnam.
Establishments in other economic sectors in Vietnam will have
impact on the real estate sector due to its association with these
sectors such as healthcare, technology or education.
Furthermore, the Investor State Dispute Settlement (ISDS) will
ensure highest standards of legal certainty and enforceability and
protection for investors. We alert investors to make use of these
standards! We can advise how to best do that! It is going to be
applied under the TPP 11 and the EUVNFTA. Under that provision, for
investment related disputes, the investors have the right to bring
claims to the host country by means of international arbitration.
The arbitration proceedings shall be made public as a matter of
transparency in conflict cases. In relation to the TPP, the scope
of the ISDS was reduced by removing references to "investment
agreements" and "investment authorization" as result
of the discussion about the TPP's future on the APEC meetings
on 10th and 11th November 2017.
Further securities come with the Government Procurement Agreement
(GPA) which is going to be part of the TPP 11 and the
EUVNFTA.
The GPA in both agreements, mainly deals with the requirement to
treat bidders or domestic bidders with investment capital and
Vietnamese bidders equally when a government buys goods or requests
for a service worth over the specified threshold. Vietnam
undertakes to timely publish information on tender, allow
sufficient time for bidders to prepare for and submit bids,
maintain confidentiality of tenders. The GPA in both agreements
also requires its Parties assess bids based on fair and objective
principles, evaluate and award bids only based on criteria set out
in notices and tender documentation, create an effective regime for
complaints and settling disputes, etc.
This instrument will ensure a fair competition and projects of
quality and efficient developing processes.
D. CONCLUSION
The mentioned issues are affecting the competitiveness in the real estate sector. The given restrictions, additional obligations for foreign investors, the lack of clear guidelines on implementing regulations are hurdles for investors seeking to invest in this sector in Vietnam. In view of the government's commitments to ensure growth and the issues mentioned above, it is necessary to create clear guidelines for eliminating confusion to the investors and real estate buyers. Furthermore, the upcoming major trade agreements will have a great impact on the development of the real estate sector in Vietnam. On the other hand, the Vietnamese government still has to make further improvements on the legal environment for ensuring the implementation of the agreements.
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