베트남 투자법의 사업투자 규제 검토 - 외국투자가의 시장진입 규제를 중심으로 -

This paper reviewed the market entry restrictions to foreign investors under the 2020 Investment Law of Vietnam (“New Investment Law”). In that course, it also reviewed the differences between the New Investment Law and the 2014 Investment Law of Vietnam (“Old Investment Law”). Vietnam’s investment laws have utilized a negative list system, applying discriminatory market entry restrictions to foreign investors in certain business sectors while applying the same restrictions to both domestic and foreign investors in all other business sectors. The target to which such discriminatory restrictions apply includes foreign-invested enterprises in which foreign investors hold a high charter capital ratio. The New Investment Law provides for the first time detailed lists of business sectors in which the market entry of foreign investors is restricted. The first list provides 25 business sectors in which the entry of foreign investors is prohibited, and the second list provides 59 business sectors in which the entry of foreign investors is allowed conditionally. The Old Investment Law provided that for the business sectors that neither Vietnam laws nor international treaties regulate, the investment registration agencies must seek the opinions of the relevant ministries of the national government and determine whether to allow the market entry of foreign investors and relevant conditions for such entry on a case-by-case basis. Under the same circumstances, the New Investment Law provides that the same conditions apply to both domestic and foreign investors. Lastly, for certain occasions in acquiring enterprises in Vietnam, foreign investors must register such acquisition at the investment registration agencies. In this regard, the Old Investment Law provided that foreign investors must make the registration when they make capital contribution to, or purchase shares or a portion of capital contribution of an enterprise operating in business sectors in which foreign investors’ entry is conditional. Foreign investors must also make the registration when capital contribution, or the purchase of shares or a portion of capital contribution results in the fact that foreign investors or certain foreign-invested enterprises hold 51% or more of the charter capital of the enterprise. However, under the regulations, it was unclear if registration is required only when foreign investors’ charter capital ratio is increased as a result of the acquisition or even when the ratio is maintained or decreased. The New Investment Law, however, clarifies that registration is required only when foreign investors’ charter capital ratio is increased. Along with this amendment, the New Investment Law set up a new regulation requiring registration when foreign investors acquire an enterprise that holds the land use right for areas influencing national defense and security. To this end, the New Investment Law provides detailed definitions of the areas influencing national defense and security. As a result, the discretion of the investment registration agencies regarding the interpretation of the relevant regulation seems to be limited. As explained above, the New Investment Law amended a number of unclear provisions of the Old Investment Law and thereby increased the predictability regarding foreign investors’ market entry. It is expected that this paper will help foreign investors who plan to enter new business sectors in Vietnam. It is also hoped that Vietnam will open its market extensively in the near future in concert with its rapid economic growth.