On September 25, 2021, the Government issued Decree No.85/2021/ND-CP amending and supplementing a number of articles of Decree No.52/2013/ND-CP dated May 16, 2013, on the e-commerce trading floor. Accordingly, this Decree has added new regulations on e-commerce activities of foreign traders and organizations, especially regulations on market access conditions of foreign investors in the service sector of e-commerce. Market access conditions include:

1. Foreign investors perform e-commerce activities in Vietnam in the form of investment in the establishment of a business organization; or Investment in the form of capital contribution or purchase of shares or stakes (as prescribed in Clauses 1 and 2, Article 21 of the Law on Investment);
2. A foreign investor that controls one or more enterprises in the list of 05 leading e-commerce enterprises in Vietnam (according to the list announced by the Ministry of Industry and Trade shall be subject to the Ministry of Public Security’s assessment of national security conditions).

In which, a foreign investor is considered to be dominant in an enterprise providing e-commerce services according to the above regulations when it falls into one of the following cases:

• The foreign investor holds more than 50% of charter capital or 50% of voting shares of the enterprise;
• The investor has the right to directly or indirectly decide to appoint, dismiss or discharge the majority or all of the members of the Board of Directors, Chairperson of the Board of Members, Director or General Director of the enterprise;
• The investor has the right to decide important matters concerning the enterprise’s business, including the selection of technologies, business form, business lines, business areas, and business types; adjustment of business scale and business lines; selection of methods of mobilization, allocation, and use of business capital of that enterprise.

(For determining the group of 05 leading enterprises in the market, it is based on the criteria of the number of visits, the number of sellers, the number of transactions, the total transaction value).

Thus, the provision of e-commerce services is a conditional market access industry for foreign investors. When foreign investors conduct investment activities in Vietnam, they must comply with the above regulations on market access conditions.

This Decree takes effect from January 1, 2022.