Tài liệu The law on enterprise acquisition in vietnam

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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY TRAN THI BAO ANH THE LAW ON ENTERPRISE ACQUISITION IN VIETNAM Field of Study : Economic Law Code : 62 38 01 07 ABSTRACT OF DOCTORAL THESIS ON LAW STUDIES HANOI - 2014 Training instituation: HANOI LAW UNIVERSITY Supervisor: 1. Assoc. Prof. Dr. Nguyen Viet Ty 2. Dr. Phan Chi Hieu Opponent 1: Prof. Dr. Le Hong Hanh Opponent 2: Assoc. Prof. Duong Dang Hue Opponent 3: Assoc. Prof. Dr. Nguyen Minh Man This thesis will be defended before the University Thesis Evaluation Board at Hanoi Law University on This thesis can be studied more at: 1) National Library of Vietnam; 2) Library of Hanoi Law University; , dated / /2014 INTRODUCTION 1. The urgency of the topic The terms “Merger and Acquisition” (abbreviated as M & A) means that merging and acquisition of (or trading) businesses, which are the activities to gain control, to dominate partly or entirely business operations of enterprises through owning a portion or the entire enterprise. M & A has drawn the attention of investors, scientists in economic and legal fields by the popularity and the various impacts to the entire world economy. M & A is reviewed under two main angles which are economic perspective as a problem of business finance and corporate strategic management, and legal perspective as the object of a legal framework for the implementation of M & A. The author of the thesis has selected one of the two activities of M & A which is acquisition or enterprise trading as the research topic for the jurisprudential thesis originated from the following basic reasons: First, the scientists have mainly studied M & A in term of economic angle, very few have the legal scientific works on M & A in general and on Acquisition in particular. In Vietnam, the legal provisions on mergers have been relatively clear, while the laws on acquisitions have been inconsistent, have lacked comprehensiveness. Most studies on acquisitions under narrow perspective as business trading (not involved in researches on purchases and sales of private enterprises, cooperatives) or studies on business trading contracts in the workshop articles have not evaluated the overall legislation on acquisitions. For that reason, there should be legal scientific works with more intensive research on acquisitions. Therefore, research the law on acquisitions has suggested a topic idea for the student to develop into the jurisprudential doctor dissertation. Second, in view of competition, acquisition is understood as acts of economic concentration associated with the process by which the number of competitive-free independent businesses in the market has been reduced through the acts of merger, consolidation, acquisition, joint-ventures, and other behaviors of economic concentration. Karl Marx discovered a law full of paradox: Competition leads to economic concentration but economic concentration to a certain level destroys competition and forces the State to adjust law to economic concentration. For that reason, there should be a jurisprudential research on assessing the situation of law and competition law enforcement to control the business acquisitions in order to protect competition in the market and general welfare of the society. For all the above-mentioned reasons, I have selected “THE LAW ON ENTERPRISE ACQUISITION IN VIETNAM” as my doctoral thesis topic. 2. The object and scope of the dissertation research The object of the thesis research is the present activities of acquisitions in Vietnam. The scope of the thesis research: As a jurisprudential doctoral thesis, it emphasizes on the research of acquisitions in terms of legal science. The dissertation only focuses on analyzing acquisition research without consolidation or merger activities. Seen from legal perspective, acquisition is a complex investment operation, involving in many different issues such as contract law, securities law, corporate law, competition law, labor law, land law, environment law, financial law, law on intellectual property etc. The thesis does not analyze all the law related to acquisition. It does not in-depth study the after-trading procedures such as tax procedures, business transformation process. It nor have the analysis on state management for acquisition activity (in aspects of competition law, securities law) and the law on the settlement of disputes arising from business purchasing and selling operation. Buying and selling businesses is a topic research with very wide content and quite complicated. However, in terms of a doctoral thesis, it focuses within the following scope: Research on acquisitions in Vietnam with the nature of the investment is to gain ownership and control of enterprises with the following specific content: subjects of acquisitions, trading object is a part or whole of the business, acquisition forms, acquisition procedures, control of acquisitions from the perspective of competition law. In practice, acquisitions are shown through many different diverse forms. Within the limit of the jurisprudential doctoral thesis, acquisition is studied under the form of the business holders to transfer all shares, the dominated capital to the purchaser. Therefore, the forms of increasing charter capital of enterprises and the shareholders contributed to the charter capital for the purpose of governing and controlling business activities of enterprises are excluded from the scope of the dissertation research. 3. The purpose and tasks of the thesis research The purpose of the thesis: The purpose of the thesis is to study acquisition activity under legal perspective and build a number of solutions to complete the law on acquisitions in Vietnam. To achieve this purpose, the thesis poses the following basic tasks: - Analyze the theoretical basis of acquisition activity by clarifying the concept of acquisition in a number of countries and that in Vietnam; clarify the features of acquisitions in comparison with some other legal relations; analyze the basic contents of the law on acquisition. During analysis, the trading activities are considered under the comparable view with the provisions of a number of countries around the world in order to give a richer and more systematic as well as more comprehensive view on this activity. - Look at the provisions of the existing laws on acquisition activity, indicating the existence of the inadequacies of the legal system on acquisitions and analyzing, giving comments on the experiences of regulating laws on acquisitions in several countries. Analyze and evaluate the operating acquisitions as the basis for proposed solutions accordingly. - Propose measures to improve the law on acquisitions in Vietnam in the current period. 4. The methodology and the research method of the thesis The thesis is formed on the basis of the methodology of Marxism – Leninism, Ho Chi Minh Ideology and the perspective of the Communist Party about State and Law. The methodological basis of the dissertation is dialectical materialism and historical materialism. To solve the problems posed in the tasks of the research topic, different research methods such as analysis, synthesis, and jurisprudential comparison are used in combination. 5. New features and significance of the thesis The thesis has achieved the following new findings: - The thesis analyzes the concept of buying and selling businesses in the world, from which builds a concept of trading businesses in Vietnam; pointing out the basic legal characteristics of acquisitions versus asset trading, business leasing, donating, merging, share transfer, or capital share. - The thesis builds scientific theoretical system of laws on acquisitions in Vietnam. It is expressed through the construction of concepts, clear identification of the content of laws on acquisitions including norms of acquisition forms, subjects of acquisition, acquisition contract, the procedures, and control of business trading under the adjustment of competition law. - The thesis is the first scientific research work which comprehensively and systematically evaluates the current status of legislation on acquisitions in Vietnam, pointing out the inadequacies of existing laws on acquisitions. Simultaneously, it analyzes and reviews international experiences in regulating laws on business trading activities. This is one of the important foundations for reference in the process of finalizing legislations on acquisitions. - The dissertation sets out specific solutions to improve the law on acquisitions with a view to meeting the need of developing enterprise trading activities in the market economy, especially in the trend of international economic integration. 6. The structure of the thesis Apart from the Preamble, the overview of the situation of the thesis research, conclusion, list of references, the dissertation includes three chapters, concretely as follows: Chapter 1: The theoretical issues of acquisitions and legislation on acquisitions. Chapter 2: The current status of legislation on acquisitions in Vietnam. Chapter 3: The demands and solutions to complete the laws on acquisitions in Vietnam. THE OVERVIEW OF THE SITUATION OF THE THESIS RESEARCH There are many scientific works from law textbooks, reference books, dissertations, essays, journal articles to presentations at the workshops studying on acquisitions. It can be typically told as follows: M&A Mergers & Acquisition Basics The Key Steps of Acquisition, Divestitures, and Investments by author Michael E.S. Frankel, Knowledge Publishing House, Hanoi (2009); Mergers and Acquisitions from A to Z by Andrew J.Sherman, Milledge A. Hart, Knowledge Publishing House, Hanoi (2009); Intelligent M&A: Navigating the Mergers and Acquisitions Minefield by Scott Moeller, Chris Brady, Knowledge Publishing House, Hanoi (2009); Issues to Consider When Embarking on M & A Transactions in Vietnam by Gregory Crovo, Partner (Foreign Lawyer), Kelvin China Partnership; Report on Economic Concentration in Vietnam – Current Status and Forecast (2012), Competition Management Department, Ministry of Industry and Trade, Hanoi; Scientific Research: A handbook for Mergers and Acquisitions in Vietnam by Vietnam Mergers and Acquisitions Network (2009); Ministry-level scientific research project: Mergers and Acquisitions Activity – The Rationale, international experience, and recommended policy for Vietnam (2009), Central economic management research Institute; Ministry-level scientific research project: The legislations in governing mergers and acquisitions in Vietnam – scientific workshop proceedings of laws on mergers and acquisitions: Theoretical and practical issues organized and chaired by Ho Chi Minh Law University (2010); Monographs: Laws on contracts in commerce and investment – The basic legal issues, National Political Publishing House, Hanoi edited by Dr. Nguyen Thi Dung in 2009 etc. In different facets, the study of corporate trading activity has been mentioned by the above authors, however, it has just stopped at each specific content without comprehensively and deeply addressing all aspects of acquisition activity. Therefore, an in-depth study with fuller, more comprehensive and systematic content on acquisitions in Vietnam in the current period is absolutely necessary. The author evaluates legislation on acquisitions in two perspectives: (i) acquisition is business freedom, so the thesis specifies a legal framework for implementing acquisition procedures; (ii) acquisitions under adjustment of competition law, the contents of the Report on Vietnam economic concentration in 2012 are used for reference by the author to give personal statements in order to complete the law on acquisitions in Vietnam. The thesis analyzes to identify acquisition relations on the basis of evaluating the research content of M & A in conjunction with the analysis of legal regulations on acquisitions, regulations on M & A of several countries. This is the thesis’ new approach to acquisitions that is different from other foreign and local authors’ scientific works. Chapter 1 THE THEORETICAL ISSUES ON ACQUISITIONS AND LEGISLATIONS ON ACQUISITIONS 1.1. An overview of acquisition 1.1.1. Concept of acquisition Based on the analysis of interpretation of acquisition in a number of countries and the provisions of the Competition Act (2004), Corporate Law (2005), the thesis puts forward the concept of acquisition as follows: Acquisition is a corporate action in which the business owner transfers the entire capital or contributed stakes, controlling shares to the transferee. The transferee has the ownership of the whole or a part of the enterprise and control over the business operations of the acquired enterprise. 1.1.2. Characteristics of acquisition First, the object of trading relationship is business with the nature of special “commodity” in acquisition relationship. Second, the consequence of the acquisition is the purchaser to take control of operations of the target business. Third, the subject who has the right to sell the business must be the business owner, the purchase subjects should be the organizations or individuals who wish and have the right to purchase enterprises. Fourth, the legal forms which recognize acquisition relationships are enterprise sale contracts, share transfer agreement, the dominant stake (generally referred to as acquisition contracts). Fifth, acquisition must be allowed or recognized, controlled by State agencies under certain legal procedures. 1.1.3. Differentiate acquisition with some other legal relations. Discriminate acquisition with business leasing, donation, leveraged buyout. Acquisition is different from business leasing. In the relation of leasing business, the lessor does not transfer the business ownership to the lessee. The lessee only has the right of managing and operating the business under agreement in the lease contract and regulations of the relevant law. Acquisition is different from business donation. In the relation of acquisition, the seller transfers the enterprise ownership to the purchaser, and the purchaser is obliged to pay the seller (with compensation). For business donation, the donor transfer the enterprise ownership to the done without compensation requirements; the donee agrees to take over the business without payment. Acquisition is different from leveraged buyouts because acquisition means the business ownership is transferred to the purchaser but a leveraged buyout only changes the creditor, not the owner of the business. The exception in which a leverage buyout becomes an acquisition happens when the creditor and the owner of the business change the debt into the equity capital. Distinguish acquisitions and business asset purchases First, the objects of acquisitions and business asset purchases are different. The object of asset purchases and sales is the assets of the target enterprise. Buying and selling the business assets only change the ownership of some certain assets from the seller to the purchaser. The objects of acquisition are enterprises. Second, the asset salesperson is different from the subject who has the right to sell the business. Businesses are only the objects of acquisitions, they are not able to sell themselves. Therefore, the subject who has the right to sell the business is the owner of that business. Unlike acquisitions, according to the general theory of the right of property owners to the assets, the subject who has the right to sell the assets of the enterprise is the business. Differentiate acquisitions with mergers The objects of acquisitions and mergers are different. Acquisition means the ownership of the entire or partial target business is transferred to the purchaser. While merger is the transfer of all assets, rights, obligations, and legal interests of the merged enterprise to the merging business. The legal consequences after mergers and after acquisitions are different. The merged enterprise ceases existing after the merger. Unlike corporate merger, the target business in the acquisition transaction still exists before, during, and after the purchase process. Distinguish acquisitions and other forms of financial investment through the transfer of shares, stakes of members and shareholders of the company. It is considered acquisitions only when the transfer of stakes leads to the consequence that the transferee of stakes and capital shares can control and govern the operations of the target business. 1.1.4. The impacts of acquisitions on the business seller, buyer, and on social economy The thesis has evaluated the different impacts of acquisitions on social economy, including the positive effects on increasing economic benefits derived from the implementation of corporate acquisition deals. At the same time, the thesis also examines acquisitions under the competition aspect and sees that acquisition is a economic concentration, is the “gateway” leading to the formation of enterprises with market power and may negatively influence on the market competition. 1.2. Legislations on acquisitions 1.2.1. Legal concept on acquisitions Acquisition is complex. It covers all the issues of property, capital, market, brand, management structure, personnel, culture etc. Acquisition is studied under the economic, financial, and legal perspectives. The research contents of acquisitions are different due to the different approaches at different angles. Acquisition law can be interpreted in broad sense and narrow sense. In broad terms: Acquisition law is a combination of many legal norms under different law fields, regulates social relations arising in the process of conducting acquisitions. In narrow terms: Legislation on acquisition is a system of legal norms which directly adjusts social relations arising between the buyers and the sellers of the businesses during the acquisition contract signing process, and the relation between the authorized state and the enterprise to register to change the business owners or to implement State control on economic concentration. Legislation on acquisition in the narrow sense includes specific provisions to directly adjust the relationship between the parties involving in acquisition deal. Specifically, the legislation on acquisition in the narrow sense with internal content: regulations on forms of acquisitions, regulations on subjects as enterprise seller and buyer; regulations on acquisition contracts; regulations on acquisition procedures; provisions on business control under the competition law perspective. 1.2.2. Law content on acquisitions The content of law on acquisitions is understood in a narrow sense as described in the above subsection 1.2.1 consists of the following specific rules: Regulations on forms of acquisitions; Provisions on subjects of acquisitions; Legal rules on contracts – the method to implement acquisition transactions; and legal regulations on acquisition procedures. Chapter 1 Conclusion 1. Acquisition not only changes the status of business ownership but also the enterprise operating management activities. 2. The objects of acquisition are enterprises. The enterprise which is the subject of acquisition should maintain legal status after acquisition transaction and only change the business owner. 3. Acquisition forms in Vietnam include: (i) entire acquisition shown by the owner of the business transfer the entire stakes and shares to the purchaser; (ii) partial acquisition implemented by the owner assigns the dominant stakes to the assignee to take control of the business operations. The ratio of dominant stakes to get control of the business operations are prescribed in legal documents or regulated in The business Charter of the acquired enterprise. 4. The thesis studies the provisions of the law on acquisitions in Vietnam in the narrow sense. Accordingly, the legislation on acquisition is a system of conduct rules issued or recognized by the State, directly adjusts social relations arising between buyers and sellers during the signing contract process and the relation between authorized state agencies and enterprises in registering to change the business owners or to implement state control in economic concentration. CHAPTER 2 LEGAL STATUS ON ACQUISITIONS IN VIETNAM 2.1. Regulations on acquisition forms 2.1.1. Entire business acquisition Purchase the entire business means the purchaser is transferred the ownership of the entire business by the owner of the enterprise. The entire business acquisition form include as follows: private business acquisition, the assignation of all the stakes and shares to the assignee. The buyer of the private enterprise and the transferee of the stakes and shares should register to change the owner of the business according to the regulated law. The legal basis for implementation of entire business acquisition is prescribed in corporate law, securities law, and investment law. In a number of areas related to economic security, the acquisition legislation may be different from the nature of the acquisitions in other areas, such as the State will limit the forms of acquisitions, strictly control the procedures on the acquisition of credit organizations etc. The reasons that the State develops legal regulations to govern the acquisition activities in some specific areas such as acquisitions of credit institutions are in order to stabilize the national economy in the recession time or to restrict the negative impacts of the market economy on the social economy. 2.1.2. Partial business acquisition Partial business acquisition means the owner of the enterprise transfer the ownership of a part of the business to the buyer so that the buyer can control the target enterprise. This form includes: members and shareholders of the company transfer the stakes and dominant shares (generally called as the dominant stakes) to the assignee so that the person can take control of the operations of the target business. The proportion of the dominant stakes is regulated in law or prescribed in the business charter. The buyer now becomes the co-owners of the business and must perform registration procedures to change the ownership as prescribed by law. The legal basis for implementation of partial business acquisition is prescribed in corporate law, securities law, and investment law. Purchasing branches or the dependent accounting unit of the enterprise is not acquisition because: (i) the dependent accounting units, the subordinate units of the enterprise do not have the legal status, is not an independent legal entity, not a business; (ii) On the balance sheet of the business, the subsidiaries and the dependent accounting units are not shown as assets of the business. Partial business purchases can be considered as acquisition in some cases depends on the legal form of the business department. 2.1.3. Business asset acquisition Section 3 of Article 17 in Competition Law (2004) states: Acquisition means a business purchases the entire of a part of the assets of another enterprise sufficient to take control and dominate the entire or an industry of the acquired business. The approach of the Competition Law and the instruction decrees on acquisition case is not suitable with the theory of enterprises in Vietnam. Under the general principles to form as a business owner, the investor must contribute to the charter capital of the enterprise. For the businesses existing under the legal forms as companies, they must determine the stakes of the company owners and clearly stated in the Charter. In acquisition, to form as a business owner, the purchaser must “buy” the ownership of the business by buying the contributed stakes of the owner of the business. Purchasing the stakes of the business owner is absolutely different from buying assets of the business because asset purchasing only makes the purchaser become the owner of the acquired property, not the owner of the target business. 2.2. Regulations on the subjects of acquisitions 2.2.1. The selling party As a general rule, who is now the owner, that person may decide to sell the business. Depending on the type of business that the owner may be an individual or a legal entity or many individuals and organizations with legal status. 2.2.2. The buying party The buying party might be an organization or an individual wishing to purchase the enterprise and meet the enterprise and meet the conditions prescribed by law. Depending on the type of the business or the purpose of adjustment of the legal documents, the conditions on the subjects having the right of buying the business can be different. For not 100% state-owned enterprises, there is no law specifying the objects having the right of buying businesses. So, a question arises: do the objects without the right of founding, managing businesses in Vietnam as stipulated in section 2 Article 12 of the Enterprise Law (2005) have the right to buy a business? Theoretically, the above objects are only prohibited from founding businesses, not from buying businesses, therefore, they still have the right to buy businesses with the argument that they purchase the business without further operating it. The concept of foreign investors in the legal document of Vietnam is not unified. The foreign investors are limited to owning shares in a number of business areas and industries. First, the interpretation of foreign investors in the current legal documents is not unified. Second, despite the WTO accession commitment, some current legislations which have not clearly defined whether the foreign investors could enter the market through acquisition activity have still existed. For instance, in the distribution sector, all the 100% foreign invested businesses would have the distribution rights in Vietnam since 1/1/2009. However, these businesses are restricted to open only one distribution facility. So if foreign investors acquired a distribution facility of a Vietnamese business owning more than one distribution facility, what regulated law would be used? 2.3. Legislation on contract – the method of performing acquisition transactions. 2.3.1. Types of contracts – the method to implement acquisition transactions. Depending on the concept of acquisition that the legislations on types of acquisition contracts in different countries may vary. Based on the analysis of acquisitions in Vietnam and the concept of contract under the provisions of the Civil Code, the author has launched the concept of acquisition as follows: The private business acquisition contracts, contracts of entire charter capital assignment, contracts of transferring the stakes, controlling shares, 100% stateowned business sales contracts now referred to as the acquisitions contracts are the agreement between the parties, whereby the owner transfers the entire capital or the controlling shares to the purchaser. The buying party now has a part or entire ownership of the enterprise and has the obligation of giving payment to the business owner. 2.3.2. The content of the acquisition contract Acquisition is very complicated and the law should have some theoretical orientation on acquisition contracts to reduce risks, minimize disputes for the buyers, sellers, and other related subjects in acquisition relations. In general, the seller and the purchaser should negotiate some following basic contents in the business acquisition contracts: First, the object of the acquisition contract. Second, the price of acquisition deal. Third, the agreement on taking over and transferring the rights and obligations of the acquired business. Fourth, the time of transferring the business ownership to the purchaser. 2.3.3. The forms of acquisition contracts In Vietnam, the legislation indirectly prescribes that the acquisition contracts must be set in the form of “text”. Specifically, Clause 3 Article 18 of Government Decree No. 108/2006/ND-CP dated 22/9/2006; Decree No 109/2008/ND-CP on selling, transferring 100% state-owned enterprises; Article 43 of Decree No. 43/2010/ND-CP dated 15/04/2010 on business registration; Article 44 of Decree No. 43/2010/ND-CP dated 15/04/2010 on business registration. 2.4. Regulations on acquisition procedures 2.4.1. Control acquisitions under the adjustment of competition law. First, the use of market share criteria combined to a certain percentage on the relevant market as the basis for economic concentration control has shown that the Competition Law only handles cases of economic concentration in horizontal direction. The relevant market includes market of relevant products and the related geographic market. Therefore, the vertical market concentration behavior (including acquisition) and mixed economic concentration without the same relevant market are not the subject to the control of competition law. Second, competition law based on the combined market share criteria to require businesses to implement procedures for notification of economic concentration at the Competition Administration Department is a difficult regulation for businesses during the process of competition law enforcement. The reason is that each business only know about their sales without the obligation to know about the sales of competitors in relevant market in order to calculate the market share of each company then calculate the proportion of the combined market share of enterprises participating in economic concentration. Third, the measure to control economic concentration as defined in Article 18 of The Law on Competition (2004) is not really effective. Fourth, the regulations on the subject of economic concentration in Clause 1, Article 2 of the Law on Competition (2004) are not compatible with the regulations on the subject of economic concentration at the point b (2004). Fifth, the regulations on economic concentration control in Vietnam are scattered in many different laws, the law enforcement process will be interfered without the mechanism of coordination between the public authorities. 2.4.2. Trading procedures of acquisition transactions out of the adjustment scope of competition law. The procedures for acquisitions beyond adjustment scope of competition law are stipulated in enterprise law, investment law, and securities law. For acquisitions transactions of 100% state-owned enterprises, credit institutions, the procedures are specified in separate legal documents. Legislation on acquisition procedures has still existed the following inadequacies: inconsistent and contradictory regulations on private business acquisitions, making difficulties for law enforcement process; whether the private enterprise code could be converted to a limited company with two members or more or converted when the private enterprise is sold or not are now the contents making difficulties in law enforcement process; regulations on investment procedures in legal documents are not scientific, rational and still overlap with the business registration provisions of the Enterprise Law (2005)… Chapter 2 Conclusion The forms of acquisitions in Vietnam include the entire business acquisitions and partial business acquisitions through specific forms such as private business acquisitions, transfer of the whole capital or the stakes, dominant shares. Currently, many legal gaps on the business purchaser subjects have still existed, the objects who have the rights to purchase private enterprises, limited companies, joint stock companies, and partnership corporations have not been clearly identified yet. Regulations on acquisition contracts in Vietnam are simple and sketchy in comparison with the ones in other countries. CHAPTER 3 DEMANDS AND SOLUTIONS TO IMPROVE ACQUISITION LAWS IN VIETNAM 3.1. Requirements for improving the law on acquisitions in Vietnam 3.1.1. To improve the law on acquisitions should be based on the innovation of state management mindset and ensuring the fairness and social progress. 3.1.2. To improve the law on acquisitions in Vietnam should reflect the acquisition practice and put forward the requirement of completing the law on acquisition should be feasible and meets the practical demands. 3.1.3. To improve the law on acquisitions should ensure transparency and consistency. 3.1.4. To complete the law on acquisitions in Vietnam should meet the requirements of international economic integration. 3.2. Some solutions to improve the law on acquisitions in Vietnam Through analyzing the factors affecting acquisitions and requirements of completing the acquisition law, the thesis has proposed the following solutions: 3.2.1. Group of general solutions 3.2.1.1. Perfecting the laws on state administration for acquisition activity: the division of responsibilities and coordination in the management of these acquisitions of authorized agencies. Acquisition market can only operate effectively when the legal framework is built synchronously with the supervision, regulation, and coordination of authorized agencies on state management to acquisition activity. 3.2.1.2. The State shall create favorable legal conditions for the operation of financial institutions, consultancy, media agencies, and professional counseling organizations acting as consultants, intermediaries and help parties of acquisition activity to implement acquisition transactions successfully. In order to achieve success for acquisition deals, the professional consultancy organizations on acquisitions with highly qualified expertise on economics, legal, and finance should be founded and encouraged to develop. In the next stage, the competition administration authorities should establish departments of consultancy for businesses to engage in economic concentration due to the following reasons: (i) To assist the parties to identify if they are in cases of having to implement the procedures of notifications of economic concentration or in cases of being prohibited; analyze the impacts of restricting competition which may occur on the market if that economic concentration is really implemented. (ii) To assist the parties to limit the application of sanctions for failure to perform the obligation of notifying (for the cases of having to notify economic concentration) or implementing economic concentration in cases of being prohibited. 3.2.1.3. Building a legal framework for the mechanism of providing and controlling information on acquisition by developing a general national database system on acquisitions. Currently, there have been many state authorized agencies on managing acquisition activity in Vietnam, however, there has not been official and consistent data of business acquisition deals in reality. Some companies have collected data on acquisition activities but these data are only for reference, not a formal recognition by the State. Therefore, in parallel with the construction of national database system on business registration, the development of national database system on acquisition should be done in order to serve consultancy activities, enhance state management effectiveness and efficiency of enforcement of law on acquisitions. For instance, when the agency received the business registration changing profile of the business by implementing economic concentration, the business registration agency could look up the data on market share of that enterprise in the market. The law on business accounting and auditing should be improved to keep transparency and publicity of the business revenue on the relevant market. 3.2.2. Group of specific solutions 3.2.2.1. Completing the rules of competition law on adjusting acquisitions (considered as an act of economic concentration) is in order to improve the efficiency of controlling economic concentration. Complete the regulations of competition law on controlling of economic concentration. First, change the regulations on criteria of economic concentration from market share criteria to sales criteria combined with market share criteria Controlling economic concentration by market share criterion is not changed in time. The market share criterion used to determine the threshold of economic concentration notification will help competition authorities to have more accurate initial assessment on potential limitations of the case. However, it is really difficult for businesses to identify the combined market share to implement the procedures of economic concentration notification. Because the first step to identify the market share is to identify the relevant market. Defining the relevant market requires time and cost as well as profession which even the competition management agencies also have difficulties in doing it. Second, the construction of criteria of controlling economic concentration should consider the relations and suitability with acquisition activities in a number of economic security related areas such as banks, finance, and insurance to avoid legal conflicts and ensure to maintain economic security, competition order in the market. A solution needs to keep in mind when building the controlling criteria of economic concentration under the legal perspective. Specifically, in the future, the legal criteria of controlling economic concentration in general and controlling acquisitions in particular should “control” the disguise of acquisitions in practice, such as acquisitions by cross possession, concurrent holding of posts etc. Third, give more competent authority to competition agency in assessing the competitive impact of the economic concentration cases. The overall objective of competition law is to protect competition, competition law with a view to preventing the change of market structure leading to limited competition in the market. 3.2.2.2. Amending the concept of business, the concept of acquisition specified in Competition Law (2004) Modifying the concept of business at Clause 1 Article 2 of Competition Law (2004)
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