QUESTION FROM A READER:
Decree No. 245/2025/ND-CP amends and supplements a number of articles of Decree No. 155/2020/ND-CP dated 31 December 2020 of the Government detailing the implementation of a number of provisions of the Law on Securities, in which it provides for the removal of the requirement to obtain the opinion of the Vietnam Competition Commission (“VCC”) on economic concentration when issuing shares on the stock exchange to swap shares or capital contributions with other companies, or in cases of merger, consolidation, or tender offer.
Accordingly, does this mean that public companies, when conducting economic concentration, are no longer required to notify the VCC? We would very much appreciate the lawyer’s response.
ATA'S RESPONSE:
Thank you for trusting and sending your question to ATA Legal Services (“ATA”). With respect to your query, we would like to clarify as follows:
On 11 September 2025, the Government promulgated Decree No. 245/2025/ND-CP (“Decree 245”), amending and supplementing a number of articles of Decree No. 155/2020/ND-CP dated 31 December 2020 of the Government, detailing the implementation of a number of provisions of the Law on Securities. The key contents of Decree 245 were analyzed and assessed by ATA in the Legal Newsletter dated 19 September 2025, published on our website and fanpage. We invite you to review at:
1. ATA Website: DECREE NO. 245/2025/ND-CP: TIGHTENING CONDITIONS FOR SECURITIES OFFERINGS AND ENHANCING CONTROL OVER THE USE OF PROCEEDS FROM BOND ISSUANCE
2. ATA Fanpage: DECREE NO. 245/2025/ND-CP: TIGHTENING CONDITIONS FOR SECURITIES OFFERINGS AND ENHANCING CONTROL OVER THE USE OF PROCEEDS FROM BOND ISSUANCE
Among the notable changes introduced under Decree 245, public companies are particularly attentive to the provision that “completely abolishes” the requirement of obtaining the opinion of the Vietnam Competition Commission (“VCC”) regarding economic concentration (whether unconditional or conditional) in cases of issuing shares for share or capital contribution swaps of other enterprises, or share swaps under merger/consolidation agreements, or in cases of tender offers. At the same time, the dossier requirements for these cases have also been revised, and the submission of documents evidencing the VCC’s opinion on economic concentration is no longer required.
The question, therefore, arises: does Decree 245 allow public companies or shareholders of public companies, when conducting economic concentration transactions (issuing additional shares to swap shares/capital contributions, merger/consolidation, or share acquisitions), to be exempt from the obligation to notify economic concentration (“EC Notification”) under the competition law?
Although we already highlighted this matter in our Legal Newsletter dated 19 September 2025 updating on Decree 245, we continue to receive queries and concerns from many clients. Hence, we would like to reiterate: The removal under Decree 245 of the requirement for obtaining the competition authority’s opinion applies only with respect to the procedures for registration of securities issuance or tender offers with the State Securities Commission (“SSC”). It does not imply or permit public companies or their shareholders to disregard the obligation to submit EC Notification to the VCC.
Decree 245 merely “aligns” procedures with their proper nature and ensures the regulatory objectives in each respective sector. Specifically, in the securities sector, the SSC does not necessarily need to impose obligations on enterprises relating to matters under the jurisdiction of another authority – in this case, the VCC. Therefore, enterprises themselves must remain aware, assess, and comply with their obligations under each relevant regulatory regime.
Accordingly, enterprises, organizations, and individuals must act prudently and are strongly advised to seek consultation from experienced lawyers to properly assess and determine their obligations before officially proceeding with securities issuance or tender offers. This will help avoid non-compliance with EC Notification requirements and the risk of severe penalties under competition law.
For your further reference, we share below some articles previously published by ATA Legal Services providing guidance and analysis on EC Notification obligations and the potential legal consequences of non-compliance:
1. CONSEQUENCES WHEN VIOLATING THE DUTY OF NOTIFICATION OF ECONOMIC CONCENTRATION?
3. WHEN DOES THE OBLIGATION FOR NOTIFYING AN ECONOMIC CONCENTRATION INCUR?
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