Do foreign investors establishing businesses providing e-commerce services have to carry out procedures for granting a Business License?

Is e-commerce activities a conditional business industry according to the law? What is a foreign investor?

Pursuant to Section 59, Appendix IV issued with the Law on Investment 2020 stipulates the List of conditional business and investment industries as follows:

List of conditional business investment industries and occupations

Thus, e-commerce activities are a conditional business line according to the provisions of law.

According to the provisions of Clause 19, Article 3 of the Law on Investment 2020, a foreign investor is an individual with foreign nationality or an organization established under foreign law conducting business investment activities in Vietnam.

Do foreign investors establishing businesses providing e-commerce services have to carry out procedures for granting a Business License?

Pursuant to Clause 1, Article 5 of Decree 09/2018/ND-CP regulating the issuance of Business Licenses and Licenses to establish retail establishments as follows:

Issue Business license, Retail establishment license

1. Business licenses are issued to economic organizations with foreign investment capital to carry out the following activities:

a) Exercise the right to retail distribution of goods, excluding the goods specified in Point c, Clause 4, Article 9 of this Decree;

b) Exercise the right to import and wholesale distribution of goods specified in Point b, Clause 4, Article 9 of the Decree this;

c) Exercise the right to retail distribution of goods specified in Point c, Clause 4, Article 9 of this Decree;

d) Providing logistics services; except for logistics service sub-sectors in which Vietnam has committed to open the market in international treaties to which Vietnam is a member;

dd) Leasing of goods, excluding financial leasing; except for leasing construction equipment with operators;

e) Providing trade promotion services, excluding advertising services;

g) Providing commercial intermediary services;

h) Providing e-commerce services;

i) Providing services of organizing bidding for goods and services service.

Thus, in comparison with the above regulations, for foreign investors establishing businesses or contributing capital, buying shares, or capital contributions to enterprises, foreign-invested enterprises providing e-commerce services must carry out procedures for granting a Business License to be active.

In particular, according to the provisions of Clause 14, Article 3 of Decree 09/2018/ND-CP, e-commerce services are commercial activities whereby the e-commerce service provider sets up an e-commerce website to provide an environment for other traders, organizations and individuals to conduct trade promotion activities, sell goods or provide services.

Which agency is responsible for promulgating forms for implementing investment procedures in Vietnam?

Pursuant to Clause 2, Article 69 of the Law on Investment 2020, the Ministry of Planning and Investment helps the Government unify state management of investment in Vietnam and investment from Vietnam to foreign countries and has the following tasks and powers here:

Responsibilities for state management of investment

….

2. The Ministry of Planning and Investment helps the Government unify state management of investment in Vietnam and investment from Vietnam to foreign countries and has the following tasks and powers:

a) Submit to the Government and Prime Minister for approval strategies, plans, and policies on investment in Vietnam and investment from Vietnam to foreign countries;

b) Promulgate or submit to competent agencies for promulgation of normative documents laws on investment in Vietnam and investment from Vietnam to foreign countries;

c) Issue forms for implementing investment procedures in Vietnam and investment from Vietnam to foreign countries;

d) Guide, disseminate, organize implementation, monitor, inspect and evaluate the implementation of legal documents on investment;

dd) Develop and submit to competent authorities to promulgate a mechanism to resolve investors’ problems and prevent disputes between the State and investors;

e) Synthesize, evaluate, and report on the investment situation in Vietnam and investment from Vietnam to foreign countries;

…

Thus, from the above regulations it can be seen that the Ministry of Planning and Investment has the tasks and powers to issue forms for implementing investment procedures in Vietnam and investment from Vietnam to foreign countries.