INVESTMENT LEGAL SUPPORT FORUM
Open up golden opportunities for investors in Ho Chi Minh City under the context of the Resolution No. 98/2023/QH15
INVESTMENT LEGAL SUPPORT FORUM
Open up golden opportunities for investors in Ho Chi Minh City under the context of the Resolution No. 98/2023/QH15
On 12th December, 2023, in Ho Chi Minh City, the Investment Legal Support Forum 2023, organized by Vietnam International Arbitration Centre (VIAC) in collaboration with the Ho Chi Minh City Trade and Investment Promotion Centre (ITPC), was successfully held under the direction of the People's Committee of Ho Chi Minh. The Forum had more than 300 participants from government agencies, businesses, and many news agency and press. The forum was also attended by HE. Vo Van Hoan - Vice Chairman of the People's Committee of Ho Chi Minh City.
HE. Vo Van Hoan –Vice Chairman of the HCMC People's Committee delivering Opening speech at the Forum
In the Opening speech, HE. Vo Van Hoan - Vice Chairman of the HCMC People's Committee embraced the ideas of VIAC and ITPC being materialized into actions to support legal matters and enhance investment attraction in the city. Currently, Ho Chi Minh City is focusing on implementing many policies following the Central Government's direction on developing the Southeast region and Ho Chi Minh City, especially Resolution No. 98 effective from August 1, 2023. Resolution No. 98 has been designed with many specific policies for the City, closely related to the Investment Management, Financial Budget Management, Land Management groups to attract strategic investors. However, in the recent process, from the perspective of the City Government centering on solving infrastructure development, economic and social development as well as supporting Investors, HE. Vo Van Hoan realized that the investment environment in the city still needs to be improved so that investors can properly conduct investment and activities. Therefore, a direct dialogue platform, not only between investors but also between investors and the Government, needs to be carried out to promote transparency and openness about information mechanisms, processing mechanisms, as well as listening and receiving the difficulties and obstacles for timely resolution.
Dr. Vu Tien Loc - Member of National Assembly of Vietnam, President and Chairman of Vietnam International Arbitration Centre (VIAC)
Continuing the opening speech, Dr. Vu Tien Loc - Member of National Assembly of Vietnam, President and Chairman of Vietnam International Arbitration Centre (VIAC) made some comments on the current investment environment and the role of foreign investment capital in our country's integration process. In Ho Chi Minh City, attracting investment and improving the investment environment are considered the focus of the city government. The Resolution No. 98 approval on special mechanisms is seen as a necessary legal tool for Ho Chi Minh City to promote its dynamism towards the ultimate goal of promoting the city's sustainable economic position. Dr. Vu Tien Loc also evaluated that, as the head of an organization specializing in legal coordination and dispute resolution, the application of legal regulations is one of the key factors contributing to the growth of investment activities. This is also the basis for Vietnam International Arbitration Centre (VIAC) and Investment & Trade Promotion Centre of Ho Chi Minh City (ITPC) to establish an annual Investment Legal Support Forum, with the expectation of providing a close discussion platform between the investor community, especially foreign investors, and the government, as well as receiving professional opinions and legal recommendations from experts, contributing to providing solutions for local authorities to support businesses. The synergy of agencies, associations, and legal support units is an important factor in making the Forum the "key" to investors' difficulties. With the context of newky-apprived Resolution No. 98, the Investment Legal Support Forum is expected to be a starting point for building an effective tool for Ho Chi Minh City in creating a safe and efficient legal investment environment.
Ms. Cao Thi Phi Van - Deputy Director of Investment & Trade Promotion Centre of Ho Chi Minh City
With many years of experience in the Investment and trade promotion in Ho Chi Minh City, Ms. Cao Thi Phi Van - Deputy Director of Investment & Trade Promotion Centre of Ho Chi Minh City, representing two organizing units, emphasized the importance of having a forum where investors who are interested and operating in Ho Chi Minh City can directly gather, and receive support. At the Investment Legal Support Forum 2023, Ms. Van shared about the Forum model, which inherits the strengths of previous programs and supplements many new initiatives to promote the strengths and create synergies from the Forum's participants in improving the investment environment in the legal field in the City. At the same time, the Forum marks a milestone for the cooperation between ITPC and VIAC, opening up a new promising phase from a dynamic, creative, and enthusiastic team. Regarding the model, the Investment Legal Support Forum (ILS Forum) focuses on two main contents: (i) Gathering opinions of domestic and foreign investor groups in Ho Chi Minh City and (ii) Providing short-term or long-term legal responses and solution suggestions of experts from competent agencies, legal consulting organizations, as well as legal experts.
REPORTS
Resolution No. 98 and new legal issues impacting on investment activities
As an opening for the annual Investment Legal Support Forum, the Investment Legal Support Forum 2023 with the topic "Open up golden opportunities for investors in Ho Chi Minh City under the context of the Resolution No. 98/2023/QH15" will focus on discussing new points, changes that arise when applying this Resolution. In particular, two major contents will be discussed at the Forum including: on exploiting new points, changes set out in the Resolution related to two major issues: (i) Investment in the form of Public - Private Partnership (PPP); (ii) Attracting strategic investors for "green" projects. The forum is implemented through the form of listening to professional reports and discussing between two groups: representatives of investors and legal experts.
At the forum, Dr. Tran Du Lich - Head of the Advisory Council for Resolution No. 98/2023/QH15, Vice President of Vietnam International Arbitration Centre (VIAC) gave a general assessment of the implementation of Resolution No. 98 and the impacts that this Resolution brings. According to Mr. Lich, this Resolution is an effective legal tool for eliminating two bottlenecks that have hindered the city’s development for a long time: institutions and infrastructure This is the first time the city has adopted a resolution with many breakthrough contents, paving the way for numerous reform plans. Mr. Lich evaluated that many specific policies have been effective after 4 months of Ho Chi Minh City implementing the Resolution. However, for the Resolution to truly come to life and fully play its expected role, models like the Investment Legal Support Forum are extremely necessary. They play an effective bridging role between the investor community - consulting units, legal support, and competent state agencies.
Following the forum, Mr. Pham Trung Kien - Deputy Director of Ho Chi Minh City Department of Planning & Investment presented a professional report with the theme "Investment in the form of Public-Private Partnership (PPP) under the context of implementing the Resolution No. 98 - Opportunities and challenges to Ho Chi Minh City and Investors”. Currently, the state has issued the PPP Law and some other legal documents regulating this form of investment activity. In Ho Chi Minh City, the application of Resolution No. 98 serves as an important legal basis, creating conditions for the city to be proactive in selecting, calling, and deploying feasible PPP projects. According to Mr. Kien' s assessment, the implementation of PPP projects in reality still faces many difficulties and obstacle; although the legal regulations in this field are constantly being supplemented, they still cannot keep up with reality. In addition, both the state side and the private sector are still confused in choosing, determining the type of contract (BOT, BTO, BLT, BTL, BOO, O&M, BT) that is suitable for each field and the nature of the project. Thus, it can be recognized that, the lack of specific guidelines and explicit stipulations in the law and legal documents makes both state agencies and investors extremely confused when participating in PPP contracts.
Next, Mr. Do Van Su - Deputy Director of the Foreign Investment Department, Ministry of Planning and Investment, presented to the Forum a professional report related to the issue of attracting strategic investors to green projects. According to Mr. Su's assessment, Vietnam in general and Ho Chi Minh City in particular are entering an opportunity to receive investment shifts from many countries in the world. However, to benefit from this opportunity, we need to have a clear strategy and plan, as well as be ready to meet the requirements of investors, especially those related to the green economy and circular economy. Accordingly, to aim for net zero emissions by 2050 - an essential development goal of the world, we need to quickly adapt to many concepts, industries that are still quite new. Currently, the legal framework related to issues of the green economy and circular economy, which involves a lot of energy and emissions, has not been specifically regulated. In addition, many state policies are not really attractive to investors. Therefore, we need to quickly learn, draft, and issue laws and decrees related to helping investors have a basis and confidence to confidently implement projects.
Dr. Tran Du Lich – Head of the Advisory Council for Resolution No.98/2023/QH15, Vice President of Vietnam International Arbitration Centre (VIAC)
Mr. Pham Trung Kien – Deputy Director of Ho Chi Minh City Department of Planning and Investment
Mr. Do Van Su – Deputy Director General of Foreign Investment Agency, Ministry of Planning & Investment
DISCUSSION SESSION
Section 01: Investing in the form of Public - Private Partnership (PPP)
Continuing the Forum, discussion sessions were conducted with the aim of gathering opinions and contributions for Resolution No. 98. The discussion section was organized as a debate between two groups: the Working Group and the Specialist Group. The Working Group comprised representatives from business associations and investors, while the Specialist Sub-group consisted of legal experts who have a reputation and experience in researching the topic under discussion
Kicking off the Discussion Session, Mr. Vu Tu Thanh - Deputy Regional Managing Director & Vietnam Chief Representative of US - ASEAN Business Council as the Leader of Sub-group 1 of Working Group, and Mr. Ngo Thanh Tung - Partner of Vietnam International Law Firm – VILAF as the Leader of Sub-group 1 of Specialist Group altogether moderated the Section 01 - “Investing in Public - Private Partrnership (PPP) projects". This discussion session also had the participation of representatives of associations, foreign investors and reputable experts, with many years of experience in the legal field of PPP, including:
Dr. Le Dinh Vinh - Director of Vietthink Law Firm, Arbitrator of VIAC
Mr. Nguyen Trung Nam - Founding Partner of EPLegal, Arbitrator of VIAC
Mr. Seck Yee Chung - Vice President of Singapore Chamber of Commmerce Vietnam (SCCV), Managing Partner of Baker & McKenzie.
Mr. Kasawa Masayuki - President Representative of Japan International Cooperation Agency (JICA) - Branch in Ho Chi Minh City
Ms. Meir Tlebalde - CEO and Co-founder of Kirin Vietnam Consulting, Expert in PPP sector
Representative of Leader of Subgroup 1 of Working Group
Mr. Vu Tu Thanh - Deputy Regional Managing Director & Vietnam Chief Representative of US - ASEAN Business Council, Arbitrator of VIAC
Representative of Leader of Subgroup 1 of Specialist Group
Mr. Ngo Thanh Tung – Partner of Vietnam International Law Firm (VILAF), Arbitrator of VIAC
PPP has been one of the most important forms of contract and has consistently dominated many major projects in Ho Chi Minh City and in the entire country in general. It is considered an area that requires research on investment to ensure a balance of interests between the government and the investors. However, during the Discussion session, the Experts stated that although Resolution No. 98 has made strides in the legal framework of PPP (in some articles), it has also made the investors confused due to the ambiguity and the lack of detailed guidance. For example, Resolution No. 98 allows the application of Public - Private partnership (PPP) contracts in new fields such as sports and culture. Nevertheless, according to Clause 1, Articles 4, Law on Investment, the PPP is currently only applicable to certain areas that do not include the two fields mentioned above. Therefore, applying PPP to these two areas may pose certain obstacles for investors during construction and operation. Not to mention, there are currently many problems in capital recovery in this field, which makes investors hesitate to make decisions.
In addition, the application of BOT and BT contracts set in Resolution No. 98 has also sparked some controversy, involving significant differences from the current legal framework, payment methods, and payment capabilities... Investors and legal experts assess that the implementation of Resolution No. 98 has opened up many new opportunities, helping the City and investors solve existing problems at construction sites as well as expanding the scope of PPP implementation. However, to be truly effective and bring this regulation into life, into projects, more instructions on processes, payment activities, and even on the risk management need to be issued. In addition to the above issues, the factor of risk and profit sharing between the City and Investors was also raised for comments at the Discussion session. It can be said that revenue-sharing or profit-sharing conditions are extremely necessary when operating a PPP project.
According to experts, the success of a project and investors' trust in local authorities will fairly depend on this factor. Therefore, the City should supplement or provide clearer instructions to investors on the risk and profit - sharing mechanism when applying Resolution No. 98; learn from the experiences of other countries to establish an effective financial risk management system for PPP projects. Finally, the issue of legal risk assessment, proposing dispute resolution and prevention mechanisms were heavily discussed with many opinions from the experts. Accordingly, investors believe that PPP disputes arise from many reasons, but most of them are due to overlapping legal frameworks, multi-layered and complicated procedures.
Section 02: Attracting strategic investors for "green" project
Following Session 1, Discussion Session 2 was held with the topic "Attracting strategic investors for "green" projects” with the coordination of the Leader of Sub-group 2 of Working Group, Mr. Giandomenico Zappia - EuroCham's Board Member, Vice Chairman of Green Growth Sector Committee, Chairman of Sustainable Finance Sector Committee and the Leader of Sub-group 2 of Specialist Group - Mr. Nguyen Duc Minh – Foreign Attorney at Kim & Chang Law Firm. The discussion session also had contributions from representatives of business associations, foreign investors and experts with extensive research in the field of energy and promoting green economy, including:
Ms. Do Thi Thu Ha - Deputy CEO, Head of Sustainable Development Consulting, National Leader of Infrastructure, Government & Healthcare Sector of KPMG Vietnam
Mr. Nguyen Van Hai – Partner of YKVN
Mr. Frederick R. Burke - Vice-Chairman of the Executive Committee of Hong Kong Business Association Vietnam, Senior Advisor of Baker & McKenzie.
Mr. Kazuhide Ohya - Partner of Nishimura & Asahi Vietnam
Dr. Đinh Minh Đạo - Chairman of CA Water Company Limited
Ms. Lam Nguyen Hoang Thao - Representative of AmCham Vietnam, Foreign Associate of Russin & Vecchi
Representative of Leader of Subgroup 2 of Working Group
Mr. Giandomenico Zappia - EuroCham's Board Member, Vice Chairman of Green Growth Sector Committee, Chairman of Sustainable Finance Sector Committee
Representative of Leader of Subgroup 2 of Specialist Group
Mr. Nguyen Duc Minh – Foreign Attorney at Kim & Chang Law Firm
In this session, the Experts not only explored and make recommendations for regulations on promoting investment in clean energy projects but also provided a lot of valuable information that contributes to the effective green transition for Ho Chi Minh City. Specifically, investors made assessments on investment conditions and procedures for clean energy projects stated in Resolution No. 98. To the Investors, they supposed that Resolution No. 98 demonstrated the City's determination in raising high-quality capital sources as well as encouraging investment in clean energy projects. However, there are many matters in Resolution No. 98 that make the Investors confused, even giving them certain insecurities about potential obstacles that may arise in the future, especially when it is not possible to meet the criteria required by the Resolution.
The financial issues related to the development of the clean energy industry was also put up for discussion at the Forum. Regarding this issue, the Experts all agreed that Resolution No. 98 has many bright spots when regulating many issues related to financial sources for energy projects, which can be referred to Article 5, Article 7, Article 10 of this Resolution. However, from another perspective, the Investors assess that these regulations may not be enough; building a separate green credit funds to develop energy projects should be paid more attention and implementation to achieve sustainability and great expansion of this field in Ho Chi Minh City in the future.
After discussions on Resolution No. 98 as well as comparison with the current legal framework, the Experts also listed a number of legal risks that strategic investors may face when investing in energy projects. Accordingly, in order for Resolution No. 98 to become more feasible and practical, Ho Chi Minh City needs to prepare specific plans on implementation, finance, plans on land fund and compensation, land acquisition & use,… all need to be adjusted to be suitable for the City's environment. Along with that, Ho Chi Minh City needs to coordinate with competent state and central levels agencies to quickly amend legal documents, create a stronger legal corridor in operating clean energy projects.
After two discussion sessions, Dr. Vu Tien Loc – Member of National Assembly of Vietnam, Chairman and President and Chairman of Vietnam International Arbitration Centre (VIAC) summarized and gave a closing remark for Investment Legal Support Forum 2023. In his speech, Dr. Vu Tien Loc hoped that the results achieved in the ILSForum 2023 will effectively contribute to the execution of Resolution No. 98 as expected by the government and investors, making the ILSForum become an effective information platform and a place providing legal support for businesses community.