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Key points for foreign investors to know when establishing an FDI enterprise in Viet Nam

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In 2026, the legal framework governing foreign investment in Vietnam is undergoing a coordinated change with the issuance of new legal documents, including: Law on Investment No. 143/2025/QH15 and Decree 96/2026/ND-CP (effective from 1 March 2026); Circular 38/2026/TT-NHNN on foreign exchange management in FDI activities (effective from 18 August 2026, replacing Circular 06/2019/TT-NHNN); and Decree 342/2026/ND-CP on goods trading activities of foreign investors (effective from 18 October 2026, replacing Decree 09/2018/ND-CP).

Based on the above new regulations, before carrying out the procedures to register the establishment of an enterprise, a foreign investor must first assess the following key legal issues:

 

Determining the investment structure

Before finalising the dossier to establish an investment project in Vietnam, the investor needs to clearly determine its investing status: whether it invests as an individual or through an overseas organisation; and whether it invests independently or in a joint venture with a Vietnamese partner. This determination is important because the ownership structure directly affects the documents to be prepared, control over the enterprise, and later divestment options.

 

First, on the ownership ratio. Where a foreign investor holds more than 50% of the charter capital, or falls within one of the three cases prescribed in Clause 1, Article 20 of Law on Investment No. 143/2025/QH15, the project’s economic organisation in Vietnam must satisfy the conditions and carry out the investment procedures applicable to foreign investors.

 

Second, on the investor’s nationality. Nationality is the basis for determining which international treaty applies. Under Clause 8, Article 17 of Decree No. 96/2026/ND-CP, where an international treaty provides market access conditions more favourable than domestic law, the international treaty applies. In addition, nationality also affects the form of documents in the dossier. If the investor is a national of a member state of the 1961 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention), documents need only be apostilled instead of undergoing consular legalisation as before, so the procedure is considerably simplified.

 

Conditions on investment business lines

In general, foreign investors have market access on the same basis as domestic investors, except for business lines on the list of market access restrictions published by the Government. This list has two groups: business lines not yet open to market access (Section A) and business lines with conditional market access (Section B). Where a project falls under several different business lines on the list, the investor must satisfy all the conditions of those business lines simultaneously.

 

Therefore, from the project appraisal stage, the investor needs to describe the intended business activities in specific terms in order to determine accurately the code under the Vietnam Standard Industrial Classification (VSIC) and the code under the Central Product Classification (CPC), and to ensure that the two coding systems correspond to each other. On that basis, the investor reviews the conditions applicable to each business line code.

 

In addition, the investment business line (i.e., the project objective) must be consistent with the project location. For example, if an investor registers a food and beverage business but selects a location in a building designated for office leasing, then when the dossier for the Investment Registration Certificate is submitted, the competent authority may request explanations or supplementary documents. The investor would spend a great deal of time resolving the issue and may even have to change the location to suit the project objective.

 

Sub-licences

Being granted an Enterprise Registration Certificate does not mean that the investor may immediately conduct all the registered business lines. From the stage of registering business lines, the investor needs to review the conditions on sector-specific licences (commonly called “sub-licences”) in order to operate lawfully. Examples include the business licence for goods trading activities; the retail outlet establishment licence when trading at a specific location; and the food safety certificate for food and beverage services. If these licences are overlooked and business is nevertheless conducted, the investor may face heavy administrative penalties, as well as reputational and operational risks when inspected by the competent authorities.

 

Note that from 18 October 2026, Decree 342/2026/ND-CP introduces several important changes for foreign-invested enterprises trading in goods: (i) licensing authority lies with the Provincial People’s Committee; (ii) a financial plan is no longer required in the dossier for the Business Licence, but a 5-year business plan explanation is still required; and (iii) market access conditions must be maintained throughout the operation. Dossiers submitted before this date continue to be processed under Decree 09/2018/ND-CP.

 

Accordingly, investors should draw up a complete list of required licences before leasing premises or recruiting staff. Discovering a missing licence after rent and initial investment capital have been paid usually causes far greater loss than reviewing at the outset.

 

Capital structure

First, the investor must identify and distinguish “charter capital” and “investment capital” as two entirely different concepts. Charter capital does not necessarily equal the project’s investment capital; it is the capital that members or shareholders commit to contribute to the company established in Vietnam. The project’s investment capital, by contrast, is the total funding needed to implement the project in Vietnam. Under Clause 5, Article 72 of Decree 96/2026/ND-CP, the economic organisation established by the investor in Vietnam may use its charter capital and mobilise other sources, such as loans from the overseas parent company, to implement the project in accordance with the schedule stated in the Investment Registration Certificate. Therefore, to increase charter capital, members or shareholders must contribute additional capital and carry out the amendment procedures, whereas a loan is only a separate mobilised source; it does not increase charter capital and must comply with the regulations on foreign borrowing and repayment. Saying “increase charter capital by borrowing” is legally inaccurate.

 

As to the amount of capital, for ordinary business lines Vietnamese law does not set a general minimum (except for lines with statutory capital, such as banking and insurance), so a small amount of capital does not in itself amount to a violation. However, the dossier for the Investment Registration Certificate must state the investment capital and the capital mobilisation plan, and must include at least one document proving financial capacity (such as financial statements for the two most recent years, a financial support commitment from the parent company or a financial institution, a guarantee, or other documents), and the capital amount must be consistent with the business plan. If the dossier describes plans to open stores, lease premises, and recruit staff while the capital is very modest, the competent authority may request an explanation of the source of funds. Therefore, before fixing the charter capital, the investor should seek the advice of a specialised lawyer to prepare a realistic start-up budget covering future costs such as rent, deposits, operating expenses for the first 6 to 12 months, and licensing costs. Where capital is limited, the investor should narrow the scale of the initial phase, prepare a financial support commitment, or increase capital in stages, instead of adjusting figures to make the dossier look better.

 

Once the capital is determined, the cash flow must go through the correct channel and be supported by documents. Under Circular 38/2026/TT-NHNN, capital contributed in cash must be transferred into the investment capital account; the investor may open an account in Vietnamese dong or in foreign currency at the same bank, and is no longer required to hold a foreign-currency account; and funds for capital contribution may be transferred before carrying out the procedures to register an increase in capital or a change in the contributed capital. If contributing in several currencies, the investor selects one currency for uniform conversion; the total value after conversion must not exceed the capital stated in the documents, at the exchange rate of the bank where the account is opened at the time the funds are credited. Each remittance order must clearly state the amount and purpose; the investor must make truthful declarations and is responsible for the documents, and must supplement the bank with the newly issued or amended certificate after it is granted. In addition, the capital must be contributed by the very person who committed to contribute; no one may be asked to hold the name of the contributor as a nominee, and the usual time limit for capital contribution is 90 days from the date the Enterprise Registration Certificate is issued.

 

Choosing the appropriate procedure

A foreign investor may establish the company first and apply for the investment registration certificate afterwards, or do the reverse. Each route suits a different situation.

Establish the company first Obtain the investment registration certificate first
Benefits

Obtain a legal entity and an investment capital account early, so that premises and staff can be prepared.

The business line and market access conditions are confirmed in advance, limiting the risk of capital being tied up.

Points to note The enterprise registration dossier must include a commitment to satisfy market access conditions; the investment registration procedure must be completed within 12 months from the date of establishment; the project and any additional business lines may be carried out only after the certificate is issued; the investment capital account opened beforehand may be used for four purposes only: receiving charter capital, receiving interest on the balance, preparatory investment expenses, and refunding capital if the certificate is not granted.

No legal entity exists in the initial stage.

Suitable when

You are certain about the business line and location.

The business line still needs to be confirmed.

 

For projects not subject to investment policy approval, the investment registration authority issues the certificate within 10 working days from the date of receipt of a valid dossier, if the project satisfies the conditions prescribed by law.

 

Preparing the documents

The dossier for investment procedures is made in Vietnamese; documents in a foreign language must be accompanied by a Vietnamese translation, and the investor is liable if the translation differs from the original. For members, owners or shareholders that are foreign organisations, copies of the organisation’s legal documents must be consularly legalised. This step takes place abroad, may take considerable time, and can easily delay the whole project if started late. Specific requirements may differ by country, so they should be checked from the outset.

 

Establishing an FDI enterprise is not difficult if it is prepared in the right order. The risk usually lies not in the procedure itself but in matters overlooked before the dossier is submitted. Consulting a lawyer from the moment the idea takes shape helps you foresee the requirements of state authorities and banks, decide early, prepare adequate resources, and avoid unnecessary costs.

 

Are you considering investing in Vietnam?

Contact the BKC LAW team of lawyers for an assessment of the investment structure, capital flow and licensing roadmap suited to your project.

Tel: 0909 073 692

Email: info@bkclaw.vn

District 1 Office: 9th Floor, Diamond Plaza Building, 34 Le Duan, Sai Gon Ward, Ho Chi Minh City

Binh Tan Office: 41 Ten Lua, An Lac Ward, Ho Chi Minh City

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