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M&A activities still buoyant
By Minh Tam
Saturday,  Feb 20, 2021,12:08 (GMT+7)

M&A activities still buoyant

By Minh Tam

If Grab and Gojek in Vietnam are to merge as reported by the international media, the two parties will have to report the merger to the authorities concerned as they are clinching large shares of the market - PHOTOS: THANH HOA

The new regulation which requires businesses involved in merger and acquisition (M&A) activities to report on economic concentration to competent agencies as per Decree 35/2020 guiding the implementation of the Competition Law 2018 is seen as a restriction to the buoyant M&A market in Vietnam. Nevertheless, the market remains much more attractive.

At a recent seminar, Tran Thanh Tung, partner lawyer of Global Vietnam Lawyers, said with a range of regulations in the Investment Law, the Enterprise Law, the Securities Law and the Competition Law, businesses seeking M&A deals seem to be obliged to join a hurdle race, as they have to comply with many administrative procedures to reach the finish line. Each law has a different angle on M&A. Of note, while the 2020 Enterprise Law, to be effective from 2021, has modifications towards betterment and openness for investors and regulations to protect them, the Competition Law restricts M&A activities with the requirement for reporting the threshold of economic concentration with criteria for total assets and total revenue from sale or purchase in Vietnam, the value of transactions and the combined market share of businesses in the relevant market, as stated in Decree 35/2020 effective since May 15, 2020. According to Mr. Tung, this threshold of economic concentration is low, and in reality, there may be abuse of the reporting, which makes M&A transactions more complex and costly.

Dr. Nguyen Quoc Vinh, partner lawyer of Tilleke & Gibbins, argued that many businesses will have to report on economic concentration, as the threshold is quite low. The risk for relevant parties who “forget reporting” is they will be penalized by State agencies.

Nguyen Thi Vinh Ha, deputy general director and head of the corporate advisory division of Grant Thornton Vietnam, told the Saigon Times that she has seen a number of cases where businesses are impacted by the regulation for economic concentration. Though their M&A deals are small, those businesses operate in the niche market (providing a certain product) within a larger market. In view of the niche market for that product, they hold a relatively large share. However, viewed from the larger market, they are completely out of the scope of economic concentration. Nevertheless, with the current regulation, they still have to submit a report on economic concentration, which has significantly obstructed the progress and the likelihood of success of the M&A deal.

Ms. Ha said the regulation has also caused difficulties for other cases of M&A activities. For instance, parties who have reached the threshold of economic concentration for the shares auctioned by divested State-owned enterprises must do the reporting. What matters is the compliance will cost businesses a lot but the success in the auction is still uncertain. Further, the time for assessment of economic concentration by the National Committee for Competition may be longer than the maximum time when the businesses joining the auction must make a public offer.

At the present time, Ms. Ha stressed, the fact that the National Committee for Competition is not yet established, concrete guidelines are not yet available, competent agencies do not have experience in assessment and interpretations about the concept of  “the market for relevant products” are not yet clear is causing many difficulties for M&A activities. Businesses are at a loss to determine whether their deals are subject to reporting and they may have to wait for a long time for feedback from competent agencies. “We observed that under the new regulation, the combined market share is not the only factor to determine whether an M&A deal is prohibited or not, as it needs assessment of many other factors. All has created a heavier obligation for demonstration for parties to M&A deals,” Ms. Ha said.

Boom or standstill?

At the seminar, Dinh Anh Tuyet, director of the law firm IDVN, said businesses may feel uneasy to do reporting on economic concentration, but this is a necessary and not so fearful job. Besides criteria for assets, revenue from sale and purchase, and market share expressed by numbers, there are also other analyses. With a complicated M&A deal which takes a lot of time for completion, it’s regretful if it is subject to the regulation for abolishment due to failure to complete the procedure for reporting on economic concentration. In addition, the fine for violation by the business concerned amounts to 5% of its revenue in the relevant market in the year before the year of the violation.

A concrete example is Grab’s acquisition of Uber in Singapore. The two parties determined that they were not at the threshold to report on economic concentration and did not do the reporting. Afterwards, competent authorities in Singapore determined that they were at the threshold and fined them several million Singapore dollars.

Nevertheless, Ms. Tuyet commented that regardless of the new regulation, M&A activities will continue, as investors will consider the market prospect and M&A parties have strong legal teams to ensure compliance.

Justin Gizs, member of the legal council under the European Chamber of Commerce in Vietnam (Eurocham), said the legal factor must be attended to because it is the decisive factor to facilitate M&A deals, especially those with foreign involvement. EU investors highly appreciate the Vietnamese market and want to enjoy appropriate, favorable policies under the Vietnamese legal framework to boost M&A activities.

Ms. Ha from Grant Thornton Vietnam noted that apart from the legal factors, a more important factor is the market. Vietnam now has a significant position and advantages when the country has duly coped with Covid-19, maintaining safety for her economic activities. Further, Vietnam is emerging as a convincing alternative destination for foreign enterprises seeking to move their operations out of China. Therefore, she thought that M&A activities will continue to be buoyant in 2021.

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