BẠCH NGỌC VÂN MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW *** MANAGING CENTER OF SPECIAL AND INTERNATIONAL PROGRAMS BẠCH NGỌC VÂN BACHELOR THESIS THRESHOLD FOR NOTIFICATION OF ECONOMIC CONCENTRATION UNDER THE LAW OF VIETNAM AND LESSONS FROM INTERNATIONAL EXPERIENCE BACHELOR THESIS Faculty: Commercial Law School year: 2016 - 2021 YEAR 2021 HO CHI MINH CITY YEAR 2021 MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW *** MANAGING CENTER OF SPECIAL AND INTERNATIONAL PROGRAMS BẠCH NGỌC VÂN THRESHOLD FOR NOTIFICATION OF ECONOMIC CONCENTRATION UNDER THE LAW OF VIETNAM AND LESSONS FROM INTERNATIONAL EXPERIENCE BACHELOR THESIS Faculty: Commercial Law School year: 2016 - 2021 Supervisor: LLM Nguyen Thi Phuong Ha Student: Bach Ngoc Van Student ID: 1651101030163 Class: 74-CLCQTL4 HO CHI MINH CITY YEAR 2021 DECLARATION I declare that this thesis is the result of my research, which is implemented under the supervision of LL.M Nguyen Thi Phuong Ha, ensures honesty, and complies with rules and regarding quotation, the note of references Therefore, I hereby take full responsibility for this declaration LIST OF ABBREVIATIONS Decree 35/2020/ND-CP Decree 35/2020/NĐ-CP detailing and guiding the implementation of a number of articles of the Competition law 2018 EC European Commission EU European Union GDP Gross Domestic Product ICC International Chamber of Commerce ICN International Competition Network ICLG International Comparative Legal Guides LOC 2004 Law on Competition 2004 LOC 2018 Law on Competition 2018 M&A Mergers and Acquisitions MOIT Ministry of Industry and Trade NCC National Competition Commission OECD UK Organization for Economic Cooperation and Development The United Kingdom US The US United States UNCTAD VCA United Nations Conference on Trade and Development Vietnam Competition Authority VCCA Vietnam Competition and Consumer Authority TABLE OF CONTENTS INTRODUCTION 1 Problem statement Literature review 3 Purpose of the study Objectives and Scope of the study 4.1 Objectives of the study 4.2 Scope of the study Research methodologies 6 Thesis structure CHAPTER THRESHOLD FOR NOTIFICATION OF ECONOMIC CONCENTRATION UNDER VIETNAMESE LAW 1.1 Theoretical issues relating to economic concentration 1.1.1 Definition and nature of economic concentration 1.1.2 Definition and meaning of notification threshold for economic concentration 1.2 Threshold for notification of economic concentration under the Law on 13 Competition 2018 1.2.1 Regulations on notification thresholds under the Law on Competition 15 2018 1.2.2 The limitations of notification threshold regulations under the Law on 15 Competition 2018 22 CONCLUSION OF CHAPTER 28 CHAPTER ECONOMIC CONCENTRATION NOTIFICATION THRESHOLD UNDER THE SELECTED LEGISLATIONS AND RECOMMENDATIONS FOR VIETNAM 29 2.1 Threshold for notification of economic concentration under the law of other countries 29 2.1.1 Periodical adjustment of notification threshold 29 2.1.2 Control of transactions implemented outside the territory but having impacts on the domestic market 32 2.1.3 Combining criteria to determine notification threshold 33 2.1.4 Abolition of market share as a criterion for notification threshold 36 2.2 Recommendations for Vietnam 38 CONCLUSION OF CHAPTER 40 THESIS CONCLUSION 41 INTRODUCTION Problem statement In the trend of globalization and economic integration, the wave of mergers and acquisitions (M&A) in developed and developing countries is rising rapidly In the United Kingdom (the UK), between 1986 and 1989, approximately 5,200 industrial and commercial companies implemented M&A M&A activities in the United States (the US) initiated in the early 20th century following with a prompt expansion in the 1980s.2 In Vietnam, since the Law on Enterprise 1999 came into effect, corresponding M&A activities have been concerned and become active in recent years with immense growth in both quantity and value From 2009-2011, there were around 750 M&A deals in Vietnam with an estimated total trading value of 6.89 billion USD Between 2012 and 2014, the total value of M&A cases increased significantly up to 11.13 billion USD The Institute of Mergers, Acquisitions, and Alliances (IMAA) statistics recorded that in 2015, Vietnam executed 341 M&A cases with the total value up to 5.2 billion USD, followed by more than 611 M&A deals accounted for 5.8 billion USD in 2016 The market size in 2017 increased nine times compared to 2008 In 2017 alone, the total value of M&A in Vietnam reached 10.2 billion USD, the highest level recorded, and 175% growth compared to 2016.6 Following the Vietnam M&A Forum research team, in the past ten years, there have been nearly 4,000 deals, with a total value of about 48.8 billion USD Economic concentration transactions, especially M&A, have accelerated enormously all over the world Economic concentration is a form of capital accumulation that contributes to growing enterprises’ value In the open economy, 1Nguyen Thuong Lang, Nguyen Thi Quynh Nhu, “Một số vấn đề sáp nhập, mua lại doanh nghiệp tình hình Việt Nam” (Some issues on mergers and acquisitions and the situation in Vietnam), https://www.sbv.gov.vn/webcenter/contentattachfile/idcplg%3FdDocName%3DSBV281431%26filename%3 D283199.doc, Accessed on 25 March 2021 2Nguyen Thuong Lang, Nguyen Thi Quynh Nhu, supra note 1, p.1 Nguyen Thi Viet Nga (2019), “Triển vọng hoạt động mua bán sáp nhập doanh nghiệp Việt Nam” (Prospects of mergers and acquisitions in Vietnam), Financial Journal, https://tapchitaichinh.vn/tai-chinhkinh-doanh/trien-vong-hoat-dong-mua-ban-va-sap-nhap-doanh-nghiep-tai-viet-nam-301760.html , Accessed on 25 March 2021 Vietnam Competition and Consumer Authority (VCCA) (2015), Tổng quan tập trung kinh tế (Overview of Economic concentration), Competition and Consumer News, No (54)/2015, http://vcca.gov.vn/Newsletter.aspx?CateID=99&page=1, Accessed on 25 March 2021 5Nguyen Hong Hiep (2018), “Thực trạng hoạt động mua bán, sáp nhập doanh nghiệp Việt Nam” (Actual situation of mergers and acquisitions in Vietnam), Business and Finance Journal, p.85 Hien Minh (2018), “M&A Việt Nam vượt mốc 10 tỷ USD” (M&A in Vietnam surpasses 10 billion USD), Government electronic newspaper of the Socialist Republic of Vietnam, http://baochinhphu.vn/Thitruong/MA-tai-Viet-Nam-vuot-moc-10-ty-USD/342105.vgp, Accessed on 25 March 2021 business reorganization under affiliate forms helps businesses deal with fierce competition This constitutes to establish highly competitive enterprises and improve the competing capability of an economic branch In general, economic concentration activities enhance the existing financial and operation power of one company by hunting synergy gains.8 For instance, merging two companies’ cooperation into one big enterprise can enlarge their business scale, boost competition ability, cut down on costs, and optimize financial capacity However, “as the economic concentration is a reality more and more well-defined in the context of economic development, it increases the dimensions of the companies and sets up the prerequisites premise for an abuse of dominant position on the market, what is strongly against competition rules.”9 Therefore, it is necessary to develop a solid and reasonable legal framework to assess and control the economic concentration transactions which seriously affect the competition landscape More than 146 jurisdictions in the world currently have certain forms of economic concentration control regime under their antitrust laws.10 One of the practical tools for economic concentration control is a notification system Without exception, the Vietnamese competition law adopts a mandatory ex-ante notification system 11 On 12 June 2018, the Vietnamese Government issued the new Law on Competition 2018 (hereinafter referred to as LOC 2018), which replaced the old version of Law on Competition 2004 (hereinafter referred to as LOC 2004), and took effect on July 2019 The LOC 2018 has brought new regulations that are more suitable and applicable in Vietnam’s current competition environment, thereby improving the old LOC 2004’s limitations, especially those related to economic concentration12 and notification threshold However, the new regulations on the notification threshold in the LOC 2018 remain certain drawbacks that may cause several challenges, especially in terms of applicability Such deficiencies are associated with not only competent authorities but also enterprises Firstly, in the context of developing countries like Vietnam, the new law Ha Thi Thanh Binh (2019), “Thông báo tập trung kinh tế pháp luật cạnh tranh” (Economic concentration notification under competition law), Vietnamese Journal of Legal Sciences, No.01(122)/2019 Hoang Le Uyen Phuong (2020), Evaluation of the criteria for effective economic concentration control under the Competition Law 2018 of Vietnam and recommendation for improvement, Bachelor thesis, HCMC University of Law, p.1 Berinde Mihai (2008), “Economic concentration in the context of the world economy globalization”, Annals of the University of Oradea: Economic Science, Vol 1(207)/2008, p 203 10 Daniel Sokol & William Blumenthal (2012), “Merger Control: Key International Norms and Differences”, International Research Handbook on Competition Law, Ariel Ezrachi, p.1 11 Hoang Le Uyen Phuong (2020), supra note 8, p.27 12Organization for Economic Cooperation and Development (OECD) (2018), “OECD Peer Reviews of Competition Law and Policy: Viet Nam”, https://www.oecd.org/daf/competition/VietNam-OECDCompetition-Review-2018-ENG.pdf, Accessed on 25 March 2021, p 11 setting up several factors for economic concentration control can put lots of pressure on the National Competition Commission (known as Vietnam’s principal competition authority and hereinafter referred to as NCC) because there will be a growing number of economic concentration cases that must be notified to the NCC However, the NCC was yet to be formally established In other words, the Vietnamese competition authority is considered “immature” and lacking experience Therefore, it is necessary to assess whether all the economic concentration notification threshold criteria are applicable enough Otherwise, the unreasonableness is a potential burden on NCC and might negatively affect economic development Secondly, in the current era of globalization, countries are making an effort to control economic concentration cases implemented in foreign countries but have an adverse impact on domestic competition Hence, the criteria defining thresholds to notify economic concentration cases need to ensure these transactions are appropriately controlled.13 Yet, the regulations under the LOC 2018 not control such economic concentration cases executed overseas but having an adverse impact on Vietnam’s market effectively Thus, this thesis with the topic “Threshold for notification of economic concentration under the law of Vietnam and lessons from international experience” aims to analyze the current Vietnamese regulations on notification threshold and provide recommendations based on foreign countries’ experiences Literature review As the LOC 2018 came into effect, many studies on the economic concentration control regime have been recorded However, the challenges and limitations of the new regulations on the economic concentration notification threshold have not been profoundly researched Ha Thi Thanh Binh (2019), “Thông báo tập trung kinh tế pháp luật cạnh tranh” (Economic concentration notification under competition law), Vietnamese Journal of Legal Sciences, No.01(122)/2019: The article focuses on the importance of economic concentration notification in competition law and the regulations of Vietnam The author then expands researching other selected countries on notification threshold and criteria to determine the anti-competitive effects of economic concentration undertakings, thereby proposing some recommendations for Vietnam’s legislation However, this article was written based on the Draft of the LOC 2018, and at that time, the Decree 35/2020/ND-CP was yet 13 See Ha Thi Thanh Binh (2019), supra note to be issued Hoang Le Uyen Phuong (2020), Evaluation of the criteria for effective economic concentration control under the competition law 2018 of Vietnam and recommendations for improvement, Bachelor thesis, Ho Chi Minh City University of Law: The thesis has a broad scope of study by evaluating the criteria for effective economic concentration control, which comprises notification threshold, assessment of substantial anti-competitive effects caused or potentially caused, assessment of positive effects, preliminary assessment, and official assessment By evaluating such criteria, some recommendations for controlling economic concentration efficiently were indicated Thus, the thesis has not in-depth focused on notification threshold and challenges in terms of applicability for both NCC and enterprises Le Van Thang (2020), “Pháp luật cạnh tranh Việt Nam kiểm soát tập trung kinh tế hoạt động M&A giai đoạn nay” (Vietnam’s Law on Competition regarding economic concentration control for M&A activities in the current period), Master Thesis, Ha Noi University of Law: This thesis analyzes and compares the situation of M&A in Vietnam and the application of the LOC 2018 to assess the regulations under the LOC 2018 Thereby the author provides general recommendations based on the analysis to complete the economic concentration control system This thesis focuses on the actual situation and law applicability; therefore, the notification threshold has not been in-depth researched Tran Linh Huan (2019), “Những điểm quy đinh luật cạnh tranh năm 2018 kiểm soát tập trung kinh tế” (New points in the provisions regulating economic concentration control under the Law on Competition 2018), State and Law Journal, No 5(373)/2019: In this article, the author focuses on analyzing, assessing, and commenting on some breakthroughs on the provisions of the LOC 2018 by comparing with the provisions of the LOC 2004 to enlighten the vitality of amendment The author Tran Linh Huan appreciates the progressive changes in Vietnam’s Competition Law However, the study has not yet been deeply researched on the notification threshold for economic concentration, the application’s challenges, and the remaining shortcomings Hoang Minh Chien (2019), “Kiểm soát tập trung kinh tế theo Luật Cạnh tranh năm 2018”, (Economic concentration control under the Law on Competition 2018), Journal of Democracy and Law, No 3(324)/2019: This paper focuses on analyzing identifying signs of economic concentration, which are (i) Economic concentration subjects are enterprises operating independently in the market, (ii) Economic concentration forms are consolidation, merger, acquisition or joint venture between enterprises, (iii) The consequences of economic concentration lead to the formation of more substantial businesses and changes in market structure as well as correlation In addition, the author points out some new provisions in the LOC 2018, which overcome some limitations of the LOC 2004 and gain experience of advanced countries’ legal control over economic concentration Hence, the notification threshold has not been researched in this paper Mai Nguyen Dung (2020), “Áp dụng số HHI pháp luật tập trung kinh tế Hoa Kỳ, Liên minh châu Âu – Một số đề xuất cho pháp luật canh tranh Việt Nam” (Applying the HHI index to economic concentration regulations based on the United States and European Union experiences and recommendations for Vietnam’s competition law), State and Law Journal, No 04/2020: The author Mai Nguyen Dung provides an overview of the HHI index, analyzes the calculation formulas, advantages and drawbacks of the HHI measure The paper introduces the relevant legislation concerning this index in the US and the EU, thereby proposing some suggestions to improve the Vietnamese Competition Law relating to the HHI index in evaluating economic concentration However, this research is written mainly based on the Draft of the LOC 2018, and at the time, the Decree 35/2020/ND-CP has not been issued This thesis will attempt to address the issues that have been left unsolved, covered, or discussed from the previous studies Purpose of the study This thesis aims to analyze the Vietnamese regulations on economic concentration notification threshold under the LOC 2018 to point out noticeable limitations of the current framework, thereby providing recommendations for improvement based on the experience of the selected foreign countries To accomplish the above purpose, this thesis performs the following tasks: First, analyze the ongoing Vietnamese regulations on notification threshold to acknowledge the achievements of the LOC 2018, and draw out the inadequacies as well as the challenges that the LOC 2018 and the Decree 35/2020/ND-CP 14 have not addressed Second, analyze the selected foreign countries’ regulations on economic concentration control regimes to find the solutions for the challenges and inadequacies posed by the Vietnamese regulations 14 Decree No 35/2020/ND-CP detailing and guiding the implementation of a number of articles of the Competition law 2018 (Decree 35/2020/ND-CP) market power (whose turnover met certain thresholds) Because whatever the level of the threshold, an economic concentration control regulation may create a “catch all regime” if the threshold is based on the activity of only one instead of both parties Whereas, in fact, “it is extremely unlikely that an acquisition in which only one party is active in the relevant jurisdiction can have any negative impact on competition”.124 To conclude, it is recommended that the economic concentration threshold should be set by combining nationwide and worldwide turnover criteria with the condition that the total turnover of at least two undertakings concerned should meet a certain turnover threshold 2.1.4 Abolition of market share as a criterion for notification threshold According to the International Competition Network (ICN) Recommended Practices,125 the notification threshold needs to be clear, understandable, and easily administrable that allows parties to readily determine if a transaction is subject to notification Hence, the ICN has recommended that the notification threshold should be based on objectively quantifiable criteria However, market share is an example of criteria that are not objectively quantifiable Market share-based test, which is subjective, might be appropriate for the latter stages of the economic concentration control process (for instance, the determinations related to the amount of information needed for notification and to the ultimate transaction legality) Therefore, market share-based tests are not relevant to be applied in making the initial determination as to whether an economic concentration transaction is subject to notification.126 Also, the OECD Recommendation on Merger Review against market share thresholds in mandatory control regimes due to wasted investigative effort and compliance risk In several economic concentration transactions, half the substance of an investigation will need to be undertaken to define the market even when it is unlikely to be a problematic case from a public policy viewpoint Data relating to other competitors in the market such as sales, turnover or assets might be unavailable, which leaves the economic concentration parties in an invidious position and may tempt many parties to disregard the filing requirement 127 As a result, several countries have changed their notification criteria from 124 125 ICC (2015), supra note 113, p.6 ICN, “Recommended Practices for Merger Notification and Review Procedures”, https://www.internationalcompetitionnetwork.org/working-groups/icn-operations/icn-recs/ , Accessed on 09 June 2021 126 ICN (2017), supra note 44 127 OECD (2018), supra note 12, p.50-51 36 subjective criteria (especially market share) to objective criteria (especially turnover) These were, for instance, the cases of Brazil, the Czech Republic, Poland, and Turkey.128 Take Brazil as an example, in 2011, Brazil reformed its economic concentration notification system to reduce the number of unproblematic economic concentration cases being filed to the competition authority The new law provided two considerable changes regarding the thresholds for notification of economic concentration, which are (i) the elimination of the market share threshold; and (ii) the introduction of a secondary revenue threshold Whereas, according to the outdated system, an economic concentration transaction must be notified when: 129 (i) the resulting companies or group of companies account for at least 20% of the relevant market or; (ii) any of the parties to the transaction had annual gross revenues of at least R$ 400 million in the fiscal year prior to the transaction Under the new law, a transaction must be notified when the following thresholds are met:130 (i) at least one of the groups involved in the deal has posted on the latest balance sheet, an annual gross turnover or overall volume of business in Brazil at or above R$750 million131 (approximately 150 million USD), in the year before that of the deal; (ii) at least another group involved in the deal has posted on the latest balance sheet, an annual gross turnover or overall volume of business in Brazil at or above R$ 75 million (approximately 15 million USD), in the year before that of the deal; and (iii) the proposed deal has or may have effects in Brazil Thus, in line with international practices, the new Brazilian regulations on notification thresholds have opted for a turnover-based criterion, moving away from previous regimes based on market share Similarly, in 2011, Turkey also reformed its economic concentration notification system Remarkably, one of the most significant changes was the abolition of the market share in the relevant product market and total annual 128 OECD (2013), “Reports on Country Experiences with the 2005 OECD Recommendation on Merger Review”, http://www.oecd.org/daf/competition/ReportonExperienceswithMergerReviewRecommendation.pdf , Accessed on June 2021 129 OECD (2013), supra note 129, p.17 130 ICLG (2021), “Brazil: Merger Control Laws and Regulations 2021”, https://iclg.com/practice-areas/merger-control-laws-and-regulations/brazil, Accessed on 10 June 2021 131 Brazilian currency is Real Brazil (“R$) 37 turnover criteria.132 Instead, Turkish notification system is based on a dual-turnover threshold for triggering the parties’ obligation to notify as mentioned in Section 2.1.3 of this thesis In conclusion, numerous countries have eliminated the market share criterion from their notification systems since the market share notification threshold gives rise to significant uncertainty, cost waste, time consumption, and delay 2.2 Recommendations for Vietnam From international experience and practice analyzed in section 2.1, there are several recommendations for Vietnam regarding the threshold for notification of economic concentration First, it is necessary to regulate in detail the adjustments of the notification threshold in the LOC 2018 Based on the experience of Canada, the United States, and Belgium, the Vietnamese Government should regulate a provision of specific time or conditions be set in order to review and adjust the notification threshold In addition, the Government can empower the National Competition Authority to review and assess annually or periodically whether the current notification thresholds are still appropriate to the socio-economic development Experience with frequent threshold reform in some countries has justified that proper policy and competition regime might incorporate a review and adjustment of thresholds on a regular basis.133 As the economy and M&A market in Vietnam have been enormously affected by the Covid-19 pandemic as mentioned in Section 1.2.2, regulating a provision of periodical adjustment of notification thresholds is necessary in order for these thresholds to be in conformity with socio-economic conditions in each period Second, the LOC 2018 should regulate in detail the turnover threshold in order to control such transactions carrying outside Vietnam’s territory but having impacts on the domestic market (under which such enterprises have no commercial presence in Vietnam) Regarding this issue, the Canadian framework is valuable Based on such regulation in the Competition Act of Canada, Vietnamese lawmakers can regulate that the turnover criteria to determine notification threshold includes “total turnover of the parties to a transaction, together with their affiliates in, from or into Vietnam.” As analyzed in Section 1.2.2, the merger case of Gojek and Tokopedia, which carried outside Vietnam’s territory but having impacts on the domestic market, with the regulation as “total turnover of the parties to a 132 133 OECD (2013), supra note 129, p.18 ICN (2008), supra note 124, p.13 38 transaction, together with their affiliates in, from or into Vietnam” can help the VCA to have a legal basis to control such cases like the merger of Gojek and Tokopedia Third, regarding combining criteria to determine notification threshold, Vietnamese lawmakers can consider using the combination of nationwide and worldwide turnover to set notification threshold based on the experience from the EU and China In addition, the dual-turnover threshold should be taken into account Specifically, the turnover threshold can be used to control transactions of high-turnover firms with the requirement of the aggregate turnover of each of at least two of the undertakings concerned meet a certain threshold Regulating at least two enterprises involved in the transaction must have a certain turnover reduces the number of cases that must be notified but still does not omit transactions with potential competitive restrictions Fourth, as analyzed above, the market share threshold in mandatory control regimes causes wasted investigative effort and compliance risk There are many economic concentration transactions where half of the investigation is marketdefining Besides, data relating to all enterprises in the market, such as sales, turnover, or assets might be unavailable, which is burdensome for both the national competition authorities and enterprises in collecting data Consequently, many countries such as Brazil, the Czech Republic, Poland, and Turkey have eliminated market share criteria from their notification systems.134 The ICN has concluded that a market share-based threshold is inappropriate for making the initial determination as to whether a transaction should be notified or not Market share-based threshold, which is subjective, might be appropriate for later stages of the economic concentration control process.135 The case of Grab and Uber, as analyzed in Section 1.2.2, has proved the irrationality of applying the market share threshold since it has caused challenges and complications in the determination of market share and relevant market Therefore, the market share criterion should be entirely removed from the notification systems to avoid wasting time, cost, and effort 134 135 OECD (2013), supra note 129, p.18 ICN (2008), supra note 124, p.8 39 CONCLUSION OF CHAPTER The second chapter has analyzed the legislations of several countries that provide solutions to address the limitations regarding notification thresholds under the LOC 2018 Thereby, this chapter suggests some recommendations for Vietnam based on the experience of these countries The content of this chapter has the following remarkable points: First, regarding provisions on adjusting the notification threshold, the countries namely Canada, the US, and Belgium all have provisions on adjustment of notification threshold annually based on the changes of the social economy or gross national product Experience with frequent threshold reform in certain countries proved that good policy and competition regimes might incorporate a review and adjustment of thresholds on a regular basis Thereby, it is necessary to specify in detail the adjustments of the notification threshold under the LOC 2018 Second, regarding controlling transactions implemented outside the territory but having impacts on the domestic market, Canada’s regulation is considered practical and applicable in controlling such transactions Hereafter the lawmakers of Vietnam can regulate that the turnover criteria to determine notification threshold includes “total turnover of the parties to a transaction, together with their affiliates in, from or into Vietnam.” Third, regarding combining criteria to determine notification threshold, the experience of the EU, China, and Turkey is worth learning Specifically, the regulations on threshold for notification of economic concentration of the EU, China, and Turkey are all based on nationwide and worldwide turnover as well as the turnover-dual threshold Vietnamese lawmakers might consider employing the combination of nationwide and worldwide turnover as well as the dual-turnover threshold to set notification threshold Last but not least, regarding the abolition of market share notification threshold, as the market share threshold in mandatory control regimes causes wasted investigative effort and compliance risk Many countries have eliminated the market share threshold from their notification systems Vietnamese lawmakers should consider removing the market share threshold from the notification thresholds 40 THESIS CONCLUSION After the 14-year implementation of the LOC 2004, the promulgation of the LOC 2018 has exhibited a breakthrough and significant changes in the economic concentration control regime, especially the threshold for notification of economic concentration The primary change regarding the notification threshold is that the consideration of prohibiting or approving a transaction no longer relies entirely on market share criteria Instead, the notification thresholds under the LOC 2018 are based on (i) total assets, (ii) total sale or purchase volume, (iii) transaction value, and (iv) market share This new approach is the result of applying practical methods of economic analysis following the worldwide trend Therefore, it has made an outstanding contribution to building a healthy and sustainable business environment Therefore, this adjustment is in line with international practices and demonstrates the innovation in the legal mindset of Vietnamese lawmakers Particularly, in the context of globalization and economic integration, the change in notification thresholds is considered necessary and appropriate This will establish a sustainable legal framework that creates a healthy business environment and attracts foreign investors However, although the LOC 2018 has addressed many issues and rigidity of the LOC 2004, there are still several limitations under the updated legal framework regarding the notification thresholds that need to be considered Therefore, in order for Vietnamese regulations on thresholds for notification of economic concentration to be improved, it is essential to analyze and learn from the experience of foreign countries where the legal framework is advanced and developed throughout long history Based on the experience and practice of such countries, in order to improve the economic concentration control regimes, especially the threshold for notification of economic concentration, it is recommended that Vietnamese lawmakers should pay attention to the following aspects: First, it is necessary to specify in detail the adjustments of the notification threshold under the LOC 2018 Experience with frequent threshold reform in several countries shows that good policy might incorporate a review and adjustment of thresholds on a regular basis Second, the lawmakers of Vietnam can consider regulating that the turnover criteria to determine notification threshold includes “total turnover of the parties to a transaction, together with their affiliates in, from or into Vietnam.” Third, it is recommended to consider using the combination of nationwide and worldwide turnover as well as the dual-turnover threshold to set the turnover41 based notification threshold Fourth, Vietnamese lawmakers should consider removing completely the market share threshold from the notification thresholds as the market share threshold in mandatory control regimes causes wasted investigative effort and compliance risk 42 BIBLIOGRAPHY A LEGAL DOCUMENTS The Law on Competition (Law No.27/2004/QH11) on December 2004 The Law on Competition (Law No.23/2018/QH14) on 12 June 2018 The Law on Credit Institutions (Law No.47/2010/QH12) on 16 June 2010 (amended in 2017) The Law on Insurance Business (Law No.24/2000/QH10) on December 2000 (amended in 2010) The Law on Enterprises (Law No.59/2020/QH14) on 17 June 2020 The Decree 116/2005/NĐ-CP of the Government on 15 September 2005 detailing the implementation of a number of articles of the Competition law The Decree 35/2020/NĐ-CP of the Government on 24 March 2020 detailing and guiding the implementation of a number of articles of the Competition law 2018 The Resolution No 26/QD-HDXL regarding the case of competition 18 KX HCT 01, http://www.hoidongcanhtranh.gov.vn/App_File/laws/a6626d04-840f47da-8540-e537c7ac452f.pdf Anti-Monopoly Law of the People’s Republic of China (2007) 10 Council Regulation European Community (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) 11 Clayton Antitrust Act (1914) 12 Competition Act of Canada Communiqué concerning the mergers and acquisitions calling for the authorization of the Competition Board of Turkey (Communiqué No: 2010/4), https://www.fakongjian.com/int_doc/laws/20160603/1736/tr115en2016060317 3604.pdf 14 Hart-Scott-Rodino Antitrust Improvement Act (1976) 13 B MATERIALS Vietnamese materials 15 Cafef (2019) “Hội đồng Cạnh tranh yêu cầu điều tra bổ sung vụ Grab mua Uber?” (What did VCA require to supplement the case of Grab and Uber?), https://tuoitre.vn/hoi-dong-canh-tranh-yeu-cau-gi-khi-dieu-tra-bo-sungvu-grab-mua-uber-20190224181944913.htm 16 Dat Nguyen (2020), “GDP growth hits 10-year low”, https://e.vnexpress.net/news/business/data-speaks/gdp-growth-hits-10-yearlow-4075769.html, 17 18 Economics and Law University (2010), Competition Law Curriculum, Publisher Ho Chi Minh city National University Hanoi Law University (2006), Commercial Law Curriculum, Publisher People’s Police, Ha Noi, p.372 (as cited in Ha Ngoc Anh (2018), Pháp luật kiểm soát tập trung kinh tế Việt Nam (Legislation on economic concentration control in Vietnam), Ph.D thesis, Ho Chi Minh City University of Law 19 Ha Thi Thanh Binh (2019), “Thông báo tập trung kinh tế pháp luật cạnh tranh” (Economic concentration notification under competition law), Vietnamese Journal of Legal Sciences, No.01(122)/2019 20 Hoang Le Uyen Phuong (2020), Evaluation of the criteria for effective economic concentration control under the Competition Law 2018 of Vietnam and recommendation for improvement, Bachelor thesis, HCMC University of Law Hien Minh (2018), “M&A Việt Nam vượt mốc 10 tỷ USD” (M&A in 21 Vietnam surpasses 10 billion USD), Government electronic newspaper of the Socialist Republic of Vietnam, http://baochinhphu.vn/Thi-truong/MA-tai-VietNam-vuot-moc-10-ty-USD/342105.vgp 22 Le Van Thang (2020), Pháp luật cạnh tranh Việt Nam kiểm soát tập trung kinh tế hoạt động M&A giai đoạn (Vietnam's law on competition regarding economic concentration control for M&A activities in the current period), Master Thesis, Hanoi Law University 23 Le Vu Quynh Trang (2014), Hoàn thiện pháp luật Việt Nam kiểm soát tập trung kinh tế (Completing Vietnam's law on economic concentration control), Master Thesis, Hanoi Law University 24 Ministry of Industry and Trade, Vietnam Competition and Consumer Authority (2012), (2012), Báo cáo tập trung kinh tế Việt Nam 2012 (Vietnam Economic Concentration Report in 2012), Ha Noi 25 Ministry of Industry and Trade, Vietnam Competition and Consumer Authority (2012), Báo cáo rà soát quy định pháp luật cạnh tranh Việt Nam (Report on reviewing the provisions of Vietnam’s law on competition), Ha Noi 26 Ministry of Industry and Trade (2017), Báo cáo đánh giá tác động Dự án Luật Cạnh tranh (sửa đổi) (Impact assessment of the Competition law project (amended), Ha Noi 27 Ministry of Industry and Trade (2018), Báo cáo kinh nghiệm quốc tế: Kinh nghiệm quốc tế quy định kiểm soát tập trung kinh tế để xây dựng hướng dẫn chi tiết thi hành quy định tập trung kinh tế luật cạnh tranh 2018 Việt Nam (International experience report: International experience on economic concentration control regulations to develop detailed guidance on the implementation of provisions on economic concentration in the competition law 2018 of Vietnam), http://st.aus4reform.org.vn/staticFile/Subject/2019/01/08/kinh-nghiem-quoc-teve-kiem-soat-tap-trung-kinh-te_81540499.pdf 28 Nguyen Hong Hiep (2018), “Thực trạng hoạt động mua bán, sáp nhập doanh nghiệp Việt Nam” (Actual situation of mergers and acquisitions in Vietnam), Business and Finance Journal 29 Nguyen Thuong Lang, Nguyen Thi Quynh Nhu, “Một số vấn đề sáp nhập, mua lại doanh nghiệp tình hình Việt Nam” (Some issues on mergers and acquisitions and the situation in Vietnam), https://www.sbv.gov.vn/webcenter/contentattachfile/idcplg%3FdDocName%3 DSBV281431%26filename%3D283199.doc 30 Nguyen Xuan Nam (2014), Kiểm soát tập trung kinh tế theo luật cạnh tranh Việt Nam – Một số vấn đề lý luận thực tiễn (Controlling economic concentration under Vietnamese competition law – Some theoretical and practical issues), Master thesis, Hanoi Law University 31 Nguyen Thi Viet Nga (2019), “Triển vọng hoạt động mua bán sáp nhập doanh nghiệp Việt Nam” (Prospects of mergers and acquisitions in Vietnam), Financial Journal, https://tapchitaichinh.vn/tai-chinh-kinhdoanh/trien-vong-hoat-dong-mua-ban-va-sap-nhap-doanh-nghiep-tai-viet-nam301760.html 32 Pham Hoai Huan (2019), “Bình luận định Hội đồng cạnh tranh việc tập trung kinh tế GrabTaxi” (Comment on the Resolution of VCA regardingtheeconomicconcentrationcaseofGrabTaxi), http://lapphap.vn/Pages/tintuc/tinchitiet.aspx?tintucid=210348, Legislative Research Journal, No 12 (388), 06/2019 33 Pham Tri Hung and Ha Ngoc Anh (2014), “Bản chất tập trung kinh tế kiểm soát tập trung kinh tế” (The nature of economic concentration and the control of economic concentration), Vietnamese Journal of Legal Sciences, No 05(84)/2014 34 Vietnam Competition and Consumer Authority (2009), Báo cáo tập trung kinh tế Việt Nam: Hiện trạng dự báo (Economic concentration report in Vietnam: Current situation and forecast), Ha Noi 35 Tran Linh Huan (2019), “Những điểm quy định luật cạnh tranh năm 2018 kiểm soát tập trung kinh tế” (New points in the provisions regulating economic concentration control under the Law on Competition 2018), State and Law Journal, No 5(373)/2019 36 Tran Thi Thu Phuong (2014), “Một số vấn đề kiểm soát tập trung kinh tế pháp luật Việt Nam kinh nghiệm chung từ số quốc gia” (Some issues of economic concentration control of Vietnamese law and common experiences from some countries), State and Law Journal, No 04(312)/2014 37 Vietnam Competition and Consumer Authority (2015), Tổng quan tập trung kinh tế (Overview of Economic concentration), Competition and Consumer News, Ha Noi, No (54)/2015 38 English materials Abbott (2014), “Abbott completes acquisition of CFR Pharmaceuticals announces results of tender offer for CFR shares”, https://abbott.mediaroom.com/2014-09-26-Abbott-Completes-Acquisition-ofCFR-Pharmaceuticals-Announces-Results-of-Tender-Offer-for-CFR-Shares 39 40 Berinde Mihai (2008), “Economic concentration in the context of the world economy globalization”, Annals of the University of Oradea: Economic Science, Vol 1(207)/2008 Belgium Competition Authority (2017), Evaluation of the notification thresholds for concentrations in Belgium, https://www.belgiancompetition.be/sites/default/files/content/download/files/20 170518_press_release_10_bca.pdf 41 Boehringer Ingelheim (2016), “Sanofi and Boehringer Ingelheim have reached definitive agreements to swap Sanofi’s Animal Health and Boehringer Ingelheim’s Consumer Healthcare businesses”, https://www.boehringeringelheim.us/press-release/sanofi-and-boehringer-ingelheim-have-reacheddefinitive-agreements-swap-sanofis-animal 42 Daniel Sokol & William Blumenthal (2012), “Merger Control: Key International Norms and Differences”, International Research Handbook on Competition Law, Ariel Ezrachi 43 Ellie Burns (2017), “What is Uber?”, https://techmonitor.ai/what-is/what-isuber-4903973 44 Federal Trade Commission (2021), “HSR threshold adjustments and reportability for 2021”, https://www.ftc.gov/news-events/blogs/competitionmatters/2021/02/hsr-threshold-adjustments-reportability-2021 “Revised Jurisdictional Thresholds for Section 7A of the Clayton Act”, https://www.federalregister.gov/documents/2021/02/02/2021-02110/revisedjurisdictional-thresholds-for-section-7a-of-the-clayton-act 46 Grab (2018), “Grab Merges with Uber in Southeast Asia”, https://www.grab.com/sg/press/business/grab-merges-with-uber-in-southeastasia/ 47 Gojek (2021), “Gojek Vietnam”, https://www.gojek.com/vn/about/, Accessed on 26 June 2021 48 Government of Canada (2021), “Pre-merger notification transaction-size threshold decreases to $93M in 2021”, https://www.canada.ca/en/competitionbureau/news/2021/02/pre-merger-notification-transaction-size-thresholddecreases-to-93m-in-2021.html 49 Government of Canada (2020), “Pre-merger notification transaction-size threshold to remain at $96M in 2020”, https://www.canada.ca/en/competitionbureau/news/2020/04/pre-merger-notification-transaction-size-threshold-toremain-at-96m-in-2020.html 50 51 Gavin Roberts (2014), “Merger Control Procedure and Enforcement: An International Comparison”, (10)/2014 European Competition Journal, p.523524 International Competition Network, “Recommended Practices for Merger 52 Notification and Review Procedures”, https://www.internationalcompetitionnetwork.org/working-groups/icnoperations/icn-recs/ International Competition Network (2017), “ICN Recommended Practices for Merger Notification and Review Procedures”, https://www.internationalcompetitionnetwork.org/wpcontent/uploads/2018/09/ MWG_NPRecPractices2018.pdf 53 International Competition Network (2008), “Setting notification thresholds for merger review”, Report to the ICN Annual Conference Kyoto, Japan, https://centrocedec.files.wordpress.com/2015/07/setting-notification-thresholdsfor-merger-review-2008.pdf 54 International Competition Network (2002), “ICN Recommended Practices for Merger Notification and Review Procedures”, https://www.internationalcompetitionnetwork.org/wpcontent/uploads/2018/09/MWG_NPRecPractices2018.pdf 55 International Comparative Legal Guides (2021), “Canada: Merger Control Laws and Regulations 2021”, https://iclg.com/practice-areas/merger-control-lawsand-regulations/canada 56 International Comparative Legal Guides (2021), “Turkey: Merger Control Laws and Regulations 2021”, https://iclg.com/practice-areas/merger-control-lawsand-regulations/turkey 57 International Comparative Legal Guides (2021), “Brazil: Merger Control Laws and Regulations 2021”, https://iclg.com/practice-areas/merger-control-lawsand-regulations/brazil 58 59 International Comparative Legal Guides (2021), “China: Merger Control Laws and Regulations”, https://iclg.com/practice-areas/merger-control-laws-andregulations/china International Competition Network (2002), “ICN Recommended Practices for 60 Merger Notification and Review Procedures”, https://www.internationalcompetitionnetwork.org/wpcontent/uploads/2018/09/MWG_NPRecPractices2018.pdf International Chamber of Commerce (2015), “ICC Recommendations on Premerger notification regimes”, https://iccwbo.org/content/uploads/sites/3/2017/06/ICC-Recommendations-onPre-Merger-Notification-Regimes.pdf 61 International Financial Law Review (2021), “M&A Report 2021: Vietnam”, https://www.iflr.com/article/b1qxjwwmn3xyz4/mampa-report-2021-vietnam 62 Justine Reisler (2021), “Canada: 2021 Merger Review Threholds”, https://www.mondaq.com/canada/antitrust-eu-competition-/1038504/2021merger-review-thresholds 63 Ковалькова М.В (2005), as cited in Pham Tri Hung and Ha Ngoc Anh (2014) “Bản chất tập trung kinh tế kiểm soát tập trung kinh tế” (The nature of economic concentration and the control of economic concentration), Vietnamese Journal of Legal Sciences, No 05(84)/2014 64 Ketan Mishra (2021), “The largest eCommerce marketplace of Indonesia: Tokopedia”, https://cedcommerce.com/blog/largest-ecommerce-marketplaceindonesia-tokopedia/ MS Gal and EM Fox (2014), “Drafting competition law for developing jurisdictions: Learning from experience”, New York University Law and Economics Working Paper No 374 66 Organization for Economic Cooperation and Development (OECD) (2018), 65 67 “OECD Peer Reviews of Competition Law and Policy: Viet Nam”, https://www.oecd.org/daf/competition/VietNam-OECD-Competition-Review2018-ENG.pdf, Organization for Economic Cooperation and Development (1993), “Glossary of Industrial Organization Economics and Competition Law”, http://www.oecd.org/regreform/sectors/2376087.pdf 68 Organization for Economic Cooperation and Development (1999), A Framework for the Design and Implementation of Competition Law and Policy, https://www.oecd.org/regreform/sectors/aframeworkforthedesignandimplement ationofcompetitionlawandpolicy.htm 69 OECD (2016), “Local Nexus and Jurisdictional Thresholds in Merger Control”, https://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF /COMP/WP3(2016)4&docLanguage=En, Working Party No.3 on Cooperation and Enforcement Organization for Economic Cooperation and Development (2010), “Policy 70 71 Roundtables – Competition, Concentration and Stability in the Banking Sector”, https://www.oecd.org/daf/competition/sectors/46040053.pdf Organization for Economic Cooperation and Development (2013), “Reports on Country Experiences with the 2005 OECD Recommendation on Merger Review”, http://www.oecd.org/daf/competition/ReportonExperienceswithMergerReview Recommendation.pdf 72 Paul K Gorecki (2011), “Too many unnecessary merger notifications in Ireland?”, Journal of Competition Law and Economics, Vol 7(3) 73 Shotaro Tani (2021), “Gojek and Tokopedia announce Indonesia's 'largest ever' merger”, https://asia.nikkei.com/Business/Technology/Gojek-and-Tokopediaannounce-Indonesia-s-largest-ever-merger 74 Thanh Van (2021), “Merger could lead to “GoTo” app for all”, https://vir.com.vn/merger-could-lead-to-goto-app-for-all-84641.html 75 Trung Tin (2020), “Covid-19 cuts Vietnam’s M&A value by half”, https://e.vnexpress.net/news/business/data-speaks/covid-19-cuts-vietnam-s-mamp-a-value-by-half- 4196870.html?fbclid=IwAR3H0ChYPk3NdXeRsXK0kv0kNKIGaOGi5plwjCp cpuJzitTt5DNdgjQuUak 76 United Nations Conference on Trade and Development (2018), “Model Law on Competition: Revised chapter VI”, https://unctad.org/meetings/en/SessionalDocuments/ciclpL10_en.pdf 77 78 United Nations Conference on Trade and Development (2017), “Challenges in the design of a merger control regime for young and small competition authorities”, https://unctad.org/system/files/official-document/ciclpd45_en.pdf United Nations Conference on Trade and Development (2018 (2016), “Liner Shipping: Is there a way for more competition?”, https://unctad.org/system/files/official-document/osgdp2016d1_en.pdf, 79 Vietnam Economic Times (2016), “Central Group acquires BigC Vietnam”, https://www.vneconomictimes.com/article/business/central-group-acquires-bigc-vietnam 80 Vincent Wee (2017), “Everything You Need to Know About Grab”, https://www.techedt.com/everything-you-need-to-know-about-grab/ World Bank (2018), “Merger control: Policy guidance to strengthen the 81 Indonesian competition framework”, http://documents1.worldbank.org/curated/pt/318741540796956792/pdf/131397WP-PUBLIC-2018-WBG-Merger-Note-Indonesia.pdf 82 Yavuz Karagok and Samuel Rutz (2014), “Towards optimal merger notification regimes: in evidence from Switzerland, Antitrust Enforcement Journal, p.1-4 (as cited in International Chamber of Commerce (ICC) (2015), “ICC Recommendations on Pre-merger notification regimes”, https://iccwbo.org/content/uploads/sites/3/2017/06/ICC-Recommendations-onPre-Merger-Notification-Regimes.pdf) ... FOR NOTIFICATION OF ECONOMIC CONCENTRATION UNDER VIETNAMESE LAW This chapter will introduce the notification threshold of economic concentration under the Vietnamese Law by first clarifying the. .. for notification of economic concentration under Vietnamese law Chapter Economic concentration notification threshold under the selected legislations and recommendations for Vietnam CHAPTER THRESHOLD. .. CHAPTER ECONOMIC CONCENTRATION NOTIFICATION THRESHOLD UNDER THE SELECTED LEGISLATIONS AND RECOMMENDATIONS FOR VIETNAM 29 2.1 Threshold for notification of economic concentration under the law