Firstly, in the context of developing countries like Vietnam, the new law 7 Ha Thi Thanh Binh 2019, “Thông báo tập trung kinh tế trong pháp luật cạnh tranh” Economic concentration notif
Problem statement
Globalization and economic integration have accelerated the wave of mergers and acquisitions (M&A) across both developed and developing economies In the UK, about 5,200 industrial and commercial companies conducted M&A between 1986 and 1989, while in the US, M&A activity began in the early 20th century and expanded rapidly in the 1980s In Vietnam, M&A activity has surged since the 1999 Enterprise Law, with substantial growth in recent years From 2009 to 2011, roughly 750 M&A deals were recorded in Vietnam with a total value of about USD 6.89 billion; from 2012 to 2014, the total value rose to about USD 11.13 billion The Institute of Mergers, Acquisitions, and Alliances (IMAA) reported 2015 Vietnam deals at 341 with USD 5.2 billion, and 2016 at 611 deals totaling USD 5.8 billion The Vietnamese market expanded ninefold from 2008 to 2017, and in 2017 alone the total M&A value reached USD 10.2 billion, a 175% increase over 2016 According to the Vietnam M&A Forum, nearly 4,000 deals occurred over the past decade with a total value of about USD 48.8 billion.
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,
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2Nguyen Thuong Lang, Nguyen Thi Quynh Nhu, supra note 1, p.1
3 Nguyen Thi Viet Nga (2019), “Triển vọng hoạt động mua bán và sáp nhập doanh nghiệp tại Việt Nam”
Vietnam's mergers and acquisitions (M&A) market is poised for sustained activity as the economy strengthens and both domestic and international buyers seek strategic footholds in Southeast Asia Key drivers include robust macro growth, a growing middle class and consumer base, ongoing privatization and corporate governance reforms, an expanding capital market, and a more open foreign investment climate Cross-border deals are expected to rise across sectors such as technology, consumer goods, manufacturing, financial services, and energy, supported by higher valuation expectations and a broader pool of financing options Regulatory developments—streamlined approvals, clearer investment rules, and antitrust considerations—will shape deal dynamics, while due diligence, integration planning, and governance remain critical in achieving post-merger value Overall prospects for Vietnam M&A look favorable, with deal flow likely to rebound as the economy recovers and investor confidence grows, though competition among global and regional buyers will intensify.
According to the Vietnam Competition and Consumer Authority (VCCA), the 2015 publication “Overview of Economic Concentration” (Tổng quan về tập trung kinh tế) appears in Competition and Consumer News No 54/2015, offering key insights into how economic concentration shapes competition in Vietnam and outlining regulatory considerations for promoting competitive markets The article is available at http://vcca.gov.vn/Newsletter.aspx?CateID&page=1 and was accessed on 25 March 2021.
5Nguyen Hong Hiep (2018), “Thực trạng hoạt động mua bán, sáp nhập doanh nghiệp tại Việt Nam” (Actual situation of mergers and acquisitions in Vietnam), Business and Finance Journal, p.85
Vietnam’s M&A activity has surpassed 10 billion USD, reflecting a growing trend in corporate restructuring driven by market dynamics Reorganizing businesses through affiliate-based structures helps firms cope with fierce competition, creating highly competitive enterprises and strengthening the competitive capacity of entire economic sectors In general, economic concentration boosts a company’s financial and operational power by capturing synergy gains For example, merging two companies into a single larger enterprise can expand their scale, enhance competitive ability, reduce costs, and optimize financial capacity However, successful outcomes depend on effective integration, governance, and regulatory compliance to sustain the benefits of consolidation.
As economic concentration becomes a more defined feature of development, it enlarges firms and creates conditions for abuse of a dominant market position, running counter to competition rules Consequently, a solid and reasonable legal framework is needed to assess and regulate concentration transactions that materially affect the competition landscape Today, over 146 jurisdictions worldwide have some form of economic concentration control under their antitrust laws A practical tool for this control is the notification system, and Vietnam’s competition law adopts a mandatory ex-ante notification regime to ensure timely review before deals proceed.
On 12 June 2018, Vietnam enacted the Law on Competition 2018 (LOC 2018), which replaced the Law on Competition 2004 and took effect on 1 July 2019 LOC 2018 refines Vietnam's competition framework with provisions better suited to the current market, addressing key gaps in the previous law—especially regarding economic concentration and the notification threshold While the reforms improve enforcement and alignment with Vietnam's competitive environment, the new notification threshold rules also introduce drawbacks that may hinder practical application, posing challenges for both competent authorities and businesses. -**Support Pollinations.AI:**🌸 **Ad** 🌸 Streamline your legal insights on the LOC 2018—[Support our mission](https://pollinations.ai/redirect/kofi) and keep AI resources within reach for content creators like you.
Firstly, in the context of developing countries like Vietnam, the new law
7 Ha Thi Thanh Binh (2019), “Thông báo tập trung kinh tế trong pháp luật cạnh tranh” (Economic concentration notification under competition law), Vietnamese Journal of Legal Sciences, No.01(122)/2019
8 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
9 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
OECD’s 2018 Peer Review of Vietnam’s competition law and policy notes that setting up multiple factors to control economic concentration could place substantial pressure on the National Competition Commission (NCC), Vietnam’s primary competition authority, because more economic concentration cases would need to be notified to the NCC At that time, the NCC had not yet been formally established, leaving Vietnam’s competition authority immature and inexperienced Consequently, it is important to assess whether the current economic concentration notification thresholds are fit for purpose; if the thresholds are impractical or misaligned with the agency’s capacity, the resulting burden could hinder the NCC and negatively impact economic development.
In a globalized economy, countries are striving to curtail economic concentration cases that are decided abroad but adversely affect domestic competition, making it essential to set clear thresholds for notifying such transactions to ensure proper oversight However, regulations under the LOC 2018 do not cover overseas concentration cases that impact Vietnam’s market.
This thesis, titled "Threshold for Notification of Economic Concentration under Vietnamese Law and Lessons from International Experience," analyzes current Vietnamese regulations on the notification threshold for mergers and acquisitions and draws on international experience to formulate actionable recommendations It investigates how Vietnam's competition law defines and applies the notification threshold, compares it with foreign regimes, identifies gaps and areas for improvement, and proposes policy adjustments designed to enhance regulatory clarity, enforcement effectiveness, and compliance for businesses operating within Vietnam's market.
Literature review
Since the LOC 2018 took effect, numerous studies have examined the economic concentration control regime However, the challenges and limitations of the new regulations governing the economic concentration notification threshold have not been deeply explored.
Ha Thi Thanh Binh (2019), “Thông báo tập trung kinh tế trong pháp luật cạnh tranh” (Economic concentration notification under competition law),
Published in Vietnamese Journal of Legal Sciences, No.01(122)/2019, the article examines the role of economic concentration notification within Vietnam's competition-law regime and how Vietnam governs mergers and acquisitions It further surveys notification thresholds and the criteria used by selected countries to assess the anti-competitive effects of economic concentration undertakings, and it offers concrete recommendations for strengthening Vietnam’s legislation The analysis is based on the Draft Law on Competition (LOC) 2018, and at that time Decree 35/2020/ND-CP had not yet been issued.
13 See Ha Thi Thanh Binh (2019), supra note 7 to be issued.
Hoang Le Uyen Phuong's 2020 bachelor thesis from Ho Chi Minh City University of Law evaluates the criteria for effective economic concentration control under Vietnam's 2018 Competition Law It analyzes key criteria including notification thresholds, assessment of substantial anti-competitive effects caused or potentially caused, assessment of positive effects, as well as preliminary and official assessments, and uses these criteria to propose recommendations for more efficient control of economic concentration The study offers practical recommendations for improving economic concentration control, but it does not deeply focus on the notification threshold or address the challenges of applicability for both the NCC and enterprises.
Le Van Thang (2020), “Pháp luật cạnh tranh Việt Nam về kiểm soát tập trung kinh tế đối với hoạt động M&A trong giai đoạn hiện nay” (Vietnam’s Law on
This Master Thesis from Ha Noi University of Law analyzes the current state of M&A activity in Vietnam and assesses the application of LOC 2018 to evaluate how the regulations under LOC 2018 govern economic concentration in practice It compares the actual M&A landscape with the statutory framework, identifies gaps between law and enforcement, and offers general recommendations to strengthen the economic concentration control system The study concentrates on real-world conditions and the applicability of LOC 2018, noting that the notification threshold has not been examined in depth.
Tran Linh Huan (2019) analyzes the 2018 amendments to Vietnam's Law on Competition, focusing on the new provisions governing economic concentration control The article explains how the 2018 changes redefine thresholds for merger notification, expand the scope of practices subject to review, and refine criteria for determining their effects on competition It assesses the implications for the Vietnam Competition Authority’s enforcement powers, the treatment of mergers, acquisitions, and joint ventures, and the practical duties of market participants to ensure compliance The discussion highlights the policy aim of strengthening competitive markets and protecting consumer welfare, while outlining the challenges and opportunities these reforms create for businesses operating in Vietnam.
State and Law Journal, No 5(373)/2019 discusses Tran Linh Huan’s analysis of the 2018 Law on Competition (LOC 2018) provisions, comparing them with the 2004 LOC to demonstrate the vitality of the amendment and the progressive changes in Vietnam’s Competition Law The article assesses breakthroughs, provides commentary on the reform’s impact on enforcement and policy, and highlights the overall positive trajectory of Vietnam’s competition regime Nevertheless, the study points out that deeper research is needed on the notification threshold for economic concentration, the practical challenges of applying the provisions, and remaining shortcomings that call for further investigation.
Hoang Minh Chien (2019), “Kiểm soát tập trung kinh tế theo Luật Cạnh tranh năm 2018”, (Economic concentration control under the Law on Competition
This paper analyzes indicators of economic concentration, identifying the subjects as enterprises operating independently in the market and outlining the forms of concentration—consolidation, merger, acquisition, or joint venture It discusses the consequences of economic concentration, including the formation of larger firms and changes in market structure and interrelations It also highlights new provisions in LOC 2018 that address the limitations of LOC 2004 and reflect the experience of advanced countries’ legal control over economic concentration However, the paper does not investigate the notification threshold.
Mai Nguyen Dung's 2020 article offers a focused review of the Herfindahl-Hirschman Index (HHI) as a metric for evaluating economic concentration under competition law, detailing how HHI is calculated and analyzing its advantages and drawbacks By examining the HHI-related legislation in the United States and the European Union, the paper draws lessons that inform recommendations for strengthening Vietnam’s competition law with respect to HHI-based assessments of mergers and market power The study emphasizes practical implications for aligning Vietnamese regulation with US/EU practices while noting that its analysis relies largely on the 2018 Draft Law on Competition (LOC) and precedes the enactment of Decree 35/2020/ND-CP.
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 study analyzes Vietnam’s economic-concentration regulation by focusing on the notification thresholds under the Law on Competition (LOC) 2018, identifies key shortcomings in the current regulatory framework, and offers pragmatic reform recommendations informed by the experiences and best practices of selected foreign jurisdictions.
First, this thesis analyzes the ongoing Vietnamese regulations on notification thresholds to acknowledge the achievements of LOC 2018 and to identify the inadequacies and challenges that LOC 2018 and 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 theCompetition law 2018 (Decree 35/2020/ND-CP)
Third, offer problem-solving recommendations based on the experiences learned from other legislations’ competition law regarding notification thresholds.
Objectives and Scope of the study
Objectives of the study
The regulations and provisions relating to the economic concentration notification threshold under the LOC 2004, the LOC 2018, and the Decree 35/2020/ ND-CP.
The regulations and provisions relating to economic concentration notification threshold under the competition law of Canada, the US, the EuropeanUnion (EU), China, Turkey, Belgium, and Brazil.
Scope of the study
This thesis analyzes the notification threshold for economic concentration within Vietnam’s Law on Competition (LOC 2018) and Decree 35/2020/ND-CP as the current framework, while excluding other related specialized laws from its scope It also surveys foreign jurisdictions’ approaches to economic concentration notification thresholds, focusing on the European Union’s Merger Regulation No 139/2004; Canada’s Competition Act; China’s Anti-Monopoly Law; the United States Clayton Act as amended by the Hart-Scott-Rodino Antitrust Improvements Act; Belgium’s Code of Economic Law; Turkey’s Communiqué No 2010/4 on mergers and acquisitions requiring authorization by the Competition Board; and Brazil’s Competition Act.
This study’s limitations focus on the notification threshold for economic concentration, its importance and purpose, and the breakthroughs achieved under LOC 2018 regarding the threshold, together with the remaining drawbacks Accordingly, the thesis will not discuss issues related to the assessment of substantial anti-competitive effects (present or potential), the assessment of positive effects, preliminary or official assessments, procedures, the national competition authority, sanctions, or leniency policies.
Research methodologies
Throughout this thesis, three principal research methods—analytical, comparative, and synthetic—will be employed Rather than treating these methods as isolated tools, they are deliberately interwoven to form an integrated framework that enables a comprehensive, multi-faceted examination of the subject matter.
This study relies on an analytical method applied primarily in Chapter 1 to document the LOC 2018 regulations on the notification threshold and to identify feasible limitations that could burden competent authorities and economic development; the same analytical approach is used in Chapter 2 to analyze the legislations of other countries.
Chapter 1 employs the comparative method to contrast LOC 2004 and LOC 2018, highlighting the significance of the 2018 amendment to the economic concentration notification threshold; Chapter 2 applies the same approach to compare Vietnam's competition legislation with those of other countries, generating recommendations for policy alignment and reform.
The synthetic method is used to synthesize analyses and comparisons,thereby clarifying problems to be solved from a legal perspective and offering recommendations.
Thesis structure
This thesis comprises two chapters as follows:
THRESHOLD FOR NOTIFICATION OF ECONOMIC
Theoretical issues relating to economic concentration
1.1.1 Definition and nature of economic concentration
Economic concentration is defined and discussed by legal scholars and economists worldwide The OECD Glossary of Industrial Organization Economics and Competition Law defines concentration as the extent to which a small number of firms account for a large share of economic activity, such as total sales, assets, or employment Four distinct concepts fall under this term: aggregate concentration, industry or market concentration, buyer concentration, and ownership concentration In Vietnam's economics and legal science, economic concentration is viewed as industry or market concentration By contrast, the OECD book A Framework for the Design and Implementation of Competition Law and Policy provides a broader perspective and a framework for competition law and policy.
15 Organization for Economic Cooperation and
Development (OECD) (1993), “Glossary of Industrial Organization Economics and Competition Law”, http://www.oecd.org/regreform/sectors/2376087.pdf , Accessed on 21 April 2021
Aggregate concentration measures the relative position of large firms in an economy, indicating how much economic weight is held by the top players Economists, sociologists, and political scientists use this measure in theories about the actual and potential economic-political power that big business can exert because of its economic importance in a country, an industrial sector, or a geographic region.
Industry or market concentration, also known as seller concentration, gauges how dominant a few large firms are in supplying a given good or service It measures the relative position of these enterprises in markets such as automobiles or mortgage loans, reflecting the level of competition and potential market power Higher concentration means a larger market share held by top players, which can influence pricing, output, and barriers to entry, while lower concentration indicates a more competitive landscape with more firms competing for market share.
18 Buyer Concentration which measures the extent to which a large percentage of a given product is purchased by relatively few buyers
Ownership concentration measures the degree to which shares of exchange-listed companies are held by a small number of investors versus being dispersed among many holders A high concentration means that a few owners control a large portion of the voting rights, while a low concentration indicates broad ownership across a wide base of investors The concept is often extended to describe how wealth or control of corporate assets is distributed among individual families or business entities, shaping governance, strategic decisions, and the overall influence over corporate outcomes.
20 Pham Tri Hung and Ha Ngoc Anh (2014), “Bản chất của tập trung kinh tế và 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, p.20
OECD's 1999 Framework for the Design and Implementation of Competition Law and Policy, in Chapter 22 on mergers, addresses economic concentration It explains that mergers can occur in several ways: one firm may purchase all or part of another firm's outstanding securities or operating assets, and two firms may exchange securities to create a single enterprise Such transactions may result from an agreement between the firms, or the takeover may be unsolicited or unexpected.
“hostile”- that is, resisted by the target company Established practice has been label
A merger is any transaction in which two independent actors are combined into a single entity, resulting in the strengthening of one and the elimination of the other This framing underpins the study of economic concentration, showing that mergers and acquisitions (M&A) are the primary mechanism by which market power becomes centralized The chapter demonstrates that centralized market power typically arises through M&A activity, highlighting how consolidation reshapes competitive dynamics.
UNCTAD’s Model Law on Competition does not define economic concentration itself, but treats mergers and acquisitions (M&A) as central to today’s economy and notes that the motives behind different mergers vary, with the terms concentration and merger used interchangeably The concept of concentration is described in two ways: (i) the acquisition of control over another undertaking through M&A or similar arrangements, and (ii) the level of competition in a market, where a market is highly concentrated if there are only a few players and less concentrated if many players operate By contrast, a merger is examined from two legal perspectives: corporate law and competition law.
In corporate law, a merger is typically defined as the consolidation of two or more independent companies into a single enterprise, with one or more entities ceasing to exist In competition law, the concept is broader, covering not only mergers but also acquisitions or takeovers, joint ventures, and other arrangements through which control is obtained.
According to the author Kovalkova M.V in his Ph.D thesis, economic concentration is implemented through reorganization procedures or contracts for the
24 United Nations Conference on Trade and Development (UNCTAD) (2018), “Model Law on Competition: Revised chapter VI”, https://unctad.org/meetings/en/SessionalDocuments/ciclpL10_en.pdf , Accessed 25 April 2021.
UNCTAD (2018) describes the concentration process as the aggregation of physical resources and managerial control to bolster the economic position of existing business entities; this consolidation can change how other market participants operate and alter the competitive dynamics within the relevant market.
The term “economic concentration” or “merger” under the legislation of other countries is also variably defined and approached For example:
Under the EC Merger Regulation No 139/2004, issued on 20 January 2004, a concentration is deemed to arise when there is a lasting change of control resulting from either (i) the merger of two or more previously independent undertakings or parts of undertakings, or (ii) the acquisition, by one or more persons already controlling at least one undertaking or by one or more undertakings, of direct or indirect control of the whole or part of one or more other undertakings, whether by the purchase of securities or assets, by contract, or by any other means.
Canada’s Competition Act, Article 91, uses the term "merger" rather than "economic concentration" to describe the acquisition or establishment of control—direct or indirect—by one or more persons through purchase or lease of shares or assets, by amalgamation or by combination, or by other means, resulting in control over or a significant interest in the whole or part of a business of a competitor, supplier, customer, or another person.
China's Anti-Monopoly Law does not provide a precise definition of concentration; instead, it outlines three scenarios that constitute concentration of undertakings: mergers between undertakings; control over other undertakings achieved by acquiring their shares or assets; and control or the ability to exert decisive influence over other undertakings through contracts or other means.
Similar to the Anti-Monopoly Law of the People’s Republic of China, Vietnam’s LOC 2018 does not provide a precise definition of economic concentration but instead sets out the operations that may be regarded as economic concentration According to the LOC 2018, economic concentration includes a defined list of categories, totaling 30.
26 Ковалькова М.В (2005), as cited in Pham Tri Hung and Ha Ngoc Anh (2014), supra note 20, p.20-21.
Regulation (EC) No 139/2004, known as the EC Merger Regulation, provides the European Union’s framework for the control of concentrations between undertakings to prevent anti-competitive market structures It defines when mergers and acquisitions fall within the scope of Community competition law (the Community or EU dimension) and requires notification to the European Commission for such concentrations before completion The Commission conducts a thorough assessment of whether a proposed merger would significantly impede effective competition, examining market structure, competitive dynamics, potential entry, and barriers to entry Depending on the findings, the Commission can approve the transaction with remedies or prohibit it, with decisions guiding the conduct of the merger and any required remedies to restore competition The Regulation also outlines procedural timelines, the involvement of Member States, and the possibility of remedies as conditions for clearance, ensuring cross-border mergers are evaluated consistently across the EU.
28 Article 91, Canada Competition Act, https://laws.justice.gc.ca/eng/acts/C-34/index.html , Accessed on 26 April 2021
29 Article 20, Anti-Monopoly Law of the People’s Republic of China (2007), http://english.mofcom.gov.cn/article/policyrelease/Businessregulations/201303/20130300045909.shtml , Accessed on 26 April 2021
An enterprise merger is a transaction in which one or more enterprises transfer all property, rights, obligations, and legitimate interests to another enterprise, while simultaneously dissolving the merging entities and terminating their separate existence.
ECONOMIC CONCENTRATION NOTIFICATION
Threshold for notification of economic concentration under the law of
2.1.1 Periodical adjustment of notification threshold
With respect to periodical adjustment of the notification threshold based on socio-economic development, the experience of Canada, the United States, and Belgium are relatively remarkable.
Under Canada's Competition Act, the Minister of Innovation, Science and Industry reviews the pre-merger notification threshold annually The threshold can be adjusted by GDP-based indexing or by regulation prescribing a different amount, or left unchanged For example, in 2020 the threshold remained at $96 million, unchanged from 2019 On February 11, 2021, the competent authorities announced that the 2021 pre-merger notification threshold would decrease to $93 million Mergers of all sizes across all sectors can be reviewed by the Commissioner of Competition, and the Competition Bureau administers these rules.
99 See Art 91, Part VIII – Matters Reviewable by Tribunal, Canadian
Competition Act, https://laws.justice.gc.ca/eng/acts/C-34/index.html , Accessed on 01
In 2021, the Government of Canada lowered the pre-merger notification transaction-size threshold to $93 million, as announced by the Competition Bureau The official update is detailed in the Government of Canada press release titled Pre-merger notification transaction-size threshold decreases to $93M in 2021 and can be read at https://www.canada.ca/en/competition-bureau/news/2021/02/pre-merger-notification-transaction-size-threshold-decreases-to-93m-in-2021.html, accessed June 1, 2021.
According to Government of Canada sources, the pre-merger notification transaction-size threshold remains at $96 million for 2020 In general, parties must give advance notice if the target’s assets in Canada or revenues from Canadian sales exceed $93 million, and if the combined Canadian assets or revenues of the parties and their affiliates in, from or into Canada exceed $400 million The Commissioner reviews these notifiable transactions to determine whether they are likely to substantially lessen competition The 2021 threshold will take effect on February 13, 2021 Regardless of whether a transaction is notifiable, the Commissioner can review and challenge all mergers prior to or within one year of closing.
Canada's threshold for notifying economic concentration is reviewed annually and adjusted using GDP-based formulas The drop in merger-review thresholds in 2021 reflected the country's economic contraction driven by government-imposed restrictions to curb the COVID-19 pandemic If the economy recovers in 2022, the notification thresholds are likely to increase again.
Under Section 7A of the Clayton Act, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, the Federal Trade Commission must revise the HSR thresholds annually based on changes in gross national product On February 2, 2021, the FTC—responsible for administering premerger notification requirements under the HSR Act—announced the new thresholds that become effective March 4, 2021 As part of the 2021 update, the minimum size-of-transaction threshold was reduced from $94 million to $92 million, and the update also includes other threshold adjustments.
102 Government of Canada (2021), supra note 101
103 International Comparative Legal Guides (ICLG) (2021), “Canada: Merger Control Laws and
Regulations 2021”, https://iclg.com/practice-areas/merger-control-laws-and-regulations/canada , Accessed on 01 June 2021
104 Justine Reisler (2021), “Canada: 2021 Merger Review Threholds”, https://www.mondaq.com/canada/antitrust-eu-competition-/1038504/2021-merger-review-thresholds ,
105 The Hart-Scott-Rodino Act requires premerger notification of transactions that satisfy the
“size of transaction” and “size of person” tests and are not otherwise exempt.
106 Federal Trade Commission (2021), “HSR threshold adjustments and reportability for 2021”, https://www.ftc.gov/news-events/blogs/competition-matters/2021/02/hsr-threshold-adjustments-reportability- 2021 , Accessed on 01 June 2021
107 Federal Trade Commission (2021), “Revised Jurisdictional Thresholds for Section 7A of the ClaytonAct”, https://www.federalregister.gov/documents/2021/02/02/2021-02110/revised-jurisdictional-thresholds- for-section-7a-of-the-clayton-act , Accessed on 02 June 2021
(i) The size-of-person test will decrease from $188 million to $184 million and from $18.8 million to $18.4 million, with respect to the required level of annual net sales or total assets;
Under the larger size-of-transaction threshold, which applies even if the size-of-person test is not met, the threshold will decrease from $376 million to $368 million As a result, acquisitions exceeding $368 million will be reportable regardless of whether the size-of-person threshold is met.
In Belgium, The Code of Economic Law regulates that the economic concentration control provisions only apply where: 108
(i) the undertakings concerned have a turnover of more than EUR 100 million in Belgium and,
(ii) at least two of the undertakings concerned each have a turnover of at least EUR 40 million in Belgium.
Under the Code, the Belgian Competition Authority must carry out an assessment of the two notification thresholds every three years, taking into account the economic impact and the administrative burden for undertakings The regular review stems from the 1990s flood of notifications regarding non-problematic economic concentration transactions that diverted resources from other enforcement activities due to thresholds with insufficient local nexus Consequently, national competent authorities pursued an impact analysis that concluded local turnover thresholds would reduce the number of notifiable transactions by approximately 80%, and the thresholds were amended in 1999.
The Belgium case demonstrates why promptly adjusting notification thresholds is essential in response to changing market dynamics To keep merger control effective, the national competition authority should conduct periodic reviews and re-evaluations of the thresholds for notifying economic concentration Without timely updates, these notification thresholds risk becoming outdated and less capable of capturing significant market mergers.
In summary, these countries all have provisions on adjustment of notification threshold periodically based on the changes of the social economy or gross national product These regulations are appropriate and necessary as they timely reflect
108 Belgin Competition Authority (2017), Evaluation of the notification thresholds for concentrations in
Belgium, https://www.belgiancompetition.be/sites/default/files/content/download/files/20170518_press_release_10_bc a.pdf , Accessed on 8 June 2021
109 Belgin Competition Authority (2017), supra note 109 changes in the economy, thereby supporting the competition control of the competent authorities to be implemented more adequately.
2.1.2 Control of transactions implemented outside the territory but having impacts on the domestic market
In the globalization context, all countries are trying to control economic concentration cases carrying outside the territory but having certain negative impacts on the local market Hence, the criteria to determine the notification threshold in order to control this type of transaction is essential To control such transactions through the economic concentration notification procedures is not easy and simple Therefore, for the national competition authority to efficiently control these transactions, it is crucial to determine the connection between such transactions or parties involved in such transactions and the internal market. Regarding this issue, the regulation of Canada is worth mentioning.
Under Canada’s Competition Act, certain transactions that exceed the Act’s thresholds must notify the Commissioner of Competition before completing an economic concentration These transactions cannot close until notice is given and the statutory waiting period under the Act has expired or has been terminated or waived by the Commissioner When both the transaction-size and party-size thresholds are exceeded, the transaction is notifiable.
Under the transaction-size threshold, a deal is triggered when the target’s assets in Canada or the revenues from sales in Canada generated from those assets exceed $93 million, a threshold lowered from $96 million in 2020.
Party-size threshold: For a transaction to meet the party-size threshold, the parties involved, together with their affiliates, must have assets in Canada or generate annual gross revenues from sales in, from, or into Canada that exceed $400 million.
Canada’s regulation of the economic concentration notification threshold is practical and applicable for screening transactions that are implemented outside Canada but affect the Canadian market By regulating the combined revenues in, from, or into Canada, the provision enables a comprehensive assessment of a firm’s power by capturing aggregate turnover across all lines of business Consequently, this approach helps to control economic concentration cases conducted abroad that have negative impacts on the domestic market.
110 Government of Canada (2021), supra note 101
2.1.3 Combining criteria to determine notification threshold
Effective notification regimes must balance reviewing the majority of economic concentration cases with keeping procedures affordable, predictable, fair, and reasonable for all stakeholders A regime that is too permissive can erode social welfare by permitting anti-competitive transactions, while one that is overly strict imposes high financial and administrative burdens on firms and the competition authority, potentially hampering welfare-enhancing concentration activity The optimal notification regime focuses on transactions with a significant potential for anti-competitive effects and a clear nexus to the economy, ensuring that economically meaningful cases are captured without creating unnecessary burden.
This issue can be addressed through a combination of notification threshold criteria In this regard, the legislation of the EU, China, and Turkey is worth learning.
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.
Detailed regulation of adjustments to the notification threshold in LOC 2018 should be informed by the experience of Canada, the United States, and Belgium The Vietnamese Government should establish a clear provision that sets specific timing or conditions for reviewing and adjusting the notification threshold The Government can empower the National Competition Authority to conduct annual or periodic assessments of whether the current thresholds remain appropriate to the country’s socio-economic development Experience from countries with frequent threshold reforms shows that a prudent policy and competition regime can incorporate regular threshold reviews Because the economy and the M&A market in Vietnam were significantly affected by the Covid-19 pandemic, a provision for periodic adjustment is necessary to ensure the thresholds reflect evolving socio-economic conditions.
Second, the LOC 2018 should specify the turnover threshold in detail to regulate transactions conducted outside Vietnam that nonetheless impact the domestic market, including cases where the involved enterprises have no commercial presence in Vietnam The Canadian framework under the Competition Act provides a valuable reference for this approach Building on that regulation, Vietnamese lawmakers can define turnover criteria that determine the notification threshold.
“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
The reference "the transaction, together with their affiliates in, from or into Vietnam"—as noted in 133 ICN (2008), supra note 124, p.13—provides the Vietnam Competition Authority (VCA) with a legal basis to regulate cross-border deals This framework enables the VCA to oversee cases involving entities connected to Vietnam, including major mergers such as the Gojek–Tokopedia merger, where affiliates operate in, from, or into Vietnam.
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
In the EU and China, the dual-turnover threshold is used to regulate transactions involving high-turnover firms by requiring that the aggregate turnover of at least two undertakings involved in the deal meets a defined threshold This means only deals where both parties reach a certain scale trigger notification and review, focusing regulatory attention on large, potentially market-distorting transactions This approach reduces the number of cases that must be notified while still capturing mergers with potential competitive restrictions among major players.
Imposing a market share threshold in mandatory control regimes wastes investigative effort and increases compliance risk, because many concentration deals hinge on market definitions that are difficult to establish and data on all market participants may be unavailable Consequently, several countries—Brazil, the Czech Republic, Poland, and Turkey—have eliminated market share criteria from their notification systems The ICN has concluded that a market share-based threshold is inappropriate for the initial determination of whether a transaction should be notified, though it may be suitable for later stages of the review The Grab–Uber case illustrates the irrationality of applying a market share threshold, as it creates challenges in defining the market and the relevant share Therefore, the market share criterion should be fully removed from notification systems to avoid wasting time, cost, and effort.
Chapter two analyzes the legislation of several countries that address the limitations of notification thresholds under LOC 2018 and offers recommendations for Vietnam based on these international experiences, highlighting the most effective approaches abroad and distilling actionable lessons Vietnam can apply to improve its notification regime under LOC 2018.
With regard to provisions for adjusting the notification threshold, Canada, the United States, and Belgium each provide for annual adjustments tied to changes in the social economy or gross national product Experience with frequent threshold reforms in some countries shows that well-designed policy and competition regimes can incorporate regular reviews and adjustments of thresholds Consequently, it is necessary to specify in detail how the notification threshold should be adjusted under LOC 2018.
Extraterritorial transactions conducted outside the territory but affecting the domestic market can be effectively addressed by Canada’s regulatory framework, which is regarded as practical and applicable for controlling such deals Drawing on this approach, Vietnamese lawmakers could set the notification threshold based on the total turnover of the parties to the transaction, including their affiliates in, from, or into Vietnam, ensuring that the full economic footprint of cross-border transactions is captured for review.
Drawing on the experience of the EU, China, and Turkey, a blended approach should be used to set the notification threshold for economic concentration These jurisdictions base thresholds on nationwide turnover, worldwide turnover, and a dual-turnover criterion to capture both local impact and global scale Vietnamese lawmakers might consider adopting a similar combination of nationwide and worldwide turnover, alongside a dual-turnover threshold, to determine when notification is required This multi-criterion framework aligns the threshold with firm size and market reach, supporting clearer rules and cross-border comparability.
Removing the market share notification threshold in mandatory control regimes reduces wasted investigative effort and lowers compliance risk Many countries have eliminated this threshold from their notification systems, reflecting a shift toward simpler and more effective enforcement Vietnamese lawmakers should consider removing the market share threshold from notification requirements to align with international practice and strengthen antitrust oversight.
Following 14 years under LOC 2004, the promulgation of LOC 2018 marks a breakthrough in the economic concentration control regime, especially in the notification thresholds The core change is that prohibiting or approving a transaction is no longer determined solely by market share; thresholds now rest on total assets, total sale or purchase volume, transaction value, and market share This approach reflects practical economic analysis and aligns with global best practices, contributing to a healthy and sustainable business environment The adjustment also demonstrates innovation in the legal mindset of Vietnamese lawmakers and aligns with international standards.
Against the backdrop of globalization and economic integration, adjusting notification thresholds is both necessary and appropriate, as it helps create a sustainable legal framework, fosters a healthy business environment, and attracts foreign investment While the LOC 2018 mitigates many of the rigidity and issues of the LOC 2004, it still presents several limitations within the updated framework regarding notification thresholds that warrant attention To improve Vietnamese regulations on thresholds for the notification of economic concentration, it is essential to analyze and learn from the experiences of advanced foreign jurisdictions with long, developed legal histories.
Drawing on the experience and practice of other economies, this analysis recommends Vietnam strengthen its economic concentration control regime, with a particular emphasis on the notification threshold for mergers and acquisitions Vietnamese lawmakers should consider recalibrating thresholds to reflect market dynamics, transaction types, and potential competitive harm, and establish clear, predictable criteria for when a review is required The reform should improve the efficiency and transparency of merger assessments, align Vietnam’s standards with international best practices, and tailor them to domestic conditions, while reducing unnecessary compliance costs It should also strengthen enforcement, enhance post-notification monitoring and remedies, and safeguard consumer welfare to preserve a competitive and growth-oriented economy.
First, specify in detail how the notification threshold under LOC 2018 should be adjusted Lessons from countries that frequently reform thresholds show that effective policy benefits from regular review and recalibration of thresholds to reflect evolving conditions and policy goals.
Second, Vietnamese lawmakers could consider regulating the turnover criterion used to determine the notification threshold to include the total turnover of all parties to a transaction, together with their affiliates, in, from, or into Vietnam This approach captures the full economic footprint of the deal by including affiliated entities, ensuring the threshold reflects the true market impact of cross-border activity Such reform would align the notification regime with modern transaction dynamics and enhance regulatory oversight.
Third, it is recommended to consider using the combination of nationwide and worldwide turnover as well as the dual-turnover threshold to set the turnover- based notification threshold.