Threshold for notification of economic concentration under the law of vietnam and lessons from international experience

BẠCH NGỌC VÂN BACHELOR THESIS 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 NOTI[.]

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF LAW

LAW OF VIETNAM AND

LESSONS FROM INTERNATIONAL EXPERIENCE

BACHELOR THESIS Faculty: Commercial Law School year: 2016 - 2021

HO CHI MINH CITY

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF LAW

LAW OF VIETNAM AND

LESSONS FROM INTERNATIONAL EXPERIENCE

BACHELOR THESIS Faculty: Commercial Law School year: 2016 - 2021

Supervisor: LLM Nguyen Thi Phuong HaStudent: Bach Ngoc Van

Student ID: 1651101030163Class: 74-CLCQTL4

HO CHI MINH CITY

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 theCompetition law 2018

ICLG International Comparative Legal Guides

OECD Organization for Economic Cooperation and

Development

UNCTAD United Nations Conference on Trade and

Development

VCCA Vietnam Competition and Consumer Authority

TABLE OF CONTENTS

INTRODUCTION 1

1 Problem statement 1

2 Literature review 3

3 Purpose of the study 5

4 Objectives and Scope of the study 6

4.1 Objectives of the study 6

4.2 Scope of the study 6

5 Research methodologies 6

6 Thesis structure 7

CHAPTER 1 THRESHOLD FOR NOTIFICATION OF ECONOMIC CONCENTRATION UNDER VIETNAMESE LAW 8

1.1 Theoretical issues relating to economic concentration 8

1.1.1 Definition and nature of economic concentration 8

1.1.2 Definition and meaning of notification threshold for economic concentration 13

1.2 Threshold for notification of economic concentration under the Law on Competition 2018 15

1.2.1 Regulations on notification thresholds under the Law on Competition 2018 15

1.2.2 The limitations of notification threshold regulations under the Law on Competition 2018 22

CONCLUSION OF CHAPTER 1 28

CHAPTER 2 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 2 40

THESIS CONCLUSION 41

1 Problem statement

In the trend of globalization and economic integration, the wave of mergersand acquisitions (M&A) in developed and developing countries is rising rapidly Inthe United Kingdom (the UK), between 1986 and 1989, approximately 5,200industrial and commercial companies implemented M&A.1 M&A activities in theUnited States (the US) initiated in the early 20th century following with a promptexpansion in the 1980s.2 In Vietnam, since the Law on Enterprise 1999 came intoeffect, corresponding M&A activities have been concerned and become active inrecent years with immense growth in both quantity and value.3 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 casesincreased significantly up to 11.13 billion USD.4 The Institute of Mergers,Acquisitions, and Alliances (IMAA) statistics recorded that in 2015, Vietnamexecuted 341 M&A cases with the total value up to 5.2 billion USD, followed bymore than 611 M&A deals accounted for 5.8 billion USD in 2016.5 The market size

in 2017 increased nine times compared to 2008 In 2017 alone, the total value ofM&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, inthe past ten years, there have been nearly 4,000 deals, with a total value of about48.8 billion USD

Economic concentration transactions, especially M&A, have acceleratedenormously all over the world Economic concentration is a form of capitalaccumulation that contributes to growing enterprises’ value In the open economy,

1 Nguyen Thuong Lang, Nguyen Thi Quynh Nhu, “Một số vấn đề về sáp nhập, mua lại doanh nghiệp và 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

3Nguyen Thi Viet Nga (2019), “Triển vọng hoạt động mua bán và sáp nhập doanh nghiệp tại Việt Nam”

(Prospects of mergers and acquisitions in Vietnam), Financial Journal, kinh-doanh/trien-vong-hoat-dong-mua-ban-va-sap-nhap-doanh-nghiep-tai-viet-nam-301760.html , Accessed

https://tapchitaichinh.vn/tai-chinh-on 25 March 2021

4Vietnam Competition and Consumer Authority (VCCA) (2015), Tổng quan về 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 tại Việt Nam” (Actual

situation of mergers and acquisitions in Vietnam), Business and Finance Journal, p.85

6Hien Minh (2018), “M&A tại 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/Thi- truong/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 fiercecompetition This constitutes to establish highly competitive enterprises andimprove the competing capability of an economic branch.7 In general, economicconcentration activities enhance the existing financial and operation power of onecompany by hunting synergy gains.8 For instance, merging two companies’cooperation into one big enterprise can enlarge their business scale, boostcompetition ability, cut down on costs, and optimize financial capacity However,

“as the economic concentration is a reality more and more well-defined in thecontext of economic development, it increases the dimensions of the companies andsets 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 asolid and reasonable legal framework to assess and control the economicconcentration transactions which seriously affect the competition landscape Morethan 146 jurisdictions in the world currently have certain forms of economicconcentration control regime under their antitrust laws.10 One of the practical toolsfor economic concentration control is a notification system Without exception, theVietnamese competition law adopts a mandatory ex-ante notification system.11

On 12 June 2018, the Vietnamese Government issued the new Law onCompetition 2018 (hereinafter referred to as LOC 2018), which replaced the oldversion of Law on Competition 2004 (hereinafter referred to as LOC 2004), andtook effect on 1 July 2019 The LOC 2018 has brought new regulations that aremore suitable and applicable in Vietnam’s current competition environment, therebyimproving the old LOC 2004’s limitations, especially those related to economicconcentration12 and notification threshold However, the new regulations on thenotification threshold in the LOC 2018 remain certain drawbacks that may causeseveral challenges, especially in terms of applicability Such deficiencies areassociated with not only competent authorities but also enterprises

Firstly, in the context of developing countries like Vietnam, the new law

7Ha 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

8Hoang 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

International Research Handbook on Competition Law, Ariel Ezrachi, p.1

11 Hoang Le Uyen Phuong (2020), supra note 8, p.27

12 Organization for Economic Cooperation and Development (OECD) (2018), “OECD Peer Reviews of Competition Law and Policy: Viet Nam”, https://www.oecd.org/daf/competition/VietNam-OECD- Competition-Review-2018-ENG.pdf , Accessed on 25 March 2021, p 11

setting up several factors for economic concentration control can put lots ofpressure on the National Competition Commission (known as Vietnam’s principalcompetition authority and hereinafter referred to as NCC) because there will be agrowing number of economic concentration cases that must be notified to the NCC.However, the NCC was yet to be formally established In other words, theVietnamese competition authority is considered “immature” and lacking experience.Therefore, it is necessary to assess whether all the economic concentrationnotification threshold criteria are applicable enough Otherwise, theunreasonableness is a potential burden on NCC and might negatively affecteconomic development.

Secondly, in the current era of globalization, countries are making an effort to

control economic concentration cases implemented in foreign countries but have anadverse impact on domestic competition Hence, the criteria defining thresholds tonotify economic concentration cases need to ensure these transactions areappropriately controlled.13 Yet, the regulations under the LOC 2018 do not controlsuch 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

2 Literature review

As the LOC 2018 came into effect, many studies on the economicconcentration control regime have been recorded However, the challenges andlimitations of the new regulations on the economic concentration notificationthreshold have not been profoundly researched

Ha Thi Thanh Binh (2019), “Thông báo tập trung kinh tế trong pháp luậtcạnh 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 theregulations of Vietnam The author then expands researching other selectedcountries on notification threshold and criteria to determine the anti-competitiveeffects of economic concentration undertakings, thereby proposing somerecommendations 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 7

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 effectiveeconomic concentration control, which comprises notification threshold, assessment

of substantial anti-competitive effects caused or potentially caused, assessment ofpositive effects, preliminary assessment, and official assessment By evaluating suchcriteria, some recommendations for controlling economic concentration efficientlywere indicated Thus, the thesis has not in-depth focused on notification thresholdand challenges in terms of applicability for both 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

Competition regarding economic concentration control for M&A activities in thecurrent period), Master Thesis, Ha Noi University of Law: This thesis analyzes andcompares the situation of M&A in Vietnam and the application of the LOC 2018 toassess the regulations under the LOC 2018 Thereby the author provides generalrecommendations based on the analysis to complete the economic concentrationcontrol 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 mới trong các quy đinh của luật cạnhtranh năm 2018 về kiểm soát tập trung kinh tế” (New points in the provisionsregulating 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 ofthe LOC 2018 by comparing with the provisions of the LOC 2004 to enlighten thevitality of amendment The author Tran Linh Huan appreciates the progressivechanges in Vietnam’s Competition Law However, the study has not yet been deeplyresearched on the notification threshold for economic concentration, theapplication’s challenges, and the remaining shortcomings

Hoang Minh Chien (2019), “Kiểm soát tập trung kinh tế theo Luật Cạnhtranh 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) Economicconcentration 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 aswell as correlation In addition, the author points out some new provisions in theLOC 2018, which overcome some limitations of the LOC 2004 and gain experience

of advanced countries’ legal control over economic concentration Hence, thenotification threshold has not been researched in this paper

Mai Nguyen Dung (2020), “Áp dụng chỉ số HHI trong pháp luật về tập trungkinh tế tại Hoa Kỳ, Liên minh châu Âu – Một số đề xuất cho pháp luật canh tranhViệt 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 calculationformulas, advantages and drawbacks of the HHI measure The paper introduces therelevant legislation concerning this index in the US and the EU, thereby proposingsome suggestions to improve the Vietnamese Competition Law relating to the HHIindex in evaluating economic concentration However, this research is writtenmainly based on the Draft of the LOC 2018, and at the time, the Decree35/2020/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

3 Purpose of the study

This thesis aims to analyze the Vietnamese regulations on economicconcentration notification threshold under the LOC 2018 to point out noticeablelimitations of the current framework, thereby providing recommendations forimprovement 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-CP14 havenot addressed

Second, analyze the selected foreign countries’ regulations on economicconcentration control regimes to find the solutions for the challenges andinadequacies 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)

Third, offer problem-solving recommendations based on the experiences learned from other legislations’ competition law regarding notification thresholds.

4 Objectives and Scope of the study

4.1 Objectives of the study

The regulations and provisions relating to the economic concentrationnotification threshold under the LOC 2004, the LOC 2018, and the Decree35/2020/ND-CP

The regulations and provisions relating to economic concentrationnotification threshold under the competition law of Canada, the US, the EuropeanUnion (EU), China, Turkey, Belgium, and Brazil

4.2 Scope of the study

The thesis studies on the notification threshold for economic concentrationregulated in Vietnamese LOC 2018 and the Decree 35/2020/ND-CP as the existingstructure Other related specialized laws will not be under the scope of this thesis.Also, this thesis concentrates on researching foreign countries’ legislations oneconomic concentration notification threshold, including Merger RegulationNo.139/2004 of the European Commission (EC); Competition Act of Canada; Anti-Monopoly Law of the People’s Republic of China; Clayton Act, as added by theHart-Scott-Rodino Antitrust Improvement Act of the US; Code of Economic Law ofBelgium; Communiqué concerning the mergers and acquisitions calling for theauthorization of the Competition Board (Communiqué No: 2010/4) of Turkey;Competition Act of Brazil

In terms of this study’s limitation, this thesis will concentrate on thenotification threshold for economic concentration, the importance, the purpose ofnotification threshold, the breakthroughs of the LOC 2018 on notification thresholdfollowed with the remaining drawbacks Thus, this thesis will not discuss any issuesrelating to the assessment of substantial anti-competitive effects caused orpotentially caused, assessment of positive effects, preliminary assessment, officialassessment, procedure, national competition authority, sanctions, and leniencypolicy

5 Research methodologies

Throughout the thesis, the author will utilize three main research methods:analytical, comparative, and synthetic These three research methods are determinednot to be set to isolation but in interweavement

The analytical method is conducted primarily in Chapter 1 to record the

achievement of new regulations of the LOC 2018 on notification threshold and pointout the feasible limitations that could cause a burden on competent authorities andeconomic development However, the analytical method is also applied in Chapter 2for analyzing other countries’ legislations.

The comparative method is implemented for comparing the LOC 2004 andthe LOC 2018 (in Chapter 1), thereby emphasizing the significance and necessity ofthe amendment included in the LOC 2018 to the matter of economic concentrationnotification threshold In Chapter 2, the comparative method is essential to beapplied in comparing the competition legislation of Vietnam and other countries topropose recommendations

The synthetic method is used to synthesize analyses and comparisons,thereby clarifying problems to be solved from a legal perspective and offeringrecommendations

6 Thesis structure

This thesis comprises two chapters as follows:

Chapter 1 Threshold for notification of economic concentration under Vietnamese law

Chapter 2 Economic concentration notification threshold under the selected legislations and recommendations for Vietnam

CHAPTER 1 THRESHOLD FOR NOTIFICATION OF ECONOMIC

CONCENTRATION UNDER VIETNAMESE LAW

This chapter will introduce the notification threshold of economicconcentration under the Vietnamese Law by first clarifying the theoretical issuesrelating to economic concentration and notification threshold Subsequently, thischapter will analyze the regulations on notification threshold under the LOC 2018

of Vietnam, thereby acknowledge the achievement and point out the limitationsunder this framework

1.1 Theoretical issues relating to economic concentration

1.1.1 Definition and nature of economic concentration

The concept of economic concentration is approached and defined by severallegal researchers and economists worldwide According to the OECD Glossary ofIndustrial Organization Economics and Competition Law,15 concentration “refers to theextent to which a small number of firms or enterprises account for a large proportion ofeconomic activity such as total sales, assets or employment.” There are at least fourdistinct concepts embodied within this term: (i) Aggregate concentration16, (ii) Industry

or Market Concentration,17 (iii) Buyer concentration,18 and (iv) Ownershipconcentration.19 In the field of economics and legal science in Vietnam, the concept ofeconomic concentration is considered industry or market concentration.20 However, inthe book “A Framework for the Design and Implementation of Competition Law andPolicy”21 issued by the OECD, a specific

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

16 Aggregate concentration which measures the relative position of big companies in the economy This measure has economists, sociologists and political scientists mainly in the context of theories relating to actual (and potential) economic-political power which big business may be able to exercise because of their economic importance in a country/industrial sector/geographic region.

17 Industry or Market Concentration (also often referred to as seller concentration) which measures the relative position of large enterprises in the provision of specific goods or services such as automobiles or mortgage loans.

18 Buyer Concentration which measures the extent to which a large percentage of a given product is purchased by relatively few buyers

19 Ownership Concentration which measures the extent to which shares of stock exchange listed companies are widely or narrowly (closely) held This concept is often extended to describe the wealth or control of corporate assets among individual families or business entities.

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

21 OECD (1999), “A Framework for the Design and Implementation of Competition Law and Policy”,

https://www.oecd.org/regreform/sectors/aframeworkforthedesignandimplementationofcompetitionlawandpoli cy.htm , Accessed on 22 May 2021

chapter22 refers to economic concentration under the name Mergers According tothe chapter Mergers, companies can combine in several ways One enterprise mightpurchase from another enterprise all or part of its outstanding securities, all or part

of its operating assets Alternatively, two enterprises can exchange securities toestablish one enterprise “Such transactions may be the result of an agreementbetween two firms, or the takeover may be unsolicited, unexpected, or even

“hostile”- that is, resisted by the target company Established practice has been label

“any transaction in which two independent actors are combined into one” a merger,resulting in the strengthening of one actor and elimination of the other.”23 Thischapter demonstrates that the common approach to economic concentration isthrough the activities of mergers and acquisitions that are associated with theconcept of centralized market power

The Model Law on Competition of United Nations Conference on Trade andDevelopment (UNCTAD)24 does not introduce a specific definition of economicconcentration Still, it utilizes the term “mergers and acquisitions,” which “are anintegral part of economic activities today From an economic perspective, differenttypes of mergers can be distinguished according to their motivation” This documentalso states that the terms “concentration” and “merger” can be used interchangeably.The term “concentration” can be used to (i) describe the acquisition of control overanother undertaking through merger and acquisition activity or otherwise, or (ii)describe the number of players in a given market (the concentration is at a high levelwhen there are few players in the market the concentration is at a low level whenthere are numerous market players) In comparison, the term “merger” isapproached from two legal perspectives, namely corporate law and competition law

In corporate law, the term “merger” is generally defined as a fusion between two ormore independent enterprises, whereby the existence of one or more disappears andthe result is one single enterprise In competition law, this term is more broadlyutilized than in corporate law The term can comprise an acquisition or takeover, ajoint venture, or even other acquisitions of control.25

According to the author Kovalkova M.V in his Ph.D thesis, economicconcentration is implemented through reorganization procedures or contracts for the

22 OECD (1999), supra note 21, p.41-68.

23 OECD (1999), supra note 21, p.41

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.

25 UNCTAD (2018), supra note 24

process of concentrating physical resources and management to consolidate theeconomic position of the existing business entities, which may have an impact onthe business activities of other entities or the relevant market.26

The term “economic concentration” or “merger” under the legislation ofother countries is also variably defined and approached For example:

The Merger Regulation No.139/2004 of the EC issued on 20 January 2004defines that “a concentration shall be deemed to arise where a change of control on

a lasting basis results from: (i) the merger of two or more previously independentundertakings or parts of undertaking, or (ii) the acquisition, by one or more personsalready controlling at least one undertaking, or by one or more undertakings,whether by the purchase of securities or assets, by contract or by any other means,

of direct or indirect control of the whole or parts of one or more otherundertakings.27

The Competition Act of Canada Article 91 does not use the term “economicconcentration” but the term “merger” to demonstrate “the acquisition orestablishment, direct or indirect, by one or more persons, whether by purchase orlease of shares or assets, by amalgamation or by combination or otherwise, ofcontrol over or significant interest in the whole or a part of a business of acompetitor, supplier, customer or another person.”28

The Anti-Monopoly Law of the People’s Republic of China does not give aspecific definition of concentration but provides a list of situations where theconcentration of undertakings means (i) merger of undertakings; (ii) control overother undertakings gained by undertaking through acquiring their shares or assets;and (iii) control over other undertakings or the ability capable of exerting a decisiveinfluence on the same gained by an undertaking through signing contracts or othermeans.29

Similar to the Anti-Monopoly Law of the People’s Republic of China, theLOC 2018 of Vietnam does not provide such specific definition but provides a list

of operations which can be considered as economic concentration According to theLOC 2018, economic concentration includes the following categories:30

26 Ковалькова М.В (2005), as cited in Pham Tri Hung and Ha Ngoc Anh (2014), supra note 20,

p.20-21.

27 Article 3, Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations

between undertakings (the EC Merger Regulation), https://eur-lex.europa.eu/legal- content/en/ALL/?

uri=CELEX%3A32004R0139 , Accessed on 25 April 2021

28Article 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

30 Article 30, the LOC 2018

Merger of enterprises means an act whereby one or several enterprises

transfer all its/their property, rights, obligations, and legitimate interests to anotherenterprise, and at the same time terminate the existence of the merged enterprises

Consolidation of enterprises means an act whereby two or more enterprises

transfer all of their property, rights, obligations, and legitimate interests to form anew enterprise and, at the same time, terminate the existence of the consolidatingenterprises

Acquisition of enterprises means an act whereby an enterprise acquires the

whole or part of property or shares of another enterprise sufficient to control ordominate all or one of the trades of the acquired enterprise

Joint venture between enterprises means an act whereby two or more

enterprises jointly contribute part of their property, rights, obligations, andlegitimate interests to establishing a new enterprise

Apart from the categories mentioned above of economic concentration, the

LOC 2018 also leaves open the possibility of other forms of economic

concentration prescribed by law.

This listing has clarified the forms of economic concentration In practice,the economic concentration can be performed by acquiring or dominating otherbusinesses through the activities of the stock market, the capital market Thus, it isnot coincidental that enterprises or securities law regulates the issue of limiting thepercentage of capital contribution to a business or the rate of ownership that eachinvestor can acquire So other forms of investment in companies, to a certain extent,can be considered as another form of economic concentration.31

To summarize, economists define economic concentration via M&Aactivities of businesses, while some scientific researchers prefer the term “mergers”

In some countries, there has not been a concrete definition, but discrepantcircumstances were listed relating to the concentration of undertakings Despitevarious approaches of defining, economic concentration could be considered asenterprises’ activities, which may restrict or distort competition Such activities arebusiness tools in order to overcome the market’s fierce competition and enable firms

to strengthen their market power, expand the scope of business, and develop newproduct lines The result of economic concentration is the formation and change inthe market structure

31 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 ở Việt Nam (Legislation on

economic concentration control in Vietnam), Ph.D thesis, Ho Chi Minh City University of Law, p.52)

From the above statement, there are several ways to approach and define theterm “concentration” or “merger” Despite different perspectives and opinions undervarious legislations, the nature of economic concentration can be described asfollows:

First, the subjects of economic concentration are the enterprises operating in the

market The enterprises participating in economic concentration can be operating in thesame or not the same relevant market.32 However, depending on the legislation of eachcountry, there are certain requirements For example, the LOC 2018 regulates that thescope of enterprises includes organizations and individuals doing business activities(hereinafter referred to as enterprises).33 However, it does not mean that not allenterprises can participate in economic concentration The limit on subjectsparticipating in economic concentration depends on the provisions of Law onEnterprises.34 For example, joint-stock companies, limited liability companies, andpartnerships are subjects of a merger or a consolidation.35

Second, the typical forms of economic concentration include merger,

consolidation, acquisition, and joint venture between businesses Enterprises canaccumulate capital to gain considerable market power but this process takes a longperiod of time to obtain Whereas the economic concentration, which alsodemonstrates signs of accumulation, is not the result gained from business activitiesbut from business behaviors.36 This sign helps legal science to distinguish economicconcentration from capital accumulation in economics.37

Third, the result of economic concentration is the formation of a company

with a higher competitive capacity and enormous market power, or the associationinto groups of businesses and economic groups, which leads to the change in marketstructure and existing competitive correlation in the market.38 Particularly, mergersand consolidations will change the market structure by reducing the number ofexisting enterprises Acquisitions or joint ventures will form the connection betweenindependent companies under the ownership model to create a group-style

32 VCCA (2009), Economic concentration report in Vietnam: Current situation and forecast, Ha

Noi, p.14

33 Article 2.1, the LOC 2018

34 Ministry of Industry and Trade (MOIT) (2018), Báo cáo kinh nghiệm quốc tế: Kinh nghiệm quốc

tế về các quy định kiểm soát tập trung kinh tế để xây dựng hướng dẫn chi tiết thi hành các quy định về tập trung kinh tế trong luật cạnh tranh 2018 của 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),

te_81540499.pdf, Accessed 27 April 2021

ttp://st.aus4reform.org.vn/staticFile/Subject/2019/01/08/kinh-nghiem-quoc-te-ve-kiem-soat-tap-trung-kinh-35 Article 199 and Article 200, Law on Enterprises 2020

36 Hoang Le Uyen Phuong (2020), supra note 8, p.11

37 VCCA (2009), supra note 32, p.15

38 Le Vu Quynh Trang (2014), Hoàn thiện pháp luật Việt Nam về kiểm soát tập trung kinh tế (Completing

Vietnam’s law on economic concentration control), Master Thesis, Hanoi Law University, p.7

business Whether the concentration is implemented through the model ofaccumulation or linking business competency will ultimately change thecompetitive landscape in the market Because at this time, the market suddenlyappears enterprises or groups of enterprises with tremendous business potentialwithout going through the capital accumulation process As a result, the position ofthe remaining enterprises will decrease.39

1.1.2 Definition and meaning of notification threshold for economic concentration

One of the fundamental pillars of a competition system is the control ofeconomic concentration, together with the antitrust rules, which prohibit collusiveagreements and abuses of dominant position companies.40 Since it is difficult andcomplicated to determine the effects of concentration on the market’s competition, acontrol policy is an essential and costly mission of the legal system in everycountry In order for the competition authorities to improve the economicconcentration operation assessment, it is vital to set up a notification system for suchbusiness operations “There are many existing designs; some are voluntary andothers mandatory, while some are a priori (based on a prospective analysis) andothers, fewer in number, are ex-post There are also mixed regimes.”41

According to the Model Law on Competition of UNCTAD, the notification is

a “must” when the mergers, takeovers, joint ventures, or other acquisitions ofcontrol, including interlocking directorships, whether it’s a horizontal, vertical, orconglomerate nature meet the following criteria: (i) At least one of the enterprises isset up within the nation, (ii) The resultant market share in the country, or anysubstantial part in the nation, referring to any service or product, is likely to createmarket power, especially in the high degree of market concentration industries,where the entry barriers are high and lack substitutes.42

In terms of the threshold for notification of economic concentration, thethresholds are utilized “to determine the scope of economic concentration control asthey identify transactions with economic significance that could potentially harmcompetition.”43 On this issue, the competition control regimes need to be designed

39 Economics and Law University (2010), Competition Law Curriculum, Publisher Ho Chi Minh city

National University, p.150

40 UNCTAD (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 , Accessed on 27 April 2021

41 UNCTAD (2017), supra note 40, p.6

42 UNCTAD (2018), supra note 24, p.2

43 World Bank (2018), “Merger control: Policy guidance to strengthen the Indonesian competition framework”, http://documents1.worldbank.org/curated/pt/318741540796956792/pdf/131397-WP-PUBLIC- 2018-WBG-Merger-Note-Indonesia.pdf , Accessed on 30 April 2021

to accurately identify several factors such as the applicable timeframe and thepractical measurement tool, which could be assets, sales, turnover, the geographicscope to which the measurement tool is to be applied, for instance, national orworldwide.44

In summary, the threshold for notification of an economic concentration isthe threshold at which enterprises participating in an economic concentration mustnotify the national competition authority if their transactions reach or exceed thethreshold Notification thresholds are often set by national competition authoritiesbased on the socio-economic situation of each country In practice, there are severalcategories of notification threshold: some are voluntary and others mandatory, whilesome are a priori and others are ex-post, and there are also mixed regimes

The notifications bring concentration to the national competition authorities’attention and facilitate the economic concentration control enforcement Theobligations to notify economic concentration transactions differ across the law oncompetition regimes These variations fall into three broad categories: (i) mandatoryex-ante regimes that mandate notification before the implementation of atransaction, (ii) mandatory ex-post regimes that permit parties taking part in atransaction to notify the competent authority after the completion of an economicconcentration transaction, (iii) voluntary regimes that let the concerned partiesdecide whether to notify or not.45 Most countries have set up a mandatory ex antenotification threshold.46 And Vietnam also has adopted this approach to controleconomic concentration transactions

The roles of setting up threshold for notification of economic concentrationare:

First, the notification threshold’s primary purpose is “to identify the most

anti-competitive effects, to have the possibility to correct problems and to allocateresources efficiently.”47 However, unlike the market power abuses and anti-competitive agreements that are ex-post investigates, the concentration notificationthreshold provides competition authorities chances to assess before any economicconcentration cases re-implemented Thus, it helps the competent jurisdictionprevent any ex-ante potential damage to the consumers and the market.48

44 International Competition Network (ICN) (2017), “ICN Recommended Practices for Merger Notification and Review Procedures”, https://www.internationalcompetitionnetwork.org/wp

content/uploads/2018/09/MWG_NPRecPractices2018.pdf , Accessed on 30 April 2021

45 UNCTAD (2018), supra note 24, p.7

46 World Bank (2018), supra note 43

47 UNCTAD (2017), supra note 40, p.9

48 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

Second, the notification threshold helps to eliminate the economic

concentration cases that do not cause anti-competitive effects on the market, therebyreducing procedural and transaction costs for the enterprises and cutting down onresources Setting the level of the notification threshold is crucial to well-functioning economic concentration control systems If the competent authority setsthe notification thresholds too high, there is a number of anti-competitivetransactions evading economic concentration control scrutiny But if the thresholdsare set too low, there might be an excessive number of notifications, which wouldimpose unnecessary costs on parties involving in economic concentrationtransactions and the authorities.49

Third, the notification threshold helps to create a fair market, especially for

small and medium enterprises But for the regulations on notification threshold,large enterprises might conduct economic concentration in order to gain a dominantposition in the market, thereby raising higher entry barriers to eliminate small andmedium competitors In other words, setting up the threshold for economicconcentration notification facilitates competition and protect consumers

To conclude, the ultimate objective in setting notification thresholds is tominimize the number of economic concentration notifications that raise nocompetition concerns while simultaneously capturing the maximum number ofeconomic concentration cases that raise competition concerns.50 Hence, it isnecessary to establish the notification threshold to be coherent, accessible and based

on objectively quantifiable criteria to allow enterprises to determine whethereconomic concentration transactions must be notified

1.2 Threshold for notification of economic concentration under the Law

49 OECD (2016), “Local Nexus and Jurisdictional Thresholds in Merger Control”,

https://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/WP3(2016)4&docLa nguage=En , Working Party No.3 on Cooperation and Enforcement, p.7

50 Gavin Roberts (2014), “Merger Control Procedure and Enforcement: An International

Comparison”, , European Competition Journal, No (10)/2014, p.523-524.

turnover, transaction value, and combined market share.51 In detail, the guidingdecree for the LOC 2018 (hereinafter referred to the Decree 35/2020/ND-CP)introduces two sets of jurisdictional thresholds: (i) the threshold applicable totransactions in virtually all sectors, and (ii) the other reserved for transactionsrelating to insurance, securities, and credit.52

Contemplated economic concentration transactions, except for ones in thefields of insurance, banking, or securities, must be notified to the competentauthorities if any of the following thresholds are met:53

(i) Total asset available in the Vietnamese market of a company or a group ofaffiliated companies of which the company is an affiliate must be worth VND 3,000billion or more in the fiscal year preceding the planned year of economicconcentration;

(ii) Total sales or purchase volume arising in the Vietnamese market of acompany or a group of affiliated companies of which the company is an affiliatemust be worth VND 3,000 billion or more in the fiscal year preceding the plannedyear of economic concentration;

(iii) Value of all economic concentration transactions must be worth at least VND 1,000 billion;

(iv) The joint market share of the enterprises intending to participate in theeconomic concentration program must account for at least 20% of total share of therelevant market in the fiscal year preceding the planned year of economicconcentration

It is noted that in case economic concentration regimes are conducted outside

of Vietnam’s territory, only the third threshold (i.e transaction value) can be

disregarded.54

Regarding sector-specific thresholds, contemplated transactions, includingcredit institutions, insurance companies, and securities, have significantdiscrepancies compared with general thresholds Accordingly, the economicconcentration transactions, which are conducted by these certain entities must benotified if they cross any of the following thresholds:55

51 Article 33.2, the LOC 2018

52 Article 13, Decree 35/2020/ND-CP

53 Article 13.1, Decree 35/2020/ND-CP

54 Article 13.3, Decree 35/2020/ND-CP

55 Article 13.2, Decree 35/2020/ND-CP

Criteria Threshold value

Insurance Securities Credit institutionsenterprises enterprises

Total assets of VND 15,000 billion or more in at least 20% of totaleither undertaking the fiscal year preceding the asset of the entire

in the transaction plannedyear of economic system of credit

economic concentrationTotal sales or VND 10,000 VND 3,000 at least 20% of totalpurchase turnover of billion or more billion or more sales earned in the entireeither undertaking in the fiscal in the fiscal year system of credit

in the transaction or year preceding preceding the institutions in the fiscalgroup of affiliated the planned planned year of year preceding the

which it belongs economic concentration economic concentration

concentrationTransaction value of at least VND 3,000 billion at least 20% of total

the fiscal year precedingthe planned year ofeconomic concentrationCombined market at least 20% of the total share of the relevant market in theshare on the fiscal year preceding the planned year of economic

relevant market of concentration

the parties to the

transaction in the

fiscal year before

the year of filing

In addition, there are other relevant regulations for economic concentration inspecific sectors For example, the Law on Insurance Business 2000 (amended in2010), Law on Credit Institutions 2010, and Telecommunications Law 2009comprise certain regulations on economic concentration transactions in the sectors,namely insurance, telecommunications, as well as finance, respectively Theseprovisions do not override the economic concentration control regime under theLOC but rather exist in tandem with the latter In particular, regarding insuranceservices, the Law on Insurance Business regulates that it is the requirement to obtainwritten approval from the Ministry of Finance when an insurer: (i) transfers shares

of contributed capital amounting to at least 10% of its charter capital; (ii)restructures by way of merger, division, consolidation, dissolution or conversion oflegal form or (iii) makes an offshore investment.56 Similarly, in terms of financialservices, the Law on Credit Institutions states that when a credit institution isrestructured via division, demerger, consolidation, merger, acquisition, orconversion of legal form, the State Bank of Vietnam’s written approval isrequired.57

The regulations on notification thresholds are one of the important ways tocontrol economic concentration effectively Threshold for notification of economicconcentration could help to prevent consumer harm from anti-competitivetransactions what likely would reduce competition among rival firms and/orforeclose competitors

In comparison with the LOC 2004, the new LOC 2018 has demonstrated apotent combination between economic and legal mindsets The LOC 2018 hasaddressed some limitations of its predecessor, especially in economic concentrationcontrol Among various amendments and additions, the LOC 2018 renewed theapproach and control of economic concentration behaviors This new approach isthe result of applying many methods of economic analysis following the worldwidetrend Therefore, it has made an outstanding contribution to building a healthy andsustainable business environment.58 Generally, the new provisions regarding thenotification thresholds under the LOC 2018 are considered in line with theinternational practices as well as developed countries’ economic concentration

56 Art.69.1.e, 69.1.h, the Law on Insurance Business 2000 (as amended)

57 Art.153.1, the Law on Credit Institutions 2010 (as amended)

58 Tran Linh Huan (2019), “Những điểm mới trong các quy định của luật cạnh tranh năm 2018 về 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

control regimes According to the OECD,59 the main categories of criteria identifiedare (i) sales or turnover, (ii) market shares, (iii) assets, and (iv) transaction value.60Here are what the LOC 2018 has addressed by adding more criteria to determinenotification thresholds:

First, the LOC 2018 has changed the criteria for determining economic

concentration notification threshold from relying only on market share to applyingmultiple criteria to determine whether an economic concentration transaction must

be notified It is clear to see that considering market share as the only criterion todetermine the notification thresholds has proven several limitations The mainreason for these deficiencies is that determining relevant market and market share isnot necessary and straightforward at the first step of implementing controlprocedures61 because in fact, enterprises cannot obtain the total turnover or totalassets of their competitors to estimate the market share Even for developedcountries, where the information storage systems are most advanced, it still would

be burdensome and time-consuming for competition authorities to determine marketshare and relevant market

Second, the LOC 2018 has also addressed the omission of vertical and mixed

economic concentration behaviors Even though it is not obviously regulated, bydetermining notification thresholds based only on market share, the LOC 2004 onlyregulated horizontal economic concentration62 because combined market share canonly be calculated on horizontal transactions.63 Meanwhile, vertical64 andconglomerate economic concentrations are less likely to limit competition thanhorizontal ones, but these economic concentration types still need to be adjusted bylaw due to potential risks to the competitive environment, such as pressuring otherbusinesses to control the sources of goods or output of competitors The importance

of controlling these types of economic concentration becomes more and moreurgent as vertical and conglomerate economic concentration transactions are

59 OECD (2010), “Policy Roundtables – Competition, Concentration and Stability in the Banking Sector”,

https://www.oecd.org/daf/competition/sectors/46040053.pdf , Accessed on 25 May 2021.

60 OECD (2010), supra note 59, p.2

61 Ha Thi Thanh Binh (2019), supra note 7, p.28

62 Horizontal economic concentration: economic concentration between firms that produce and sell the same products, i.e., between competing firms Horizontal economic concentration, if significant in size, can reduce competition in a market and is often reviewed by competition authorities Horizontal economic concentration can be viewed as horizontal integration of firms in a market or across markets.

63 Nguyen Xuan Nam (2014), Kiểm soát tập trung kinh tế theo luật cạnh tranh Việt Nam – Một số vấn đề lý luận và thực tiễn (Controlling economic concentration under Vietnamese competition law – Some theoretical and practical issues), Master thesis, Hanoi Law University, p.50

64 Vertical economic concentration: economic concentration between firms operating at different stages of production, e.g., from raw materials to finished products to distribution An example would be a steel manufacturer merging with an iron ore producer Vertical economic concentration usually increases economic efficiency, although it may sometimes have an anticompetitive effect

increasing in practice.65 For instance, Company ICP is a company with a significantmarket share in the men’s health care products market which has taken control ofThuan Phat corporation, an enterprise that has a position in the market of producingfish sauce and spices.66 It is obvious that after taking control of Thuan PhatCorporation, ICP Corporation can enter a new market and expand their businesslines of fish sauce and spices, thereby strengthening its position in the market.

Third, the LOC 2004’s regulation on market share threshold shows the

rigidity Because not only did it prohibit acts that exceeded unnecessary thresholds,but it also omitted acts that had not exceeded the threshold but capable of limitingcompetition in practice.67 There are cases where the economic concentrationexceeds the threshold but does not create a significant anti-competitive effect in themarket On the contrary, although not exceeding the threshold, there are numerouscases that can cause anti-competitive effects In some markets, only dominating10% - 20% of market share is enough to give businesses absolute power in themarket, especially for decentralized markets with the remarkable discrepancy inmarket shares between top-ranked and mid-ranked corporates.68 By adding morecriteria to determine notification threshold, the LOC 2018 has reflected the natureand objective of economic concentration control more accurately, which is toprevent anti-competitive cases but still able to promote positive effects Besides, itwould be easier for competent authorities to identify cases with negative impacts

Fourth, depending solely on market share to determine notification

thresholds of economic concentration may cause difficulties for businesses injustifying their share in the relevant market In fact, enterprises can onlyacknowledge and take responsibility for their revenues without being obliged toknow the sales of their competitors (the basis for calculating the market share ofenterprises) Requiring corporations to collect a massive amount of informationrelated to the market and its share may put pressure on enterprises to carry outprocedures for notification or consultation with Vietnam Competition Authority(VCA) This partly explains why several economic concentration cases haveoccurred with only a few reported to VCA.69 According to a survey by the VCA,out of 500 businesses surveyed, up to 388 (77.6%) enterprises said that they could

65 Le Vu Quynh Trang (2014), supra note 38, p.46

66 MOIT (2012), Báo cáo tập trung kinh tế Việt Nam 2012 (Vietnam Economic Concentration

Report in 2012), Ha Noi, p.20

67 Tran Linh Huan, supra note 58, p.62

68 Tran Thi Thu Phuong (2014), “Một số vấn đề về kiểm soát tập trung kinh tế của pháp luật Việt Nam và kinh nghiệm chung từ một 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

69 MOIT (2012), supra note 66, p.50

not provide data on market share or could only provide comparable estimates Themajority of enterprises were unable to provide the required market share figuresbecause they could not accurately determine the total market turnover/sales(282/422 opinions, accounting for 66.8%) and could not identify the relevant marketunder the LOC 2004 (139/422 opinions, accounting for 32.9%).70 However, theLOC 2018 has addressed this issue The regulations on notification threshold underthe LOC 2018 are also based on total turnover, total assets, and total transactionvalue, which are the internal metrics Therefore, businesses can consider and aware

by themselves whether their economic concentrations must be notified

Fifth, the LOC 2018 has recognized cases of economic concentration outside

of Vietnam The previous competition law only constrained M&A activities carriedout within the territory of Vietnam However, in reality, there are many competitioncases implemented outside Vietnam’s territory but having particular effects on theVietnamese market For example, the agreements to fix shipping charges andsurcharges between big foreign shipping lines affect Vietnamese enterprisesexercising import and export of goods.71 In addition, there are economicconcentration cases with considerable transaction value performed outside theterritory of Vietnam but having an impact on the Vietnamese market, which are, forexample, the acquisition of CFR pharmaceutical company by Abbott Group,72Boehringer Ingelheim International acquires Sanofi SA in the veterinary medicinefield,73 Central Group (Thailand) acquires BigC Vietnam supermarkets.74 This newregulation helps competition authorities to investigate and comprehensively handleall acts of economic concentration if there is any impact possible to cause anti-competitive effects on the Vietnamese market Moreover, this also creates a legalbasis for the VCA to cooperate with other national competent authorities in theprocess of investigating and handling M&A cases, thereby facilitating enforce the

70 MOIT (2012), Báo cáo rà soát các quy định của pháp luật cạnh tranh Việt Nam (Report on reviewing the provisions of Vietnam's law on competition), Ha Noi, p.25

71 UNCTAD (2016), “Liner Shipping: Is there a way for more competition?”,

https://unctad.org/system/files/official-document/osgdp2016d1_en.pdf , Accessed on 25 May 2021.

72 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-of- CFR- Pharmaceuticals-Announces-Results-of-Tender-Offer-for-CFR-Shares , Accessed on 25 May 2021.

73 Boehringer Ingelheim (2016), “Sanofi and Boehringer Ingelheim have reached definitive

agreements to swap Sanofi’s Animal Health and Boehringer Ingelheim’s Consumer Healthcare

businesses”, reached- definitive-agreements-swap-sanofis-animal , Accessed on 25 May 2021.

https://www.boehringer-ingelheim.us/press-release/sanofi-and-boehringer-ingelheim-have-74 Vietnam Economic Times (2016), “Central Group acquires BigC Vietnam”,

https://www.vneconomictimes.com/article/business/central-group-acquires-big-c-vietnam , Accessed on 25 May 2021.

commitments on competition that Vietnam has made in the trade agreements.75

Sixth, the new provisions on notification thresholds in the LOC 2018 assess

the impacts of economic concentration more precisely The market is constantly inmotion; hence, depending on the time of evaluation, the market share may vary As

a result, if the threshold for notification of economic concentration is only based onthe market share to assess economic concentration’s impact in the future, the marketwill be put in a static state,76 and will fail to accurately reflect its nature Thus, thepotential effects of economic concentration may also be improperly assessed

1.2.2 The limitations of notification threshold regulations under the Law on Competition 2018

As mentioned in section 1.2.1, although the LOC 2018 has overcome thelimitations of the LOC 2004 regarding the economic concentration notificationthreshold, it still has certain drawbacks

First, under the LOC 2018, the Government shall provide a guideline for the

notification threshold of economic concentration in conformity with socio-economicconditions in each period.77 However, there are no current provisions on adjustingthese thresholds This deficiency could result in outdated thresholds and failure tocatch up with the economic growth Moreover, in certain stages, when the currentnotification threshold is no longer suitable for socio-economic, if it is not adjustedappropriately, it will lead to many problems For example, if the notificationthreshold is too high, this will cause the omission of competition-restricting casesand vice versa; if the notification threshold is set too low, this would result in manycases being notified which would be time-consuming, costly, and burdensome forcompetent authorities Therefore, the absence of a specific regulation for theconsideration and adjustment of the notification threshold of economicconcentration is one of the limitations under the LOC 2018

For instance, from 2020 to 2021, because of the pandemic Covid-19’simpacts, the value of M&A in Vietnam is estimated to have decreased byapproximately 49%, equivalent to 3.5 billion USD In other words, the Covid-19pandemic cuts Vietnam’s M&A transactions value by half compared to the previous

As a result of the novel corona virus effects, Vietnam’s economy grew by

75 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 competition regarding economic concentration control for

M&A activities in the current period), Master Thesis, Hanoi Law University, p.42-43

76 Tran Thi Thu Phuong (2014), supra note 68, p.48

77 Article 33.3, the LOC 2018

78 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-m-amp-a-value-by-half-year.78