Can foreign investors establish an economic organization prior to the issuance of an Investment Registration Certificate (IRC)? What are the requirements for such early establishment?
I. Permissibility of Enterprise Establishment Prior to Applying for an Investment Registration Certificate (IRC)
Previously, the Law on Investment 2020 regulated the establishment of project-executing enterprises as follows:
“Prior to the establishment of an economic organization, a foreign investor must have an investment project and perform the procedures for the issuance or amendment of an Investment Registration Certificate, except for the establishment of innovative startup small and medium-sized enterprises and innovative startup investment funds in accordance with the law on support for small and medium-sized enterprises.”[1]
This regulation compelled investors to complete all project appraisal steps – including specifying objectives, scale, and exact investment locations – before being granted an IRC. Only after obtaining the IRC could investors proceed with the application for an Enterprise Registration Certificate (ERC) to acquire a corporate seal and legal entity status to execute the project.
In practice, the IRC application process typically took 30 to 45 days, and could drag on even longer for large-scale, complex projects, or those requiring investment policy approval.
Currently, the Law on Investment 2025 (effective from March 1, 2026) permits foreign investors to establish an economic organization to execute an investment project prior to conducting the procedures for the issuance or amendment of an IRC. However, the investor must satisfy the market access conditions applicable to foreign investors as stipulated in Article 8 of the Law on Investment 2025 during the establishment process.[2]
Foreign investors can now secure legal entity status at the very outset of the investment process. The IRC has evolved from being a mandatory “pre-requisite” for company formation into a project registration procedure for an already existing FDI enterprise.
II. Conditions for ERC Issuance in Case of Enterprise Establishment Prior to IRC Application
While the Law on Investment 2025 allows early enterprise establishment, foreign investors must strictly comply with the market access conditions under Article 8 of the Law on Investment 2025[3], which specifically include:
- Charter capital ownership ratio of the foreign investor in the economic organization;
- Form of investment;
- Scope of investment activities;
- Capacity of the investor; partners participating in the execution of investment activities;
- Other conditions as prescribed by laws, resolutions of the National Assembly, ordinances, resolutions of the Standing Committee of the National Assembly, decrees of the Government, and international treaties to which the Socialist Republic of Vietnam is a member.
III. Dossier and Procedures for ERC Application
Article 72 of Decree No. 96/2026/ND-CP stipulates:
“Where a foreign investor establishes an economic organization prior to implementing procedures for the issuance or amendment of an Investment Registration Certificate, the foreign investor shall establish the economic organization in accordance with the law on enterprises or other applicable laws corresponding to each type of economic organization.
Post-establishment, the economic organization executing the investment project shall carry out investment procedures pursuant to the law on investment and relevant international commitments.”
Furthermore, Official Letter No. 5427/BTC-DNTN dated April 29, 2026, issued by the Ministry of Finance, provides guidelines on the application dossier for registering the establishment of enterprises and cooperatives in such cases:
- Application Form for Enterprise Registration: Standard form, which must explicitly include the foreign investor’s commitment to satisfying the market access conditions as prescribed in Clause 3, Article 72 of Decree No. 96/2026/ND-CP;
- Company Charter (Articles of Association);
- List of Members (for multi-member LLCs), List of Shareholders (for joint-stock companies), and List of Beneficial Owners (if applicable);
- Power of Attorney (Authorization Document) for the Authorized Representative: Along with the legal identification documents of the authorized representative of the institutional owner, member, or shareholder;
- Certified Copies of the Investor’s Legal Identification Documents.
[1] Clause 1, Article 22 Law on Investment 2020
[2] Clause 2, Article 19 Law on Investment 2025
[3] Clause 3, Article 8 of the Law on Investment 2025 provides for market access conditions applicable to foreign investors as specified in the List of Sectors and Trades with Restricted Market Access for Foreign Investors. The List of Sectors and Trades with Restricted Market Access for Foreign Investors is promulgated under Appendix I of Decree No. 96/2026/ND-CP.
