In drafting the amendments to the Investment Law, the Ministry of Finance has proposed authorizing the Government to issue a list of conditional business lines, instead of having them stipulated directly in the law as is currently the case.

Moving the list down to decrees for more flexible management The Ministry of Finance is drafting a new Law on Business Investment (to replace the current one), expected to be submitted to the National Assembly for review and approval at its October 2025 session. In a draft submission sent to the Ministry of Justice for appraisal, the Ministry of Finance noted that the list of conditional business lines, as provided in the 2014 Investment Law, included 267 business lines; before being reduced to 230 in the 2020 Investment Law, contributing to a more favorable business environment. However, the reduction was not substantive, as it mainly involved merging business lines under broader categories or introducing more far-reaching business lines with wide regulatory scope to reduce the count. Moreover, most conditional business lines are subject to pre-licensing control, meaning a license is required before business activities can commence. In practice, however, certain lines do not necessarily require pre-licensing controls, such as services for building, converting, repairing, or restoring inland waterway vessels, or manufacturing helmets — since quality standards are already managed through technical regulations, making investment conditions unnecessary. In addition, some new business lines with potentially complex risks related to security, social order, or community health have not been included in the conditional business list. This creates difficulties for state management and loopholes for businesses to exploit. Examples include data-sharing platforms involving personal information, or deepfake technologies. According to the Ministry of Finance, stipulating the conditional business list in the Investment Law has not met the need for timely amendments in urgent cases, nor has it granted the Government sufficient autonomy to control these sectors. Therefore, in the draft replacement law, the ministry proposes authorizing the Government to promulgate this list in order to enhance flexibility and proactive management. Alongside this, the draft law supplements principles for determining investment and business conditions, emphasizing requirements on capacity, professional qualifications, human resources, facilities, and management systems that enterprises or individuals must meet when engaging in conditional business lines. These conditions will not include product or service quality standards — the purpose being to review and reclassify which business lines truly require pre-licensing, while shifting others currently under conditional regulation but manageable via standards and technical regulations to a post-licensing supervision mechanism. Concerns over arbitrary expansion of the list The Vietnam Chamber of Commerce and Industry (VCCI) believes the consequences of this change must be carefully considered. According to VCCI, having the conditional business list stipulated in the Investment Law since 2014 has been regarded as progress. The law clearly stipulates prohibited business lines and conditional business lines, leaving all others open to free enterprise by businesses and individuals. Thanks to this mechanism, adding any new conditional business line must be considered by the National Assembly, thereby avoiding the risk of lower-level regulations arbitrarily inserting additional conditions. If this list is stipulated at the decree level, it will be impossible to control the addition of conditional business lines, especially when such additions arise from sub-law documents (other decrees). The reason is that decrees have the same legal value, and a later decree will take precedence when there are conflicting provisions. This could lead to arbitrary additions of conditional business lines, making it difficult for businesses to keep track of how many such lines actually exist in practice. Moreover, placing this list at the decree level would significantly diminish its importance. It would no longer be feasible to treat it as a comprehensive list of all conditional business lines; any line not explicitly “named” in the list would not be considered conditional. This is because laws and decrees enacted later could easily introduce new conditional business lines — lines not included in the list — and those would take precedence. In the context of the Party and the State pushing for administrative reform and reducing compliance costs to create a more favorable business environment, VCCI argues that the list of conditional business lines should remain in the Investment Law. Along with that, the list should be reviewed, revised, and supplemented with the aim of abolishing unnecessary lines that do not meet the principles for determining investment and business conditions set out in Article 7 of the Investment Law. A choice not purely technical The two opposing views on the legal status of the list of conditional business lines highlight differences in approach between regulators and the business community. From the regulatory perspective, moving the list down to a decree could increase flexibility, enabling the State to respond more promptly to emerging risks. However, businesses’ concerns about the risk of “reviving” sub-licenses are entirely legitimate. At a recent seminar, Phan Duc Hieu, standing member of the National Assembly’s Economic and Financial Committee, remarked that the greatest challenge in institutional reform lies in the fact that most past reforms originated from the Government’s determination, while ministries and agencies have rarely taken the initiative to abolish the business conditions under their own management. “If the Party, the National Assembly, and the Government don’t demand it, what would drive ongoing, continuous reform?” he asked. Another report shows that from October 2023 to the end of July 2024, the Ministry of Justice appraised 1,065 administrative procedures across 105 proposals, projects, and draft legal documents. This figure illustrates how deeply the abuse of excessive procedures remains embedded in policy-making. Given Vietnam’s targets for high economic growth and significant improvements in the business environment, the choice of whether to place the list of conditional business lines in the law or in a decree is not merely a technical matter of legislation. It is also a measure of the country’s determination to reform institutions in a transparent, stable, and long-term direction. It should also be noted that Resolution 66-NQ/TW on reforming law-making and law enforcement makes clear: apart from a number of codes directly related to human rights, citizens’ rights, and judicial procedures — which require detailed regulation — most other laws, especially those aimed at development, should only set out general frameworks and principles under the National Assembly’s jurisdiction. Issues subject to frequent change should be delegated to the Government, ministries, agencies, and local authorities to ensure flexibility and practical relevance. Freedom of business is a constitutional right, and therefore, stipulating the list of conditional business lines in the Investment Law is both appropriate and necessary.