Decree 85/2021/ND-CP and its effect on the e-commerce regulations in Vietnam – Lexology

To timely regulate its quickly changing e-commerce market, Vietnam has been updating several regulations in this field. For this purpose, the Vietnamese Government issued Decree 85/2021/ND-CP (Decree 85) to amend Decree 52/2013/ND-CP (Decree 52) regarding ecommerce on 25 September 2021, and the new Decree will take effect from the beginning of 2022. The key amendments in Decree 85 are henceforth discussed below.

Changes in applicable scope and subjects 

1. Scope of application 

Decree 85 narrows down the scope of application of the existing e-commerce decree. Specifically, the recent decree expressly excludes “e-commerce activities in finance, banking, credit, insurance, lottery, purchase, exchange of money, gold, forex and other payment methods, betting or prize winning games, distribution, publishing of digital contents, radio and television services which are regulated by specialized laws” from the applicable scope. 

2. Subjects of application 

• Foreign providers who are not physically present in Vietnam and whose websites are under foreign domain names may be subject to the e-commerce decree: In the original Decree 52, only foreign traders and organizations having presence in Vietnam (i.e., having set up company, branches, or representative offices in Vietnam) or websites with Vietnamese domain names were subject to the e-commerce regulations. Decree 85 now broadens the applicable foreign subjects to foreign traders and organizations having websites that meet any one of the following criteria: (i) that of using Vietnamese domain names, (ii) that of using the Vietnamese language as a display language, or (iii) that of having more than 100,000 transactions per year from Vietnam, notwithstanding its forms of presence in the investment, branches, or representative offices. The transaction counts are in turn deduced from voluntary reports of the foreign providers, official data of the competent authorities, or other available reports and information that the competent authorities can verify. 
• Website design service providers will not be subject to the decree: Decree 85 introduces a new definition of “e-commerce services”, which explicitly states that traders and organizations providing website design services that are not directly involved in the operations, administration and coordination of the website activities will not be determined as “e-commerce traders and organizations”.
• Logistics service providers will be subjects participating in e-commerce activities under the decree: Decree 85 is further supplemented with the definition of logistics service providers now falling under “subjects participating in e-commerce activities”. The allocation of liabilities between the logistics service providers and other e-commerce subjects, and among the logistics service providers themselves has been updated accordingly.

Sales e-commerce websites 

1. Only sales e-commerce websites1 providing online ordering functions will need to notify Ministry of Industry and Trade (MOIT) of their establishment: Article 26.5 of Decree 52 has been amended to narrow the definition of sales e-commerce websites which are required to notify MOIT to those having online ordering functions. 

2. More information will need to be publicly announced on the sales e-commerce websites: Beside the information which currently …….

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