After more than six years of application, Decree 35/2020/ND-CP has become one of the important platforms for enforcing the Competition Law. But the market in 2026 is quite different from 2020. Digital platforms, data, AI and increasingly complex M&A structures make revenue or ownership ratio not always fully reflect the market strength of businesses.
One of the most interesting changes lies in the question: how is the relevant market defined?
The Draft Decree replaces Decree 35 (Draft) thus shows a remarkable movement: reducing procedures for low-risk transactions, but expanding the ability to identify market power, physical control, digital platforms and new business models[1].
Not paying can still be a "market"
One of the most interesting changes lies in the question: how is the relevant market defined?
According to the traditional approach, price plays an important role to see if two products are interchangeable. The current Decree 35 also uses quite specific quantitative criteria.
The draft does not eliminate this approach. But it opens up a new criterion. Accordingly, the relevant product market is defined for those products, goods and services that are interchangeable in terms of characteristics, use and price "or other relevant competitive factors".
This additional phrase can be especially important for the digital economy. A social network, search engine, or online platform may offer a service at zero price to users. If price is based solely, it will be difficult to determine competitive relations. In such markets, non-competitive factors, such as service quality, data accessibility, network effects, or user engagement, can become important when assessing competitive relations.
Even the 5% price difference criterion has become more flexible. The draft allows the use of "other levels in accordance with market characteristics"; if the price criteria are not enough, the competition authority can consider other factors.
This suggests a change in perspective: the competitive market is not necessarily just a place where buyers pay sellers.
Measuring digital platform market share by transaction value
Market share is an important factor considering the competitiveness of trading. In the traditional business model, revenue is often a relatively clear indicator of market size. But that is not always the case with digital platforms.
Let's say an e-commerce platform has 10,000 billion VND of goods traded each year but only records 500 billion VND in revenue from fees and commissions. Which number better reflects the platform's actual position in the market?
The draft seeks to solve this problem by clarifying the "transaction value" for enterprises providing digital platforms. Accordingly, this is the total monetary value of transactions of products, goods and services made on the platform during the market share determination period, after excluding canceled or refunded transactions.
This change is notable because it allows the competition authority to see through accounting revenues to look at the actual scale of economic activity that the platform is connecting to or controlling.
That is also in line with the problem that the drafting agency has identified: market power can increasingly come from technology, data and the ability to control resources, not just from the size of revenue.
M&A transactions without buying shares can still create economic concentration
This is probably the most important change in M&A businesses.
Normally, when reviewing the obligation to notify economic concentration, enterprises will start from the transaction structure: what percentage of shares to buy, what assets to buy, whether to establish a joint venture or not?
The Draft aims at a broader approach. In addition to traditional forms such as mergers, consolidations, acquisitions and joint ventures, the Draft proposes to identify a number of cases that may change the control of enterprises. These include the transition from single control to joint control; two or more enterprises establishing joint operating departments; or one enterprise gains control or domination of other enterprises through agreements or other methods other than the purchase of capital or assets.
To support this approach, the Draft also clarifies the concept of "executive department" for the first time. This concept includes not only the person who owns more than 50% of the capital or shares has voting rights, but also the business manager and the person or group of people who have the right to decide on a number of important management issues.
The notable point therefore lies in the actual control after the transaction, rather than just looking at the legal form of the transaction.
A non-transfer agreement may still need to be considered from a competitive perspective if it changes control of the business.
M&A notification threshold expected to double
If the scope of identification of economic concentration is expanded, in the opposite direction, the Draft wants to reduce the number of transactions that require notification procedures.
For ordinary enterprises, the threshold of total assets in Vietnam is expected to increase from VND 3,000 to VND 6,000 billion; the threshold of revenue or acquisitions in Vietnam will also increase from VND 3,000 to VND 6,000 billion; the transaction value will increase from VND 1,000 to VND 2,000 billion. Particularly, the combined market share threshold remains at 20%. This is not just a numerical adjustment. It can significantly change the scope of M&A deals that must be announced.
The basis of the proposal is that the size of the economy has increased sharply compared to the time when Decree 35 was developed. The summary report also shows that Vietnam's M&A market has undergone significant changes in the period 2020-2025.
If the threshold is too low compared to the size of the economy, the competition authority may have to spend resources to handle many large transactions in value but not necessarily create corresponding competitive risks. Raising the threshold can therefore help the regulator focus on transactions that are really of interest and is also a way to minimize the control of small and odd transactions and small market influence. This also contributes to minimizing administrative procedures for businesses in business activities.
Raising the threshold is therefore not simply aimed at reducing the number of records. More importantly, it helps due diligence resources focus on transactions of more significant scale and ability to impact competition, while reducing compliance costs for businesses.
Another less notable but long-term novelty is the mechanism for reviewing the conditions applicable to an economically concentrated deal.
Some internal restructuring transactions may be exempt from notification
Another change of great practical significance for corporations is the proposal to exclude certain transactions from the notification obligation.
It is worth noting that in the case where the recipient of a consolidation, merger or acquisition directly or indirectly owns more than 50% of the voting capital of the target enterprise; or transactions between enterprises that are owned by another enterprise with more than 50%. In essence, these are usually restructuring transactions within the same group of enterprises.
Under the current mechanism, a transaction may still exceed the notification threshold even though the final control of the whole group before and after the transaction remains almost unchanged. This causes businesses to carry out competitive procedures for a transaction that does not necessarily change the competitive structure in the market.
If the new proposal is adopted, the approach will be more substantive: not only asking how big the transaction is, but also whether the transaction actually changes market control and structure. This could be one of the most obvious changes to reduce compliance costs for corporations with frequent restructuring.
M&A conditions may be reconsidered as the market changes
Another less notable but long-term novelty is the mechanism for reviewing the conditions applicable to an economically concentrated deal.
In practice, a deal may be allowed with conditions that limit the risk of affecting competition. But the market three or five years later may be completely different from when the transaction was approved. The draft therefore allows businesses to propose to amend or terminate part or all of the conditions in some cases.
Notably, the enterprise may propose to consider if after the transaction the market share falls below 20% for two consecutive years, or the total square index of market share in the relevant market falls below 1,800 for two consecutive years. This mechanism reflects a reasonable principle: competition controls also need to change when the competitive conditions themselves have changed.
Reduced procedures, but not compliance requirements
Along with the changes in content, the Draft also goes quite far in simplifying procedures.
Two important procedures: notification of economic concentration and an application for an exemption from a non-competition agreement have been identified as those that require reducing the composition of the dossier, using available data, and simplifying the process.
For the notice of economic concentration, the competition authority has seven working days to check the completeness and validity of the dossier. More notably, during the official appraisal process, the number of times the enterprise is requested to supplement information and documents is limited. Limiting the number of times this information is requested can help businesses better predict the appraisal progress, especially for M&A deals with tight completion deadlines. However, the actual effectiveness also depends on how to determine the valid dossier and the scope of information that the competition agency requires the enterprise to provide.
The non-compete agreement waiver procedure has also been redesigned with clearer timelines and in the direction of reducing compliance costs.
Reducing paperwork does not mean reducing requirements for the quality of analysis. Conversely, as the law gradually shifts from formal criteria to assessing the economic nature of transactions, businesses may have to better prepare data on the market, competitors, customers, market share, transaction value, and control.
More broadly, the remarkable point of the Draft lies not only in raising the threshold or reducing the procedure, but also in the shift from form-based control to assessing the competitive nature of the transaction. If this approach is retained, the important question for businesses will no longer be just "whether to exceed the threshold or not", but how the transaction actually changes control and competition in the market. Competition compliance therefore needs to start from the design of the transaction, rather than when the dossier is prepared for submission.
