The reasons for the Ministry of Industry and Trade to propose amendments to Decree 09/2018/ND-CP

Decree 09/2018/ND-CP, promulgated on 15/01/2018, is a document detailing the Commercial Law and the Law on Foreign Trade Management on goods purchase and sale activities and activities directly related to the purchase and sale of goods by foreign service providers and foreign-invested economic organizations (FDI) in Vietnam ("Decree 09/2018/ND-CP”). However, after more than seven years of implementation, the Ministry of Industry and Trade has noticed many inadequacies and limitations in the application of this decree, leading to the need to amend it to suit the new socio-economic context, international commitments, and administrative reform requirements. This article will analyze the main reasons why the Ministry of Industry and Trade proposed to amend Decree 09/2018/ND-CP this time[1].

The Ministry of Industry and Trade. Source: Government News

1. Respond to changes in the legal framework

One of the main reasons for amending Decree 09/2018/ND-CP is the change in the relevant legal framework, especially the introduction of the Law on Investment 2020. The document clearly indicates that Decree 09/2018/ND-CP was built based on the Law on Investment 2014, but in 2020, the National Assembly issued a new Law on Investment (Law No. 61/2020/QH14), replacing the old law. The Law on Investment 2020 has updated and amended many regulations related to business investment conditions, including conditional industries such as distribution and retail activities of FDI economic organizations. Therefore, the provisions of Decree 09/2018/ND-CP no longer ensure compatibility with the Law on Investment 2020, especially the provisions related to business licensing and setting up retail establishments.

In addition, Decree No. 09/2018/ND-CP also needs to be adjusted to comply with other legal provisions such as the Law on Commerce 2005, the Law on Foreign Trade Management 2017, the Law on Organization of the Government 2015, and the Law on Organization of Local Governments 2015. In particular, Decree No. 146/2025/ND-CP, issued on June 12, 2025,  have clearly stipulated the decentralization and decentralization of powers in the field of industry and trade, requiring the transfer of authority from the Ministry of Industry and Trade to the provincial-level People's Committee. The amendment of Decree No. 09/2018/ND-CP is necessary to ensure synchronization and consistency in the legal system, and at the same time meet the spirit of decentralization and decentralization under the direction of the Politburo in Conclusion No. 155-KL/TW dated May 17, 2025 and Plan No. 447/KH-CP of the Government[2].

2. Implement international commitments

Vietnam is a member of many free trade agreements (FTAs) and international organizations such as the WTO, CPTPP, and EVFTA. These international commitments require Vietnam to open its distribution and retail markets to foreign investors, and ensure that domestic legal regulations are compatible with international standards. The Ministry of Industry and Trade emphasized that Decree 09/2018/ND-CP should be amended to be in line with the commitments in these agreements, especially the EVFTA, in order to ensure the right to export, import, and distribute of FDI economic organizations.

The proposed amendments to Decree 09/2018/ND-CP have mentioned the requirements for Economic Needs Test (ENT) for FDI enterprises in the distribution sector. The current ENT process in Decree 09/2018/ND-CP is considered to be inflexible enough and sometimes causes difficulties for foreign investors. The amendment to the decree will help simplify administrative procedures, create more favorable conditions for investors, and at the same time ensure the interests of domestic enterprises through updated ENT examination criteria in accordance with reality.

3. Meet the decentralization requirements of the two-level government

One of the focuses of amending Decree 09/2018/ND-CP is to implement decentralization and decentralization according to the two-level local government model, as stated in Conclusion 155-KL/TW and Plan 447/KH-CP. The documents clearly indicate that the Ministry of Industry and Trade has coordinated with relevant agencies to review and transfer the authority to issue business licenses and licenses to set up retail establishments from the Ministry of Industry and Trade to the People's Committees of provinces and centrally-run cities. This is in line with the spirit of "localities decide, localities do, localities are responsible", in order to enhance the efficiency of state management and reduce the load on central agencies[3].

However, during the implementation of Decree 09/2018/ND-CP, some localities, such as Hanoi, Ho Chi Minh City, and Da Nang, have faced difficulties in applying licensing regulations due to lack of resources or practical experience of licensing officials. The amendment to the decree will help improve the regulations on the authority, order, and licensing procedures, and provide clearer guidance for localities in managing the goods trading activities of FDI economic organizations.

4. Overcoming inadequacies in practice

The implementation of Decree 09/2018/ND-CP from 2018 to now has revealed many inadequacies, especially in the management of FDI retail establishments. According to documents from the Ministry of Industry and Trade, as of 2022, Vietnam has about 1,550 retail establishments with FDI, including 112 large-scale establishments such as supermarkets, hypermarkets, and shopping centers. The retail value of FDI economic organizations grew strongly, reaching an average growth rate of 26.9% per year from 2018 to 2022, accounting for about 30% of the modern retail market share. However, the current regulations in Decree 09/2018/ND-CP have not met the requirements for effective management of these activities.

Some specific inadequacies include:

Firstly, complicated administrative procedures

The process of granting business licenses and licenses to set up retail establishments according to Decree 09/2018/ND-CP is still cumbersome, causing difficulties for both investors and management agencies. For example, the requirements for dossiers and ENT criteria have not been standardized, leading to inconsistency in the way of application between localities, almost each locality has a separate requirement.

Second, lack of flexibility in management

The current Decree does not have regulations that are flexible enough to regulate new types of businesses, such as e-commerce or modern retail models. This limits the competitiveness of domestic enterprises against FDI enterprises.

Third, fairness between businesses has not been ensured

Some provisions in Decree 09/2018/ND-CP have not created a level playing field between domestic enterprises and FDI enterprises, especially in market access and implementation of administrative procedures.

The amendment to the decree will focus on simplifying administrative procedures, standardizing ENT criteria, and creating conditions for domestic enterprises to compete more effectively with FDI enterprises, while still ensuring selective foreign investment attraction.

5. Promote the development of the domestic retail market

According to Decision No. 386/QD-TTg dated 17/03/2021[4] and Decision No. 1163/QD-TTg dated 17/07/2021[5] of the Prime Minister, which determines the goal of developing the domestic market in association with the Campaign "Vietnamese people give priority to using Vietnamese goods". By 2023, the goal is that Vietnamese goods account for over 85% in modern distribution channels (commercial centers,  supermarkets, convenience stores, etc.). However, FDI economic institutions currently account for about 15% of the retail market share, and this number is growing rapidly. The amendment of Decree 09/2018/ND-CP will help strengthen the state management of retail activities of FDI enterprises, and at the same time support domestic retail enterprises to develop more strongly in the coming time.

To achieve this, the new draft decree will continue to inherit the relevant regulations from Decree 09/2018/ND-CP, and at the same time supplement new regulations to promote modern distribution methods, diversify forms of business organization, and improve the competitiveness of domestic enterprises. This includes assisting local businesses in building their brands, expanding their distribution networks, and participating in global supply chains.

6. Meet the requirements of administrative reform and sustainable development of the country

The amendment to Decree 09/2018/ND-CP also aims to meet the requirements of administrative reform, simplify procedures, and create a more favorable business environment for investors. The new draft decree with the orientation will complete legal regulations to ensure the continuous and unified operation of state management agencies, and at the same time minimize unnecessary administrative procedures. This will help save time and costs for both investors and regulators, thereby improving the efficiency of state management.

In addition, the amendment of the decree also aims at sustainable development, in line with the Socio-Economic Development Strategy 2021-2030. The draft decree emphasizes the selective attraction of foreign investment, prioritizing projects with high added value, using advanced technology, and being environmentally friendly. This will contribute to improving the quality of FDI investment in the distribution and retail sectors, while protecting the interests of consumers and promoting sustainable economic development.

The Ministry of Industry and Trade's proposal to amend Decree 09/2018/ND-CP stems from urgent legal, practical, and strategic requirements for economic development. The new draft decree, with six chapters and 48 articles, is expected to create a more comprehensive, synchronous, and effective legal framework, contributing to improving state management capacity, promoting healthy competition, and supporting Vietnam's economic development in the context of deepening international integration.