Establish an FDI Company Before Obtaining an Investment Registration Certificate in Vietnam

From 2026, the ability to establish an FDI company before obtaining an Investment Registration Certificate in Vietnam represents a breakthrough mechanism to welcome foreign investment capital, regulated by Decree 296/2026/ND-CP based on the Investment Law 2025 and Decree 96/2026/ND-CP. This ERC before IRC mechanism shifts the mindset from “project first, enterprise second” to “enterprise first, project follows,” removing bottlenecks for many foreign startups to rapidly enter the Vietnamese market and secure an Investment Registration Certificate later. The legal expert team at Viet An Law has synthesized and deeply analyzed this mechanism to support foreign investors in optimizing time while strictly controlling legal compliance risks.

New regulations allowing the establishment of economic organizations before the issuance of an Investment Registration Certificate in Vietnam

Legal foundation under the Vietnamese Investment Law 2025

Instead of mandating an investment project as a prerequisite to establish foreign company prior to IRC like the 2020 Investment Law, the new legal framework creates a novel approach mechanism for foreign capital:

• “Reversed” sequence: Clause 2, Article 19 of the Investment Law 2025 permits the establishment of economic organizations first, followed by the implementation of issuance or adjustment of the IRC;
• Prerequisite condition: Foreign investors must satisfy market access regulations according to Article 8 of the Investment Law 2025;
• Exclusion: This does not apply to projects falling under the List of business lines banned from investment.

Detailing the process through Decree 96/2026/ND-CP and Decree 296/2026/ND-CP

The synchronization between investment law and enterprise law is perfected through two guiding decrees. Paving the way is Decree 96/2026/ND-CP guiding the Investment Law 2025, effective from March 31, 2026, which details in Articles 46 to 51 that the enterprise registration application must include a commitment to satisfy market access conditions for foreign investors.

When applied to the field of business registration, Clause 6, Article 24 of Decree 296/2026/ND-CP, effective from July 23, 2026, stipulates:

“In case a foreign investor establishes an enterprise before implementing the procedure for issuance or adjustment of the Investment Registration Certificate in accordance with investment law, the enterprise registration dossier shall not include a copy of the Investment Registration Certificate as prescribed in Clause 5 Article 20, Point c Clause 4 Article 21, and Point c Clause 4 Article 22 of the Enterprise Law. In this case, the enterprise registration application includes the commitment to satisfy market access conditions for foreign investors in accordance with the law.”

Accordingly, this regulation officially exempts the IRC copy from the enterprise establishment registration dossier, mandating a commitment to satisfy market access conditions for foreign investors.

FDI company establishment without investment certificate under Decree 296/2026/ND-CP shifts the burden of proving conditions from the state management agency to the self-responsible commitment of the investor. Therefore, Viet An Law only encourages investors to utilize this ERC before IRC mechanism for certain simple business lines that do not require proof of satisfying conditions, in order to maximize the goal of saving time.

Current practical market entry process for foreign investors in Vietnam

Comparison of foreign direct investment enterprise registration sequence

With the advantage of a significantly shorter market entry time, the new mechanism is expected to attract a large number of foreign startups investing in Vietnam, especially in information technology (IT) and ordinary goods trading, as these are popular investment sectors with few conditions.

Four-step process to set up an FDI company before IRC

Step 1: Assessing conditions for applying the new mechanism

Self-check question for investors: Does the intended business line fall under the List of market access restrictions for foreign investors according to Article 8 of the Investment Law 2025?

Step 2: Preparing the enterprise registration dossier

Enterprise registration dossier under Article 24 of Decree 296/2026/ND-CP:

• Enterprise registration application containing the commitment to satisfy market access conditions.
• Other documents according to the enterprise type (Articles 19 to 22 of the Enterprise Law) – excluding the IRC copy.
• Declaration of ultimate beneficial owner information under Articles 17 and 18 of Decree 296/2026/ND-CP (determined via a mandatory two-step mechanism).

Step 3: Registering the enterprise and receiving the ERC

• Submit the dossier to the provincial-level Business Registration Authority where the head office is located;
• Resolution time limit: 02 standard working days (excluding time for supplementation, business registration system interlinking, dossier transportation…).

Step 4: Implementing the procedure for Investment Registration Certificate issuance or special investment procedures (if any)

• For projects applying special investment procedures: submit the investment registration dossier to the Management Board of the industrial park, high-tech park, or economic zone according to Article 28 of the Investment Law 2025;
• For standard projects: issue the Investment Registration Certificate according to the standard procedural sequence under Article 42 of the Investment Law 2025.

Notes on the application scope of the new mechanism and exclusion cases

• Does not apply to projects under the List of business lines banned from investment according to Article 6 of the Investment Law 2025;
• Conditional market access business lines: Investors must still note that they are required to satisfy market access regulations for foreign investors under Article 8 of the Investment Law 2025, ensuring the commitment in the enterprise registration dossier when applying for establishment under the new mechanism.

Legal risk warnings and compliance obligations for foreign investors in Vietnam

• Legal binding nature: The market access commitment does not replace the final appraisal step by the competent authority;
• Consequence of a “real” legal entity with a “virtual” project: If the IRC is rejected after establishing the company, the enterprise cannot implement the project, facing the risk of compulsory dissolution under Decree 296/2026/ND-CP and bearing operational costs;
• Elimination of circumvention structures: The structure of using a Vietnamese individual as a nominee to set up the company and then transferring it back to the foreign investor upon having the IRC is officially placed under the prohibition scope according to Article 4, Clause 1 of Decree 296/2026/ND-CP.
• Beneficial owner transparency framework: Controlled at the 25% threshold but expanded to include family groups, general partners, and mandatory three-step criteria.

Recommendations for risk mitigation

• Carefully review the List of market access restrictions;
• Review Vietnam’s WTO and FTA commitments regarding the intended business lines;
• Seek specialized legal advice before establishment.

Compliance checklist and situational recommendations for foreign investors in Vietnam

Depending on the specific characteristics of the project, investors need a flexible response strategy.

• For high-tech manufacturing projects in industrial parks, combining the ability to set up FDI company before IRC and the 2026 special investment procedures is the most optimal solution.
• Conversely, for Fintech projects in financial centers, or conditional business lines, investors need to seek specialized advice before signing the market access commitment to avoid the risk of IRC rejection later.
• For investment funds utilizing an investment trust structure, preparing dossiers to prove ownership under anti-money laundering law is a prerequisite right from the stage of submitting the enterprise registration dossier.

Frequently asked questions about how to set up FDI company before IRC in Vietnam

How long does it take to establish a legal entity under the new mechanism?

With the mechanism exempting the IRC submission, investors can receive the Enterprise Registration Certificate in just 3 to 5 working days from the time of submitting a complete and valid dossier to the Business Registration Authority.

What happens if the market access commitment is not approved by the state agency?

The established enterprise will not be issued an IRC, leading to the inability to operate the project. The investor faces the risk of having to conduct enterprise dissolution procedures and bear all financial responsibilities related to tax and labor.

Is it possible to use a Vietnamese individual as a nominee to set up the company first to shorten the time?

No. Article 4 of Decree 296/2026/ND-CP clearly stipulates that owners and members must not act as nominees for others. This act will lead to penalizing sanctions and affect the legality of the enterprise.

Foreign investment consulting services in Vietnam at Viet An Law

Viet An Law is proud to provide comprehensive legal solutions, accompanying foreign investors in the context of continuously updated laws:

• Assess feasibility and conditions for applying the mechanism to establish an enterprise before the IRC for each specific FDI project;
• Support the drafting of standardized market access commitment documents, closely cross-referencing with WTO/FTA commitments;
• Advise on reviewing complex ownership structures, fulfilling the obligation to declare ultimate beneficial owners in compliance with Decree 296/2026/ND-CP and FATF standards;
• Represent investors in implementing the entire procedure for issuing the Enterprise Registration Certificate;
• Provide long-term strategic advice on tax, accounting, and anti-money laundering law compliance for foreign-invested enterprises.

The regulation to establish an FDI company before obtaining an Investment Registration Certificate in Vietnam under Decree 296/2026/ND-CP is a breakthrough step, approaching international practices on the business environment. To ensure the investment process occurs safely and lawfully through proper Decree 296/2026/ND-CP, kindly contact the specialized lawyer team at Viet An Law directly for timely advice and support.

Lawyer in charge: Lawyer Trung Thi Lieu

Article reviewer: Trainee Lawyer Do Quynh Trang

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