Merchanting trade: A new opportunity for FDI enterprises in Viet Nam

From September 05, 2026, Decree No. 292/2026/ND-CP (“Decree 292”) establishes a new legal basis for foreign-invested enterprises (“FDI enterprises”) to conduct merchanting trade. Instead of being prohibited as previously regulated, FDI enterprises are now permitted to conduct this activity, provided that the goods are transported directly between two foreign countries without passing through Vietnamese border gates. 

However, this change has not yet been fully synchronized with the regulations on market access applicable to foreign investors. Therefore, enterprises should carefully determine the permitted scope, registration requirements, and transaction conditions before commencing the activity.  

1. From “prohibited” to “permitted subject to conditions”:

Previously, Article 18.2 of Decree No. 69/2018/ND-CP provided that foreign-invested economic organizations were not permitted to conduct merchanting trade, even where the goods did not pass through Vietnam. 

From September 05, 2026, Decree 292 replaced Decree No. 69/2018/ND-CP. Under Article 19.2 of Decree 292, FDI Enterprises are permitted to conduct merchanting trade only where the goods are transported directly from the exporting country to the importing country without passing through Vietnamese border gates.  

Accordingly, an FDI Enterprise may purchase goods from a foreign trader and resell them to a trader in another country, provided that the goods are delivered directly between the two foreign countries. This provision does not apply where the goods pass through Vietnamese border gates or are brought into Vietnam for storage or transit before being exported to a third country.  

2. Merchanting trade must be consistent with the enterprise’s registered business scope: 

The fact that merchanting trade is permitted by law does not mean that an FDI Enterprise may conduct such activity merely based on its registered import, export, or wholesale distribution rights. Article 19.2 of Decree 292 further requires that the goods subject to merchanting trade be consistent with the registered business lines or the contents of the Investment Registration Certificate (“IRC”), where the enterprise is subject to IRC procedures. 

Therefore, enterprises should review the intended categories of goods, the business lines stated in the Enterprise Registration Certificate, and the project objectives recorded in the IRC. For projects subject to an IRC, the application for issuance or amendment of the IRC should clearly specify the merchanting trade activity and the direct shipment model, rather than merely referring generally to import, export, or distribution rights.  

3. Market access issues should still be carefully considered: 

Item A.13 of Appendix I to Decree No. 96/2026/ND-CP (“Decree 96”) currently continues to list “merchanting trade in goods” among the business lines for which foreign investors have not yet been granted market access. Meanwhile, Decree 292 was promulgated subsequently and directly specifies the scope within which FDI Enterprises are permitted to conduct merchanting trade.  

Article 58.4 of the Law on Promulgation of Legal Normative Documents 2025 provides that where legal normative documents issued by the same authority contain different provisions on the same matter, the later-issued document shall prevail. In addition, Articles 17.4 and 17.5 of Decree 96 provide that, for business lines in respect of which Vietnam has made no market access commitments, the applicable market access conditions shall be determined in accordance with Vietnamese law and newly promulgated legal documents. 

Accordingly, there is a legal basis for applying Decree 292 to merchanting trade where the goods do not pass through Vietnamese border gates. Nevertheless, when applying for the issuance or amendment of an IRC, enterprises should prepare a specific legal explanation, and the investment registration authority may also seek opinions from relevant specialized authorities to clarify the application of these provisions in practice. 

4. Contracts and payment arrangements must accurately reflect the transaction: 

Under Article 19.3 of Decree 292, a merchanting transaction must be conducted on the basis of two separate contracts: a purchase contract and a sales contract entered into with foreign traders. The purchase contract may be signed either before or after the sales contract. 

In addition, Article 19.5 of Decree 292 requires payment for the goods to comply with foreign exchange regulations and the guidance of the State Bank of Vietnam. Enterprises should therefore coordinate with their banks in advance regarding the payment flow and supporting documents, and retain the relevant contracts, invoices, and transportation documents to demonstrate that the goods are in fact transported directly between the two foreign countries.  

Conclusion: 

Decree 292 marks a significant change by opening the possibility for FDI Enterprises to conduct merchanting trade, although only where the goods are transported directly from the exporting country to the importing country without passing through Vietnamese border gates. To implement this activity safely and in compliance with the law, enterprises should ensure that the activity is consistent with their registered business scope, prepare appropriate explanations regarding market access, and establish compliant contractual and payment arrangements from the licensing stage. 

Submission date: Sep 20, 2026

Related posts

  1. Legal procedures for terminating an investment project by a foreign-invested enterprise (FDI) in Vietnam
  2. Business operating plans for FDI enterprises in pharmaceutical business activities in Vietnam
  3. Small and medium-sized FDI enterprises exempted from corporate income tax for the first 03 years of establishment

Disclaimers:

This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.

For issues related to the content or intellectual property rights of the article, please email cs@apolatlegal.vn.

Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Business and Investment and contact our team of lawyers in Vietnam via email info@apolatlegal.com.



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