A companion article in this series explains how transfer pricing inside a joint venture works. This one addresses the harder question: at the suspicion stage, where does a minority investor find evidence strong enough to turn a hunch into a winnable case? In intra-JV pricing disputes, the losing side usually loses not because the law is against it, but because its file contains nothing more than a feeling that “prices look high”. Vietnamese courts and tribunals place the burden of proof on the parties, so the case is effectively decided during evidence gathering, long before the first hearing.
Evidence layer one: internal documents obtained through statutory rights
The cheapest and firmest starting point is the inspection right in Clause 2 of Article 115 of Enterprise Law No. 59/2020/QH14: a shareholder or group holding 5 percent or more may examine and extract board minutes, resolutions and decisions, financial statements, Supervisory Board reports, and contracts and transactions that require board approval. The request should be written, itemising each document group (purchase contracts with each affiliate, transaction approval minutes, quotation files), with proof of delivery kept. If the company refuses, the refusal letter, or prolonged silence, itself becomes evidence of concealment and unlocks the right to require the Supervisory Board to examine the specific issue under the same clause.
In a limited liability company, members have access to books, financial statements and Members’ Council records under the Enterprise Law and the charter; if obstructed, a member may sue to compel disclosure. Practical experience: collect across three financial years, because transfer pricing is systematic conduct. A single period of data is easily explained away by the other side as market fluctuation.
Evidence layer two: special audit and price benchmarking data
One misconception should be corrected plainly: Vietnamese law does not give a minority shareholder a unilateral right to appoint an independent auditor to “raid” the company at will. The annual financial statement auditor is chosen from a list approved, and appointed, by the General Meeting of Shareholders. The workable routes are: ask the Supervisory Board to inspect and propose a special audit; put a special audit on the General Meeting agenda; or rely on a special-audit right pre-agreed in the charter or shareholders agreement, which is why that clause must be negotiated when the venture is formed.
For benchmarking, the methodology of Decree No. 255/2026/ND-CP, the current framework replacing Decree No. 132/2020/ND-CP from the 2026 tax period, is the best technical reference: functional analysis, selection of a pricing method (comparable uncontrolled price, resale price, cost plus, profit split, transactional net margin) and the arm’s length range. A pricing analysis report by an independent firm built on this methodology carries far more evidentiary weight than a handful of loose quotations the other side can dismiss.
Evidence layer three: turning the file into a winnable claim
Suing under Articles 161 and 167 (or Article 67 for an LLC) of the Enterprise Law, the claimant must prove four links: a related relationship between the counterparty and the majority shareholder or managers; a transaction approved through a defective process, or voted on by the interested party; a transaction price departing from market price at the transaction date; and a quantified loss to the company. The Civil Procedure Code No. 92/2015/QH13 places the duty to supply evidence on the parties (Articles 6 and 91), while allowing requests for the court to collect evidence and to commission a price appraisal — a vital tool when part of the file sits in the counterparty’s hands.
Timing strategy matters as much as technique. If assets or cash flows show signs of being moved out, the claimant should simultaneously seek interim measures under the Civil Procedure Code to freeze further transactions. Conversely, if price evidence is still thin, suing early only helps the other side “clean” its file and align its story; completing the benchmarking report and the Supervisory Board inspection first is the wiser sequence.
Evidence-gathering roadmap when transfer pricing is suspected
- Serve a written document request under Clause 2 of Article 115, itemising each file group and keeping proof of delivery.
- Require the Supervisory Board to run a thematic inspection of affiliate transactions over at least three financial years.
- Engage an independent firm to prepare a price benchmarking report using ND 255/2026 methodology.
- Trace the beneficial ownership of the related seller or buyer through enterprise registration and payment flows.
- Time the filing: seek interim measures if dissipation looms; finish the price evidence first if the file is still thin.
Frequently Asked Questions
Where do I gather evidence if I suspect my partner of transfer pricing?
Start with internal documents the law lets you reach: contracts, approval minutes for related-party transactions, financial statements and Supervisory Board reports under Clause 2 of Article 115 of the Enterprise Law. Then add market evidence through an independent price benchmarking report using ND 255/2026 methodology, and relationship evidence from enterprise registration records. Make every document request in writing, so that a refusal also becomes evidence.
Do I have the right to hire an independent auditor?
Not as an absolute unilateral right. The annual auditor is appointed by the General Meeting of Shareholders; a special audit normally runs through the Supervisory Board, a General Meeting resolution, or a right pre-agreed in the charter or shareholders agreement. Without such a clause, a minority can still require the Supervisory Board to examine specific issues under Clause 2 of Article 115 and use the inspection results to ground an audit proposal at the next shareholders’ meeting.
What must be proven to win a transfer pricing lawsuit?
Four links: a related relationship between the counterparty and the majority shareholder or managers; a defective approval process under Article 67 or Article 167 of the Enterprise Law, including the interested party voting; a transaction price departing from market price at the transaction date, proven by benchmarking analysis; and a quantified monetary loss to the company. Missing the price or loss link sinks most cases even where the conduct really happened.
What if the partner hides or destroys the records?
The Civil Procedure Code No. 92/2015/QH13 allows a party to ask the court to collect evidence it cannot obtain itself and to commission expert appraisal. A company’s refusal to produce documents that shareholders may lawfully inspect under Article 115 can also be weighed against the refusing side. Outside litigation, shareholders can escalate the concealment to the Supervisory Board and put it on the General Meeting agenda as a standalone governance issue.
This article has been quality-reviewed by the FLAW AI Legal Council