Market Access in Vietnam for Foreign Investors: WTO, CPTPP and EVIPA Commitments and the 2026 Restricted List

Before capital, location or tax incentives enter the picture, every FDI project in Vietnam must clear a first gate: market access. This is a threshold legal question — whether a foreign investor is permitted to enter the intended line of business at all, and if so, on what conditions. Get this question wrong, and everything built on top of it (ownership ratios, investment form, the IRC filing) may have to be redone from scratch.

This guide maps the market-access framework across two layers: the domestic layer (Article 8 of the 2025 Investment Law and the List in Decree 96/2026/ND-CP) and the international-commitments layer (WTO, CPTPP, EVFTA/EVIPA) — while drawing a sharp line against a frequently confused concept: business conditions.

Contents

• 1. Market access is the first gate — and the most misunderstood
• 2. Foundational principles: national treatment and the negative list
• 3. Three market-access scenarios under Decree 96/2026
• 4. Five categories of market-access conditions
• 5. Who must comply with the restricted list
• 6. The WTO layer: the services schedule and how to read it
• 7. The CPTPP layer: negative-list scheduling and the ratchet rule
• 8. The EVFTA and EVIPA layer: what applies now, what is pending
• 9. Overlapping commitments: which level of openness applies
• 10. A clean distinction: market-access conditions vs. business conditions
• 11. Seven-step research checklist before committing capital
• 12. Four common traps
• 13. Frequently asked questions
• 14. When to engage counsel

1. Market access is the first gate — and the most misunderstood

"Market access" in Vietnamese investment law is not an abstract notion. Articles 8(2) and 8(3) of the 2025 Investment Law (No. 143/2025/QH15, effective 1 March 2026) define it concretely through a government-published list: the List of sectors with restricted market access for foreign investors — comprising (a) sectors not yet open to market access, and (b) sectors open subject to conditions.

Why is this the first gate? Because market-access conditions are tested at the very moment a foreign investor establishes an economic organisation. Under the route of incorporating the company before obtaining the Investment Registration Certificate (IRC), the enterprise registration dossier must contain a commitment to satisfy market-access conditions (Article 72(3) of Decree 96/2026/ND-CP) — and the business registration authority does not examine that commitment at the time of incorporation; the investor bears sole responsibility for its accuracy (per Official Letter 5427/BTC-DNTN of 29 April 2026 of the Ministry of Finance). In other words, there is no guard on duty at this gate when the company is formed — but the legal consequences arrive later: at the IRC stage, upon business-line expansion, or during post-licensing inspection.

The costliest and most common confusion is to equate "market-access conditions" with "business conditions". The two differ in who they apply to, in the legal question they answer, and in their source (domestic vs. international commitments). Section 10 draws that line firmly; the preceding sections are devoted to market-access conditions.

2. Foundational principles: national treatment and the negative list

Article 8(1) of the 2025 Investment Law lays down the foundational principle: foreign investors are subject to the same market-access conditions as domestic investors, except for sectors on the government-published restricted list. This is the domestic expression of national treatment — a pillar of international investment law.

From this principle follows the practical mechanism practitioners call the negative list: a foreign investor is deemed to enjoy market access in every sector except those listed on the restricted List. Absence from the List means no separate market-access conditions — the foreign investor enters on the same terms as a domestic investor.

One subtlety deserves emphasis: "like a domestic investor" concerns entry only. If the sector is a conditional business line (requiring sub-licences, statutory capital, practising certificates), the foreign investor must still satisfy all such conditions like any other enterprise — that is the business-conditions layer, not market access.

The legal bases on which the Government builds the List are enumerated in Article 8(2): laws, National Assembly resolutions, ordinances and Standing Committee resolutions, Government decrees and international treaties to which Vietnam is a party. That final phrase is the bridge between the domestic and international layers — Vietnam's WTO, CPTPP and EVFTA commitments are not merely external obligations; they are a direct legal basis for determining each sector's degree of openness.

3. Three market-access scenarios under Decree 96/2026

Decree 96/2026/ND-CP (guiding the Investment Law, effective from its signing date of 31 March 2026, replacing Decree 31/2021/ND-CP) implements Article 8 of the Law in Articles 15 through 18, publishing the List of sectors with restricted market access in Appendix I. Article 17 divides practice into three clear scenarios:

Scenario 1 — Sectors outside the restricted List. Market-access conditions are equivalent to those for domestic investors; no separate conditions apply to foreign investors. This covers the majority of sectors and reflects Vietnam's opening trajectory — ordinary manufacturing and most unrestricted commerce being typical examples.

Scenario 2 — Sectors not yet open to market access. The competent authority will refuse licensing, and foreign investors may not invest in those sectors in Vietnam. The critical distinction from "sectors in which business investment is prohibited" (Article 6 of the 2025 Investment Law): prohibition applies to all investors, domestic and foreign alike, whereas "not yet open" restricts foreign investors only — domestic investors may still operate normally.

Scenario 3 — Sectors open subject to conditions. Foreign investors may enter but must satisfy specific conditions — the five categories in Article 8(3) of the 2025 Investment Law (see Section 4).

Article 18 of Decree 96/2026/ND-CP further provides that the List is published and updated — it is not a static document. Research conducted at project planning stage must be checked against the latest update, not against an old saved copy or memory from a previous deal.

4. Five categories of market-access conditions

Where a sector falls into the "conditional access" group, Article 8(3) of the 2025 Investment Law lists five categories of conditions the List may impose on foreign investors:

1. Foreign ownership ratios in the economic organisation's charter capital — e.g., foreign ownership caps in certain services or financial sub-sectors.
2. Form of investment — e.g., investment permitted only through a joint venture with a Vietnamese partner, not through a 100% foreign-owned enterprise in that sector.
3. Scope of investment activities — e.g., permission to supply certain services within a sector but not others, or geographic limitations.
4. Capacity of the investor; partners participating in the investment — e.g., track-record, financial-capacity or qualification requirements for the investor or for the Vietnamese joint-venture partner.
5. Other conditions under laws, National Assembly resolutions, ordinances, Standing Committee resolutions, Government decrees and international treaties to which Vietnam is a party.

Beyond these five, Article 15(3) of Decree 96/2026/ND-CP adds a further layer of conditions (where applicable) that foreign investors and foreign-invested economic organisations must meet when operating in Vietnam: conditions on the use of land, labour, natural resources and minerals; on the production and supply of public goods and services or State-monopoly goods and services; on the ownership of and trading in residential housing and real estate; on the application of State support and subsidies for certain sectors, industries or territorial development; on participation in State-owned enterprise equitisation programmes; and other conditions under investment treaties restricting market access for foreign-invested economic organisations.

In deal practice, categories 1 (ownership ratios) and 2 (investment form) determine transaction structure — they directly affect whether the investor can control the Vietnamese company — and must therefore be resolved before SPA negotiation or charter drafting.

5. Who must comply with the restricted list

Article 16 of Decree 96/2026/ND-CP identifies two groups subject to the List:

• Foreign investors as defined in Article 3(19) of the 2025 Investment Law (foreign-national individuals and organisations established under foreign law conducting business investment in Vietnam); and
• Economic organisations falling under Article 20(1)(a), (b) and (c) of the 2025 Investment Law — i.e., foreign-controlled economic organisations (foreign investors holding over 50% of charter capital and equivalent controlling structures) — when they: establish another economic organisation; contribute capital or acquire shares/stakes in another economic organisation; or invest under a BCC contract.

The practical consequence: an FDI company operating smoothly in Vietnam that wishes to expand into a new line of business or acquire a Vietnamese company in a listed sector must re-check market-access conditions — prior market entry does not exempt subsequent activities from review. Many FDI enterprises overlook this when planning expansion.

6. The WTO layer: the services schedule and how to read it

6.1. The WTO's place in Vietnam's commitment system

Vietnam became a WTO Member on 11 January 2007 (the 150th member). Within the WTO framework, services market-opening commitments sit in the General Agreement on Trade in Services (GATS) together with Vietnam's Schedule of Specific Commitments on Services submitted upon accession. This is the baseline layer — applying to investors from all WTO Members under most-favoured-nation treatment — and the starting point for assessing any services sector's openness.

Two GATS provisions matter: Article XVI (Market Access), listing six types of restrictions a member may not maintain unless inscribed in its schedule (limits on the number of suppliers, total value of transactions, number of service operations, number of natural persons, requirements as to legal-entity form, and limits on foreign capital participation); and Article XVII (National Treatment), requiring treatment no less favourable than that accorded to domestic services and suppliers in committed sectors.

6.2. Four modes of supply and the schedule's structure

GATS divides services trade into four modes of supply: Mode 1 (cross-border supply), Mode 2 (consumption abroad), Mode 3 (commercial presence — establishing an enterprise, branch or office in the host country) and Mode 4 (presence of natural persons). For a foreign investor seeking to incorporate a company in Vietnam, Mode 3 is the decisive one.

Vietnam's schedule is organised as a table with columns for sector/sub-sector, limitations on market access, and limitations on national treatment — each split across the four modes. Above the sectoral commitments sit horizontal commitments: conditions applying across all committed sectors (e.g., general rules on foreign investors' commercial presence).

6.3. Reading a commitment entry: None, Unbound and specific limitations

When looking up a sector, the Mode 3 cell typically takes one of three forms:

• "None" — full commitment: Vietnam maintains no Article XVI/XVII limitations for that mode in the sector. The highest level of openness.
• "Unbound" — no commitment: Vietnam retains full regulatory freedom. An investor cannot invoke the WTO to claim access here.
• Specific limitations — e.g., foreign ownership ceilings, joint-venture requirements, limits on the scope of services, or an economic needs test (ENT) before network expansion. These limitations are precisely the "raw material" from which the Government builds the domestic restricted List.

One methodological caution: WTO commitments are a ceiling on openness — Vietnam may (and often does) open further in domestic law, but may not close below its commitments vis-à-vis investors from WTO Members in committed sectors. Where the domestic List (Appendix I of Decree 96/2026/ND-CP) appears narrower than the WTO schedule, the investor has grounds to raise the question — but invoking the commitment in a specific filing is a legal argument to be prepared carefully, not an automatic formula, since the registration authority applies the domestic List directly.

On sector examples: the services sectors investors most often research include distribution, telecom, finance–banking–securities, advertising, legal services, education, healthcare and transport. Each has its own commitment history and staging; this guide does not list sector-by-sector figures, because numbers are only meaningful when read against the correct sub-sector in the original schedule and the current sectoral regulations. Consulting the original schedule text is indispensable — see the checklist in Section 11.

7. The CPTPP layer: negative-list scheduling and the ratchet rule

7.1. Background and scope

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership was signed by 11 countries on 8 March 2018 in Santiago, Chile; Vietnam's National Assembly ratified it on 12 November 2018; and it entered into force for Vietnam on 14 January 2019 (60 days after Vietnam notified ratification to New Zealand, the depositary). It is the highest-standard new-generation FTA Vietnam has joined, with investment and services commitments in Chapter 9 (Investment) and Chapter 10 (Cross-Border Trade in Services).

7.2. The negative-list approach

Unlike the WTO (which commits only what is inscribed — a positive-list approach), CPTPP uses a negative list: all services sectors and investment activities are deemed open except for measures Vietnam has listed in its schedules of non-conforming measures (NCM) — Annex I (existing measures it wishes to preserve) and Annex II (reservations for future measures). Absence from the reservation schedules means openness.

The core obligations against which NCM schedules may reserve include: national treatment (Article 9.4), most-favoured-nation treatment (Article 9.5), performance requirements, and senior management and board-of-directors requirements. Any regulatory measure without a discriminatory element may be maintained without scheduling — an important point, because not every administrative hurdle breaches CPTPP.

7.3. The ratchet rule

CPTPP's most practically valuable feature is the ratchet — the "no roll-back" principle — in Article 9.12(1)(c) (Chapter 9) and Article 10.7(1)(c) (Chapter 10): Vietnam may unilaterally amend measures listed in its NCM schedules in a more favourable (more open) direction, but once liberalised, may not roll back. The Ministry of Industry and Trade's Official Letter 2538/BCT-DB of 11 May 2022 formally drew attention to this principle as applied to Vietnam in services–investment.

The consequence for investors: openness Vietnam has implemented in practice (including opening beyond its commitments in domestic law) tends to become a floor that cannot be lowered for investors from CPTPP countries. For long-horizon projects, this is a meaningful policy-stability factor — with the caveat that the rule applies only to measures within the NCM schedules, not to every policy.

8. The EVFTA and EVIPA layer: what applies now, what is pending

The Vietnam–EU pair is often named together, but legally the two agreements have entirely different fates — and that difference determines what an EU investor can invoke today.

Both were signed on 30 June 2019. EVFTA (the trade agreement) was approved by the European Parliament (12 February 2020), adopted by the European Council (30 March 2020) and ratified by Vietnam's National Assembly (8 June 2020), entering into force on 1 August 2020. Vietnam's investment and services liberalisation commitments vis-à-vis the EU sit in Chapter 8 (Trade in Services, Investment and E-commerce) and the annexed schedules of specific commitments — the operative text an EU investor may rely on.

EVIPA (the investment protection agreement) is different: on the EU side it still requires ratification by the parliaments of all 27 EU Member States before entering into force. As of the date of this article, EVIPA is not yet in force. Its scope must be understood correctly: it is primarily about post-establishment investment protection (fair and equitable treatment, protection against expropriation, a new investment dispute-settlement mechanism replacing traditional ISDS arbitration), and will gradually replace the bilateral investment promotion and protection agreements (BITs) between Vietnam and individual EU states. Pending EVIPA's entry into force, the existing bilateral BITs remain the applicable protection framework — an EU investor should identify the BIT between Vietnam and its home state to know the exact scope of protection.

In short for EU investors: market opening — consult EVFTA (in force); investment protection — consult the applicable bilateral BIT and monitor EVIPA ratification.

9. Overlapping commitments: which level of openness applies

A Japanese investor in Vietnam is simultaneously covered by the WTO, CPTPP and the Vietnam–Japan bilateral agreement; a German investor by the WTO, EVFTA and the Vietnam–Germany BIT. Where commitments overlap, the practical question is: which level of openness applies?

As a matter of principle, most-favoured-nation (MFN) treatment in investment agreements lets an investor enjoy the most favourable treatment Vietnam has accorded to investors of any other country — subject to Vietnam's scheduled exceptions (in CPTPP, for instance, Vietnam reserved the right to accord differential treatment to ASEAN states and to partners with agreements signed before CPTPP's entry into force). Logically, the investor benefits from the "highest openness ceiling" among the commitments covering it.

Candour about practice is required, however: Vietnam's investment registration authorities apply the domestic restricted List in Appendix I of Decree 96/2026/ND-CP directly when appraising filings. That List is in principle built with international commitments in mind (Article 8(2) of the 2025 Investment Law lists treaties as a basis), but where an investor believes the domestic List is narrower than a commitment Vietnam made to its home country, invoking the treaty in a specific filing is a legal argument requiring careful preparation — not an automatic formula. This is precisely where counsel adds decisive value (see Section 14).

Beyond the three main layers, investors should know Vietnam is also party to the ASEAN Comprehensive Investment Agreement (ACIA) and dozens of bilateral BITs — each with its own scope and depth. But for mainstream FDI advisory, the WTO–CPTPP–EVFTA/EVIPA trio covers most scenarios for investors from major economies.

10. A clean distinction: market-access conditions vs. business conditions

This is the article's core distinction — and what sets it apart from write-ups on the conditional business-lines list (see our guide on conditional business lines for foreign investors).

Illustration through retail/distribution: at the market-access layer, the foreign investor consults the WTO commitments and the Decree 96/2026 List to learn whether it may distribute the product, and whether ownership-ratio or investment-form limits apply. At the business-conditions layer, every enterprise (including 100% Vietnamese-owned) must comply with commercial-law requirements; the FDI enterprise additionally needs a distribution business licence under Decree 09/2018/ND-CP, and establishing retail outlets beyond the first is subject to an economic needs test (ENT). The two layers are independent: clearing market access does not waive licensing, and vice versa.

Transition note: Decree 342/2026/ND-CP (issued 3 September 2026, effective 18 October 2026) replaces Decree 09/2018/ND-CP — from that date, the distribution licensing procedures above are governed by Decree 342/2026/ND-CP.

The rule to remember: a lawful FDI project must clear both layers. Missing either can stall the project at licensing or trigger enforcement at inspection.

11. Seven-step research checklist before committing capital

1. Pin down the exact intended line(s) of business by industry code and a factual description of activities (not just the commercial label). Mis-describing the activity leads to consulting the wrong list — the most common error at this step.
2. Consult the restricted List in Appendix I of Decree 96/2026/ND-CP (the latest update per Article 18): which of Article 17's three scenarios applies — outside the List, not yet open, or conditionally open?
3. If conditionally open, list every applicable condition — ownership ratio, investment form, scope, capacity/partners — and test whether the contemplated deal structure (holding ratio, joint venture vs. wholly foreign-owned) satisfies them.
4. Establish the investor's nationality and the applicable treaties: WTO (all Members), CPTPP (11 members), EVFTA (27 EU states), ACIA/bilateral BITs — to know which commitment layer covers you.
5. Cross-check the original commitment texts: the WTO services schedule (Mode 3), CPTPP NCM Schedules (Annexes I/II), EVFTA schedules of specific commitments — verifying whether the domestic List faithfully reflects the committed openness, especially when your structure sits "at the ceiling" of what is permitted.
6. Research the sector's business conditions (the second layer): the conditional business-lines list and sectoral laws — sub-licences, capital, personnel, facilities.
7. Record the research in a dated internal memorandum citing sources (document numbers, articles, effective dates), because both the List and the commitments may be updated; the memorandum also evidences good-faith compliance when dealing with the authorities.

12. Four common traps

Trap 1 — "The WTO committed this sector, so we can surely do it." WTO commitments are scheduled sub-sector by sub-sector with stated limitations; skimming the sector name without reading the Mode 3 entry and the horizontal commitments easily produces the wrong conclusion. Always research down to sub-sector level and cross-check against the domestic List.

Trap 2 — "EVIPA is signed, so EU investors are fully protected." EVIPA was signed on 30 June 2019 but is not in force; the operative protection framework for EU investors remains the bilateral BITs. This confusion can lead to misjudging the available dispute-settlement mechanism.

Trap 3 — "Our FDI company is established, so it can expand into any line." Article 16 of Decree 96/2026/ND-CP applies the restricted List to foreign-controlled economic organisations establishing another entity, contributing capital/acquiring shares or stakes, or investing under a BCC contract. Every expansion is a fresh check.

Trap 4 — "Satisfying market-access conditions is enough to operate." As Section 10 explains, that is only the first layer. The business-conditions layer (sub-licences, statutory capital, practising certificates) applies to all enterprises and is policed throughout operations — missing it can halt a project that already holds an IRC.

13. Frequently asked questions

How do market-access conditions differ from business conditions? Market-access conditions apply only to foreign investors and answer whether a foreign investor may enter a sector and on what terms (Article 8 of the 2025 Investment Law; Appendix I of Decree 96/2026/ND-CP). Business conditions apply to all investors and answer what licences, capital and personnel are needed to operate. An FDI project must clear both.

If a sector is not on the restricted List, is a foreign investor treated like a domestic investor? In principle, yes — Article 8(1) of the 2025 Investment Law and Article 17(2) of Decree 96/2026/ND-CP. But "like a domestic investor" concerns entry only; the sector's business conditions must still be met in full.

Do WTO commitments let foreign investors operate in every services sector? No. Vietnam's commitments are scheduled sector by sector; each may read "None", "Unbound" or carry specific limitations (ownership caps, joint-venture requirements, ENT). The correct sub-sector in the original schedule must be consulted.

Has EVIPA entered into force? Not as of the date of this article. Signed 30 June 2019, EVIPA still awaits ratification by all EU Member State parliaments. Investment/services opening vis-à-vis the EU currently sits in EVFTA (Chapter 8), in force since 1 August 2020.

Do CPTPP-country investors get better treatment than WTO-only investors? Potentially, in sectors where Vietnam's CPTPP commitments run deeper. CPTPP uses a negative-list approach (no reservation = openness) plus the ratchet rule. Actual openness must still be checked sector by sector, and the Decree 96/2026 List is what authorities apply directly.

Must an operating FDI company re-check market access when expanding? Yes, in the Article 16 Decree 96/2026/ND-CP cases: establishing another economic organisation, capital contribution/share or stake acquisition, or BCC-contract investment.

14. When to engage counsel

Market-access research is work an investor can begin with the Section 11 checklist — but there are situations where counsel is not merely helpful but close to indispensable:

• "At-the-ceiling" deal structures: your ownership ratio or activity scope sits near the permitted limit in the List or the schedule — the interpretation of a single word can decide the whole structure.
• Hybrid, hard-to-classify activities: your actual operations could fall under several sub-sectors with different openness levels — correct sub-sector identification is specialist work.
• Divergence between the domestic List and an international commitment: where you believe a WTO/CPTPP/EVFTA commitment grants you more openness than the Decree 96/2026 List, the treaty-invocation argument in a filing must be prepared as a standalone legal brief.
• Multi-nationality, multi-layer projects: ownership routed through several jurisdictions — determining the "investment nationality" for treaty coverage is legitimate treaty planning, but delicate.

FLAT Law Firm advises foreign investors comprehensively on market access: researching the List and international commitments against your project's actual lines of business, designing compliant ownership and investment-form structures, preparing IRC filings, and engaging with the investment registration authorities. Contact us for a feasibility assessment of your project before capital is committed.