Author:

• Ha Minh Khang – Lawyer

• Tran Phuong Nam – Lawwyer

Pursuant to the Law on Management and Investment of State Capital No. 68/2025/QH15 and Decree No. 366/2025/ND-CP, the financial operations of State-Owned Enterprises (SOEs) have shifted from an “ex-ante control” (pre-check) mechanism to an “ex-post control” (post-check) mechanism. This shift is grounded in three core principles: (1) Autonomy Associated with Capital Preservation: Enterprises possess the right to self-determination in mobilizing capital but must ensure solvency and prevent the loss of State capital. (2) Proper Purpose of Capital Mobilization: Borrowing must be based on feasible production and business plans, ensuring compliance with prescribed financial safety indicators and debt-to-equity ratios as prescribed by regulation. (3) Strict Control of Lending Activities: SOEs are only permitted to extend loans to entities within their ecosystem or value chain and must strictly adhere to requirements regarding loan security. Strict adherence to these principles is a prerequisite for enterprises to mitigate legal risks and meet the requirements of comprehensive restructuring in the new governance era of 2026.

1. Principles of Throughout Capital Flow Governance

Article 5 of the Law 2025 establishes five immutable principles that all capital mobilization and lending activities must adhere to. Violation of any of these principles may result in the invalidation of transactions or legal liability:

• Compliance with Laws and International Treaties: Operations must ensure constitutionality, legality, and consistency with international integration commitments (such as CPTPP, EVFTA) regarding state-owned enterprises.
• Non-Administrative Intervention: The owner-representative agency and state management agencies shall not directly intervene in the enterprise’s production, business, or investment activities; nor shall they intervene in the management and executive operations of the enterprise’s managers. This principle protects business autonomy, preventing administrative orders that force enterprises to lend or mobilize capital for non-profit political purposes without a compensation mechanism.
• Management through Representation: The State exercises ownership rights through representatives, ensuring that enterprises operate on an equal footing and compete according to market mechanisms.
• Preservation and Development of Capital: This is the paramount principle. Every capital mobilization plan (borrowing) must demonstrate the capacity for repayment; every lending plan must ensure the full recovery of principal and interest, preventing capital loss.
• Publicity, Transparency, and Accountability: Enhanced social supervision is required. All significant debts and the financial situation must be disclosed periodically.

Despite these regulations, managing and controlling the efficiency of state capital flows remains a “sensitive” issue. The balance between “responsibility and risk” for the capital representative, the governing body, and the enterprise management is a top priority for all related parties. Enterprises must grasp the precise interpretation of regulations to concretize them into internal charters, financial regulations, and salaryand remuneration regulations, and restructure internal processes for approvals and soliciting opinions from management agencies.

2. Principles of Capital Mobilization: Autonomy and Self-Responsibility

Under the Law on Management and Investment of State Capital in Enterprises 2025, capital mobilization activities of SOEs must adhere to the following strict principles:

Enterprise Autonomy

Under the new regulations, enterprises are granted autonomy to formulate and decide on capital mobilization plans serving their production and business activities. Methods such as credit borrowing, bond issuance, or other lawful forms suitable to market needs and development strategies. This activity strictly adheres to the “self-borrowing, self-repayment” principle. Accordingly, the enterprise assumes comprehensive responsibility for capital efficiency and debt repayment obligations. The State bears no responsibility for debts mobilized by the enterprise, except in cases guaranteed by the Government under specific regulations of the Law on Public Debt Management.

Limits on Mobilization and Debt Ratios

A notable point in the Law 2025 is the increased flexibility regarding the Debt-to-Equity Ratio. Pursuant to the Law, Enterprises must immediately report to the owner-representative agency if capital mobilization results in total liabilities (including guarantees) exceeding three (03) times the owner’s equity. Instead of applying a rigid ceiling (no more than three times) as before, the new Law does not prohibit exceeding this ratio but establishes a supervisory reporting mechanism. When this threshold is reached, the enterprise’s right to self-determination is limited; any additional loans are subject to appraisal by the owner-representative agency. In practice, agencies (such as the Commission for the Management of State Capital at Enterprises – CMSC) will strictly limit approval for plans exceeding this threshold, barring special cases serving urgent political or national defense tasks.

Note: “Liabilities” include not only bank loans or bonds but all payables on the Balance Sheet (payables to suppliers, taxes payable, payables to employees, etc.) plus guarantee obligations. Including guarantee obligations in this limit is an extremely strict provision designed to prevent insolvency.

Decision-Making Authority

Authority is clearly decentralized. The Members’ Council or Company President decides on capital mobilization plans. In cases where the safety coefficient is exceeded (three times the equity), the enterprise must report to the owner-representative agency for supervision.

3. Principles of Lending: Strict Risk Control

Lending activities by SOEs are tightened under the 2025 Law to prevent “shadow” transactions or capital loss, specifically as follows:

Scope of Borrowers

SOEs are permitted to provide loans or loan guarantees only to enterprises in which they hold a dominant shareholding (over 50% of charter capital). This implies an absolute prohibition on SOEs lending to:

• Associated companies (ownership of 50% or less).
• External business partners.
• Individuals (employees, executives, etc.).
• Other enterprises without a dominant capital ownership relationship.

Allowing lending to subsidiaries (>50%) serves the mechanism of capital coordination within Groups and General Corporations (Parent-Subsidiary models). The Parent Company acts as a financial center, mobilizing low-cost capital and reallocating it to subsidiaries to optimize the group’s overall capital efficiency. For companies with <50% ownership, State control is insufficient to ensure loan security; thus, the law prohibits this to prevent risk of capital loss.

Lending Limits

To ensure capital safety, the Law stipulates that the total value of loans and loan guarantees shall not exceed the actual contributed capital of the SOE at the borrowing entity (at the time of the lending/guarantee decision). This regulation profoundly impacts the financial structure of Groups, preventing the “thin capitalization” practices where a Parent Company establishes subsidiaries with nominal charter capital but funds operations primarily through lending, thereby transferring risk to the Parent Company. If a Parent Company wishes to provide significant capital support to a subsidiary, it must consider increasing charter capital (equity investment) rather than lending.

Priority of Capital Preservation

Capital usage (including lending) must adhere to the principle of preserving and developing state capital. Any lending decision resulting in a capital loss or irrecoverable debt due to subjective causes will expose enterprise managers to criminal liability under regulations on the crime of Violating regulations on the management and use of State assets causing loss and waste.

Overall, Law 2025 has defined a new financial management framework, shifting from rigid administrative control to a flexible risk supervision mechanism for SOE capital mobilization. While the debt-to-equity ratio ceiling (more than three times) is no longer absolutely prohibited, exceeding this threshold—calculated to include guarantee obligations—activates a special supervisory reporting mechanism and restricts the enterprise’s autonomy. To adapt to this legal corridor, enterprises are responsible for urgently reviewing and amending their Charters and internal financial management regulations. Concurrently, SOEs must proactively develop medium- and long-term capital strategies that strengthen risk control systems and ensure legal transparency and solvency across all mobilization plans.

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Time of writing: 26/01/2026

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