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Fred Burke

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Frederick Burke is a member of Baker McKenzie’s Global Policy Committee, comprised of the Firm’s Managing Partners globally, responsible for driving the overall strategy of the Firm. He is also the Managing Partner of our Baker McKenzie offices in Vietnam, more particularly in Hanoi and Ho Chi Minh City. He has more than 30 years’ experience practicing in the areas of corporate law, real estate, international trade and is highly regarded for his work on foreign investment projects in Vietnam and China for key players in property development, trade, IT/C, and project finance, among other areas. Mr. Burke is the go-to advisor for big deals in Vietnam’s flourishing industries including: renewable energy, agribusiness, airlines, hotels, resorts and tourism and large scale infrastructure projects. He is currently the representative of the American Chamber of Commerce in Vietnam to the Prime Minister’s Advisory Council on Administrative Reform in Vietnam and he has been recognized by the Ministry of Justice of Vietnam for his “Outstanding contributions in the field of international legal cooperation”. Mr. Burke is consistently ranked as a Leading Lawyer in Corporate / M&A by leading legal publications in Vietnam (Legal 500 AP 2007-2018; Chambers and Partners AP 2012-2018; IFLR1000 2010-2018).

The Ministry of Industry and Trade of Vietnam (MOIT) recently released a new draft circular regarding the implementation of the pilot program for direct power purchase agreement (DPPA) mechanisms between renewable energy developers/power generation companies and private power buyers/consumers (“New Draft DPPA Circular”).1 

The Ministry of Industry and Trade of Vietnam (MOIT) recently issued Circular No. 57/20201 replacing Circular No. 56/2014,2 on the method of determining tariffs and PPA negotiation and appraisal procedures for conventional power projects (including LNG-to-power, hydropower and other thermal power). Circular No. 57 generally retains the key principles on tariff determination and negotiation of the PPA draft, and provides for, among other things, updates to the principles and method of determining tariffs and the re-introduction of re-negotiation on tariffs and the PPA based on the finalized investment capital of the project. Circular No. 57 aims to provide for a more streamlined regulation with regard to the negotiation and implementation of tariff and the PPA, which is one of the key concerns of investors/developers of conventional power projects.

On 22 February 2021, the Ministry of Industry and Trade of Vietnam (MOIT) released the draft proposal for the national power development plan for the period of 2021-2030, with a vision to 2045 (“Draft PDP8”) for public comments. This is the third version of the draft, which the MOIT prepared and updated in February 2021. The draft proposal includes an 843-page main explanatory report, with an addition of 174 pages of appendices.

Under the Master Planning Law and the notice from the MOIT, the draft proposal of PDP8 has been made available for public comments for a period of 30 days from the MOIT’s notice.

We set out below the key highlights of the draft PDP8 proposal.

The Vietnamese government recently issued Decree No. 05/2021/ND-CP (“Decree No. 05”)1 on the management and operation of airports and airfields in Vietnam, replacing Decree No. 102/2015/ND-CP (“Decree No. 102”).2 The new decree comes into effect on 10 March 2021, and provides for, among other things, new regulations regarding the investment and operation of airport and airfield projects in Vietnam.

In the context of the global shift from government ownership and operation to private participation in the airport and aviation infrastructure sector, and responding to increasing calls to promote private sector investments in airports in Vietnam, Decree No. 05 provides certain foundations to facilitate new opportunities for private investment in airports and airfields in Vietnam.

However, there are certain legal issues that will need to be considered in relation to airport concessions, depending on whether the legal and contractual frameworks involve public-private partnership (PPP) or private investment structures on a project-by-project basis.

On 22 February 2021, the Ministry of Industry and Trade of Vietnam (MOIT) released the draft proposal for the national power development plan for the period of 2021-2030, with a vision to 2045 (“Draft PDP8”) for public comments. This is the third version of the draft, which the MOIT prepared and updated in February 2021. The draft proposal includes an 843-page main explanatory report, with an addition of 174 pages of appendices.

Under the Master Planning Law and the notice from the MOIT, the draft proposal of PDP8 has been made available for public comments for a period of 30 days from the MOIT’s notice.

We set out below the key highlights of the draft PDP8 proposal.

The Vietnamese government recently issued Decree No. 05/2021/ND-CP (“Decree No. 05”)1 on the management and operation of airports and airfields in Vietnam, replacing Decree No. 102/2015/ND-CP (“Decree No. 102”).2 The new decree comes into effect on 10 March 2021, and provides for, among other things, new regulations regarding the investment and operation of airport and airfield projects in Vietnam.

In the context of the global shift from government ownership and operation to private participation in the airport and aviation infrastructure sector, and responding to increasing calls to promote private sector investments in airports in Vietnam, Decree No. 05 provides certain foundations to facilitate new opportunities for private investment in airports and airfields in Vietnam.

However, there are certain legal issues that will need to be considered in relation to airport concessions, depending on whether the legal and contractual frameworks involve public-private partnership (PPP) or private investment structures on a project-by-project basis.

The government of Vietnam recently issued Resolution No. 140/NQ-CP1 promulgating the government’s action program (“Government’s Action Program”) to implement Resolution No. 55-NQ/TW of the Politburo on the orientation of the National Energy Development Strategy to 2030, with a vision to 2045 (“Resolution No. 55”). The Government’s Action Program highlights, among others, the specific tasks and responsibilities of state management agencies of Vietnam to implement the general and specific objectives of the energy development as earlier set forth in Resolution No. 55.

Resolution No. 140 also sets out a list of key specific laws, regulations, programs, projects and master plans required to be prepared and issued in the next 10 years for implementing the Government’s Auction Program with specific agenda items for 2021.

On 21 January 2021, the Electricity and Renewable Energy Authority of Vietnam (EREA) submitted Report No. 20/BC-DL to the Deputy Minister of Industry and Trade in charge. The report requests the Ministry of Industry and Trade (MOIT)’s internal approval of the draft of the Prime Minister’s decision on the selection of investors for grid-connected solar power projects in Vietnam (“Draft Decision”).

This Draft Decision would apply the selection mechanism on a long-term basis. Bidding rounds will be conducted based on a so-called Renewable Energy Development Plan formulated by the MOIT for each five-year period. A more specific plan will be circulated on a biannual basis.

Vietnam’s automotive industry has experienced steady progress in recent years. With Vietnam having a population of nearly 100 million and a sustainable economy, this growth trend is expected to continue. The development of Vietnam’s automotive industry remains one of the government’s main focuses, with new laws and policies to promote…