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THE STATE BANK
OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No:
05/2014/TT-NHNN
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Hanoi, March 12,
2014
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CIRCULAR
GUIDING
THE OPENING AND USE OF INDIRECTLY- INVESTED CAPITAL ACCOUNTS FOR IMPLEMENTATION
OF FOREIGN INDIRECT INVESTMENT ACTIVITIES IN VIETNAM
Pursuant to the Law on State Bank of Vietnam
No.46/2010/QH12 dated June 16, 2010;
Pursuant to the Law on Credit Institutions No.47/2010/QH12
dated June 16, 2010;
Pursuant to the Law on Investment
No.59/2005/QH11 dated November 29, 2005;
Pursuant to the Law on Securities
No.70/2006/QH11 dated June 29, 2006;
Pursuant to the Law on amendment,
supplementation of a number of articles of the Law on Securities
No.62/2010/QH12 dated November 24, 2010;
Pursuant to Ordinance on Foreign Exchange
No.28/2005/PL-UBTVQH11 dated December 13, 2005;
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Pursuant to Decree No.156/2013/ND-CP dated
January 11, 2013 of the Government stipulating the functions, tasks, power and
organizational structure of the State Bank of Vietnam (below collectively
referred to as the State Bank);
At the proposal of Director of Department of
Foreign Exchange Management,
The Governor of the State Bank promulgates
Circular guiding the opening and use of indirectly-invested capital accounts
for implementation of foreign indirect investment activities in Vietnam.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
This Circular prescribes the opening and use of
indirectly-invested capital accounts for implementation of transactions
relating to foreign indirect investment activities in Vietnam.
Article 2. Subjects of
application
1. This Circular applies to
the following subjects:
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b) Organizations and individuals who are related to
indirect investment activities in Vietnam.
2. This Circular does not
govern foreign investors being residents who are foreign organizations and
individuals. These subjects conduct indirect investment activities in Vietnam
according to prevailing legal provisions on securities and other relevant
normative legal documents.
Article 3. Interpretation of
terms
In this Circular, the terms below are construed as
follows:
1. “Foreign investors”
include subjects who are nonresident foreign organizations and individuals
conducting indirect investment activities in Vietnam;
2. “Licensed banks” include
commercial banks and branches of foreign banks licensed to trade and supply
foreign exchange service according to legal provisions.
3. “Licensed credit
institutions” include credit institutions and branches of foreign banks
licensed to trade and to supply foreign exchange service according to legal
provisions.
4. “Indirectly-invested
capital account" is a payment account in Vietnam Dong opened by a foreign
investor in a licensed bank for implementation of permitted receipt and expense
transactions relating to foreign indirect activities in Vietnam.
Article 4. General principles
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2. When conducting foreign
indirect investment activities in Vietnam under forms as prescribed in Article
5 of this Circular, foreign investors will have to comply with provisions of
this Circular, legal provisions on opening and use of payment accounts,
provisions of the Law on Securities, documents guiding the Law on Securities,
prevailing legal provisions pertaining to activities of capital contribution,
purchase of shares in Vietnamese enterprises of foreign investors and
activities of foreign investors on the securities market of Vietnam and other
relevant legal provisions.
3. Balance on
indirectly-invested capital accounts of foreign investors are not permitted to
transfer to definite-term deposits and saving deposits at credit institutions
and branches of foreign banks.
Article 5. Forms of foreign
indirect investment in Vietnam
Activities of indirect investment in Vietnam of
foreign investors include forms as follows:
1. Capital contribution,
purchase or sale of shares or contributed capitals in Vietnamese enterprises which
are not listed or registered for transactions yet on securities market of
Vietnam and do not directly participate in the management and administration of
enterprises.
2. Capital contribution,
purchase or sale of shares in Vietnamese enterprises on the Unlisted Public
Company Market (UPCOM) and the listed securities market and do not directly
participate in the management and administration of enterprises.
3. Sales and purchase of
bonds and other types of stocks on the securities market of Vietnam.
4. Sale and purchase of
other valuable papers in Vietnam Dong which are permitted to issue within the
territory of Vietnam by organizational residents.
5. Investment
trust in Vietnam Dong through fund management companies, securities companies
and organizations are permitted to conduct the investment trust operation under
the legal provisions on securities; investment trust in Vietnam Dong through
credit institutions and branches of foreign banks are allowed to conduct the
investment trust operation under the provisions of the State Bank.
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7. Other indirect
investment forms according to legal provisions.
Chapter II
SPECIFIC PROVISIONS
Article 6. Opening of capital
accounts for indirect investment
1. When conducting indirect
investment activities in Vietnam, the foreign investor will have to open one
(01) capital account of indirect investment at one (01) licensed bank for
implementation of receipt-payment transactions permitted under provisions of
Article 7 of this Circular.
2. In the case where the
foreign investor is having and using a capital account of indirect investment
at a licensed bank but has demand to open another indirectly-invested capital
account in another licensed bank, such foreign investor is requested to close
the existing capital account for direct investment, transfer all the balance in
this account to the new account. Procedure on the opening and closing of the
capital account for indirect investment will be conducted according to
provisions of the licensed bank.
The foreign investor will only be entitled to
conduct receipt and expense transactions on the newly-opened capital account of
indirect investment as prescribed above after having the previously-opened
capital account of indirect investment closed and settled.
Article 7. Use of
indirectly-invested capital accounts
The indirectly-invested capital account will be
used for implementation of receipt-payment transactions relating to foreign
indirect investment activities in Vietnam as follows:
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a) Receipts from selling foreign currencies to
licensed credit institutions;
b) Receipts from transfer of contributed capital,
shares, sale of securities and other valuable papers, receipt of dividends and
interests from bonds and valuable papers in Vietnam Dong from foreign indirect
investment activities in Vietnam;
c) Receipts of transfer from payment accounts in
Vietnam Dong of foreign investors opened at licensed banks;
d) Receipts of transfer from accounts of fund
management enterprises, securities companies, credit institutions and branches
of foreign banks permitted to conduct investment trust operation for foreign
investor (applied in cases that foreign investors conduct indirect investment
in Vietnam under the form of investment trust);
dd) Other legal transactions of receipts in Vietnam
Dong of foreign investors relating to foreign indirect investment activities in
Vietnam.
2. Payments:
a) Payments for implementation of foreign indirect
investment activities in Vietnam under forms prescribed in Article 5 of this
Circular;
b) Payments for buying foreign currencies from
licensed credit institutions in order to transfer capitals, interests and other
lawful incomes to foreign countries;
c) Payments for legal expenses incurred in Vietnam;
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dd) Payments for transfer to accounts of fund
management enterprises, securities companies, and organizations permitted to
conduct investment trust operation for foreign investor (applied in cases that
foreign investors conduct indirect investment in Vietnam under the form of
investment trust);
e) Other transactions for lawful payments relating
to foreign indirect investment activities in Vietnam.
Article 8. Remittance of
invested capitals to foreign countries
In case of having demand in remittance of capitals,
interests and other lawful incomes from foreign indirect investment activities
to foreign countries, the foreign investor may use Vietnam Dong in the capital
account of indirect investment to buy foreign currencies at licensed credit
institutions and remit to foreign countries.
Article 9. Transformation of
investment forms of foreign investors
1. Transformation of
investment from indirect form to direct form or from direct form to indirect
form of foreign investors must be conducted according to prevailing legal
provisions on investment and other relevant legal provisions.
2. In case that a foreign
investor conducting indirect investment in Vietnam under the form of buying
shares or contributing capitals to a Vietnamese enterprise transforms to the
form of direct investment (participates in management and administration of
such enterprise), the transformation of its account will be conducted as
follows:
a) In case that the foreign investor does not
continue conducting his/her/its indirect investment activities in Vietnam,
after completing all procedure for transformation of investment form according
to prevailing legal provisions, the foreign investor will open a capital
account for direct investment in Vietnam Dong at a licensed bank, after that
closes the previously-opened capital account of indirect investment and
transfers all balance on this account to the newly-opened capital account for direct
investment in Vietnam Dong for implementation of direct investment activities
in Vietnam in accordance with prevailing legal provisions on foreign exchange
management and other relevant legal provisions. Procedure for closing a capital
account of indirect investment and procedure for opening a capital account of
direct investment in Vietnam Dong will be conducted according to provisions of
the licensed bank;
b) In case of continue conducting indirect
investment activities in Vietnam, the foreign investor is entitled to use the
previously-opened capital account of indirect investment for implementation of
his/her/its indirect investment activities in Vietnam on the basis of
compliance with provisions under this Circular and other relevant legal provisions.
Concurrently, the foreign investor will conduct the opening and the use of
capital account of direct investment for implementation of foreign direct
investment activities in Vietnam in accordance with prevailing provisions on
foreign exchange management for foreign direct investment activities in Vietnam
and other relevant legal provisions.
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RIGHTS, OBLIGATIONS OF
LICENSED CREDIT INSTITUTIONS AND FOREIGN INVESTORS
Article 10. Rights,
obligations of licensed credit institutions
1. When conducting
transactions of receipts and payments on the capital accounts of indirect
investment of foreign investors, licensed credit institutions are entitled to
request foreign investors to present documents and materials pertaining to
their indirect investment activities in Vietnam.
2. When conducting
transactions of receipts and payments on capital accounts of indirect
investment of foreign investors, licensed credit institutions are responsible
for:
a) Guiding foreign investors to implement
procedures for opening, closing of their capital accounts of indirect
investment and provisions of this Circular;
b) Providing for regulations, conducting inspection
and storage of documents, materials relating to transactions of receipts or
payments conducted on the capital accounts of indirect investment presented by
foreign investors to make sure the supply of foreign exchange service is
carried out in line with purposes and in accordance with legal provisions;
c) Selling foreign currencies to foreign investors
on the basis of self-balance of foreign currency sources of credit
institutions.
3. In addition to rights
and obligations as prescribed in clause 1, clause 2 of this Article, licensed
banks take responsibilities in guiding foreign investors to conduct the transformation
of their capital accounts of indirect investment as prescribed in Article 17 of
this Circular.
Article 11. Rights,
obligations of foreign investors
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2. When conducting
transactions of receipts and payments on capital accounts of indirect
investment, foreign investors are responsible for:
a) Declaring contents of transactions of receipts
and payments which are related to foreign indirect investment activities in
Vietnam as per requirements and instructions of licensed banks;
b) Submitting, supplementing dossiers, documents or
materials at the requests of licensed banks.
Chapter IV
REPORT REGIME
Article 12. Report regime for
licensed credit institutions
Licensed credit institutions will report to the
State Bank in accordance with prevailing provisions on regime for report and
statistics of the State Bank.
Article 13. Request for
extraordinary reports
In extraordinary or necessary cases, foreign
investors, licensed credit institutions and branches of the State Bank in
provinces or centrally-run cities will report relevant contents at requests of the
State Bank.
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CHECK, INSPECTION,
SUPERVISION AND HANDLING OF VIOLATIONS
Article 14. Check, inspection
and supervision
1. The State Bank, branches
of the State Bank in provinces, centrally-run cities will conduct check,
inspection, supervision of implementation status of provisions of licensed
banks and foreign investors which are related to the opening and the use of
capital accounts of indirect investment of foreign investors for implementation
of foreign indirect investment activities in Vietnam.
2. The checked
organizations and individuals are responsible for providing all necessary
documents and materials as prescribed for timely and effective check,
inspection or supervision.
Article 15. Handling of
violations
In cases of infringing provisions of this Circular,
depending on levels of violations, foreign investors and licensed banks will be
fined in accordance with legal provisions.
Chapter VI
IMPLEMENTATION
PROVISIONS
Article 16. Effect
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2. This Circular will
replace Circular No.03/2004/TT-NHNN dated May 25, 2004 of the State Bank
guiding on management of foreign exchange in contribution of capital for buying
shares of foreign investors in Vietnamese enterprises.
Article 17. Transitional provisions
1. Within 90 days since the
effective day of this Circular, foreign investors are responsible for
conducting transformation of their capital accounts of indirect investment in
order to continue conducting their indirect investment activities in Vietnam as
following provisions:
a) In cases that foreign investors have opened
their accounts for contributing capitals or buying shares in Vietnam Dong,
foreign investors will transform names of their capital accounts for
contributing capitals or buying shares in Vietnam Dong as above mentioned into
their capital accounts for indirect investment;
b) In cases that foreign investors have opened
their accounts for contributing capitals or buying shares in Vietnam Dong,
concurrently having balances in Vietnam Dong on indefinite-term specialized
deposit accounts in Vietnam Dong opened by securities enterprises at licensed
banks:
- Foreign investors will
transform names of their capital accounts for contributing capitals or buying
shares in Vietnam Dong as above mentioned into their capital accounts for
indirect investment;
- Foreign investors will
transfer their balances in Vietnam Dong on indefinite-term specialized deposit
accounts in Vietnam Dong opened by securities enterprises at licensed banks
into their capital accounts of indirect investment opened at licensed banks;
c) In cases that foreign investors have not opened
their accounts for contributing capitals or buying shares in Vietnam Dong yet
and have balances in Vietnam Dong on indefinite-term specialized deposit
accounts in Vietnam Dong opened by securities enterprises at licensed banks:
- Foreign investors will
open their capital accounts of indirect investment at licensed banks;
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d) In cases that foreign investors have opened
their accounts for contributing capitals or buying shares in Vietnam Dong,
concurrently have balances in deposit in foreign currencies on indefinite-term
specialized deposit accounts in foreign currencies opened by securities
enterprises at licensed banks:
- Foreign investors will
transform names of their opened capital accounts for contributing capitals or
buying shares in Vietnam Dong into their capital accounts for indirect
investment;
- Foreign investors will
transfer their balances in foreign currencies on indefinite-term specialized
deposit accounts in foreign currencies opened by securities enterprises at
licensed banks into Vietnam Dong; afterwards, transfer such amounts of Vietnam
Dong to their capital accounts of indirect investment for continue implementing
their indirect investment activities in Vietnam.
e) In cases that foreign investors have not opened
their accounts yet for contributing capitals or buying shares in Vietnam Dong,
concurrently have balances in foreign currencies on indefinite-term specialized
deposit accounts in foreign currencies opened by securities enterprises at
licensed banks:
- Foreign investors will
open their capital accounts of indirect investment at licensed banks;
- Foreign investors will
transfer their balances in foreign currencies on indefinite-term specialized
deposit accounts in foreign currencies opened by securities enterprises at licensed
banks into Vietnam Dong; afterwards, transfer such amounts of Vietnam Dong to
their capital accounts of indirect investment for continue implementing their
indirect investment activities in Vietnam.
2. In cases that not continue
implementation of indirect investment activities in Vietnam:
a) Foreign investors are entitled to transfer their
balances of deposits in Vietnam Dong on indefinite-term specialized deposit
accounts in Vietnam Dong opened by securities enterprises at licensed banks and
their balances of deposits in foreign currencies on indefinite-term specialized
deposit accounts in foreign currencies opened by securities enterprises at
licensed banks to their Vietnam Dong accounts or foreign currency accounts of foreign
investors at licensed banks for serving lawful purposes in Vietnam in
accordance with provisions on management of foreign exchange and other relevant
legal provisions or remit to foreign countries;
b) Foreign investors are entitled to use their balances
in Vietnam Dong on their indefinite-term specialized deposit accounts in
Vietnam Dong opened by securities enterprises at licensed banks to buy foreign
currencies and remit to foreign countries on the basis of submission of valid
documents and materials in compliance with prevailing provisions on management
of foreign exchange.
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Article 18. Organization of
implementation
Chief of office, Director of the Department of
Foreign Exchange Management, Heads of relevant units under the State Bank,
Directors of branches of the State Bank in provinces, centrally-run cities,
Chairmen of the Management Boards, Chairmen of the Board of Members, General
Directors (Directors) of credit institutions, branches of foreign banks are
responsible for organizing implementation of this Circular.
FOR GOVERNOR
DEPUTY GOVERNOR
Dao Minh Tu