|
THE
MINISTRY OF FINANCE
------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
----------
|
|
No.
124/2008/QD-BTC
|
Hanoi,
December 26, 2008
|
DECISION
ISSUING REGULATIONS ON ESTABLISHMENT AND OPERATION OF
REPRESENTATIVE OFFICES OF FOREIGN SECURITIES BUSINESS INSTITUTIONS IN VIETNAM
THE MINISTER OF FINANCE
Pursuant to the Law on
Securities dated 29 June 2006;
Pursuant to Decree 14/2007/ND-CP of the Government dated 19 January 2007
implementing the Law on Securities;
Pursuant to Decree 118/2008/ND-CP of the Government dated 27 November 2008 on
functions, duties, powers and organizational structure of the Ministry of
Finance;
Having considered the proposal of the Chairman of the State Securities
Commission;
DECIDES:
Article 1.-
To issue with this Decision, Regulations on
establishment and operation of representative offices of foreign securities
business institutions in Vietnam.
Article 2.-
This Decision shall be of full force and effect
fifteen (15) days after the date of its publication in the Official Gazette.
Any provisions in previous legal instruments which are inconsistent with the
provisions in these Regulations shall no longer be effective.
Article 3.-
The Head of the Office of the Ministry, the Chairman
of the State Securities Commission, representative offices of foreign
securities business institutions in Vietnam and other related parties shall be
responsible for implementation of this Decision.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
FOR
THE MINISTER OF FINANCE
DEPUTY MINISTER
Tran Xuan Ha
REGULATIONS
ON ESTABLISHMENT AND OPERATION OF REPRESENTATIVE OFFICES OF
FOREIGN SECURITIES BUSINESS INSTITUTIONS IN VIETNAM
(Issued with Decision 124/2008/QD-BTC of the Ministry of Finance dated 26
December 2008)
Chapter 1
GENERAL PROVISIONS
Article
1.- Governing scope
These Regulations guide
establishment and operation of representative offices of foreign securities
business institutions in Vietnam's securities market.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
In these Regulations, the following
terms shall be construed as follows:
1. Parent company means a
foreign securities business institution ["FSBI"] with a
representative office operating in Vietnam.
2. Authorized representative
means:
(a) Chairman of the board of
management or General Director (Director) of the FSBI;
(b) Any proxy pursuant to a
written power of attorney from a person prescribed in sub-clause (a) above;
(c) Any person authorized by the
charter of the FSBI to sign documents prescribed in these Regulations and to
undertake related work within the scope of authority assigned to such person.
3. Valid copy means a copy which
has been notarized [and/or] certified by the competent administrative body of
Vietnam.
4. Valid file means a file
containing complete and valid documents required by these Regulations and
containing complete declarations required by law.
5. Commencement of operation
means commencement of conduct of the operation of the representative office.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article
3.- General provisions
1. Any securities business
institution, legally established and currently operating pursuant to foreign
law, which satisfies the condition stipulated in article 4 of these Regulations
shall be permitted to open a representative office to operate in Vietnam.
2. Representative offices of
FSBIs in Vietnam shall be subject to administration and supervision by the
State Securities Commission ["SSC"].
3. Representative offices of
FSBIs in Vietnam which were established prior to the date on which the Law on
Securities took effect and which have not yet registered their operation
pursuant to provisions of the law on securities, must re-register their
operation with the SSC. The file for re-registration of the operation of a
representative office in Vietnam of a FSBI shall comply with article 5 of these
Regulations.
4. The legal rights and
interests of representative offices of FSBIs in Vietnam and of people working
in such offices shall be protected [by the law of Vietnam] and such offices and
people working in them shall be obliged to comply with the law of Vietnam.
Chapter 2
ESTABLISHING A
REPRESENTATIVE OFFICE IN VIETNAM
Article 4.-
Conditions for establishing a representative office of a FSBI
A FSBI which satisfies the
following conditions shall be permitted to establish a representative office in
Vietnam:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. It is licensed to operate
pursuant to foreign law or has business registration with the competent
authority in the securities sector in the country of domicile[i] for professional securities operations including
one or more professional operations such as securities brokerage, securities
self-trading, securities investment consultancy, underwriting securities
issues, asset management and management of securities investment funds.
3. It is permitted to open a
representative office in Vietnam by the competent authority of the foreign
country which licensed its establishment or where it has business registration;
or the FSBI is not restricted by foreign law in establishing or registering
business of a representative office in Vietnam:
4. The provision in clause 2 of
this article shall not apply to foreign institutions operating in the capital
market and permitted to provide asset management services for a restricted
number of investors satisfying a number of conditions pursuant to foreign law
and which manage investment funds established overseas with the intention [and]
objective of investing in Vietnam.
Article 5.-
File for registration to operate a representative office of a FSBI in Vietnam
1. A file for registration to
operate a representative office of a FSBI in Vietnam shall contain:
(a) Request for issuance of a
certificate of registration of operation of a representative office4 signed by
the authorized representative of the FSBI (on the standard form in Appendix 1
issued with these Regulations).
(b) The following data in the
case of a foreign institution which satisfies the conditions stipulated in
clauses 1 and 2 of article 4 above:
- Valid copy operational
licence, business registration certificate or other data with equivalent legal
value issued by the competent authority in the securities sector of the foreign
country, certifying that the FSBI satisfies the conditions stipulated in
clauses 1 and 2 of article 4 above. If any of the above-mentioned documents
stipulate the operational term of the FSBI, then the residual term must be at
least one year.
The following data if the FSBI
only satisfies the conditions stipulated in article 4.4 above:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Foreign law extract proving
that the foreign institution is permitted to provide asset management services.
If a foreign institution
satisfies the conditions stipulated in article 4.4 above and has registered a
trading number for investment activities in Vietnam of investment funds such
foreign institution currently manages, then the following additional data:
- List of investment funds
operating in Vietnam certified by an authorized person of the foreign
institution enclosing a copy of the certificate of registration of the
securities trading number of such funds. The List of funds shall include
information on the scale of capital raised, the scale of capital proposed to be
invested in Vietnam, proposed investment sectors, custodian bank in Vietnam,
securities company or fund management company to provide securities services,
and bank at which an indirect investment capital account has been opened
enclosing valid copy certificate of registration of such account.
If a foreign institution
satisfies the conditions stipulated in article 4.4 above but has not yet
registered a trading number for investment activities in Vietnam of investment
funds such foreign institution currently manages, then the following additional
data:
- Valid copy certificate of
registration of establishment of fund or equivalent data issued by the
competent authority of the country where such institution raised capital to
establish the fund or register its operation. If the law of the country of
domicile of the fund provides it is unnecessary for the competent authority to
issue the above-mentioned data, then the foreign institution may lodge the
following data instead, namely an extract from the website of the competent
authority of the country of domicile of the fund certifying that the fund has
completed registration of its establishment.
- Copy Fund Prospectus or
equivalent data.
- Fund Charter/Articles of
Association.
- Trust Deed/Fund Contract or
Memorandum for Private Placement/Establishment Contract.
- Certificate from depositary or
custodian bank certifying the scale of capital contribution.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
(d) Minutes of meeting of the
board of management of the FSBI and the board's Resolution on establishment of
a representative office in Vietnam and on appointment of a head representative
in Vietnam, specifying the operational scope of the representative office in
Vietnam, and enclosing a written undertaking from the FSBI to be wholly liable
for the operation of its representative office in Vietnam and assuring that
such operation will comply with the law of Vietnam.
(e) Valid copy passport or
identity card, and summarized curriculum vita of the person proposed to be
appointed as head representative in Vietnam (on the standard form in Appendix 2
issued with these Regulations) and certified by the FSBI, or certified by the
local authority if the head representative is Vietnamese. A list and summarized
curriculum vitae, certified by the competent administrative body, of staff (if
any) who will work in the representative office (on the standard form in
Appendix 2 issued with these Regulations).
(f) Contract in principle
regarding lease of headquarters of the representative office, enclosing
certification of ownership or right to lease of the lessor.
(g) Financial statements for the
most recent financial year or a certificate certifying discharge of tax or
financial obligations in the most recent financial year issued by the competent
authority of the country in which the FSBI was established.
(h) Document from the competent
authority of the country of domicile of the FSBI permitting such institution to
open a representative office to operate in Vietnam; or if the law of such
country does not require such approval, then an extract of foreign law proving
same.
2. The file stipulated in clause
1 of this article shall be prepared in two sets, one in Vietnamese and one in
English, in which:
(a) The set in English must be
consularized, except for financial statements directly prepared in English and
except for documents which the competent authority of the foreign country sends
directly to the SSC.
(b) Copies of Vietnamese
documents and translations from English into Vietnamese must be certified by a
notary legally practising in Vietnam in accordance with the law on
notarization. However the following translations may be certified by an entity
authorized to provide translation services in Vietnam, namely translations of
the annual financial statements, of
Memorandum for Private
Placement/Establishment Contract, or of the Articles of Incorporation or Fund
Charter and translations of equivalent data.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. A file may be amended or
supplemented if the FSBI considers it necessary or if the SSC so requests.
Amending or supplementary documents must be signed by the original signatory to
the documents in the original file sent to the SSC, or by a person with the
same title as such signatory.
4. The SSC shall, within seven
(7) business days from the date of receipt of a complete and valid file
requesting issuance of a certificate of registration of operation of a
representative office, issue such certificate; and in a case of refusal, the
SSC shall provide a written response specifying its reasons.
Article 6.-
Announcement of information and commencement of operation
1. The FSBI shall, within thirty
(30) days from the date of issuance of the certificate of registration of
operation of its representative office, conduct procedures with the police
office to request a seal (procedures to be conducted with the Department of
Public Security in the city or province under central authority where the
representative office is set up) in accordance with guidelines of the police
office; and announce such certificate in three consecutive editions of a
newspaper or electronic media permitted to be published in Vietnam, such
announcement to contain the following particulars:
(a) The name and headquarters
[in Vietnam] of the representative office.
(b) Name and headquarters of the
FSBI with the representative office operating in Vietnam.
(c) Name and nationality of the
head representative.
(d) Number, date of issuance and
operational term of such certificate.
Operational items of the
representative office.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 7.-
Operational duration of a representative office
1. The term of operation of the
representative office of a FSBI shall be specifically stated in the certificate
of registration of its operation.
2. The term of effectiveness of
a certificate of registration of operation of a representative office shall be
a maximum of five years but may not exceed the residual term of the operational
licence, business registration certificate or equivalent legal document of the
FSBI.
Article 8.-
Amendment of certificate of registration of operation of a representative office
1. A FSBI must request that the
SSC amend or supplement the certificate of registration of operation of its
representative office on any of the following changes:
(a) Change of head
representative.
(b) Change of name of the
representative office.
(c) Change of headquarters of
the representative office.
(d) Change of name or address of
the headquarters of the FSBI within its country of domicile.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Change in operation of the FSBI;
or change in its legal status or a change relating to division, de-merger or
consolidation of the FSBI.
2. A file for amendment of the
certificate of registration of operation of the representative office shall
contain:
(a) In a case of change of the
head representative in Vietnam as prescribed in clause 1(a) above:
- Request for amendment of such
certificate signed by the authorized representative of the FSBI (on the
standard form in Appendix 3).
- Decision changing and
appointing the new head representative, signed by the authorized representative
of the FSBI.
- Data proving that the outgoing
head has fully discharged tax and financial obligations to the State of
Vietnam.
- Valid copy passport or
identity card, and summarized CV of the person proposed to be appointed as the
new head representative in Vietnam, certified by the FSBI or by the local
authority if such person is Vietnamese (on the standard form in Appendix 2).
(b) In a case of amendment of
such certificate as a consequence of a change of name or change of headquarters
of the representative office as referred to in sub-clauses (b) and (c) of
clause 1 above:
- Request for amendment of such
certificate, signed by the authorized representative of the FSBI or head of the
representative office if he or she has authority from the FSBI (on the standard
form in Appendix 3) and enclosing the power of attorney.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Copy lease contract for the
new location (required for a change of headquarters of the representative
office).
(c) In a case of amendment of
such certificate as a consequence of a change in the FSBI as referred to in
sub-clauses (d), (e) or (f) of clause 1 above:
- Within three months from the
date of such change, the FSBI must lodge a request for amendment of such
certificate signed by the authorized representative of the FSBI.
- Valid copy operational
licence, business registration certificate or legal data proving the change of
address of the FSBI within the country where it was established, or the change
of name, legal status, headquarters or place of business registration of the
FSBI or equivalent valid data of the FSBI certified by the competent authority
of its country of domicile.
3. The SSC shall, within seven
(7) business days from the date of receipt of a complete and valid file from the
FSBI as referred to in clause 2 above, amend such certificate; and in a case of
refusal, the SSC shall provide a written response specifying its reasons. This
time-limit shall not include any time required by the FSBI to amend or add to
its file applying for amendment of the certificate of registration of operation
of its representative office.
4. The FSBI shall, within seven
(7) days from the date on which such certificate is amended, announce
information about amended items in the manner prescribed in article 6.1 of
these Regulations.
Article 9.- Extension
of certificate of registration of operation of a representative office
1. The certificate of
registration of operation of the representative office of a FSBI may be
extended when the FSBI satisfies the following conditions:
(a) It continues to legally
maintain its operation in accordance with the law of its country of domicile,
and satisfies the condition stipulated in article 4 of these Regulations.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. A FSBI must conduct
procedures of an extension at least thirty (30) days prior to the date on which
the certificate of registration of operation of its representative office
expires.
3. A file for extension of such
certificate shall contain:
(a) Request for an extension
signed by the authorized representative of the FSBI (on the standard form in
Appendix 3).
(b) The data stipulated in
sub-clauses (b), (d) and (g) of article 5.1 of these Regulations.
(c) The data stipulated in
sub-clauses (c), (e) and (h) of article 5.1 of these Regulations in a case of a
change in the Charter of the FSBI, a change of head representative, or a change
of headquarters of the representative office.
4. The time-limit for the SSC to
conduct procedures for such extension shall be the same as that stipulated for
issuance of a certificate of registration of operation of a representative
office in article 5.4 of these Regulations [7 business days]. In a case of
refusal, the SSC shall provide a written response specifying its reasons. This
time-limit shall not include any time required by the FSBI to amend or add to
its file applying for extension of such certificate.
Article
10.- Operational scope; and rights and obligations of representative office
and of head representative and staff at the representative office.
1. The operational scope of a
representative office of a FSBI in Vietnam may comprise one, a number, or all
of the following items:
(a) Implementation of the
function of a contact office, and conduct of market research.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
(c) Advancement and supervision
of performance of contracts already agreed and signed between the FSBI with
Vietnamese economic organizations in the securities sector.
(d) Advancement and supervision
of performance of projects which the FSBI finances in Vietnam in the securities
sector.
2. The representative office of
a FSBI which operates in a number of sectors shall only be permitted to conduct
the activities stipulated in clause 1 of this article.
3. A representative office shall
have the following rights:
(a) To open an office bank
account in foreign currency or in VND sourced from foreign currency, only at a
credit institution authorized to conduct foreign exchange activities in
Vietnam, and only to use such account for the activities of the representative
office. The opening, use and closure of bank accounts of representative offices
shall be implemented in accordance with State Bank regulations.
(b) To hire Vietnamese and
foreigners to work at the representative office in accordance with the law of
Vietnam. The parent company must, within five (5) business days from the date
on which it recruits any additional foreigner to work at the representative
office, report to the SSC on such recruitment and enclose documents certifying
approval by the competent administrative bodies.
(c) A representative office of a
FSBI in Vietnam shall have its own seal in accordance with the law of Vietnam,
and may only use such seal on transaction documents within the authority and
function of the representative office.
(d) Other rights as stipulated
by law.
4. A representative office shall
have the following obligations:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
(b) To register its employees
and conduct other procedures relevant to Vietnamese or foreign employees with
the people's committee of the province or city under central authority in
accordance with law and guidelines from such people's committee.
(c) Not to conduct business
activities in Vietnam, nor to conduct asset management or management of capital
of investors including that part of the investment capital of the parent
company in Vietnam, nor to conduct other securities business activities in
Vietnam.
(d) Other obligations as
stipulated by law.
5. The head representative may
not concurrently act as:
(a) The person heading a branch
of the same FSBI in Vietnam or the head representative or head of the branch of
another foreign institution in Vietnam, or the director, deputy director
(general director, deputy general director) or a member of staff of a
securities business institution in Vietnam.
(b) The legal representative or
director, deputy director (general director, deputy general director) of an
enterprise established in accordance with the law of Vietnam.
(c) The legal representative of
a FSBI; or a member of the board of management or director, deputy director
(general director, deputy general director) or other individual with the right
to sign economic contracts and conduct asset transactions and who is not
required to have a written power of attorney from the FSBI.
6. The head representative may
only represent the FSBI in signing contracts relevant to business activities
and investments of the FSBI with Vietnamese economic organizations and
securities business institutions when he or she has a written power of attorney
from an authorized person of the FSBI. A power of attorney must be prepared for
each occasion of signing (authorization for each occasion) and a valid copy of
such power of attorney must be sent to the SSC within ten (10) business days
from the date of its signing.
Article
11.- File and procedures for termination of operation of a representative
office
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
(a) It voluntarily terminates
its operation in accordance with the request of the FSBI.
(b) On expiry of the operational
term stipulated in its certificate.
(c) The FSBI is dissolved or
declared bankrupt.
(d) The certificate of the
representative office of the FSBI is revoked pursuant to article 12 of these
Regulations.
2. In the cases referred to in
sub-clauses (a) and (b) above, the FSBI must send the SSC a request for
termination of operation of its representative office at least thirty (30) days
prior to the date on which it is proposed to dissolve or terminate the
operation. The file requesting termination shall contain the following
documents:
(a) Notice of proposal to
terminate operation of the representative office (on the standard form in
Appendix 5).
(b) Plan on termination
comprising the order and procedures proposed for liquidation of assets and
debts of the representative office; method, proposed period and plan on
discharging debts, on recovering assets, and resolving rights and obligations
of entities concerned; and a plan on remitting money and assets of the
representative office overseas.
(c) Decision of the authorized
representative or authorized body of the parent company on such termination.
(d) Other documents if so
requested by the SSC.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. The representative office
must, within fifteen (15) days from the date of receipt of written approval in
principle from the SSC, complete the following procedures to close the office:
(a) Announce in three
consecutive editions of a central or local newspaper where the representative
office has its headquarters, the termination of operation in order for entities
concerned to go to the office to resolve their interests.
(b) Liquidate the lease contract
for its headquarters and labour contracts with its employees and other
transactions (if any).
(c) Fully discharge tax and
financial obligations to the State in accordance with current regulations.
(d) Conduct procedures to return
its seal and its certificate of registration of specimen seal with the body which
issued the seal.
(e) Fully discharge other
obligations owing to entities concerned.
5. The FSBI shall, after
completing the procedures stipulated in clause 4 above, report to the SSC by
sending a file containing the following documents:
(a) Notice of termination of
operation of the representative office signed by the authorized representative
of the FSBI (on the standard form in Appendix 6).
(b) Data proving that the FSBI
has completed procedures for liquidation and has fully discharged its
obligations to entities concerned as stipulated in sub-clauses (a) to (e)
inclusive of clause 4 above (with certification from the tax office; and
documents liquidating the lease contract for the headquarters and liquidating
labour contracts and so forth) as required by the relevant law of Vietnam.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
6. The SSC shall issue a
decision terminating the operation of the representative office within fifteen
(15) days from the date of receipt of a complete and valid file as required by
clause 5 above.
7. The representative office
shall be permitted, after it receives the decision on termination of operation
of the representative office from the SSC, to remit overseas the remaining assets
of the FSBI after completing liquidation in accordance with current
regulations.
Article
12.- Revocation of certificate of registration of operation of a
representative office
The certificate of registration
of operation of the representative office of a FSBI may, depending on the
nature and seriousness of the circumstances, be revoked as follows:
1. The FSBI or its
representative office deliberately breaches the regulations of Vietnam on
foreign exchange control or regulations in the securities sector, or rigs the
market, conducts insider trading, is guilty of fraud, or fails to fully
discharge its tax and other financial obligations to the State of Vietnam as
required by law.
2. The file of the FSBI
requesting issuance of such certificate contained false or inaccurate
information or lacked an item which the law stipulates was necessary.
3. The representative office
conducted activities for the wrong purpose or function, or incorrectly in terms
of the items in its certificate or other provisions of law on activities of
representative offices.
4. The representative office
failed to send reports to the SSC or other competent bodies on time as
stipulated by law, or within the time requested by the SSC or such bodies.
5. The FSBI voluntarily
terminates the operation of its representative office in Vietnam.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
7. The representative office
fails to conduct operations within a period of twelve (12) months as from the
date on which it is licensed.
Article
13.- Reporting regime, and archiving of files by a representative office
1. A representative office must
report on its activities to the SSC on a quarterly and annual basis (on the
standard form in Appendix 7 issued with these Regulations).
2. The time-limit for lodging
the reports stipulated in clause 1 shall be:
(a) Within fifteen (15) business
days from the end of a quarter.
(b) Within ninety (90) business
days from the end of a year.
3. A representative office must
report, provide data and explain issues relevant to its operation, including
activities of the FSBI on the securities market of Vietnam, in necessary cases
and on written request from the SSC or another competent body pursuant to the
law of Vietnam.
Chapter 5
INSPECTION, SUPERVISION,
AND DEALING WITH BREACHES
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
A representative office of a
FSBI and staff working in such office shall be subject to management,
inspection and supervision by the SSC and other administrative bodies with
authority pursuant to the law on Vietnam.
Article
15.- Dealing with breaches
Any FSBI or representative
office which breaches the provisions of these Regulations shall, depending on
the nature and seriousness of the breach, be dealt with by the law on dealing with
administrative breaches in the securities sector.
Chapter 6
ORGANIZATION OF
IMPLEMENTATION
Article
16.- Application of the Law on Securities to representative offices which
were established and operating prior to the effective date of these Regulations
Any FSBI with a representative
office operating in accordance with the Law on Securities must amend its
relevant activities/operation for compliance with these Regulations within
three (3) months from the date on which these Regulations take effect.