Thông tư 15/2016/TT-BTC sửa đổi hướng dẫn thành lập quản lý quỹ mở

• Số hiệu: 15/2016/TT-BTC
• Loại văn bản: Thông tư
• Nơi ban hành: Bộ Tài chính
• Người ký: Trần Xuân Hà
• Ngày ban hành: 20/01/2016

THE MINISTRY OF FINANCE -------	SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness ---------------
No. 15/2016/TT-BTC	Hanoi, January 20, 2016

CIRCULAR

AMENDING AND SUPPLEMENTING SEVERAL ARTICLES OF THE CIRCULAR NO. 183/2011/TT-BTC DATED DECEMBER 16, 2011 ON PROVIDING GUIDANCE ON ESTABLISHMENT AND MANAGEMENT OF THE OPEN-ENDED FUND

Pursuant to the Law on Securities dated June 29, 2006;

Pursuant to the Law on the amendment and supplementation of a number of articles of the Law on Securities dated November 24, 2010;

Pursuant to the Government's Decree No. 58/2012/ND-CP dated July 20, 2012 on specifying and providing guidance on the implementation of a number of articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities;

Pursuant to the Government's Decree No. 60/2015/ND-CPdated June 26, 2015 on amending and supplementing a number of articles of the Government's Decree No. 58/2012/ND-CP dated July 20, 2012 on specifying and providing guidance on the implementation of a number of articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities;

Pursuant to the Government's Decree No. 215/2013/ND-CP dated December 23, 2013 on providing for the functions, tasks, powers and organizational structure of the Ministry of Finance;

After considering the request of the Chairman of State Securities Commission of Vietnam,

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Article 1. Amending and supplementing several articles of the Circular No. 183/2011/TT-BTC dated December 16, 2011 on providing guidance on establishment and management of the open-ended fund as follows:

1. Amending paragraph 3, 17, 25 and supplementing paragraph 30 Article 2 as follows:

“3. Distributors are the organizations that trade in securities, depository banks, commercial banks, insurers and other economic organizations that have registered the distribution of open-ended fund certificates.

17. Bond funds are the open-ended funds that invest in various kinds of treasury bills, bonds and other fixed-income instruments with the proportion of investment in such assets that makes up at least eighty percents (80%) of the net asset value.

25. The time of closing the order book is the deadline for distributors to receive trading orders from investors that shall be executed on the trading day. The time of closing the order book shall be specified in the Fund Charter and publicly announced in the Prospectus or Simplified Prospectus which is not allowed to exceed the time of closing the securities market of the Stock Exchange on the latest day before the fund certificate trading day.

30. Index funds are open-ended funds investing in stock portfolios as the basis for constituting the market index in which the market index is constructed, managed and conforms to laws and regulations on the exchange-traded fund."

2. Supplementing Article 4 with paragraph 8 as follows:

“8. In the absence of any additional contents or information in the dossier of registration for the subsequent offering of fund certificates, fund management companies shall not be obliged to provide written evidence that supervisory banks, service providers concerned or fund managers have met stipulated conditions which has already been submitted in the dossier of registration for the previous offerings of fund certificates.  Where new funds that are planning offerings share the same fund charter and prospectus, fund management companies shall not be required to submit these documents in the dossier of registration for offering of new fund certificates.”   

3. Amending paragraph 5 Article 7 as follows:

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4. Amending paragraph 2 Article 8 and supplementing Article 8 with paragraph 6 as follows:

“2. Within three (03) days from the date on which the fund charter is amended or supplemented, the fund management company must send reports to the State Securities Commission of Vietnam according to Annex 29 to this Circular, and concurrently announce amended or modified charter on this company’s website.

6. Supervisory banks, related service providers shall be allowed to clearly state that, in their prospectus and advertisements for open-ended funds, only information regarding these banks or providers is accredited, and shall be held liable within their scope of operations agreed upon in contracts signed with fund management companies and in consistence with laws and regulations as well as information that they have provided in order to create formulate prospectuses and advertisements for open-ended funds.”

5. Amending subparagraph b paragraph 4 Article 9 as follows:

 “b) Nominee distributors must open and administer sub-accounts independently, separately of each investor. The total balance of personal sub-accounts of investors must match the balance of the nominee accounts, the balance of each personal sub-account must match the data about the investor's ownership of the fund certificates in the Primary Ledger.”

6. Amending paragraph 3 Article 10 as follows:

“3. Distributors may only receive trading orders from investors when order forms are filled with complete and accurate information according to the form provided in Annex 21 enclosed with this Circular. Order forms shall be kept by distributors in accordance with the laws on securities, and ensure inclusion of the time of receipt of orders and receivers of trading orders obtained from investors in a sufficient, accurate, timely and evident manner.   Delivery of investor’s trading orders via telephone, fax, internet connection or electronic devices and other transmission lines must be consistent with regulations on electronic transactions and order forms must be stored in the form of electronic data folder.”

7. Amending paragraph 3 Article 11 and supplementing Article 11 with paragraph 4 as follows:

 “3. Sums earned by purchasing fund certificates after being transferred to the cash account of the fund at a supervisory bank shall be promptly used for investment on the date of trading of such fund certificates. The supervisory bank are responsible for paying interest to the fund at the currently applicable rate of interest on demand deposit from the date on which the fund receives such sums from the investors.

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8. Amending paragraph 4 and 6 Article 14 as follows:

“4. The redemption, subscription and switching fees can be set at various rates, based on the period of holding fund certificates, investment objectives, or investment values. Maximum fee rates must be provided for in the fund charter and prospectus.  Specific fee rates must be announced in prospectuses, summary prospectuses, or on websites of fund management companies, distributors or in other forms.  The subscription fee is not allowed to exceed five percents (5%) of the transaction value. The redemption and/or switching fee is not allowed to exceed three percents (3%) of the transaction value.

6. These fee rates shall be increased to the extent that the increased rates do not exceed the maximum rates prescribed in paragraph 4 of this Article. The soonest day to apply the increased fee rates is the 90^th day from the date on which the fund management company announces new fee rates on its website."

9. Amending subparagraph b, e paragraph 2 Article 15, and supplementing paragraph 2 Article 15 with subparagraph g as follows:

“2. The fund may invest in the following assets:

b) Foreign currency, money market instruments including valuable papers and negotiable instruments in accordance with relevant laws and regulations;

e) Shares, bonds to be listed or registered by the issuers that operate as per Vietnam’s law; corporate bonds issued by listed organizations for which payment security is provided by credit institutions or which issuing organizations undertake to repurchase;

g) Rights that may arise in connexion with securities that the fund is holding.”

10. Amending and supplementing paragraph 4, 5 and 8 Article 15 as follows:

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a) Except for deposits in the demand account of the fund opened at a supervisory bank, it is not allowed to invest more than forty-nine percents (49%) of the fund’s total asset value in the assets referred to in subparagraph a and b paragraph 2 of this Article. This provision shall not be applied to bond funds;

b) Do not invest more than 30% of the fund’s total asset value in the assets prescribed in subparagraph a, b, d, e and f paragraph 2 of this Article, which are issued by the same company or by a group of companies that have mutual ownership relations, including the investment in derivative securities which is the value agreed upon in the contract defined in Annex 13 to this Circular;

c) Do not invest more than 20% of total asset value of the fund in outstanding securities of an issuing organization, including valuable papers, negotiable instruments, bonds (except government bonds), voting shares, non-voting shares, and convertible bonds;

d) Do not invest in securities of an organization issuing more than ten percents (10%), or fifteen percents (15%) (in respect of an index fund or exchange-traded fund) of the total value of outstanding securities of that issuing organization, except for government bonds;

e) Do not invest more than ten percents (10%) of the total asset value of the fund in the assets provided for in subparagraph e paragraph 2 of this Article;

f) The total value of major investments in the fund’s investment portfolio must not exceed forty percents (40%) of the fund’s total asset value, except in the case of the bond fund;

g) At any time, the total value agreed upon in derivative securities trades, outstanding loans and other payables of the fund must not exceed the net asset value of the fund;

h) Do not invest in securities investment funds, shares of securities investment companies that are established and operated within the territory of Vietnam;

i) Do not directly invest in real property, precious stones and metals;

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5. Except for the cases referred to subparagraph g, h, i paragraph 4 of this Article, the investment structure of the open-ended fund may vary due to the objective causes:

a) The fluctuation of the market prices of assets in the fund’s investment portfolio;

b) Making legitimate payments of the fund;

c) Executing trading orders of investors;

d) Consolidating and merging issuers;

e) The fact that the new fund has just been licensed, or has operated for a maximum period of six (06) months from the date on which the certificate of the fund establishment registration is issued due to the splitting, consolidation, or merger of the funds;

f) The fact that the fund is in the process of dissolution.

8. Fund management companies may only invest in deposit and monetary instruments as prescribed in subparagraph a, b paragraph 2 of this Article, issued by credit institutions approved in writing by the board of representatives of the fund.”

11. Amending paragraph 2 Article 16 as follows:

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12. Amending paragraph 2 Article 17 as follows:

“2. For transactions by employing put through trading method (except for transactions performed on the transaction system of the Stock Exchange), the sale and purchase of securities that are not listed or registered, the fund management company must ensure that:

a) The estimated price range, time of execution, transaction partners, type of traded assets are approved in writing by the board of representations of the fund before the transaction is made;

b) If the actual buying price is higher or the actual selling price is lower than the reference price of quotation service providers, or is in excess of the approved price range as stipulated in subparagraph a of this paragraph, the fund management company must explain the reasons so that the board of representations of the fund may consider and decide.”

13. Amending paragraph 3 Article 19 as follows:

“3. The determination of the market price of the fund’s assets must comply with the method prescribed in Annex 13 to this Circular which is provided for as follows:

a) With regard to listed bonds: The market price is the end-of-day quote price (or otherwise called according to the regulations adopted by the Stock Exchange) of an ordinary transaction made on the latest trading date before the date of determination of accrued interest aggregation price (to the extent that the quote price has yet to include the accrued interest);

b) With regard to stocks which are listed and registered for transactions: The market price is the closing price (or otherwise called according to the regulations adopted by the Stock Exchange) of the latest trading date before the price determination date;

c) With regard to non-interest instruments including treasury bills, bonds, valuable papers and any instruments of the like kind:  The market price is the quote price posted on the transaction system of the Stock Exchange; in the absence of the quote price, the price level is determined according to the discounted cash flows model in reliance on the bid-awarding interest rate or another designated by the board for representations of the fund and time period of holding such instruments;

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14. Amending subparagraph a, b paragraph 1 Article 24 as follows:

“1. The Investors' General Meeting is convened by the fund management company and shall make decisions on:

a) The amendment and supplementation o the Fund's charter and supervision contracts; profit distribution plans;

b) The fundamental changes in the Fund’s investment policies and objectives; the increases in the level of fees paid to the fund management company and the supervisory bank; the changes of the fund management company and the supervisory bank.”

15. Amending paragraph 1, 2 and 4 Article 26 as follows:

“1. Except for the cases prescribed in paragraph 2 this Article, the decisions made in the Investors' General Meeting shall be ratified at the meeting if the number of participating investors that represent at least fifty one percents (51%) of the total amount of such investors’ fund units votes for it; the specific ratio is specified in the fund’s charter.

2. For the contents in subparagraph b and c paragraph 1 Article 24 of this Circular, the decision made in the Investors' General Meeting shall be ratified if the number of participating investors that represent at least sixty five percents (65%) of the total amount of such investors’ fund units votes for it; the specific ratio is specified in the fund’s charter.

4. When seeking investor’s written opinions, decisions are approved when they are approved by the number of investors that represent at least fifty one percents (51%) of the total amount of such investors’ total fund units; the specific ratio is specified in the fund’s charter.”

16. Amending subparagraph a paragraph 3 Article 35 as follows:

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17. Amending subparagraph a, d, e paragraph 2 Article 36 as follows:

“2. The depository of the fund’s assets shall ensure that:

a) The fund management company acts on behalf of the fund to register the fund’s assets under the terms and conditions of the economic contract between the fund (through the fund management company) and partners in accordance with relevant laws; assure that all of the fund’s assets arising within the territory of Vietnam are registered as the fund’s property and duly deposited at the supervisory bank according to the following rules:

- If the ownership of the assets is registered, the registration must be undersigned by the fund, unless it must be undersigned by the supervisory bank, the secondary depository institution, or the fund management company as prescribed by relevant laws.  The originals of legal documents certifying the fund’s ownership of assets shall be adequately deposited at the supervisory bank, except for the securities have been registered and centrally deposited. To the extent of the book-entry securities, or incomplete assignment of ownership of such securities, the original sale and purchase contract and payment transactions must be deposited at the supervisory bank.

To the extent that registration for ownership of assets is not allowed, or ownership of such assets has not been completed by the deadline stipulated in issuance agreements, the assignment contract, investment contract or economic contracts of the equivalent value, the supervisory bank shall be responsible for expressly certifying the asset depository and registration status in periodic reports of the fund management company and supervisory bank, and concurrently send a written notification to the board for representations of the fund.   

- In respect of assets of which registration of ownership is not required, the supervisory bank shall be responsible for checking with investment receivers, issuers and shareholder register management organizations, or others of the same sort, volume and value of the fund’s assets on a monthly basis, and ensuring compliance of asset depository with subparagraph e paragraph 1 of this Article.

- In respect of bank deposits, the supervisory bank shall have rights and responsibilities for requesting the fund management company to provide adequate information about the fund’s deposit agreements and deposit accounts. The supervisory bank shall be responsible for checking deposit account balances, value of deposit agreements with banks receiving the fund’s deposits on a monthly basis.”   

18. Supplementing Article 37 with paragraph 10 as follows:

“10. The mechanism for cooperation between supervisory banks and fund management companies in assessing activities of assignment agents shall be consistent with agreements entered into by both parties whereby liabilities of fund management companies comply with laws and regulations."

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“1. The supervisory bank must periodically send the review report on its supervisory performance on a monthly, quarterly, semi-annual and annual basis under the instructions of the State Securities Commission. The report must assess the compliance of fund management companies in terms of their investments, transactions and determination of net asset value with the fund's charter, the laws on securities and the securities market.

6. Regulations on the supervisory bank's report to the fund management company in accordance with this Article shall be limited to only the open-ended fund's scope of operations and relevant information that the bank obtains during its performance of supervisory functions as defined in paragraph 1 Article 37 hereof.”  

20. Amending subparagraph a paragraph 1 Article 39 as follows:

“a) Being a securities company licensed to broker securities, a fund management company, a depository bank, an insurer, or a commercial bank and other economic organization. A commercial bank, an insurer or other economic organization is required to register the distribution of fund certificates with the State Securities Commission as prescribed in paragraph 3 of this Article.”

21. Supplementing paragraph 4 Article 40 as follows:

“4. Distribution agents that are not securities trading organizations, depository banks, commercial banks or insurers shall not be eligible for:

a) acting as nominee agents;

b) acting as distributors of other fund management companies if this is not approved in writing by fund management companies of whom they are acting as distributors.”

22. Amending paragraph 2 Article 42 as follows:

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23. Supplementing paragraph 5 Article 44 as follows:

5. On a weekly basis, a fund management company must post levels of net asset value deviation of the index fund as against the tracking error on the company’s website in which such deviation is determined in accordance with securities laws providing for exchange-traded funds.  Where the aforesaid deviation exceeds the maximum limit stipulated in the fund’s charter, fund management companies shall be responsible for giving explanations for this, temporarily ceasing fund certificate transactions or adapting their investment portfolios as remedial actions in accordance with the fund’s charter.”

24. Removing the phrase “related service providers” from paragraph 1 Article 9, paragraph 6 Article 18 of the Circular No. 183/2011/TT-BTC.

25. Repealing provisions set forth in paragraph 9 Article 2; paragraph 3 Article 26; Annex No. 30 to the Circular No. 183/2011/TT-BTC.

Article 2. Implementation

1. This Circular shall enter into force from March 15, 2016.

2. Any amendment to or supplementation of this Circular shall be decided by the Minister of Finance./.

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