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THE
STATE BANK
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
1280/2002/QD-NHNN
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Hanoi,
November 19, 2002
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DECISION
PROMULGATING THE MODEL CHARTER ON ORGANIZATION AND OPERATION
OF JOINT-VENTURE BANKS
THE STATE BANK GOVERNOR
Pursuant to State Bank Law No. 01/1997/QH10
and Credit Institutions Law No. 02/1997/QH10 of December 12, 1997;
Pursuant to the Government’s Decree No. 15/CP of March 2, 1993 on the tasks,
powers and State management responsibilities of the ministries and
ministerial-level agencies;
Pursuant to the Government’s Decree No. 13/1999/ND-CP of March 17, 1999 on
organization and operation of foreign credit institutions and their
representative offices in Vietnam;
At the proposal of the director of the Department for Banks and Non-Bank Credit
Institutions,
DECIDES:
Article 1.- To
promulgate together with this Decision the model charter on organization and
operation of joint-venture banks.
Article 2.- This
Decision takes effect 15 days after its signing.
Article 3.- Within 9
months as from the date this Decision takes effect, joint-venture banks shall
base themselves on the model charter on organization and operation of
joint-venture banks promulgated together with this Decision to elaborate their
own charters, then submit them to the State Bank Governor for approval.
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FOR THE STATE BANK GOVERNOR
DEPUTY GOVERNOR
Tran Minh Tuan
MODEL
CHARTER APPLICABLE TO JOINT-VENTURE BANKS
(Promulgated together with the State Bank Governors Decision No.
1280/2002/QD-NHNN of November 19, 2002)
Chapter I
GENERAL PROVISIONS
Article 1.- Parties
participating in the establishment of a joint-venture bank (JVB)
1. The Vietnamese party (including one or
several Vietnamese banks):...
...
...
...
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- Head office: ...
- Representative: ... (Full name - Post -
Nationality)
2. The foreign party (including one or several
foreign banks):...
- The banks establishment and operation license
No...., dated...
- Head office: ...
- Representative: ... (Full name - Post -
Nationality)
Article 2.-
Identifications of a JVB
1. Name of JVB:... (in full and in
abbreviation), with its head office in ..., Vietnam;
Telephone: ...
...
...
...
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E-mail: ...
2. JVB is established and operates under JVB
establishment and operation license No..., dated..., issued by the State Bank.
3. Joint-venture bank has the Vietnamese legal
person status, its own seal and accounts opened at the State Bank and other
credit institutions according to the State Banks regulations.
4. Charter capital of the JVB is ...
Of which:
- The Vietnamese party contributes ..., making
up...% of the charter capital
- The foreign party contributes ..., making up
... % of the charter capital
(Proportions and modes of capital contribution
by the JVB parties are presented in detail)
5. JVB is a form of credit institution,
conducting banking operations and other relevant business activities for
profits according to plans approved by the Managing Board and compliant with
the law of the Socialist Republic of Vietnam.
...
...
...
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The JVB shall have the operation duration of ...
years after it is granted establishment and operation license by the State
Bank. The JVBs operation duration may be extended according to the agreement
between the joint-venture parties and with the State Bank Governors approval;
each extended duration must not exceed the operation duration previously
inscribed in the license.
Chapter II
OPERATION CONTENTS,
RIGHTS AND OBLIGATIONS
Article 4.- Operation
contents
JVBs shall comply with the provisions of the Law
on Credit Institutions and other current law provisions on:
- Banking activities
- Observance of regulations on assurance of
safety in their operations.
(May be stipulated in detail)
Article 5.- Rights and
obligations
...
...
...
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a/ Organize the management and business in line
with their operation objectives.
b/ Enjoy the financial autonomy, take initiative
in business and self-responsibility for business results, preserve and develop
capital in order to ensure the growth of their business activities.
c/ Refuse to satisfy any inquiries which are not
compliant with law provisions;
d/ Exercise other rights.
2. JVBs have the law-prescribed obligations to:
a/ Protect interests of depositors, fulfill
their commitments towards customers and other credit institutions.
b/ Manage business operations.
c/ Comply with regimes and regulations on
finance, accounting, reporting and auditing.
d/ Perform other obligations.
...
...
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ORGANIZATIONAL
STRUCTURE, ADMINISTRATION, MANAGEMENT AND CONTROL
Article 6.- Operating
network
1. Head office
2. Transaction bureau at place where the head
office is located
3. Branches
4. Other forms prescribed by law.
Article 7.- Structure of
the managerial and executive apparatus
1. Managing Board.
2. Control Board.
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4. Internal inspection and auditing system.
Article 8.- Managing
Board
1. The Managing Board performs the function of
managing the JVB and is the top competent body of the JVB. The parties to JVB
shall nominate members to the Managing Board.
2. The JVB Managing Board has ... members (at
least 3 members), including:
- The Vietnamese party: ... members
- The foreign party: ... members
3. The term of office of the Managing Boards members
is ... years (agreed upon by the parties themselves, but not exceeding 5
years). The Managing Boards members may be re-appointed. The Managing Boards
members shall not be salaried but may enjoy allowances related to the Managing
Boards operation and decided by the Managing Board.
4. The Managing Boards chairman shall be
unanimously elected by the parties on the basis of nomination by the ... party
(and may be alternated between the parties), have to convene and chair the
Managing Boards meetings, organize the supervision of observance of the
Managing Boards resolutions.
5. Each party has the right to replace its own
representative to the Managing Board on the condition that it must notify the
other party at least ... days in advance (agreed by the parties themselves). In
any circumstances, such replacement must be approved by the Governor and cause
no harm to or impact on the JVBs operation.
...
...
...
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(JVBs shall prescribe such in detail by
themselves)
Article 9.- Working
regime of the Managing Board
1. The Managing Board shall meet at least once a
year. In case of necessity, the Managing Board may hold extraordinary meetings
at the requests of its chairman, general director, first deputy general
director or of at least over a half of the number of the Managing Boards
members.
2. The Managing Boards meetings shall be
convened and chaired by its chairman. In cases where the chairman is absent,
he/she shall authorize a deputy chairman (authorized deputy chairman shall chair
the meeting with the chairmans full power within the ambit of authorization).
3. The Managing Boards members shall receive
meeting convening notices (notices for short) at least... working days (agreed
by the parties themselves) before the meeting, counted from the date the
notices are sent. Notices shall be sent to the members in writing and with
signature of the Managing Boards chairman, clearly inscribing the meetings
date, venue and agenda.
A notice shall be considered valid when it is
made by the following mode: ... (The parties shall agree on and specify by
themselves the mode of sending notices).
4. The Managing Boards meetings shall be
considered valid when they are attended by at least two thirds of the number of
the Managing Boards members being the joint-venture parties representatives.
The Managing Boards members may authorize in writing their representatives, who
are also the Managing Boards members, to attend meetings and vote on the
authorized matters (JVBs may prescribe this more specifically).
5. The Managing Board shall adopt decisions
falling under its competence by way of voting at its meetings or gathering of
written comments thereon.
6. The most important issues regarding the
organization and operation of the JVB shall be decided by the Managing Board on
the principle of unanimity (by mode of open or secret voting), including:
appointment and dismissal of the general director and first deputy-general
director; amendments and supplements to the JVBs charter and other issues
(agreed upon by the parties themselves in the charter).
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Article 10.- The
Control Board
1. The Control Board has... members (at least 3
members) and shall be entitled to use the internal inspection and auditing
system for the performance of their tasks. The tenure of the Control Board
is... years.
2. The Control Boards members shall be appointed
and dismissed by the Managing Board.
3. The Control Board shall be answerable to the
Managing Board for its operation, submit to the latter its reports on
inspection activities and assessments of annual reports of the JVB.
4. Tasks and powers of the Control Board.
(Prescribed in detail)
Article 11.- General
director, deputy-general directors and assisting apparatus
1. The general director shall be answerable to
the Managing Board for the management of the JVBs daily activities according to
his/her tasks and powers provided for by law. The general director is assisted
by a number of deputy general directors, chief accountant and the professional
and specialized apparatus. The general director and deputy general directors
shall be appointed and dismissed by the Managing Board.
2. The general director shall be unanimously
elected by the parties on the basis of nomination by... party (and may be
alternated between the parties), having the following tasks and powers:...
(provided for in detail).
...
...
...
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3. In cases where the general director and the
first deputy-general director have divergent opinions on the management of the
JVB, the general director shall have the right to make decision, but the first
deputy-general director may reserve his/her opinions for consideration and
decision by the Managing Board at its nearest meeting.
Article 12.- The
internal inspection and auditing system
The internal inspection and auditing system
belongs to the executive apparatus, assisting the general director in managing
all professional operations of the JVB in a smooth, safe and lawful manner.
Chapter IV
FINANCE, ACCOUNTING,
REPORTING AND AUDITING
Article 13.- Working
capital
Working capital of JVBs includes the following
sources:
1. Charter capital;
2. Borrowed capital;
...
...
...
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4. Other kinds of capital as provided for by
law.
Article 14.- Division
of profit and loss
Profits and losses shall be divided to the
joint-venture parties according to the capital contribution proportions: ...
(prescribed in detail)
Article 15.- Use of
assets
1. JVBs shall use their assets in line with
their operation objectives. The parties shall not be allowed to use JVBs common
assets for their own interests.
2. In the course of investment in Vietnam, other
lawful capital and assets of the foreign parties to JVBs shall not be
requisitioned or confiscated by administrative methods, and JVBs shall not be
nationalized.
Article 16.- Reporting,
accounting and financial regime
1. JVBs shall observe the regime of information
and reporting, regime of accounting vouchers, cost-accounting and financial
regime according to the current provisions of law.
2. The fiscal year of a JVB shall begin on
January 1 and end on December 31 of a calendar year.
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JVBs�
operations shall be audited by an indepen-dent auditing company approved by the
State Bank.
Chapter V
LABOR, COMMENDATION AND
DISCIPLINE
Article 18.- Labor
recruitment
All laborers working for JVBs shall be recruited
and employed in compliance with the current law provisions. Vietnamese citizens
shall be given priority in recruitment, if they meet the job requirements.
Article 19.- Rights and
obligations of laborers
Rights and obligations of laborers are secured
by labor contracts signed between laborers and general directors in compliance
with the current law provisions.
Article 20.- Labor
training
JVBs shall work out plans on training of their
personnel. Training and managerial programs shall be realized at the requests
of JVBs in order to ensure safe and efficient business operations as well as
development.
...
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1. Organizations and individuals of JVBs that
record outstanding achievements in the establishment and development of JVBs,
make numerous contributions to the efficient business operations of JVBs shall
be commended and/or rewarded according to the commendation and reward
regulation promulgated by the Managing Board.
2. Organizations and individuals that commit
acts of violating the operation charters of JVBs, abusing their names and
positions to seek personal benefits or commit acts of violating the legislation
on monetary and banking activities shall, depending on the nature and
seriousness of their violations, be handled according to the current law
provisions.
Chapter VI
TRANSFER, DISPUTES AND
DISSOLUTION
Article 22.- Capital
transfer
1. The partial or full transfer of contributed
capital proportions of the Vietnamese party and/or the foreign party to a JVB
to other parties inside or outside the joint venture shall be effected
according to the provisions of law, with pre-emptive right given to the
joint-venture parties. In case of capital transfer to parties outside the joint
venture, transfer conditions must not be more favorable than the conditions set
for the parties inside the joint-venture (the parties prescribe in detail the
transfer conditions).
2. When a party wishes to transfer its
contributed capital, such transferor shall send written notices thereon to the
capital-contributing parties at least ... months before the transfer (the
parties reach agreement thereon by themselves). Notices shall be considered
valid if they are made by the following mode: ... (the parties reach agreement
thereon and prescribe in detail by themselves).
3. Cases of transfer:
In cases where the transfer of contributed
capital proportions among the JVB parties exceeds the rate (...) (prescribed by
the current legislation), such transfer must be approved in writing by the
State Bank.
...
...
...
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4. In all cases of capital transfer, the
transfer of contributed capital proportions must be agreed upon by all parties
that have contributed such capital.
Article 23.- Disputes
Disputes between joint-venture parties or
between JVBs and individuals or other legal persons shall be settled according
to the current law provisions (the parties negotiate thereon and may prescribe
in detail the dispute settlement).
Article 24.-
Termination of operation
A JVB shall terminate its operation in the
following cases:
1. When the operation duration inscribed in its
license or in decision on extension of license duration expires but it fails to
apply for extension or its extension application is disapproved by the State
Bank;
2. It applies for operation termination ahead of
time;
3. It has its establishment and operation
license withdrawn.
Article 25.- Bankruptcy
and dissolution
...
...
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2. The dissolution of JVBs shall be effected by
modes agreed upon by the parties themselves in compliance with the current law
provisions.
Chapter VII
IMPLEMENTATION PROVISIONS
Article 26.- Amendment
and supplement to the charter
This charter shall be amended and/or
supple-mented under unanimous decisions of the Managing Board and such
amendments and/or supplements must be approved by the State Bank.
Article 27.-
Implementation effect and signing date
This charter takes effect after it is approved
by the State Bank of Vietnam.
This charter is signed on ..., in/at..., and
includes..... originals in Vietnamese.
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...
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ON BEHALF OF THE MANAGING BOARD
CHAIRMAN
THE STATE BANK
Tran Minh Tuan