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THE MINISTRY
OF FINANCE
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.35/2012/TT-BTC
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Hanoi, March
02, 2012
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CIRCULAR
GUIDING A NUMBER OF ARTICLES OF THE
GOVERNMENT’S DECREE NO. 75/2011/ND-CP, OF AUGUST 30, 2011 ON INVESTMENT AND
EXPORT CREDIT OF THE STATE
Pursuant to the Government’s
Decree No.118/2008/ND-CP, of November 27, 2008 defining the functions, tasks, powers
and organizational structure of the Ministry of Finance;
Pursuant to the Government's
Decree No.75/2011/ND-CP, of August 30, 2011 on investment and export credit of
the State (hereinafter referred to as the Government's Decree
No.75/2011/ND-CP);
The Ministry of Finance guides
implementation of some contents as follows:
Article 1.
Subjects of application
Subjects of
application of this Circular include the Vietnam Development Bank (hereinafter
referred to as the Development Bank) and other relevant organizations,
individuals during the course of implementation of the State's investment and
export credit as prescribed in the Government’s Decree
No.75/2011/ND-CP.
Article 2. The plan on investment and export credit of the State
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2. The plan
on investment and export credit of the State annually elaborated by the
Development Bank include:
a) Assessment on situation of
implementation of the investment and export credit of State in the current year
(year prior to the planning year).
b) Total common credit growth
level, in which detailing for investment, export credit of the State and other
assigned tasks.
c) The capital sources for
implementation of common credit growth plan, in which detailing each type of
capital source, including:
- The capital source from
withdrawal of debts loaning investment, export credit of the State.
- The capital source mobilized
from domestic and foreign organizations, individuals, in which detailing
capital sources mobilized through issuance of bond and other loan capitals
which have been issued guarantee by the Government as prescribed by law.
- The capital source from the
State budget additionally allocated in order to raise charter capital (if any)
or in order to implement the investment, export credit program of the State.
- The State budget
allocations for post-investment support.
d) The State budget
allocations for offsetting interest rate differences.
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a) To ensure the credit growth
plan not exceeding the plan on allocations for offsetting interest rate
differences which have been notified.
b) To prioritize projects, export
contracts, import contracts under the urgent investment programs of Government
and have been signed credit contract with the Development Bank.
c) To allocate fully capital
source for payment of debts from capital mobilization which came loan payment
maturity in accordance to commitment and provisions of law.
4. In case demand on investment,
export credit of the State in year have changes or big fluctuations affecting
capital sources, the Development Bank must report to the Ministry of Finance to
assume the prime responsibility for, and coordinate with the Ministry of
Planning and Investment to submit to the Prime Minister for consideration on
adjustment of plan in conformity.
Article 3.
Limitation of lending level
1. Debit balance
of loan to define limitation of lending capital level for
each investor, exporter, and foreign importer shall not exceed 15% of actual
charter capital of the Development Bank including:
a) Debit
balance of investment credit loan (including loan under credit program with
target of using foreign capital).
b) Debit
balance of export credit loan.
c) Other loans
(except loans from capital sources which the Development Bank receives
entrustment, authorization for on-lending).
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3. For clients
loaned capital, the Development Bank shall decide the lending capital level for
each specific case on the basis of debt balance of amounts loaned and remaining
amounts for disbursement under credit contracts signed at the Development Bank,
ensuring principle of not exceeding the maximum lending capital level for one
investor, exporter, foreign importer specified in the Government's Decree
No.75/2011/ND-CP.
Article 4. The lending of investment and development credit of the
State
1. Subjects,
conditions, capital levels, time limit, currency, loaning interest rates shall
comply with provision on section 1, chapter II of the Government’s Decree No.
75/2001/ND-CP.
2. In case the
Development Bank mobilizes foreign capital to loan under the credit programs
with target, the subject being eligible for capital loan must be in the list of
projects eligible for investment credit capital loan of the State and must obey
properly conditions, terms specified in the Government's Decree No.
75/2001/ND-CP. If the foreign donors have requirement, conditions, terms
different from provisions in the Decree No. 75/2001/ND-CP, the Development Bank
shall report to the Prime Minister for consideration and approval before
implementation,
Article 5. The Post-investment support
1. Subjects enjoyed
post-investment support
a) Subjects enjoyed
post-investment support shall implement as specified in Article 12 and Article
13 of the Government’s Decree No. 75/2011/ND-CP, of August 30, 2011 on
investment and export credit of the State.
b) Conditions to be enjoyed
post-investment support:
Apart from provisions on conditions
to be enjoyed post-investment support stipulated in Article 13 of the Decree
No. 75/2011/ND-CP, the project must be enclosed audit report of finished
investment project for projects which must have compulsory audit as stipulated
by law, for remaining projects, their audit shall be implemented under
regulation of the Development Bank.
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- Projects have been supported on
finance (cost for capital loan) under all forms by Funds with operation capital
source from the State budget or the State budget of levels.
- Projects changed investor.
- The projects on borrowing
capital under target programs using foreign capital of other credit
institutions.
2. Principle to define and grant
the post-investment support.
a) The
post-investment support level is calculated for each project and granted for
investor after having paid debt of borrowing capital for investment (original
debt) for credit institutions have lent. Based on the capital to pay debt of
investor, the Development Bank shall grant the post-investment support for
investor in maximally each quarter once time in year.
b) The
post-investment support level is calculated on total original debts paid in
reality under the credit contract signed with credit institutions but not
exceed 70% of total investment capital in fixed assets of project under the
decision on approval of settlement of investment capital of competent
authorities.
c) For loans
paid before term, the post-investment support level is calculated under time
limit of actual loan of that loan under the signed credit contract.
d) For
projects on freezing debt, time of freezing debt is not counted in the actual
loan time limit in order to calculate the post-investment support and maximum
support time limit shall be equal with the loan time limit being written in the
signed credit contract at the first time.
dd) The
investors shall not be granted the post-investment support for original debts
which were overdue, debts paid in time of debt extension.
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3. The Post-investment support
level
a) Formula to define Post-investment
support level
The
Post-investment support level
=
∑
Original
debts paid in reality calculated HTSDT
x
The
difference level of interest rate calculated for post-investment support
x
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b) Method to define factors for
calculation of Post-investment support level
- The
interest rate difference level calculated for post-investment support announced
by the Ministry of Finance is calculated on the basis of difference of average
interest rate to lend for investment of State commercial banks (the Vietnam
Bank for Agriculture and Rural Development, the Bank for Investment and
Development of Vietnam, the Joint stock commercial bank for Foreign Trade of
Vietnam) and interest rate of borrowing investment credit capital of the State.
- Project
enjoyed post-investment support level under each time of paying debt by
investors for credit institutions and under the difference of interest rate
announced at time of paying debt.
- The actual
time limit of borrowing calculated for post-investment support is the period as
from the investor received the borrowing capital (being written on the voucher
on receiving debt) until the original debt in term being paid (being written on
the voucher on paying debt) for credit institutions under signed credit
contract or the amending and supplementing credit contract.
The time limit of post-investment
support is defined in cases: The disbursed-one-time capital is repaid at
once; disbursed-one-time capital is repaid at many times; disbursed-many-time
capital is repaid at once; disbursed-many-time capital is repaid at many times.
The Development Bank guides specifically on the actual borrowing time limit of
project on the basis of credit contract signed between investors and credit
institutions.
- Defining the post-investment
support level for projects borrowing capital in foreign currency shall be
implemented by original currency. On that basis, and based on the average
exchange rate of USD/VND on the inter-bank foreign currency market or
cross-reference exchange rates for types of foreign currency/ VND announced by
the State bank at time of granting support money, in order to define the post-investment
support level in Vietnam dong for project.
Article 6. The export credit
1. Subjects,
forms, conditions, capital levels, time limit, currency, loaning interest
rates, disbursement, collection of debts shall comply with provisions in
Chapter III of the Government’s Decree No. 75/2001/ND-CP.
Exporters, foreign importers must mobilize fully capital sources with
specific credit conditions in order to implement the export contract in
addition to the export credit loan of the Development Bank.
2. Forms of
disbursement
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b) The
Development Bank may entrust for domestic and overseas financial
institutions, credit institutions operating lawfully to disburse the export
credit loan for exporters or foreign importers.
3. Forms of
debt collection
a) The
Development Bank shall directly collect debt (principal and interest) of
exporters, foreign importers.
b) The
Development Bank may entrust for domestic and overseas financial institutions,
credit institutions operating lawfully to collect debt (principal and interest)
of exporters, foreign importers on the basis of export credit contracts between
the Development Bank with exporters or foreign importers.
c) The
Development Bank shall be entitled to collect debt of exporters, foreign
importers in foreign currency from goods export revenues. The Development Bank
shall implement purchase and sale of foreign currency and foreign currency
transactions with credit institutions allowed to operate in foreign currency in
order to transfer collected amounts of foreign currency into Vietnam dong or
vice versa under provisions of law on foreign currency management.
d) Entrustment
of disbursement, collection of debt is implemented on the basis of entrustment
contracts between the Development Bank with domestic and overseas financial
institutions, credit institutions allowed to entrust in which specifying
obligations and rights of parties in disbursement, collection of debt and in
conformity with provisions of law on entrustment and receiving entrustment for
capital lending of credit institutions.
Article 7. The loaning interest rates of investment and export credit
of the State.
1. Periodically
ending each quarter, year, the Development Bank shall calculate, define the
average interest rate of capital sources, operation expenditures and propose
the loaning interest rates of investment and export credit of the State in
according to provisions in Decision of the Prime Minister on mechanism of
financial management for the Development Bank and guiding documents in order to
report to the Ministry of Finance.
2. Based on
report of the Development Bank regarding calculating average interest rates of
capital sources, operation expenditures and proposal of the loaning interest
rates of investment and export credit of the State ; based on situation of
loaning interest rates on market and plan offsetting difference of interest
rate been notified, the Ministry of Finance shall consider to decide the
interest rate of investment, export credit of the State.
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Article 8.
Loan security
1. Investors, exporters borrowing
investment credit capital (including loans under the credit programs with
target of using foreign capital), export credit of the State must implement measures of loan security at the Development Bank as prescribed by law
on security transactions. Measures of loan security include: pledge of assets,
mortgage of assets, use of future assets and other security measures (if any)
under regulations of law on security transactions.
The Development Bank shall base on
capability, financial situation of investors, exporters; projects on investment
credit loan, financial plans, plans on paying debt of loan; trust extent of
investors, exporters to decide specific measure of loan security, the minimum
loan security level.
The overseas importers borrowing
export credit of the State must have loan guarantee from governments, or
central banks or financial institutions with investment credit or export credit
function of countries of importers as stipulated in clause 5 Article 17 of the
Decree No. 75/2011/ND-CP.
2. During time
not yet paid all debts, investors, exporters shall not entitled to transfer,
sell, lend or pledge, mortgage security assets without
consent of the Development Bank.
3. The Development Bank may handle security assets in cases:
a) When the obligation of paying debts
is due, but investors, exporters fail to implement or implement improper
obligation;
b) The investors, exporters must
implement obligation of paying debt prior due because breaching obligation as
agreement or as prescribed by law;
c) Law stipulates that security
assets must be handled for implementation of other obligation of the
guarantors;
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4. The
Development Bank may base on regulation of current law on security transaction
to promulgate documents guiding specifically on process, order of receiving
assets, signing contract of loan security, registering security transaction in
which stipulate clearly rights and duties of parties for uniform implementation
in entire system.
Article 9.
Handling of risks
In case investors, exporters, foreign importers
meet Force majeure risks and fail to pay debts as prescribed in point a clause 1
Article 26 of the Decree No. 75/2011/ND-CP; wholly State-owned one-member
limited liability companies upon transformation into multiple-owner companies
and meet financial difficulties as prescribed and other risk cases decided by
the Prime Minister, they shall be considered to handle risks under the
Regulation on handling of risks on investment, export credit capital of the
State at the Development Bank prescribed by the Prime Minister and guides for
implementation of the Ministry of Finance.
Article 10. Regime of report
1. Annually,
in time of elaboration of State budget estimates, the Development Bank shall
elaborate and report to the Ministry of Finance, the Ministry of Planning and
Investment on the plan on investment and export credit of the State as
specified in Article 2 of this Circular.
2. Quarterly
(before the 15th of first month of proceeding quarter) and end of year (before
January 30 of the proceeding year), the Development Bank shall elaborate and
send reports enclosed explaination to the Ministry of Finance, the Ministry of
Planning and Investment, the State bank of Vietnam, the General Department of
Statistics:
- Report on situation
of capital sources and use of capital sources (Form No. 01/BC-VDB).
- Report on lending of
investment credit capital of the State (Form No. 02/BC-VDB).
- Report on lending of
export credit capital of the State (Form No. 03/BC-VDB).
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- Report on
investment lending by entrustment capital (Form No. 05/BC-VDB).
3. Extraordinary
report under special subject, specific program.
Article 11. Organizating Implemenatation
1. This
Circular takes effect on April 20, 2012 and applies to projects, loans of
signing contract on borrowing capital from investment, export credit and first
post-investment support (including projects on borrowing capital for
investment, post-investment support, export contracts, import contracts) from
the effective day of the Government's Decree No. 75/2011/ND-CP, of August 30,
2011 on investment, export credit of the State.
2. This Circular replaces
Circulars: No. 69/2007/TT-BTC, of June 25, 2007 of the Ministry of
Finance guiding a number of articles of the Government’s Decree No.
151/2006/ND-CP, of December 20, 2006; No. 16/2009/TT-BTC, of January 22, 2009
of the Ministry of Finance amending the Circular No. 69/2007/TT-BTC.
3. For projects, contract on
borrowing investment credit (including lending under credit program with target
of using foreign capital), export credit, post-investment support, investment
credit guarantee, export credit, bidding guarantee and guarantee for contract
implementation, which have been signed with the Development Bank before the
effective day of the Decree No. 75/2011/ND-CP, shall be implemented under
commitments in the signed credit contracts.
4. The
responsibilities of investors, exporters, foreign importers
In addition to
implementation as prescribed in Article 38 of the Decree No.
75/2011/ND-CP, the investors, exporters, foreign importers shall:
- To supply
exactly, fully and timely in accordance to requirement of the Development Bank
documents relating to enterprise’s finance and production-business operations
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5. The
Development Bank may access to data of tax agencies, customs agencies on
clients borrowing capital and export items as prescribed by law aiming to serve
for management work, lending and collection of debts.
6. The Development
Bank, credit institutions receiving entrustment and investors, esporters,
foreign importers with projects, contract using investment and export credit of
the State shall implement this Circular.
7. In the
course of implementation, any arising problems should be reported to the
Ministry of Finance for research, amendment and supplement.
FOR THE MINISTER OF FINANCE
DEPUTY MINISTER
Tran Xuan Ha