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THE
STATE BANK OF VIETNAM
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.:
21/2012/TT-NHNN
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Ha
Noi, June 18, 2012
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CIRCULAR
REGULATION ON OPERATION OF LENDING, BORROWING; TERM PURCHASE
AND SALE OF VALUABLE PAPERS WITH TERM AMONG FOREIGN CREDIT INSTITUTIONS AND
BANK BRANCHES
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 Decree No.
96/2008/ND-CP of August 26, 2008 of the Government regulating the functions,
duties, powers and organizational structure of the State Bank of Vietnam;
Considering the proposal of
the Director of Credit Department;
The Governor of the State
Bank of Vietnam promulgates the Circular stipulating the operation of lending,
borrowing; term purchase and sale of valuable papers with term among foreign
credit institutions and bank branches;
Chapter 1.
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Article 1.
Scope of adjustment
This Circular stipulates the
operation of lending, borrowing; purchase and sale of valuable papers with term
among foreign credit institutions and bank branches on the monetary market.
Article 2. Subjects
of application
1. The subjects eligible for
lending and borrowing include: credit institutions are commercial banks,
financial companies, financial leasing companies, cooperative banks, people's
credit funds, micro financial institutions; foreign bank branches operating in
Vietnam under the Law on credit Institutions.
2. The subjects eligible for
buying, selling valuable papers with term include: credit institutions are
commercial banks, financial companies, financial leasing companies, cooperative
banks, people's credit funds, micro financial institutions; foreign bank
branches operating in Vietnam under the Law on credit Institutions.
Article 3.
Explanation of terms
In this Circular, the following
terms are construed as follows:
1. Transaction of lending and
borrowing is the transaction in which a foreign credit institution and bank
branch (the lender) hands over to another foreign credit institution and bank
branch (the borrower) a sum of money for use in a definite time with the
principle of repayment of principal and interest.
2. Transaction of purchase and
sale with term is the transaction in which a foreign credit institution, bank
branch purchases and receives the ownship of valuable papers of undue payment
(the purchaser) from another foreign credit institution and bank branch
(sellers), at the same time the seller commits to re-purchase those valuable
papers after a definite time.
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4. Time limit of purchase and
sale of valuable papers with term from the subsequent date of the purchasing
date to the re-purchasing date, including days-off and holidays and are
calculated by date (hereinafter referred to as the time limit of purchase and
sale).
5. Remaining time limit of the
valuable papers is the period from the date when the valuable papers are
purchased and sold to the maturity date of the entire principal of those
valuables
6. Loan interest rate is the
interest rate of the lending and borrowing calculated as a percentage per year
7. Interest rate of purchase is
the interest rate of purchase and sale with term of the valuable papers to
calculate the price difference among the purchase price and re-purchase price,
calculated as a percentage per year.
8. Borrowing date is the date in
which the lender has to fulfill the obligation to transfer money to the
borrower.
9. Maturity date is the date in
which the borrower has to pay the entire principal and interest and types of
fees (if any) of the loan to the lender. In case the maturity date falls on the
day-off and holiday, the maturity date will be the next working day
10. Purchase date is the date in
which the seller transfers the ownership of the valuable papers to the purchaser
and the purchaser completes the payment of valuable papers to the seller.
11. Re-purchase date is the date
in which the purchaser implements the transfer of ownership of the valuable
papers to the seller and the seller completes the payment of the re-purchase of
the valuable papers to the purchaser. In case the re-purchase date falls on the
day-off and holiday, the re-purchase date will be the next working day.
12. Purchase price is the amount
of money that the purchaser has to pay the seller upon the purchase of valuable
papers on the purchase date. The purchase price will be agreed upon by both
parties as a basis for determining the re-purchase price.
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14. Transaction limit is the
maximum balance maintained in a definite period (no more than 01 year) of the
foreign credit institutions and bank branches to each other on the interbank
market.
15. Customers are the foreign
credit institutions and bank branches, partners with relationship of lending,
borrowing, purchase and sale with term of the valuable papers with the foreign
credit institutions and bank branches.
Article 4.
Conditions for participating in the transaction of lending and borrowing;
purchase and sale of valuable papers with term (referred to as transaction)
1. The foreign credit
institutions and bank branches are entitled to perform the transaction upon
satifying the following conditions:
a) Having the technical
infrastructure (machinery, equipment, software programs, ...) to satisfy the
requirements of transaction on the currency markets, ensuring the update of
data transactions completely, accurately and in a timely manner for each
transaction of the foreign credit institution and foreign banks to customers;
b) Having a staff of
qualification and professional capacity to carry out the transaction;
c) Having internal regulations
about the professional process, risk management process for the activity of
lending and borrowing (including regulations on customer credit rating, the
process for determination of loan limits, process of transaction process of
lending and borrowing applicable to each form of specific transaction), purchase
and sale with term of valuable papers among the foreign credit institutions and
bank branches in accordance with the provisions of this Circular;
The foreign credit institutions
and bank branches send the written internal regulations on professional process
and risk management process of their units to the State Bank (Credit
Department) right after they are issued;
d) Not being applied by the
State bankd the measures to limit, suspend, temporarily suspend the
implementation of the lending, borrowing, purchase and sale with term valuable
papers on the interbank market at the time of transaction.
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Article 5.
Form of implementation of transaction and payment
1. The foreign credit
institutions and bank branches carry out the transaction in the forms:
electronic transactions network of the State Bank or institutions providing
services permittedd by authorized agency or via telephone (with voice
recording) or other forms.
2. The selection for the
applying forms of transaction will be agreed upon by the parties in accordance
with the conditions of each foreing credit institution and bank branches and to
ensure the transaction is performed safely, efficiently, complant with the
provisions of law.
3. The transactions made in
Vietnam Dong of the foreign credit institutions and bank branches that are the
members of the Interbank Electronic Payment System must be made the payment via
the Interbank Electronic Payment System by the high-value payment order in
accordance with regulations of the State Bank.
Article 6.
Transaction information
1. All transactions must be
updated and stored completely on the information database of the foreign credit
institutions and bank branches. The basic information data includes:
- Name of transaction parties;
- Date of transaction;
- Content of the transaction;
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- Interest rate of transaction;
- Time limit of the transaction;
- Date of payment;
- Security measures (if any).
- 2. All agreements of the
transaction performance shall be confirmed in writing (referred to as
transaction certificate) or other forms of certification agreed upon by the two
parties in conformity with the regulations of law. The certification will be
the legal foundation for performance of transactions.
3. In case of a written
confirmation, the transaction certificate can be printed from the electronic
transactions network or via fax or other forms. The certificate must bear the
signature (handwritten signatures or electronic signatures) or the transaction
code of the employees of the parties participating in the transaction.
4. The confirmation of the
transaction including the following contents:
- Name of transaction parties;
- Date of transaction;
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- Value of the transaction;
- Interest rate of transaction;
- Time limit of the transaction;
- Form of transaction security
(if any)
- Mode of payment;
Article 7.
Risk provision for transactions
The foreign credit institutions
and bank branches perform the classification, set-up and use of provision to
handle the risks of loans and purchase with term of the valuable papers for the
foreign credit institutions and bank branches under the provisions of the State
Bank Governor.
Chapter 2.
SPECIFIC PROVISION
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Article 8.
Principle of lending and borrowing
Upon performing the transaction
of lending and borrowing, the foreign credit institutions and bank branches
must guarantee the following principles:
1. Fully satisfying the
conditions as prescribed in Article 4 of this Circular.
2. Only performing at the head
offices of the credit institutions. For foreign bank branches, only performing
at the head offices of foreign bank branches in Vietnam.
3. Taking responsibilities for
their decision on lending and borrowing by themselves.
4. The borrower must repay in
full and on schedule for the entire loan amount owed including the principal,
interest and fees (if any).
Article 9.
Purpose of lending and borrowing
1. The foreign credit
institutions and bank branches are entiled to make lending and borrowing from
each other to cover a temporary shortage of reserve requirement, affordability
and balance of short-term capital.
2. The foreign credit
institutions and bank branches must use the loan capital resources on the
interbank market flexibly, efficiently and appropriate with the orientation of
the foreign credit institutions and bank branches and maintain the safety rate
prescribed by the State Bank.
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The time limit of lending among
the foreign credit institutions and bank branches is under 01 years maximum.
Article 11.
Lending interest rate
1. The lending interest rate
will be agreed upon by the foreign credit institutions and bank branches.
2. In the case of banking
activities has unusual changes, the State Bank will stipulate the lending
interest rate for the foreign credit institutions and foreign branches to
implement.
3. The parties agree in the
lending contract on the application of interest rate of overdue fine for the
loan not repaid on schedule and not renewed by the lender. The interest rate of
overdue fines is up to 150% maximally of the interest rates applicable to the
loan in the lending contract or up to 150% maximally of interest rates that the
lender is applying for other loans with the same term on the inter-bank market
at the time of overdue loan transfer.
Article 12.
Loan security
1. The parties agree to apply or
not to apply the security for loans in each specific case. The application of
the form of securing and processing the loan security assets made under the
current provisions of law on the secured transactions.
2. The lenders must have
specific provision on the conditions and principles upon considering whether
permitting or not permitting the implementation of the form of loan security,
and ensure the implementation of the lending activity safely, efficiently and
compliant with the relevant current regulations.
3. The deposit for the purpose
of mortgage of valuable papers for the loan guarantee will be agreed by the
parties with the depository institutions in accordance with the actuality and
provisions of law.
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The parties will consider and
agree to apply the mode of lending and borrowing for each time, under the norms
or other modes and ensure the implementation of the lending activity safely,
efficiently and compliant with the relevant current regulations.
Article 14.
Currency of the lending and borrowing
The foreign credit institutions
and bank branches will make the lending and borrowing in Vietnam dong and
foreign currencies of free conversion. The lending and borrowing in foreign
currency must be made on the basis of the operation scope of foreign exchange
permitted by the State Bank for each foreign credit institutions and bank
branches.
Article 15.
Lending contract
1. All transactions for lending,
borrowing done must be made in lending contracts. The lender and the borrower
may sign a lending contract for each transaction or sign a master contract
generally applicable to all lending transactions and borrowing among two
parties as agreed in principle in line with international practice and not
contrary to the law of Vietnam.
2. The lending contract can be
printed from the electronic transaction network, made on paper, via fax, or
other means. The lending contract must contain all seals (unless otherwise made
through electronic transaction system) and the signatures (handwritten
signatures or electronic signatures) or the transaction code (code) of the
transaction parties.
3. The lending contract includes
the following basic contents:
- The lender;
- The borrower;
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- Contents of the contract;
- Mode of contract performance;
- Value of the loan;
- Interest rates on loans;
- Loan term;
- Form of loan security (if
any);
- Mode of payment;
- Rights and obligations of the
parties;
- Provisions on adjustment of
the contract during the performance;
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- Other agreements related to
the loans of the parties.
Article 16.
Rights and obligations of the lender
1. The lender has the right:
a) To require the borrower to provide
information and documents relating to the borrower upon receiving the request
for loan / grant of credit limit ; to reject the borrower's request for loan if
the borrower does not meet the lending conditions;
b) To require the borrower to
have measures for the loan;
c) To extend the loan; adjust
repayment term; adjust interest rate; transfer of overdue debts;
d) To request the lender to make
the loan repayment before due if the parties have agreement on the repayment
before due or detect the borrower’s violations over the lending contract;
dd) Processing the loan security
assets or initiating a suit under the provisions of law in case the borrower
fails to comply properly and fully their obligations upon maturity of debt if unless
otherwise agreed by the parties.
2. The lenders are obliged to::
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b) Periodically at least once a
year, the lender will review, reassess the customers to determine appropriate
credit limits for each customer. The credit limit must be approved by the
lender's authorized person;
c) Comply with all agreements in
the lending contract.
d) Immediately report in writing
to the State Bank (Credit Department) when the borrower fails to comply fully
and properly its obligations as committed if the debt is due.
Article 17.
Rights and obligations of the borrower
1. The borrower has the right:
a) To make repayment before due
if the parties have agreement or upon the lender's approval;
b) Initiate a suit against the
lender under the provisions of law if the lender violates the commitments as
agreed in the lending contract;
2. The borrower is obliged to:
a) Build specific regulations on
the lending activity on the interbank market in accordance with the
characteristics and model of its organization;
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c) Provide relevant information
and documents honestly and accurately and take responsibility for the provision
of information to the lender on the liquidity, financial statement, the
situation of overdue debt at other foreign credit institutions and the bank
branches and other relevant necessary information in order to serve the
assessment of the customer and determine appropriate transaction limit as
required by the lender;
d) Use the loans on the
interbank market purposes for the right purpose as specified in Article 9 of
this Circular;
dd) Fully and properly implement
the obligations as agreed with the lender.
SECTION 2.
TRANSACTION OF PURCHASE AND SALE WITH TERM OF VALUBALE PAPERS
Article 18.
Principle of the transaction of purchase and sale
Upon performance of the
transaction of purchase and sale with term of valuable papers, the foreign
credit institutions and the bank branches must ensure the following principles:
1. Only make transactions upon
fully satisfying the conditions as prescribed in clause 1, Article 4 of this
Circular.
2. Take self-responsibility
before law for the decision to purchase and sell its valuable papers with term;
implement the purchase and sale of valuable papers with term with other foreign
credit institutions and the bank branches as agreed in accordance with the
provisions of this Circular, the current relevant legal provisions and
international practice.
3. Fully and punctually recover
the amount (principal and interest) upon performance of the purchase and sale
of the valuable papers with term with other foreign credit institutions and
bank branches.
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5. All interests arising in
relation to the valuable papers during the time of performing the purchase and
sale of valuable papers with term will be agreed by the foreign credit
institutions and bank branches in writing in accordance with the current law.
Article 19.
Types of valuable papers
1. The commercial banks, finance
companies, cooperative banks, foreign bank branches are entitled to purchase
and sell with term the following valuable papers:
a) State Bank's bills;
b) Government’s bonds
c) Trái phiếu được Chính phủ bảo
lãnh;
Government-guaranteed bonds
d);Local authority bonds;
dd) Valuable papers issued by
the foreign credit institutions and bank branches (including the valuable
papers issued by those foreign credit institutions and bank branches) under the
provisions of the Bank State;
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2. The financial leasing
companies are entitled to purchase and sell types of valuable papers with term
as prescribed at point a, b, clause 1 of this Article.
Article 20.
Conditions of the valuable papers
The valuable papers transacted
must satisfy the following conditions:
1. Being the valuable papers
legally issued under the regulation of Vietnamese Law and permitted for
assignment
2. Being issued by Vietnam dong
or foreign currency of free conversion;
3. Legally owned by the seller;
4. The remaining time limit of
the valuable papers must be greater than the time limit of purchase and sale.
Article 21.
Currency of purchase and sale.
1. For valuable papers issued in
Vietnam dong, the foreign credit institutions and bank branches conduct the
transactions of purchase and sale in Vietnam dong.
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3. The foreign credit
institutions and bank branches only conduct the transactions in foreign
currency within the scope of foreign exchange operations permitted by the State
Bank for each foreign credit institutions and bank branches.
Article 22.
Time limit of purchase and sale.
The time limit of purchase and
sale of valuable papers with term among the foreign credit institutions and
bank branches is at least 01 day and less than 01 year maximally.
Article 23.
Interest of purchase and way of determination of purchase and re-purchase
price.
1. The interest rate of purchase
applied in purchase and sale of valuable papers with term among the foreign
credit institutions and bank branches made by the method of self agreement on
the basis of compliance with the current regulations of the Bank State about
interest.
2. The foreign credit
institutions and bank branches determine the purchase and re-purchase price,
for each transaction on the basis of interest purchase, term of purchase and
sale agreed, the remaining term of valuable papers and the other relevant
information.
The re-purchase price is
calculated by the following formula:
Re-purchase price = purchase
price x (1 + interest of purchase x term of purchase and sale/365)
Article 24.
Contract of re-purchase of valuable papers
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2. The contract of re-purchase
can be made in writing via electronic transaction system, on paper, via fax or
other means. The contract of re-purchase must have seals and signatures
(handwritten signatures or electronic signatures) of the contract performance
parties.
3. The contract of re-purchase
include the following contents:
a) The seller;
b) The purchaser;
c) Valuable papers are purchased
and sold: form (certificate, book recording), serial number, par value or
maturity value (the total amount paid when due payment of those valuable
papers) , issuer, maturity date;
d) Purchase date;
dd) Purchase price;
e) Purchase interest;
g) Time limit of purchase;
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i) Re-purchase date;
k) Mode of payment and transfer
of valuable papers
l) Handling dispute and breach
of contract;
m) Rights and obligations of the
parties;
n) Value date of the contract;
o) Other relevant contents
Article 25.
The process of purchase and sale
1. When having a need to
purchase and sell valuable papers with term, the foreign credit institutions and
bank branches made an offer to purchase or sell of valuable papers with the
other foreign credit institutions and bank branches on the interbank market.
The seller must take responsibility before law for the legality and validity of
the valuable papers to be offered for sale.
2. The purchaser will check the
information of the valuable papers.
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3.1. In case the valuable papers
are listed: Complying with the provisions of the trading floor where the
valuable papers are listed.
3.2. In case the valuable papers
are not listed: Complying with the professional process and agreement of both
parties in accordance with the provisions of law as follows:
a) For the valuable papers that
are anonymous certificates: the parties will directly hand over and receive the
valuable papers
b) For valuable papers that are
the named certificates: the seller hands over to the buyer and simultaneously
makes the procedures for thetransfer of ownership to the purchaser under the
provisions of relevant law and the issuer;
c) For the book entry valuable
papers: the seller hands over the ownership certificate and valuable papers to
the purchaser and simultaneously makes the procedures for transferring the
ownership of the valuable papers to the purchaser under the provisions of
relevant law and the issuer;
d) In case the valuable papers
are being deposited, the seller can authorize a depository organization to make
the procedures for transferring the valuable papers and the ownership of the
valuable papers from the seller to the purchaser.
4. The seller of valuable papers
shall comply with its commitment to re-purchase the valuable papers under the
agreement. The transfer of re-purchase money from the seller and transfer of
the valuable papers and ownership of the valuable papers from the purchaser are
performed as specified in paragraph 3 of this Article.
5. Where a party has a need to
re-purchase or re-sell the valuable papers before the date of re-purchase, the
requesting party will send a written proposal to its partner for consideration
and processing. The party receiving the request has a right to approve or
disapprove the re-sale or re-purchase of valuable papers before the date of
re-purchase with the number and re-purchase price agreed upon by the parties.
Chapter 3.
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Article 26.
Regulation on information and reporting
The foreign credit institutions
and bank branches shall report the situation of lending and borrowing, purchase
and sale with term of the valuable papers in accordance with the statistical
and reporting regulation of the State Bank and the provisions of this Circular.
Article 27.
Organization of implementation
1. Responsibilities of the Credit
Department:
a) Focally monitoring and
aggregating the performance of the activities of lending, borrowing, purchase
and sale with term of the valuable papers among the foreign credit institutions
and bank branches; receiving the documents regulating the professional process
and risk management process of the foreign credit institutions, and bank
branches;
b) Presiding over and
coordinating with the Banking Supervision and Inspection Agency, Department,
Monetary Policy Department, Department of Forecast and Monetary Statistics,
Department of Banking Information Technology, Payment Department and Office to
implement:
- Monitoring and surveying and
grasping the situation of implementation and compliance with the provisions in
this Circular of the foreign credit institutions and bank branches entering the
market.
- Monitoring and aggregating the
situation of implementation of the provisions at Point d, Clause 2, Article 16,
Article 26 of this Circular of the foreign credit institutions and bank
branches and submitting the handling measures to the Governor treatment in each
specific case .
- Publishing on the website of
the State Bank the information about interest rates of lending and interest
rates of purchase of the valuable papers among the foreign credit institutions
and bank branches.
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c) Presiding over and
coordinating with the units concerned to request the Governor to issue the
documents directing and operating the activities of the interbank market if the
currency market has unusual changes.
2. Responsibilities of the
Banking Supervision and Inspection Agency:
a) Guiding the foreign credit
institutions and bank branches to conduct loan classification, set up the risk
provision and safety assurance rate in the activities of the foreign credit
institutions and bank branches for the loans, purchase and sale with term of
the valuable papers;
b) Conducting the regular or
irregular inspection and examination and focallly proposing the handling of
violations of the foreign credit institutions and bank branches in the
observance of the provisions in this Circular under the functions, duties and
regulations of law.
c) Providing the Credit
Department and the relevant units with the information on the foreign credit
institutions and bank branches that are applied State Bank the measures to
limit, suspend, temporarily suspend the implementation of activities for
lending, borrowing, purchase and sale with term of the valuable papers on the interbank
market as soon as there is a decision.
3. Responsibilities of the
Department of Finance - Accounting:
Guiding the accounting of the
activities related to the transactions of mutual lending, borrowing, purchase
and sale with term of the valuable papers among the foreing credit institutions
and bank branches as stipulated in Circular hereof.
4. Responsibilities of the
Department of Forecast and Monetary Statistics:
a) Coordinating with the Credit
Department to perfect the statistic reporting regulations concerning the
activities prescribed in this Circular.
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5. Responsibilities of the State
Bank branches of the central run provinces and cities:
a) Implementing the supervision
and inspection of the foreing credit institutions and bank branches in the
observance of this Circular under the functions and tasks and reporting to the
State Bank Governor on the violations and handling of violations according to
their competence;
b) Monitoring and aggregating
the situation of lending, borrowing, purchase and sale of valuable papers with
term among the foreign credit institutions and bank branches in the area and
promptly recording the unusual arising circumstances. Every month, submitting
the general report to the Credit Department before the 15th date of the
subsequent month.
Article 28.
Effect
1. This Circular takes effect on
September 01, 2012. The following documents and provisions cease to be
effective from the date this Circular takes effect:
a) Decision No.
1310/2001/QD-NHNN dated October 15, 2001 of the State Bank Governor on the
promulgation of regulations on capital loan among the credit institutions;
b) The provisions of the
purchase and sale with term of the valuable papers among the credit
institutions that are commercial banks, finance companies, fiancial leasing
companies, the Central People's Credit Fund, foreign bank branches stipulated
in Decision No. 1325/2004/QD-NHNN on October 15, 2004 of the State Bank Governor
regulating the issuance of the Regulation on the discount, rediscount of
valuable papers of the credit institutions to customers, Decision No.
17/2006/QD-NHNN dated April 20, 2006 of the State Bank Governor on the
amendment and supplementation of the Article 10 and Article 12 of the
Regulation on the discount, re-discount of valuable papers of credit
institutions to customers issued together with Decision No. 1325/2004/QD-NHNN
on October 15, 2004 of the State Bank Governor;
c) The document No. 9756/NHNN-CSTT
of the State Bank dated December 10, 2009 on the interest rate of the
inter-bank market; Document No.7585/NHNN-CSTT of the State Bank dated August
19, 2008 on the application of interest rate of loan in Vietnam dong among the
credit institutions on the interbank market;
d) Other regulations on lending,
borrowing, purchase and sale with term of the valuable papers among the foreign
credit institutions and bank branches contrary to the provisions in this
Circular.
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3. The foreign credit
institutions and bank branches are not allowed to perform the deposit operation
and receipt of deposit (excluding payment deposits) in other foreign credit
institutions and bank branches from the date this Circular takes effect.
4. The transactions that are
performed before the date this Circular takes effect on the basis of contracts
of lending, borrowing, purchase and sale with term of the valuable papers and
contracts of deposit and receipt of deposit (other than payment deposits) that
have been signed among the foreign credit institutions and bank branches, the
foreign credit institutions and bank branches will comply with the agreements
as signed.
5. The Chief of Office, Director
of Credit Department, Heads of relevant units under the State Bank, Director of
State Bank branches in central run provinces and cities, Chairman of the Board of
Directors, Chairman of Member Board, and the General Directors (Directors) of
the foreign credit institutions and bank branches are liable to implement this
Circular.
PP.
GOVERNOR
DEPUTY GOVERNOR
Nguyen Đong Tien