CIRCULAR
Guiding foreign investment activities on the Vietnamese securities market
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Pursuant to the June 29, 2006 Law on Securities;
Pursuant to the November 24, 2010 Law Amending and Supplementing a Number of Articles of the Law on Securities;
Pursuant to the November 26, 2014 Law on Enterprises;
Pursuant to the November 26, 2014 Law on Investment;
Pursuant to the November 29, 2005 Law on E-Transactions;
Pursuant to the Government’s Decree No. 215/2013/ND-CP of December 23, 2013, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;
Pursuant to the Government’s Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding the implementation of a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities;
Pursuant to the Government’s Decree No. 60/2015/ND-CP of June 26, 2015, amending and supplementing a number of articles of Decree No. 58/2012/ND-CP of July 20, 2012;
Pursuant to the Government’s Decree No. 64/2007/ND-CP of April 10, 2007, on the application of information technology in operations of state agencies;
At the proposal of the Chairperson of the State Securities Commission;
The Minister of Finance promulgates the Circular to guide foreign investment activities on the Vietnamese securities market.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation and subjects of application
1. This Circular guides securities trading and investment activities and holding rate of foreign investors on the Vietnamese securities market, excluding the following investment activities of foreign investors:
a/ Investment activities specified in Articles 22, 27 and 28 of the Law on Investment;
b/ Contribution of capital to establish, or trading of shares of, companies that are not public companies or trading of capital contributions of limited liability companies, except capital contribution to, purchase of shares or capital contributions of securities trading organizations and securities investment funds.
2. This Circular applies to:
a/ Foreign investors;
b/ Economic organizations of which at least 51% of charter capital is held by foreign investors;
c/ Custodian banks, securities trading organizations;
d/ Issuing organizations and public companies;
dd/ Other related organizations and individuals.
Article 2. Interpretation of terms
In this Circular, the terms below are construed as follows:
1. Valid copy means a copy that is notarized or authenticated in accordance with relevant law.
2. Authorized representative of a foreign organization means:
a/ Chairperson of the Board of Directors, chairperson of the Members’ Council, corporate secretary, director (general director) or owner of the foreign organization;
b/ An authorized person defined in the charter, capital contribution agreement or an equivalent document of the foreign organization to be competent to sign documents and perform relevant tasks specified in this Circular;
c/ A person authorized in writing by the person defined at Point a or b of this Clause and certified by a notary overseas, or a person certified by a lawyer or notary overseas to be competent to represent the foreign organization in accordance with foreign law.
3. Trading representative means a Vietnam-based individual who satisfies the conditions prescribed in Clause 6, Clause 3 of this Circular and is authorized by a foreign investor to conduct securities transactions and investment on the Vietnamese securities market, disclose information and report to competent state management agencies in accordance with Vietnamese law.
4. Valid dossier means a dossier comprising sufficient papers specified in this Circular and properly and completely filled in accordance with law.
5. Securities trading organizations include Vietnam-based securities companies and fund management companies.
6. Foreign investor means an individual bearing foreign citizenship or organization established under foreign law and conducting investment or trading activities in Vietnam (below referred to as foreign organization).
7. Group of affiliated foreign investors consists of foreign organizations that are interrelated as follows:
a/ Foreign funds or organizations managed by the same domestic or overseas fund management company;
b/ Funds of the same master fund or portfolios of the same fund, sub-funds of the same fund, or funds financed by the same feeder fund;
c/ Investment portfolios of the same foreign investment fund or foreign organizations managed by the same multiple investment managers fund (MIMF);
d/ Investment portfolios of the same foreign investment fund or foreign investor, including the case of making deposit on different depository accounts.
dd/ Foreign funds or investors that have the same trading representative.
8. Depository member means a securities company or commercial bank possessing a depository operation registration certificate granted by the State Securities Commission and having registered itself as a member of the Vietnam Securities Depository.
Chapter II
SECURITIES INVESTMENT REGISTRATION
Article 3. Securities investment activities of foreign investors
1. A foreign investor may conduct investment activities on the Vietnamese securities market in the following forms:
a/ Directly purchasing and selling stocks, bonds and other securities; making capital contribution, purchasing, selling and exchanging shares, or authorizing a trading representative or securities trading organization to do so in accordance with the law on securities and securities market;
b/ Making indirect investment by entrusting fund management companies or Vietnam-based branches of foreign fund management companies to manage their capital.
2. Before conducting investment activities specified at Point a, Clause 1 of this Article, foreign investors shall register securities trading codes with the Vietnam Securities Depository through depository members under Article 4 of this Circular.
3. Foreign investors that conduct only investment activities specified at Point b, Clause 1 of this Article are not required to register securities trading codes. In this case, fund management companies or Vietnam-based branches of foreign fund management companies providing the service of management of entrusted assets of foreign investors may be granted by the Vietnam Securities Depository securities trading code registration certificates.
4. Foreign investors shall ensure that transactions specified in Clause 1 of this Article and transactions conducted by affiliated persons and groups of affiliated foreign investors are not aimed at creating sham supply or demand, manipulating securities prices and other prohibited trading acts prescribed by law.
5. Foreign investors shall declare, pay and finalize taxes, charges and fees related to securities activities in Vietnam in accordance with Vietnamese law, or authorize depository members, securities trading organizations, their representative offices or trading representatives to fulfill such obligation in accordance with Vietnamese law.
6. A foreign investor may select a trading representative in Vietnam that satisfies the following conditions:
a/ Having full civil act capacity; neither serving an imprisonment sentence nor being banned by the court from doing business;
b/ Possessing a securities trading practice certificate;
c/ Not concurrently working for a securities trading organization or Vietnam-based branch of a foreign fund management company or custodian bank operating in Vietnam;
d/ Being the sole Vietnam-based trading representative of and authorized in writing by the foreign investor.
7. Foreign investors, trading representatives and securities trading organizations that provide services to foreign investors shall comply with the regulations on the holding rate foreign parties in Vietnamese enterprises.
In case of conducting exchange transactions with exchange-traded funds (ETF) or executing derivative securities by the mode of material transfer, leading to a rate of foreign holding of component securities or base securities exceeding the foreign holding rate prescribed by law, the Vietnam Security Depository shall request fund management companies, clearing members and trading partners of foreign investors to sell amounts of component securities or base securities in excess of the foreign holding rate, and make cash payments to foreign investors.
8. Except for open-end funds, economic organizations of which at least 51% of charter capital is held by foreign investors, including those indirectly holding through authorization or investment entrustment, shall register securities trading codes and comply with the regulations on foreign holding rate when making investment on the Vietnamese securities market.
Article 4. Registration of securities trading codes
1. A foreign investor may register its/his/her securities trading code with the Vietnam Securities Depository according to the following procedures:
a/ The foreign investor submits a complete and valid dossier for securities trading code registration prescribed in Clause 2 of this Article to a depository member;
b/ The depository member shall examine the dossier and declare the information specified in Appendices 1 and 2 to this Circular on the online securities trading code registration system of the Vietnam Securities Depository;
c/ Within one (1) working day after receiving the information declared by the depository member, the Vietnam Securities Depository shall electronically grant and certify a securities trading code to the foreign investor through the depository member on its online securities trading code registration system. In case of refusal to grant a code, it shall reply on the system, clearing stating the reason;
Right after being granted by the Vietnam Securities Depository a securities trading code in the form of electronic certification, the foreign investor may carry out procedures for opening a securities trading account and conducting investment.
d/ Within five (5) working days after receiving a securities trading code, the depository member shall submit a complete dossier for securities trading code registration to the Vietnam Securities Depository prescribed in Clause 2 of this Article for review and archive;
dd/ Within five (5) working days after receiving a complete dossier from the depository member under Point d to this Clause, the Vietnam Securities Depository shall grant a securities trading code registration certificate to the foreign investor (through the depository member), made according to the form provided in Appendix 20 to this Circular;
e/ The Vietnam Securities Depository shall archive all dossiers for securities trading code registration and provide them to the State Securities Commission when requested in writing.
2. A dossier for securities trading code registration must comprise:
a/ An application for securities trading code registration, made according to the form provided in Appendix 1 or 2 to this Circular (the hard copy or SWIFT copy of a global custodian bank bearing the certification by the depository member), enclosed with a copy of the power of attorney for the depository member to conduct the securities trading code registration;
b/ Document for investor identification as guided in Appendix 12 to this Circular (for institutional investors) or a valid copy of the valid passport or another personal identification paper (for individual investors);
c/ In case the foreign investor has its own trading representative, additional documents must include:
- A document on authority of the trading representative, made according to the form provided in Appendix 10 to this Circular;
- An information sheet on the trading representative, made according to the form provided in Appendix 11 to this Circular;
- A valid copy of the valid identity card or passport or another personal identification paper of the trading representative;
- A valid copy of the securities trading practice certificate of the trading representative.
3. A dossier mentioned in Clause 2 of this Article must ensure that:
a/ Except for the documents specified in Appendices 1, 2, 3 and 14, the power of attorney for the depository member, depository contract and documents downloaded from the website of the competent foreign management agency, foreign-language documents shall be notarized or authenticated in accordance with foreign law. Copies of Vietnamese-language documents issued by Vietnamese state management agencies and competent organizations shall be notarized or authenticated in accordance with Vietnamese law within one (1) year before the foreign investor submits the dossier to the depository member;
b/ Except for the English-language documents or English translations already notarized or authenticated in accordance with foreign law, documents in other foreign languages shall be translated into Vietnamese by the depository member or a translation organization lawfully operating in Vietnam.
4. The foreign investor shall take responsibility before Vietnamese law for the accuracy, validity and truthfulness of the dossier for securities trading code registration. The depository member shall take responsibility before Vietnamese law for the complete, accurate and truthful declaration of information provided by the investor on the online securities trading code registration system of the Vietnam Securities Depository.
5. A foreign investor shall not be considered for the grant of a securities trading code registration certificate in either of the following cases:
a/ It/he/she is under investigation or has been sanctioned by a domestic or foreign competent management agency for committing a prohibited act prescribed by the securities law or a money laundering act; or has been administratively sanctioned or criminally punished for a violation or an offense in the field of finance, banking, foreign exchange management or taxation and has not yet been considered having never been administratively handled, or has failed to properly execute the decision on sanctioning such administrative violation;
b/ It has had its/his/her securities trading code revoked within two (2) years by the date of submission of the dossier for securities trading code registration.
6. A fund management company or Vietnam-based branch of a foreign fund management company may register its securities trading code for management of investment portfolios of foreign investors conducting investment in the form specified at Point b, Clause 1, Article 3 of this Circular. The registration of trading codes by such an organization must comply with the guidance of the Vietnam Securities Depository. A dossier for securities trading code registration must comprise the following documents:
a/ The documents specified at Point a, Clause 2 of this Article;
b/ A valid copy or the original of the depository contract between the fund management company or Vietnam-based branch of the foreign fund management company and the custodian bank;
c/ A valid copy of the establishment and operation license of the fund management company or Vietnam-based branch of the foreign fund management company.
7. A foreign securities company may be granted two (2) securities trading codes, one (1) for its dealing account and one (1) for its brokerage account.
8. A foreign investment fund or foreign organization managed by a foreign multiple investment managers fund (MIMF); an investment organization of a foreign government or inter-governmental investment organization may register many securities trading codes on the following principles:
a/ For each investment portfolio of the investment organization of a foreign government or inter-governmental investment organization deposited at a custodian bank, a securities trading code shall be registered;
b/ For each investment portfolio of the MIMF managed by a fund management company, a securities trading code shall be registered. A separate securities trading code shall also be granted for the investment portfolio managed by the fund itself.
9. In case a foreign investment fund or organization specified in Clause 8 of this Article, or a foreign securities company has been granted one (1) securities trading code, its dossier for registration for the grant of an additional securities trading code must comprise the documents specified at Point a, Clause 2 of this Article enclosed with documents proving the foreign organization’s satisfaction of the conditions prescribed in Clause 8 of this Article, and a copy of the previously granted securities trading code registration certificate.
Article 5. Changes to be reported to the Vietnam Securities Depository
1. Before making any of the following changes, a foreign investor shall report, through a depository member, to the Vietnam Securities Depository:
a/ Change of its/his/her trading representative;
b/ Shifting of the investment portfolio among its/his/her depository accounts specified in Clause 2, Article 8 of this Circular.
2. A dossier of reporting on a change specified in Clause 1 of this Article must comprise:
a/ A report on the change, made according to the form provided in Appendix 3 to this Circular (the hard copy or SWIFT copy of a global custodian bank bearing the depository member’s certification) enclosed with a copy of the power of attorney for the new depository member of the investor to make the report;
b/ Depending on the change, the dossier must additionally include the following documents:
- Relevant documents on the new trading representative specified at Point c, Clause 2, Article 4 of this Circular (if any), enclosed with a notice of termination of authorization for the existing trading representative;
- A detailed report on the investment portfolio on the existing depository account, made according to the form provided in Appendix 13 to this Circular; an on-principle contract or a notice by the existing depository member of the liquidation of the depository contract; an on-principle contract on opening of a new depository account or a valid copy of the power of attorney for depository activities in Vietnam; and a dossier of request for finalization of the depository account or account transfer of securities under the guidance of the Vietnam Securities Depository.
3. Within thirty (30) days after any of the following changes occurs, a foreign investor shall report it, through a depository member, to the Vietnam Securities Depository:
a/ Change of the custodian bank where its/his/her indirect capital account is opened;
b/ Change of its/his/her or its/his/her trading representative’s name, head office or contact address;
c/ Change of the serial number of the passport or another lawful personal identification paper (for individual foreign investors); the serial number of the business registration certificate or equivalent identification documents of the institutional foreign investor issued by a foreign state management agency as specified at Point b, Clause 2, Article 4 of this Circular (for institutional foreign investors);
d/ Change due to the division, split, consolidation, merger or acquisition.
4. A dossier of reporting on a change specified in Clause 3 of this Article must comprise:
a/ The documents specified at Point a, Clause 2 of this Article;
b/ Depending on the characteristics of the change, documents to be additionally submitted include the bank’s written certification of the new indirect investment capital account; a valid copy of the new passport or another personal identification paper; valid copies of documents evidencing the renaming or change of the head office or contact address, division, split, consolidation or merger, and other contents; and other documents for identification of the foreign investor specified in Appendix 12 to this Circular;
In case of renaming, the document evidencing the renaming is any of the following:
The business operation registration certificate or establishment and operation license or an equivalent document evidencing the renaming of the foreign investor, specifying both the old and new names; or the prospectus or an equivalent document of the foreign fund already posted on the website of the foreign management agency that has granted the establishment and operation registration certificate, clearly announcing the renaming, or other documents granted by the foreign management agency or the address and information of the foreign investor posted on the website of the management agency under the new name (with the same serial number of the establishment license or business registration certificate or tax identification number or another reference number) or other documents showing the new name enclosed with the certification by a foreign notary of the renaming of the foreign investor.
5. A foreign investor shall report on a change specified in Clause 1 or 3 according to the following procedures:
a/ The foreign investor shall submit a complete and valid dossier set prescribed in Clause 2 or 4 of this Article to the depository member;
b/ The depository member shall examine the dossier of reporting on the change and declare information specified in Appendix 3 to this Circular on the online securities trading code registration system of the Vietnam Securities Depository;
c/ Within one (1) working day after receiving the information provided by the depository member, the Vietnam Securities Depository shall electronically certify the changed information as requested by the foreign investor through the depository member or shift the securities portfolio of the foreign investor to a new depository member (for the changes specified at Point b, Clause 1 of this Article);
The above changes may take effect only after the Vietnam Securities Depository makes the electronic certification thereof. In case of refusal to make certification, the Vietnam Securities Depository shall issue a reply on the system, clearing stating the reason.
d/ Within five (5) working days after receiving the electronic certification from the Vietnam Securities Depository, the depository member shall submit a complete dossier of reporting on the change specified in Clause 2 or 4 to the Vietnam Securities Depository for review and archive. Such a dossier must comprise the documents specified in Clause 2, Article 4 of this Circular;
dd/ Within five (5) working days after receiving a dossier mentioned at Point d of this Clause, the Vietnam Securities Depository shall certify in writing the change as requested by the foreign investor (through the depository member).
Article 6. Suspension of trading, revocation of securities trading codes
1. A foreign investor shall be suspended from trading for up to six (6) months in the following cases:
a/ Its/his/her dossier for securities trading code registration is detected to contain untruthful or inaccurate information or lack important details which are required to be included in such dossier;
b/ It/he/she fails to report on or provide documents containing truthful, accurate and timely information at the request of the Vietnam Securities Depository or State Securities Commission, or fails to perform the obligation to report on the holding and disclose information in accordance with law;
c/ It/he/she commits a prohibited act prescribed in Article 9 of the Law on Securities and Clause 4, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Securities;
d/ It/he/she violates Vietnamese regulations on foreign exchange management; or fails to fulfill the tax obligation and other financial obligations toward the State in accordance with law.
2. The Vietnam Securities Depository shall revoke the securities trading code of a foreign investor in the following cases:
a/ The foreign investor falls into the case specified at Point a, Clause 5, Article 4 of this Circular;
b/ The errors leading the suspension of the foreign investor’s trading remain uncorrected upon the expiration of the trading suspension period specified in Clause 1 of this Article;
c/ The foreign investor requests the revocation: In this case, the foreign investor shall send to the Vietnam Securities Depository, through the depository member, a written request for revocation of the securities trading code, made according to the form provided in Appendix 14 to this Circular (hard copy or SWIFT copy of a global custodian bank bearing the depository member’s certification) enclosed with a copy of the power of attorney for the depository member to revoke the securities trading code (in case of the new depository member of the investor).
3. Foreign investors whose securities trading codes are revoked under Point b, Clause 2 of this Article shall not be re-granted securities trading codes within two (2) years after the date of revocation.
Article 7. Indirect investment capital accounts
1. A foreign investor may open one (1) indirect investment capital account at one (1) custodian bank licensed to deal in foreign exchange for conducting indirect investment activities in Vietnam.
2. All money transfers for conducting transactions and investment activities specified in Clause 1, Article 3 of this Circular and other payments related to securities investment activities of foreign investors; receipt and use of dividends or divided profits, purchase of foreign currencies from credit institutions licensed to deal in foreign exchange in Vietnam for remittance abroad and other related transactions, shall be conducted via these accounts.
3. For their operation of management of investment portfolios for foreign investors, fund management companies and Vietnam-based branches of foreign fund management companies may open indirect investment capital accounts to receive capital of foreign investors that have no indirect investment capital accounts, and make investments on the Vietnamese securities market under Point b, Clause 1, Article 3 of this Circular. In this case, the indirect investment capital account must bear the name of the fund management company or Vietnam-based branch of a foreign fund management company.
4. Entities eligible for and conditions, order and procedures for opening, closure, use and management of indirect investment capital accounts must comply with the law on foreign exchange management.
Article 8. Securities depository accounts
1. In case of deposit of assets at a custodian bank:
a/ After registering its/his/her securities trading code, a foreign investor may open securities depository accounts at a custodian bank on the principle that for each granted securities trading code only one securities depository account may be opened.
This Point is not applicable to foreign investors depositing their securities on securities trading accounts opened at securities companies;
b/ The opening of securities depository accounts at custodian banks must comply with the law on securities registration, depository, clearing and payment. All accounting entries for securities payment and depository of foreign investors shall be made on these accounts.
2. A foreign investor may shift the whole securities portfolio from a depository account (for finalizing such account) to another. Before opening a depository account at a new custodian bank, a foreign investor that deposits its/his/her assets at a custodian bank under Clause 1 of this Article shall close its/his/her current depository account and transfer the whole balance on this account to the new account. The procedures for shifting a securities portfolio between depository accounts must comply with Article 5 of this Circular and the law on securities registration, depository, clearing and payment.
Chapter III
OBLIGATIONS IN FOREIGN INVESTMENT ACTIVITIES
Article 9. Obligations in the provision of services to foreign investors
1. A securities trading organization providing services to foreign investors shall:
a/ Fully comply with the law on securities and securities market;
b/ In case it provides services to foreign investors or participates in securities auctions as authorized by foreign investors, separate trading orders and investment directions of foreign investors from those of domestic investors and its own ones, ensuring that the securities investment and purchase of shares for foreign investors comply with the regulations on the rate of foreign holding in Vietnamese enterprises;
c/ Distribute in a fair and rational manner assets to each foreign investor in accordance with signed contracts;
d/ Refrain from making investment decisions on behalf of its customers except where it manages trading accounts for foreign individual investors in accordance with law.
2. When conducting transactions for foreign investors, trading representatives of such foreign investors shall:
a/ Comply with the securities law and relevant laws;
b/ Strictly follow trading and payment directions of foreign investors, and refrain from directly making investment decisions, including selection of securities type, amount, price and trading time, until they receive trading orders and investment directions of foreign investors;
c/ Refrain from colluding with domestic and overseas investors in purchasing and selling securities in order to create sham supply and demand; refrain from conducting securities trading by colluding with or enticing others into continuously purchasing and selling securities back and forth for the purpose of manipulating securities prices;
d/ Report to the State Securities Commission when so requested in writing.
3. The Vietnam Securities Depository, depository members and securities trading organizations providing services to foreign investors shall keep confidential information on foreign investors in accordance with relevant laws and provide such information to competent state management agencies when so requested in writing.
4. The Vietnam Securities Depository shall develop the online securities trading code registration system and issue the procedures for using the system.
5. The Vietnam Securities Depository shall specify the forms of warning, caution and suspension of the use of the online securities trading code registration system of a depository member in case such member fails to fully submit the list of dossiers specified at Point d, Clause 1, Article 4, and Point d, Clause 5, Article 5 of this Circular.
6. The Vietnam Securities Depository may, after obtaining approval of the State Securities Commission, terminate for an indefinite time the use of the online securities trading code registration system of a depository member in case such member declares untruthful information for registering a foreign investor’s trading code, registers a blank trading code or registers a trading code for an ineligible entity.
7. A depository member may register a trading code for a foreign investor only after receiving a complete dossier specified in Clause 2, Article 4 of this Circular. Depository members may not register blank trading codes or registering trading codes for ineligible entities. A depository member that registers a blank trading code or registers a trading code for an ineligible entity shall bear all responsibilities, including financial obligations for transactions conducted on the trading account opened on the basis of such trading code.
Article 10. Obligation to report on investment activities
1. Depository members shall compile and preserve dossiers and documents on asset deposit on depository accounts of foreign investors. These documents, including also those governed by the regulations on investor information and information confidentiality, shall be provided to competent management agencies.
2. Depository members shall send to the State Securities Commissions monthly reports on statistical data of depository accounts and lists of assets of foreign investors, made according to the form provided in Appendix 4 to this Circular. Depository members that are branches of foreign credit institutions or wholly (100%) foreign-owned credit institutions established in Vietnam shall also send reports on their investment activities and portfolios, made according to the form provided in section IV, Appendix 4 to this Circular.
3. Custodian banks where foreign investors open their indirect investment capital accounts or capital contribution or share purchase accounts shall send reports on capital circulation by foreign investors on these accounts to the State Securities Commission once every two (2) weeks, made according to the form provided in Section III, Appendix 4 to this Circular.
4. Securities trading organizations shall send monthly reports on investment portfolio management and investments under directions to foreign investors, made according to the form provided in Appendix 5 to this Circular,.
5. Trading representatives of foreign investors shall send reports on investment activities under directions to foreign investors at the request of the State Securities Commission, made according to the form provided in Appendix 6 to this Circular.
6. The Vietnam Securities Depository shall:
a/ Send to the State Securities Commission monthly reports on the grant of securities trading codes to foreign investors and changes of these investors (if any), made according to the form provided in Appendix 7 to this Circular;
b/ Fully update data on foreign investors and their portfolios on the foreign investment management system of the State Securities Commission.
7. The Stock Exchanges shall make daily, monthly and annual reports on trading activities of foreign investors, made according to the form provided in Appendix 8 to this Circular.
8. Deadlines and time limits for sending reports mentioned in Clauses 2, 3, 4, 5, 6 and 7 of this Article are as follows:
a/ Before 16:00 hrs on every trading day, for daily reports;
b/ Within three (3) working days after the 15th and 30th every month, for reports on capital circulation activities of foreign investors;
c/ Within five (5) working days after the end of each month, for monthly reports;
d/ Within ninety (90) days after the end of each year, for annual reports.
9. When necessary, the State Securities Commission may request the Vietnam Securities Depository, the Stock Exchanges, securities trading organizations, depository members, trading representatives or investors to directly report on activities of foreign investors.
10. The time limit for sending a report mentioned in Clause 9 of this Article is forty-eight (48) hours after receiving a request of the State Securities Commission.
11. Reports of the Stock Exchanges, the Vietnam Securities Depository, securities trading organizations and depository members specified in this Article shall be sent together with their soft copies to the State Securities Commission and preserved for at least five (5) years.
12. Foreign investors and groups of affiliated foreign investors shall perform the obligation to report on their holdings and disclose information on securities transactions in accordance with the law on disclosure of information on the securities market on the following principles:
a/ A foreign investor may perform by itself or designate one (1) depository member or one (1) securities trading organization or its representative office (if any) or another organization or authorize one individual to perform the obligation to report on its holding and disclose information in accordance with law;
b/ A group of affiliated foreign investors shall designate one (1) depository member or one (1) securities trading organization or its representative office (if any) or another organization or authorize one (1) individual to perform the obligation to report on its holding and disclose information in accordance with the law on disclosure of information on the securities market;
A notice of designation or change of an organization or individual to perform the obligation to report on holding and disclose information shall be made according to the form provided in Appendix 15 to this Circular and sent to the State Securities Commission, Stock Exchanges and Vietnam Securities Depository at least three (3) working days before the designation or authorization takes effect, enclosed with a valid copy of the establishment and operation license or business registration certificate or fund establishment registration or an equivalent document (of the designated organization) or a valid copy of the valid identity card (of citizens) or passport or another lawful personal identification paper (of the authorized individual);
c/ Foreign investors and groups of affiliated foreign investors shall provide adequate information on their securities holding for organizations designated or individuals authorized to disclose information to fully perform the obligation to report on holding and disclose information in accordance with law.
d/ The obligation to report on holdings and disclose information of a foreign investor or group of affiliated foreign investors arises in the following cases:
- The total number of stocks or closed fund certificates of the foreign investor or group of affiliated foreign investors accounts for at least 5% of total outstanding voting stocks of an issuing organization or at least 5% of total certificates of a closed fund or when its holding rate no longer reaches such level;
- The foreign investor or group of affiliated foreign investors holds at least 5% of outstanding voting stocks of an issuing organization or holds at least 5% of certificates of a closed fund and conducts transactions leading to a change exceeding 1% in its holding rate;
- The foreign investor or an investor in the group of affiliated foreign investors is an insider of a public company or public fund in accordance with the law on disclosure of information on the securities market;
This Point is not applicable to the case where the holding rate changes due to trading in treasury stocks or additional issuance of stocks by the issuing organization.
dd/ Reports on holdings and information disclosures shall be made according to the form provided in Appendices 18 and 19 to this Circular. The time of reporting and disclosure must comply with the law on disclosure of information on the securities market.
Chapter IV
FOREIGN HOLDING ON THE SECURITIES MARKET
Article 11. Rate of foreign holding on the Vietnamese securities market
1. The maximum rate of foreign holding in public companies, state enterprises equitized in the form of public offering of securities; and rate of foreign investors’ holding of bonds, securities investment fund certificates, stocks of securities investment companies, non-voting stocks of public companies, derivatives and depositary receipts shall be determined under Clause 2, Article 1 of the Government’s Decree No. 60/2015/ND-CP of June 26, 2015, amending and supplementing a number of articles of the Government’s Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities (below referred to as Decree No. 60/2015/ND-CP).
2. Public companies shall determine their investment and business sectors and lines and the maximum rate of foreign holding in their companies. The list of conditional investment and business sectors and lines; foreign holding rate for each investment or business sector or line (if any) must comply with treaties, investment and enterprise laws and other relevant laws.
3. Public companies not subject to foreign holding rate limitations under Clause 2, Article 1 of Decree No. 60/2015/ND-CP, when wishing to limit the actual foreign holding rate, shall specify the maximum foreign holding rate in their charters. The amendment and supplementation of company charters shall be made after convening meetings or collecting written opinions of the Shareholders’ General Meeting in accordance with the law on enterprises.
4. In case of change of investment or business sectors or lines or reorganization of a public company or change in relevant regulations likely to lead to a rate of foreign holding in such company exceeding the maximum rate prescribed in Clause 2, Article 1 of Decree No. 60/2015/ND-CP, the public company and affiliated organizations and individuals shall ensure that the change does not lead to a higher rate of foreign holding in the company.
5. The rate of foreign holding in a securities trading organization is not limited, provided that:
a/ The foreign organization satisfying the conditions prescribed in Clauses 21 and 24, Article 1 of Decree No. 60/2015/ND-CP holds at least 51% of the charter capital of the securities trading organization;
b/ Each foreign individual investor or another organization holds under 51% of the charter capital of the securities trading organization.
6. The maximum rate of foreign holding in securities trading organizations shall be specified in the charters of these organizations, unless these organizations do not limit foreign holding.
Article 12. Obligation of public companies to report and disclose information on foreign holding
1. A public company that conducts activities leading to a change in its foreign holding rate shall perform the obligation to report and disclose information. Cases in which a public company shall report on its foreign holding rate include:
a/ A public company that is not subject to foreign holding rate limitations under Clause 2, Article 1 of Decree No. 60/2015/ND-CP adjusts its foreign holding rate;
b/ Upon registering itself or offering or issuing securities, a public company adjusts its foreign holding rate;
c/ A public company is divided, split, consolidated or merged with another company, leading to adjustment of its foreign holding rate;
d/ A public company changes its investment or business sector or line, leading to a change in its foreign holding rate under Clause 2, Article 1 of Decree No. 60/2015/ND-CP;
dd/ A relevant treaty or law changes its provisions on foreign holding rate in investment or business sectors or lines in which the public company is operating.
2. The order, procedures and dossiers for reporting on foreign holding rate in the cases specified at Points a, d and dd, Clause 1 of this Article must comply with Article 13 of this Circular. For the cases specified at Points b and c, Clause 1 of this Article, the reporting on foreign holding rate shall be made together with the reporting and disclosure of information upon registration of public companies, registration for securities offering or issuance or reorganization of companies in accordance with law.
Article 13. Order, procedures and dossiers for reporting on foreign holding rates in public companies
1. A dossier for reporting on the foreign holding rate in a public company mentioned at Points a, d and dd, Clause 1, Article 12 of this Circular must comprise:
a/ A notice of the maximum rate of foreign holding in the company, made according to the form provided in Appendix 16 to this Circular, enclosed with a valid copy of the company’s establishment and operation license, business registration certificate or enterprise registration certificate;
b/ Additional documents, including:
- For a public company not subject to foreign holding limitations under Clause 2, Article 1 of Decree No. 60/2015/ND-CP, the following shall be added:
Quoted address and information published on the National Enterprise Registration Portal, National Foreign Investment Portal or the website of a competent state agency or valid documents of another competent state agency as guided by the State Securities Commission, certifying that the company is operating in the sector or field not subject to foreign holding rate limitations; minutes of the meeting and resolution of the Board of Directors on unlimited foreign holding rate (in case the company does not limit foreign holding rate) or minutes of the meeting and resolution of the Shareholders’ General Meeting on foreign holding limit and the company charter’s provision on the maximum foreign holding rate (in case the company limits foreign holding rate);
- For a public company subject to foreign holding rate limitations under Clause 2, Article 1 of Decree No. 60/2015/ND-CP, the following shall be added:
Quoted address and information published on the National Enterprise Registration Portal, National Foreign Investment Portal or the website of a competent state agency on investment and business sectors or lines and foreign holding rate (if any) applicable to investment and business or lines in which the company is operating in accordance with the investment law, relevant laws, treaties or other documents as guided by the State Securities Commission specifying investment and business sectors or lines applicable to the company;
- For a state enterprise equitized in the form of public offering of securities, the following shall be added:
Document of the competent authority approving the equitization plan, which specifies the maximum foreign holding rate of the company.
2. Within ten (10) working days after receiving a complete and valid reporting dossier specified in Clause 1 of this Article, the State Securities Commission shall certify in writing the receipt of the complete dossier.
3. The above time limit does not include the time for the State Securities Commission to coordinate with competent state management agencies in certifying information on foreign holding rate in the following cases:
a/ There is no investment or business sector or line, or the scope of operation of the investment or business sector or line is unclear, or the investment or business sector or line stated in the establishment and operation license, business registration certificate or enterprise registration certificate and that published on the National Enterprise Registration Portal, National Foreign Investment Portal or the website of a competent state agency are inconsistent;
b/ The company is operating in an investment or a business sector or line on which Vietnam has made no commitment in any treaty.
4. Within one (1) working day after receiving certification from the State Securities Commission, the public company shall disclose information on its website and notify the Stock Exchange (for listed and registered-for-trading companies) and Vietnam Securities Depository on the maximum rate of foreign holding in the company.
5. Foreign investors may conduct securities transactions within the maximum foreign holding rate right after the public company discloses information on the maximum rate of foreign holding in the company under Clause 4 of this Article, except the case of public company registration.
Article 14. Order, procedures and dossier for permission for foreign holding of at least 51% of charter capital of securities trading organizations
1. A foreign organization that satisfies the conditions prescribed in Clauses 21 and 24, Article 1 of Decree No. 60/2015/ND-CP and wishes to hold at least 51% of charter capital of a securities trading organization shall send, through such securities trading organization, a dossier of request for permission to the State Securities Commission.
2. A dossier of request for permission for a foreign investor to hold at least 51% of charter capital of a securities trading organization must comprise:
a/ A written request for permission for transactions to increase the holding rate to over 51% of charter capital of the securities trading organization, made according to the form provided in Appendix 9 to this Circular;
b/ An on-principle contract on share or capital contribution trading between trading parties (if any), enclosed with the foreign organization’s power of attorney for the securities trading organization to carry out procedures for requesting permission;
c/ A valid copy of the establishment and operation license, business registration certificate or an equivalent document;
d/ A valid copy of the minutes of the meeting or resolution of the Shareholders’ General Meeting or Members’ Council or the decision of the foreign organization’s owner on purchase of shares to hold over 51% of charter capital of the securities trading organization in Vietnam;
dd/ A copy of the minutes of the meeting or resolution of the Shareholders’ General Meeting or Members’ Council or the decision of the securities trading organization’s owner to permit the foreign organization to purchase and hold over 51% of charter capital of the securities trading organization (except where the foreign organization makes public bids in accordance with law), enclosed with the company charter (if it is amended or supplemented);
e/ A written commitment of the foreign organization to use only its equity and other lawful capital sources to purchase shares and that it does not fall into the cases subject to holding limitation specified at Point c, Clause 7 and Point c, Clause 8, Article 71 of Decree No. 58/2012/ND-CP;
g/ The latest audited annual financial statement and quarterly financial statements. If the foreign organization is a holding company, the latest audited annual consolidated financial statement is also required. Audited financial statements must show that the foreign organization satisfies the conditions prescribed at Point b, Clause 6, Article 71 of Decree No. 58/2012/ND-CP;
h/ Certification by a competent agency or organization of the foreign country where the foreign organization is headquartered that the foreign organization is neither under control nor special control nor subject to any warning, and other documents proving the foreign organization’s satisfaction of the conditions prescribed in Clauses 6 and 10, Article 71 of Decree No. 58/2012/ND-CP and Clause 24, Article 1 of Decree No. 60/2015/ND-CP.
3. Documents in foreign languages shall be translated and authenticated by a licensed translation organization in accordance with Vietnamese law. Documents issued by competent foreign authorities shall be notarized or consularly legalized in accordance with relevant regulations. An orginal dossier of request for permission shall be made and submitted directly or sent by post to the State Securities Commission.
4. Within fifteen (15) days after receiving a complete and valid dossier, the State Securities Commission shall issue a decision to permit the foreign organization to conduct transactions to hold at least 51% of charter capital of a securities trading organization. In case of refusal, the State Securities Commission shall reply in writing, clearly stating the reason.
5. Involved parties shall complete procedures for permitted transactions within six (6) months after the decision of the State Securities Commission takes effect. In case the share transfer is not completed within that time limit, the permission of the State Securities Commission will automatically cease to be effective.
After being permitted to hold at least 51% of charter capital of a securities trading organization, a foreign organization is not required to carry out procedures for requesting permission of the State Securities Commission in cases it conducts transactions to change its holding rate in such securities trading organization, including the case of public offering or bid specified in Clause 7 or 8 of this Article.
6. Within five (5) days after the transfer transaction is completed, the securities trading organization shall send a report on the transaction result, made according to the form provided in Appendix 17 to this Circular, to the State Securities Commission.
7. In case the securities trading organization makes private placement or public offering of securities, resulting in the holding by a foreign investor of at least 51% of its charter capital, it shall add relevant documents specified in Clause 2 of this Article to the dossier for securities offering registration and comply with the regulations on securities offering.
8. In case a foreign organization plans to purchase to hold at least 51% of charter capital of a securities trading organization being a public company, it shall submit one (1) dossier set specified at Points a, c, dd, e, g and h, Clause 2, and Clauses 3 and 4 of this Article to the State Securities Commission, and comply with the regulations on public bid.
Chapter V
IMPLEMENTATION PROVISIONS
Article 15. Effect
This Circular takes effect on October 1, 2015, and replaces the Ministry of Finance’s Circular No. 213/2012/TT-BTC of December 6, 2012, guiding activities of foreign investors on the Vietnamese securities market.
Article 16. Organization of implementation
1. Within six (6) months after this Circular takes effect, the Vietnam Securities Depository and depository members shall complete their systems for grant of securities trading codes to foreign investors under this Circular.
2. Within six (6) months after this Circular takes effect, the grant of securities trading codes to foreign investors and modification of information shall be conducted by the Vietnam Securities Depository based on dossiers made under the Ministry of Finance’s Circular No. 213/2012/TT-BTC of December 6, 2012, guiding activities of foreign investors on the Vietnamese securities market, or dossiers made under Articles 4 and 5 of this Circular.
3. The State Securities Commission, Vietnam Securities Depository, Stock Exchanges, securities trading organizations, depository members, and related organizations and individuals shall implement this Circular.-
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Deputy Minister |
(Signed) |
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tran xuan ha |