Chapter II
ON REQUIREMENTS FOR INVESTMENT AND TRADING IN SECURITIES COMPANIES
Article 5. Requirements for issuance of establishment and operation license of securities companies
1. Requirements pertaining to head offices, facilities and equipment:
a) Having head offices ensuring the trading in securities;
b) Having adequate facilities, office equipment, computer system, software in service of investment analysis, risk analysis and management, storing documents and equipment for safety and security of the head office in accordance with instructions of the Ministry of Finance. Securities underwriting service and securities investment consultancy services are not required to satisfy the requirements pertaining to equipment.
2. Requirements pertaining to capital:
The minimum capital contributed at the establishment time of the company must equal to legal capital as prescribed in Clause 1 and 2 Article 71 of Decree No. 58/2012/ND-CP.
3. Requirements pertaining to personnel:
Having a scheduled list of personnel, in which there are at least 3 securities practitioners in conformity with each business services respectively that are applied for license of establishment and operations. Having General Director (Director) of securities companies who satisfies the following requirements:
a) He/she has full legal capacity, is not facing a criminal prosecution or serving an imprisonment sentence or is prohibited from practicing a business job by a court as prescribed by law;
b) Having at least 3 years' experience in services departments in the field of finance, banking and/or securities or in finance, accounting and/or investment departments of other enterprises and having at least 3 years' experience in administration;
c) Obtaining a practice certificate of financial analysis or a practice certificate of fund management;
d) Facing penalty/penalties prescribed in law on securities and securities market in the latest 12 months from the submission date of application;
dd) Having no violation prescribed in Point b Clause 1 Article 80 of the Law on Securities.
4. Requirements pertaining to shareholders and capital contributors:
Proportion of shareholders and capital contributors shall be in accordance with regulations of Clauses 5, 6, 7 and 10 Article 71 of Decree No. 58/2012/ND-CP, regulations on foreign investors in Clause 21 and Clause 24 Article 1 of Decree No. 60/2015/ND-CP and the following requirements are satisfied:
a) At the time of establishment registration, capital contributors have no accumulated loss mentioned in the latest audited annual financial statement and the latest examined biannual financial statement (if any);
b) Where the securities company is structured in the form of single member limited liability company, the owner must be a commercial bank, an insurer, or a foreign organization satisfying requirements prescribed in Article 4 of this Decree.
Article 6. Requirements for addition of securities services to securities companies
A securities company is entitled to provide additional securities services upon an approval granted by SSC if the following requirements are satisfied:
1. Regulations in Clauses 1, 2 and 3 Article 5 of this Decree applicable to existing securities services and expected additional services.
2. The securities company is not the a state of operational control, special control or operation suspension within the latest 3 months from the date on which the application for registration is submitted.
Article 7. Requirements for restructuring of securities companies
A securities company is entitled to engage in consolidation, acquisition or conversion of business type if the following requirements are satisfied:
1. Post-restructuring company must comply with Clauses 1, 2 and 3 Article 5 of this Decree. In case where the post-restructuring company is a single-member limited liability company, its owner must comply with Point b Clause 4 Article 5 of this Decree.
2. In case where the company combine the restructuring and private offering, public offering or a transaction approved by SSC, it is required to satisfy requirements of relevant law provisions.
3. The post-restructuring company satisfy requirements prescribed in law on competition and other laws on enterprise restructuring.
Article 8. Requirements for registration of provision of margin trading service, day trading service, and trading, clearing and settlement of derivative trading service
1. A securities company is entitled to provide margin trading service upon an approval of SSC when the following requirements are satisfied:
a) It is licensed to provide securities brokerage service and is adopted by the Board of Directors, Member assembly or owner(s) of the securities company to provide margin trading service;
b) It is a member of SE and VSD and is not in the state of warning, operational control, special control, mandatory suspension, voluntary suspension, consolidation, acquisition, dissolution, or bankruptcy;
c) There is no accumulated loss of 50% or more of charter capital according to the latest audited annual financial statement or the latest examined biannual financial statement, provided that such statement is made within 6 months up to the time at which the margin trading service is registered. The auditor’s opinions in the latest audited annual financial statement or the latest examined financial statement must be unqualified opinions.
d) The ratio of liabilities to owner’s equity does not exceed 3, owner’s equity is not lower than legal capital, and reserve funds are created sufficiently;
dd) Liquidity ratio accounts for at least 180% in the latest 12 consecutive months from the time of registration of margin trading service;
e) There are a system for margin trading service, supervision of margin accounts; a system of management of separate investors’ deposits for securities transactions at the bank; and a process of service and risk management, and control of margin trading.
2. Application for registration of margin trading service includes:
a) An original of registration of margin trading service;
b) A copy of resolution on margin trading service issued by Board of Directors, Member assembly or owner of securities company;
c) An original of description of the system serving margin trading, supervising margin accounts, including information technology system and software system;
d) The process of margin trading service and the process of risk management and control of margin trading.
3. The application prescribed in Clause 2 of this Article shall be made in one dossier enclosed with electronic file sent to SSC, directly or by post. Within 15 working days from the date on which the satisfactory application is received, SSC shall grant an approval for margin trading to the securities company. If the application is rejected, SSC must provide explanation in writing.
4. The securities company is entitled to provide day trading service upon an approval of SSC when the following requirements are satisfied:
a) It is licensed to provide all securities trading services and is adopted by Board of Directors, Member assembly or owner(s) of the securities company to provide day trading service;
b) It complies with Point b, c and d Clause 1 of this Article;
c) There are a system serving day trading service, a system of management and supervision of day trading on customers‘ accounts; a process of service and risk management for day trading service; and a system of management of separate investors’ deposits for securities transactions at the bank;
d) Liquidity ratio accounts for at least 220% in the latest 12 consecutive months from the time of registration of day trading service.
5. A securities trader is entitled to provide derivative trading service when the following requirements are satisfied:
a) Regulations in Clause 1 Article 4 of Government’s Decree No. 42/2015/ND-CP dated May 5, 2015 on derivatives and derivatives market (hereinafter referred to as Decree No. 42/2015/ND-CP);
b) Reserve funds are created sufficiently as prescribed and there is no loss in the latest 2 years; liquidity ratio accounts for at least 220% in the latest 12 consecutive months before the month in which the application is submitted;
c) The opinions of permitted audit organization in the latest audited annual financial statement and the latest examined biannual financial statement (if any) must be unqualified opinions.
6. A securities company, a commercial bank, a branch of foreign bank is entitled to provide clearing and settlement of derivative trading if the following requirements are satisfied:
a) It complies with Clause 2 Article 4 of Decree No. 42/2015/ND-CP and Point c Clause 5 of this Article;
b) Regarding the securities company: Reserve funds are created sufficiently as prescribed and there is no loss in the latest 2 years; liquidity ratio accounts for at least 260% in the latest 12 consecutive months before the month in which the application is submitted;
c) Regarding the commercial bank or the branch of foreign bank: Requirements pertaining to capital adequacy within the latest 12 months before the month in which the application is submitted in accordance with law on banking are satisfied.
Article 9. Requirements for establishment of and addition of services to branches and transaction offices of securities companies
1. A securities company is entitled to establish a branch if the following requirements are satisfied:
a) The satisfaction of requirements for issuance of licenses to the existing headquarter, branches and transaction offices (if any) is maintained;
b) At the time of establishment of the branch, the securities company is not in the state of operational control, special control or mandatory suspension as prescribed by law;
c) The securities company does not incur any penalties for administrative violations against regulations on securities and securities market within 6 months up to date on which SSC receives the application for establishment of the branch submitted by the securities company;
d) There is a head office of the branch and equipment serving the securities trading services authorized to provide at the branch as prescribed in Point c Clause 1 Article 5 of this Decree;
dd) The Director of branch must satisfy the requirements prescribed in Points a and d Clause 3 Article 5 of this Decree, obtain a securities practice certificate in conformity with business services provided by the branch, have at least 2 years’ experience in the fields of finance, banking and securities and at least 1 year’ experience in administration; there are at least 2 securities practitioners in conformity with each business service provided at the branch.
2. A securities company is entitled to provide services in a branch if the following requirements are satisfied:
a) It complies with regulations in Points a, d and dd Clause 1 applicable to existing and expected additional trading services;
b) The securities company is not the a state of operational control, special control or mandatory suspension within the latest 3 months from the date on which the application for registration is submitted.
3. A securities company is entitled to establish a transaction office if the following requirements are satisfied:
a) At the time of establishment of the transaction office, requirements in Points a, b and c Clause 1 of this Article are satisfied;
b) There is premise and equipment serving the securities trading services;
c) There are at least 2 securities practitioners working in the scheduled transaction office;
d) The transaction office must be located within the administrative division of the province or central-affiliated city (hereinafter referred to as province) where the securities company has its head quarter or branch located.
4. SSC shall carry out inspection of facilities and premise of the branch of the securities company scheduled to provide securities brokerage, proprietary trading or of the transaction office before receiving the approval.
Article 10. Requirements, application and procedures for establishment and operation of branches of foreign securities company in Vietnam
1. A foreign securities company is entitled to establish a branch in Vietnam if the following requirements are satisfied:
a) It is operating legally, not in the state of consolidation, division and dissolution, or bankruptcy; is licensed to provide securities trading services that are expected to register for the branch in Vietnam; the securities authority of the home country has signed bilateral or multilateral arrangements with SSC of Vietnam to exchange, cooperate and inspect securities operations and securities market;
b) The branch is provided with a minimum sum of capital equivalent to legal capital as prescribed in Clauses 1 and 2 Article 71 of Decree No. 58/2012/ND-CP on securities trading services registered for branches in Vietnam;
c) The operating period of the foreign securities company specified in the license (if any) is at least 5 years;
d) It has a process of risk management and a process of performance of securities trading services in accordance with Vietnamese law;
dd) It is not a shareholder, a capital contributor or in conjunction with a relevant person, directly owns or through investment trust or authorization, owns more than 5% of charter capital of a securities company in Vietnam;
e) The foreign securities company has its competent body approved the establishment of the branch in Vietnam;
g) The branch expected to be established in Vietnam complies with Clauses 1 and 3 Article 5 of this Decree.
2. A branch of foreign securities company in Vietnam is entitled to provide securities trading services similarly to the securities company, except for direct management of deposits for securities trading of customers and opening of securities trading accounts for domestic investors.
3. An application for issuance of establishment and operation license for a branch of foreign securities company in Vietnam includes:
a) An original of application form for issuance of establishment and operation license for the branch of foreign securities company in Vietnam bearing the signature of the competent representative of the foreign securities company;
b) A copy of charter of the foreign securities company and a decision on capital provision for the branch in Vietnam made by the foreign securities company;
c) A copy of establishment and operation license of the foreign securities companies and equivalent documents issued by competent authorities of the home country;
d) A document certifying by a foreign competent authority of the country where the foreign securities company has its headquarter located that the foreign securities company is not in the state of operational control, special control, or another warning status, unless otherwise prescribed by foreign law;
dd) The latest annual financial statement of the foreign securities company (or the latest consolidated annual financial statement in case where the foreign organization is the parent company) is prepared and audited as prescribed in foreign law in conformity with international accounting and auditing standards;
e) Copies of meeting minutes (if any) and a decision on establishment of branch in Vietnam issued by the General Meeting of Shareholders, the Board of Directors, or owner(s) or competent representative(s) as specified in the charter of the foreign securities company;
g) An original of list of Directors appointed in branches and expected professional personnel bearing the signature of the competent body of the foreign securities company; curriculum vitae and juridical record issued within 6 months up to the submission date and other documents proving that the Director of branch or personnel member satisfy requirements pertaining to personnel upon the establishment of branch;
g) An original of description of facilities and equipment for the branch premise enclosed with a copy of lease of branch premise in accompany with documents certifying ownership rights, right to use or power to lease of the lessor;
i) It has a process of risk management and a process of performance of securities trading services.
4. The application prescribed in Clause 3 of this Article shall be made in one dossier in Vietnamese enclosed with an electronic file. Such application shall be sent to SSC premise, directly or by post. In case where documents in the application are made in foreign languages, they must be consularly legalized and translated into Vietnamese; each translation must be notarized and bear authenticated signature of the translator as prescribed by law.
Within 20 days, from the date on which the application is received as prescribed in Clause 3 of this Article, SSC shall request the foreign securities company in writing to make necessary amendments in case of insufficient or unsatisfactory application or notify the foreign securities company of complete satisfaction of requirements pertaining to facilities and personnel in case of satisfactory application, and block capital provided for the branch. The foreign securities company may use the capital provided for the branch to invest in facilities. The remaining contributed capital must be blocked on account of commercial bank designated by SSC and shall be released and transferred to the account of the branch upon the effective date of the license of establishment and operation issued to the branch.
Within 6 months, from the date on which SSC notifies the foreign securities company of amendments to the application for issuance of establishment and operation license of branch, such company must make necessary amendments as prescribed. After the aforesaid time limit, if the foreign securities company fails to make necessary amendments or provide explanation as required, SCC may reject issuance of establishment and operation license of branch.
5. SSC shall carry out inspection of facilities and premise of the branch of the securities company scheduled to provide securities brokerage, proprietary before granting the approval.
6. Within 7 days after receiving the certificate of capital blockade and record of material facilities inspection and other valid documents prescribed in Clause 3 of this Article, SSC shall issue the license of establishment and operation of branch in Vietnam to the foreign securities company. If the application is rejected, SSC must provide explanation in writing.
7. Within 30 days, from the effective date of the establishment and operation license, the foreign securities company must apply for issuance of stamp to a police authority, and also announce the establishment and operation license of branch in a written newspaper or online newspaper permitted to publish in Vietnam in 3 consecutive issues.
8. Within 15 days from the commencement date, the branch of foreign securities company in Vietnam must send a notification of the commencement date and documents certifying that the foreign securities company has completed procedures prescribed in Clause 7 of this Article.
9. A branch of foreign securities company in Vietnam is entitled to provide additional securities trading services if the following requirements are satisfied:
a) It complies with Points a, c and d Clause 1 of this Article;
b) The branch is not the a state of operational control, special control or mandatory suspension within the latest 3 months from the submission date of application;
c) It complies with regulations in Clauses 1, 2 and 3 Article 5 of this Decree applicable to existing securities services and expected additional services.
10. The branch of foreign securities company in Vietnam must request SSC to amend to the establishment and operation license of the branch in case where trading services of the branch are added or withdrawn; there is any changes to Director, name and location of branch, location of headquarter of the foreign securities company, location of business registration of foreign securities company, legal status or other changes to division, acquisition, consolidation of the foreign securities company.
11. From the date on which the establishment and operation license is issued, the branch of foreign securities company in Vietnam is obligated to send reports, disclose information and comply with regulations on organization, operation and financial security similarly to a securities company.
12. The branch of foreign securities company in Vietnam is dissolved upon an approval granted by SSC. Application and procedures for dissolution are similar to those applicable to securities company being single-member limited liability company.
Tìm kiếm
Nghị định 86/2016/NĐ-CP quy định điều kiện đầu tư, kinh doanh chứng khoán (Bản Pdf)
Nghị định 86/2016/NĐ-CP quy định điều kiện đầu tư, kinh doanh chứng khoán (Bản Word)