Nghị định 88/2014/NĐ-CP quy định về dịch vụ xếp hạng tín nhiệm

DECREE

ON CREDIT RATING SERVICES

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Enterprise Law;

Pursuant to the July 12, 2006 Securities Law and the November 14, 2010 Law Amending and Supplementing a Number of Articles of the Securities Law;

At the proposal of the Minister of Finance,

The Government promulgates the Decree on credit rating services.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Decree provides credit rating services; and prescribes conditions on operation of credit rating agencies established and operating in Vietnam.

2. This Decree does not regulate the following activities:

a/ Sovereign credit rating;

b/ Rating of credit institutions by the State Bank of Vietnam;

c/ Credit rating by the Credit Information Center of the State Bank of Vietnam;

d/ Internal credit rating of credit institutions and foreign bank branches.

Article 2. Subjects of application

1. Credit rating agencies that are granted business eligibility certificates under this Decree.

2. Enterprises and organizations to be rated.

3. Organizations and individuals involved in credit rating activities.

Article 3. Credit rating services

1. Credit rating of enterprises and organizations;

2. Credit rating of debt instruments.

Article 4. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. “Report on credit rating result” means a report announcing the result of credit rating of a rated organization.

2. “Credit rating grades” means symbols denoting evaluated grades of the ability of rated organizations to honor their debt obligations.

3. “Debt instruments” means financial products which establish debt obligations, including bonds, bank loans and other financial products giving rise to debt obligations.

4. “Analyst” means a person who collects information, analyzes, assesses and rates the ability of a rated organization to honor its debt obligation.

5. “Service of credit rating of enterprises and organizations” means a service provided by credit rating agencies to analyze, assess and rate the ability of such enterprises and organizations to honor their debt obligations.

6. “Service of credit rating of debt instruments” means a service provided by credit rating agencies to analyze, assess and rate the ability of issuers of such debt instruments to honor their debt obligations at the time of rating.

7. “Rated organization” means an enterprise or organization that is subject to credit rating or has a debt instrument subject to credit rating as specified in Article 3 of this Decree.

8. “Business eligibility certificate” means the shortened title of the certificate of eligibility to provide credit rating services under this Decree.

9. “Credit rating contract” means a contract signed between a credit rating agency and a to-be-rated organization.

10. “Credit rating council” means a professional council set up by a credit rating agency for each credit rating contract to decide on and update credit rating grades and report on credit rating results.

11. “Affiliated persons” as defined in Clause 34, Article 6 of the Securities Law refers to individuals or organizations that are interrelated in the following cases:

a/ Parents, adoptive parents, spouses, children, adopted children and blood siblings of individuals;

b/ Organizations that have individuals who are staff members, directors or general directors or holders of over ten percent of outstanding voting stocks;

c/ Members of Boards of Directors, Control Boards, directors or general directors, deputy directors or deputy general directors and other managers of such organizations;

d/ Persons who, in their relationship with other persons, directly or indirectly control or are controlled by the latter or submit, together with the latter, to the same control;

dd/ Parent companies, affiliate companies;

e/ Contract relations in which a person represents another person.

12. “Paid-up charter capital” means the total charter capital amount actually contributed by shareholders or capital contributors to an enterprise as stated in the financial statement of such enterprise at the time of statement.

Article 5. Principles of credit rating activities

1. Independence and impartiality.

2. Truthfulness.

3. Transparency.

4. Compliance with current laws, this Decree and terms of credit rating contracts upon the performance of credit rating.

Article 6. Use of credit rating services

1. The use of credit rating services shall be based on demands of organizations and individuals.

2. Credit rating results are for reference but not investment or capital contribution recommendations regarding debt instruments and financial instruments issued by rated organizations.

Article 7. Prohibited acts

1. Modifying, erasing or forging documents in dossiers for which business eligibility certificates have been granted.

2. Modifying, erasing or forging business eligibility certificates.

3. Leasing or transferring business eligibility certificates.

4. Providing credit rating services without business eligibility certificates as prescribed by this Decree.

5. Demanding or receiving money or any benefits from rated organizations other than credit rating service charges agreed upon in signed credit rating contracts.

6. Using results of credit rating and issuance of debt instruments by rated organizations as a basis for determining credit rating service charges.

7. Colluding with or contacting rated organizations to falsify credit rating results.

8. Falsifying credit rating results.

9. Publicizing credit rating results without credit rating contracts with rated organizations.

10. Providing credit rating services in the cases of conflict of interest prescribed in Article 38 of this Decree, for analysts and members of credit rating councils.

11. The following acts of organizations subject to credit rating:

a/ Obstructing credit rating activities of analysts;

b/ Providing false or untruthful information and documents related to the credit rating;

c/ Intimidating, bribing or colluding with analysts and members of credit rating councils or agencies to falsify credit rating results.

Article 8. Master plans on development of credit rating services

Based on the development of the financial market, the Ministry of Finance shall assume the prime responsibility for, and coordinate with related ministries and sectors in, submitting a master plan on development of credit rating services in each period to the Prime Minister for consideration and approval.

Chapter II

CREDIT RATING AGENCIES

Article 9. Types of credit rating agency

1. The following types of enterprise may provide credit rating services after obtaining business eligibility certificates under this Decree:

a/ Limited liability companies;

b/ Joint-stock companies;

c/ Partnerships.

2. The naming of credit rating agencies must comply with the enterprise law.

3. Enterprises that do not register for provision of credit rating services may not use the phrase “credit rating” or other phrases implying “credit rating” in their names.

Article 10. Shareholders or capital-contributing members of credit rating agencies

1. The contribution of capital to establish a credit rating agency must comply with the Enterprise Law and adhere to the following principles:

a/ Organizations and individuals that have contributed over 5% of the paid-up charter capital of a credit rating agency may not contribute capital to establish, or purchase or hold stocks or capital contributions of, another credit rating agency;

b/ Organizations and individuals may not use state budget funds to contribute capital to establish credit rating agencies.

2. Credit rating agencies that have obtained business eligibility certificates under this Decree may not contribute capital to establish other credit rating agencies.

Article 11. Legal capital

1. The legal capital level of a credit rating agency for its credit rating activities is VND fifteen (15) billion.

2. The legal capital level prescribed in Clause 1 of this Article is exclusive of legal capital level for other business lines a credit rating agency may conduct in accordance with law.

Article 12. Scope of operation of credit rating agencies

1. Credit rating services specified in this Decree.

2. Services related to credit rating activities, including:

a/ Provision of information on credit rating;

b/ Training in and update of knowledge related to credit rating activities.

3. When providing services related to credit rating activities specified in Clause 2 of this Article, credit rating agencies shall ensure no conflict of interest as prescribed in Article 38 of this Decree.

4. Credit rating agencies may not operate in the following fields:

a/ Accounting and audit;

b/ Securities, covering: brokerage; consultancy; issuance underwriting; securities distribution agency; investment fund management; investment portfolio management; securities investment;

c/ Banking.

Article 13. Rights and obligations of credit rating agencies

1. Credit rating agencies have the following rights:

a/ To provide services specified in Article 12 of this Decree;

b/ To receive charges for provision of the services specified in Article 12 of this Decree;

c/ To request organizations subject to credit rating to provide necessary documents and information relating to credit rating contracts.

2. Credit rating agencies have the following obligations:

a/ To provide credit rating services only when obtaining business eligibility certificates and to disclose information under Article 18 of this Decree;

b/ To adhere to the principles prescribed in Article 5 of this Decree when organizing the provision of credit rating services;

c/ To comply with this Decree and other relevant regulations when providing credit rating services;

d/ To ensure that the payment of salaries, wages and bonuses to analysts and members of credit rating councils does not depend on service charges and credit rating results of credit rating contracts in which these persons participate;

dd/ To maintain all necessary conditions on capital, personnel and operation prescribed in this Decree and other relevant regulations;

e/ To take responsibility before law and rated organizations for credit rating results under signed contracts.

Article 14. Conditions for grant of business eligibility certificates

1. Having an enterprise registration certificate granted by a competent agency in accordance with the enterprise law and meeting the requirement on type of enterprise prescribed in this Decree.

2. Having a paid-up charter capital at least equal to the legal capital level prescribed in Article 11 of this Decree.

3. Having shareholders or capital-contributing members that meet the conditions prescribed in Article 10 of this Decree.

4. Having a general director or director who meets the criteria and conditions prescribed in Article 19 of this Decree.

5. Having at least five (5) employees who meet the criteria and conditions for members of credit rating councils prescribed in Article 20 of this Decree.

6. Having at least ten (10) employees who meet the criteria and conditions for analysts prescribed in Article 21 of this Decree.

7. Having professional processes satisfying Article 31 of this Decree and written commitments to performing these processes after obtaining business eligibility certificates.

8. Having tentative business plans covering the following:

a/ Business plan;

b/ Expected turnover and operation expenses;

c/ Personnel plan;

d/ Expected data sources to be used.

9. Having a website.

10. Being in line with the masterplan on development of credit rating services prescribed in Article 8 of this Decree.

Article 15. Dossier of application for business eligibility certificate

1. An application for a business eligibility certificate, made according to form No. 1 provided in the Appendix to this Decree.

2. Enterprise registration certificate (a copy notarized by a competent state agency or printout from the National Enterprise Registration Information Portal).

3. Information on shareholders or capital-contributing members:

a/ A list of shareholders with the paid-up charter capital and enterprise holding rate of each shareholder;

b/ Documents proving that the paid-up charter capital fully meets the conditions prescribed in Article 11 of this Decree and the structure of shareholders or capital-contributing members meets the conditions prescribed in Article 10 of this Decree.

4. The enterprise charter.

5. Documents proving that the general director or director meets the criteria and conditions prescribed in Article 19 of this Decree, including at least the following documents:

a/ A copy of his/her labor contract notarized by a competent state agency;

b/ Copies of diplomas, practice and professional certificates notarized by competent state agencies proving his/her professional qualifications, skills and experience;

c/ A copy of his/her judicial record card notarized by a competent state agency.

6. Documents proving the sufficient number of employees meeting the criteria and conditions for credit rating council members prescribed in Article 20 and analysts prescribed in Article 21 of this Decree.

7. Draft documents on professional processes that comply with the provisions of Article 31 of this Decree.

8. Tentative business plan of the credit rating agency.

9. Address of the website of the credit rating agency.

Article 16. Procedures for granting a business eligibility certificate

1. An agency shall submit one (1) set of dossier of application for a business eligibility certificate to the Ministry of Finance for examination of its completeness and validity.

2. Within ten (10) working days after receiving the dossier, the Ministry of Finance shall notify the completeness and validity of the dossier and request the agency to add documents (if any) and send five (5) official dossier sets for appraisal.

3. Within sixty (60) working days after receiving the complete and valid dossier, the Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment, the State Bank of Vietnam and related ministries and sectors in, examining and appraising the dossier. In case of refusal to grant a certificate, the Ministry of Finance shall reply in writing, clearly stating the reason.

4. Dossiers of application for business eligibility certificates shall be appraised against the conditions prescribed in Article 14 of this Decree.

Article 17. Business eligibility certificates

1. A business eligibility certificate has the following principal information:

a/ Name of the credit rating agency;

b/ Address of the head office and address of the website of the credit rating agency;

c/ Serial number and date of grant of the enterprise registration certificate;

d/ Serial number and date of grant of the business eligibility certificate;

dd/ At-law representative of the agency;

e/ Contents and scope of operation.

2. In case of re-grant or modification of a business eligibility certificate, the number of times of re-grant or modification shall be clearly indicated and the serial number of the original business eligibility certificate shall be used for the re-granted certificates.

Article 18. Announcement of information before the date of operation commencement

A credit rating agency shall announce in the mass media and on its website at least ten (10) working days before the planned date of credit rating operation commencement the following information:

1. Its name and address of its head office.

2. Address of its website.

3. Business eligibility certificate.

4. Paid-up charter capital.

5. List and capital contribution portions of shareholders or capital-contributing members holding over 5% of its paid-up charter capital.

6. Name of its at-law representative.

7. Planned date of credit rating operation commencement.

Article 19. Criteria and conditions for general directors or directors of agencies

1. Having full civil act capacity as provided in the Civil Code.

2. Not being cadres, civil servants or public employees as defined in the Law on Cadres and Civil Servants and the Law on Public Employees.

3. Possessing a university or higher degree in economics, finance, banking, accounting, audit, statistics or business administration.

4. Having at least ten (10) years’ working experience in any of the fields prescribed in Clause 3 of this Article.

5. Lawfully residing in Vietnam during their term of office.

Article 20. Criteria and conditions for credit rating council members

1. Having full civil act capacity as provided in the Civil Code.

2. Not being cadres, civil servants or public employees as defined in the Law on Cadres and Civil Servants and the Law on Public Employees.

3. Possessing a university or higher degree in economics, finance, banking, accounting, audit, statistics, business administration or professional field in the business lines of credit rating agencies.

4. Having at least seven (7) years’ working experience in any of the fields prescribed in Clause 3 of this Article.

Article 21. Criteria and conditions for analysts

1. Having full civil act capacity as provided in the Civil Code.

2. Not being cadres, civil servants or public employees as defined in the Law on Cadres and Civil Servants and the Law on Public Employees.

3. Possessing a university or higher degree in economics, finance, banking, accounting, audit, statistics, business administration or professional field in the business lines of credit rating agencies.

4. Having at least three (3) years’ working experience in any of the fields prescribed in Clause 3 of this Article.

Article 22. Re-grant of business eligibility certificates

1. A business eligibility certificate shall be re-granted in the following cases:

a/ It is lost or damaged;

b/ The credit rating agency is divided, split up, merged, consolidated or transformed and continues to meet the conditions prescribed in Clauses 1 thru 7, Article 14 of this Decree.

2. Procedures for re-granting a business eligibility certificate in the case specified at Point a, Clause 1 of this Article:

a/ A dossier which must comprise:

- The original business eligibility certificate (except when it is lost);

- A written request for re-grant of the business eligibility certificate, made according to form No. 3 provided in the Appendix to this Decree.

b/ Within five (5) working days after receiving a request for re-grant of a business eligibility certificate, the Ministry of Finance shall consider and re-grant such certificate.

3. Procedures for re-granting a business eligibility certificate in the case specified at Point b, Clause 1 of this Article:

a/ A dossier which must comprise:

- A written request for re-grant of the business eligibility certificate, made according to form No. 1 provided in the Appendix to this Decree;

- Documents proving that the enterprise continues meeting the conditions prescribed in Clauses 1 thru 7, Article 14 of this Decree.

b/ Within fifteen (15) working days after receiving a complete and valid dossier, the Ministry of Finance shall examine and consider the dossier for re-grant of the business eligibility certificate. In case of refusal, the Ministry of Finance shall reply in writing, clearly stating the reason.

Article 23. Modification of business eligibility certificates

1. Credit rating agencies shall carry out procedures for requesting modification of a business eligibility certificate within fifteen (15) working days after a change in such certificate’s contents prescribed in Article 17 of this Decree occurs.

2. A dossier of request for modification of a business eligibility certificate must comprise:

a/ A written request for modification of the business eligibility certificate, made according to form No. 4 provided in the Appendix to this Decree, clearly stating the reason for modification;

b/ The original business eligibility certificate last granted;

c/ Documents proving contents of the business eligibility certificate requested to be modified.

3. Within ten (10) working days after receiving a complete and valid dossier, the Ministry of Finance shall examine and consider the dossier for modification of the business eligibility certificate. In case of refusal, the Ministry of Finance shall reply in writing, clearly stating the reason.

Article 24. Changes to be notified to state management agencies

Within ten (10) working days after one of the following changes occurs, a credit rating agency shall notify it in writing to the Ministry of Finance and business registry office:

1. Failure to meet one of the conditions prescribed in Article 14 of this Decree;

2. Name, address of the head office and address of the website of the credit rating agency;

3. At-law representative of the agency;

4. Dissolution, bankruptcy or termination of provision of credit rating services;

5. Revocation of the enterprise registration certificate.

Article 25. Revocation of business eligibility certificates

1. A credit rating agency has its business eligibility certificate revoked in the following cases:

a/ It fails to meet one of the conditions prescribed in Clauses 1 thru 6, Article 14 of this Decree within six (6) consecutive months;

b/ It commits one of the prohibited acts prescribed in Clauses 1 thru 9, Article 7 of this Decree;

c/ It is dissolved, falls bankrupt or terminates the provision of credit rating services;

d/ It has its enterprise registration certificate revoked.

2. A business eligibility certificate shall be automatically invalidated in the cases specified at Points c and d, Clause 1 of this Article.

3. The Ministry of Finance shall issue decisions on revocation of business eligibility certificates in the cases specified in Clause 1 of this Article.

4. Decisions on revocation of business eligibility certificates of agencies shall be posted on the website of the Ministry of Finance.

5. Agencies shall immediately terminate their credit rating activities and credit rating- related services when their business eligibility certificates are automatically invalidated or decisions on revocation of their business eligibility certificates take effect.

Chapter III

PROVISION OF CREDIT RATING SERVICES

Article 26. Credit rating process

1. A credit rating agency shall develop its credit rating process involving the following basic steps:

a/ Negotiation on and signing of credit rating contracts with organizations subject to credit rating;

b/ Selection of and assignment of tasks to analysts participating in credit rating contracts under Article 29 of this Decree;

c/ Formation of credit rating councils to perform credit rating contracts under Article 30 of this Decree;

d/ Collection of information, analysis, assessment and grading of the ability of rated organizations to honor their debt obligations;

dd/ Approval of credit rating results;

e/ Publication of reports on credit rating results;

g/ Monitoring, updating and periodical evaluation of reports on credit rating results under credit rating contracts until these contracts expire;

h/ Expiration of credit rating contracts.

2. Credit rating agencies shall comply with the credit rating process prescribed in Clause 1 of this Article.

3. Credit rating agencies shall disclose their own credit rating processes and updated versions thereof (if any) on their websites.

Article 27. Credit rating contracts

1. Credit rating contracts must ensure the principles prescribed in Article 5 of this Decree.

2. A credit rating contract shall be made in writing and contain the following principal details:

a/ Names, addresses and representatives of the credit rating agency and organization subject to credit rating;

b/ Credit rating purposes, scope and activities;

c/ Time limit for performance of the contract;

d/ Conditions and terms on disclosure of credit rating results; dd/ Credit rating service charge;

e/ Rights, obligations and responsibilities of the contracting parties in the course of performance of the contract;

g/ Obligation of the contracting parties to keep confidential information under Article 39 of this Decree;

h/ Monitoring, periodical evaluation and updating of reports on credit rating results until the contract expires;

i/ Cases in which the contract shall immaturely expire and responsibilities of the contracting parties;

k/ Settlement of disputes.

Article 28. Credit rating service charges

1. Credit rating service charges shall be agreed upon by credit rating agencies and rated organizations and stated in credit rating contracts.

2. Credit rating service charges shall be based on the following:

a/ Activities, volume and characteristics of rating jobs;

b/ Duration of the credit rating contract;

c/ Qualifications, experience and prestige of analysts, credit rating council and credit rating agency;

d/ Level of responsibility of the credit rating agency.

Article 29. Analysts

1. For each credit rating contract, a credit rating agency shall select, assign tasks to and decide on the number of analysts based on the scope and characteristics of such contract. An analyst participating in each credit rating contract must meet the following basic requirements:

a/ Meeting all the criteria and conditions prescribed in Article 21 of this Decree;

b/ Not participating in the management of the credit rating agency;

c/ Not being concurrently a member of the credit rating council for such credit rating contract;

d/ Not falling into the cases of conflict of interest specified in Clause 2, Article 38 of this Decree when participating in such credit rating contract. In the course of performance of the contract, if there is a conflict of interest of the analyst specified in Clause 2, Article 38 of this Decree, the credit rating agency shall terminate the participation of the analyst in the credit rating contract. The agency may replace the analyst or add new analysts when necessary.

2. Tasks of analysts:

a/ To collect information, analyze, assess and grade the ability of rated organizations to honor their debt obligations as assigned by their credit rating agency;

b/ To report on tentative credit rating results to the credit rating council as assigned by their credit rating agency;

c/ To report to the credit rating council and request termination of their participation in credit rating contracts in the cases of conflict of interest specified in Article 38 of this Decree;

d/ To observe the code of conduct prescribed in Article 34 of this Decree.

Article 30. Credit rating councils

1. For each credit rating contract, a credit rating agency shall form a credit rating council, select and decide on the number of council numbers based on the scope and characteristics of such contract. The minimum number of council members is three (3). The selection of members of a credit rating council for each credit rating contract must adhere to the following principles:

a/ At least one (1) member of the credit rating council is an employee of the credit rating agency;

b/ At least one (1) member of the credit rating council possesses one of the following certificates: Auditor certificate granted by the Ministry of Finance, an internationally recognized certificate for securities investment analysis, accounting or audit;

c/ These members fully meet the criteria and conditions prescribed in Article 20 of this Decree;

d/ These members do not participate in the management of the credit rating agency;

dd/ These members are not analysts for the same credit rating contract;

e/ These members do not fall into the cases of conflict of interest specified in Clause 2, Article 38 of this Decree when participating in the credit rating contract. In the course of performance of the contract, if there is a conflict of interest of credit rating council members, the credit rating agency shall terminate the participation of such members in the credit rating contract. The agency may replace these members or add new members when necessary.

2. Tasks of credit rating council members:

a/ To decide on credit rating results or change credit rating grades under the voting mechanism prescribed in the operation regulation of the credit rating council;

b/ In the course of performance of the contract, the credit rating council shall report to the manager of the agency on cases of conflict of interest of analysts and council members as specified in Clause 2, Article 38 of this Decree.

3. Responsibilities of credit rating council members:

a/ To attend meetings of the credit rating council to evaluate, discuss and vote credit rating grades, update credit rating grades and report on credit rating results;

b/ In the course of performance of credit rating contracts, if falling into the cases of interest conflict specified in Clause 2, Article 38 of this Decree, to report to the credit rating council and request the termination of their participation in these contracts;

c/ To observe the code of conduct prescribed in Article 34 of this Decree.

4. Operation mechanism of credit rating councils:

a/ A credit rating agency shall issue the operation regulation of a credit rating council, covering the following principal contents:

- Voting mechanism of the credit rating council which requires at least over 60% of council members voting to approve each decision of the council;

- Mechanism for electing the chairperson of the credit rating council to manage its operation;

- Mechanism for settling conflicts of interest (if any) of analysts and council members;

- Mechanism for adding or replacing council members.

b/ When voting to approve credit rating grades, updating credit rating grades and reporting on credit rating results, a credit rating council must ensure independence, impartiality, transparency and no influence from the general director, director, Board of Directors or Members’ Council of the credit rating agency;

c/ Credit rating councils disband when credit rating contracts expire.

Article 31. Professional processes

1. Credit rating agencies shall issue professional processes for their credit rating activities under this Decree.

2. A system of professional processes includes:

a/ Working process of analysts;

b/ Operation regulation of the credit rating council as prescribed in Clause 4, Article 30 of this Decree;

c/ Credit rating methodologies as prescribed in Article 32 of this Decree;

d/ Process of developing, evaluating and updating credit rating methods;

dd/ Code of conduct prescribed in Article 34 of this Decree.

Article 32. Credit rating methodologies

1. Credit rating agencies shall develop credit rating methodologies to analyze and evaluate the ability of rated organizations to honor their debt obligations. Credit rating methodologies must include both quantitative and qualitative evaluation methodologies.

2. A credit rating methodology must evaluate basic risks and their impacts on the ability of rated organizations to honor their debt obligations, including:

a/ Macro risks;

b/ Market and business environment risks;

c/ Strategic risks;

d/ Governance risks;

dd/ Personnel risks;

e/ Financial risks;

g/ Other risks as evaluated by the credit rating agency.

3. Credit rating agencies shall use credit rating methodologies in a systematic and consistent manner for each debt obligation and each production or business line.

4. Periodically, credit rating agencies shall review credit rating methodologies and hypotheses they have used and adjust them when necessary.

5. Credit rating agencies shall disclose on their websites basic contents of their credit rating methodologies.

Article 33. Credit rating grades

1. Credit rating agencies shall establish and consistently use a system of credit rating grades on the following basic principles:

a/ Credit rating grades must be clear, comprehensible and comparable;

b/ Credit rating grades spread from the highest to lowest indicating the ability of rated organizations to honor their debt obligations. '

2. Credit rating agencies shall disclose on their websites the symbol and its denotation of each credit rating grade.

Article 34. Code of conduct

1. Credit rating agencies shall issue and apply their own codes of conduct based on the Code of Conduct Fundamentals for Credit Rating Agencies issued by the International Organization of Securities Commissions (IOSCO) and disclose such codes on their websites.

2. Credit rating agencies shall issue their codes of conduct for application to their operation, analysts and credit rating council members.

Article 35. Reports on credit rating results

1. Within twenty four (24) hours after issuing official decisions on credit rating results, credit rating agencies shall disclose reports on credit rating results on their websites.

2. A report on credit rating results must have the following principal contents:

a/ Credit rating grade;

b/ Overall evaluation of the rated organization;

c/ Material factors which positively and negatively impact the ability of the rated organization to honor its debt obligation;

d/ Statistics on all past credit ratings (if any) of the rated organization;

dd/ Names and titles of analysts and credit rating council members participating in the credit rating contract;

e/ Cases in which analysts and credit rating council members cease their participation in the credit rating contract before the contract expires and the reason for the cessation;

g/ Rate of holding of the credit rating agency by the rated organization;

h/ Rates of holding of the credit rating agency by its employees;

i/ Commitment to conducting credit rating in an independent and impartial manner;

k/ Disclaimer that information in the credit rating report is for reference and is not an investment or capital contribution recommendation regarding debt or financial instruments issued by the credit rating agency.

3. Reports on credit rating results shall be signed by at-law representatives or authorized persons of credit rating agencies.

Article 36. Disclosure of information

1. A credit rating agency shall disclose on its website the following basic information:

a/ Name of its general director or director;

b/ Code of conduct prescribed in Article 34 of this Decree;

c/ Credit rating method prescribed in Article 32 of this Decree;

d/ Credit rating grade prescribed in Article 33 of this Decree;

dd/ List and capital contribution portions of shareholders or capital-contributing members that hold over 5% of its paid-up charter capital;

e/ Change in the rate of holding by shareholders or capital-contributing members that hold over 5% of its paid-up charter capital;

g/ Report on credit rating results prescribed in Article 35 for each credit rating contract.

2. Once every six (6) months, a credit rating agency shall disclose on its website the following basic statistics:

a/ Credit rating grade of each rated organization since the first credit rating;

b/ Average percentage of rated organizations honoring their debt obligations in each rating grade.

3. Before May 1 every year, a credit rating agency shall disclose on its website a list of rated organizations with a credit rating service charge accounting for over 5% of its total turnover from credit rating activities in the fiscal year prior to the time of information disclosure.

4. Information specified in Clauses 1, 2 and 3 of this Article shall be maintained and archived on the websites of credit rating agencies within five (5) years after it is disclosed.

Article 37. Internal control systems

1. An internal control system means a system of internal mechanisms, policies, processes and regulations to prevent, detect and promptly handle risks in credit rating activities.

2. A credit rating agency shall establish and operate an internal control system to:

a/ Monitor the independence and impartiality of the credit rating agency, analysts and credit rating council members from rated organizations;

b/ Prevent, detect and promptly settle present or potential conflicts of interest of the credit rating agency, analysts and credit rating council members from rated organizations;

c/ Prevent, detect and promptly handle the disclosure of information on rated organizations;

d/ Comply with law and internal regulations and processes.

3. Internal control systems of credit rating agencies shall be evaluated annually by independent audit firms.

Article 38. Cases of conflict of interest

1. A credit rating agency:

a/ Purchases and holds stocks, capital contributions and debt instruments of a rated organization in the course of performance of a credit rating contract;

b/ Provides credit rating services to its affiliated persons;

c/ Makes or receives investment capital contribution to/from a rated organization;

d/ Has an affiliated person holding over 5% of the paid-up charter capital of a rated organization or over 5% of the total balance of rated debt instruments.

2. An agency manager, analyst or credit rating council member:

a/ Purchases and holds stocks, capital contributions and debt instruments of a rated organization in the course of performance of a credit rating contract;

b/ Holds over 5% of the paid-up charter capital of an organization providing service of issuance consultancy, risk management, issuance underwriting or distribution agency for a rated organization;

c/ Participates in the negotiation on service charge of a credit rating contract;

d/ Signs an economic contract with a rated organization;

dd/ Has a labor contract with a rated organization;

e/ Provides the service of issuance consultancy, risk management, issuance underwriting or distribution agency for a rated organization;

g/ Is an affiliated person of a rated organization or an organization providing the service of issuance consultancy, risk management, issuance underwriting or distribution agency for a rated organization;

h/ Has an affiliated person holding over 5% of the paid-up charter capital of a rated organization or over 5% of the total balance of rated debt instruments.

Article 39. Confidentiality of information

Credit rating agencies and their analysts and credit rating council members may not disclose information on rated organizations under the confidentiality of information clause in credit rating contracts, except information specified in Article 36 of this Decree, information accepted by credit rating agencies for disclosure and information requested by competent state management agencies.

Article 40. Archive of dossiers

1. Credit rating agencies shall archive both hard copies and electronic records of all analysis dossiers for credit rating, including documents and data used in the course of credit rating.

2. The duration of archive of dossiers is at least ten (10) years.

3. Credit rating agencies shall provide archived dossiers to competent agencies when so requested.

Chapter IV

ACCOUNTING, BOOK-KEEPING, AUDIT AND REPORTING BY CREDIT RATING AGENCIES

Article 41. Accounting, book-keeping and audit

1. Credit rating agencies shall conduct accounting, book-keeping and audit in accordance with the current accounting law.

2. Annual financial statements of credit rating agencies are subject to independent audit.

Article 42. Reporting regime

1. Annually, a credit rating agency shall report on its operation results, specifically as follows:

a/ Reporting period: A report on operation results of the credit rating agency is for the period from January 1 to December 31 of a year;

b/ Report contents and format must follow form No. 5 provided in the Appendix to this Decree;

c/ Report submission deadline: Before April 30 of the year following the reporting year.

d/ Report-receiving agency: The Ministry of Finance.

2. Credit rating agencies shall make extraordinary reports under Article 24 of this Decree or at the request of the Ministry of Finance.

Chapter V

RESPONSIBILITIES OF RELATED AGENCIES

Article 43. The Ministry of Finance

The Ministry of Finance shall take responsibility before the Government for performing the state management of provision of credit rating services, covering:

1. Assuming the prime responsibility for, and coordinating with related ministries and sectors in, submitting to the Prime Minister for approval a master plan on development of credit rating services in each period.

2. Summarizing, monitoring and evaluating the implementation of this Decree.

3. Granting, re-granting, modifying and revoking business eligibility certificates of credit rating agencies under this Decree.

4. Monitoring and evaluating operations of credit rating agencies through their reports prescribed in this Decree.

5. Inspecting the observance of this Decree by credit rating agencies in their operations once every five (5) years or irregularly according to management requirements.

Article 44. The Ministry of Planning and Investment

The Ministry of Planning and Investment shall coordinate with the Ministry of Finance in considering and giving opinions on the grant, re-grant, modification and revocation of business eligibility certificates under this Decree.

Article 45. The State Bank of Vietnam

The State Bank of Vietnam shall coordinate with the Ministry of Finance in considering and giving opinions on the grant, re-grant, modification and revocation of business eligibility certificates under this Decree.

Article 46. Responsibilities of credit rating agencies

1. To observe the principles of provision of credit rating services prescribed in this Decree in the course of operation.

2. To constantly maintain the operation conditions prescribed in this Decree.

3. To conduct credit rating activities according to the credit rating process prescribed in Clause 1, Article 26 of this Decree.

4. To observe their codes of conduct prescribed in Article 34 of this Decree.

5. To assign their employees to participate in credit rating contracts under this Decree.

6. To report to the Ministry of Finance under Article 42 of this Decree.

7. To comply with other provisions of this Decree on the provision of credit rating services.

Article 47. Responsibilities of organizations subject to credit rating

1. To facilitate access to information by credit rating agencies for conducting credit rating under credit rating contracts with these agencies.

2: To fulfill their obligations prescribed in credit rating contracts and this Decree.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 48. Effect

This Decree takes effect on November 15, 2014.

Article 49. Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, credit rating agencies and related organizations and individuals shall implement this Decree.-

Bài viết liên quan