Chương II Thông tư 123/2015/TT-BTC: Đăng ký đầu tư chứng khoán

Chapter II

SECURITIES INVESTMENT REGISTRATION

Article 3. Securities investing activities of foreign investors

1. Foreign investors shall carry out securities investing activities on the Vietnam’s securities market in the following forms:

a) Directly or authorize their transactional representatives or securities trading organizations to trade shares, stocks and other securities types; carry out capital contribution, buy, sell and swap shares in accordance with legal regulations on securities and securities market;

b) Carry out indirect investments in the form of entrusting their capital to the care of fund management companies or branches of offshore fund management companies.

2. Before performing investment activities as prescribed in Point a Clause 1 of this Article, foreign investors are required to register securities trading codes with the Vietnam Securities Depository through depository members in accordance with regulations laid down in Article 4 hereof.

3. Foreign investors only carrying out their investment activities stipulated in Point b Clause 1 of this Article are not required to register their trading codes. In this situation, fund management companies or branches of offshore fund management companies that provide entrusted asset management service for foreign investors shall be granted trading code certificates by the Vietnam’s Securities Depository.

4. Foreign investors shall ensure that transactions stipulated in Clause 1 of this Article and those performed by related persons, or group of related foreign investors do not serve the purpose of creating artificial demand and supply, and manipulating stock prices and engaging in other prohibited trades in accordance with legal regulations.

5. Foreign investors shall be obliged to declare, pay and settle tax liabilities, fees and charges related to securities trading activities in Vietnam in accordance with Vietnamese laws, or authorize depository members, securities trading organizations, their own representative offices or transactional representatives to fulfill their obligations to declare, pay and settle tax liabilities, fees and charges in accordance with Vietnamese laws.

6. Foreign investors shall be entitled to designate one transactional representative in Vietnam provided that they meet the following conditions:

a) Have full capacity to perform civil acts; be not the ones serving prison sentences or subject to the Court's business ban;

b) Obtain the professional certificate in stock trading;

c) Be not concurrently the staff members of securities trading organizations or branches of offshore fund management companies in Vietnam or depository banks operating in Vietnam;

d) Act as the exclusive representative of a foreign investor in Vietnam and obtain foreign investors’ written authorization.

7. Foreign investors, transactional representatives and securities trading organizations providing services for foreign investors must comply with legal regulations on the rate of foreign ownership of Vietnamese enterprises.

In the event of performing swap transactions with the Exchange-traded Fund (ETF), executing derivative transactions in the form of material transfer which may lead to the rate of foreign ownership of component and underlying securities exceeding the statutory rate of foreign ownership, the Vietnam Securities Depository shall be responsible for requesting fund management companies, clearing members and transactional partners of foreign investors to sell their excess component and underlying securities as well as pay monetary sums to foreign investors .

8. Except for open-end funds, economic organizations of which more than 51% of the charter capital is owned by foreign investors, including indirect ownership through authorization and investment trust, are required to register securities trading codes and comply with laws on the foreign ownership rate once performing investing activities on Vietnam's securities market.

Article 4. securities trading code registration

1. Foreign investors must register securities trading codes with the Vietnam Securities Depository by going through the following procedure:

a) Foreign investors shall submit a valid set of documents to depository members as prescribed in Clause 2 of this Article;

b) Depository members shall verify these documents submitted to apply for registration of securities trading codes by foreign investors and declare information required in Appendix 1 and 2 attached with this Circular on the online code registration system managed by the Vietnam Securities Depository;

c) Within one (01) working day of receipt of information declared by depository members, the Vietnam Securities Depository shall issue and send an electronic confirmation of securities trading codes to foreign investors through depository members on the online code registration system. In case of rejection, the Vietnam Security Depository should send their written response and clearly state reasons for this via the system;

Foreign investors shall proceed to complete the procedure for opening securities trading accounts and perform their investing activities immediately after being granted securities trading codes in the form of electronic confirmation issued by the Vietnam Securities Depository.

d) Within a permitted duration of five (05) working days of receipt of trading codes, depository members shall submit a full set of documents to apply for registration of trading codes to the Vietnam Securities Depository under the provisions of Clause 2 of this Article for review and filing purposes;

dd) Within a permitted duration of five (05) working days of receipt of all required documents from depository members as stipulated in Point d of this Clause, the Vietnam Securities Depository shall issue the certificate of trading codes to foreign investors (through depository members) by adopting the form stipulated in Appendix 20 enclosed herein;

e) The Vietnam Securities Depository shall file all documents submitted to apply for trading code registration and provide them for the State Securities Commission whenever obtaining their written request.

2. Documentation submitted to apply for securities trading code registration shall include:

a) The application form given in Appendix 1 or Appendix 2 attached herein (hard copy or copy verified by global depository banks sent in the form of a telegram), enclosing a copy of written authorization, which is filed to depository members to apply for trading code registration;

b) Foreign investor's credentials under instructions given in Appendix 12 attached herein (applicable to organizations), or the true copy of valid passports or other personal status documents (applicable to individuals);

c) If foreign investors have their have transactional representatives, supplementary materials shall be composed of the followings:

- The written authorization of transactional representatives according to the form stipulated in Appendix 10 issued together with this Circular;

- Transactional representative’s information slip according to the form stipulated in Appendix 11 issued together with this Circular;

- The valid duplicate identification cards or passports or other personal status documents held by transactional representatives;

- The valid copy professional certificates of securities business held by transactional representatives.

3. Documents stipulated in Clause 2 of this Article must meet the following regulations:

a) Except for extracts of contents posted on the website of foreign competent authorities, materials written in foreign languages must be notarized and authenticated in accordance with overseas countries’ laws. Materials written in Vietnamese and issued by competent organizations in Vietnam must be notarized and authenticated in accordance with Vietnam’s laws. Notarization and authentication must be obtained within less than one (01) year prior to the date on which foreign investors submit their documents to depository members;

b) Except for materials written in English or English translations notarized or authenticated in accordance with overseas countries' laws, materials written in other foreign languages must be translated into Vietnamese. Vietnamese translation must be undertaken by depository members or translation service providers legally operating in Vietnam.

4. Foreign investors shall assume their responsibility before Vietnamese laws for the accuracy, legitimacy and authenticity of documents submitted to apply for trading code registration. Depository members shall assume their responsibility before Vietnamese laws for providing adequate, accurate and genuine information provided by investors on the online code registration system managed by the Vietnam Securities Depository.

5. Foreign investors shall not be issued securities trading codes under the following circumstances:

a) If they are currently under investigation or are used to be subjected to penalties imposed by domestic or foreign competent authorities for their commission of prohibited acts under the provisions of laws on securities, money laundry crimes or other violations against laws as well as are faced with administrative or criminal penalties for violations against laws on finance, banks, foreign exchange administration and taxes, but the sanctioning duration has not ended, this means that they have yet to be subjected to administrative penalties or failed to fully comply with such decision on administrative penalties;

b) Their trading codes have been annulled within two (02) years prior to the date on which applications for securities trading code registration are submitted.

6. Fund management companies, branches of offshore fund management companies operating in Vietnam shall be allowed to register securities trading codes for the purpose of managing investment portfolios of foreign investors performing their investing activities in the forms stipulated in Point b Clause 1 Article 3 hereof. Trading code registration of these entities must comply with instructions given by the Vietnam Securities Depository. Documentation submitted to apply for securities trading code registration shall include:

a) Materials stipulated in Point a Clause 2 of this Article;

b) Valid duplicate of depository contracts entered into between fund management companies, branches of offshore fund management companies operating in Vietnam and depository banks;

c) Valid duplicate of Certificates of establishment and operation of fund management companies, branches of offshore fund management companies operating in Vietnam.

7. Foreign securities companies shall be issued two (02) trading codes: one (01) code for self-employment account and one (01) code for brokerage account held by brokerage companies.

8. Foreign investment funds or foreign organizations put under the MIMF’s management, investing organizations of foreign governments, or intergovernmental organizations of international investments, shall be entitled to register multiple trading codes according to the following principles:

a) Each investment portfolio of investing organizations of foreign governments, or intergovernmental organizations of international investments which is deposited at a depository bank shall be permitted to register one trading code;

b) Each investment portfolio of the MIMF put under the management of a fund management company shall be given one trading code; investment portfolios managed by the fund itself shall be given one separate trading code.

9. In case foreign investment funds or foreign investing organizations stipulated in Clause 8 of this Article, or foreign securities companies issued one (01) trading code, application for another trading code shall be composed of materials stipulated in Point a Clause 2 of this Article, enclosing documents stating that foreign organizations have met regulations laid down in Clause 8 of this Article and duplicate copy of previously-issued trading code certificates.

Article 5. Changes compulsorily reported to the Vietnam Securities Depository

1. Before making changes, foreign investors must obtain approval from depository members and report to the Vietnam Securities Depository on the following contents:

a) Change of transactional representatives;

b) Transfer of investment portfolios between depository accounts as prescribed in Clause 2 Article 8 hereof.

2. Documentation included in reports on these changes as stipulated in Clause 1 of this Article shall include:

a) Change report by adopting the form stipulated in Appendix 3 attached herein (hard copy or copy verified by global depository banks sent in the form of a telegram), enclosing a copy of written authorization, which is filed to depository members for reporting purposes;

b) Depending on changed contents, additional materials shall include:

- Materials relating to new transactional representatives as prescribed in Point c Clause 2 Article 4 hereof (if any), enclosing the notification of termination of operational authorization obtained by previous transactional representatives;

- Detailed report on investment portfolios placed on previous depository accounts by completing the form stipulated in Appendix 13 attached herein; agreement in principle or notification of depository contract termination issued by depository members; agreement in principle over opening of new depository accounts or duplicate written authorization for depository operations in Vietnam; documents submitted to final settlement of depository accounts or securities transfer under the guidance of the Vietnam Securities Depository.

3. Within a permitted duration of thirty (30) days from changes made, foreign investors must notify depository members and report to the Vietnam Securities Depository on the following changes:

a) Replacement of depository bank where indirect investment capital account is opened;

b) Change of name, main office or address of foreign investors or transactional representatives (if any);

c) Change of passport number or other personal status documents (if foreign investors are individuals); number of the business registration certificate or equivalent materials as credentials of foreign organizations issued by competent foreign authorities as stipulated in Point b Clause 2 Article 4 hereof (if foreign investors are organizations);

d) Changes made by splitting, division, merging or acquisition.

4. Documentation included in reports on these changes as stipulated in Clause 3 of this Article shall include:

a) Materials stipulated in Point a Clause 2 of this Article;

b) Depending on the degree of change, additional documents should be submitted, including bank’s written confirmation of new indirect investment capital accounts; valid duplicate of new passports or other personal status documents; valid duplicate of proofs of change made to name, main office, address, splitting, division, merging, acquisition and other contents; other materials serving as credentials of foreign investors as prescribed in Appendix 12 enclosed herein;

With respect to change made to name, the material providing confirmation of this name change shall be one of the followings:

Business registration certificate or certificate of establishment and operation or equivalents verifying that foreign investors have changed their name, including old and new name of such foreign investors, or prospectus or equivalents of offshore funds available on the website of foreign authorities where the fund is issued the certificate of establishment and operation in which the name change is specified, or other materials issued by foreign authorities or address and information extracted from the website of authorities with new name (along with other number of the establishment certificate or business registration or tax codes or reference number kept unchanged), or other materials stating new name, enclosing the certification of change made to foreign investor's name given by foreign notaries public .

5. Foreign investors shall make reports on changes as stipulated in Clause 1 and Clause 3 of this Article under the following procedure:

a) Foreign investors shall submit a full set of valid documents to depository members as prescribed in Clause 2 and Clause 4 of this Article;

b) Depository members shall verify these documents included in change reports submitted by foreign investors and declare information required in Appendix 3 attached with this Circular on the online code registration system managed by the Vietnam Securities Depository;

c) Within one (01) working day of receipt of information provided by depository members, the Vietnam Securities Depository shall adjust information upon the request of foreign investors in the form of electronic confirmation through depository members, or transfer of securities portfolios of foreign investors to new depository members (applicable to changes stipulated in Point b Clause 1 of this Article);

Abovementioned changes shall take effect from receipt of electronic confirmation issued by the Vietnam Securities Depository. In case of rejection, the Vietnam Security Depository should send their response with clear reasons for this via the system.

d) Within a permitted duration of five (05) working days of receipt of the electronic confirmation from the Vietnam Securities Depository, depository members shall submit all required reports on changes to the Vietnam Securities Depository under the provisions of Clause 2 and Clause 4 of this Article for review and filing purposes. Materials and documents must meet the regulations laid down in Clause 3 Article 4 hereof;

dd) Within a permitted duration of five (05) working days of receipt of all required documents as stipulated in Point d of this Clause, the Vietnam Securities Depository shall issue the written confirmation of changes as requested by foreign investors (through depository members).

Article 6. Suspension of transactions, cancellation of securities trading codes

1. Foreign investors shall be subjected to transactional suspension for a maximum duration of six (06) months under the following circumstances:

a) Documents submitted to apply for trading code registration by foreign investors have been found containing false or inaccurate information, or several important information required in applications for trading code registration have been missed out;

b) Foreign investors have provided inauthentic, inaccurate and untimely reports or materials as requested by the Vietnam Securities Depository or the State Securities Commission; failed to fulfill obligations to report on ownership or publicly disclose information in accordance with laws;

c) Foreign investors perform prohibited acts stipulated in Article 9 of the Law on Securities and Clause 4 Article 1 of the Law on Amendments or Supplements to several articles of the Law on Securities;

d) Foreign investors commit violations against legal regulations on foreign exchange administration in accordance with Vietnamese laws; fail to fulfill their tax and financial obligations to the State in accordance with legal regulations.

2. The Vietnam Securities Depository shall cancel securities trading codes of foreign investors under the following circumstances:

a) Foreign investors are governed under the provisions of Point a Clause 5 Article 4 hereof;

b) After the transactional suspension stipulated in Clause 1 of this Article, deficiencies that may cause such transactional suspension of foreign investors have not been corrected;

c) The cancellation is requested by foreign investors. In this situation, foreign investors send the written request to the Vietnam Securities Depository through depository members for cancellation of securities trading codes by adopting Appendix 14 attached herein (hard copy or copy verified by global depository banks sent in the form of a telegram), enclosing a copy of written authorization, which is filed to depository members to apply for cancellation of securities trading codes.

3. Foreign investors whose trading codes have been cancelled as stipulated in Point b Clause 2 of this Article shall not be reissued securities trading codes within a stipulated period of two (02) years from the date on which these trading codes are cancelled.

Article 7. Indirect investment capital account

1. Each foreign investor shall be allowed to open one (01) indirect investment capital account at one (01) depository bank obtaining the license for foreign exchange trades in order to perform indirect investment activities in Vietnam.

2. All activities such as transmitting money to perform transactions or investments stipulated in Clause 1 Article 3 hereof, and making payments relating to securities investment activities of foreign investors; receiving and using share dividends or distributed dividends, or buying foreign currency from credit institutions licensed to perform foreign exchange trades in Vietnam for the purpose of remitting them to overseas countries and other relevant transactions must be carried out through this account.

3. In the professional practice of managing investment portfolios of foreign investors, fund management companies, branches of offshore fund management companies operating in Vietnam shall be allowed to open indirect investment capital account for the purpose of receiving capital from foreign investors who are not indirect investment capital accounts and for performing investment activities on Vietnam's securities market as stipulated in Point b Clause 1 Article 3 hereof. In this situation, indirect investment capital accounts shall be held under the name of fund management companies, branches of offshore fund management companies operating in Vietnam.

4. Entities carrying out, conditions, procedures and processes for opening, closing, use and management of indirect investment capital account shall conform to legal regulations on foreign exchange administration.

Article 8. Securities depository accounts

1. Assets deposited at depository banks:

a) After registering securities trading codes, foreign investors shall be entitled to open securities depository accounts at depository banks by sticking to the rule that, for each trading code granted, only one securities depository account is opened.

This provision shall not be applied to the circumstance under which foreign investors deposit their securities in securities trading accounts opened at securities companies;

b) Opening depository accounts at depository accounts shall conform to legal regulations on registering, depositing, clearing and settling securities. Recording of payment entries and depositing securities of foreign investors must be carried out through this account type.

2. Foreign investors shall have the right to transfer all of investment portfolios from this depository account (final settlement of a depository account) to another depository account. In the event that foreign investors deposit their assets at depository banks as stipulated in Clause 1 of this Article, before opening depository accounts at new depository banks, they must close current depository accounts, and carry the entire balance recorded in this account forward the new account. Procedure for transfer of securities portfolios between depository accounts shall conform to regulations laid down in Article 5 hereof and legal regulations on registering, depositing, clearing and settling securities.