Chương II Thông tư 213/2012/TT-BTC: Hoạt động đầu tư chứng khoán

Chapter II

INVESTMENT SECURITIES

Article 3. Securities investment activities of foreign investors

1. Foreign investors investing on Vietnamese securities market in the following forms:

a) Directly performing securities investment trading through the purchase and sale of stocks, bonds, securities, capital contribution investment... in accordance with the securities laws and securities markets and relevant legal documents;

b) Indirectly investing on the Vietnamese securities market through the fund trust to the fund management company, a branch in Vietnam of foreign fund management companies in accordance with the provisions of relevant laws.

2. Before making the investment in accordance with the provisions at Point a, Clause 1 of this Article, the foreign investors shall register securities trading code with the Securities Depository Center as provided for in Article 4 of this Circular.

3. In addition to the forms of trading specified in Clause 1 of this Article, the foreign investors who have registered securities trading code shall be entitled to:

a) Authorize the trading representatives to implement investment activities and trading in the name of investors. The authorization and designation of investment shall not include activities of asset and trading account management, decisions on investment and divestment, selection of securities, trading volume, price and the time of the trading;

b) Authorize the securities companies to manage securities trading account as prescribed by law for the establishment, organizations and operation of securities companies. This provision applies only to foreign investors as individuals;

c) Entrust the fund management companies and branches in Vietnam of foreign fund management companies, on behalf of foreign investors to manage the securities portfolio on the customers’ securities trading account or perform investment activities in the name of customers.

4. Foreign investors shall only make ​​investments under the provisions at Point b, Clause 1 of this Article without registration of securities trading code. In this case, fund management companies and branches in Vietnam of foreign fund management companies providing the services of entrusted asset management of foreign investors shall be issued Certificate of registration of securities trading code.

5. Foreign investors shall ensure the transactions specified in Clause 1 of this Article and the trading carried out by related persons and groups of related foreign investors not for the purpose of create fake demand and supply and manipulate securities price and prohibited trading acts as prescribed by law.

6. Foreign investors perform obligations to declare, make payment and finalize taxes, charges and fees relating to securities activities in Vietnam in accordance with Vietnamese law, or authorize the depository members and securities business organizations, their representative offices and trading representatives to perform obligations to declare, make payment and finalize taxes, charges and fees above mentioned in accordance with the provisions of Vietnamese law.

7. Foreign investors, trading representatives and securities business organizations providing services to foreign investors under designated investment contracts and investment management contracts must comply with the current legal regulations on the percentage of ownership of foreign party in Vietnamese enterprises.

8. Foreign investors and groups of related foreign investor shall have the obligation to make a report on ownership and publish information on securities trading in accordance with the law on publication of information on securities market on the following principles:

a) Foreign investors shall perform themselves or appoint one (01) depository member or one (01) securities business organization or their representative offices (if any) or another (01) organization or authorize an individual to perform obligation to report the ownership and publish information as prescribed by law;

b) Group of related foreign investors concerned shall appoint one (01) or a depository member (01) to hold the securities business office or his representative (if any) or another (01) organizations or authorize one (01) individual to perform obligations of ownership, publish information about the trading which needs reporting and publishing information under the provisions of the law on publication of information on securities market applicable to group of related persons;

Announcement of the appointment of an organization or authorizing individual to perform obligation to make report on the ownership and publish information made ​​under the form prescribed in Appendix 19 issued together with this Circular shall be submitted to the State Securities Commission, Stock Exchange, Securities Depository Center at least five (05) days before the appointment or authorization takes effect, together with a valid copy of License for establishment and operation or Certificate of business registration or registration paper of fund establishment or equivalent documents (of the appointed organization); or a valid copy of identity card or Passport or other lawful personal identification (of authorized individuals) and Vietnamese translations of the above documents as prescribed at Point c, Clause 2, Article 4 of this Circular;

c) Foreign investors and groups of related foreign investors shall provide full information on their securities ownership status so that the appointed organization or individual authorized to publish information to fulfill their obligations to make report on the ownership and publish information under the provisions of law.

9. Trading representatives for foreign investors in Vietnam must meet the following conditions:

a) Having sufficient civil and legal act capacity; not subject to the case of serving a prison sentence or prohibited from business practice by Court;

b) Having Certificate of securities business practice;

c) Not being concurrently employee of securities business organization and depository bank in Vietnam;

d) Being the unique trading representatives in Vietnam of the foreign investors and authorized in writing by the foreign investors.

Article 4. Registration of securities trading code

1. Foreign investors shall directly or authorize depository membesr to register securities trading code at the Securities Depository Center. Dossier to register securities trading code includes the following documents:

a) Registration paper of securities trading code made by foreign investors or depository members under form specified in Annex 1 or 2 issued together with this Circular. In case foreign investors authorize the depository member to perform procedures for registration of securities trading code, the documents attached include registration paper of securities trading code made by depository members under form in Annex 3 issued together with this Circular and valid copy of the written authorization for the depository members.

b) For organizational investors: A document that identifies foreign investors in accordance with Annex 15, issued together with this Circular.

For individual investors: A valid copy of Passport or other lawful personal identification

c) A valid copy of principle contract on opening securities trading account (if any); a valid copy of contract or principle contract on asset depository with the domestic depository members or valid copy of the written authorization for the depository operation in Vietnam (if any); valid copy of contract on opening indirect investment capital account or contract on opening account of capital contribution to buy shares at commercial bank (if any);

d) In case the foreign investors have their trading representatives, the additional documents include:

- Written appointment of trading representative under form specified in Annex 13 issued together with this Circular.

- Information form on the trading representative under the form specified in Annex 14 issued together with this Circular.

- A valid copy of identity card or passport or other lawful personal identification of the trading representative.

- A valid copy of certificate of securities business practice.

2. Dossier specified in Clause 1 of this Article shall be made ​​in two (02) sets, an original and a copy. Each set consists of two (02) copies, one (01) in English and one (01) in language of origin and is submitted directly or sent by post to the Securities Depository Center. In which:

a) Except for documents extracted from the websites of the foreign competent authorities, the other papers issued by the competent authorities in the country of origin must be notarized and certified under foreign law and legalized under the regulations of the relevant laws of Vietnam;

b) Documents specified at Point b, c, d, Clause 1 of this Article made by foreign investors is only notarized and certified in accordance with the laws of foreign countries;

c) Documents in foreign language must be translated into Vietnamese by the depository members or translation organizations legally operating in Vietnam or abroad. In case translated by depository members, there must be a written certification of the depository members for the accuracy and honesty of the translation;

d) Documents in foreign language must be notarized, certified within nine (09) months to the date of submitting dossier to the Securities Depository Center.

3. Investors shall take responsibility for the validity, accuracy and truthfulness of the documents and information in the dossier. During the time the Securities Depository Center reviews the dossier to register securities trading code, the investors shall amend and supplement upon requirement of the Securities Depository Center. The amendment and supplement must be signed by those who have signed the dossier sent to the Securities Depository Center or the person authorized in writing from the person having signed the dossier or of the person who has the same title and the authority with the person having signed the dossier.

4. Within five (05) days for organizational investors and three (03) days for individual investors from the date of receipt of complete dossier as prescribed in Clauses 1 and 2 of this Article, the Securities Depository Center shall issue securities trading code to the investors. In case of refusal, the Securities Depository Center shall reply in writing, clearly stating the reasons therefor.

5. Where the investors meet the following conditions, the Securities Depository Center shall issue certificate of registration of securites trading code to the investors before having complete documents to be consularly legalized as stipulated at Point a, Clause 2 of this Article:

a) Having complete documents in foreign language which have been certified and notarized under foreign law and translated into Vietnamese as stipulated at Point c, Clause 2 of this Article.

b) Being customers of depository members and appraised and summarized all customer identification information (KYC) by these members as specified by their internal rules together with the commitment form of the investors of the complete responsibility for the validity, accuracy and honesty of documents in foreign language as well as their legal status, and the commitment form of the depository members of the appraisal and summary and supply of complete customer identification information as specified by their internal rules and submission of complete documents provided by foreign foreign investors.

6. Within a miximum of nine (09) months from the date of being issued certificate of registration of securities trading code, the investors shall complete and provide the Securities Depository Center through the depository members, with valid documents as specified in Clause 1 and 2 of this Article.

7. Foreign investors shall not be considered for the issuance of certificate of registration of securities trading code in one of the following cases:

a) Being under investigation or having been sanctioned by domestic or foreign competent authorities for acts prohibited by the provisions in Article 9 of the Securities Law, acts of money laundering; or other acts of serious violations with the sanction of fines or more in the area of finance, banking, foreign exchange management and tax that has not expired shall be considered not being sanctioned with administrative violations or fail to fully implement the decision on the sanction of those administrative violations;

b) Being cancelled the securities trading code within two (02) years to the time of submission of dossier to register securities trading code.

8. Dossier to register securities trading code for the foreign investors’ portfolio managed by the fund management companies and branches of foreign fund management companies in Vietnam includes the following documents:

a) Documents as specified at Point a, Clause 1 of this Article;

b) A valid copy of depository contract between the fund management companies and branches of foreign fund management companies in Vietnam signed with domestic depository banks;

c) A valid copy of License for establishment and operation of the fund management companies and branches of foreign fund management companies in Vietnam.

9. Dossier as specified in Clause 8 of this Article is made into two (02) sets, one (01) original and one (01) copy shall be directly submitted or sent by post to the Securities Depository Center.

10. Within three (03) working days from the date of receipt complete and valid dossier, the Securities Depository Center shall issue certificate of registration of securities trading code to the fund management companies and branches of foreign fund management companies in Vietnam. In case of refusal, the Securities Depository Center shall reply in writing clearly stating the reason therefor;

11. Within seven (07) working days, after appointing or addition of depository members in accordance with regulation of law, the foreign investors, fund management companies and branches of foreign fund management companies in Vietnam shall notify the Securities Depository Center of depository member under the form specified in Annex 4 issued together with this Circular attached to a valid copy of the contract on account operning or the written authorization for the depository activities. This provision does not apply in case of change of depository banks as specified in Article 5 of this Circular.

12. Foreign securities companies shall issued two (02) securities trading codes: one (01) code to the dealing account and one (01) code for the self-trading account and one (01) for the brokerage account of the company.

In case the foreign securities company has been issued onr (01) securities trading code, the dossier to register additional issuance of one securities trading code includes documents specified at Point a, Clause 1 of this Article together with the copy of certificate of registration of securities trading code previously issued.

13. The foreign investment funds are managed by Multiple Investment Managers Fund – MIMF shall be registered with many securities trading codes on the principle the portfolio of funds managed by the same fund management company shall be registrered one securities trading code. Dossier to register securities trading code complies with provisions in Clause 1 of this Article. In case of addtional registration of securities trading code, the dossier includes documents as specified at Point a, Clause 1 of this Article attached to a copy of certificate of registration of securities trading code previously issued and relevant documents as specified in Annex 15 issued together with this Circular.

Article 5. Changes to be reported to Securities Depository Center

1. Before making the following changes, foreign investors must make a report to the Securities Depository Center:

a) Change of trading representative;

b) Transfer of portfolio between depository accounts as prescribed in Clause 2, Article 8 of this Circular.

2. Dossier to report on the changes specified in Clause 1 of this Article includes:

a) Report on changes made by investors and depository members under the form specified in Annex 5 and 6 issued together with this Circular attached to the written authorization for new depository members to make report on the relevant changes;

b) Depending on the content of change, dossier shall have:

Documents related to new trading representatives under the provisions at Point d, Clause 1, Article 4 of this Circular, together with the notice of termination of authorization of operation for the old trading representatives;

Report in detail of the portfolio on the old depository account under the form prescribed in Annex 16 issued together with this Circular; the principle contract or announcement of the old depository members about the liquidation of the depository contract; contract principle on the opening of new deposit accounts or a valid copy of written authorization for the depository operations in Vietnam; dossier to request the finalization the depository accounts or securities transfer under the guidance of the Securities Depository Center.

3. Dossier to report on the changes specified in Clause 2 of this Article is made into one (01) orginal. The original dossier is submitted directly or sent by post to the Securities Depository Center.

4. Within three (03) working days after receiving complete and valid dossiers as prescribed in Clause 2 of this Article, the Securities Depository Center shall certify in writing the changes at the request of foreign investors, and shall transfer the securities portfolio of foreign investors to the new depository members. In case of refusal, the Securities Depository Center shall reply in writing, clearly stating the reasons therefor.The above changes only take effect after the written reply of the Securities Depository Center..

5. Within forty-five (45) days after the change, the foreign investors must make a report to the Securities Depository Center on the changes below:

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

b) Change of the name, head office and contact address of investor or trading representative (if any);

c) Change of Passport number or other lawful personal identification (for foreign investors as individuals); business registration license number or equivalent documents to identify foreign organizational investors issued by foreign state authorities under the provisions at Point b, Clause 1, Article 4 of this Circular (for foreign investors as organizations);

d) Change of legal status, operational model related to the split, consolidation, merger or acquisition;

e) Changes of other contents in the dossier to register the securities trading code.

6. Dossier to report on changes specified in Clause 5 of this Article including:

a) Documents specified at Point a, Clause 2 of this Article;

b) Depending on the nature of the change, the additional documents include: the bank's written certification of the new indirect investment capital account; valid copy of new Passport or other lawful personal identification; valid copy of the documents verifying the change of name, head office, contact address, legal status and organizational model of the investors; other documents to identify foreign investors as prescribed in Annex 15 issued together with this Circular.

In case of change of name, the document determining the change of name is one of the following:

- Certificate of business registration or license for establishment and operation or equivalent documents to verify foreign investor has changed its name, including the old and the new name of the foreign investor; or the prospectus or equivalent documents of foreign funds which have been posted on the website of foreign management authorities from which the fund is issued the certificate of registration of establishment and operation clearly stating the change of name; or certificate of tax code registration of foreign investors under a new name (with tax code unchanged) or other documents with new nam together with the certification of foreign notary on the change of name of the foreign investors.

7. Documents in foreign language in the dossier specified at Point b, Clause 2, point b, Clause 6 of this Article shall be notarized and certified under foreign law, except the case the person signing these documents has signed on dossier to register the securities trading code specified at Point a, Clause 1, Article 4 of this Circular. The translation of documents in foreign language into English shall comply with the provisions of Point c, Clause 2, Article 4 of this Circular.

8. Within nine (09) months from the date of notification to the Securities Depository Center of the changes specified in Clause 1, Clause 5 of this Article, the investors through depository members, shall submit additional documents issued by the competent authorities of the foreign countries and consularly legalized under the provisions of the law on consular legalization.

9. Within two (02) working days after receiving complete and valid dossiers as prescribed in Clause 6, Clause 7 of this Article, the Securities Depository Center shall certified in writing the changes as required by foreign investors. The above changes only take effect after the written reply of the Securities Depository Center.

Article 6. Trading suspension and cancellation of securities trading code

1. The State Securities Commission has the right to suspend trading of foreign investors within six (06) months in the following cases:

a) Upon detection of dossier to register securities trading code of foreign investors with false, incorrect information or missing of important contents required in the dossier as prescribed; no supplementation of dossier as specified in Clause 6, Article 4, Clause 8, Article 5 of this Circular;

b) Foreign investment, and group of related foreign investor shall make reports and provide documents with false, incorrect and untimely information on the requirement of the State Securities Commission and fail to perform reporting obligations of ownership and publication of information under the provisions of law;

c) Foreign investors carry out acts prohibited by the provisions on Article 9 of the Securities Law.

d) Foreign investors have violated regulations on foreign exchange management in accordance with Vietnamese law; fail to fulfill tax obligations and other financial obligations to the State under the regulations of law.

2. The Securities Depository Center shall cancel the securities trading code of foreign investors upon written request of the State Securities Commission in the following cases:

a) The period of trading suspension specified in Clause 1 of this Article is over but the shortcomings leading to the trading suspension have not been corrected;

b) Foreign investors voluntarily propose the cancellation of the securities trading code. The announcement of cancellation of securities trading code made ​​under the form prescribed in Annex 17 and 18 issued together with this Circular.

3. Foreign investors whose securities trading codes are canceled as stipulated in Clause 2 of this Article shall not be considered for re-issuance of the securities trading codes within two (02) years from the time their securities trading codes are canceled.

Article 7. Indirect investment capital account

1. Each foreign investor entitled to open one (01) indirect investment capital account at one (01) depository bank is permitted to carry on business of foreign exchange to perform indirect investment activities in Vietnam.

2. All transactions of money transfer to carry out trading and investment operation specified in Clause 1, Article 3 of this Circular, other payments related to securities investment operation of foreign investors; receipt and use of dividends, divided profits, purchase of foreign currency at credit institutions licensed to conduct foreign exchange business in Vietnam for transfer abroad and other related transactions must be conducted through this account.

3. In the operation of portfolio management for foreign investors, the fund management companies and branches of foreign fund management companies in Vietnam are entitled to open indirect investment capital account to receive capital of foreign investors having no indirect investment capital account of their own. In this case, the indirect investment capital account in the name of the fund management companies and branches of foreign fund management companies in Vietnam.

4. Subjects of implementation, conditions, order and procedures for opening, closing, use and management of indirect investment capital account shall comply with the provisions of the law on foreign exchange management.

Article 8. Securities depository account

1. In case of asset depository at depository bank:

a) After registering the securities trading code, foreign securities companies, insurance enterprises of one hundred percent (100%) foreign ownership are entitled to open two securities depository accounts at depository bank. The foreign investment fund managed by Multiple Investment Managers Fund – MIMF may open many securities depository accounts on the principle that each securities trading code issued may be opened one securities depository account at a depository bank. The other foreign investors are permitted to open only one securities depository account at depository bank.

The provisions at this point do not apply to the case where foreign investors deposit securities at the securities trading accounts opened at securities companies;

b) The opening deposit account at depository bank complies with regulations on registration, depository, offset and payment of securities. All entries of payment and depository of securities of foreign investors shall be done on this account

2. Foreign investors have the right to transfer all securities portfolio from a depository account (finalization of depository accounts) to another depository account. In case foreign investors deposit their assets at depository banks under the provisions of Clause 1 of this Article. Before opening depository accounst at new depository banks, the foreign investors have to close their current depository accounts and transfer the entire balance on these accounts to the new accounts. The procedures for transfer securities portfolio between depository accounts shall comply with the provisions of Article 5 of this Circular and the regulations on the law on registration, depository, offset and payment of securities.

Article 9. Responsibilities of individuals and organizations in the operation of service supply to foreign investors

1. Securities companies supply investment services as designated by the foreign investors must:

a) Comply with the regulations of the law on securities and assurance of deposit ratio, cash management and securities of customers and other regulations on the operation of securities brokerage and securities consultation;

b) Preventing conflicts of interest with investors, the securities companies and securities practitioners shall notify customers in advance of potential conflicts of interest that may arise between companies, securities practitioners and customers;

c) Securities companies must not make investment decisions on behalf of customers. All transactions are only made ​​during the time of validity of designated investment contracts and after having received orders and directives of valid transactions of the investors. The orders and directives of transaction are valid just one time.

Designated investment contract signed with securities company must include the main contents in accordance with Annex 12 issued together with this Circular. The designated investment contract must clearly state that foreign investors are responsible for the investment decisions, the company only performs trading at the directives of foreign investors. The contract must also specify the content of authorization, trading authorization levels, time limit of authorization, method of investment directive, payment method together with information and sample signature of the competent person placing order, trading and investment authorization;

d) Investment directive of foreign investors shall include information about securities class, volume, price level and execution time, validity of that directive. The foreign investor’s investment directive to the securities company shall be stored within five (05) years and provide the State Securities Commission as required.

2. Securities company providing services of trading account management of individual foreign investor as prescribed by law on establishment, organization and operation of securities companies.

3. Fund management companies and branches of foreign fund management companies in Vietnam providing services of asset management to the foreign investors shall:

a) Collect information, analyze results and provide the analysis result on securities and securities market, or the projects for the investors; give advice on investment strategies and tactics, on structure and capital allocation, legal regulations, procedures, investment processes, auctions and trading for investors;

b) Performing trading, investment after the investor’s approval or investment plans, or

c) Being entitled to make decision on investment, divestment in accordance with terms in the contracts signed with customers. Decision on investment, divestment includes the selection of securities, investment projects, price level, value of contributed capital, time for trading and investment execution.

4. In case the foreign investors participating in buying securities, the securities business organization receiving authorization on behalf of foreign investors in the auction must meet the following conditions:

a) Ensuring that the investors deposit sufficient money in their accounts to participate in the auction in accordance with the law;

b) Making procedures for registration to participate in the auction reserved for foreign investors

c) Ensuring the securities investment and share purchase for foreign investors who comply with regulations of law on the ratio of ownership in Vietnamese enterprises;

d) Taking responsibility for fair and reasonable allocation of assets for each foreign investor in accordance with designated investment contracts, investment management contracts signed with foreign investors.

5.Upon performing trading for foreign investors whose trading representatives must:

a) Comply with the legal regulations in the field of securities;

b) Comply with the trading and payment directives of the foreign investors, not directly make investment decisions include the selection of securities, quantity, price, time of service performance when the trading orders and investment directives of the foreign investors. The trading orders and investment directives of the foreign investors must comply with the provisions at Point Article, Clause 1 of this Article;

c) Do not collude with domestic and foreign investors to make the purchase and sale of securities in order to create fake demand and supply; securities trading in the form of colluding and enticing others into continuous purchase and sale to manipulate the price of securities;

d) Participate in training courses on law and perform the reporting obligation upon the written request of the State Securities Commission.

6. Securities Depository Center, securities depository members, securities business organizations providing services to foreign investors are responsible for the security of information on foreign investors in accordance with the relevant laws and supply of these information to the competent state management agencies upon written request.

Article 10. Reporting obligations and dossier storage for investment operation of foreign investors.

1. The depository members shall make and retain dossiers and documents on asset depository activities on depository accounts of the foreign investors. These documents must be provided to the competent management agencies in service of work of examination and inspection on the requirement of the State Securities Commission including documents in the scope of adjustment of regulations on information and information security of the investors as prescribed by law;

2. Depository members must make a monthly report to the State Securities Commission on statistic data of depository accounts and the list of assets of foreign investors in accordance with Appendix 7 issued together with this Circular. Where the depository members are branches of foreign credit institutions or credit institutions with one hundred percent (100%) of foreign capital established in Vietnam, they shall supplement a report on their investment activities and portfolio under the form prescribed in part IV of Appendix 7 issued together with this Circular.

3. Depository banks where foreign investors open their indirect investment capital accounts, capital contribution accounts for share purchase must make a report to the State Securities Commission once for every two (02) weeks (on date 15^th and 30^th monthly) on the activities of capital flows of foreign investors on these accounts under the form prescribed in part III of Annex 7 issued together with this Circular.

4. Securities trading organizations shall make monthly report on activities of portfolio and investment management under designation for foreign investors under the form prescribed in Annex 8 issued together with this Circular.

5. Trading representatives of foreign investors are responsible for investment activities under designation for foreign investors under the form prescribed in Annex 8 issued together with this Circular upon request of the State Securities Commission.

6. Securities Depository Center shall make a monthly report to the State Securities Commission on the issuance of securities trading code to foreign investors and investors’ changes (if any) under the reporting form of specified in Annex 10 issued together with this Circular.

7. Securities Exchange shall make daily, monthly and annual reports on the trading activities of foreign investors under the form prescribed in Annex 11 issued together with this Circular.

8. Deadline for submission of the reports specified in Clauses 2, 3, 4, 5, 6 and 7 of this Article:

a) Prior to 16 o’clock for daily reports;

b) Within three (03) days, after the 15th and 30th date monthly for reports on the activities of capital flows of the foreign investors;

c) Within five (05) days from the end date of month for monthly reports;

d) Within ninety (90) days from the end date of year for annual reports;

9. In case of necessity, the State Securities Commission shall require the Securities Depository Center, Stock Exchange, securities trading organizations, depository members, trading representatives or investors to directly report on the activities of foreign investors.

10. Securities Depository Center, Stock Exchange, securities trading organizations and depository members must make reports to the State Securities Commission within forty-eight (48) hours after receipt of reporting requirements specified in Clause 9 of this Article.

11. Report of the Securities Exchange, Securities Depository Center, securities trading organizations and depository members specified in this Article shall be accompanied by electronic data file to the State Securities Commission and must be stored for at least five (05) years.

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