Chương 2 Thông tư 91/2013/TT-BTC: Đăng ký hoạt động văn phòng đại diện của tổ chức kinh doanh chứng khoán nước ngoài

Chapter II

OPERATION REGISTRATION OF REPRESENTATIVE OFFICES OF FOREIGN SECURITIES TRADING ORGANIZATIONS

Article 3. Conditions for operation registration of representative offices

Foreign securities trading organization that wish to register operation of their Vietnam-based representative offices must satisfy the conditions prescribed in Clauses 1 and 2, Article 74 of Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding the implementation of a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities.

Article 4. Dossiers for operation registration of representative offices

1. A dossier for operation registration of a representative office comprises:

a/ An application for a certificate of operation registration of a representative office, made according to the form provided in Appendix 1 to this Circular and signed by a competent representative of the parent company;

b/ A valid copy of the establishment and operation license or business registration certificate or documents of equivalent legal validity of the parent company. In case these documents specify an operation term of the parent company, the remaining time of such term must be at least one (1) year;

c/ A valid copy of the articles of incorporation of the parent company or the memorandum for private placement or the establishment contract;

d/ A valid copy of the document certifying that the parent company satisfies the conditions prescribed in Article 3 of this Circular;

dd/ A valid copy of the written permission of the competent foreign management agency for opening a Vietnam-based representative office (if required by foreign law);

e/ The latest audited annual financial statement by the time of submission of the dossier, and written certification of the fulfillment of the tax obligation in the latest fiscal year issued by a competent agency of the country of origin;

g/ Minutes and decision of the meeting of the Board of Directors or Members’ Council or chief executive officer or director (general director) on the establishment of a Vietnam-based representative office and appointment of the chief representative in Vietnam;

h/ Personal files of the person expected to be appointed as the chief representative and staff members of the representative office;

i/ A contract or on-principle contract on rent of the working office of the representative office, enclosed with documents certifying the ownership and use right or leasing competence of the lessor;

k/ In case of establishing a representative office of a fund management company, the following documents related to the fund currently investing in Vietnam (if any) must be added:

- A valid copy of the fund establishment registration (if any) or a document certifying that the fund has completed the establishment registration (if any) in a foreign country granted by a foreign management agency; articles of incorporation and prospectus of the fund, entrustment contract or memorandum for private placement or another equivalent document;

- A document of the custodian bank certifying the fund’s assets in Vietnam;

- A valid copy of the certificate of registration of the securities trading code of the fund (if any) or a document certifying the registration for opening of an account for capital contribution or share purchase in Vietnam dong or an account of indirect foreign investment capital (if any).

2. A dossier prescribed in Clause 1 of this Article must be made in two (2) sets, one (1) in Vietnamese and one (1) original set in the language of the country of origin, enclosed with its electronic file. Such a dossier may be submitted directly or sent by post to the State Securities Commission.

3. The parent company may modify and supplement the dossier when finding it necessary or requested by the State Securities Commission. Within six (6) months after the State Securities Commission makes a written request, the parent company shall complete the dossier under regulations. Past that time limit, if the parent company fails to modify and supplement the documents or complete the dossier as required, the State Securities Commission may refuse to grant a representative office operation registration certificate.

4. Within seven (7) days after receiving a complete and valid dossier prescribed in Clauses 1 and 2 of this Article, the State Securities Commission shall grant a representative office operation registration certificate. In case of refusal to grant, the State Securities Commission shall reply in writing, clearly stating the reason for refusal, but is not required to return the dossier.

Article 5. Information disclosure and operation commencement

1. Within thirty (30) days after its representative office operation registration certificate takes effect, a parent company or representative office shall carry out procedures for grant of a seal by the public security agency, publicize such certificate on a licensed printed or electronic newspaper permitted for distribution in Vietnam for three (3) consecutive issues, with the following details:

a/ Name and address of the representative office;

b/ Full name, abbreviated name, transaction name and address of the head office of the parent company;

c/ Full name and nationality of the chief representative;

d/ Serial number, date and validity term of the certificate;

dd/ Operations of the representative office;

e/ Expected date of operation commencement.

2. Within fifteen (15) days from the date of operation commencement, the representative office shall send to the State Securities Commission a notice of operation, made according to the form provided in Appendix 4 to this Circular, and documents certifying that the parent company has completed the procedures prescribed in Clause 1 of this Article.

Article 6. Operation term of representative offices

1. The operation term of a representative office is specified in its operation registration certificate.

2. The maximum validity term of a representative office operation registration certificate is five (5) years but must not exceed the remaining validity duration of the establishment and operation certificate or the business registration certificate or a document equivalent validity of the parent company.

Article 7. Modification of representative office operation registration certificates

1. A parent company shall request the State Securities Commission to modify its representative office operation registration certificate in the following cases:

a/ Change of chief representative;

b/ Renaming of the representative office;

c/ Relocation of the representative office in Vietnam;

d/ Renaming or relocation of the head office of the parent company;

dd/ Change of the place of business registration of the parent company;

e/ Change of the legal status or any change related to the division, splitting, merger or consolidation of the parent company.

2. A dossier of request for modification of a representative office operation registration certificate comprises:

a/ In case of change of chief representative:

- A written request for modification of the representative office operation registration certificate, made according to the form provided in Appendix 3 to this Circular and signed by the competent representative of the parent company;

- A decision on change of chief representative, signed by the competent representative of the parent company;

- Documents certifying that the dismissed chief representative has fulfilled the tax and financial obligations toward the Vietnamese State;

- Personal file of the person expected to be appointed as the chief representative.

b/ In case of renaming or relocation of the representative office:

- A written request for modification of the representative office operation registration certificate, made according to the form provided in Appendix 3 to this Circular, signed by the competent representative of the parent company or the head office authorized by the parent company, and enclosed with a power of attorney;

- A copy of the contract to rent the new office of the representative office (in case of relocation of the representative office), enclosed with documents certifying the ownership and land use right or leasing competence of the lessor.

c/ In case of a change related to the parent company as specified at Points b, d, dd and e, Clause 1 of this Article, within six (6) months after such change occurs, the parent company shall request the modification of the representative office operation registration certificate. A dossier comprises the following:

- A written request for modification of the representative office operation registration certificate, made according to the form provided in Appendix 3 to this Circular and signed by the competent representative of the parent company;

- A valid copy of the establishment and operation license or business registration certificate or a valid document granted by a foreign competent management agency certifying the relocation of the head office of the parent company; change of the place of business registration of the parent company; renaming or change of the legal status; the division, splitting, merger or consolidation; or a document of equivalent validity.

3. A dossier mentioned in Clause 2 of this Article must be made in two (2) sets, one (1) in Vietnamese and one (1) original set in the language of the country of origin, enclosed with its electronic file. Such a dossier may be sent directly or by post to the State Securities Commission.

4. Within seven (7) days after receiving a complete and valid dossier made according to Clause 2 or 3 of this Article, the State Securities Commission shall modify the representative office operation registration certificate. In case of refusal to modify the certificate, the State Securities Commission shall reply in writing, clearly stating the reason.

5. Within seven (7) days after the modified representative office operation registration certificate takes effect, the parent company shall publicize information on modified contents of the certificate according to Clause 1, Article 5 of this Circular.

Article 8. Extension of representative office operation registration certificates

1. A foreign securities trading organization may have its representative office operation registration certificate extended when fully satisfying the following conditions:

a/ It continues to maintain its operation in accordance with the law of the country of origin and satisfy the conditions prescribed in Article 3 of this Circular;

b/ It commits no violation of the Vietnamese law which may lead to the revocation of the representative office operation registration certificate.

2. At least thirty (30) days before the representative office operation registration certificate expires, the parent company shall carry out the procedures for extension, unless it has submitted a complete and valid dossier for extension of the operation duration of its representative office under Clauses 3 and 4 of this Article before the representative office operation registration certificate expires. Past that time limit, if the parent company wishes to maintain the operation of its Vietnam-based representative office, it shall carry out the procedures for grant of a new representative office operation registration certificate under Clauses 3 and 4 of this Circular.

3. A dossier of request for extension of a representative office operation registration certificate comprises:

a/ A written request for the representative office operation registration certificate, made according to the form provided in Appendix 3 to this Circular and signed by the competent representative of the parent company;

b/ Relevant documents specified at Points b, d, e and g, Clause 1, Article 4 of this Circular;

c/ In case of a change in the articles of incorporation of the parent company or change of the chief representative or relocation of the representative office, the relevant documents specified at Points c, h and i, Clause 1 of Article 4 and Clause 2, Article 7 of this Circular must be added.

4. A dossier specified in Clause 3 of this Article must be made in two (2) sets, one (1) in Vietnamese and one (1) original set in the language of the country of origin, enclosed with an electronic data file. Such a dossier may be sent directly or by post to the State Securities Commission.

5. Within seven (7) days after receiving a complete and valid dossier, the State Securities Commission shall carry out the procedures for extension of the representative office operation registration certificate. In case of refusal to extend the certificate, the State Securities Commission shall reply in writing, clearly stating the reason.

Article 9. Scope of operation, rights and obligations of representative offices, chief representatives and staff members of representative offices

The scope of operation, rights and obligations of representative offices, chief representatives and staff members of representative offices are specified in Clauses 4 and 5, Article 78 of the Law on Securities; Article 76 of the Government’s Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding the implementation of a number of articles of the Law on Securities; and the Law Amending and Supplementing a Number of Articles of the Law on Securities. Staff members of representative offices shall pay taxes in accordance with the Vietnamese law.

Article 10. Termination of operation of representative offices

1. A representative office terminates its operation in the following cases:

a/ At the request of the parent company;

b/ Upon the expiration of the operation term specified in the representative office operation registration certificate.;

c/ It has its operation registration certificate revoked under Article 11 of this Circular.

2. In case a representative office terminates its operation under Points a and b, Clause 1 of this Article, at least thirty (30) days before the expected date of operation termination, the parent company shall send to the State Securities Commission a dossier of request for termination of operation of representative office. Such a dossier comprises:

a/ A notice of termination of operation of the representative office, made according to the form provided in Appendix 5 to this Circular;

b/ A plan on termination of operation of the representative office, specifying the order and procedures for liquidation of assets and fulfillment of obligations of the representative office; method, time limit and plan for payment of debts, recovery of assets, and settlement of obligations and interests of related individuals and organizations; and a plan on transfer of money and assets of the representative office abroad;

c/ A decision of the parent company on termination of operation of the representative office.

3. A dossier specified in Clause 2 of this Article must be made in two (2) sets, one (1) in Vietnamese and one (1) original set in the language of the country of origin, enclosed with its electronic file. Such a dossier may be sent directly or by post to the State Securities Commission.

4. Within ten (10) days after receiving a complete and valid dossier specified in Clauses 2 and 3 of this Article, the State Securities Commission shall consider and approve on principle the termination of operation of the representative office.

5. After receiving the State Securities Commission’s on-principle written approval of termination of operation of the representative office, the representative office shall carry out the procedures for its closure, including:

a/ Publicizing information on operation termination on three (3) consecutive issues of a central or local newspaper of the locality where the representative office is located for related organizations and individuals to know and settle related interests;

b/ Liquidating the office rent contract and labor contracts with its staff members and other transactions (if any);

c/ Fulfilling tax and financial obligations toward the State in accordance with current laws;

d/ Carrying out procedures for returning its seal in accordance with relevant laws;

dd/ Paying all debts and other obligations toward related organizations and individuals in Vietnam; fulfilling all obligations and interests toward other related organizations and individuals.

6. After completing the procedures prescribed in Clause 5 of this Article, the parent company shall report to the State Securities Commission on the completion of the procedures for termination of operation of its Vietnam-based representative office. A reporting dossier comprises:

a/ A notice of termination of operation of the representative office, made according to a form provided in Appendix 6 to this Circular and signed by a competent representative of the parent company;

b/ Relevant documents certifying that the parent company has completed the liquidation procedures and fulfilled all obligations toward related organizations and individuals specified in Clause 5 of this Article and relevant laws of Vietnam;

c/ The original operation registration certificate of the representative office.

7. A dossier specified in Clause 6 of this Article must be made in two (2) sets, one (1) in Vietnamese and one (1) original set in the language of the country of origin, enclosed with its electronic file. Such a dossier may be sent directly or by post to the State Securities Commission.

8. Within fifteen (15) days after receiving a complete and valid dossier specified in Clauses 6 and 7 of this Article, the State Securities Commission shall issue a decision on revocation of the representative office operation registration certificate.

5. After receiving the State Securities Commission’s decision of termination of operation of the representative office, the parent company may transfer remaining assets (if any) of the representative office abroad in accordance with current laws.

Article 11. Revocation of representative office operation registration certificates

1. Depending on the nature and seriousness of its violation, a foreign securities trading organization may have its representative office operation registration certificate revoked in the following cases:

a/ The parent company or representative office violates regulations on foreign exchange management, internal transactions, market manipulation and other prohibited transactions in accordance with the Vietnamese law; or fails to fulfill tax and other financial obligations toward the Vietnamese State in accordance with law;

b/ The dossier of application of the representative office operation registration certificate contains untruthful or inaccurate information or omits important contents which must be included in the dossier;

c/ The representative offices operates for improper purposes, or inconsistently with the functions or other contents stated in the representative office operation registration certificate or other regulations on operation of representative offices;

d/ The representative office fails to send reports as requested by the State Securities Commission;

dd/ The parent company terminates its operation, goes bankrupt or is dissolved, divided, split up, merged or consolidated, and the organization formed after the division, splitting, merger or consolidation requests the termination of operation of the Vietnam-based representative office;

e/ The representative office fails to commence its operation within twelve (12) months after obtaining the operation registration certificate.

2. In case a representative office has its operation registration certificate revoked under Clause 1 of this Article, the State Securities Commission shall request in writing the parent company or representative office to carry out the procedures for closing the representative office under Clauses 5, 6, 7, 8 and 9 of Article 10 of this Circular.

Article 12. Obligations of representative offices to report and preserve dossiers

1. In the course of operation, a representative office shall report on its operation on a quarterly or an annual basis to the State Securities Commission. Such a report is made according to Appendix No. 7 to this Circular.

2. The time limit for submitting a report mentioned in Clause 1 of this Article:

a/ Within 15 days from the last day of a quarter;

b/ Within 90 days from the last day of a year.

3. Representative offices shall fully, accurate and prompt preserve documents and dossiers at their offices and update information and data relating to their operation. In case of necessity, at the request of the State Securities Commission, a representative office shall promptly report, provide documents or explain matters related to its and its parent company’s operation on the Vietnamese securities market.