Chương 3 Thông tư 91/2013/TT-BTC: Thành lập và hoạt động chi nhánh tại Việt Nam của công ty quản lý quỹ nước ngoài

Chapter III

ESTABLISHMENT AND OPERATION OF VIETNAM-BASED BRANCHES OF FOREIGN FUND MANAGEMENT COMPANIES

Article 13. Conditions for grant of establishment and operation licenses of Vietnam-based branches

1. A foreign fund management company that wishes to register the establishment of a Vietnam-based branch must not be in the state of consolidation, merger, division, splitting, dissolution or bankruptcy and must satisfy the conditions prescribed in Clause 3, 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.

2. A branch that is expected to be established in Vietnam by a foreign fund management company must have adequate physical foundations and capable practitioners as prescribed by the law on establishment, organization and operation of fund management companies like domestic fund management companies, and satisfy the conditions prescribed in Clauses 3 and 4, Article 71 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.

Article 14. Dossiers of application for establishment and operation licenses of Vietnam-based branches

1. A dossier of application for an establishment and operation license of a Vietnam-based branch of a foreign fund management company comprises:

a/ An application for an establishment and operation license of a Vietnam-based branch of a foreign fund management company, made according to the form provided in Appendix No. 8 to this Circular and signed by a competent representative of the parent company;

b/ A plan on business operation of the Vietnam-based branch for the first three (3) years after the establishment and operation license is granted, made according to the form provided in Appendix 9 to this Circular;

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

d/ A valid copy of the establishment and operation license of the foreign fund management company or an equivalent document granted by a competent agency of the country of origin. In case such document specifies an operation term of the parent company, the remaining duration of such operation term must be at least five (5) years;

dd/ Documents certifying the eligibility of the parent company as prescribed in Article 13 of this Circular;

e/ A valid copy of the written permission of a competent foreign agency for opening a Vietnam-based branch (if any in accordance with law);

g/ The latest audited financial statement;

h/ A minutes (if any) of a meeting and a decision of the Shareholders’ General Meeting, Board of Directors or Members’ Council, or a decision of the owner or a competent representative as stated in the articles of incorporation of the parent company on the establishment of a Vietnam-based branch;

i/ A decision on appointment of the branch director of the foreign fund management company, signed by a competent person of the parent company; a tentative list of professional staff members, enclosed with their personal files and judicial records issued within six (6) months before the submission of the dossier, other related documents certifying the eligibility of the branch director or practitioners of the branch as prescribed in Clause 2, Article 13 of this Circular;

k/ A contract or an on-principle contract on rent of the branch office, enclosed with documents certifying the ownership or use right or leasing competence of the lessor;

l/ Documents related to the fund currently investing in Vietnam (if any) as prescribed at Point k, Clause 1, Article 4 of this Circular.

2. A dossier specified 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 sent directly or by post to the State Securities Commission.

3. Within six (6) months after the State Securities Commission makes a written request, the parent company shall supplement and complete the dossier under regulations. In case of necessity to clarify matters related to the dossier, the State Securities Commission shall request in writing the parent company or the person expected to act as the branch director to give written explanations. Past that time limit, if the parent company fails to amend and supplement documents and complete the dossier or to give adequate explanations as requested, the State Securities Commission may refuse to grant a branch establishment license.

Article 15. Procedures for grant of establishment and operation licenses of Vietnam-based branches

1. Within twenty (20) days after receiving a complete and valid dossier specified in Article 14 of this Circular, the State Securities Commission shall notify such in writing to the foreign fund management company for ensuring adequate physical foundations and staff and freeze the charter capital of the branch. The parent company may use the charter capital of the branch to build the physical foundation. The remaining charter capital must be frozen on the commercial bank account as designated by the State Securities Commission and may be released and transferred into the account of the branch immediately after the branch establishment and operation license takes effect.

2. The State Securities Commission shall inspect the physical foundations of the Vietnam-based branch office before granting an establishment and operation license.

3. Three (3) months after receiving a notice from the State Securities Commission as specified in Clause 1 of this Article, if the foreign fund management company fails to complete its physical foundations, freeze capital and supplement its staff as prescribed, the State Securities Commission may refuse to grant a license.

4. Within seven (7) days after receiving a certification of capital freezing, minutes of inspection of the physical foundations and other valid documents specified in Article 14 of this Circular, the State Securities Commission shall grant an establishment and operation license for a Vietnam-based branch of the fund management company. In case of refusal to grant a license, the State Securities Commission shall reply in writing, clearly stating the reason, but is not required to return the dossier.

5. Within thirty (30) days after the branch establishment and operation license takes effect, the parent company shall carry out the procedures for application for a seal with the public security agency, and publicize the branch establishment and operation license on a licensed printed or electronic newspaper in Vietnam for three (3) consecutive issues with the following principal details:

a/ Name and address of the branch 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 branch director;

d/ Serial number, date of grant and validity term of the branch establishment and operation license;

dd/ Charter capital;

e/ Operations of the branch;

g/ Expected date of operation commencement.

6. Within fifteen (15) days from the date of operation commencement, the Vietnam-based branch shall send to the State Securities Commission a notice of operation, made according to the form provided in Appendix 14 to this Circular, and documents certifying that the foreign organization has completed the procedures prescribed in Clause 5 of this Article.

Article 16. Modification of establishment and operation licenses of Vietnam-based branches

1. The branch of a foreign fund management company shall request the State Securities Commission to modify its establishment and operation license in case of the following change:

a/ Change of the branch director;

b/ Change of the branch name;

c/ Relocation of the branch office;

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 change related to the division, splitting, merger or consolidation of the parent company.

2. The dossier and procedures for requesting modification of branch establishment and operation licenses comply with the relevant provisions of Articles 7 and 14 of this Circular. In case of relocation of the branch office of the foreign fund management company, the State Securities Commission shall inspect the physical foundations to assure that the branch satisfies the operation conditions as prescribed by the law on establishment, organization and operation of the fund management company before modifying the branch establishment and operation license.

Article 17. Suspension of operation, termination of operation and revocation of establishment and operation licenses of Vietnam-based branches

1. A Vietnam-based branch shall suspend its operation for up to two (2) years in the following cases:

a/ It is forced to suspend its operation for failure to remedy its financial adequacy ratio subject to special control in accordance with law and its accumulated loss is equal to under fifty per cent (50%) of its charter capital;

b/ It voluntarily suspends its operation on the condition that it has liquidated all economic contracts related to its securities trading operation.

2. A Vietnam-based branch shall terminate its operation in the following cases:

a/ In the cases specified at Points a, b, c and d, Clause 1, Article 11 of this Circular;

b/ It fails to maintain the conditions for grant of branch establishment and operation license prescribed in Clause 3, 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;

c/ It fails to remedy within the prescribed time limit its financial adequacy ratio subject to special control and its accumulated loss is equal to fifty per cent (50%) or more of its charter capital, or it no longer satisfies the condition on capital for branch operation;

3. A Vietnam-based branch has its establishment and operation license revoked in the following cases:

a/ In the cases specified at Points dd and e, Clause 1, Article 11 of this Circular;

b/ It fails to remedy violations leading to forced operation suspension or termination during the period of operation suspension or termination specified in Clause 1 or 2 of this Article.

4. The order and procedures for operation suspension or termination and revocation of establishment and operation licenses of Vietnam-based branches of foreign fund management companies comply with the law on securities like domestic fund management companies.

Article 18. Dissolution of Vietnam-based branches

1. A Vietnam-based branch is dissolved in the following cases:

a/ Its parent company so requests; it wishes to be dissolved or voluntarily terminates its operation, provided it is able to pay all debts and fulfill other obligations;

b/ Its operation term specified in its establishment and operation license expires;

c/ It has its establishment and operation license revoked.

2. The order, dossier and procedures for dissolving branches of foreign fund management companies comply with the law on securities like domestic fund management companies.

Article 19. Change of charter capital of Vietnam-based branches

1. Charter capital of a Vietnam-based may be increased with the following sources:

a/ Retained profits;

b/ Capital additionally allocated by the parent company.

2. When reducing the charter capital of its Vietnam-based branch, a parent company shall assure that the branch satisfies the conditions on charter capital and financial adequacy ratio after the reduction.

3. The order, dossier and procedures for increasing or reducing charter capital of Vietnam-based branches comply with the law on securities like domestic fund management companies.

Article 20. Operation of Vietnam-based branches

1. Vietnam-based branches shall comply with the following provisions:

a/ They may manage assets mobilized abroad, including also those formed in Vietnam from capital raised abroad; they may not raise capital in Vietnam for management in any form;

b/ Unless their entrusting clients instruct or their investment management contracts or articles of incorporation of foreign organizations otherwise provide, when managing assets of clients, branches of foreign fund management companies shall comply with regulations on depository, separate management of assets of different clients and asset transactions between investment portfolios of entrusting clients like domestic fund management companies;

c/ They shall keep confidential information on clients, asset transactions, investment portfolios of clients and other relevant information, except the case of provision of information to the State Securities Commission and competent management agencies upon request;

d/ They shall comply with the laws on foreign exchange and limit ownership in Vietnamese businesses, taxes, charges and anti-money laundering and other relevant laws;

dd/ They may use assets mobilized abroad to fund projects and businesses, provide loans and perform investment contracts under investment management contracts, articles of incorporation of foreign organizations or instructions of clients;

e/ They may not borrow capital in any form in the Vietnamese territory for their clients, other organizations and individuals or themselves; may not put trusted assets or their own assets in mortgages, pledges, escrow accounts or deposits or use them to secure or guarantee loans in the Vietnamese territory, including loans of entrusting clients, other organizations and individuals or their loans;

g/ They may not offer and issue securities to raise capital in the Vietnamese territory;

h/ They may remit their profits abroad in accordance with Vietnamese law;

i/ They shall conduct securities trading operations stated in their establishment and operation licenses in accordance with Vietnamese law and treaties to which Vietnam is a contracting party;

k/ Their employees shall pay taxes as prescribed by Vietnamese law.

2. In reporting on ownership and disclosing information on trading on the securities market, Vietnam-based branches shall:

a/ Represent their entrusting clients to perform the obligations to report on and disclose trading information in accordance with the law on securities; comply, together with entrusting clients, with regulations on reporting on ownership and disclosing information on the securities market applicable to affiliated persons, major shareholders, internal shareholders and internal investors;

b/ The obligation to make reports and disclose information arises when:

- The number of stocks owned by Vietnam-based branches, parent companies and entrusting clients reach 5% or more of the total outstanding stocks of an issuing organization, or

- Vietnam-based branches or parent companies are internal shareholders or internal investors in accordance with the law on securities.

c/ Contents of information reports and disclosure and methods of information disclosure comply with the law on disclosure of information on the securities market.

3. A Vietnam-based branch shall conduct a public offering in accordance with the law on securities in the following cases:

a/ It, its entrusting clients or it together with its entrusting clients purchases to own at least twenty five-per cent (25%) of the total outstanding stocks or closed-end fund certificates of an issuing organization;

b/ It, its entrusting clients or it together with its entrusting clients holds at least twenty five-per cent (25%) or more of the total outstanding stocks or closed-end fund certificates of an issuing organization and additionally purchase between five (5) and under ten (10) per cent of outstanding stocks or closed-end fund certificates within less than one year from the date of completion of the previous public offering;

c/ It, its entrusting clients or it together with its entrusting clients holds at least twenty five-per cent (25%) or more of the total outstanding stocks or closed-end fund certificates of an issuing organization and additionally purchase at least ten (10) per cent of outstanding stocks or closed-end fund certificates of such issuing organization.

4. In the course of operation, a Vietnam-based branch and its parent company shall:

a/ Within thirty (30) days after the parent company completes investments in its subsidiary companies, joint-stock or associated companies in Vietnam, the branch shall notify the State Securities Commission of such investments; the parent company may not contribute capital or purchase to own over 5% of the charter capital of a fund management company in Vietnam;

b/ The Vietnam-based branch may neither contribute capital nor purchase shares or capital contributions in fund management companies and securities companies in Vietnam, except when it purchases to own or owns, together with affiliated persons, no more than 5% of outstanding stocks of a fund management company or securities company registered for trading or listing on the Stock Exchange.

5. All securities transactions in Vietnam of members of management boards or employees of Vietnam-based branches must be reported to the internal control section of such branches before and right after they are conducted. A report on such personal transaction must contain information on type (code) of securities, trading volume and price, and the securities company where the trading account is opened. Reports on personal transactions must all be preserved and managed at the internal control section and provided to the State Securities Commission upon request.

6. Vietnam-based branches may provide securities investment consultancy services to domestic and foreign clients. When providing securities investment consultancy services in Vietnam, Vietnam-based branches shall fully comply with regulations on professional personnel and operations applicable to domestic fund management companies.

7. The organizational structure and management of Vietnam-based branches decided by their parent companies must comply with Vietnamese law on organizational structure, management and internal control of fund management companies.

8. Vietnam-based branches shall issue professional processes, set up and operate risk management systems under the guidance of the State Securities Commission and suitable to their professional operations, ensuring a risk control and management mechanism for each product and process of performing business operations; or may apply internal regulations issued by parent companies.

9. Annually, Vietnam-based branches shall organize training courses for their employees or request their practitioners to participate in training courses organized by the State Securities Commission (if any), ensuring their employees update professional skills and qualifications and legal knowledge.

Article 21. Financial mechanisms of Vietnam-based branches

1. In the course of operation, a Vietnam-based branch shall always maintain its equity capital not lower than the legal capital prescribed in Clause 3, Article 71 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.

2. Vietnam-based branches shall implement the financial mechanisms prescribed by Vietnamese law like domestic fund management companies.

3. Vietnam-based branches shall attain and maintain financial prudential ratios like domestic fund management companies.

Article 22. Financial and tax obligations and accounting regime of Vietnam-based branches

1. Vietnam-based branches shall perform tax and financial obligations prescribed by the laws on taxes and tax administration.

2. Vietnam-based branches shall fully comply with the provisions of the Vietnamese law on accounting of domestic fund management companies.

Article 23. Obligations of Vietnam-based branches to report, preserve dossiers and disclose information

1. A Vietnam-based branch shall send to the State Securities Commission the following periodical operation reports:

a/ Monthly and annual operation reports, made according to in the form provided in Appendix 10 to this Circular;

b/ Quarterly, biannual and annual financial statements. Biannual financial statements must be reviewed while annual financial statements must be audited by accredited audit firms;

c/ Monthly and annual reports on management of investment portfolios, made according to the form provided in Appendix 11 to this Circular; annual financial statements of investment funds in Vietnam, made according to regulations of countries of origin;

d/ Reports on financial prudential ratios as prescribed by law for domestic securities trading organizations.

2. Time limits for submitting reports specified in Clause 1 of this Article:

a/ Within ten (10) days from the last day of a month, for monthly reports; within twenty (20) days from the last day of a quarter, for quarterly reports;

b/ Within forty five (45) days from the last day of the fist six months of a fiscal year, for biannual financial statements;

c/ Within ninety (90) days from the last day of a fiscal year, for annual financial statements.

3. Vietnam-based branches shall report to the State Securities Commission events which may seriously affect their financial capability and management of trusted assets within three (3) working days after such events occur.

4. In case of necessity, in order to protect common interests and investor interests, the State Securities Commission may request branches of foreign fund management companies to report on other operations of branches or parent companies in the Vietnamese territory. Branches shall report to the State Securities Commission within forty eight (48) hours after receiving a request.

5. Vietnam-based branches shall fully, accurately and prompting preserve documents and dossiers at their offices, and update information and data relating to their operations. In case of necessity, at the request of the State Securities Commission, Vietnam-based branches shall promptly report and provide documents or explain matters related to their and their parent companies’ operations on the Vietnamese securities market.

6. Vietnam-based branches shall disclose information in accordance with current laws like domestic fund management companies.

Article 24. Examination and inspection of operations of Vietnam-based branches

1. The State Securities Commission shall examine and inspect operations of Vietnam-based branches of foreign fund management companies in accordance with current laws.

2. Before conducting examination and supervision of operations of Vietnam-based branches, parent companies and state management agencies in charge of finance, banking and securities in localities where the head offices of parent companies are located shall notify and send examination plans to the State Securities Commission.

3. Within 30 days after receiving examination conclusions, Vietnam-based branches shall send to the State Securities Commission reports on results of examination, internal control and internal audit, conclusions of inspection by parent companies and competent foreign management agencies of their branches operations.