Chương II Thông tư 99/2020/TT-BTC: Quy định về quản trị công ty, cơ cấu tổ chức của công ty quản lý quỹ

Chapter II

ADMINISTRATION AND ORGANIZATIONAL STRUCTURE OF FUND MANAGEMENT COMPANIES

Article 3. Charter and rules for administration of fund management companies

1. Charter of a fund management company shall be formulated in conformity with its organizational and operational model, and contain the primary contents of the sample charter in Appendix XII enclosed herewith. The fund management company that is a public company shall formulate its charter by referring to the sample charter of a public company.

2. Fund management companies must comply with regulations of the Law on Securities, the Law on enterprises, this Circular and relevant laws on company administration.

Article 4. Board of Directors, Board of Members and Board of Controllers

1. Organizational structure, rights, obligations and operations of the Board of Directors, Board of Members, Board of Controllers, audit committee, internal audit unit, Executive Board; eligibility requirements, election, dismissal, rights and obligations of members and Chairperson of the Board of Directors, members and Chairperson of the Board of Members, Company’s President, Chief Controller, Controllers, Chairperson and members of the audit committee shall be specified in the company’s charter, conformable with regulations on company administration applicable to public companies and regulations on enterprises, and not contrary to regulations herein.

2. A member of the Board of Directors or Board of Members of a fund management company may not act as a member of the Board of Directors, Board of Members, or Executive Board or fund management practitioner of another fund management company or a member of the Board of Directors, Board of Members, or Executive Board or employee of the depository bank or supervisory bank providing services to securities investment fund or securities investment company managed by the fund management company.

Article 5. Internal audit

1. The fund management company that is a public company or manages a public fund or a public securities investment company is required to establish an internal audit unit. The internal audit unit is affiliated to the Board of Directors or Board of Members or company’s owner.

2. The internal audit unit shall:

a) inspect and evaluate the organizational structure, company administration, management and cooperation of each department and holder of each working position in order to prevent conflicts of interest and protect benefits of clients;

b) inspect and evaluate the adequacy, effectiveness, efficiency and compliance with regulations of law and the company’s charter; internal control system; internal policies and procedures, including rules of professional ethics, business process, risk management system and procedures, information technology system, accounting, reporting system and procedures, information disclosure, procedures for receiving and settling denunciations and complaints from clients and other internal regulations;

c) inspect the validity, legitimacy, truthfulness, prudency and compliance with business process and risk management procedures;

d) perform operational audit according to the annual internal audit plan. The annual internal audit plan must be approved by the Board of Directors or Board of Members or company’s owner before it is implemented. The annual internal audit plan must comply with the following rules:

- The internal audit must be carried out annually and on ad hoc basis;

- The level of risks to operation, procedures and departments must be assessed according to the company’s internal regulations. The audit of operation, procedures and departments with high risks shall be given priority and performed every year;

- The annual audit plan must be adjusted upon the occurrence of change in the level of risks to operation, procedures and departments;

dd) perform audit of operations of all departments in the company every two years;

e) propose solutions for enhancing operational efficiency and effectiveness of the company; monitor the implementation of recommendations after the audit which have been approved by the Board of Directors or the Board of Members or company’s owner.

3. The internal audit must comply with the following rules:

a) Independence: The internal audit unit and its operations must be independent from other departments and operations of the fund management company, and shall not bear the management of its Executive Board. Employees of the internal audit unit are not allowed to concurrently hold any other working positions in the fund management company;

b) Objectivity: internal auditors must be objective, unbiased and unprejudiced, and not be influenced and tampered when performing their tasks;

c) Truthfulness: The internal audit must be performed in an honest, discreet and responsible manner;

d) Cooperation: The internal audit unit is entitled to access all information and documents of the company. Members of the Executive Board and all employees of the fund management company shall cooperate and provide adequate, timely, truthful and accurate information and documents at the request of the internal audit unit. Departments in the company shall notify the internal audit unit when detecting any weaknesses, shortcomings, violations, risks or loss of assets of the company or its clients;

dd) Confidentiality: The internal audit unit and its employees shall keep confidentiality of any information obtained during the audit, unless the information must be provided at the request of competent authorities.

4. When being appointed, an employee of the internal audit unit shall:

a) Not be facing criminal prosecution, serving an imprisonment sentence or being banned from securities trading as prescribed by law;

b) Not incur any administrative penalties for securities- and securities market-related offences in the last 06 months prior to the appointment date;

c) Have an asset management practicing certificate issued in a member State of the Organization for Economic Cooperation and Development (OECD) or an international certificate in investment analysis such as CFA (Chartered Financial Analyst) level II or higher, CIIA (Certified International Investment Analyst) - Final Level, or securities practicing certificate, or possess certificate of fundamentals of securities and securities market, and certificate of law in securities and securities market.

5. The internal audit unit must be composed of at least an employee who possesses an auditor’s certificate or certificate of accountant issued in Vietnam, or an international audit or accounting certificate such as ACCA (Association of Chartered Certified Accountants), CPA (Certified Public Accountants), CA (Chartered Accountants), or ACA (Associate Chartered Accountants), or who has at least 03 years’ experience in legal department, inspection, management and supervision of financial institutions in finance, banking, insurance, securities or state audit authorities.

6. Within 07 working days from the date of appointment, dismissal or replacement of an employee of the internal audit unit, the fund management company shall send a notification thereof and the following documents to SSC:

a) The resolution or decision of the Board of Directors or Board of Members or the owner’s decision on appointment, dismissal or replacement of an employee of the internal audit unit;

b) The personal records and judicial record issued within the last 06 months prior to the application date (for a new employee), valid copies of documents proving that the employee and organizational structure of the internal audit unit meets the conditions in Clause 4 and Clause 5 of this Article.

7. The internal audit unit must promptly send the report on annual internal audit to the Board of Directors or Board of Members or the company’s owner and SSC. The report on internal audit must include opinions and conclusions given by the internal audit unit, grounds for auditor’s opinions, explanations of the subject of the audit, remedial measures and actions against violations.

Article 6. Internal control

1. The fund management company must establish an internal control system suitable for its organizational structure, establish an internal control unit affiliated to the Executive Board, and issue regulations on internal control, including internal mechanisms, policies, procedures and rules.

2. The internal control unit shall:

a) Supervise the compliance by each working position holder, each department and all operations of the company with relevant laws, policies, business process and the company’s internal regulations;

b) Supervise the fulfillment of assigned/authorized tasks by all employees in the company. Principles of power decentralization and authorization in the company must comply with the following provisions:

- The mechanism for power decentralization and authorization must be clear, explicit and transparent, and ensure the clear division of tasks and powers between employees and departments in the company. The business process must ensure the clear division of functions and tasks between working position holders and departments in the company, including analysis, appraisal, acceptance, approval or decision, implementation, reporting and supervision of investments;

- An individual may not hold multiple working positions that allow him/her to perform acts with conflicted or overlapped purposes/interests. Personnel is arranged to ensure that an individual cannot independently make his/her own decision and perform two or more operations in the business process without consulting other departments/individuals;

c) Engage in the formulation and supervision of implementation of the company's internal policies, procedures and rules in order to prevent the conflict of interest; supervise the compliance with the code of professional ethics; consolidate, retain and supervise business operations of the company and personal transactions conducted by the company’s employees;

d) Engage in the formulation and implementation of procedures for management of risks to the company and each trustor; punctually identify and evaluate risks, establish investment limits and adopt measures for preventing and managing potential risks in investments of the company and its trustors;

dd) Supervise to ensure that the net asset values (NAV) of the trust portfolios, securities investment funds and securities investment companies are assessed in conformity with regulations of law and internal regulations; the company’s assets and sources are managed safely and effectively; assets of trustors are managed separately and independently; financial statements, operational reports, reports on financial safety indicators and other reports of the company are truthfully, accurately and punctually prepared, and adequately updated in accordance with regulations of law;

e) Supervise and truthfully, punctually and accurately manage the financial information system; develop a backup information system to promptly deal with any arising issues such as disaster, fire or explosion, etc. and maintain the uninterrupted operation of the company;

g) Propose plans for settling disputes, conflict of interests or claims from clients or partners, and contingency plans for remedying consequences when problems occur;

h) Perform internal audit functions in case the fund management company is not required to establish the internal audit unit.

3. An employee of the internal control unit shall:

a) Meet the conditions in Clause 4 Article 5 hereof;

b) Have at least 02 years’ experience of working in specialized departments of fund management companies, securities companies, credit institutions, insurance firms, audit organizations or finance, banking, insurance, securities or state audit authorities;

c) Be not a related person of the member of the Executive Board and not concurrently hold other working positions in specialized departments directly related to licensed securities activities.

4. The internal control unit must be composed of at least:

a) a compliance control employee who possesses bachelor’s degree in law or higher and has at least 01 year's experience of working in law;

b) an employee who possesses an accounting or audit certificate as prescribed in Clause 5 Article 5 hereof, or bachelor’s degree in accounting or audit or higher and has at least 01 year’s experience of working in accounting or audit;

c) a head of the internal control unit who meets the condition in Point a or Point b of this Clause.

5. Within 07 working days from the date of appointment, dismissal or replacement of an employee of the internal control unit, the fund management company shall send a notification thereof and the following documents to SSC:

a) The decision issued by General Director (Director) on appointment, dismissal or replacement of an employee of the internal control unit;

b) The list of employees, enclosed with personal records and judicial record issued within the last 06 months prior to the application date (for a new employee), valid copies of other documents proving that the employee and organizational structure of the internal control unit meets the conditions in Clause 3 and Clause 4 of this Article.

6. The fund management company must send the report on annual internal control to SSC. The report must indicate potential risks in operations of the company, management of trust assets, and inspection/supervision of each unit/department and each licensed operation.

Article 7. Executive Board and employees of a fund management company

1. The fund management company must appoint General Director (Director), and Deputy General Directors (Deputy Directors) in charge of securities trading operations (if any) who meet the conditions in Clause 5 Article 75 of the Law on Securities.

2. In addition to General Director (Director) and Deputy General Directors (Deputy Directors), the fund management company must have at least 05 employees possessing fund management practicing certificate during its operation.

3. The fund management company must arrange persons having securities practicing certificate to hold the following working positions:

a) Executives of the fund; managers and deputy managers of specialized departments in investment analysis, investment appraisal and investment decision-making; employees directly taking charge of investment analysis, investment appraisal and investment decision-making must possess fund management practicing certificate;

b) Manager and deputy manager of securities investment consulting department, and securities investment consultants; manager and deputy manager of investment department, and employees directly making investments for trustors must possess appropriate securities practicing certificate.

4. The fund management company must dismiss General Director (Director), and Deputy General Directors (Deputy Directors) in charge of securities trading operations, and executives of the fund within 07 working days when they commit any of the violations in Article 12 and Clause 2 Article 98 of the Law on Securities or in case they are facing criminal prosecution or serving an imprisonment sentence or being banned from securities trading as prescribed by law.

5. Within 05 working days from the date of ratification of the decision on appointment, dismissal or replacement of General Director (Director), Deputy General Director (Deputy Director) in charge of securities trading operations, or an executive of the fund, the fund management company shall send a notification thereof and the following documents to SSC:

a) The decision on appointment or dismissal of General Director (Director), Deputy General Director (Deputy Director) in charge of securities trading operations, or executive of the fund;

b) The list of General Director (Director), Deputy General Directors (Deputy Directors) in charge of securities trading operations, and executives of the fund, made according to the form in Appendix I enclosed herewith; valid copies of documents proving that General Director (Director), Deputy General Directors (Deputy Directors) in charge of securities trading operations, and executives of the fund meet the conditions laid down in the Law on Securities.

Article 8. Representative offices

1. Name of a domestic representative office of the fund management company shall consist of the name of the fund management company and the phrase “representative office” and comply with regulations on naming of representative offices in the Law on enterprises.

2. The domestic representative office of the fund management company shall have its establishment decision revoked in the following cases:

a) The fund management company is dissolved, declared bankrupt or has its securities trading license revoked;

b) The application for approval of establishment of the representative office contains inaccurate information;

c) The representative office operates for wrong purposes or against its establishment decision.

3. Within 15 days from the receipt of SSC’s written notification of revocation of the decision to establish the representative office, the fund management company shall shut down its representative office and report it to SSC in accordance with regulations of the Law on Securities.

Article 9. Branches

1. Name of a domestic branch of the fund management company shall consist of the name of the fund management company and the phrase “branch” and comply with regulations on naming of branches in the Law on enterprises.

2. The domestic branch of the fund management company shall have its establishment decision revoked in the following cases:

a) The fund management company is dissolved, declared bankrupt or has its securities trading license revoked;

b) The application for approval of establishment of the branch contains inaccurate information;

c) The branch operates for wrong purposes or against its establishment decision;

d) It fails to meet requirements for headquarters and equipment serving the performance of licensed securities operations after a maximum duration of at least 03 months for remedying unsatisfactory requirements;

dd) The branch fails to operate within 03 months from the issue date of the decision to establish the branch.

3. Within 15 days from the receipt of SSC’s written notification of revocation of the decision to establish the branch, the fund management company shall shut down its branch and report it to SSC in accordance with regulations of the Law on Securities.