Thông tư 11/2016/TT-NHNN

CIRCULAR

AMENDMENTS TO A NUMBER OF LEGISLATIVE DOCUMENTS ON PROVISION OF FOREIGN CURRENCY PAYMENT SERVICES, AND ACTIVITIES OF FOREIGN EXCHANGE AGENTS AND FOREIGN EXCHANGE DESKS

Pursuant to the Law No.46/2010/QH12 on the State bank of Vietnam dated June 16, 2010;

Pursuant to the Law No. 47/2010/QH12 on credit institutions dated June 16, 2010;

Pursuant to the Ordinance No.28/2005/PL-UBTVQH11 on foreign exchange dated December 13, 2005 and the Ordinance on amendments to a number of articles of the Ordinance No.06/2013/UBTVQH13 dated March 18, 2013;

Pursuant to the Government's Decree No. 156/2013/ND-CP dated November 11, 2013 defining the functions, tasks, entitlements and organizational structure of the State bank of Vietnam;

At request of the Director of the Department of Foreign Exchange Management;

The Governor of the State Bank of Vietnam (hereinafter referred to as “State bank”) hereby issues this Circular providing amendments to a number of legislative documents on provision of foreign currency payment services, activities of foreign exchange agent agents and foreign exchange desks

Article 1. Amendments to a number of articles of the Circular No.34/2015/TT-NHNN on guidelines for the provision of foreign currency payment services dated December 31, 2015 by the Governor of the State bank of Vietnam (hereinafter referred to as “Circular No.34/2015/TT-NHNN)

1. Item (vii) is added to point a, clause 4 of Article 7 as follows:

“(vii) Transfer money to foreign currency accounts of credit institutions licensed to act as agents to make payment to beneficiaries in foreign currency (hereinafter referred to as “paying agent”)."

2. Article 8 is amended as follows:

“Article 8. Paying agent activities

1. Economic groups and credit institutions as paying agents of economic groups and credit institutions are entitled to receive foreign currency cash from permitted credit institution and authorizing economic groups. Credit institutions permitted to perform apying agents of other economic groups and credit institutions are entitled to receive foreign currency on cash or by transfer from permitted credit institutions and authorizing economic groups.

2. Paying agents shall make payment to beneficiaries on cash in foreign currencies or in Vietnam dong at the exchange rate published by the authorizing entity.

3. Advance for payment shall be made in accordance with the agency agreement signed by the permitted credit institution, authorizing economic group and paying agent.”

3. Point d is added to clause 3 of Article 11 as follows:

“d) Besides documents requested for the application mentioned in point a, b, c of this clause, those specified in points b, d and dd, clause 1 of this Article shall be enclosed with.

4. Clauses 2 and 3 of Article 12 are amended as follows:

“2. In case of in the incomplete or invalid application, within 10 working days from the date of receipt, the branch of the State bank of province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a written approval for direct payment (using the form 08 enclosed herewith) or a written approval for extension/adjustment/ supplement to direct payment (hereinafter refered to as “direct payment”) (using Annex 12 enclosed herewith). In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.

3. Procedure for application for direct payment (or adjustments/supplements/extension) applicable to Vietnam Post Corporation:

a) Vietnam Post Corporation shall submit an application to the State bank directly or by post;

b) In case of in the incomplete or invalid application, within 10 working days from the date of receipt, the branch of the State bank of province shall send the Vietnam Post Corporation a written request for completion of its application.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a written approval for direct payment (using the form 09 enclosed herewith) or a written approval for extension/adjustment/supplement to direct payment (using Annex 13 enclosed herewith). In case of rejection, The Branch of the State Bank of the province shall send the Vietnam Post Corporation a written notice in which reason for rejection shall be specified.”

5. Point Article 13a is added to Article 13 as follows:

“Article 13a. Rules for operation of paying agents; and extension of operation duration of paying agents

1. Every credit institution shall be entitled to perform paying agent activities only when its application for paying agent is approved in writing by the branch of the State bank of province where the credit institution is headquartered.

2. A credit institution may apply for extension when the remaining effective period of the written approval for paying agent granted by the branch of State Bank within the province where the credit institution is headquartered is at least 30 days left by the date of application for extension and the credit institution does not commit any violation against reporting regime prescribed in Article 22 of this Circular for at least 04 quarters from the date of approval or latest extension.”

6. Point d is added to clause 3 of Article 14 as follows:

“d) Besides documents requested for the application for extension metioned in in point a, b, c of this clause, documents specified in point b, d, clause 1 of this Article shall be enclosed with.”

7. Clauses 2 and 3 of Article 15 are amended as follows:

“2. In case of in the incomplete or invalid application, within 10 working days from the adte of receipt, the branch of the State bank of province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a written approval for direct payment (using the form 10 enclosed with this Circular) or a written approval for extension/ adjustment/supplement to direct payment (using Annex 12 enclosed with this Circular). In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.

3. Procedures for approval for paying agent registration ( or adjustment/supplement/extension) applicable to Vietnam Post Corporation:

a) Vietnam Post Corporation shall submit an application for approval for paying agent registration ( or adjustment/supplement/extension) to the State bank directly or by post;

b) In case of the incomplete or invalid application, within 10 working days from the date of receipt, the branch of the State bank of province shall send Vietnam Post Corporation a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the State Bank may grant a written approval for direct payment (using the form 11 enclosed with this Circular) or a written approval for extension/adjustment/supplement to in direct payment (using Annex 13 enclosed with this Circular). In case of rejection, The Branch of the State Bank of the province shall send Vietnam Post Corporation a written notice in which reason for rejection shall be specified.”

8. Clause 1 of Article 23 is amended as follows:

“1. Principles of conversion:

a) Within 12 months from the effective date of this Circular, economic organizations or credit institutions granted the paying agent registration certificate or License to operate in foreign currency payment services must apply for the written approval for paying agent registration or direct payment under provisions hereof. After aforesaid 12 months, any economic organization or credit institution that fails to obtain the aforesaid approval or fails to meets requirements in points c and Article of this clause resulting in failure to acquire the approval must ended their operation as paying agent or in direct payment services.

b) During the conversion period, economic organizations and credit institutions are entitled to continue to operate as the paying agent or operate in direct payment services under the existing paying agent registration certificate or License to operate in direct payment services.

c) Economic organizations licensed to operate in foreign currency payment services will be granted the written approval for direct payment if they satisfy all requirements for operation in direct payment stipulated by the Government;

d) Economic organizations granted the paying agent registration certificate will be granted the written approval for direct payment if they satisfy all requirements for paying agents

dd) Credit institutions grated the paying agent registration certificate shall be eligible for being granted the written approval for paying agent registration.

9. Point b, Clause 4 of Article 23 is amended as follows:

“b) In case of the incomplete or invalid application, within 10 working days from the date of receipt, the branch of the State bank of province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of the valid application, the branch of the State Bank of the province may grant the written approval for direct payment or paying agent registration. In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.”

10. Point a, Clause 5 of Article 23 is amended as follows:

“a) Within 12 months from the effective date of this Circular, Vietnam Post Corporation must go through the formality for application for written approval for direct payment under Articles 11 and 12 hereof if it satisfies all requirements for operation in direct payment imposed on economic organizations”.

11. Titles of chapters II and III are amended as follows:

a) Chapter II: “PROCEDURES FOR APPROVAL FOR DIRECT PAYMENT; APPROVAL FOR ADJUSTMENT, SUPPLEMENT AND EXTENSION OF PERIOD OF OPERATION OF DIRECT PAYMENT";

b) Chapter III: “PROCEDURES FOR APPROVAL FOR PAYING AGENT REGISTRATION; APPROVAL FOR ADJUSTMENT, AUPPLEMENT AND EXTENSION OF PERIOD OF OPERATION AS PAYING AGENTS";

12. Articles 10, 13 and clause 2 of Article 23 are annulled; and point b, clause 1, Article 20 of the Circular No.34/2015/TT-NHNN is adjusted as to " the list of beneficiaries and their receivables by foreign currency".

Article 2.Amendments to a number of articles of regulations on operation of foreign exchange agents issued together with the Decision No.21/2008/QD-NHNN dated July 11, 2008 by the Governor of the State Bank (hereinafter referred to as “ Regulation”)

1. Clause 1 of Article 1 is amended as follows:

“1.This Regulation provides adjustments to the foreign exchange operation by economic organizations as foreign exchange agents (hereinafter referred to as “foreign exchange agent”) of permitted credit institutions within the territory of Vietnam.”

2. Article 2 is amended as follows:

“Article 2. Regulated entities

1. Permitted credit institutions including banks, non-bank credit institutions and branches of foreign banks licensed to operate in or provide foreign exchange services under regulations of laws.

2. Economic organizations performing as foreign exchange agents of permitted credit institutions.

3. Other organizations and individuals participating in foreign exchange services.”

3. Article 4 is amended as follows:

“Article 4. Foreign exchange agent activities

1. Foreign exchange agents are only allowed to exchange Vietnam dong for individual’s foreign currency cash but are not allowed to exchange foreign currency cash for Vietnam dong or other foreign currencies, except for cases prescribed in clause 2 of this Article.

2. Foreign exchange agents located at isolated areas of international checkpoints are allowed to exchange foreign currency cash for Vietnam dong with individuals having passports granted by competent authorities of their countries under Article 8 of this Regulation.”

4. Article 4a is added to Article 4 as follows:

“Article 4a. Rules for preparation and submission of application for approval for foreign exchange agent registration or changes in foreign exchange agents

1. The application must be made in Vietnamese. In case the application is translated from a foreign language, the applicant shall submit notarized translations or those of which the translator’s signature is authenticated under Vietnamese regulations of laws on notarization or those certified true by legal representative of the applicant.

2. For documents requested to be submitted in copy, the applicant shall submit certified true copies or copies certified by the applicant. In case the applicant directly submits their application at the branch of the State Bank of province and documents in the application are not certified trued, original copies shall be presented for callation. Person(s) collating original and copies shall countersign such copies and be liable for the accuracy of the copies."

5. Point Article 6a is added to Article 6 as follows:

“Article 6a. Adjustments required to be registered or reported

1. The following adjustments shall be registered with the branch of the State bank of province where the certificate of foreign exchange agent registration is issued:

a) Name or address of the economic organization;

b) Address of foreign exchange agent’s office ;

c) Increase in the number of foreign exchange agents.

2. Any adjustment to name of the authorizing credit institution, or decrease in the number of foreign exchange agents, the economic organization shall be reported to the branch of the State bank of province where the foreign exchange agent registration certificate is issued within 30 working days from the date of adjustment.

3. Procedures and application for adjustments shall be conformable to Article 7 and 7a of this Regulation.”

6. Article 7 is amended as follows:

“Article 7. Application for approval for foreign exchange agent registration or changes in foreign exchange agents

1. The application for approval for foreign exchange agent registration includes:

a) An application form for foreign exchange agent registration (using the form in Annex 1 enclosed with this Regulation);

b) Economic organization’s written commitments to comply with the Government regulations on foreign exchange agent’s office location; and a commitment to perform as the foreign exchange agent of only one permitted credit institution.

c) Copies of documents certifying the lawful establishment and operation such as enterprise registration certificates or investment certificates or equivalent documents under regulations of laws.

d) Reports on facilities and equipment for foreign exchange services;

dd) Certificates of completion of training courses in distinguishing between true and counterfeit foreign currencies granted to staff directly working at foreign exchange agent's offices by the authorizing credit institution.

e) Foreign exchange procedures including measures for ensuring security during the transaction; issue of invoices, record-keeping, accounting and reporting.

g) Copies of the agency agreement signed with the authorizing credit institution including the following contents:

(i) name, headquarter address and contact number of both parties;

(ii) name and address of foreign exchange agents;

(iii)Terms prescribing that the foreign exchange agent is entitled to buy foreign currency cash only (except for those located iat isolated area of international checkpoints) and re-sell such foreign exchange cash (excluding foreign currency reserves) to the authorizing credit institution;

(iv) Rules for determination of buy rate and sell rate of foreign currency cash (for foreign exchange agents located in isolated areas of international checkpoints) and re-sell rate of such foreign currency as it is resold to the authorizing credit institution under regulations on foreign exchange control and commission fees (if any);

(v) Rights and obligations of both parties to the agency agreement which specifies obligations to strict compliance with foreign exchange procedures by the foreign exchange agent and the periodic inspection of foreign exchange agent operation to ensure the agreement performance;

(vi) Negotiable foreign exchange reserves and time limit for reselling purchased foreign currencyies to the authorizing credit institution.

2. The application for changes in foreign exchange agent includes:

a) An application form for changes in foreign exchange agents (using the form in Annex 5 enclosed with this Regulation);

b) Relevant documents specified in clause 1, Article 6a of this Regulation;

c)A reports on facilities and equipment for foreign exchange services and economic organization’s written commitments to comply with the Government’s regulations on foreign exchange agent’s office location (in case of increase in the number of foreign exchange agents).”

7. Article 7a is added to Article 7 as follows:

“Article 7a. Procedures for approval for foreign exchange agent registration and changes in foreign exchange agents

1. Every economic organization wishing to operate in foreign exchange services or change their foreign exchange agent shall submit an application to the branch of the State Bank of the province where the foreign exchange agent is located directly or by post.

2. In case of in the incomplete or invalid application, within 10 working days from the date of receipt, the branch of the State bank of the province shall send the applicant a written request for completion of their application.

Within 30 working days from the date of receipt of valid application, the Branch of the State Bank of the province may grant a Foreign exchange Agent Registration Certificate (using the form 2 enclosed with this Regulation) or a Certificate of Changes in Foreign exchange Agents (using Annex 6 enclosed with this Regulation). In case of rejection, The Branch of the State Bank of the province shall send the applicant a written notice in which reason for rejection shall be specified.

3. In case the foreign exchange agent ‘s location is different from the place where the economic organization is headquartered, the branch of the State Bank of the province where the foreign exchange agent is situtated shall submit a copy of the certificate to the branch of the State Bank of the province where the economic organization is headquartered.

4. Validity period of the foreign exchange agent registration certificate are as follows:

a) The validity period is up to the duration of the agency agreement signed between the economic organization and authorizing credit institution;

b) In case the agency agreement expires or is early terminated, the economic organization shall cease its operation in foreign exchange services and submit the original Foreign exchange Agent Registration Certificate to the branch of the State Bank of the province where the Certificate is issued within 30 working days from the expiry date or termination date.

c) Any economic organization wishing to continue to operating as a foreign exchange agent shall meet the Government's requirements for operation in foreign exchange services imposed on economic organizations, submit the application and go through procedures stipulated in Article 7, and clauses 1 and 2 of Article 7a of this Regulation.”

8. The phrase “tổ chức tín dụng ủy nhiệm” is now changed into “tổ chức tín dụng ủy quyền”.

9. The following annexes are replaced or supplemented as follows:

a) The Annex 1 – application form for foreign exchange agents issued together with this Regulation is replaced with Annex 1- application form for approval for foreign exchange agent registration enclosed herewith;

b) The Annex 2 – Certificate of changes in foreign exchange agent registration issued together with this Regulation is replaced with Annex 2- Certificate of changes in foreign exchange agent registration enclosed herewith;

c) Annex 5- application form for changes in foreign exchange agent and Annex- application form for certifciate of registration of changes in foreign exchange agents enclosed herewith.

10. Article 3, clause 3 of Article 4, Articles 5, 6 and 13 of this Regulation are annulled.

Article 3. Transition provisions applicable to foreign exchange agents granted Foreign Exchange Registration Certificates by the effective date of this Circular

Foreign exchange agents granted the Foreign exchange Agent Registration Certificate by the effective date of this Circular are entitled to continue to run foreign exchange services on the behalf of the authorizing credit institution under the existing Foreign exchange Agent Registration Certificate, unless the agency agreement signed between the economic group and credit institution expires or is early terminated by the effective date of this Circular.

Article 4. Transition provisions applicable to individuals licensed to set up foreign exchange desks by the effective date of this Circular

Individuals licensed to set up foreign exchange desks by the State bank under the Circular No.07/2001/TT-NHNN dated August 31, 2001 by the Governor of the State Bank providing guidance on management of currencies of bordering countries at checkpoints and checkpoint economic zones of Vietnam issued together with the Decision No.140/2000/QD-TTg dated December 08, 2000 by the Prime Minister by the effective date of this Circular are entitled to continue to operate in foreign exchange services.

Article 5. Implementation

1. This Circular enters into forces from August 13, 2016.

2. As of the effective date of this Circular, the following clauses expire:

a) Section 6 of the Circular No.07/2001/TT-NHNN dated August 21, 2001 by the Governor of the State Bank providing guidance on management of currencies of bordering countries at checkpoints and checkpoint economic zones of Vietnam issued together with the Decision No.140/2000/QD-TTg dated December 08, 2000 by the Prime Minister.

b) Clause 2 of Article 1 and Article 6 of the Circular No.29/2015/TT-NHNN dated December 22, 2015 providing amendments to a number of the State Bank’s legislative documents on certified true copies required.

3. Chiefs of Offices, Directors of Department of Foreign Exchange Management, heads of Affiliates of the State Bank, Directors of Branches of State Bank in provinces, President of the Board of Directors, President of Board of Members, Directors General (Directors) of credit institutions and branches of foreign banks shall be responsible for the implementation of this Circular.