Thông tư 08/2015/TT-NHNN

CIRCULAR

PROVIDING AMENDMENTS TO A NUMBER OF ARTICLES OF THE CIRCULAR No. 40/2011/TT-NHNN DATED DECEMBER 15^th , 2011 BY THE GOVERNOR OF THE STATE BANK PROVIDING FOR THE ISSUANCE OF LICENSE AND THE ORGANIZATION, OPERATION OF COMMERCIAL BANKS, FOREIGN BANK'S BRANCHES, REPRESENTATIVE OFFICES OF FOREIGN CREDIT INSTITUTIONS, OTHER FOREIGN ORGANIZATIONS HAVING BANKING ACTIVITIES IN VIETNAM

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

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

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

At the request of the Chief of Banking Inspection and Supervision,

The Governor of the State bank of Vietnam promulgates the Circular providing amendments to a number of articles of the Circular No. 40/2011/TT-NHNN dated December 15^th , 2011 by the Governor of the State bank providing for the issuance of license and the organization, operation of commercial banks, foreign bank's branches, representative offices of foreign credit institutions, other foreign organizations having banking activities in Vietnam.

Article 1. Amendments to a number of articles of the Circular No. 40/2011/TT-NHNN dated December 15th , 2011 by the Governor of the State bank providing for the issuance of license and the organization, operation of commercial banks, foreign bank's branches, representative offices of foreign credit institutions, other foreign organizations having banking activities in Vietnam:

1. Clause 4 Article 13 is amended as follows:

 “4. If the documents mentioned above are not certified true copies or copies made from the master register, the original copy shall be presented for comparison. Officials in charge of comparison shall countersign onto the copies and take responsibility for the accuracy of the copies in comparison with the original ones.”

2. Point (b) Clause 4 Article 14 is amended as follows:

 “b) Copies of the qualifications evidencing the professional level.”

3. Section 4 is added to Chapter II as follows:

 “Section 4: REGULATIONS ON REPLACEMENT OF LICENSE AND ADDITION OF ACTIVITIES TO THE LICENSE

Article 18a. Principles of replacement of license and addition of activities to the license

The replacement of the license and addition of activities to the license shall comply with the following principles:

1. The State Bank shall not grant the replacement of the activities that the commercial bank/branch of foreign bank must not perform as prescribed in the laws effect at the time of application for replacement; concurrently, the name of allowable activities shall be adjusted according to the regulations in the Law on credit institutions and Appendix 01a, 01b enclosed herewith. The new license replaces all the licenses and approvals (an integral part of the license) that the State Bank has granted to such commercial bank/branch of foreign banks before the time of replacement.

2. With regard to the trading and providing of foreign exchange service; trading of gold bullion; the trading and providing of derivative products regarding foreign exchange, currency and other financial products in domestic market and international market, the addition of activities to the License shall comply with the regulations of the State bank and other relevant law provisions.

3. The commercial bank and the branch of foreign bank may perform the activities specified in clause 21 Article 4 of the form in Appendix 01a and clause 20 Article 4 of the form in Appendix 01b after receiving the approval of the State Bank; procedures, conditions and application for addition of such activities to the License shall comply with the regulations of the State Bank and other relevant law provisions.

4. If a commercial bank or a branch of foreign bank apply for addition of activities to the License concurrently with replacement of the License, the State Bank will consider grant replacement of the License that contains the addition according to the application, suppose the application of commercial bank/branch of foreign bank conform with the regulations specified in Article 18c of this Circular.

Article 18b. Procedures for replacement of license and addition of activities to the license

1. Any commercial bank/branch of foreign bank wishing to have the License replaces or to have the addition of activities to the License shall make an application according to the regulations in Article 18c of this Circular and submit it by post or submit directly to the State Bank (via Bank Supervision and Inspection Agency)

2. Within 40 days from the day on which the satisfactory application is received, the State Bank shall grant the replacement of the License or grant the addition of activities to the License or grant the replacement of the License that contains the addition according to the application of the commercial bank/branch of foreign bank. If the application is rejected, the State Bank shall make a written response containing the explanation.

3. When the replacement of License or the addition of activities is granted by the State Bank, the commercial bank/the branch of foreign bank shall:

a) Follow the procedures regulated by the business registration agency for making changes to the License according to the law provisions;

b) Publish the changes of the License on media of communication of the State Bank and a daily newspaper on 03 consecutive issues or a Vietnamese online newspapers for 07 working days from the day on with the replacement of the License of the addition of activities to the License is granted;

c) The commercial bank shall make amendments to the Regulations according to the content of the License after the replacement/addition and shall register with the State Bank according to the provisions of clause 3 Article 27 of this Circular.

Article 18c. Application for replacement of license and addition of activities to the license

1. The application for the replacement of the License shall include:

a) An application form for replacement of the License signed by legal representatives of the commercial bank/branch of foreign bank including the specific activities that are added. Regarding wholly foreign-owned banks, the application shall include a commitment that the owner/foreign bank holding 50% charter capital of the wholly foreign-owned bank are permitted to carry such activities in the country where the head office of owner/foreign bank is located; Regarding branches of foreign banks, the application shall include a commitment that the parent bank is permitted to carry out such activities in the origin country;

b) A list of activities according to the current License, other written approval granted by the State Bank enclosed with the copies of such License and written approval.

2. The application for the addition of activities to the License shall include:

a) An application form for addition of activities to the License that is signed by legal representatives of the commercial bank/branch of foreign bank including the specification of the activities that are applied. Regarding wholly foreign-owned banks, the application shall include a commitment that the owner/foreign bank holding 50% charter capital of the wholly foreign-owned bank are permitted to carry out such activities in the country where the head office of owner/foreign bank is located; Regarding branches of foreign banks, the application shall include a commitment that the parent bank is permitted to carry out such activities in the origin country;

b) The resolution of the Executive Board of the commercial bank unanimous in adopting the application for addition of activities to the License; a writing issued by the parent bank signed by the legal representative approving of the addition of activities to the License (applicable to branches of foreign banks);

c) Particularly for the applications for addition of interest rate derivative activities, securities depository activities to the License, apart from the documents specified in points (a) and (b) of this clause, the commercial bank/branch of foreign bank shall formulate internal procedures including the risk management measures appropriate for specific activities that are to add to the License.

3. The application for the addition of activities to the License concurrent with the replacement of the License shall include:

a) An application form for the addition of activities to the License and replacement of the License that is signed by the legal representative of the commercial bank/branch of foreign bank and includes the contents specified in point (a) clause 1 and point (a) clause 2 of this Article;

b) The documents specified in points (b) and (c) clause 2 of this Article.”

4. Article 36 is amended as follows:

a) Point (a) clause 1 is amended as follows:

 “a) The Appraisal Board shall be decided by the State Bank and shall include: the Governor or a Deputy Governor (authorized by the Governor) as the Chairman, members who are Heads of units specified in clauses 2, 3, 4, 5, 6, 7, 8 and 10 of this Article;”

b) Points (g) and (h) are added to clause 2 as follows:

 “g) Act as leading agencies in receiving, appraising and submitting to the Governor of the State Bank the applications for the replacement of the License or the addition of activities to the License of the commercial bank/branch of foreign bank;

h) Enclose with the applications the documents about enquiry from relevant units in the State Bank about the application for the addition of activities to the License, applicable to the interest rate derivative activities and the securities depository activities.”

c) Clauses 10 and 11 is added to Article 36 as follows:

 “10. Department for foreign exchange management:

a) Within 30 days from the day on which the documents from the Bank Supervision and Inspection Agency is received, the Department for foreign exchange management shall conduct appraisal of the application for the License and send a writing to Bank Supervision and Inspection Agency;

b) State opinions about the issues relating to foreign exchange transactions of the commercial bank/branch of foreign bank.

11. Within 10 days from the day on which the document about the application for addition of activities to the License applicable to the interest rate derivative activities and the securities depository activities sent by the Bank Supervision and Inspection Agency is received, the relevant units affiliated to the State Bank shall issue a writing stating clearly the opinions and the viewpoint (agree or disagree with the application of the commercial bank/branch of foreign bank).”

Article 2. The Appendix 01 enclosed with the Circular No. 40/2011/TT-NHNN dated December 15^th , 2011 is replaced by the Appendix 01 enclosed herewith.

Article 3. Effect

1. This Circular comes into effect from August 13^th , 2015.

2. These following provisions are annulled by the effect of this Circular: Point 23.3 clauses 23 and 24 Section X of the Circular No. 03/2007/TT-NHNN dated June 05^th , 2007 by the Governor of the State Bank.

Article 4. Organization of implementation

Director of the Administrative Department, Chief of Banking Inspection and Supervision, Head of units affiliated to the State Bank of Vietnam, General Managers of State Bank’s branches in provinces, cities, Chairman of the Board of Directors, Chairman of the Board of Members, General Director (Director) of commercial bank, General Director (Director) of foreign bank's branches, Chief of representative offices of foreign credit institutions, other foreign organizations having banking activities shall be responsible for implementing this Circular.

APPENDIX 01A

FORM OF THE LICENSE FOR ESTABLISHMENT AND OPERATION OF COMMERCIAL BANK

LICENSE

FOR ESTABLISHMENT AND OPERATION OF (type of bank) BANK

GOVERNOR OF THE STATE BANK OF VIETNAM

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

Pursuant to the Law on Credit Institutions No. 47/2010/QH12 dated June 16^th , 2010;

Pursuant to the Decree No. 156/2013/NĐ-CP dated November 11^th , 2013 by the Government defining the functions, tasks, entitlements and organizational structure of the State Bank of Vietnam;

Pursuant to the Circular No. 40/2011/TT-NHNN dated December 15^th , 2011 providing for the issuance of license and the organization, operation of commercial banks, foreign bank's branches, representative offices of foreign credit institutions, other foreign organizations having banking activities in Vietnam and the Circular No. ……………………….. providing amendments to a number of articles of the Circular No. 40/2011/TT-NHNN;

In consideration of the application for the License for establishment and operation of ……………………(Commercial Bank/Joint-venture Bank, Wholly Foreign-owned Bank) and the enclosures (applicable to initial licensing)/ In consideration of the application for the replacement of License for establishment and operation of ……………………(Commercial Bank/Joint-venture Bank, Wholly Foreign-owned Bank) and the enclosures (applicable to the replacement);

On the basis of the meeting minutes of the Appraisal Board on the appraisal of the application for the License for establishment and operation of ……………Bank dated……………… (applicable to the initial licensing);

At the request of Chief of Banking Inspection and Supervision,

DECIDES:

Article 1. To license the establishment of ……………………(Commercial Bank/Joint-venture Bank, Wholly Foreign-owned Bank) as follows: (applicable to initial licensing)/ to replace the License for establishment and operation No. ……………….. dated ………………… for ……………………………… Bank as follows: (applicable to the replacement);

1. Bank name:

- Full name in Vietnamese:………………;

- Full name in English:………………;

- Business name (or abbreviated name):…………………

2. Head office’s address:………………………

Article 2. Charter capital of ………. Bank is VND … (in words:…………..…).

Article 3. The operation period of ……… Bank is ……….years (applicable to the initial licensing)/ The operation period of ……… Bank is ……….years (the operation period prescribed in the former License granted by the State Bank) from…………… (the effective day of the former License granted by the State Bank) (applicable to the replacement of the License)

Article 4. Activities

…………………Bank is allowed to perform the operations of commercial banks according to the law provisions and the regulations issued by the State Bank of Vietnam including the following activities:

1. Receive demand deposits, term deposits, saving deposits and other types of deposits.

2. Extend credit in the following forms:

a) Loans;

b) Discounts, rediscounts of negotiable instruments and other valuable papers;

c) Bank guarantees;

d) Issuance of credit cards;

dd) Domestic factoring;

3. Open payment accounts for customers.

4. Provide domestic payment services:

a. Provide payment facilities;

b. Provide payment services via cheques, payment order, collection order, bank cards, letter of credit, bank transfer, payment authorization;

5. Open accounts:

a) Open accounts at the State Bank of Vietnam;

b) Open accounts at other credit institutions/branches of foreign banks.

6. Organize internal payment systems, participate in the national inter-bank payment system.

7. Provide services like cash management, banking and financial consultancy, asset management and preservation, and safe keeping.

8. Provide consultancy of corporate finance, business acquisition, sale, consolidation and merger and investment.

9. Bid, sell and purchase of treasury bills, negotiable instruments, government bonds, treasury bills, state bank bills and other valuable papers in the monetary market.

10. Sell and purchase of government bonds, corporate bonds.

11. Provide monetary brokerage services.

12. Issue certificates of deposit, exchange bills, treasury bills and bonds to raise capital according to the provisions of the Law on credit institutions, the Law on Securities and regulations on the Government and the guidelines of the State Bank of Vietnam.

13. Borrow loans from the State Bank in the form of refinancing according to the regulations in the Law on the State Bank of Vietnam and the guidelines of the State Bank of Vietnam.

14. Borrow, lend, deposit money from Vietnamese and foreign credit institutions, branches of foreign banks, financial institutions according to the law provisions and the guidelines of the State Bank of Vietnam.

15. Contribute capital or purchase shares according to the provisions of law and the guidelines of the State Bank of Vietnam.

16. Entrust, undertake entrustment or act as agents in sectors relating to banking operations, insurance business and asset management according to the law provisions and the guidelines of the State Bank of Vietnam.

17. Trade, provide foreign exchange services in Vietnamese market and international market in a scope regulated by the State Bank of Vietnam.

18. Trade, provide derivative products regarding exchange rates, interest rates, foreign exchange, currency and other financial products in Vietnamese market and international market.

19. Securities depository.

20. Deal in gold bullion.

21. Other activities (approved by the State Bank).

Article 5. During the operation, ………………Bank shall comply with the Vietnam’s law.

Article 6. This License comes into effect from the day on which it is signed (applicable to the initial licensing)/ This License comes into effect from the day on which it is signed and replaces the License for establishment and operation of bank No. …………………. dated……………., enclosed with the written approval relating to the amendments to the License (applicable for the replacement).

Article 7. The License for establishment and operation of ……………..Bank is made in (05) copies: one (01) copy is granted to the ………………….. Bank/………………..Bank, Branch in…………………..; one (01) copy is used for business registration; three (03) copies are retained at the State Bank of Vietnam (one copy is retained at the office of the State Bank of Vietnam, one copy is retained at State Bank branch in ………………. province/city, one copy is retained in the application for the License for the establishment and operation of…………….Bank/application for replacement of the License for the establishment and operation of ……………Bank).

APPENDIX 01B

FORM OF ESTABLISHMENT OF BRANCHES OF FOREIGN BANKS

LICENSE

FOR ESTABLISHMENT OF BRANCHES OF FOREIGN BANKS

GOVERNOR OF THE STATE BANK OF VIETNAM

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

Pursuant to the Law on Credit Institutions No. 47/2010/QH12 dated June 16^th , 2010;

Pursuant to the Decree No. 156/2013/NĐ-CP dated November 11^th , 2013 by the Government defining the functions, tasks, entitlements and organizational structure of the State Bank of Vietnam;

Pursuant to the Circular No. 40/2011/TT-NHNN dated December 15^th , 2011 providing for the issuance of license and the organization, operation of commercial banks, foreign bank's branches, representative offices of foreign credit institutions, other foreign organizations having banking activities in Vietnam and the Circular No. ……………………….. providing amendments to a number of articles of the Circular No. 40/2011/TT-NHNN;

In consideration of the application for the License for establishment of the foreign bank’s branch of……………………Bank and the enclosures (applicable to initial License)/ In consideration of the application for the replacement of License for establishment of foreign bank’s branch of ……………………Bank and the enclosures (applicable to the replacement);

Pursuant to the Meeting minutes of the Appraisal Board on the appraisal of the application for the License for establishment of a foreign bank's branch of ………………….Bank dated (applicable to the initial licensing);

At the request of the Chief of Banking Inspection and Supervision,

DECIDES:

Article 1. License............................Bank, nationality………………. whose head office’s address is at…………………….to establish a branch in………….., the Socialist Republic of Vietnam as follows (applicable to the initial licensing)/ Replace the License for establishment of foreign bank’s branch No. ……………….. dated ………………… for ………………… Bank as follows: (applicable to replacement of license):

1. Branch name:

- Full name in Vietnamese:……………..;

- Full name in English:………………;

- Business name (or abbreviated name):…………………

2. Head office’s address:………………………

Article 2. Appropriated capital of …………………… Bank – branch in…..…is VND … (in words).

Article 3. The operation period of ……… Bank is ……….years (applicable to the initial licensing)/ The operation period of ……… Bank - Branch in...............is ……….years (the operation period prescribed in the former License granted by the State Bank) from…………… (the effective day of the former License granted by the State Bank) (applicable to the replacement of the License)

Article 4. Activities

……………….Bank – Branch in………………is allowed to perform the operations of commercial banks according to the law provisions and the regulations issued by the State Bank of Vietnam including the following activities:

1. Receive demand deposits, term deposits, saving deposits and other types of deposits.

2. Extend credit in the following forms:

a) Loans;

b) Discounts, rediscounts of negotiable instruments and other valuable papers;

c) Bank guarantees;

d) Issuance of credit cards;

dd) Domestic factoring;

3. Open payment accounts for customers.

4. Provide domestic payment services:

a. Provide payment facilities;

b. Provide payment services via cheques, payment order, collection order, bank cards, letter of credit, bank transfer, payment authorization;

5. Open accounts:

a) Open accounts at the State Bank of Vietnam;

b) Open accounts at other credit institutions/branches of foreign banks.

6. Organize internal payment systems, participate in the national inter-bank payment system.

7. Provide services like cash management, banking and financial consultancy, asset management and preservation, and safe keeping.

8. Provide consultancy of corporate finance, business acquisition, sale, consolidation and merger and investment.

9. Bid, sell and purchase of treasury bills, negotiable instruments, government bonds, treasury bills, state bank bills and other valuable papers in the monetary market.

10. Sell and purchase of government bonds, corporate bonds.

11. Provide monetary brokerage services.

12. Issue certificates of deposit, exchange bills, treasury bills and bonds to raise capital according to the provisions of the Law on credit institutions, the Law on Securities and regulations on the Government and the guidelines of the State Bank of Vietnam.

13. Borrow loans from the State Bank in the form of refinancing according to the regulations in the Law on the State Bank of Vietnam and the guidelines of the State Bank of Vietnam.

14. Borrow, lend, deposit money from Vietnamese and foreign credit institutions, branches of foreign banks, financial institutions according to the law provisions and the guidelines of the State Bank of Vietnam.

15. Entrust, undertake entrustment or act as agents in sectors relating to banking operations, insurance business and asset management according to the law provisions and the guidelines of the State Bank of Vietnam.

16. Trade, provide foreign exchange services in Vietnamese market and international market in a scope regulated by the State Bank of Vietnam.

17. Trade, provide derivative products regarding exchange rates, interest rates, foreign exchange, currency and other financial products in Vietnamese market and international market.

18. Securities depository.

19. Deal in gold bullion.

20. Other activities (approved by the State Bank).

Article 5. During the operation, ………………Bank – Branch in……………….. shall comply with the Vietnam’s law.

Article 6. This License comes into effect from the day on which it is signed (applicable to the initial licensing)/ This License comes into effect from the day on which it is signed and replaces the License for establishment of branches of foreign banks No. …………………. dated……………., enclosed with the written approval relating to the amendments to the License (applicable for the replacement).

Article 7. The License for establishment of ……………..Bank – Branch in……………….is made in (05) copies: one (01) copy is granted to ………………..Bank - Branch in…………………..; one (01) copy is used for business registration; three (03) copies are retained at the State Bank of Vietnam (one copy is retained at the office of the State Bank of Vietnam, one copy is retained at State Bank branch in ………………., one copy is retained in the application for the License for the establishment of…………….Bank – Branch in…………………/application for replacement of the License for the establishment of ……………Bank – Branch in…………..).

APPENDIX 01C

FORM OF LICENSE FOR ESTABLISHMENT OF REPRESENTATIVE OFFICE

LICENSE

FOR ESTABLISHMENT OF REPRESENTATIVE OFFICES

GOVERNOR OF THE STATE BANK OF VIETNAM

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

Pursuant to the Law on Credit Institutions No. 47/2010/QH12 dated June 16th , 2010;

Pursuant to the Decree No. 156/2013/NĐ-CP dated November 11th , 2013 by the Government defining the functions, tasks, entitlements and organizational structure of the State Bank of Vietnam;

Pursuant to the Circular No. 40/2011/TT-NHNN dated December 15th , 2011 providing for the issuance of license and the organization, operation of commercial banks, foreign bank's branches, representative offices of foreign credit institutions, other foreign organizations having banking activities in Vietnam and the Circular No. ……………………….. providing amendments to a number of articles of the Circular No. 40/2011/TT-NHNN;

In consideration of the application for the License for establishment of representative office of … (name of the foreign credit institution, other foreign organization having banking activities) and the enclosed documents;

At the request of the Chief of Banking Inspection and Supervision,

DECIDES:

Article 1. License ………………(name of the foreign credit institution, other foreign organization having banking activities), nationality …, whose head office is at ……….(name of city, country) to establish a representative office in (province, city under the central Government's management), Vietnam as follows:

1. Name of representative offices:

- Full name in Vietnamese:………………;

- Full name in English:………………;

2. Address of the representative office:

Article 2. Operation period:

Article 4. Operation content:

The operations….(list the applied operations and approved operations accordingly as specified in Article 125 of the Law on credit institutions);

Article 5. During the operation process, ………………..representative office (name of foreign credit institution, other foreign organization having banking activities) - …(name of cities, provinces under central management) shall comply with Vietnam’s laws.

Article 6. This License comes into effective from the day it is signed.

Article 7. The License for establishment of the representative office of….… (name of foreign credit institutions, other organizations conducting banking activities) - … (name of provinces, cities under central management) is made into five (05) copies: one copy is issued to … (name of foreign credit institution, other foreign organization having banking activities); one copy is used for operation registration; three (03) copies are retained at the State Bank of Vietnam (one copy is retained at the office of the State Bank of Vietnam, one copy is retained at State Bank branch in provinces/cities …, one copy is retained in the application file for issuance of the establishment license for representative office … (name of foreign credit institution, other foreign organization having banking activities) - … (name of province, city under central Government's management).