Thông tư 39/2015/TT-NHNN

CIRCULAR

PROVIDING FOR OPENING AND USE OF SECURITIES ISSUING ACCOUNT IN FOREIGN CURRENCY FOR CARRYING OUT THE ISSUANCE OF SECURITIES IN A FOREIGN COUNTRY OF RESIDENT SECURITIES ISSUER

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

Pursuant to the Law on credit institutions No. 47/2010/QH12 dated June 6, 2010;

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

Pursuant to the Government’s Decree No. 70/2014/ND-CP dated July 17, 2014 providing in detailed for implementing a number of articles of the Ordinance on foreign exchange control and its amendment and supplementation Ordinance;

Pursuant to the Government’s Decree No.156/2013/ND-CP dated November 11, 2013 defining functions, tasks, powers and apparatus of the State Bank of Vietnam;

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

The Governor of the State Bank of Vietnam promulgates this Circular providing for opening and use of securities issuing account in foreign currency for carrying out the issuance of securities in a foreign country of resident issuer. 

Article 1. Scope of adjustment

1. This Circular provides for the opening and use of securities issuing account in foreign currency for conducting collection and payment transactions concerning the issuance of securities in a foreign country under the forms of issuance of stocks, investment fund certificates and other types of securities of resident issuer in accordance with the securities law.

2. This Circular excludes the opening and use of account concerning the enterprise’s issuance of international bonds under or outside the Government’s guarantee and government bonds issued on the international markets.

Article 2. Regulated entities

1. Issuers that are allowed to issue securities in foreign currency in foreign countries by the competent authorities of Vietnam in accordance with the law.

2. Other organizations or individuals related to the opening and use of securities issuing account in foreign currency of the issuers.

Article 3. Interpretation of terms

In this Circular, these terms can be construed as follows:

1. “The issuer” is a resident organization who is allowed to issue securities in foreign currency in a foreign country.

2. “Licensed credit institutions” include commercial banks, branches of foreign banks which are allowed to trade and supply foreign exchange services.

3. “Securities issuing account in foreign currency” is a payment account in foreign currency which is opened by an issuer at a licensed credit institution in Vietnam for conducting collection and payment transactions concerning the issuance of securities in foreign currency in a foreign country.

4. “Issuance of securities in foreign currency in a foreign country” is the process of offering securities in a foreign country under forms of issuance of stocks, investment fund certificates and other types of securities in foreign currency in a foreign country in accordance with the securities law.

Article 4. Issuance of convertible bond

If the issuer makes a conversion of international bonds into shares in accordance with the securities law and relevant laws, it shall, with 05 (five) working days as of the date on which the said conversion is completed, open a securities issuing account in foreign currency as stipulated in this Circular for conducting collection and payment transactions concerning the issuer’s liabilities over the value of converted shares.

Article 5. Principle of opening of a securities issuing account in foreign currency

1. The issuer must open 01 (one) securities issuing account in foreign currency at 01 (one) licensed credit institution before each offering of securities in foreign currency in a foreign country is registered.

2. If the issuer is a licensed credit institution, the securities issuing account in foreign currency shall be opened whether at its own place or at another licensed credit institution.

Article 6. Opening and closing of a securities issuing account in foreign currency

1. Before the issuer sends application for every registration of offering its securities in a foreign country to the State Securities Committee of Vietnam, it must open a securities issuing account in foreign currency at the licensed credit institution who is allowed to trade and supply foreign exchange services for fulfilling collection and payment contents as stipulated at Article 7 of this Circular.

2. In case of change of the licensed credit institution where the securities issuing account in foreign currency is opened, the issuer must close the opened account and transfer total balance of this account into a new securities issuing account which is opened at another licensed credit institution.

3. Procedures for opening and closing of a securities issuing account in foreign currency are executed in accordance with regulations of the State Bank of Vietnam (hereinafter referred to as the State Bank) on opening and use of payment accounts at payment service providers.

Article 7. Use of a securities issuing account in foreign currency

The securities issuing account in foreign currency is used for conducting the following collection and payment transactions in foreign currency:

1. Collection:

a) Foreign currency is collected from issuance of securities in a foreign country;

b) Both foreign currency is purchased from the licensed credit institutions and transferred from other payment account in foreign currency of the issuer for conducting payment transactions as stipulated at Point c, d, D Clause 2 of this Article;

c) Collection transactions are made for other legal transfers concerning the issuance of securities in a foreign country.

2. Payment:

a) Foreign currency is sold to the licensed credit institutions;

b) The issuer makes transfers to its payment account in foreign currency which is opened at a licensed credit institution for effectuating the method of use of mobilized capital from offering of securities in a foreign country;

c) Payments are made for paying dividends to foreign shareholders and fulfilling the issuer’s liabilities in the home country.

d) The issuer makes payments for buying back its own securities issued in a foreign country in accordance with the securities law of Vietnam and that of the home country.

D) Payments are made for paying expenses concerning the issuance of securities in a foreign country.

Article 8. Responsibilities of the issuer

1. Open, close and use the securities issuing account in foreign currency in compliance with this Circular and relevant legislative documents.

2. Honestly and fully declare contents of collection and payment conducted by its securities issuing account in foreign currency; Provide with documents and documentary evidence concerning the opening and use of its securities issuing account in foreign currency at the request and guidance of the licensed credit institution.

Article 9. Responsibilities of the licensed credit institution

1. Open, close and use the securities issuing account in foreign currency in compliance with this Circular and relevant legislative documents.

2. Check and keep all documents and documentary evidence concerning collection and payment transactions conducted by the issuer’s securities issuing account in foreign currency in order that the provision of foreign exchange services is carried out for legitimate purposes and in conformity with the laws.

3. Comply with report policies as stipulated at Article 10 of this Circular.

Article 10. Report policies

1. The licensed credit institution where the issuer’s securities issuing account in foreign currency is opened or closed shall send a written report to the State Bank (Foreign Exchange Management Department) on the opening and closing situation of securities issuing account (according to forms specified at Annex No. 01 enclosed to this Circular) ahead of the 12^th of the month next to the month on which the securities issuing account in foreign currency is opened or closed.

2. Monthly (on the 12^th of the following month at the latest), the licensed credit institution shall send a written report to the State Bank (Foreign Exchange Management Department) on the collection and payment situation conducted by the issuer’s securities issuing account in foreign currency (according to forms specified at Annex No. 02 enclosed to this Circular).

3. The licensed credit institution may make reports on opening and using situation of securities issuing account in foreign currency at the request of the State Bank in case of need.

Article 11. Inspection and supervision

The State Bank and branches of the State Bank located at provinces and cities directly under the Central Government shall, upon their competence, inspect and supervise the licensed credit institutions in their compliance with this Circular.

Article 12. Implementation

1. This Circular shall take effect as of March 01, 2016.

2. The Chief of Office, the Director of the Foreign Exchange Management Department, Heads of relevant units affiliated to the State Bank, Directors of branches of the State Bank located at provinces and central-affiliated cities, Presidents of the Board of Directors, Presidents of the Member Boards, and General Directors (Directors) of credit institutions and branches of foreign banks shall implement this Circular./.