Nghị định 42/2015/ND-CP

Decree No. 42/2015/ND-CP dated May 5, 2015, derivative securities and derivative securities market

Nội dung toàn văn Decree No. 42/2015/ND-CP derivative securities and derivative securities market


THE GOVERNMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 42/2015/NĐ-CP

Hanoi, May 5, 2015

 

DECREE

DERIVATIVE SECURITIES AND DERIVATIVE SECURITIES MARKET

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law on Enterprise dated November 26, 2014;

Pursuant to the Law on Securities dated June 29, 2006; the Law on Amending and Supplementing several articles of the Law on Securities dated November 24, 2010;

After considering the request of the Minister of Finance,

The Government hereby promulgates the Decree on derivative securities and derivative securities market.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application

This Decree provides regulations on derivative securities and derivative securities market.

Article 2. Applicable entities

1. Vietnamese and foreign organizations or individuals investing in derivative securities and operating on the derivative securities market in Vietnam.

2. Other Vietnamese and foreign organizations or individuals involved in investments in derivative securities and the derivative securities market in Vietnam.

Article 3. Interpretation of terms

In this Decree, terms used herein shall be construed as follows:

1. Derivative security refers to the securities stipulated by the Law on Securities and the Law on Amending, Supplementing several articles of the Law on Securities (sometimes shortly called derivative), including:

a) Futures contract refers to the listed derivative security whereby the mutual arrangement is made between parties to carry out one of the following transactions:

- Buying or selling a certain amount of underlying assets at the agreed-upon price on a predetermined future date; or

- Paying the difference between the value of the underlying asset defined on the start date of the contract and the value of the underlying asset defined on the predetermined future date.

b) Option refers to the derivative security which establishes the buyer’s rights and the seller’s obligations to carry out one of the following transactions:

- Buying or selling a certain amount of underlying assets at the specified exercise price before or on a predetermined future date; or paying the difference between the value of the underlying asset defined on the start date of the contract and the value of the underlying asset defined before or on a predetermined future date; or

- Buying or selling a certain amount of futures contracts at a specific exercise price before or on a predetermined future date.

c) Forward contract refers to the derivative security whereby the transaction is negotiated or the arrangement is made to buy or sell a certain amount of underlying assets at a stated price on a predetermined future date.

d) Other derivative securities governed under the instructions of the Ministry of Finance.

2. Underlying asset refers to the security and other asset used as a basis for determining the value of derivative securities.

3. Derivative securities exchange market (hereinafter referred to as derivative securities market) refers to the venue or form of exchanging information to collect orders to buy, sell and exchange derivative securities, or to settle or clear derivative securities transactions.

4. Derivative investment refers to the purchase or sale of listed derivative securities or the contractual agreement to trade derivative securities contracts in the derivative securities market.

5. Trading of derivative securities refers to the conduct of one, several or all of the following operation(s):

a) Derivative securities brokerage.

b) Derivative securities proprietary trading.

c) Derivative securities consultancy.

6. Derivative securities trading organization refers to the organization carrying out one or several derivative securities trading operation(s).

7. Position of a derivative security within a specific time period refers to the trading status and volume of unexpired derivative securities that investors are holding till that period. When an investor buys or sells a derivative security, (s)he is said to be opening a long or short position.

8. Open position in a derivative security means that an investor is holding derivative securities which are still available to be traded, and have not been settled or cleared.

9. Net position in a derivative security within a specific time period is determined by the difference between open long and open short positions in that derivative security within that period.

10. Position limit for a derivative security refers to the maximum net position in that derivative security, or in that derivative security and others on the basis of the same underlying asset that an investor has the right to hold in a given period.

11. Limit to orders to trade a derivative security refers to the maximum amount of derivative securities to be traded by placing an order.

12. Limit on orders to accumulate a derivative security refers to the maximum amount of derivative securities defined in pending orders which may be placed from a securities trading account.

13. Derivative securities trading member (hereinafter referred to as trading member) refers to a member of the Stock Exchange licensed to practise derivative securities proprietary trading operations and render brokerage service.

14. Special trading member refers to a commercial bank and a member of the Stock Exchange licensed to make its investment in government bond derivative securities.

15. Market-making member refers to a trading member or a special trading member licensed to execute the market-making operations for one or several derivative(s).

16. Clearing member refers to a securities company, commercial bank or foreign bank branch licensed to make clearing and settlement for derivative securities transactions.

17. Joint clearing member refers to a clearing member licensed to implement the clearing and settlement for their derivative transactions, securities trades performed by their brokerage customers, and provide the derivative clearing and settlement service for non-clearing members and customers of such non-clearing members.

18. Direct clearing member refers to a clearing member only licensed to implement the clearing and settlement for their own derivative transactions and securities trades performed by their brokerage customers.

19. Non-clearing member refers to any trading member which is not entitled to be a clearing member.

20. Contract for clearing and settlement entrustment refers to the binding contract under which a clearing member entrusts a joint clearing member to perform fiduciary duties to implement the clearing and settlement for their own securities transactions or securities trades performed by their customers.

21. Clearing fund refers to the fund derived from clearing members' contributions to serve the purpose of paying reimbursement and completing derivative securities transactions on which names of clearing members are signed in the event that non-clearing members or investors are incapable of fulfilling their obligations to make payments.

Chapter II

DERIVATIVE SECURITIES TRADING ORGANIZATION

Article 4. Conditions for trading or rendering of derivative clearing and settlement service

1. In order to trade derivative securities, a securities trading organization must be issued the Certificate of competence in trading derivative securities by the State Securities Commission. Conditions for issuance of the Certificate of competence in trading derivative securities shall include:

a) The applicant for this Certificate must be the securities trading organization sufficiently licensed to perform the practice of derivative securities transactions under the provision of the Law on Securities.

b) The applicant must fulfill the following financial requirements:

- With regard to derivative proprietary trading operations, the applicant must be a securities company with its charter capital or owner’s equity that equals six hundred (600) billion dongs or more;

- With regard to derivative brokerage operations, the applicant must be a securities company that has its charter capital or owner’s equity equal to more than eight hundred (800) billion dongs, and carries out derivative proprietary trading operations;

- With regard to derivative consultancy services, the applicant must be a securities organization with its owner’s equity or charter capital which is not less than the authorized capital in accordance with regulations laid down in the law on securities;

- If derivative securities consultancy, brokerage and proprietary trading are included in the business registration, the charter capital or the owner’s equity of a securities company must equal to at least eight hundred (800) billion dongs or more.

c) The applicant must conform to requirements of the operating outcome, working capital ratio and professional procedure under the instructions of the Ministry of Finance. The Director or Director General, or the Deputy Director or the Deputy Director General in charge of derivative securities trade, and a minimum of five (05) officers carrying out each derivative securities trading to be registered must hold the securities practicing certificate and the professional certificate in derivatives and derivative securities market.

d) The applicant is not subject to any acquisition, merger or dissolution, or any supervision, special control, operational suspension or temporary cessation under the decision granted by competent authorities.

2. In order to provide the clearing and settlement service for derivative securities transactions, a securities company, commercial bank and foreign bank branch must be issued the Certificate of competence in providing clearing and settlement services for derivative securities transactions by the State Securities Commission. Conditions for issuance of the Certificate of competence in providing clearing and settlement services for derivative securities transactions shall include:

a) The applicant must be a depository member of the Vietnam Security Depository.

b) The applicant must be the commercial bank and foreign bank branch obtaining the written consent to their providing clearing and settlement services for derivative securities transactions by the State Bank; or the securities company issued the Certificate of competence in carrying out derivatives brokerage operations.

c) The applicant must fulfill the following financial requirements:

- As a direct clearing member, the commercial bank must have its charter capital or owner’s equity that equals five thousand (5,000) billion dongs or more; or the securities company must have its charter capital or owner's equity that equals nine hundred (900) billion dongs or more;

- As a joint clearing member, the commercial bank must have its charter capital or owner’s equity that equals seven thousand (7,000) billion dongs or more; or the securities company must have its charter capital or owner's equity that one thousand and two hundred (1,200) billion dongs or more.

d) The applicant must meet requirements of the operating outcome, working capital ratio (applicable to securities companies) or capital adequacy ratio, financing for branches (applicable to commercial banks, foreign bank branches) and professional procedures for clearing and settlement operations for derivative securities transactions under the instructions of the Ministry of Finance.

dd) The applicant must meet regulations laid down in Point d Clause 1 of this Article.

3. The Ministry of Finance shall provide guidance on documentation submitted to apply, process and procedure for issuance of the Certificate of competence in trading and rendering the clearing and settlement service for derivative securities transactions.

Article 5. Suspension or termination of derivative securities trading, or supply of derivative clearing and settlement service

1. The State Securities Commission shall make its decision on the suspension of one or several derivatives trade(s) within a maximum duration of twelve (12) months under the following circumstances:

a) Documentation submitted to apply for issuance of the Certificate of competence in trading derivative securities may be composed of counterfeit materials or those containing misleading information.

b) Trading operations serve the wrong purpose, and are not consistent with those defined in the Certificate.

c) Derivatives trading operations fail to follow one or several regulation(s) laid down in Point a, b, c Clause 1 Article 4 hereof within six (06) consecutive months.

d) Derivatives trading operations are subject to the operational supervision, special control and other operational suspension as stipulated in Clause 1 Article 70 of the Law on Securities.

2. A securities organization shall be subjected to the revocation of its Certificate of competence in trading derivative securities under the following circumstances:

a) They are voluntarily terminating their operations.

b) They are compulsorily terminating their operations.

3. The derivative securities trading organization that voluntarily terminates its derivative securities trading shall be obliged to submit their application to obtain the written permission to terminate its operations from the State Securities Commission prior to the commencement of such termination.

4. The derivative securities trading organization shall compulsorily terminates its derivative securities trading under the following circumstances:

a) After the suspension of derivative securities trading operations comes to an end, they keep failing to take remedial actions against violations leading to such termination.

b) They are subjected to dissolution, bankruptcy or temporary suspension or revocation of the Certificate of establishment and operation; or splitting or division after which the newly-founded organization has failed to meet one of business requirements stipulated in Clause 1 Article 4 hereof.

5. Within a maximum duration of 24 hours from receipt of the decision on operational suspension, consent to operational termination or request for operational termination, the securities trading organization shall be responsible for publicly providing information about such suspension or termination of derivative securities trading operations. Within the effective duration of operational suspension or termination, the securities trading organization shall assume the following responsibilities:

a) Send periodic reports or those requested by the State Securities Commission, and disseminate information on their current status and related operations; terminate all derivative securities operations, except for circumstances stipulated in Point b, c, d of this Clause.

b) Transfer a margin and an open position of the investor to the derivative securities trading organization as a replacement as requested by investors; perform transactions to liquidate or close a position as requested by investors.

c) Liquidate or close a position on a proprietary trading or market-making account (whenever available), and ensure the priority in performing other investors' transactions over their own position-closing transactions.

d) Carry out other operations as requested by the State Securities Commission.

6. The Ministry of Finance shall provide guidance on documentation submitted to apply, process and procedure for suspension, revocation or termination of derivatives trading operations, or revocation of the Certificate of competence in trading derivative securities; provide instructions on suspension or termination of the clearing and settlement service for derivative securities transactions, or revocation of the Certificate of competence in providing the clearing and settlement service.

Chapter III

DERIVATIVE SECURITIES MARKET

Section 1. DERIVATIVE SECURITIES

Article 6. Derivative securities traded on the derivative securities market

1. Derivative securities traded on the derivative securities market shall comprise:

a) Futures contracts.

b) Listed options.

c) Forward contracts based on the underlying securities traded on the Stock Exchange.

d) Other listed derivative securities or put-through derivative securities based on the underlying securities traded on the Stock Exchange.

2. Derivative securities traded on the derivative securities market must provide the following information:

a) Information about the underlying asset such as name, code and other relevant information.

b) Information about the derivative security including the extent of the contract; trading method; position limit; trading deadline, maturity month, last settlement date, last trading date, listing date, mode of payment; price step, quotation unit, price band; method of determining end-of-day price, reference price, settlement price and margin level.

c) With regard to options, additional information about types of options (call or put), styles of options (European or American style), strike price and exercise date must be provided.

3. The Ministry of Finance shall provide guidance on the listing and trading of derivative securities based on underlying securities.

4. Depending on the demand and conditions for the market growth and upon the request of the Minister of Finance, the Prime Minister shall consider making a decision to list derivative securities based on underlying assets which are non-securities.

Section 7. Delisting of derivative securities

1. The Stock Exchange will decide to delist derivative securities under the following circumstances:

a) Such derivative securities have reached the final maturity date.

b) The underlying of such derivative securities has been delisted or has not been used as the underlying asset, and affected by other circumstances stipulated by the charter and guidelines for operations of the Stock Exchange.

c) Delisting is requested by the issuing organization.

2. The delisting of derivative securities as stipulated in Point b, c Clause 1 of this Article should be approved by the State Securities Commission.

Article 8. Provision on derivative securities investment

1. Organizations or individuals shall be permitted to freely invest in derivative securities traded on the exchange market, except for specific conditional investments as follows:

a) Securities companies shall be permitted to invest in derivative securities only after they have been issued the Certificate of competence in the proprietary trading of derivative securities.

b) Fund management companies shall be permitted to invest trusted funds or capital sources of the investment fund or the securities investment company in derivative securities on condition that the investment portfolio management contract, or the charter of the investment fund or the investment company contain provisions to allow the use of the abovementioned capital to invest in derivative securities; the fund management company shall not be permitted to invest its assets including loans and other legally-mobilized capital sources in derivative securities.

c) Credit institutions, or foreign bank branches, shall be entitled to invest in derivative securities only after obtaining the written approval from the State Bank.

d) Insurance companies, or foreign insurance agents, shall be permitted to invest in derivative securities only after obtaining the written approval under the provisions of the law on insurance business.

dd) State-owned economic corporations, state-owned general companies, state-owned enterprises, or those of which the whole capital is owned by state-owned enterprises, shall be permitted to invest in derivative securities only after obtaining permission from competent authorities or the owner under the provisions of the law on management and use of state-owned capital for these enterprises' business operations.

2. In the course of investing in or trading derivative securities, organizations or individuals shall be solely responsible for risks and comply with legal regulations, and avoid committing prohibited acts under the provisions of Article 9 enshrined in the Law on Securities.

3. Investing in and trading listed derivative securities must meet the regulations laid down in this Decree. In terms of unlisted derivative securities stipulated in Clause 1 Article 6 hereof, before and after entering into and executing the contract, investors are obliged to send a written notification to the Vietnam Securities Depository. Transacting, clearing, settling and implementing the contract for derivative securities shall be agreed upon between contractual trading parties and conform to relevant legal regulations. The regulations laid down herein shall govern the circumstance under which the Stock Exchange, or the Vietnam Securities Depository, manages trading, clearing and settlement of unlisted derivative securities.

Section 2. ORGANIZATION OF DERIVATIVE SECURITIES TRADING

Article 9. Organization of derivative securities trading activities

1. The Stock Exchange shall be entitled to organize derivative securities trading activities. Apart from the Stock Exchange, none of organizations or individuals shall be authorized to organize the activities of listed derivative securities as stipulated in Clause 1 Article 6 hereof.

2. The Stock Exchange shall assume its responsibility to organize, manage operations of the derivative securities market as stipulated by the Law on Securities, this Decree, relevant legal documents as well as rules and regulations adopted by the Stock Exchange.

Article 10. Rights of the Stock Exchange to derivative securities trading activities

1. Conduct the product design, listing and organization of trading activities for derivative securities as stipulated in Clause 1 Article 6 hereof, and introduce professional practices after obtaining the consent from the State Securities Commission.

2. Agree to the registration, refuse the registration, or suspend or withhold the trading, special trading or market trading membership in conformity with the charter and guidelines for operations of the Stock Exchange or as requested by the State Securities Commission.

The trading member subjected to the suspension or withholding of its membership shall be obliged to agree and decide on the substitute trading member. In case of failure to do so, the Stock Exchange shall exercise its rights to appoint the substitute to receive rights and obligations transferred from that trading member. The trading member subjected to the suspension or withholding of its membership shall be obligated to provide all necessary information about investors for the substitute trading member and continue to fulfill all of its obligations until the transfer of rights and obligations to the substitute trading member is completed.

3. Request the Vietnam Securities Depository to provide a sufficient amount of necessary information on the timely basis in order to perform their tasks of monitoring and organizing the market of derivative securities trades in accordance with laws.

4. Exercise other rights under the provisions of Article 37 enshrined in the Law on Securities and other relevant legal regulations.

Article 11. Obligations of the Stock Exchange arising from derivative securities trading activities

1. Ensure that information technology and technical infrastructural systems are relevant to market operations; organize market-related and supervisory activities and publicize information about derivative securities trading activities in accordance with legal regulations.

2. Examine and supervise the maintenance of operational conditions, the compliance of trading, special trading and market-making members with the charter and guidelines for operations of the Stock Exchange and relevant legal regulations; promptly send a comprehensive and accurate report on market-related operations and members’ activities to the State Securities Commission in accordance with applicable regulations, or upon request, or whenever violations are discovered.

3. Collaborate with the Vietnam Securities Depository to ensure the safety and efficiency of trading activities on the market, clearing and settlement operations as stipulated in this Decree and other relevant legal documents.

4. Fulfill other obligations under the provisions of Article 38 enshrined in the Law on Securities and other relevant legal regulations.

Article 12. Derivative securities trading

1. The Stock Exchange shall be entitled to organize derivative securities trading activities as stipulated in Clause 1 Article 6 hereof by employing the trading methods like matching and put-through.

2. The trading of listed derivative securities shall be carried out by trading members and Stock Exchanges. The clearing and settlement of listed derivatives trades shall be carried out by clearing members and the Vietnam Securities Depository.

3. The Ministry of Finance shall provide instructions on investors’ trading of derivative securities.

Article 13. Market stabilization methods

1. The Stock Exchange shall be allowed to apply one or several following measures to stabilize the market and protect investors:

a) Change the number of trading sessions, or trading time.

b) Apply or adjust the limit on trading orders or the limit on accumulation orders.

c) Limit the opening of a new position.

d) Stop or cancel trading orders.

2. Market stabilization methods applied by the Stock Exchange in Clause 1 of this Article must be included in the instructions given in the charter and guidelines for operations of the Stock Exchange after being approved by the State Securities Commission.

Section 3. TRADING AND SPECIAL TRADING MEMBERS

Article 14. Registration of trading, special trading and market-making members

1. Securities companies registered as trading members on the Stock Exchange must meet the following requirements:

a) Achieving the Certificate of competence in derivative securities brokerage issued by the State Securities Commission, and meeting the regulations laid down in Point d Clause 1 Article 4 hereof.

b) Complying with requirements imposed by the Stock Exchange pertaining to information technology infrastructure and professional procedure for derivative securities trading.

2. Commercial banks registered as special trading members on the Stock Exchange must meet the following requirements:

a) Representing that they are trading members on the government bond market held by the Stock Exchange.

b) Obtaining the State Bank’s permission for derivative securities investment.

c) Complying with regulations laid down in Point d Clause 1 of this Article and Point d Clause 1 Article 4 hereof.

3. Trading, special trading and clearing members shall be allowed to be registered as market-making members on the basis of a contract entered into with the Stock Exchange.

4. The Stock Exchange shall have the right to adjust the number of market-making members, refuse to accept the registration as market-making members, and refuse to extend the term of the market making contract.

5. The Stock Exchange shall provide guidance on documentation submitted to apply, process and procedure for registration as trading, special trading and market-making members.

Article 15. Rights and obligations of trading, special trading and market-making members

1. Rights and obligations of trading members:

a) Be entitled to the proprietary trading of derivative securities, and supply derivatives investment consultancy and brokerage to investors. Special trading members shall be allowed to invest in derivative securities based on the underlying Government bonds.

b) Receive and execute trading orders placed by investors; provide all necessary information about operations carried out on the trading account on a periodic basis or as requested by investors;

If trading members are non-clearing members, they are obligated to enter into the contract for derivative securities clearing and settlement with joint clearing members before providing derivative securities brokerage Service.

c) Exercise other rights and fulfill other obligations under the provisions of Article 39 enshrined in the Law on Securities and other relevant legal regulations.

2. Rights and obligations of market-making members:

a) Be entitled to preferences agreed upon with the Stock Exchange.

b) Open the market-making account which is separate from the proprietary trading account and other trading account of investors;

c) Provide the quotation as stipulated in the charter and guidelines for operations of the Stock Exchange;

d) Exercise other rights and fulfill other obligations as agreed upon with the Stock Exchange and other relevant legal regulations.

Article 16. Contract to open a derivative securities trading account

1. Trading members must request investors to provide an adequate amount of accurate information to assess and determine the customer's suitability before entering into the contract to open a derivative securities trading account with customers.

2. The contract to open a derivative securities trading account must contain basic information about the clearing, settlement entrustment operations as follows:

a) Clearing members have the right to use margins of investors as margins provided for the Vietnam Securities Depository for open positions of investors.

b) In the event that investors are incapable of fulfilling settlement obligations, clearing members have the right to close positions and use margins provided by investors as stipulated in Point c Clause 1 Article 22 hereof.

c) Risks are incurred in the event that clearing members are faced with incapability of fulfilling settlement obligations, or suspension, temporary cessation, dissolution and bankruptcy.

3. The Ministry of Finance shall provide instructions on the sample contract to open derivative securities trading account of investors.

Article 17. Exercise of trades

1. Trading members shall be permitted to receive trading orders placed by investors only after they ensure that these investors have already held trading accounts, and provided initial or maintenance margins as requested by clearing members.

2. In order to maintain positions, trading members must ensure that investors achieve the acceptable maintenance margin level as requested by clearing members. Unless investors achieve the acceptable maintenance margin level and provide additional margins as requested by clearing members, investors and clearing members shall be obliged to comply with regulations laid down in Point c Clause 1 Article 22 hereof.

Chapter IV

DERIVATIVE SECURITIES CLEARING AND SETTLEMENT

Section 1. ORGANIZATION OF DERIVATIVE SECURITIES CLEARING AND SETTLEMENT ACTIVITIES

Article 18. Organization of derivative securities clearing and settlement activities

1. The clearing and settlement of derivative securities trades by applying the central counterparty clearing principle shall only be implemented through the Vietnam Securities Depository in which the Vietnam Securities Depository plays its role as a trading party, and clearing members are the opposing party executing such trades, including those executed by the third party.

2. The Vietnam Securities Depository shall perform the clearing and settlement of derivative securities trades as stipulated in Clause 1 Article 6 hereof by applying the following rules:

a) The clearing and settlement of derivative securities listed on the Stock Exchange as stipulated in Clause 1 Article 6 hereof must adhere to the central counterparty clearing principle with the help of the Vietnam Securities Depository.

b) The clearing and settlement of unlisted derivative securities trades by applying the central counterparty clearing principle as stipulated in Clause 1 Article 6 hereof shall be carried out by the Vietnam Securities Depository on the basis of agreements between parties involved in such trades.

Article 19. Rights of the Vietnam Securities Depository to the clearing and settlement of derivative securities trades

1. Clear and settle derivative securities trades as stipulated in Clause 1 Article 6 hereof; introduce professional practices after obtaining the approval from the State Securities Commission.

2. Agree to the registration, refuse the registration, or suspend or withhold the clearing membership in accordance with the charter and guidelines for operations of the Stock Exchange or as requested by the State Securities Commission.

Clearing members subjected to the suspension or withholding of membership shall be obliged to agree and decide on substitute clearing members. In case of failure to do so, the Vietnam Securities Depository shall have the right to appoint substitute clearing members to receive rights and obligations transferred by clearing members subjected to the suspension or withholding of their membership. Clearing members subjected to the suspension or withholding of their membership shall be obliged to transfer all of margins and open positions of customers, supply all necessary information about customers to substitute clearing members, and continue to fulfill their contractual obligations until the transfer of rights and obligations to substitute clearing members is completed.

3. Powers of the Vietnam Security Depository over clearing members:

a) Request clearing members to provide margins and make their contributions towards the clearing fund.

b) Request clearing members to provide them with a comprehensive, timely and detailed report on trades, accounts and margins of investors.

c) Determine and adjust the minimum level of initial and maintenance margins, and the list of assets accepted as margins.

d) Determine and adjust limits to positions of clearing members and investors.

dd) Execute corresponding trades to close positions of holders who are clearing members incapable of fulfilling their settlement obligations or going bankrupt.

4. When necessary, or being requested by the State Securities Commission, the Vietnam Securities Depository shall be entitled to carry out the following operations so as to protect investors and the safety for the market:

a) Where clearing members are incapable of fulfilling their settlement obligations:

- Close and liquidate positions of clearing members; use, sell and transfer margins of clearing members in order to fulfill obligations of clearing members; use amounts contributed to the clearing fund by clearing members for making up for financial losses (if any);

- Transfer margins and open positions of customers to substitute clearing members under the provisions of Clause 2 of this Article. In case of failure to do so, the Vietnam Securities Depository shall be allowed to close and liquidate positions; use, sell and transfer assets of customers that clearing members have provided as margins to fulfill customers’ obligations or compensate for any financial loss incurred from open positions of customers. Margins of customers shall only be used to fulfill financial obligations arising from derivative securities trades of customers.

b) Where clearing members go bankrupt, the Vietnam Securities Depository shall be the creditor receiving accounts of money owed by these clearing members and shall be given the priority to obtain divided assets under the provisions of the law on bankruptcy. Process and procedure for receipt of divided assets shall conform to relevant legal regulations.

c) Request other clearing members to execute corresponding trades to close positions of holders who are incapable of fulfilling settlement obligations or going bankrupt, irrespective of whether these are open positions of these clearing members or investors.

5. The Vietnam Securities Depository shall be entitled to provide account and margin management service for clearing members, non-clearing members and customers of non-clearing members with assurance that accounts and investment portfolios of each customer are managed in a separate manner.

6. Request the Stock Exchange and clearing members to provide all necessary information about trades of members and investors in a timely manner.

7. Exercise other rights under the provisions of Article 45 enshrined in the Law on Securities and other relevant legal regulations.

Article 20. Obligations of the Vietnam Securities Depository in relation to the clearing and settlement of derivative securities trades

1. Ensure that information technology and technical infrastructural systems are relevant to the practice of clearing and settlement of derivative securities trades; manage and supervise the clearing and settlement of derivative securities trades to ensure the safety, efficiency, fairness and objectivity.

2. Establish and operate the risk management system used for supporting the practice of clearing and settlement. Establish the mechanism for ensuring the fulfillment of payment obligations during the clearing and settlement process.

3. Examine and monitor the maintenance of operational conditions, the compliance of the Vietnam Securities Depository with the charter and guidelines for operations of the Stock Exchange, and of clearing members with relevant legal regulations; send timely, comprehensive and accurate reports on the clearing, settlement, derivative securities trades and operations of clearing members to the State Securities Commission in accordance with applicable regulations, or as requested, or whenever violations are discovered.

4. During the execution of clearing and settlement of derivative securities trades, the Vietnam Securities Depository shall assume its responsibility to fulfill its obligations and commitments to clearing members but take on none of responsibilities to the third party.

5. Develop the helpful system for ensuring that accounts and assets of clearing members are managed separately from those of the Vietnam Securities Depository; separating accounts and assets of each clearing member, and accounts and margins of clearing members and customers of these clearing members.

6. Set aside no more than 15% of annual revenue gained from clearing and settlement operation to establish the fund of provisions for settlement risks in order to compensate for any financial loss. This set-aside amount shall be accounted for in the operating expense of the Vietnam Securities Depository to calculate the taxable income.

7. Manage and use the clearing fund and the fund of provisions for settlement risks under the instructions of the Ministry of Finance.

8. Fulfill other obligations under the provisions of Article 46 enshrined in the Law on Securities and other relevant legal regulations.

Section 2. CLEARING MEMBERS

Article 21. Clearing member registration

1. Requirements for registration as clearing members shall include the followings:

a) Obtain the Certificate of competence in providing the service of clearing and settlement of derivative securities trades from the State Securities Commission, and meet the regulations laid down in Point d Clause 1 Article 4 hereof. As for securities companies, they must be derivatives trading members of the Stock Exchange.

b) Comply with requirements imposed by the Vietnam Securities Depository pertaining to information technology infrastructure, professional procedure and workforce for the clearing and settlement of derivative securities deals.

2. The Vietnam Security Depository shall provide instructions on documentation submitted to apply, process and procedure for registration as clearing members.

Article 22. Rights and obligations of clearing members

1. Rights of clearing members:

a) Direct clearing members shall be permitted to perform the clearing and settlement of their own derivative securities trades and those of their customers. Joint clearing members shall also be permitted to provide the service of clearing and settlement of derivative securities trades executed by other investors, including trades executed by both non-clearing members and customs of these clearing members.

b) Request investors to provide an adequate amount of margins on a timely manner before order placement and in the course of position maintenance; regulate the amount of initial and maintenance margins depending on the nature and scale of customers’ trades with assurance that this level is not lower than the minimum level of initial and maintenance margins in accordance with regulations; decide on types of securities put up as margins in the list of assets accepted as margins; regulate the method and permitted duration of providing margins, supplementing margins, changing securities used as margins, transferring margins in conformity with legal regulations.

c) Where investors are incapable of fulfilling their settlement obligations, clearing members shall exercise the following rights:

- Request investors, or use their discretion to perform the closing or compulsory liquidation of open positions of investors;

- Use, sell and transfer margins of investors to buy or use them as pledged assets for loans to fulfill obligations to make payments for open positions of investors.

d) Use margins of investors to fulfill obligations to provide the Vietnam Securities Depository with margins for these investors’ positions according to the rules stipulated in Clause 2 Article 25 hereof; use margins of investors for securing settlement obligations and make payments for positions of investors that they are holding under their names.

dd) In case clearing members fulfill contractual obligations in favor of those subjected to the suspension or withholding of clearing membership as stipulated in Clause 2 Article 19 hereof, margins provided by investors for clearing members subjected to the suspension or withholding of clearing membership shall be transferred and put under the control of substitute clearing members.

2. Obligations of clearing members:

a) Act as representatives authorized by customers, or act on behalf of customers, to take on responsibilities for fulfilling obligations of customers to the Vietnam Securities Depository.

b) Punctually provide the Vietnam Securities Depository with an adequate amount of margins for their open positions and those of customers; make contributions to the clearing fund and set aside the fund to prevent professional risks in accordance with Article 24 hereof. Take financial and professional assistance measures under the instructions of the Vietnam Securities Depository in the event that any clearing member or investor is incapable of fulfilling settlement obligations or goes bankrupt.

c) Establish and maintain the internal control system, processes and procedures for management of risks incurred by each professional practice or business operation; establish and operate the account system to separate assets and trading positions of each investor and of investors from those of clearing members.

d) Make income statements in which position-based gain or loss is defined, and calculate the level of initial and supplementary margins and the value of margins for specific trading accounts of investors. Request investors to supplement margins on a timely and adequate manner unless the value of such margins is corresponding to the accepted level of maintenance margins; refund the excess amount of margins compared with the level of initial margins as requested by investors; supervise and manage positions and margins of investors so as to ensure the compliance with legal regulations.

dd) Reimburse investors for any loss incurred by their failure to fulfill their contractual obligations in accordance with legal regulations, and their infringement of investors' legal benefits, and agree with investors on reimbursement.

e) Provide the Vietnam Securities Depository with the duplicate contract for clearing entrustment; store all of original documents on the practice of clearing and settlement of derivative securities trades; provide timely, adequate and accurate information about open positions and margins of investors as well as other documents related to clearing and settlement operations as requested by the Vietnam Securities Depository.

g) Pay a full amount of service charges and other expenses to the Vietnam Securities Depository on a timely manner in accordance with applicable regulations.

h) Carry out the spread of information and reporting in accordance with regulations; on a periodic basis, or upon the request of investors, provide investors with all required information about operations occurring on accounts, margin account balances and statements.

3. Exercise other rights and fulfill other obligations under the instructions of the Ministry of Finance.

Section 3. DERIVATIVE SECURITIES CLEARING AND SETTLEMENT

Article 23. Principles of derivative securities clearing and settlement

1. The Vietnam Securities Depository shall ensure their clearing members’ capability of clearing and settlement of derivative securities deals through the mechanism of payment security, and risk prevention as stipulated in Article 27 and 28 hereof.

2. The cash payment and settlement of derivative securities trades between the Vietnam Securities Depository and clearing members shall be performed in the form of a fund transfer to be carried out through settlement banks in accordance with legal regulations. Transfer of underlying stocks traded on the Stock Exchange shall be carried out through depository accounts managed by the Vietnam Securities Depository.

Article 24. Contributions made to the clearing fund, setting aside the fund of provisions for professional risks to clearing members

1. Clearing members shall be responsible for contributing cash or securities to the clearing fund. The amount and method of contribution, and types of assets used for contributions made to the clearing fund, shall be subject to requirements set out by the Vietnam Securities Depository in conformity with legal regulations.

2. Clearing members shall be responsible for setting aside the fund of provisions for professional risks to compensate for any loss suffered by investors due to technical breakdowns or employee errors during the operating process. The fund of provisions for professional risks shall be set aside from professional earnings under the instructions of the Ministry of Finance.

Article 25. Clearing members’ margins

1. Clearing members must deposit a full amount of margins in a timely manner in accounts opened under the name of the Vietnam Securities Depository. Margins of clearing members may take the form of cash sums or securities accepted by the Vietnam Securities Depository.

2. Providing margins by clearing members shall apply to all of open positions held under the name of clearing members, including open positions of these clearing members and investors according to the following rules:

a) The margin level shall be calculated by the Vietnam Securities Depository for open positions in each transaction account of investors and clearing members so as to determine the margin level that each clearing member must reach.

b) Assets that investors provide as margins for clearing members as stipulated in Clause 1, 2, 3 Article 26 hereof shall be used as margins for positions of these investors but not for positions of other investors or these clearing members.

3. On a daily basis and in trading sessions with a wide fluctuation in the price of securities, the Vietnam Securities Depository shall calculate position-based loss or profit, determine the minimum value of maintenance margins in specific accounts, positions of investors held under the name of clearing members, and positions of clearing members, and determine total minimum value of maintenance margins that clearing members must provide and the value of supplementary margins of clearing members.

4. As requested by the Vietnam Securities Depository, clearing members shall be responsible for supplementing margins in the event that total value of margins provided by clearing members falls below the maintenance margin level required by the Vietnam Securities Depository. If clearing members fail to provide a full amount of supplementary margins in a timely manner, the Vietnam Securities Depository shall have the right to close part or all of positions held under the name of clearing members.

5. If the value of margins provided by clearing members is in excess of the margin level required by the Vietnam Securities Depository, clearing members shall be allowed to withdraw excess margin deposits under the instructions of the Vietnam Securities Depository.

6. The minimum level of initial and maintenance margins, types of securities accepted as margins, margin method, permitted duration of providing margins, supplementing margins, changing securities used as margins, transferring margins, method of valuating margins, determining position-based profit or loss, account management operations, and margins of investors and clearing members, shall be consistent with instructions of the Ministry of Finance.

Article 26. Management of accounts and margins of investors

1. Investors must provide a full amount of margins in a timely manner for clearing members under the terms and conditions of the contract to open derivative securities trading accounts. Investors shall use their own cash sums or securities as margins. Securities used as margins must be those defined in the list of assets accepted as margins by clearing members.

2. On a daily basis and in trading session with a wide fluctuation in the price of securities, clearing members shall calculate position-based profit or loss, and revaluate margins and ensure that investors maintain their margins as agreed upon in the contract and in conformity with legal regulations.

3. Investors shall be responsible for providing supplementary margins as requested by clearing members in the event that the value of margins of investors falls below the maintenance margin level. The level and permitted duration of provision of supplementary margins shall be aligned with instructions of clearing members and the supplementary margin level is not lower than the initial margin level. If investors fail to provide a full amount of supplementary margins in a timely manner upon request, clearing members shall have the right to carry out operations as stipulated in Point c Clause 1 Article 22 hereof. If the value of margins of investors is in excess of the initial margin level as requested by clearing members, investors shall be entitled to withdraw excess margin deposits.

4. Clearing members shall be obliged to separately manage accounts and margins of each investor; keep them separate from their own accounts and margins according to the following rules:

a) If margins take the form of cash sums, clearing members are required to open deposit accounts at the account management banks, establish the account system and monitor balances reported to each investor. Clearing members shall be charged with collaborating with the account management banks and requesting these banks to provide timely, comprehensive and accurate reports on balances in accounts of investors.

b) If margins take the form of securities, clearing members shall manage these assets directly in depository accounts of investors opened at the Vietnam Securities Depository.

5. In the event that clearing members are incapable of fulfilling their payment obligations in accordance with legal regulations on bankruptcy, margins of investors shall not be deemed as assets of clearing members, and shall not be handled in accordance with legal regulations on bankruptcy, and shall not be distributed to creditors of clearing members or shareholders and capital-contributing members in any form. These assets shall only be used as payments or security for obligations to make payments for open positions of investors. Assets that remain after investors have discharged their payment obligations shall be immediately returned to investors.

Article 27. Payment security measures

1. In the event that clearing members, or customers of clearing members, are incapable of fulfilling their payment obligations, the Vietnam Securities Depository shall be allowed to use finances arranged in the following order as compensations:

a) Margins of clearing members, customers incapable of fulfilling payment obligations

b) Contributed deposits of clearing members incapable of fulfilling payment obligations in the clearing fund managed by the Vietnam Securities Depository.

c) Contributed deposits of other clearing members in the clearing fund in a certain ratio defined by the Vietnam Securities Depository after being approved by the State Securities Commission.

d) The fund of provisions for payment risks managed by the Vietnam Security Depository;

dd) Where the fund of provisions for payment risks is not adequate, the Vietnam Securities Depository shall be allowed to use its legal capital sources and record them in the operating expense in its accounting records.

2. The Ministry of Finance shall provide instructions for formulation and application of payment security mechanism as mentioned in Clause 1 of this Article.

Article 28. Risk prevention mechanism of the Vietnam Securities Depository

1. The Vietnam Securities Depository shall be entitled to apply the following measures to prevent risks to the payment system and protect investors:

a) Adjusting statutory margin levels.

b) Requesting clearing members to make contributions to the clearing fund.

c) Adjusting position limits applicable to clearing members and investors.

d) Closing part or all of open positions held by investors, clearing members incapable of fulfilling payment obligations.

dd) Using the clearing fund and applying other measures as stipulated in Clause 3, 4 Article 19 hereof.

2. Risk prevention measures stipulated in Clause 1 of this Article must be specified in instructions given in the rules and regulations issued by the Vietnam Securities Depository after being adopted by the State Securities Commission.

Article 29. Cooperation between the Stock Exchange and the Vietnam Securities Depository

Within their scope of operations, the Stock Exchange and the Vietnam Securities Depository shall collaborate in:

1. Providing guidance on issues relating to derivative securities listed on the Stock Exchange in accordance with regulations laid down in Clause 1 Article 6 hereof.

2. Issuing identification numbers to investors, transaction codes and ISIN for derivative securities.

3. Taking measures to deal with circumstances under which securities companies or commercial banks are subject to the suspension or withholding of trading membership at the Stock Exchange, or of clearing members at the Vietnam Securities Depository.

4. Setting and managing position limits.

5. Determining settlement prices.

6. Sharing information and performing supervisory tasks.

7. Carrying out other necessary operations.

Chapter V

OBLIGATIONS TO DISCLOSE INFORMATION AND MAKING REPORTS

Article 30. Information-disclosing entities

The following entities shall be obliged to disclose information about derivative securities and derivative securities market, including:

1. Stock Exchanges.

2. The Vietnam Security Depository.

3. Derivative securities trading organizations

4. Trading, special trading clearing and market-making members.

5. Other related organizations or individuals.

Article 31. Requirements for information disclosure

1. The information disclosure must be implemented by the company’s legal representative or authorized persons in charge of information disclosure. Information must be disclosed in full, on time and accurately as prescribed by laws.

2. Materials or reports sent to the State Securities Commission, the Stock Exchange and the Vietnam Securities Depository shall take the form of written documents or electronic data according to these organizations' instructions.

Article 32. Reporting requirements

1. The Stock Exchange, the Vietnam Securities Depository, derivative securities trading organizations, and trading, special trading and clearing members, shall be required to store all documents on their transactions and business operations.

2. The Stock Exchange, the Vietnam Securities Depository, derivative securities trading organizations, and trading, special trading and clearing members, shall be required to make reports on derivative securities transactions, clearing and settlement operations, and trading operations, or periodic, occasional ones, or those requested by the State Securities Commission.

3. The Stock Exchange, the Vietnam Securities Depository, derivative securities trading organizations, and trading, special trading and clearing members, shall be obliged to provide accurate information and materials in full and on time, and give explanations upon request, and shall be subjected to inspection of the State Securities Commission.

4. Trading, special trading and clearing members shall be required to report to the Stock Exchange and the Vietnam Securities Depository according to the rules and regulations issued by the Stock Exchange and the Vietnam Securities Depository.

5. Contents and permitted duration of reporting and storing documents stipulated in Clause 1, 2 and 3 of this Article shall be governed under the instructions of the Ministry of Finance.

Chapter VI

MANAGEMENT AND SUPERVISION

Article 33. Responsibilities and powers of the State Securities Commission

1. Issue and revoke the Certificate of competence in trading derivative securities, the Certificate of competence in providing derivatives clearing and settlement service, and approve, terminate and suspend derivative securities trading operations and rendering of derivative securities clearing and settlement service; introduce professional procedures for providing guidance on management and supervision of operations of derivative securities market.

2. Supervise the compliance of organizations or individuals participating in the securities market with legal regulations in order to discover, prevent or control violations against legal regulations on derivative securities, and protect investors’ benefits and maintain orderly market conditions.

3. Preside over, collaborate with relevant organizations in examining, inspecting and imposing proper penalties on organizations or individuals for their suspicious activities or violations against legal regulations on derivative securities within their jurisdiction.

4. Grant permission to the Stock Exchange and the Vietnam Securities Depository to introduce professional rules and regulations; supervise the implementation of such rules and regulations, and the compliance of the Stock Exchange, the Vietnam Securities Depository and derivative securities trading organizations, trading, special trading, market-making and clearing members with legal regulations.

5. Request the Stock Exchange, the Vietnam Securities Depository, derivative securities trading organizations, and trading, special trading, market-making and clearing members to implement regulations on reporting, information disclosure, and enumerate, aggregate data on market-related operations. Request these organizations to take measures relevant to regulations laid down in this Decree and instructional documents, and protect investors' benefits and ensure the market safety.

Article 34. Derivatives trading supervision of the State Securities Commission

1. Derivatives trading supervision of the State Securities Commission shall involve the followings:

a) Supervision of derivative securities trades.

b) Supervision of operations of the Stock Exchange and the Vietnam Securities Depository.

2. The Ministry of Finance shall provide instructions for securities trading supervision activities of the State Securities Commission.

Article 35. The State Securities Commission's management and supervision of derivative securities trading organizations

1. Supervise the compliance of securities trading organizations, trading and clearing members with legal regulations on securities during their supply of services to investors and participation in derivative securities trades.

2. Supervise the introduction and implementation of procedures, rules and regulations concerning risk management, internal control practices in business operations and service supply to investors that occurs at derivative securities trading organizations.

3. Supervise the maintenance of operational conditions of trading and clearing members; the compliance with applicable regulations on operation limit, protection of rights and benefits of investors under the provisions of this Decree and other regulations enshrined in the securities legislation.

4. Supervise the separate management of accounts and assets of investors and assets of derivative securities trading organizations as stipulated herein and other relevant legal documents.

5. Supervise the storage and administration of transaction data; comply with statutory obligations to report and disclose information.

Article 36. The Stock Exchange's supervision of derivative securities deals

1. The Stock Exchange's supervision of derivative securities deals shall be specified as follows:

a) Supervise trading, special trading and market-making members to ensure that they comply with legal regulations on securities and relevant regulations.

b) Supervise trading operations of organizations and individuals that take place on the Stock Exchange in order to detect and prevent transactions with signs of abnormality or those containing signs of violations against legal regulations on securities.

2. The Stock Exchange shall establish and adopt the system of criteria for supervision of derivative securities transactions after obtaining the approval from the State Securities Commission.

Article 37. Supervisory operations of the Vietnam Securities Depository

1. The Vietnam Securities Depository’s supervisory responsibilities shall include:

a) Supervise the compliance of clearing members with legal regulations on securities and other relevant regulations; manage and supervise the maintenance of statutory margin levels.

b) Supervise the compliance of investors with regulations on limits on positions that investors hold during their participation in derivative securities transactions.

2. In case there is any sign of abnormality in the settlement of transactions, investors or clearing members show signs of incapability of fulfilling their settlement obligations, the Vietnam Securities Depository shall warn and request clearing members to give their explanations, and provide relevant materials and information as well as report to the State Securities Commission on a timely basis.

Article 38. Transaction supervisory activities of trading and clearing members

1. Collaborate with the State Securities Commission, the Stock Exchange and the Vietnam Securities Depository in performing derivatives trading supervisory duties upon request.

2. Provide accurate information about investors and investors’ transactions in full and on time as stipulated by laws.

3. Collaborate with the State Securities Commission in inviting investors to come to work with the inspectorate of the State Securities Commission and the Stock Exchange on issues related to derivative securities trades that show signs of abnormality. In case any violation against regulations on securities and securities market is detected, they shall be responsible for reporting to the State Securities Commission on time.

Article 39. Obligations to provide requested information and explanation

1. Organizations or individuals that transact derivative securities and supply derivatives transaction and transaction settlement services, shall be obliged to provide a full amount of accurate information, materials and data relating to derivative securities trades on time, and explain related issues as requested by the State Securities Commission, the Stock Exchange and the Vietnam Securities Depository.

2. In case organizations or individuals that trade derivative securities, supply securities transaction services, fail to collaborate with those stipulated in Clause 1 of this Article, they shall be subject to proper penalties stipulated by laws.

Article 40. Procedure for cooperation amongst relevant Ministries and departments

Depending on the demand for the derivatives market growth, the Ministry of Finance and the State Securities Commission shall provide the mechanism for sharing information, cooperating with relevant domestic or foreign agencies to form the mechanism for managing and supervising the market to ensure its safety and stability.

Chapter VII

INSPECTION, HANDLING OF VIOLATIONS, RESOLUTION OF DISPUTES, COMPLAINTS AND DENUNCIATIONS, COMPENSATION FOR DAMAGE

Article 41. Resolution of disputes, complaints and denunciations, compensation for damage

Resolution of disputes, complaints and denunciations, compensation for damage, or commencement of legal proceedings for operations of derivative securities and derivative securities market shall be governed under regulations laid down in Article 133 of the Law on Securities and other relevant laws.

Article 42. Inspection and handling of violations

1. Inspection and handling of violations concerning the listing, transaction, trading, speculation and service that relate to derivative securities and derivative securities market shall be governed under the regulations laid down in Article 108 through Article 130 enshrined in the Law on Securities, the Government’s Decree No. 108/2013/NĐ-CP dated September 23, 2013 on imposition of penalties for administrative violations committed in the field of securities and securities exchange market as well as laws on penalties for administrative violations.

2. Any violation committed by derivative securities trading members shall be subject to penalties stipulated by the Government’s Decree No. 108/2013/NĐ-CP on penalties for administrative violations committed in the field of securities and securities exchange market applicable to securities companies. Any violation committed by clearing members shall be subject to penalties stipulated by the Government’s Decree No. 108/2013/NĐ-CP on penalties for administrative violations committed in the field of securities and securities exchange market applicable to securities companies, depository members and depository banks.

Chapter VIII

IMPLEMENTARY PROVISIONS

Article 43. Effect

1. The transaction of derivative securities stipulated in Clause 1 Article 6 hereof upon which has been agreed upon before the effective date of this Decree shall continue its validity under the mutual contract. Derivatives transactions, contracts entered into after the effective date of this Decree shall be governed by this Decree.

2. This Decree shall come into force since July 1, 2015.

Article 44. Implementation

1. The Ministry of Finance shall provide guidance on implementation of this Decree.

2. The Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, and Presidents of People’s Committees of central-affiliated cities and provinces, shall be responsible for enforcing this Decree./.

 

 

 

PP. THE GOVERNMENT
THE PRIME MINISTER




Nguyen Tan Dung

 


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