Decree No. 135/2015/ND-CP dated December 31, 2015 of the Government on prescribing offshore indirect investment

DECREE

Prescribing offshore indirect investment[1]

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 26, 2014 Law on Investment;

Pursuant to the June 16, 2010 Law on the State Bank of Vietnam;

Pursuant to the June 16, 2010 Law on Credit Institutions;

Pursuant to the June 29, 2006 Law on Securities; and the November 24, 2010 Law Amending and Supplementing a Number of Articles of the Law on Securities;

Pursuant to the December 9, 2000 Law on Insurance Business; and the November 24, 2010 Law Amending and Supplementing a Number of Articles of the Law on Insurance Business;

Pursuant to the December 13, 2005 Ordinance on Foreign Exchange; and the March 18, 2013 Law Amending and Supplementing a Number of Articles of the Ordinance on Foreign Exchange;

At the proposal of the Governor of the State Bank of Vietnam,

The Government promulgates the Decree prescribing offshore indirect investment.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Decree prescribes in detail offshore investment in the form of purchase and sale of securities or other valuable papers or via securities investment funds or other intermediary financial institutions abroad (below collectively referred to as offshore indirect investment).

Article 2.Subjects of application

1. Investors, including:

a/ Economic institutions defined in Clause 16, Article 3 of the Law on Investment;

b/ Individuals having the Vietnamese citizenship and eligible for participating in the program on bonus provision of overseas issued stocks.

2. State management agencies engaged in the management of offshore indirect investment under this Decree.

3. Other institutions and individuals involved in offshore indirect investment activities.

4. Foreign-invested economic institutions (defined in Clause 1, Article 23 of the Law on Investment) that may not conduct offshore indirect investment under this Decree.

Article 3.Interpretation of terms

1. Offshore indirect investment means offshore investment in the form of purchase and sale of securities or other valuable papers or via securities investment funds or other intermediary financial institutions abroad.

2. Investment instrument means a type of securities or another valuable paper allowed to be invested in abroad under regulations of the State Bank of Vietnam.

3. Offshore indirect investment dealing means overseas purchase and sale of securities or other valuable papers or investment via securities investment funds or other intermediary financial institutions abroad by institutions licensed for dealing for themselves.

4. Offshore indirect investment trust means entrustment by an economic institution (below referred to as institutional truster) of foreign-currency capital to a domestic institution licensed to undertake investment trust (below referred to as institutional trustee) for conducting offshore indirect investment under an investment trust contract.

5. Investment trust contract means a written agreement between an institutional truster and an institutional trustee on entrustment by the institutional truster of foreign-currency capital to the institutional trustee for conducting offshore indirect investment.

6. Safe investment ratio means the permitted maximum ratio of offshore indirect investment calculated in a percentage (%) of capital or assets of an institutional dealer.

7. Annual total offshore indirect investment limit means the maximum total foreign-currency amount which the economy may use for offshore indirect investment under this Decree.

8. Dealing limit means the annual maximum foreign-currency amount which an institutional dealer may use for offshore indirect investment.

9. Trust undertaking limit means the annual maximum foreign-currency amount which an institutional trustee may receive as offshore indirect investment trust.

10. Dealing limit registration means registration by an institutional dealer of its dealing limit with the State Bank of Vietnam.

11. Dealing limit registration certification means written certification by the State Bank of Vietnam of the registration by an institutional dealer of its dealing limit.

12. Trust undertaking limit registration means registration by an institutional trustee of its trust undertaking limit with the State Bank of Vietnam.

13. Trust undertaking limit registration certification means written certification by the State Bank of Vietnam of the registration by an institutional trustee of its trust undertaking limit.

14. Program on bonus provision of overseas issued stocks means a program of a foreign institution on bonus provision of stocks to employees of Vietnam-based foreign institutions.

15. Core foreign-currency balance of an account means foreign-currency amounts lawfully acquired by an investor itself other than those purchased and borrowed from credit institutions or foreign bank branches licensed to provide foreign exchange services in Vietnam.

Article 4.Application of relevant laws, treaties, foreign laws and international practices

1. Offshore indirect investment dealing and offshore indirect investment trust via domestic institutional trustees must comply with this Decree and other relevant laws.

2. In case a treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions different from those of this Decree, such treaty shall prevail.

Article 5.Offshore indirect investment by individuals

1. Individual investors who have the Vietnamese citizenship may only make offshore indirect investment in the form of participating in programs on bonus provision of overseas issued stocks.

2. The State Bank of Vietnam shall specify:

a/ The order and procedures for, and contents of, programs on bonus provision of stocks of foreign organizations in Vietnam mentioned in Clause 1 of this Article;

b/ Implementation methods and other contents related to the participation in programs on bonus provision of stocks by Vietnamese employees working for Vietnam-based foreign institutions.

Article 6.Methods of offshore indirect investment

Offshore indirect investment activities of economic institutions shall be carried out by the following methods:

1. Offshore indirect investment dealing.

2. Offshore indirect investment trust.

Article 7.Forms of offshore indirect investment

Institutional dealers and trustees may make offshore indirect investment in the following forms:

1. Direct purchase and sale of securities and other valuable papers overseas.

2. Investment through overseas purchase and sale of securities investment fund certificates or entrustment to other overseas intermediary financial institutions.

Article 8.Investment instruments

1. The State Bank of Vietnam shall specify types and criteria for selection of overseas investment instruments in each period.

2. Investors may only make offshore indirect investment in investment instruments prescribed by the State Bank of Vietnam.

3. Institutional dealers and trustees being commercial banks and general financial companies may only conduct offshore indirect investment dealing or undertake entrusted offshore indirect investment in instruments being stocks or instruments on the monetary market as prescribed by the State Bank of Vietnam.

Article 9.Other cases of investment

1. Offshore indirect investment under competent authority-approved plans of economic institutions of which at least 65% of charter capital is owned by the State and  offshore indirect investment worth at least VND 800 billion of other economic institutions which do not fall into one of the cases specified in Articles 6, 7 and 8; Clauses 4 and 5, Article 10, and Article 13 of this Decree shall be decided by the Prime Minister.

2. The State Bank of Vietnam shall assume the prime responsibility for, and coordinate with related agencies in, submitting to the Prime Minister for consideration and decision cases of offshore indirect investment specified in Clause 1 of this Article.

3. The State Bank of Vietnam shall guide procedures for offshore indirect investment in the cases subject to the Prime Minister’s permission specified in Clause 1 of this Article.

Article 10.Capital sources for offshore indirect investment

1. Institutional dealers (except commercial banks and general financial companies) may use the core foreign-currency balance of their accounts and foreign-currency amounts purchased from credit institutions or foreign bank branches licensed to provide foreign exchange services in Vietnam within their registered dealing limits certified by the State Bank of Vietnam for offshore indirect investment.

2. Institutional trusters (except commercial banks and general financial companies) may only use the core foreign-currency balance of their accounts for offshore indirect investment in the form of trusting institutional trustees.

3. Commercial banks and general financial companies shall seek by themselves foreign-currency sources for offshore indirect investment while abiding by the regulations on foreign-currency status, limits and prudential ratios in banking activities.

4. Investors may not use Vietnam-dong loans from credit institutions or foreign bank branches to purchase foreign currencies for offshore indirect investment.

5. Investors may not use domestic and overseas foreign-currency loans for offshore indirect investment.

Article 11.Opening of accounts for offshore indirect investment dealing and undertaking offshore indirect investment trust

1. Opening of foreign-currency accounts for offshore indirect investment dealing:

a/ An institutional dealer shall open 1 (one) account of foreign-currency offshore indirect investment capital at 1 (one) commercial bank or foreign bank branch licensed to provide foreign exchange services in Vietnam in order to conduct collection and payment transactions related to offshore indirect investment dealing activities (this provision is not applicable to institutional dealers being securities investment companies and securities investment funds making offshore indirect investment via fund management companies);

b/ In case institutional dealers are securities investment funds and securities investment companies making offshore indirect investment via a fund management company, the fund management company shall open 1 (one) account of foreign-currency offshore indirect investment capital at 1 (one) commercial bank or foreign bank branch licensed to provide foreign exchange services in Vietnam for each securities investment fund or securities investment company for conducting collection and payment transactions related to offshore indirect investment dealing activities of such fund or company.

2. Opening of foreign-currency accounts for undertaking offshore indirect investment trust:

a/ An institutional trustee shall open 1 (one) account of foreign-currency capital for undertaking offshore indirect investment trust at 1 (one) commercial bank or foreign bank branch licensed to provide foreign exchange services in Vietnam in order to conduct collection and payment transactions related to the offshore indirect investment trust undertaking;

b/ An institutional trustee shall separately manage money amounts entrusted for offshore indirect investment by each investor and manage money amounts entrusted by investors separately from its offshore indirect investment dealing amounts.

3. Opening of overseas foreign-currency accounts:

a/ Institutional dealers and trustees may open overseas foreign-currency accounts to conduct collection and payment transactions related to offshore indirect investment under regulations of host countries;

b/ Institutional dealers and trustees may only open overseas foreign-currency accounts under Point a, Clause 3 of this Article after obtaining offshore indirect investment registration certificates, permission for offshore indirect investment and offshore indirect investment trust undertaking registration certificates from the specialized management agencies and dealing limit or trust undertaking registration certification from the State Bank of Vietnam.

4. The State Bank of Vietnam shall specify the opening and use of accounts for offshore indirect investment dealing and for undertaking offshore indirect investment trust prescribed in Clauses 1 and 2 of this Article.

Article 12.Offshoretransfer of indirect investment capital, remittance of capital, profits and lawful earnings from offshore indirect investment to Vietnam

1. Institutional dealers may transfer indirect investment capital abroad only after having their dealing limit registration certified by the State Bank of Vietnam.

2. Institutional trustees may transfer entrusted offshore indirect investment capital amounts only after having their trust undertaking limit registration certified by the State Bank of Vietnam.

3. Offshore transfer of indirect investment dealing capital and remittance of capital, profits and lawful earnings from offshore indirect investment dealing activities to Vietnam shall be effected via offshore indirect investment capital accounts specified in Clause 1, Article 11 of this Decree.

4. Offshore transfer of indirect investment trust undertaking capital and remittance of capital, profits and lawful earnings to Vietnam shall be effected via offshore indirect investment trust undertaking capital accounts specified in Clause 2, Article 11 of this Decree.

Chapter II

OFFSHORE INDIRECT INVESTMENT DEALING

Article 13.Subjects eligible for offshore indirect investment dealing

Institutions eligible for offshore indirect investment dealing include:

1. Securities companies, fund management companies.

2. Funds investing in securities via fund management companies (below referred to as securities investment funds), securities investment companies.

3. Insurance businesses.

4. Commercial banks.

5. General financial companies.

6. The State Capital Investment Corporation.

Article 14.Conditions for licensing offshore indirect investment dealing, grant of offshore indirect investment registration certificates

1. Conditions for conducting offshore indirect investment dealing:

a/ To conduct offshore indirect investment dealing, an institutional dealer (other than the State Capital Investment Corporation, a securities investment fund or a securities investment company) shall obtain an offshore indirect investment registration certificate granted by a competent agency;

b/ To conduct offshore indirect investment dealing, an institutional dealer being a securities investment fund or securities investment company shall obtain permission for offshore indirect investment.

2. To be granted an offshore indirect investment registration certificate, a securities company, a fund management company or an insurance business must satisfy the following conditions:

a/ Having earned profits for 5 consecutive years before the year of submission of a dossier of application for offshore indirect investment registration certificate as shown in audited financial statements without any material exceptional opinions under regulations of the Ministry of Finance. Financial statements shall be audited by an independent audit firm accredited and announced by the Ministry of Finance under regulations on independent audit of units with public interests;

b/ Having fulfilled financial obligations toward the State and owing no tax arrears to the state budget;

c/ Having internal processes, internal control and audit mechanisms, and a mechanism for identification and management of risks related to offshore indirect investment dealing activities;

d/ Complying with current specialized regulations on capital, financial prudential ratios and investment limits of securities companies, fund management companies and insurance businesses;

dd/ Having physical and technical foundations and personnel to conduct offshore indirect investment dealing in accordance with law;

e/ Complying with regulations on management and use of state capital (for economic institutions with state capital).

3. To be permitted to conduct offshore indirect investment, a securities investment fund or securities investment company must satisfy the following conditions:

a/ Its charter permits offshore indirect investment;

b/ The fund management company that manages the securities investment fund or securities investment company making offshore indirect investment has internal processes, internal control and audit mechanisms, and a mechanism for identification and management of risks related to offshore indirect investment activities; satisfies financial prudential ratios under regulations of the Ministry of Finance; and has physical and technical foundations and personnel to conduct offshore indirect investment dealing in accordance with law;

In case the securities investment company manages offshore indirect investment capital by itself, it must satisfy the conditions prescribed at Points c and dd, Clause 2 of this Article.

c/ Assets invested in overseas by the securities investment fund or securities investment company shall be deposited at an institution licensed for depository activities in accordance with foreign law and for which depository contracts have been signed with the Vietnam-based depository bank or supervisory bank of the securities investment fund or securities investment company.

4. To be granted an offshore indirect investment registration certificate, an institutional dealer being a commercial bank or general financial company must satisfy the following conditions:

a/ Being licensed for foreign exchange trading on the global market;

b/ Having earned profits for 5 consecutive years before the year of submission of a dossier of application for offshore indirect investment registration certificate as shown in audited financial statements without any material exceptional opinions under regulations of the Ministry of Finance. Financial statements shall be audited by an independent audit firm not on the State Bank of Vietnam-announced list of audit firms not permitted to audit credit institutions and foreign bank branches;

c/ Having fulfilled financial obligations toward the State and owing no tax arrears to the state budget;

d/ Having internal processes, internal control and audit mechanisms, and a mechanism for identification and management of risks related to offshore indirect investment dealing activities;

dd/ Having physical and technical foundations and personnel to conduct offshore indirect investment dealing in accordance with law;

e/ Complying with current regulations of the State Bank of Vietnam on limits and prudential ratios in banking operations;

g/ Complying with regulations on management and use of state capital (for commercial banks and general financial companies with state capital).

5. The State Capital Investment Corporation shall conduct offshore indirect investment under regulations of the Government.

Article 15.Competence, order and procedures for grant and revocation of offshore indirect investment registration certificates or offshore indirect investment permission

1. The Ministry of Finance shall:

a/ Prescribe in detail the process and procedures for grant and revocation of offshore indirect investment registration certificates to/of institutional dealers being securities companies, fund management companies or insurance businesses;

b/ Consider granting or revoking offshore indirect investment registration certificates to/of securities companies, fund management companies or insurance businesses permitted to conduct offshore indirect investment dealing;

c/ Prescribe in detail the forms of, process and procedures for, grant and revocation of permission for offshore indirect investment of institutional dealers being securities investment funds or securities investment companies.

2. The State Bank of Vietnam shall:

a/ Prescribe in detail the process and procedures for grant and revocation of offshore indirect investment registration certificates to/of institutional dealers being commercial banks or general financial companies;

b/ Consider granting or revoking offshore indirect investment registration certificates to/of commercial banks or general financial companies.

Article 16.Safe investment ratio

1. Offshore indirect investment activities of securities companies, securities investment companies, fund management companies, securities investment funds, insurance businesses and the State Capital Investment Corporation must comply with the safe investment ratio prescribed by the Ministry of Finance and specialized laws.

2. Offshore indirect investment activities of commercial banks and general financial companies shall comply with the safe investment ratio prescribed by the State Bank of Vietnam and specialized laws.

Article 17.Dealing limit registration

1. Institutional dealers shall register their dealing limits with the State Bank of Vietnam.

2. Institutional dealers may only make offshore indirect investment after obtaining the State Bank of Vietnam’s written certification of their dealing limit registrations and within their registered dealing limits certified by the State Bank of Vietnam.

Chapter III

OFFSHORE INDIRECT INVESTMENT TRUST AND OFFSHORE INDIRECT INVESTMENT TRUST UNDERTAKING

Section 1

OFFSHORE INDIRECT INVESTMENT TRUST

Article 18.Subjects eligible for offshore indirect investment trust

Economic institutions may only conduct offshore indirect investment by entrusting investment to institutions that may undertake investment trust specified in Article 21 of this Decree, except those specified in Clause 4, Article 19 of this Decree.

Article 19.Principles of offshore indirect investment trust

1. Institutional trusters may only entrust offshore indirect investment in investment instruments specified in Article 8 of this Decree.

2. Offshore indirect investment trust shall be conducted under an investment trust contract which specifies the entrusted money amount, trust duration, investment instrument(s), and rights and obligations of contracting parties in compliance with this Decree and other relevant regulations.

3. Currency used for offshore indirect investment trust must be foreign currency.

4. An institutional dealer that has a still valid offshore indirect investment registration certificate may not entrust offshore indirect investment to an institutional trustee.

Article 20.Conditions for entrusting offshore indirect investment

To entrust offshore indirect investment, an economic institution must satisfy the following conditions:

1. Having earned profits for 5 consecutive year before the year of offshore indirect investment trust as shown in financial statements audited by an independent audit firm without any material exceptional opinions under regulations of the Ministry of Finance (this condition is not applicable to securities investment funds and securities investment companies).

2. Having fulfilled financial obligations toward the State and owing no tax arrears to the state budget.

3. Having documents to prove that the foreign-currency amount in its account for offshore indirect investment trust is the core foreign-currency balance.

4. Having an offshore indirect investment plan approved by its competent body (the Shareholders’ General Meeting, Board of Directors, Members’ Council or the equivalent) or another competent authority in accordance with law.

5. Complying with regulations on management and use of state capital (in case the institutional truster is an economic institution with state capital).

Section 2

UNDERTAKING OF OFFSHORE INDIRECT INVESTMENT TRUST

Article 21.Entities eligible to undertake offshore indirect investment trust

The following entities may undertake offshore indirect investment trust:

1. Fund management companies.

2. Commercial banks.

Article 22.Principles of undertaking offshore indirect investment trust

1. Undertaking offshore indirect investment trust shall be conducted under a written contract under Clause 2, Article 19 of this Decree.

2. Institutional trustees may not use entrusted capital amounts in contravention of trust purposes and provisions of investment trust contracts and this Decree.

3. Institutional trustees may not re-entrust investment to domestic third parties.

4. Institutional trustees may receive a trust charge based on the agreement between the parties and compliant with relevant regulations.

5. Institutional trustees shall inspect and guide institutional trusters in conducting offshore indirect investment trust in accordance with this Decree.

Article 23.Conditions for being granted an offshore indirect investment trust undertaking registration certificate

1. To undertake offshore indirect investment trust, an institutional trustee shall apply for an offshore indirect investment trust undertaking registration certificate.

2. To be considered for grant of an offshore indirect investment trust undertaking registration certificate, an institutional trustee must satisfy the following conditions:

a/ Having earned profits for 5 consecutive years prior to the year of submission of a dossier of application for such certificate as shown in its audited financial statements without any material exceptional opinions under regulations of the Ministry of Finance. Such financial statements shall be audited by an independent audit firm accredited and announced by the Ministry of Finance under the regulations on independent audit of units with public interests (this provision is applicable to institutional trustees being fund management companies);

b/ Having earned profits for 5 consecutive years prior to the year of submission of a dossier of application for such certificate as shown in its audited financial statements without any material exceptional opinions under regulations of the Ministry of Finance. Such financial statements shall be audited by an independent audit firm not on the State Bank of Vietnam-announced list of audit firms not permitted to audit credit institutions and foreign bank branches (this provision is applicable to institutional trustees being commercial banks);

c/ Having fulfilled financial obligations toward the State and owing no tax arrears to the state budget;

d/ Having internal regulations on management of offshore indirect investment trust undertaking activities, including those on identification and management of risks related to such activities;

dd/ Having physical and technical foundations and personnel to conduct offshore indirect investment trust undertaking activities in accordance with law;

e/ Complying with current specialized laws on financial prudential norms and prudential ratios in operations of institutional trustees.

Article 24.Competence, order and procedures for grant and revocation of offshore indirect investment trust undertaking registration certificates

1. The Ministry of Finance shall:

a/ Prescribe in detail the process and procedures for grant and revocation of offshore indirect investment trust undertaking registration certificates to/of institutional trustees being fund management companies;

b/ Consider granting or revoking offshore indirect investment trust undertaking registration certificates to/of fund management companies permitted to undertake offshore indirect investment trust.

2. The State Bank of Vietnam shall:

a/ Prescribe in detail the process and procedures for grant and revocation of offshore indirect investment trust undertaking registration certificates to/of institutional trustees being commercial banks;

b/ Consider granting or revoking offshore indirect investment trust undertaking registration certificates to/of commercial banks permitted to undertake offshore indirect investment trust.

Article 25.Registration of trust undertaking limits

1. Institutional trustees shall register their trust undertaking limits with the State Bank of Vietnam.

2. Institutional trustees may only undertake offshore indirect investment trust within their registered trust undertaking limits after obtaining the State Bank of Vietnam’s written certification of their trust undertaking limit registrations.

Chapter IV

ANNUAL TOTAL OFFSHORE INDIRECT INVESTMENT LIMIT, DEALING LIMITS AND TRUST UNDERTAKING LIMITS

Article 26.Annual total offshore indirect investment limit

1. Annual total offshore indirect investment limit shall be formulated on the following bases:

a/ The implementation of the payment balance of the year preceding to, and forecast payment balance of, the year of formulation;

b/ The size of the State’s foreign exchange reserve;

c/ The situation of foreign investment in Vietnam and offshore investment of Vietnam;

d/ The macroeconomic situation and monetary policy administration objectives in the year of formulation.

2. Process of formulating total offshore indirect investment limit:

a/ By March 15 every year at the latest, the State Bank of Vietnam shall assume the prime responsibility for, and coordinate with the Ministry of Finance and Ministry of Planning and Investment in, formulating and submitting the total offshore indirect investment limit to the Prime Minister for approval;

b/ By March 31 every year at the latest, the Prime Minister shall approve the total offshore indirect investment limit;

c/ Pending the Prime Minister’s approval of the total offshore indirect investment limit in a year, the State Bank of Vietnam may consider and certify temporarily registered dealing limits and trust undertaking limits of institutional investment dealers and institutional investment trustees which must not exceed 50% of registered dealing limits and trust undertaking limits certified by the State Bank of Vietnam in the preceding year.

Article 27.Dealing limits

1. Annually, the State Bank of Vietnam shall certify dealing limit registrations of institutional dealers based on the following:

a/ Annual total offshore indirect investment limit approved by the Prime Minister;

b/ Capital amounts of institutional dealers being securities companies, fund management companies, insurance businesses, commercial banks, general financial companies and the State Capital Investment Corporation; assets of institutional dealers being securities investment funds and securities investment companies;

c/ Safe investment ratios of institutional dealers prescribed by a competent state management agency (this provision is applicable to the State Capital Investment Corporation);

d/ Offshore indirect investment activities of institutional dealers in previous years;

dd/ Macro-economic situation and monetary policy objectives in each period.

2. By April 15 every year at the latest, an institutional dealer that wishes to conduct offshore indirect investment shall send a dossier for dealing limit registration directly or by post to the State Bank of Vietnam.

3. By May 15 every year at the latest, based on the grounds for dealing limit registration certification specified in Clause 1 of this Article and valid dossiers of institutional dealers, the State Bank of Vietnam shall certify dealing limit registrations for such institutional dealers. In case of refusal to certify registrations, the State Bank of Vietnam shall reply in writing, clearly stating the reason.

4. The State Bank of Vietnam shall prescribe the determination of dealing limits, order and procedures for registration of dealing limits and certification of dealing limit registrations.

Article 28.Trust undertaking limits

1. Annually, the State Bank of Vietnam shall certify trust undertaking limit registrations of institutional trustees based on the following:

a/ Annual total offshore indirect investment limit approved by the Prime Minister;

b/ Capital amounts of institutional trustees being commercial banks, or entrusted assets of institutional trustees being fund management companies;

c/ Dealing limit registrations (if any) certified by the State Bank of Vietnam;

d/ Offshore indirect investment trust undertaking activities of institutional trustees in previous years;

dd/ Macro-economic situation and monetary policy objectives in each period.

2. By April 15 every year at the latest, an institutional trustee that wishes to undertake offshore indirect investment trust shall submit a dossier for trust undertaking limit registration directly or by post to the State Bank of Vietnam.

3. By May 15 every year at the latest, based on the grounds for trust undertaking limit registration certification specified in Clause 1 of this Article and valid dossiers of institutional trustees, the State Bank of Vietnam shall certify dealing limit registrations for such institutional trustees. In case of refusal to certify registrations, the State Bank of Vietnam shall reply in writing, clearly stating the reason.

4. The State Bank of Vietnam shall prescribe the determination of trust undertaking limits, order and procedures for registration of trust undertaking limits and certification of trust undertaking limit registrations.

Chapter V

COMPETENCE OF THE PRIME MINISTER, RESPONSIBILITIES OF MINISTRIES, SECTORS, INVESTORS AND RELATED SUBJECTS

Article 29.Competence of the Prime Minister

1. To approve annual total offshore indirect investment limits.

2. To decide to permit cases of offshore indirect investment under Article 9 of this Decree.

Article 30.Responsibilities of the State Bank of Vietnam

1. To perform the state management according to its functions, duties and powers over offshore indirect investment activities under this Decree.

2. To assume the prime responsibility for, and coordinate with the Ministry of Justice and Ministry of Planning and Investment in, formulating and submitting annual total offshore indirect investment limits to the Prime Minister for approval under Article 26 of this Decree.

3. To assume the prime responsibility for, and coordinate with related agencies in, submitting to the Prime Minister for consideration and decision cases of offshore indirect investment specified in Article 9 of this Decree.

4. To prescribe:

a/ Instruments permitted for offshore investment in each period;

b/ The process and procedures for grant and revocation of offshore indirect investment registration certificates to/of institutional dealers being commercial banks and general financial companies;

c/ The process and procedures for grant and revocation of offshore indirect investment trust undertaking registration certificates to/of institutional trustees being commercial banks;

d/ The safe investment ratio for institutional dealers being commercial banks and general financial companies;

dd/ The process and procedures for registration of dealing limits and trust undertaking limits and certification thereof;

e/ The process and procedures for, and contents of, implementation of programs on bonus provision of stocks of Vietnam-based foreign institutions and participation methods and contents of these programs of Vietnamese employees of Vietnam-based foreign institutions mentioned in Article 5 of this Decree;

g/ Procedures for offshore transfer of capital and remittance of capital and lawful earnings to Vietnam in the cases permitted by the Prime Minister for offshore indirect investment specified in Article 9 of this Decree.

h/ Opening and use of offshore indirect investment capital accounts and offshore indirect investment trust undertaking capital accounts specified in Article 11 of this Decree;

i/ The regime of reporting by investors on offshore indirect investment dealing, offshore indirect investment trust undertaking, dealing limits, trust undertaking limits specified in Article 35 of this Decree.

5. To manage foreign exchange in offshore indirect investment activities.

6. To examine and supervise offshore indirect investment activities of investors.

7. To assume the prime responsibility for, and coordinate with the Ministry of Finance in, summarizing offshore indirect investment data and assessing offshore indirect investment activities of investors, then annually reporting them to the Prime Minister under this Decree.

Article 31.Responsibilities of the Ministry of Finance

1. To prescribe the process and procedures for grant and revocation of offshore indirect investment registration certificates to/of institutional dealers being securities companies, fund management companies or insurance businesses; to prescribe the form and process and procedures for grant and revocation of written permission for offshore indirect investment to/of institutional dealers being securities investment funds or securities investment companies.

2. To prescribe the process and procedures for grant and revocation of offshore indirect investment trust undertaking registration certificates to/of institutional trustees being fund management companies.

3. To prescribe the safe investment ratio for institutional dealers being securities companies, fund management companies, securities investment companies, securities investment funds, insurance businesses or the State Capital Investment Corporation.

4. To examine, inspect and supervise according to its competence the compliance with the regulations on offshore indirect investment dealing and trust undertaking by securities companies, fund management companies, securities investment funds, securities investment companies, insurance businesses and the State Capital Investment Corporation.

5. To prescribe the regime of reporting on offshore indirect investment dealing by institutional dealers being securities companies, fund management companies, securities investment funds, securities investment companies, insurance businesses and the State Capital Investment Corporation; and on offshore indirect investment trust undertaking by institutional trustees being fund management companies specified in Article 35 of this Decree.

6. To coordinate with the State Bank of Vietnam in:

a/ Formulating and submitting annual total offshore indirect investment limits to the Prime Minister for approval under Article 26 of this Decree;

b/ Summarizing and providing data on offshore indirect investment, assessing offshore indirect investment activities of investors, and making annual reports to the Government on offshore indirect investment.

Article 32.Responsibilities of the Ministry of Planning and Investment

1. To coordinate with the State Bank of Vietnam in formulating and submitting annual total offshore indirect investment limits to the Prime Minister for approval under Article 26 of this Decree.

2. To coordinate with the State Bank of Vietnam and Ministry of Finance in examining, inspecting and supervising according to their competence the compliance with the regulations on offshore indirect investment dealing, trust and trust undertaking by investors.

Article 33.Responsibilities of investors

1. To comply with this Decree and current regulations on foreign exchange management and money laundering prevention and combat and other relevant Vietnamese regulations when conducting offshore indirect investment.

2. To take responsibility for the lawfulness of foreign-currency amounts used for offshore indirect investment.

3. To take responsibility before law for their legal capacity and financial capacity, economic efficiency and risks of capital amounts used for offshore indirect investment dealing or trust.

4. To observe the reporting regime prescribed in Article 35 of this Decree.

5. To fulfill requirements of competent agencies during the inspection, examination and supervision of offshore indirect investment activities in accordance with law.

Article 34.Responsibilities of commercial banks and foreign bank branches licensed to provide foreign exchange services

When conducting collection and payment transactions related to offshore indirect investment activities for investors, commercial banks and foreign bank branches licensed to provide foreign exchange services in Vietnam shall check, examine and keep papers and documents which match actual transactions in order to ensure that foreign exchange services are provided for proper purposes and in accordance with law.

Article 35.Reporting regime

1. Institutional dealers and trustees shall report on implementation of their dealing limits and trust undertaking limits under regulations of the State Bank of Vietnam.

2. Commercial banks and foreign bank branches licensed to provide foreign exchange services (where investors open their offshore indirect investment capital accounts or offshore indirect investment trust undertaking capital accounts) shall report on the opening and use of these accounts under regulations of the State Bank of Vietnam.

3. Institutional dealers and trustees shall report on offshore indirect investment dealing or offshore indirect investment trust undertaking under regulations of the State Bank of Vietnam and Ministry of Finance.

Article 36.Inspection, examination and supervision

1. The inspection, examination and supervision of offshore indirect investment activities under this Decree shall be conducted in accordance with the laws on inspection, examination and supervision.

2. The State Bank of Vietnam shall inspect, examine and supervise offshore indirect investment dealing activities of commercial banks and general financial companies; and offshore indirect investment trust undertaking activities of commercial banks.

3. The Ministry of Finance shall inspect, examine and supervise offshore indirect investment dealing activities of securities companies, securities investment companies, fund management companies, securities investment funds, insurance businesses and the State Capital Investment Corporation; and offshore indirect investment trust undertaking activities of fund management companies.

Article 37.Handling of violations

Violators of the provisions of this Decree shall, depending on the nature and seriousness of their violations, be administratively handled or examined for penal liability in accordance with law.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 38.Effect

This Decree takes effect on February 15, 2016.

Article 39.Implementation responsibility

1. The State Bank of Vietnam and Ministry of Finance shall guide and organize the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies and government-attached agencies, chairpersons of provincial-level People’s Committees and related organizations and individuals shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG