Decree 318/2026/ND-CP detailing Law on Recovery and Bankruptcy regarding cases of non-application to derivative contracts containing close-out netting terms

DECREE

Detailing a number of articles of the Law on Recovery and Bankruptcy concerning cases not applicable to derivative contracts containing netting terms^[1]

Pursuant to Law No. 63/2025/QH15 on Organisation of the Government;

Pursuant to Law No. 142/2025/QH15 on Recovery and Bankruptcy;

Pursuant to Law No. 32/2024/QH15 on Credit Institutions, which is amended and supplemented by Law No. 96/2025/QH15;

At the proposal of the Governor of the State Bank of Viet Nam;

The Government promulgates the Decree detailing a number of articles of the Law on Recovery and Bankruptcy concerning cases not applicable to derivative contracts containing netting terms.

Article 1. Scope of regulation

This Decree details a number of articles of the Law on Recovery and Bankruptcy concerning cases not applicable to interest-rate derivative contracts containing netting terms, including:

1. Clause 2, Article 27, and Clause 3, Article 40, regarding cases in which the handling of collateral of enterprises or cooperatives for secured creditors is not suspended.

2. Point c, Clause 1, Article 49, regarding cases in which the payment or clearing is not deemed null and void.

3. Clauses 1 and 5, Article 51, regarding cases in which the performance of contracts in force is not suspended or terminated.

4. Clause 1, Article 53, regarding cases in which reporting to judges is not required before the obligations are cleared.

Article 2. Subjects of application

1. Enterprises, and cooperatives and unions of cooperatives (below collectively referred to as cooperatives) established and operating in accordance with relevant laws.

2. Credit institutions and foreign bank branches established and operating in accordance with the law on credit institutions.

3. Agencies, organisations and individuals involved in procedures for recovery and bankruptcy of enterprises and cooperatives.

4. Other agencies, organisations and individuals involved in the implementation of this Decree.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Interest-rate derivative contract means an agreement between parties establishing their rights and obligations for the purpose of preventing or mitigating interest rate risks in accordance with the law on trading in and provision of interest-rate derivative products by credit institutions and foreign bank branches.

2. Netting term means an agreement under an interest-rate derivative contract whereby, upon the termination of the interest-rate derivative contract on or before their agreed maturity date, the contracting parties determine and pay a net amount after clearing amounts payable under the interest-rate derivative contract concluded between them, regarding it as an amount receivable or payable by one party on the maturity date or premature termination date of the interest-rate derivative contract.

Article 4. Cases in which the handling of collateral of enterprises or cooperatives for secured creditors is not suspended under Clause 2, Article 27 and Clause 3, Article 40 of the Law on Recovery and Bankruptcy

1. The handling of collateral of an enterprise or a cooperative for a secured creditor under an interest-rate derivative contract containing netting terms shall not be suspended in case the court accepts a claim for the application of recovery or bankruptcy procedures for such enterprise or cooperative.

2. At the request of the asset management officer/asset management and liquidation enterprise or the judge, the secured creditor shall provide information relating to the handling of collateral of the enterprise or cooperative:

a/ The reason why the handling of collateral is not suspended;

b/ The collateral being handled;

c/ The date of commencement of the handling of collateral;

d/ The place where the collateral is handled.

Article 5. Cases in which the payment or clearing is not deemed null and void under Point c, Clause 1, Article 49 of the Law on Recovery and Bankruptcy

1. The payment or clearing that is made under interest-rate derivative contracts containing netting terms within 6 months before the date on which the court issues a decision to commence bankruptcy procedures shall not be deemed null and void.

2. At the request of the asset management officer/asset management and liquidation enterprise or the judge, the parties to an interest-rate derivative contract containing netting terms shall provide the following information concerning the payment or clearing specified in Clause 1 of this Article:

a/ Netting terms;

b/ The time at which the payment or clearing is made;

c/ Documents and data relating to the payment or clearing.

Article 6. Cases in which the performance of contracts currently in force is not suspended or terminated under Clauses 1 and 5, Article 51 of the Law on Recovery and Bankruptcy

1. Interest-rate derivative contracts containing netting terms that remain in force at the time the court accepts a claim for the application of bankruptcy procedures or issues a decision to commence bankruptcy procedures shall not be subject to suspension or termination under Clauses 1 and 5, Article 51 of the Law on Recovery and Bankruptcy.

2. At the request of the asset management officer/asset management and liquidation enterprise or the judge, the parties to an interest rate derivative contract containing netting terms shall provide the following information:

a/ Netting terms;

b/ Documents and data evidencing that the interest-rate derivative contract remains in force.

Article 7. Cases in which reporting to judges is not required before the obligations are cleared under Clause 1, Article 53 of the Law on Recovery and Bankruptcy

1. After the court issues a decision to commence bankruptcy procedures, the clearing of obligations under an interest-rate derivative contract containing netting terms concluded before that time shall be carried out under the parties’ agreement upon the occurrence of bankruptcy, including the termination of all interest-rate derivative contracts between one party and the same partner, and the determination and clearing of amounts payable by the parties under those contracts to determine a single value difference on assets owed by one party to the other. The clearing of obligations is not subject to reporting to a judge for opinion before implementation.

2. The clearing of obligations specified in Clause 1 of this Article shall be carried out solely for the purpose of determining the value difference on assets owed by the parties. Payment of such value difference must comply with the law on recovery and bankruptcy.

3. At the request of the asset management officer/asset management and liquidation enterprise or the judge, the parties to an interest-rate derivative contract containing netting terms shall provide the following information concerning the clearing of obligations:

a/ The interest-rate derivative contract containing netting terms that provides an agreement upon the occurrence of bankruptcy and serves as a basis for clearing of obligations;

b/ The calculation methods for determining the net amount of asset value difference.

Article 8. Implementation provision

This Decree takes effect on August 12, 2026.

Article 9. Transitional provisions

1. For recovery or bankruptcy cases that have been accepted by the court but in which no decision declaring an enterprise or cooperative bankrupt has been issued before the effective date of this Decree, the provisions of this Decree shall apply for consideration and settlement of cases relating to interest-rate derivative contracts containing netting terms.

2. For cases in which the court has issued a decision declaring an enterprise or a cooperative bankrupt before the effective date of this Decree, the provisions of this Decree shall not apply for the consideration or settlement of the cases again.

Article 10. Implementation responsibility

1. The State Bank of Viet Nam shall organise the implementation of this Decree in accordance with law; and assume the prime responsibility for, and coordinate with ministries and ministerial-level agencies in, solving problems arising in the course of implementation of this Decree at the request of the Supreme People’s Court.

2. Ministers, heads of ministerial-level agencies and related organisations and individuals shall implement this Decree.-

On behalf of the Government
For the Prime Minister
Deputy Prime Minister
NGUYEN VAN THANG