Decree No. 59/2009/ND-CP dated July 16, 2009, of the Government on organization and operation of commercial banks

THE GOVERNMENT

Decree No. 59/2009/ND-CP of July 16, 2009, on organization and operation of commercial banks

THE GOVERNMENT

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

Pursuant to December 12, 1997 Law No. 01/1997/QH10 on the State Bank of Vietnam, and June 17, 2003 Law No. 10/2003/QH11 Amending and Supplementing a Number of Articles of the Law on the State Bank of Vietnam;

Pursuant to December 12, 1997 Law No. 02/1997/QH10 on Credit Institutions, and June 15, 2004 Law No. 20/2004/QH11 Amending and Supplementing a Number of Articles of the Law on Credit Institutions;

Pursuant to December 29, 2005 Law No. 60/2005/QH11 on Enterprises;

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

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides for the organization and operation of commercial banks granted establishment and operation licenses by the State Bank of Vietnam (below referred to as the State Bank).

Article 2. Subjects of application

1. Commercial banks, including:

a/ State-run commercial banks;

b/ Joint-stock commercial banks;

c/ Joint-venture commercial banks;

d/ Wholly foreign-owned commercial banks.

(Below collectively referred to as banks).

2. Organizations and individuals involved in the organization and operation of banks.

Article 3. Use of the term “bank”

Institutions other than credit ones are disallowed to use the term “bank” in their names and any extension thereof, documents, notices or advertisements since that term might mislead the public as to the fact that these institutions are banks.

Article 4. Application of legal provisions

1. In case a treaty to which Vietnam has signed or acceded contains provisions different from those of this Decree on the organization and operation of commercial banks, the provisions of that treaty prevail.

2. For joint-venture commercial banks and wholly foreign-owned commercial banks, this Decree will apply to matters not governed by the Government’s Decree No. 22/2006/ND-CP of February 28, 2006, on organization and operation of branches of foreign banks, joint-venture banks and wholly foreign-owned banks, and representative offices of foreign credit institutions in Vietnam.

Article 5. Interpretation of terms

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

1. Commercial bank means a bank licensed to conduct all banking operations and other related business activities for profit purposes under the Law on Credit Institutions and other provisions of law.

2. State-run commercial bank means a commercial bank of which the State owns more than 50% of the charter capital. State-run commercial banks include commercial banks with wholly state-owned charter capital and joint-stock commercial banks with more than 50% of charter capital owned by the State.

3. Joint-stock commercial bank means a commercial bank organized in the form of a joint-stock company.

4. Wholly foreign-owned commercial bank means a commercial bank established in Vietnam with 100% of its charter capital owned by foreign parties, including a foreign bank owning more than 50% of the charter capital (the holding bank). Wholly foreign-owned commercial banks must be established in the form of one-member limited liability companies or limited liability companies with two or more members, and have the Vietnamese legal entity status and Vietnam-based head offices.

5. Joint-venture commercial bank means a commercial bank established in Vietnam with capital contributed by a Vietnamese party (consisting of one or more than one Vietnamese bank) and a foreign party (consisting of one or more than one foreign bank) under a joint-venture contract. Joint-venture commercial banks must be established in the form of limited liability companies with two or more members, and have the Vietnamese legal entity status and Vietnam-based head offices.

6. Subsidiary of a commercial bank means an enterprise having the legal entity status and conducting the independent accounting with its own capital, in which the commercial bank:

a/ Owns more than 50% of that subsidiary’s charter capital or total number of outstanding common shares; or,

b/ Has the right to directly or indirectly appoint a majority or all members of that subsidiary’s Board of Directors, Director or Director General; or,

c/ Has the right to decide on amendment and supplementation of that subsidiary’s charter.

7. Bank executive officers include the Director General, Deputy Directors General and holders of other executive posts as provided in the bank charter.

8. Bank managers include the Chairman and members of the Board of Directors, the Director General and holders of other managerial posts as provided in the bank charter.

9. Affiliated person means an organization or individual in relation to another organization or individual in any of the following cases:

a/ A holding company in relation to its subsidiaries and vice versa; a bank in relation to its subsidiaries and vice versa; subsidiaries of the same holding company; subsidiaries of the same bank;

b/ A company in relation to its managers and members of its Control Board or a person or organization competent to appoint these persons, and vice versa;

c/ A company in relation to individuals owning 10% or more of its charter capital, and vice versa;

d/ Persons with family bonds, including spouses, parents, adoptive parents, children, adopted children and blood siblings;

e/ A company in relation to persons having family bonds (as mentioned at Point d of this Clause) with managers, members of the Control Board, capital contributors or shareholders owning at least 10% of that company’s charter capital, and vice versa;

f/ Individuals authorized to represent persons defined at Points a, b, c, d and e of this Clause in relation to their principals.

10. Independent member of the Board of Directors means a member of the Board of Directors who satisfies the criteria and conditions specified in Article 22 of this Decree.

11. Major share level means a level of share accounting for 5% or more of the voting equity capital of a bank.

12. Reorganization of a bank means split-up, separation, consolidation, merger, acquisition and transformation of the bank.

Article 6. Representatives at law

1. The Chairman of the Board of Directors or the Director General is the representative at law of a bank as stated in the bank charter. The representative at law of a bank may authorize in writing another person under the mechanism of internal authorization formulated by the Board of Directors to perform his/her tasks and exercise his/her powers. Documents on authorization must clearly state the scope and duration of representation. Authorized representatives may only conduct transactions within the scope of representation.

2. Representatives at law of banks must reside in Vietnam. Those who are absent from Vietnam shall authorize in writing others who are residing in Vietnam under Clause 1 of this Article to perform their tasks and exercise their powers.

Article 7. Mechanism of internal authorization and assignment

Banks shall formulate the mechanism of internal authorization and assignment within the Board of Directors and Control Board, and between the Director General and his/her assisting apparatus under this Decree and other regulations in order to assure the safe, effective and uninterrupted governance and management of banks.

Article 8. Examination and inspection of banks

Banks are subject to examination and inspection by the State Bank under law.

Chapter II

ESTABLISHMENT OF BANKS

Article 9. Competence to grant establishment and operation licenses

1. The State Bank is competent to grant bank establishment and operation licenses.

2. The State Bank may refuse to grant bank establishment and operation licenses if applicants for these licenses fail to satisfy the conditions specified in this Decree.

Article 10. Conditions for obtaining establishment and operation licenses

1. Conditions for a bank to obtain an establishment and operation license comply with Article 22 of the Law on Credit Institutions, specific provisions of this Decree and guidance of the State Bank.

2. Joint-venture commercial banks and wholly foreign-owned banks must, apart from the above conditions, satisfy the conditions specified in the Government’s Decree No. 22/2006/ND-CP of February 28, 2006, on organization and operation of branches of foreign banks, joint-venture banks and wholly foreign-owned banks, and representative offices of foreign credit institutions in Vietnam.

Article 11. Dossiers of and procedures for application for establishment and operation licenses

Dossiers of and procedures for application for bank establishment and operation licenses comply with the Law on Credit Institutions and guidance of the State Bank.

Article 12. Other provisions

Other provisions on the grant and use of bank establishment and operation licenses, business registration and conditions for conducting banking operations comply with Articles 24 thru 28 of the Law on Credit Institutions and guidance of the State Bank.

Chapter III

ORGANIZATION OF MANAGEMENT OF BANKS

Section 1. ORGANIZATION OF BANKS

Article 13. Organizational structure of the network

1. A bank must have a head office the organizational structure of which may be decided by the bank itself.

2. Banks may set up transaction bureaus, branches and representative offices, and establish non-business units and subsidiaries under the State Bank’s regulations and relevant current regulations. Banks may establish their subsidiaries to operate in finance, banking and insurance domains and manage, exploit and sell assets in the course of handling assets used as security for loans and assets assigned by the State to them for handling and recovery of debts.

Article 14. Organizational structure of the management apparatus

1. Organizational structure of the management apparatus of a joint-stock commercial bank or joint-stock commercial bank with more than 50% of the charter capital owned by the State consists of the Shareholders’ Meeting, Board of Directors, Control Board, Director General and assisting apparatus.

2. Organizational structure of the management apparatus of a state-run commercial bank with wholly state-owned charter capital, joint-venture commercial bank or wholly foreign-owned commercial bank consists of the Board of Directors, Control Board, Director General and assisting apparatus.

Article 15. Reorganization of banks

The reorganization of banks shall be conducted under law and subject to the State Bank Governor’s written approval.

Section 2. GENERAL PRINCIPLES FOR GOVERNANCE, CONTROL AND MANAGEMENT

Article 16. The Board of Directors and its structure

1. The Board of Directors of a bank is the bank governance having the full power to exercise the rights, perform the obligations and decide on matters of the bank on the latter’s behalf, except matters falling within the powers of the Shareholders’ Meeting (for joint-stock commercial banks) or the owner (for state-run commercial banks and wholly foreign-owned banks organized as one-member limited liability companies) or the capital contributors (for joint-venture commercial banks and wholly foreign-owned banks organized as limited liability companies with two or more members).

2. The Board of Directors must have between 3 and 11 members as specified in the bank charter. At least a half of the total number of members of the Board of Directors must be non-executive officers and at least 2 independent members. The Chairman of the Board of Directors may be an independent member.

3. Individuals and their affiliated persons or representatives of the contributed capital portion of an organization may not account for over one-third of the total number of members of the Board of Directors (this provision is applicable only to joint-stock commercial banks).

4. Members of the Board of Directors who possess no university degree may not account for over a quarter of the total number of the Board’s members.

5. The term of office of the Board of Directors is 5 years. The term of office of a member of the Board of Directors must not exceed 5 years. Members of the Board of Directors may be elected or re-appointed with an unlimited number of terms of office. The term of office of members of the Board of Directors who are added to the Board of Directors or replace those who automatically lose their status or who are dismissed or relieved from duty is the remaining term of office of the Board of Directors. A Board of Directors with an expired term of office may continue working until another Board of Directors with a new term of office takes up the work.

6. In case the number of members of the Board of Directors is reduced by over one-third as compared with the number set in the bank charter or is less than the minimum number prescribed by law, within 60 days from the date that number becomes deficient, the bank shall sufficiently add new members to the Board of Directors.

7. The Board of Directors may use the seal of the bank in performing its tasks.

8. The Board of Directors is assisted by its Secretary. The functions and tasks of the Secretary of the Board of Directors are specified by the Board.

9. The Board of Directors shall set up commissions to perform its tasks and exercise its powers, including at least 2 commissions: Risk Management Commission and Personnel Commission.

Article 17. The Control Board and its structure

1. The Control Board is a body supervising banking operations to accurately assess business operation and financial status of a bank.

2. The Control Board of a bank is composed of at least 3 members. The number of members of the Control Board is specified in the bank charter, with at least half of them being full-timers.

3. The Control Board has an assisting apparatus and may use the internal audit division of the bank to perform its tasks.

4. The term of office of the Control Board is 5 years. The term of office of a member of the Control Board must not exceed 5 years. Members of the Control Board may be elected or re-appointed with an unlimited number of terms of office. The term of office of members of the Control Board who are added to the Control Board or replace those who automatically lose their status or who are dismissed or relieved from duty is the remaining term of office of the Control Board. A Control Board with an expired term of office may continue working until another Control Board with a new term of office takes up the work.

5. In case the number of members of the Control Board is reduced by over one-third as compared with the number set in the bank charter or is less than the minimum number prescribed by law, within 60 days from the date that number becomes deficient, the bank shall sufficiently add new members to the Control Board.

Article 18. Director General and his/her assisting apparatus

1. The Board of Directors shall appoint one among its members as the Director General or hire a person to hold this post. The Director General shall manage daily business operations of the bank, be subject to supervision by the Board of Directors and the Control Board, and take responsibility before the Board of Directors and law for the exercise of rights and performance of tasks under this Decree, other relevant provisions of law and the bank charter.

2. The term of office of the Director General must not exceed 5 years. The Director General may be re-appointed with unlimited number of terms of office.

3. The Board of Directors shall specify the structure, functions and tasks of the assisting apparatus of the Director General.

Article 19. Persons who are disallowed to hold certain posts

1. The following persons may not act as the Chief Accountant, Director of Transaction Bureau, Director of Branch or Director of Subsidiary of a bank:

a/ Minors; persons with restricted or lost civil act capacity;

b/ Persons currently examined for penal liability or with criminal records;

c/ Persons previously convicted for crimes of infringing upon national security and property ownership; persons previously convicted for crimes of serious or particularly serious degree;

d/ Cadres and civil servants defined by the law on public employees; leading officials and professional operation managers of wholly state-owned enterprises, except persons authorized to act as representatives to manage state capital portions in other enterprises;

e/ Officers, non-commissioned officers, career army men and defense workers in agencies and units of the Vietnam People’s Army; career officers and non-commissioned officers in agencies and units of the Vietnam People’s Public Security Force;

f/ Parents, spouses, children and blood siblings of members of the Board of Directors and Director General may not act as the Chief Accountant of a bank;

g/ Other persons specified in the bank charter.

2. The following persons may not act as members of the Board of Directors and Control Board, the Director General and Deputy Directors General of a bank:

a/ Persons specified in Clause 1 of this Article;

b/ Persons who used to be private enterprise owners, partners of partnerships, directors (directors general), chairman and members of the Board of Directors, the Members’ Council and the Control Board of an enterprise, manager and members of the Management Board of a cooperative at the time that enterprise or cooperative is declared bankrupt, unless its bankruptcy is declared for a force majeure reason.

c/ Representatives at law of enterprises at the time these enterprises are suspended from operation, forced to dissolve for their serious violation of law, unless they act as representatives at the request of a competent state authority in order to reorganize or consolidate these enterprises;

d/ Persons who had been suspended from holding the post of Chairman or member of the Board of Directors, Head or member of the Control Board or Director General of a bank under Article 25 of this Decree, or determined by a state administration or legal body as having committed violations leading to the revocation of a bank’s establishment and operation license.

e/ Parents, spouses, children and blood siblings of members of the Board of Directors and Director General may not act as members of the Control Board of a bank.

Article 20. Persons who are disallowed to concurrently hold certain posts

1. A member of the Board of Directors of a bank:

a/ May not concurrently act as a member of the Control Board of the bank;

b/ May not concurrently act as a manager of another credit institution, unless he/she obtains approval of the Board of Directors of which he/she is a member or that institution is a subsidiary of the bank;

c/ The Chairman of the Board of Directors of the bank may not concurrently act as an executive officer of the bank or a member of the Board of Directors or an executive officer of another credit institution, unless that institution is a subsidiary of the bank.

2. A member of the Control Board of a bank:

a/ May not concurrently act as a member of the Board of Directors, an executive officer or staff member of the bank or a subsidiary of the bank;

b/ May not concurrently act as a member of the Board of Directors or an executive officer of an enterprise whose Control Board’s members are currently members of the Board of Directors or executive officers of the bank;

c/ The Head of the Control Board may not concurrently be a member of the Control Board or an executive officer of another credit institution.

3. The Director General and Deputy Directors General may not concurrently act as executive officers or Chairmen of the Boards of Directors of other credit institutions, unless these institutions are subsidiaries of the bank. They may not concurrently join in the governance of other enterprises.

Article 21. Criteria and conditions to be elected or appointed to certain posts

1. Criteria and conditions for a member of the Board of Directors:

a/ Being other than persons specified in Clause 2, Article 19 of this Decree;

b/ Having professional ethics in compliance with Articles 27 and 28 of this Decree;

c/ Being knowledgeable about banking operations:

- Possessing a university or postgraduate degree in economics or law; or,

- Having at least 3 years’ experience of working as a manager of an enterprise operating in the finance-banking, insurance, securities, accounting or audit domain; or,

- Being an individual shareholder owning at least 5% of the bank’s total common equity capital imbued with the voting right, and possessing a certificate of having passed a banking training course issued by a competent authority or having at least one year’s experience of working in the banking service;

d/ For independent members of the Board of Directors: Apart from the criteria specified at Points a, b and c of this Clause, these persons shall satisfy the criteria and independence requirement specified in Article 22 of this Decree.

2. Criteria and conditions for a member of the Control Board:

a/ Being other than persons specified in Clause 2, Article 19 of this Decree;

b/ Having professional ethics in compliance with Articles 27 and 28 of this Decree;

c/ Possessing a university or postgraduate degree in economics, law or professional domain he/she is to be in charge of; and having at least 3 years’ experience of working directly in finance-banking, accounting or audit domain;

d/ Being other than affiliated persons of the bank manager;

e/ Residing in Vietnam during his/her term of office (for full-time members of the Control Board).

3. Criteria and conditions for a Director General:

a/ Being other than persons specified in Clause 2, Article 19 of this Decree;

b/ Having professional ethics in compliance with Articles 27 and 28 of this Decree;

c/ Being professionally qualified and experienced:

- Possessing a university or postgraduate degree in finance-banking, and having at least 3 years’ experience of acting as the Director General (Director), a Deputy Director General (Deputy Director) or Director of an attached unit (branch, transaction bureau or subsidiary) of a commercial bank; or,

- Possessing a university or postgraduate degree in training majors other than finance-banking, and having at least 5 years’ experience of acting as the Director General (Director), a Deputy Director General (Deputy Director) or Director of an attached unit (branch, transaction bureau or subsidiary) of a commercial bank.

d/ Residing in Vietnam during his/her term of office.

4. Criteria and conditions for Deputy Directors General, Chief Accountants, Directors of Transaction Bureaus, Branches or Subsidiaries:

a/ Being other than persons specified in Clause 1, Article 19 of this Decree; or being other than persons specified in Clause 2, Article 19 of this Decree, particularly for Deputy Directors General;

b/ Being professionally qualified and experienced:

(i) Possessing a university or postgraduate degree in economics, law or a professional domain he/she is to be in charge of; or,

(ii) Possessing a university or postgraduate degree in domains other than those specified above, and having at least 3 years’ experience of working directly in finance-banking or a professional domain he/she is to be in charge of.

c/ Residing in Vietnam during his/her term of office.

5. Apart from the criteria and conditions specified in this Article, members of the Board of Directors or Control Board, Directors General, Deputy Directors General and Chief Accountants of state-run commercial banks shall comply with relevant current regulations applicable to state enterprises.

Article 22. Criteria and conditions on independence of independent members of the Board of Directors

1. Being other than those working for banks or their subsidiaries, or having worked for banks or their subsidiaries any time for the last 3 years.

2. Being other than those enjoying salaries, remunerations and other allowances paid by banks in addition to amounts enjoyable by members of the Board of Directors.

3. Spouses, parents, adoptive parents, blood children and adopted children, and blood siblings of these persons who do not fall into any of the following cases: owning at least 5% of the voting equity capital of joint-stock commercial banks; acting as managers or members of the Control Board of banks or their subsidiaries at present or any time in the last 3 years.

4. Being other than managers or members of the Control Boards of banks at any time in the last 5 years; neither owning nor representing the ownership of at least 1% of the voting equity capital of joint-stock commercial banks.

5. Not joining affiliated persons defined in Clause 11, Article 5 of this Decree in owning at least 5% of the voting equity capital of joint-stock commercial banks.

Article 23. Automatic loss of status

1. Cases in which the status of a member of the Board of Directors or Control Board or of a Director General is automatically lost:

a/ He/she has lost his/her civil act capacity or died;

b/ He/she violates Clause 2, Article 19 of this Decree;

c/ The legal entity status of an institutional shareholder (of which he/she is the capital contribution representative) terminates;

d/ His/her status as an authorized representative terminates;

e/ He/she is expelled from the territory of the Socialist Republic of Vietnam under a court ruling;

f/ The bank has its establishment and operation license revoked;

g/ The State Bank Governor’s decision approving posts of the new term of office takes effect;

h/ The contract for hiring the Director General ceases to be effective.

2. Within 5 working days from the date of identification of post holders whose status is automatically lost under Points a, b, c, d, e and h, Clause 1 of this Article, the Board of Directors of a bank shall send a report thereon enclosed with evidencing documents to the State Bank and take responsibility before law for the accuracy and truthfulness of such report. At the same time, it shall carry out procedures to elect and appoint other persons to vacant posts under law.

3. After being determined as having lost their status, the Chairman and members of the Board of Directors, the Head and members of the Control Board, and the Director General of a bank shall still bear personal liability for their decisions which are unlawful and contrary to the bank charter or their intentionally wrong decisions made during their terms of office.

4. The State Bank Governor-approved posts of persons whose status is automatically lost under Clause 1 of this Article are automatically invalidated.

Article 24. Dismissal and relief from duty

1. The Chairman or a member of the Board of Directors, the Head or a member of the Control Board, or the Director General of a bank shall be considered for dismissal or relief from duty in the following cases:

a/ His/her civil act capacity is restricted;

b/ He/she applies for resignation (clearly stating reason therefor);

c/ He/she fails to satisfy the requirement on independence, for independent members of the Board of Directors;

d/ He/she has failed to participate in activities of the Board of Directors (for members of the Board of Directors) for 6 consecutive months, except in force majeure circumstances;

e/ He/she is determined by a state administration as having seriously violated Articles 27 or 28 of this Decree;

f/ The authority with election and appointment competence finds such dismissal or relief from duty necessary;

g/ Other cases specified in the bank charter.

2. After being dismissed or relieved from duty, the Chairman and members of the Board of Directors, Head and members of the Control Board, and the Director General of a bank shall still bear personal liability for their decisions which are unlawful and contrary to the bank charter or their intentionally wrong decisions made during their terms of office.

3. The State Bank Governor-approved posts of persons who are dismissed or relieved from duty under decisions of competent bodies of banks are automatically invalidated.

4. Within 5 working days from the date of approval of decisions on dismissal or relief from duty of post holders specified in Clause 1 of this Article, the Board of Directors of a bank shall send a report thereon enclosed with evidencing documents to the State Bank and take responsibility before law for the accuracy and truthfulness of such report. At the same time, it shall carry out procedures to elect and appoint other persons to vacant posts under law.

Article 25. Termination and suspension

1. In case a bank is placed under special control, the Special Control Commission set up by the State Bank may terminate or suspend the performance of tasks or exercise of powers of the Chairman and members of the Board of Directors, the Head and members of the Control Board and the Director General when finding it necessary.

2. In case the Chairman and members of the Board of Directors, the Head and members of the Control Board or the Director General of a bank violate Article 20 of this Decree, provisions of law and the bank charter while performing assigned tasks or exercising vested powers, the State Bank may terminate or suspend their task performance or power exercise when finding it necessary.

3. The Chairman and members of the Board of Directors, the Head and members of the Control Board and the Director General of a bank may be stopped or suspended from performing their tasks or exercising their powers under decisions of law protection agencies.

4. Persons who are stopped or suspended from performing their tasks or exercising their powers under this Article shall participate in handling problems, errors and violations related to their personal liability when so requested by the Board of Directors and the Control Board or the Special Control Commission or a competent state authority.

Article 26. Requirements on approval of election or appointment

1. The election or appointment of the Chairman and members of the Board of Directors, the Head and members of the Control Board and the Director General of a bank must be approved by the State Bank Governor (except cases of appointment by the Prime Minister). The State Bank shall specify procedures and dossiers of request for approval of election or appointment of holders of these posts.

2. Banks shall specify and take responsibility for the appointment, dismissal or relief from duty of holders of posts specified in Clause 4, Article 21 of this Decree, and notify the State Bank of the list of appointed post holders enclosed with their curricula vitae.

Article 27. Publicity of related benefits

The publicity of related benefits complies with Article 118 of the Enterprise Law.

Article 28. Obligations of members of the Board of Directors and the Control Board, executive officers, directors of branches, transaction bureaus, subsidiaries and non-business units

1. To exercise the powers vested and perform the tasks assigned to them under law, bank charters, decisions of the Shareholders’ Meeting, owners or capital contributors of their banks.

2. To exercise the powers vested and perform the tasks assigned to them in an honest and cautious manner for the best of their banks.

3. To be loyal to interests of their banks; to refrain from using business information, know-how and opportunities of their banks, or abuse their positions, posts and their banks’ property for self-seeking purposes or in the interest of other organizations and individuals or to the prejudice of their banks’ interests.

4. To promptly, adequately and accurately notify their banks of likely conflicting interests which have been obtained from economic organizations, transactions or other individuals, and to be allowed to take these opportunities after the Board of Directors has considered and approved them.

5. Not to illegally compete with their banks or create conditions for a third party to harm interests of their banks.

6. Not to create conditions for themselves or their affiliated persons defined in Clause 10, Article 5 of this Decree to borrow loans from their banks under conditions more preferential and favorable than those prescribed by law and their banks.

7. Not to have their salaries and remunerations increased or enjoy bonuses when their banks suffer from losses.

8. To perform other obligations specified in charters of their banks.

Article 29. Remunerations, salaries and other benefits of members of the Board of Directors and Control Board, and the Director General

Remunerations, salaries and other benefits of members of the Board of Directors and Control Board, and the Director General shall be considered and decided by the Shareholders’ Meeting (for joint-stock commercial banks), owners (for commercial banks organized as one-member limited liability companies), the Board of Directors (for commercial banks organized as limited liability companies with two or more members) in compliance with Articles 117 and 125 of the Enterprise Law.

Section 3. JOINT-STOCK COMMERCIAL BANKS

Article 30. Types of shares and shareholders

1. Types of shares and shareholders are defined in Clauses 1, 3, 5 and 6, Article 78 of the Enterprise Law.

2. Banks may have preferred shares. Owners of preferred shares are called preferred shareholders. Preferred shares have the following types:

a/ Shares with preferred voting right;

b/ Shares with preferred dividends;

c/ Other preferred shares stated in the bank charter, except those leading to reduction of the bank’s charter capital.

3. Shares with preferred voting right comply with Clause 1, Article 81 of the Enterprise Law.

4. Shares with preferred dividends:

a/ Shares with preferred dividends mean shares for which higher dividends are paid as compared with dividends of common shares or a fixed annual dividend amount. Annually divided dividends include fixed dividends and bonus dividends. Fixed dividends are paid only when banks make profits regardless of their business results. Fixed dividends for shares with preferred dividends of banks making loss in a year may be accumulated in subsequent years. Specific fixed dividend amounts and methods of determining bonus dividends shall be decided by the Shareholders’ Meeting and stated in stocks with preferred dividends;

b/ Total par value of shares with preferred dividends is maximum equal to 20% of the bank’s charter capital;

c/ Members of the Board of Directors and Control Board, the General Director and other managerial and executive post holders of an issuing bank may not purchase shares with preferred dividends of their bank. Persons allowed to purchase shares with preferred dividends are defined in the bank charter or decided by the Shareholders’ Meeting.

5. A bank must have at least 100 shareholders. The number of its shareholders is unlimited.

6. Shares of founding shareholders comply with the State Bank’s regulations on establishment of joint-stock commercial banks.

Article 31. Rights of shareholders

1. Common shareholders have the following rights:

a/ The rights provided for at Points a, b, c, e, f and g, Clause 1, Article 79 of the Enterprise Law;

b/ To transfer their shares or sell shares back to their banks under this Decree and bank charters;

c/ To authorize in writing others to exercise their rights and perform their obligations. Authorized persons may re-authorize in writing others when so consented by shareholders;

d/ Shareholders or a group of shareholders holding more than 10% of the total common shares for at least 6 consecutive months or at a lower holding rate under bank charters have the rights provided in Clauses 2 and 3, Article 79 of the Enterprise Law;

e/ To nominate persons to the Board of Directors and Control Board under Clause 4, Article 79 of the Enterprise Law, and send the list of candidates to the Board of Directors within a time limit prescribed by the Board of Directors.

2. Shareholders with preferred voting right have the rights provided in Clause 2, Article 81 of the Enterprise Law.

3. Shareholders with preferred dividends have the rights provided in Clause 2, Article 82 of the Enterprise Law.

Article 32. Obligations of shareholders

1. Shareholders of a bank shall perform the following obligations:

a/ To pay fully for amounts of shares which they pledge to purchase within a time limit prescribed by the bank; to take responsibility for debts and other property liabilities of the bank in proportion to their capital amounts contributed to the bank;

b/ To refrain from withdrawing their contributed equity capital amounts from the bank in any form, which leads to reduction of the bank’s charter capital, unless their shares are redeemed by the bank or purchased by others under this Decree. In case shareholders withdraws part or whole of their contributed equity capital amounts in contravention of this Clause, members of the Board of Directors and the representative at law of the bank shall take joint responsibility for the bank’s debts and other property liabilities within the value of withdrawn shares;

c/ To be held responsible before law for the lawfulness of capital sources for purchasing bank shares.

d/ To perform other obligations specified in Clauses 2, 3, 4 and 5, Article 80 of the Enterprise Law.

2. Shareholders acting as entrusted investors for other organizations and individuals shall supply information on real owners of shares they are holding for entrusted investment. If they fail to do so and the bank discovers real share owners, it may terminate shareholder rights related to amounts of shares with unpublicized real owners.

Article 33. Shareholder registers and drawing up of shareholder lists

1. Shareholder registers comply with Article 86 of the Enterprise Law.

2. Drawing up of the list of shareholders:

a/ The bank shall specify the time of drawing up the list of shareholders enjoying the shareholder rights and assure that shareholders have enough time for registering changes in their personal status and share amounts they are holding with the bank before the above time;

b/ For share transfer transactions conducted during the period from the date of finalizing the list of shareholders to the date the shareholder rights are exercised, transferors are entitled to shareholder rights.

Article 34. Share holding rate

1. An individual shareholder may hold up to 10% of a bank’s charter capital.

2. An institutional shareholder may hold up to 20% of a bank’s charter capital.

3. Shareholders and their affiliated persons may hold up to 20% of a bank’s charter capital.

4. In special cases, the Prime Minister may, at the State Bank’s request and in the national interest, decide on a share holding rate exceeding the rate prescribed in Clause 2 or 3 of this Article.

5. Share holding rate of foreign investors complies with Article 4 of the Government’s Decree No. 69/2007/ND-CP of April 20, 2007, on foreign investors’ purchase of shares of Vietnamese commercial banks.

6. Holders of convertible bonds shall, after converting these bonds into stocks, abide by the share holding cap specified in this Article.

Article 35. Stocks

1. Contents related to stocks comply with Article 85 of the Enterprise Law.

2. Bank stocks may not be used as collaterals at their issuing banks.

3. Within 30 days after starting operation (for newly established banks) or registering their new charter capital with business registry offices (for operating banks), banks shall issue new stocks to their shareholders in case these stocks take the form of certificates.

Article 36. Offering and transfer of shares

1. The offering and transfer of shares comply with Clauses 1, 2, 3, 4 and 6, Article 87 of the Enterprise Law.

2. Banks shall specify share transfer order and procedures in compliance with law. Shares must be transferred under written contracts of the ordinary form or by the hand-to-hand mode. Transfer documents must be signed by transferors and transferees or their authorized representatives. Transferors will still be holders of transferred shares until names of transferees are recorded in shareholder registers. In case only a number of shares in registered stocks are transferred, old stocks shall be revoked and banks issuing new stocks shall record transferred shares and remaining shares.

3. The following cases of share transfer are subject to the State Bank Governor’s prior written approval:

a/ Trading in major shares;

b/ Trading in shares which lead to changes in shareholders holding major shares.

4. Individual and legal entity shareholders with their contributed capital representatives being members of the Board of Directors or Control Board or the Director General may transfer shares during the period they hold these posts and within one year after they cease to hold these posts but shall retain at least 50% of the total amount of shares they hold at the time they are elected by the Shareholders’ Meeting or appointed by the Board of Directors, and report in writing on the share transfer to the State Bank at least 15 working days before effecting the transfer.

5. In the course of handling consequences under a resolution of the Shareholders’ Meeting within their personal responsibility, members of the Board of Directors and Control Board and the Director General may not transfer shares, unless they:

a/ Act as authorized representatives of institutional shareholders that are merged, consolidated, split up, dissolved or bankrupt under law;

b/ Are forced to transfer shares under court rulings.

6. The transfer of shares of listed banks complies with the law on securities and securities market.

7. The transfer of shares by shareholders that have contributed capital to establishing banks complies with the State Bank’s regulations.

Article 37. Issuance of bonds

Apart from complying with Article 88 of the Enterprise Law, the issuance of bonds, convertible bonds and other types of bond by banks must:

1. Comply with the Law on Credit Institutions and relevant guiding legal documents.

2. For convertible bonds:

a/ Convertible bonds mean bonds which may be converted into common stocks of issuing banks under conditions specified in issuance plans;

b/ A bank’s plans on issuance of convertible bonds must be adopted by the Board of Directors and approved in writing by the State Bank Governor;

c/ Banks shall specify methods and time of issuance, time limit for and ratio of bond conversion, trading band of stocks, use purposes of proceeds from issuance of convertible bonds, rights and obligations of convertible bond owners as provided by law. Such information must be disclosed at the time of issuance of convertible bonds.

d/ Procedures and dossiers of application for issuance of convertible bonds comply with the State Bank’s regulations and other relevant current regulations.

Article 38. Payment of dividends

1. The payment of dividends by banks complies with Article 93 of the Enterprise Law.

2. Banks may not pay interests or another sum of money of interest nature for dividends, unless they pay dividends into shareholders’ deposit accounts at banks.

Article 39. Purchase of shares and bonds

Shares and bonds of banks may be purchased in Vietnamese currency and must be paid for in lump sums.

Article 40. Buy-back of shares at request of shareholders or under decisions of banks

1. The buy-back of shares at request of shareholders or under decisions of banks complies with Articles 90 and 91 of the Enterprise Law and the securities law.

2. Conditions for payment for and handling of bought-back shares comply with Clauses 2 and 3, Article 92 of the Enterprise Law. Banks may only pay for bought-back shares to shareholders if they are, right after fully paying for these shares, still able to fully pay their debts and fulfill other property obligations and assure safety ratios in banking operations and that their charter capital is not lower than the legal capital and satisfy other relevant conditions prescribed by the State Bank. Banks’ buy-back of their own shares which leads to the reduction of their charter capital is subject to the State Bank’s prior written approval.

Article 41. Shareholders’ Meeting

1. The Shareholders’ Meeting complies with Clauses 1 and 3, Article 96 of the Enterprise Law.

2. The Shareholders’ Meeting has the following rights and tasks:

a/ To adopt development orientations of the bank;

b/ To decide on amendments and supplements to the bank charter;

c/ To adopt internal regulations on organization, operation, functions, responsibilities and powers of the Board of Directors and Control Board;

d/ To elect, dismiss or relieve from duty members of the Board of Directors and Control Board in compliance with the conditions and criteria specified in this Decree;

e/ To decide on the total amount of remuneration, bonus and other benefits to be paid to the Board of Directors and Control Board, and operating funds of these Boards;

f/ To consider and handle violations of the Board of Directors and Control Board which cause damage to the bank and its shareholders;

g/ To adopt plans to change the charter capital; to decide on types of share and total amount of shares of each type to be offered;

h/ To decide on buy-back of sold shares under this Decree;

i/ To adopt plans on issuance of convertible bonds;

j/ To adopt annual financial statements and profit-sharing plans;

k/ To adopt reports of the Board of Directors and Control Board on performance of their assigned tasks and exercise of their powers;

l/ To decide on the bank’s trading contracts neither banned nor restricted under the Law on Credit Institutions, the Law Amending and Supplementing a Number of Articles of the Law on Credit Institutions and guiding documents with members of the Board of Directors and Control Board, the Director General, shareholders holding major shares and their affiliated persons, which are valued at more than 20% of the bank’s own capital or another lower ratio stated in the bank charter. In this case, involved shareholders have no voting right. A contract or transaction is approved when shareholders representing at least 65% of the total number of remaining votes so agree;

m/ To decide on establishment of subsidiaries;

n/ To decide on reorganization or dissolution, or request the bankruptcy of the bank;

o/ To have other rights and obligations provided in the bank charter.

3. Annual Shareholders’ Meeting shall discuss and adopt at least the matters specified at Points j and k, Clause 2 of this Article and other matters falling within its powers under the bank charter.

Article 42. Meetings of the Shareholders’ Meeting

1. The competence to convene a meeting of the Shareholders’ Meeting complies with Article 97 of the Enterprise Law. In addition, the Board of Directors shall convene an extraordinary meeting of the Shareholders’ Meeting at the request of the State Bank.

2. The list of shareholders eligible to participate in a meeting of the Shareholders’ Meeting complies with Article 98 of the Enterprise Law.

3. Agenda of a meeting of the Shareholders’ Meeting complies with Article 99 of the Enterprise Law.

4. Invitation of participants in a meeting of the Shareholders’ Meeting complies with Article 100 of the Enterprise Law.

5. The right to participate in a meeting of the Shareholders’ Meeting complies with Article 101 of the Enterprise Law.

6. Conditions for convening a meeting of the Shareholders’ Meeting complies with Article 102 of the Enterprise Law.

7. Methods of convening and voting at a meeting of the Shareholders’ Meeting comply with Article 103 of the Enterprise Law.

Article 43. Adoption of decisions of the Shareholders’ Meeting

1. The adoption of decisions of the Shareholders’ Meeting complies with Clauses 1, 4 and 6, Article 104 of the Enterprise Law.

2. Decisions of the Shareholders’ Meeting on the matters specified at Points a, b, d, f, g, i, j, k, l and n, Clause 2, Article 41 of this Decree must be adopted by voting at meetings the Shareholders’ Meeting.

3. A decision of the Shareholders’ Meeting will be adopted at a meeting when the following conditions are satisfied:

a/ The conditions specified at Points a and c, Clause 3, Article 104 of the Enterprise Law;

b/ That decision is consented to by at least 75% of the total votes of all shareholders participating in the meeting. A specific percentage shall be stated in the bank charter for the following matters:

- Types of share and total number of shares of each type allowed to be offered;

- Amendments and supplement to the bank charter;

- Reorganization or dissolution of the bank;

- Specific discount amount or discount rate for shares to be offered to brokers or underwriters.

4. Competence and method to gather shareholders’ written opinions for adoption of decisions of the Shareholders’ Meeting comply with Article 105 of the Enterprise Law. Such a decision will be adopted by the method of gathering written opinions when it is consented to by shareholders representing at least 75% of total votes. A specific percentage is stated in the bank charter.

Article 44. Minutes of meetings of the Shareholders’ Meeting

1. Minutes of meetings of the Shareholders’ Meeting comply with Article 106 of the Enterprise Law.

2. Within 15 days after a meeting, all decisions adopted by the Shareholders’ Meeting shall be sent to the State Bank’s branch of the province or city where the bank is headquartered.

Article 45. Requests for cancellation of decisions of the Shareholders’ Meeting

Requests for cancellation of decisions of the Shareholders’ Meeting comply with Article 107 of the Enterprise Law.

Article 46. Tasks and powers of the Board of Directors

1. To take responsibility before law and the Shareholders’ Meeting for the performance of its assigned tasks and exercise of its vested powers.

2. To decide on development strategies, medium-term development plans and annual business plans of the bank.

3. To decide on organizational structures of the headquarters, internal audit section, transaction bureaus, branches, subsidiaries, representative offices and non-business units of the bank.

4. To decide on setting up of transaction bureaus, branches and representative offices, and establishment of non-business units.

5. To appoint, dismiss, relieve from duty, discipline, suspend and decide on salaries and other benefits of holders posts of Director General, Deputy Director General, Chief Accountant, Secretary of the Board of Directors, posts of the internal audit section, directors of transaction bureaus, branches, subsidiaries and non-business units, chief representatives and other posts falling within its competence and based on its internal regulations.

6. To adopt plans on contribution of capital to or purchase of shares from other enterprises and credit institutions.

7. To nominate representatives of the bank’s capital portions in other enterprises and credit institutions.

8. To decide on loans or guarantees valued at more than 10% of the bank’s own capital in observance of regulations on safety in banking operations, except transactions falling within the deciding competence of the Shareholders’ Meeting specified at Point l, Clause 2, Article 41 of this Decree.

9. To decide on the bank’s trading contracts neither banned nor restricted under the Law on Credit Institutions, the Law Amending and Supplementing a Number of Articles of the Law on Credit Institutions and guiding documents with members of the Board of Directors and Control Board, the Director General, shareholders holding major shares and their affiliated persons, which are valued at more than 20% of the bank’s own capital or another lower ratio stated in the bank charter. In this case, involved members have no voting right.

10. To select independent audit organizations.

11. To be responsible for matters related to the internal audit section and the internal inspection and control system under the State Bank’s regulations.

12. To inspect, supervise and direct the Director General in performing his/her assigned task; to annually appraise the work effectiveness of the Director General.

13. To promulgate internal regulations on organization, governance and operation of the bank in compliance with law and this Decree, except matters falling within the competence of the Control Board or the Shareholders’ Meeting.

14. To decide on the bank’s policies to manage risks and supervise the implementation of risk prevention measures.

15. To examine, approve and publicize the bank’s annual reports and financial statements under law.

16. To select professional valuation organizations to value assets other than Vietnamese currency, freely convertible foreign currencies and gold under law.

17. To propose the State Bank Governor to consent to or approve matters specified by law.

18. To propose the reorganization or dissolution or request bankruptcy of the bank.

19. To decide on offering of new shares within the shares limit each type to be offered.

20. To decide on the bank’s share and convertible bond offering prices.

21. To decide on buy-back of the bank’s shares under this Decree.

22. To submit annual financial settlement reports to the Shareholders’ Meeting.

23. To propose profit sharing plans and dividend amounts to be paid; to decide on time limit and procedures for payment of dividends or handling of business losses.

24. To prepare and submit relevant contents and documents to the Shareholders’ Meeting for decision on matters falling within the competence of the Shareholders’ Meeting, except matters falling within the functions and tasks of the Control Board.

25. To approve agenda of and documents for use at meetings of the Shareholders’ Meeting; to convene meetings of the Shareholders’ Meeting or gather shareholders’ written opinions for adoption of its decisions.

26. To organize, inspect and supervise implementation of its resolutions and decisions or those of the Shareholders’ Meeting or the Board of Directors.

27. To have other tasks and powers provided in the bank charter.

Article 47. Tasks and powers of the Chairman of the Board of Directors

1. To have the tasks and powers specified in Clauses 2 and 3, Article 111 of the Enterprise Law.

2. To ensure that members of the Board of Directors receive adequate, objective and accurate information and have enough time for discussing matters subject to consideration by the Board of Directors.

3. To assign tasks to members of the Board of Directors. Specific tasks assigned to each member must be documented with the signature of the Chairman of the Board of Directors.

4. To supervise members of the Board of Directors in performing their assigned jobs and common tasks and powers.

5. To evaluate work effectiveness of each member and commissions of the Board of Directors at least once a year and report to the Board of Directors on evaluation results.

Article 48. Tasks and powers of members of the Board of Directors

1. To collaborate with one another in governing the bank under law and the bank charter.

2. To honestly perform their tasks and exercise their powers in the bank’s interests in compliance with the internal regulations of the Board of Directors and the assignment by the Chairman of the Board of Directors.

3. To study financial statements prepared by independent auditors, then give their opinions thereon or request the bank’s managers, executive officers, independent auditors and internal auditors to explain matters relevant to these statements.

4. To elect, dismiss or relieve from duty the Chairman of the Board of Directors.

5. To request the Chairman of the Board of Directors to convene extraordinary meetings of the Board under this Decree.

6. To request the convention of extraordinary meetings of the Shareholders’ Meeting under this Decree.

7. To participate in meetings of the Board of Directors, discuss and vote on all matters falling within the tasks and powers of the Board of Directors under this Decree, unless they are disallowed to vote in cases of conflicting interests. To take personal responsibility before law, the Shareholders’ Meeting and the Board of Directors for their decisions.

8. To organize the implementation of decisions of the Shareholders’ Meeting and resolutions of the Board of Directors.

9. To explain the performance of their assigned tasks to the Shareholders’ Meeting and the Board of Directors when so requested.

10. To have other tasks and powers provided in the bank charter.

Article 49. Meetings of the Board of Directors

1. Meetings of the Board of Directors comply with Clauses 1, 2, 3, 4, 6 and 7, Article 112 of the Enterprise Law.

2. The chairman or a member of the Board of Directors authorized by the chairman shall convene a meeting of the Board of Directors within 15 days after being requested under this Decree. When the chairman or authorized member fails to convene a meeting as requested, he/she shall be responsible for losses incurred by the bank, unless such meeting cannot be held due to force majeure circumstances. In this case, the meeting requester may convene a meeting and members of the Board of Directors who attend the meeting may vote to elect the chair of the meeting.

3. The bank shall specify in the internal regulation of the Board of Directors cases of urgent meetings and time limit and form for invitation to urgent meetings of the Board of Directors.

4. A meeting of the Board of Directors may be convened when it is attended by 3/4 (three-quarters) or more of the total number of members. A member of the Board of Directors who does not directly attend a meeting may authorize another member to vote on his/her behalf or send his/her voting card. Voting cards must be put in sealed envelopes and sent to the chair of a meeting of the Board of Directors at least one hour before the meeting. Voting cards may only be opened before all meeting participants.

5. A member of the Board of Directors may authorize a non-member of the Board of Directors to attend a meeting if it is so agreed by a majority of members of the Board of Directors. In this case, the authorized person has no voting right.

6. A decision of the Board of Directors may be adopted by a majority of votes, including written votes and authorized votes; when votes “for” and “against” are equal, the side with the chair’s vote prevails.

Article 50. Minutes of meetings of the Board of Directors

1. Minutes of meetings of the Board of Directors comply with Clauses 1 and 2, Article 113 of the Enterprise Law.

2. When a meeting participant refuses to sign the minutes of a meeting, the reason for refusal must be clearly recorded; otherwise, that member’s votes on issues in the meeting are regarded invalid.

3. The minutes of a meeting of the Board of Directors shall be written in Vietnamese and possibly in another foreign language. The copies of the minutes in Vietnamese and a foreign language are of equivalent legal validity. When a difference occurs, the one in Vietnamese prevails.

Article 51. Competence and method to collect written comments of members of the Board of Directors

1. The chairman of the Board of Directors may decide to collect written comments of members of the Board of Directors.

2. The secretary of the Board of Directors shall prepare comment card and necessary documents related to contents to be commented. Comment cards and attached documents must be sent by registered mail to the contact address of each member of the Board of Directors.

3. A comment card must cover the following major details:

a/ Name, address of head office, serial numbers and dates of issuance of the bank’s establishment and operation license and business registration certificate;

b/ Purposes for collecting comments;

c/ Full names and contact addresses of members of the Board of Directors;

d/ Issues to be commented;

e/ Voting options, including vote for, vote against and no comment;

f/ Deadline for sending filled-in comment cards to the bank;

g/ Full name and signature of the chairman of the Board of Directors.

4. Filled-in comment cards must be signed by members of the Board of Directors and sent to the bank under the bank’s regulations.

5. The secretary of the Board of Directors shall count the votes and make a written record of vote counting under the supervision by at least one independent member of the Board of Directors. Such a record must cover the following major details:

a/ Name and address of the head office, serial numbers and dates of issuance of the bank’s establishment and operation license and business registration certificate;

b/ Comment purposes and issues to be commented;

c/ Total numbers of votes sent and collected, numbers of valid and invalid votes. The minutes must be enclosed with a list of voting members of the Board of Directors;

d/ Total numbers of votes “for”, “against” and “no comment” on each issue;

e/ Full names and signatures of the person in charge of vote counting and the supervisor.

6. The secretary of the Board of Directors involved in the collection of written comments from members of the Board of Directors and the vote counting supervisor shall take joint responsibility for the truthfulness and accuracy of the vote counting record and for losses incurred from decisions adopted as a result of untruthful and inaccurate vote counting.

7. The vote counting record and the resolution and decision adopted by the Board of Directors based on vote counting results shall be sent to members of the Board of Directors within 15 days after the completion of the vote counting.

8. Filled-in comment cards, the vote counting record, the full text of the adopted resolution and related documents enclosed with comment cards shall be stored at the bank’s head office.

9. A decision adopted by collecting written comments of members of the Board of Directors is as valid as a decision adopted by a meeting of the Board of Directors.

Article 52. Tasks and powers of the Control Board

1. To supervise the observance of law and the bank charter in bank governance and administration; to take responsibility before law and the Shareholders’ Meeting for the performance of its assigned tasks and exercise of its vested powers.

2. To issue its internal regulation. To annually review this regulation and important policies on accounting and reporting.

3. To take responsibility for matters related to the internal audit section  and the internal examination and control system under the State Bank’s regulations. To use independent consultants and get access to and be fully, accurately and promptly supplied with information and documents related to the bank’s management and administration to perform its assigned tasks.

4. To evaluate the bank’s biannual and annual financial statements, including those already audited by an independent audit institution. To report to the Shareholders’ Meeting on results of the evaluation of annual financial statements and the reasonability, lawfulness, truthfulness and prudence of accounting and statistical work and financial statement making. To consult the Board of Directors before submitting its reports and recommendations to the Shareholders’ Meeting.

5. To check accounting books and other documents and management and administration of the bank when necessary or under a decision of the Shareholders’ Meeting or at the request of individual shareholders or group of majority shareholders under Point d, Clause 1, Article 31 of this Decree. To conduct examination within 7 working days after receiving a request from individual shareholders or group of shareholders. Within 15 days after completing examination, to report and explain on issues requested to be examined to the Board of Directors and the requesting individual shareholders or group of shareholders. The Control Board’s examination under this Clause must neither obstruct nor disrupt the normal business management and administration of the bank.

6. When detecting a bank manager’s violations of this Decree, the bank charter and relevant current laws, to promptly report such to the Board of Directors and concurrently request the violator to terminate his/her violations and remedy consequences (if any). To make a list of affiliated persons of members of the Board of Directors and Control Board, the Director General and founding shareholders and shareholders holding major shares of the bank, and keep and update this list.

7. To request the Board of Directors to convene an irregular meeting of the Board of Directors or the Shareholders’ Meeting under this Decree and the bank charter.

8. To convene an irregular meeting of the Shareholders’ Meeting when the Board of Directors makes a decision which seriously violates this Decree or makes a decision ultra vires and other cases under the bank charter.

9. To have other tasks and powers under the bank charter.

Article 53. Tasks and powers of the head of the Control Board

1. To organize the performance of tasks and exercise of powers of the Control Board under this Decree.

2. To prepare agendas of meetings of the Control Board on the basis of taking into account issues and concerns of all members of the Control Board related to the tasks and powers of the Control Board; to convene and chair meetings of the Control Board.

3. On behalf of the Control Board, to sign documents falling within the competence of the Control Board.

4. On behalf of the Control Board, to convene irregular meetings of the Shareholders’ Meeting or request the Board of Directors to convene irregular meetings under this Decree.

5. To prepare working plans and assign tasks to members of the Control Board under the bank’s internal regulations.

6. To ensure that members of the Control Board receive full, objective and accurate information and have enough time to discuss issues to be considered by the Control Board.

7. To supervise and direct members of the Control Board in performing their assigned jobs as well as tasks and powers of the Control Board.

8. To authorize another member of the Control Board to perform his/her tasks during his/her absence.

9. To have other tasks and powers under the bank charter.

Article 54. Tasks and powers of members of the Control Board

1. To perform their tasks and exercise their powers under law, the bank charter and the Control Board’s internal regulations honestly and prudently in the interest of the bank and its shareholders.

2. To elect, relieve from duty and dismiss the head of the Control Board.

3. To request the head of the Control Board to convene irregular meetings of the Control Board.

4. To control business activities, check accounting books, assets and financial statements and propose remedies to wrongdoings, if any.

5. To request officials and staff members of the bank to supply data and explain business activities to perform their assigned tasks.

6. To report to the head of the Control Board on abnormal financial activities and take personal responsibility for their evaluation and conclusions.

7. To attend meetings of the Control Board, to comment on and vote for issues within the tasks and powers of the Control Board, except those with conflicting interests.

8. To attend meetings of the Board of Directors, to give opinions and recommendations, but to have no voting right.

9. To request the inclusion of their opinions in minutes of meetings of the Board of Directors if these opinions are different from decisions of the Board of Directors and reporting thereon before the Shareholders’ Meeting.

10. To have other tasks and powers under the bank charter.

Article 55. Tasks and powers of the Director General

1. To have the powers and tasks specified in Clauses 3 and 4, Article 116 of the Enterprise Law.

2. To make and submit financial statements to the Board of Directors for approval. To take responsibility for the accuracy and truthfulness of financial statements, statistical reports, settlement data and other financial information.

3. To establish processes and procedures to operate the business administration and communication and reporting systems.

4. To report to the Board of Directors, the Control Board, the Shareholders’ Meeting and competent state agencies on the bank’s business operations, efficiency and results under law and the bank charter.

5. To decide to take measures falling beyond his/her powers in emergency cases (natural disasters, enemy sabotage, fires and incidents), and be responsible for such decisions and promptly report thereon to the Board of Directors for further settlement.

6. To propose and recommend the organization, governance and operation of the bank to raise its operation quality and efficiency and submit them to the Board of Directors or the Shareholders’ Meeting for decision according to their competence.

7. To request the convention of irregular meetings of the Board of Directors under this Decree.

Section 4. STATE-RUN COMMERCIAL BANKS WITH WHOLLY STATE-OWNED CHARTER CAPITAL

Article 56. Rights of the owner

1. Rights of the owner comply with Points a, b, j, k, l and m, Clause 1, Article 64 of the Enterprise Law.

2. To decide on the initial charter capital and change in the charter capital of the bank.

3. To decide on the organizational structure of the bank; to decide to appoint, dismiss and relieve from duty authorized representatives as the chairman and members of the Board of Directors, the head and members of the Control Board of the bank in accordance with criteria and conditions specified in this Decree.

4. To approve internal regulations on organization and operation of the Board of Directors and Control Board.

5. To decide on remunerations, bonuses and other benefits for members of the Board of Directors and Control Board and budgets for the operation of the Board of Directors and Control Board.

6. To monitor and evaluate activities of the Board of Directors and Control Board, including activities of the chairman of the Board of Directors and the head of the Control Board before they are reappointed as members of the Board of Directors and Control Board.

7. To decide on measures applicable to members of the Board of Directors and Control Board who commit violations related to their powers and tasks. To lodge complaints about or sue members of the Board of Directors or the Control Board or the Director General when they fail to properly perform their obligations, causing damage to interests of their own or the bank under law.

8. To withdraw capital by transferring part or the whole of the charter capital to other organizations or individuals only when it is so approved by the State Bank.

9. To refrain from withdrawing profits when the bank fails to pay off its due debts and fulfill other property liabilities.

10. To have other rights under the bank charter.

Article 57. Obligations of the owner

1. To make full and timely capital contribution as committed and be liable for the bank’s debts and other property liabilities within the committed capital amount.

2. To have other obligations under Clauses 2, 3 and 4, Article 65 of the Enterprise Law and the bank charter.

Article 58. Tasks and powers of the Board of Directors

1. To take responsibility before law and the owner for its performance of tasks and exercise of powers under this Decree and the bank charter.

2. To perform the tasks and exercise the powers specified in Clauses 2, 3, 4, 5, 6, 7, 10, 11, 12, 14, 15, 16, 17 and 18, Article 46 of this Decree, except issues to be decided by the owner.

3. To submit annual financial settlement statements to the owner.

4. To decide on establishment of subsidiaries.

5. To handle losses incurred from business operations.

6. To decide on loans and guarantees valued at over 10% of the bank’s own capital in compliance with safety regulations for banking operations.

7. To decide on the bank’s trading contracts neither banned nor restricted under the Law on Credit Institutions, the Law Amending and Supplementing a Number of Articles of the Law on Credit Institutions and guiding documents with members of the Board of Directors and Control Board, the Director General and their affiliated persons. In this case, affiliated members have no voting right.

8. To issue internal regulations on the bank’s organization, administration and operation under law.

9. To report on, propose and recommend to the owner issues to be decided by the latter.

10. To implement and examine and supervise the implementation of resolutions and decisions of the owner or the Board of Directors.

11. To have other powers and tasks under the bank charter.

Article 59. Tasks and powers of the chairman of the Board of Directors

1. To have the tasks and powers specified in Clause 2 (except the one defined at Point e) and Clause 3, Article 111 of the Enterprise Law.

2. To have tasks and powers specified in Clauses 2, 3 and 4, Article 47 of this Decree.

3. To evaluate the work performance of each member and commissions of the Board of Directors at least once a year and report on evaluation results to the owner.

4. To have other tasks and powers under the bank charter.

Article 60. Tasks and powers of members of the Board of Directors

1. To perform the tasks and exercise the powers under Clauses 1, 2, 3, 5 and 10, Article 48 of this Decree.

2. To attend meetings of the Board of Directors, to discuss and vote for all issues falling within the tasks and powers of the Board of Directors according to this Decree, unless they may not vote due to conflicting interests. To take personal responsibility before law, the owner and the Board of Directors for their decisions.

3. To implement decisions of the owner and resolutions of the Board of Directors.

4. To explain their task performance to the owner and the Board of Directors upon request.

Article 61. Meetings of the Board of Directors and minutes of meetings of the Board of Directors

1. Meetings of the Board of Directors comply with Clauses 1, 2, 3 and 5, Article 49 of this Decree, except the election of the chairman of the Board of Directors.

2. A meeting of the Board of Directors may be held when it is attended by at least 2/3 (two-thirds) of the total number of members. A member of the Board of Directors who does not directly attend a meeting may authorize another member of the Board of Directors to vote on his/her behalf or send his/her voting card. In case of voting in writing, voting cards shall be put in sealed envelopes and sent to the chair of the meeting of the Board of Directors at least one hour before the meeting. Voting cards may only be opened before all meeting participants.

3. A decision of the Board of Directors may be adopted when it is approved by a majority of votes, including written votes and authorized votes; when the votes “for” and “against” are equal, the side with the chair’s vote prevails.  Proposals on amendments and supplements to the bank charter, reorganization of the bank and transfer of part or the whole of the bank charter capital must be approved by at least 3/4 (three-quarters) of meeting participants.

4. Minutes of meetings of the Board of Directors comply with Article 50 of this Decree.

Article 62. Collection of written comments of members of the Board of Directors

The competence and method to collect written comments of members of the Board of Directors comply with Article 51 of this Decree.

Article 63. Tasks and powers of the Control Board

1. To supervise the observance of law and the bank charter in bank governance and administration; to take responsibility before law and the owner for the performance of its assigned tasks and exercise of its vested powers.

2. To perform the tasks and exercise the powers specified in Clauses 2 and 3, Article 52 of this Decree.

3. To evaluate the bank’s biannual and annual financial statements, including those already audited by an independent audit institution. To report to the owner on evaluation results of annual financial statements and the reasonability, lawfulness, truthfulness and prudence of accounting and statistical work and financial statement making. To consult the Board of Directors before submitting its report and recommendations to the owner.

4. To check accounting books and other documents and the  bank operation management and administration when necessary or under the owner’s decision. To conduct examination within 7 working days after receiving the owner’s request. Within 15 days after completing examination, to report and explain examined issues to the Board of Directors and the owner. The Control Board’s examination under this Clause must neither obstruct nor disrupt the normal business administration and operation of the bank.

5. When detecting a bank manager’s violations of this Decree, the bank charter and relevant current laws, to promptly report such to the Board of Directors and concurrently request the violator to terminate his/her violations and remedy consequences (if any). To make a list of affiliated persons of members of the Board of Directors and Control Board, and the Director General and keep and update this list.

6. To request the Board of Directors to convene irregular meetings under this Decree and the bank charter. When the Board of Director makes a decision which seriously violates this Decree or makes a decision ultra vires and other cases under the bank charter, to promptly report such to the owner.

7. To have other tasks and powers under the bank charter.

Article 64. Tasks and powers of the head of the Control Board

1. To perform the tasks and exercise the powers specified in Clauses 1, 2, 3, 5, 6, 7, 8 and 9, Article 53 of this Decree.

2. On behalf of the Control Board, to request the Board of Directors to convene irregular meetings under this Decree.

Article 65. Tasks and powers of members of the Control Board

1. To perform the tasks and exercise the powers specified in Clauses 3, 4, 5, 6, 7, 8 and 10, Article 54 of this Decree.

2. To perform the tasks and exercise the powers of members of the Control Board honestly and prudently in the interests of the bank and the owner under law, the bank charter and the internal regulation of the Control Board.

3. To request the inclusion of their opinions in minutes of meetings of the Board of Directors if these opinions are different from decisions of the Board of Directors and reporting thereon to the owner.

Article 66. Tasks and powers of the Director General

1. To perform the tasks and exercise the powers specified in Clauses 1, 2, 3, 5 and 7, Article 55 of this Decree.

2. To report to the Board of Directors, the Control Board, the owner and competent state agencies on the bank’s business operations, efficiency and results under law and the bank charter.

Section 5. JOINT-STOCK COMMERCIAL BANKS WITH OVER 50% OF CHARTER CAPITAL OWNED BY THE STATE

Article 67. Organization of management

The organization of management of joint-stock commercial banks with over 50% of charter capital owned by the State complies with provisions applicable to joint-stock commercial banks.

Section 6. JOINT-VENTURE COMMERCIAL BANKS

Article 68. Rights of capital contributors

1. To manage the bank by appointing authorized representatives who satisfy the criteria and conditions under this Decree to join the Board of Directors and Control Board on the basis of their capital shares or under agreement between capital contributors.

2. To request the bank to supply information and report on activities of the Board of Directors and Control Board and the bank’s business operations, accounting books, annual financial statements and other documents and materials.

3. To enjoy profits divided in proportion to their capital shares after the bank has fully paid taxes and fulfilled other financial obligations under law.

4. To enjoy the bank’s residual property value in proportion to their capital shares when the bank is dissolved or goes bankrupt.

5. To be prioritized in contributing additional capital to the bank when it raises the charter capital.

6. To transfer part or the whole of their capital shares under Article 44 of the Enterprise Law and such transfer must be considered and approved in writing by the State Bank.

7. To request the buy-back of capital shares under Article 43 of the Enterprise Law, but the bank may only pay capital contributors for the buy-back of their capital shares if after it fully pays for the buy-back, it can still fully pay its debts and fulfill other property liabilities and ensure banking operation safety ratios, charter capital not lower than the legal capital and other relevant conditions prescribed by the State Bank. The buy-back of capital shares at the request of capital contributors must obtain the State Bank’s prior written approval.

8. To lodge complaints about or sue members of the Board of Directors and Control Board and the Director General for their failure to properly perform their tasks and exercise their powers, causing damage to the interests of the bank or capital contributors under law.

9. To have other powers under the bank charter.

Article 69. Obligations of capital contributors

1. To make full and timely capital contribution as committed and be liable for the bank’s debts and other property liabilities within their committed capital shares.

2. To refrain from withdrawing their capital shares in any forms, except the cases specified in Clauses 6 and 7, Article 68 of this Decree.

3. Not to directly interfere in the bank governance and administration.

4. To observe the bank charter.

5. To have other obligations under the bank charter.

Article 70. Tasks and powers of the Board of Directors and its chairman and members

1. Tasks and powers of the Board of Directors

a/ To take responsibility before law and capital contributors for its performance of assigned tasks and exercise of vested powers;

b/ To adopt orientations for the bank development;

c/ To adopt amendments and supplements to the bank charter;

d/ To issue its internal regulation and internal regulations related to the organization, administration and operation of the bank in accordance with law and this Decree;

e/ To elect, relieve from duty and dismiss the chairman of the Board of Directors according to the conditions and criteria specified in this Decree;

f/ To examine and handle violations committed by members of the Board of Directors;

g/ To adopt schemes to adjust the charter capital;

h/ To approve annual financial statements and profit-sharing scheme;

i/ To report on the bank’s financial status and business results, the performance of assigned tasks and exercise of powers of the Board of Directors and its members at the request of capital contributors or competent state agencies;

j/ To perform the tasks and exercise the powers specified in Clauses 2, 3, 4, 5, 6, 7, 10, 11, 12, 14, 15, 16, 17 and 18, Article 46 of this Decree.

k/ To decide on loans and guarantees valued at over 10% of the bank’s own capital in compliance with safety regulations for banking operations;

l/ To decide on establishment of subsidiaries;

m/ To decide on the buy-back of capital shares under this Decree;

n/ To approve trading contracts neither banned nor restricted under the Law on Credit Institutions, the Law Amending and Supplementing a Number of Articles of the Law on Credit Institutions and guiding documents with members of the Board of Directors and Control Board, the Director General and capital contributors of the bank and their affiliated persons. In this case, affiliated members have no voting right;

o/ To adopt the reorganization, dissolution or request for bankruptcy of the bank;

p/ To decide on salaries, bonus, remunerations and other benefits for the chairman and members of the Board of Directors, the head and members of the Control Board and the Director General under Article 29 of this Decree;

q/ To have other tasks and powers under the bank charter.

2. Tasks and powers of the chairman of the Board of Directors

a/ To organize the performance of tasks and exercise of powers of the Board of Directors specified in Clause 1, Article 70 of this Decree;

b/ To have the tasks and powers specified in Clause 2 (except the one specified at Point e) and Clause 3, Article 111 of the Enterprise Law;

c/ To have the tasks and powers specified in Clauses 2, 3 and 4, Article 47 of this Decree;

d/ To evaluate the work performance of each member and commissions of the Board of Directors at least once a year and report thereon to capital contributors;

e/ To have other tasks and powers under the bank charter.

3. Tasks and powers of members of the Board of Directors

a/ To participate in the performance of tasks and exercise of powers of the Board of Directors specified in Clause 1, Article 70 of this Decree;

b/ To perform the tasks and exercise the powers specified in Clauses 1, 2, 3, 4 and 5, Article 48 of this Decree;

c/ To attend meetings of the Board of Directors, discuss and vote for all issues falling within the tasks and powers of the Board of Directors under this Decree, unless they may not vote due to conflicting interests. To take personal responsibility before law, capital contributors and the Board of Directors for their decisions;

d/ To implement decisions and resolutions of the Board of Directors;

e/ To report their performance of assigned tasks to capital contributors and the Board of Directors upon request;

f/ To exercise powers and perform tasks of capital contributors specified in Articles 68 and 69 of this Decree as authorized by capital contributors;

g/ To have other tasks and powers under the bank charter.

Article 71. Member registers

Member registers comply with Article 40 of the Enterprise Law.

Article 72. Meetings of the Board of Directors

1. The Board of Directors may meet regularly or irregularly. A meeting of the Board of Directors shall be convened by the chairman or a member of the Board of Directors authorized by the chairman. The Board of Directors shall meet at least once a quarter and irregularly when the chairman of the Board of Directors finds it necessary or in any of the following cases:

a/ At the request of the Director General or the Control Board;

b/ At the request of at least 2 members of the Board of Directors;

c/ At the request of individual members or groups of members owning over 25% of the charter capital or a lower percentage specified in the bank charter;

d/ At the request of the rest of members when the bank has a member owning over 75% of its charter capital and the bank charter does not set a lower percentage;

e/ Other cases defined in the bank charter.

The above requests must be made in writing, clearly stating the purposes and indicating that issues to be discussed and decided fall within the competence of the Board of Directors. The person competent to convene meetings of the Board of Directors may refuse a request if issues to be discussed and decided do not fall within the competence of the Board of Directors.

2. Meetings of the Board of Directors comply with Clauses 2, 3 and 5, Article 49 of this Decree.

3. A meeting of the Board of Directors may be held when it is attended by members representing at least 75% of the charter capital; the specific ratio is defined in the bank charter. When the above condition is not met, another meeting may be convened within 15 days from the tentative date for the first meeting. The second meeting of the Board of Directors may be convened when it is attended by members representing at least 50% of the charter capital; the specific ratio is defined in the bank charter. When the condition to convene the second meeting is not met, the third meeting may be convened within 10 working days from the tentative date of the second meeting. In this case, the meeting may be convened regardless of the number of meeting participants and the charter capital represented by meeting participants.

4. A member of the Board of Directors who does not directly attend a meeting may authorize another member to vote on his/her behalf or send his/her voting card. Voting cards shall be put in sealed envelopes and sent to the chair of the meeting of the Board of Directors at least one hour before the meeting. Voting cards may only be opened before all meeting participants.

5. Members of the Board of Directors may make written proposals on the meeting agenda. A written proposal must cover the following major contents:

a/ Full name, address of permanent residence, nationality, number of people’s identity card, passport or other lawful certification of civil status, for an individual member; name, address of head office, serial number of establishment decision or business registration certificate, for an institutional member; full name and signature of member or authorized representative;

b/ Proportion of capital shares, number and date of issuance of capital share certificate;

c/ Issues proposed to be included in the meeting agenda;

d/ Reasons for proposal.

The chairman of the Board of Directors shall accept such a proposal and add it to the agenda of the meeting of the Board of Directors if it fully covers prescribed contents and is sent to the bank’s head office at least one working day before the meeting of the Board of Directors; a proposal submitted right before a meeting may be accepted if it is so approved by a majority of meeting participants.

6. A decision of the Board of Directors may be adopted if it is approved by votes representing at least 65% of capital shares of meeting participants (including written votes and authorized votes). The specific ratio is defined by the bank charter. Amendments and supplements to the bank charter, reorganization of the bank, transfer or buy-back of capital shares must be approved by votes representing at least 75% of capital shares of meeting participants. When votes “for” and “against” representing capital shares of meeting participants are equal, the side with the chair’s vote prevails.

Article 73. Collection of written comments of members of the Board of Directors

The competence and method to collect written comments of members of the Board of Directors comply with Article 51 of this Decree. A decision of the Board of Directors shall be adopted by collecting written comments when it is approved by members representing at least 75% of the charter capital. The specific ratio is defined in the bank charter.

Article 74. Tasks and powers of the Control Board and its head and members

1. Tasks and powers of the Control Board:

a/ To supervise the observance of law and the bank charter in bank governance and administration; to take responsibility before law and capital contributors for the performance of its assigned tasks and exercise of its vested powers;

b/ To perform the tasks and exercise the powers specified in Clauses 2 and 3, Article 52 of this Decree;

c/ To evaluate the bank’s biannual and annual financial statements, including those already audited by an independent audit institution. To report to capital contributors on results of evaluation of annual financial statements and the reasonability, lawfulness, truthfulness and prudence of accounting and statistical work and financial statement making. To consult the Board of Directors before submitting its report and recommendations to capital contributors;

d/ To check accounting books and other documents and the  bank administration and management when necessary or under capital contributors’ decision. To conduct examination within 7 working days after receiving capital contributors’ request. Within 15 days after completing examination, to report and explain examined issues to the Board of Directors and capital contributors. The Control Board’s examination under this Clause must neither obstruct nor disrupt the normal business administration and operation of the bank;

e/ When detecting a bank manager’s violations of this Decree, the bank charter and relevant current laws, to promptly report such to the Board of Directors and concurrently request the violator to terminate his/her violations and remedy consequences (if any). To make a list of affiliated persons of members of the Board of Directors and Control Board and the Director General and keep and update this list;

e/ To request the Board of Directors to convene irregular meetings under this Decree and the bank charter. To promptly notify capital contributors when the Board of Directors makes a decision seriously violating this Decree or ultra vires and other cases under the bank charter;

f/ To have other tasks and powers under the bank charter.

2. Tasks and powers of the head of the Control Board

a/ To perform the tasks and exercise the powers specified in Clauses 1, 2, 3, 5, 6, 7, 8 and 9, Article 53 of this Decree.

b/ On behalf of the Control Board, to request the Board of Directors to convene irregular meetings under this Decree.

3. Tasks and powers of members of the Control Board

a/ To perform the tasks and exercise the powers of members of the Control Board under law, the bank charter and the internal regulation of the Control Board honestly and prudently in the legitimate interests of the bank and its capital contributors;

b/ To participate in the performance of tasks and exercise of powers of the Control Board specified in Clause 1, Article 74 of this Decree;

c/ To perform the tasks and exercise the powers specified in Clauses 3, 4, 5, 6, 7, 8 and 10, Article 54 of this Decree;

d/ To request the inclusion of their opinions in minutes of meetings of the Board of Directors when these opinions are different from decisions of the Board of Directors and reporting thereon to capital contributors.

Article 75. Tasks and powers of the Director General

To perform the tasks and exercise the powers specified in Article 55 of this Decree.

Section 7. WHOLLY FOREIGN-OWNED COMMERCIAL BANKS

Article 76. Management of wholly foreign-owned commercial banks organized as one-member limited liability companies

To comply with Section 4, Chapter III of this Decree.

Article 77. Management of wholly foreign-owned commercial banks organized as limited liability companies with two or more members

To comply with Section 6, Chapter III of this Decree.

Chapter IV

OPERATION OF COMMERCIAL BANKS

Section 1. OPERATIONS AND CHARTER CAPITAL

Article 78. Permitted professional operations

Banks may conduct operations under Chapter III of the Law on Credit Institutions, the Law Amending and Supplementing a Number of Articles of the Law on Credit Institutions and relevant current regulations of the Government and the State Bank.

Article 79. Necessary processes and policies in the course of operation

To ensure safety in banking operations, a bank shall work out and implement the following processes and policies:

a/ Process to manage investment and acquisition activities and control major investments;

b/ Process to provide credits to maintain an appropriate credit administration system;

c/ To maintain the information system to support the process to control major loans;

d/ To work out and observe policies to classify debts and set aside risk provisions;

e/ Policies on evaluation of the quality of assets and compliance with minimum capital safety ratios;

f/ Policies and full process to identify, supervise and manage national risks and conversion risks in international lending and investment (for banks involved in foreign lending and offshore investment);

g/ System to allow measurement and comprehensive supervision and control of risks;

h/ Policies to manage liquidations, which must specify liquidation management procedures and limits;

i/ Internal examination and control system suitable to the nature and size of operation of the bank;

j/ Appropriate policies and procedures, including the “client identification” principle to ensure ethical and professional standards in the finance sector and prevent unintentional or intentional use of the bank for criminal purposes;

k/ Other processes and policies under law, the bank charter and international practice.

Article 80. Adjustment of the charter capital

1. A bank must obtain the State Bank’s written approval before adjusting its charter capital under current law.

2. After adjusting the charter capital, the bank shall register its new charter capital with the business registry.

3. The Board of Directors shall be held responsible before law for the evaluation of dossiers, procedures and conditions for the bank to adjust its the charter capital under the State Bank’s regulations, relevant laws and the bank charter.

Section 2. FINANCE, REPORTING, INFORMATION, CONFIDENTIALITY AND INDEPENDENT AUDIT

Article 81. Financial regulations

1. A bank shall comply with financial regulations of the Government and guidance of the Ministry of Finance.

2. The Board of Directors, the Control Board and Director General of a bank shall take responsibility before law and state management agencies for their bank’s observance of financial, audit and accounting regulations.

Article 82. Reporting

1. A bank shall make, present and send financial statements and statistical reports to state management agencies under law. The Board of Directors and Director General of the bank shall take responsibility for the accuracy and truthfulness of these reports.

2. A bank’s financial statement comprises an accounting balance sheet, a business result report, a report on cash flow and an explanation of the financial statement. An annual financial statement must truthfully and objectively reflect profits and losses of the bank in the fiscal year and professional operations of the bank up to the time of reporting.

3. A bank which has subsidiaries shall make a consolidated financial statement under law.

4. A bank shall make and send periodical reports under the State Bank’s regulations. In addition, it shall promptly report to the State Bank when:

a/ Abnormal developments in its professional operations may seriously affect its business;

b/ There is a major change in the bank’s organizational structure.

5. A bank shall send to the State Bank annual reports under law within 90 days from the end of a fiscal year.

Article 83. Disclosure of financial statements

Within 120 days from the end of a fiscal year, a bank shall disclose its financial statements under law. The State Bank shall specify the disclosure of financial statements of banks.

Article 84. Information

1. A bank shall regularly notify account owners of transactions and balance of their bank accounts at the latter’s request.

2. A bank may exchange information on banking operations and its clients with other credit institutions.

3. A bank shall report and supply information to the State Bank on its organization and business activities at the latter’s request and may be supplied by the State Bank with information related to banking operations of its clients.

Article 85. Information confidentiality

1. Staff members of a bank and affiliated persons may not reveal national secrets and the bank’s business secrets they know.

2. A bank may refuse a request by an organization or individual for supply of information related to deposits and property of its clients and its operations unless such request is made by a competent state agency under law or agreed by its clients.

Article 86. Independent audit

1. At least 30 days before the end of a fiscal year, a bank shall select a qualified independent audit institution under the State Bank’s regulations to audit its financial statements under regulations. Independent audit institutions shall be selected under the bidding law.

2. In the course of audit, a bank shall:

a/ Promptly, fully and truthfully supply all information and materials necessary for the audit;

b/ Coordinate with and create favorable conditions for auditors.

3. The Board of Directors, the Control Board, the Director General and other executive officers shall meet to thoroughly evaluate audit reports and recommendations of the independent audit institution and work out plans and schedules to realize those recommendations and monitor the implementation thereof.

4. Independent auditors may attend meetings of the Shareholders’ Meeting, collect notices and other information related to any meeting that may be received by shareholders and give their opinions on audit-related issues at the Shareholders’ Meeting.

5. The audit of specific activities of the bank complies with the Law on Credit Institutions, the Law Amending and Supplementing a Number of Articles of the Law on Credit Institutions, the audit law and guiding documents of the State Bank.

Section 3. RESPONSIBILITIES OF BANKS AND THE STATE BANK IN BANKING OPERATIONS

Article 87. Responsibilities of a bank

1. To take responsibility before law for its entire business operations.

2. To comply with law on bank organization, governance and operation.

3. To post up at places of transaction information on interest rates of deposits and loans, charge rates, exchange rates, transaction times and other information deemed necessary by the bank.

4. To fully store data and financial and accounting books in accordance with accounting policies and practice to help bank supervisory agencies truthfully and properly evaluate the bank’s financial status and business operations.

Article 88. Responsibilities of the State Bank

1. To promulgate legal documents guiding the organization, governance and operation of banks under this Decree.

2. To manage and evaluate banks’ observance of current law and handle and redress banks that fail to properly comply with law.

Chapter V

SPECIAL CONTROL, BANKRUPTCY, DISSOLUTION AND LIQUIDATION

Section 1. SPECIAL CONTROL

Article 89. Reporting on solvency difficulties

When any danger of losing its capacity to pay its clients occurs, a bank shall promptly report to the State Bank on its financial status, causes and remedies already taken and to be taken.

Article 90. Imposition of special control

1. A bank may be placed under special control when:

a/ It faces the danger of losing its solvency;

b/ Its irrecoverable debts are in danger of insolvency;

c/ Its accumulated losses are larger than 50% of the actual charter capital and funds.

2. The State Bank shall examine and promptly detect cases in danger of losing solvency and liquidation capacity and specify cases to be placed under special control.

Article 91. Decisions on special control

1. Based on a bank’s report under Article 88 of this Decree and its self-adjustment capacity or through examination, inspection and supervision by the State Bank, the State Bank Governor may decide to place the bank under special control.

2. A decision to place a bank under special control covers the following contents:

a/ Name of the bank to be placed under special control;

b/ Reasons for such control;

c/ Full names of members and specific tasks of the Special Control Commission;

d/ Special control duration.

3. The State Bank shall notify special control decisions to competent state agencies and concerned agencies in localities for coordination. These decisions must not be publicized.

Article 92. The Special Control Commission

1. The Special Control Commission shall be set up under the State Bank Governor’s decision. The State Bank Governor shall appoint the head of the Special Control Commission. The tasks, powers and responsibilities of the Special Control Commission comply with Article 94 of the Law on Credit Institutions.

2. The head of the Special Control Commission shall assign tasks to the Commission’s members within the assigned tasks and vested powers; handle issues related to special control of the bank; take responsibility before the State Bank Governor for the administration of the Special Control Commission and decisions related to special control of the bank.

3. The Special Control Commission must have at least 3 members.  A member of the Special Control Commission must meet the following criteria:

a/ Being a staff member of the State Bank;

b/ Possessing university or higher decree in economics, law or a professional domain relevant to his/her assignment;

c/ Having worked in the banking service for at least 3 years;

d/ Not being an affiliated person of members of the Board of Directors and Control Board and Director General of the bank placed under special control.

4. Members of the Special Control Commission shall perform tasks assigned by the head and take responsibility to the head for their task performance. The State Bank Governor may decide to replace members of the Special Control Commission.

5. When necessary, the State Bank Governor may appoint a bank to join in the special control of another bank and appoint staff of that bank to the Special Control Commission.

Article 93. Responsibilities of the Board of Directors, Control Board and Director General of the bank under special control

1. To work out a scheme to consolidate the bank’s organization and operation, then submit it to the Special Control Commission for approval and implement it.

2. To continue governing, controlling and operating the bank and ensure property safety for the bank under law unless they are suspended from such governance, operation and control.

3. To be responsible for issues related to the bank’s organization and operation before, during and after the special control.

4. To seriously satisfy requirements of the Special Control Commission.

5. To report on the application of special control measures as requested by the Special Control Commission and its results.

6. To minimize spending to mitigate financial losses.

7. To arrange working places and equipment for the Special Control Commission.

Article 94. Termination of special control

1. Special control terminates when:

a/ The special control duration terminates without being extended or the bank fails to solve problems leading to the imposition of special control and the State Bank decides to revoke the bank’s operation license;

b/ The bank has solved problems leading to the imposition of special control and resumes its normal operation;

c/ Before the special control duration terminates, the bank is reorganized under law;

d/ The bank goes bankrupt, is incapable of recovering operation and declared bankrupt by a competent state agency under the bankruptcy law.

2. The State Bank Governor shall decide to terminate special control. Such decision shall be notified to concerned agencies.

Section 2. BANKRUPTCY, DISSOLUTION AND LIQUIDATION

Article 95. Bankruptcy

Bankruptcy of banks complies with the bankruptcy law.

Article 96. Cases of bank dissolution

1. The bank requests for dissolution at its own will, if it can fully pay debts and such dissolution is approved by the State Bank. In this case, the bank shall submit a request for dissolution to the State Bank at least 180 days before the tentative date of its closure.

2. Its operation duration expires and the bank does not apply for extension of operation or its extension application is not approved by the State Bank.

3. The bank has its establishment and operation license revoked, in any of the cases below:

a/ When any of the cases specified at Points a, b, d and e, Clause 1, Article 29 of the Law on Credit Institutions;

b/ When the conditions specified in Clause 1, Article 28 of the Law on Credit Institutions are not fully met;

c/ When the bank ceases operation for 12 consecutive months.

Article 97. Bank liquidation

1. When a bank is declared bankrupt, its liquidation complies with the bankruptcy law.

2. When a bank is dissolved under Article 95 of this Decree, it must be liquidated under the State Bank’s supervision.

3. The liquidated bank shall cover all liquidation-related expenses.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 98. Time of application

1. Banks established before the effective date of this Decree shall apply this Decree according to the following roadmap:

a/ Banks shall make adjustments to comply with Article 16 of this Decree within 24 months from the effective date of this Decree.

b/ For Article 21 of this Decree:

(i) Banks shall elect and make subsequent appointment of members of the Board of Directors and Control Board (including election, new appointment), addition or replacement) from the effective date of this Decree.

(ii) Banks shall appoint Directors General, Deputy Directors General, chief accountants and directors of transaction bureaus, branches and subsidiaries from the effective date of this Decree; for other cases, they shall make adjustments within 24 months from the effective date of this Decree.

c/ Banks shall adjust shareholders’ share holding rates to comply with Article 34 of this Decree within 24 months from the effective date of this Decree. Banks may decide on adjustment methods.

d/ Banks shall comply with other provisions of this Decree from the effective date of this Decree.

2. Banks established on or after the effective date of this Decree shall comply with this Decree and other relevant laws.

Article 99. Effect

1. This Decree takes effect on September 15, 2009.

2. This Decree replaces the Government’s Decree No. 49/2000/ND-CP of September 12, 2000, on organization and operation of commercial banks.

Article 100. Implementation guidance

1. The State Bank Governor shall guide the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of People’s Committees of provinces and centrally run cities shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG