Decree No. 16/2019/ND-CP dated February 01, 2019 amending and supplementing Decrees on business conditions under the state management of the State Bank of Vietnam

DECREE

AMENDING AND SUPPLEMENTING DECREES ON BUSINESS CONDITIONS UNDER THE STATE MANAGEMENT OF THE STATE BANK OF VIETNAM

Pursuant to the Law on government organization dated June 19, 2015;

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

At the request of the Governor of the State Bank of Vietnam;

The Government promulgates a Decree to provide amendments and supplements to Decrees on business conditions under the state management of the State Bank of Vietnam.

Article 1. Amending, supplementing and abrogating certain articles of the Government’s Decree No. 135/2015/ND-CP dated December 31, 2015 on outward portfolio investments

1. Point a Clause 2 Article 14 is amended and supplemented as follows:

“a) Gain profit in 03 consecutive years preceding the year when the application for the certificate of outward portfolio investment registration is submitted. Such profit shall be shown in the audited financial statements that bear only unqualified opinions according to regulations adopted by the Ministry of Finance.  Financial statements must be audited by independent auditing firms approved and announced by the Ministry of Finance according to regulations on independent auditing of public interest entities;”

2. Point b Clause 3 Article 14 is amended and supplemented as follows:

“b) Fund management companies managing securities investment funds and securities investment companies making outward portfolio investments have internal procedures, systems for internal control, audit, risk identification and management related to the outward portfolio investment; fulfill the financial safety norms according to regulations adopted by the Ministry of Finance.

To make outward portfolio investments, securities investment companies self-managing capitals must fulfill the requirements in Point c Clause 2 of this Article;”

3. Point b Clause 4 Article 14 is amended and supplemented as follows:

“b) Gain profit in 03 consecutive years preceding the year when the application for the certificate of outward portfolio investment registration is submitted. Such profit shall be shown in the audited financial statements that bear only unqualified opinions according to regulations adopted by the Ministry of Finance. Financial statements must be audited by independent auditing firms that are not on the list of auditing firms ineligible for auditing credit institutions and branches of foreign banks as announced by the State Bank of Vietnam;”

4. Clause 1 Article 20 is amended and supplemented as follows:

“1. Gain profit in 03 consecutive years preceding the year when outward portfolio investments are delegated. Such profit shall be shown in the financial statements audited by independent auditing firms and bearing only unqualified opinions according to regulations adopted by the Ministry of Finance (this regulation does not apply to securities investment funds and securities investment companies).”

5. Point a, Point b Clause 2 Article 23 are amended and supplemented as follows:

“a) Gain profit in 03 consecutive years preceding the year when the application for the certificate of trusteeship for outward portfolio investment is submitted. Such profit shall be shown in the audited financial statements that bear only unqualified opinions according to regulations adopted by the Ministry of Finance. Financial statements must be audited by independent auditing firms approved and announced by the Ministry of Finance according to regulations on independent auditing of public interest entities (applicable to trust organizations that are fund management companies);

b) Gain profit in 03 consecutive years preceding the year when the application for the certificate of trusteeship for outward portfolio investment is submitted. Such profit shall be shown in the audited financial statements that bear only unqualified opinions according to regulations adopted by the Ministry of Finance. Financial statements must be audited by independent auditing firms that are not on the list of auditing firms ineligible for auditing credit institutions and branches of foreign banks as announced by the State Bank of Vietnam (applicable to trust organizations that are commercial banks);”

6. Point dd, Point e Clause 2, Point dd, Point g Clause 4 Article 14, and Point dd Clause 2 Article 23 are abrogated.

Article 2. Amending, supplementing and abrogating certain articles of the Government’s Decree No. 39/2014/ND-CP dated May 07, 2014 on operations of financial companies and finance lease companies

1. Point a Clause 1 Article 13 is amended and supplemented as follows:

“a) The requirements laid down in Article 5 of this Decree;”

2. Clause 1, Clause 3 Article 5, Clause 2, Clause 3 Article 6, Clause 2 Article 7, Clause 2, Clause 3 Article 8, Clause 2 Article 10, Point b Clause 1, Point b Clause 2 Article 11, Point c Clause 2 Article 12, Point b Clause 1 and Point b Clause 2 Article 13 are abrogated.

Article 3. Amending, supplementing and abrogating certain articles of the Government’s Decree No. 101/2012/ND-CP dated May 07, 2012 on non-cash payment

1. Point b Clause 2 Article 15 (as amended and supplemented in Clause 8 Article 1 of the Government’s Decree No. 80/2016/ND-CP dated July 01, 2016) is amended and supplemented as follows:

“b) Have the plan for provision of intermediary payment services which must be approved by a competent authority as defined in its Charter and contain, inter alia, the following:

(i) The process of technical operations of the intermediary payment service for which the application for license is submitted, including:  Name and scope of the service, target customers, conditions for using service, diagram and description of steps of the operation, cash flow from the beginning of the service to the finalization of obligations between related parties;

(ii) The mechanism for ensuring the solvency, including:  The mechanism for opening and maintaining balance on the payment guarantee account, and purposes of the payment guarantee account;

(iii) The process of internal inspection and control; risk management, security and confidentiality protection; general rules and internal regulations on anti money laundering; process and procedures for response to trace requests, complaints and denunciations;”

2. Point d Clause 2 Article 15 is amended and supplemented as follows:

“d) Personnel requirements:  The legal representative, General Director (or Director) of the organization applying for the license must possess a bachelor's degree or higher or have at least 03 years of experience in one of the following areas, business administration, economics, finance, banking or law;

Deputy General Director (or Deputy Director) and holders of other key positions in the Plan for provision of intermediary payment services (including heads of departments (divisions) or holders of equivalent positions, and technicians) must possess associate degree or higher in economics, finance, banking, information technology or the area related to their in-charge professional positions;”

3. Point h Clause 2 Article 15 (as amended and supplemented in Clause 8 Article 1 of the Government’s Decree No. 80/2016/ND-CP dated July 01, 2016) is abrogated.

Article 4. Amending and supplementing certain articles of the Government’s Decree No. 10/2010/ND-CP dated February 12, 2010 on credit information-related activities

Clause 5 Article 7 (as amended and supplemented in Article 1 of the Government’s Decree No. 57/2016/ND-CP dated July 01, 2016 providing amendments to Article 7 of the Government’s Decree No. 10/2010/ND-CP dated February 12, 2010) is amended and supplemented as follows:

“5. There are at least 15 credit institutions, branches of foreign banks (except banks for social policies, cooperative banks, people’s credit funds and microfinance institutions) that commit to provide credit information; these credit institutions and branches of foreign banks do not give similar commitments to any other credit information provider.”

Article 5. Amending, supplementing and abrogating certain articles of the Government’s Decree No. 89/2016/ND-CP dated July 01, 2016 on requirements to be satisfied by foreign exchange agents, and economic organizations providing foreign currency receipt and payment services

1. Clause 5 Article 4 is amended and supplemented as follows:

“5. The procedures for foreign exchange operations must be available; methods for ensuring security and safety during the foreign exchange process must be adopted; the notice of exchange rates and the signboard specifying the name of the authorizing credit institution and the name of the foreign exchange agent must be available at the transaction location.”

2. Clause 7 Article 4 is amended and supplemented as follows:

“7. An economic organization is allowed to act as the foreign exchange agent for only one licensed credit institution.”

3. Clauses 1, 3, 4 Article 4, Point a, Point b Clause 1 Article 5 and Point a, Point b Clause 1 Article 6 are abrogated.

Article 6. Implementation

This Decree comes into force from March 20, 2019.

Article 7. Responsibility for implementation 

Ministers, heads of ministerial-level agencies, heads of the Government’s affiliates, and Chairpersons of People’s Committees of provinces and central-affiliated cities shall implement this Decree./.