___________________________________________________________________ HANOI-VIETNAM I LEGAL UPDATE I ISSUE 1212 ________________________________________________________________________________ BANKING ANH FINANCE In this Issue: Circular No. 38/2012/TT-NHNN of the State _______________ Bank of Vietnam stipulating on gold position of credit institutions Issued on: 28 December, 2012 Effective date: 10 January, 2013 Banking and Finance This Circular is applicable to those credit Circular No. 38/2012/TT-NHNN 1 institutions licensed to engage in trading of gold bars. The trading of gold bars specified in Circular No. 37/2012/TT-NHNN 2 this Circular just includes spot trading of gold. ---------------------------------------------------------- In regard to the principle of gold position, the Circular stipulates that the gold position of Corporate bonds credit institutions will be calculated at the closing of the working day on the basis of Circular No. 211/2012/TT-BTC 3 revenues obtained from spot trading of gold ---------------------------------------------------------- bars, including the commitments of off-balance sheet spot trading of gold bars. Securities The gold position of credit institutions does not include the new balance of gold bars as a Circular No. 210/2012/TT-BTC 3 result of gold trading in order to make final ---------------------------------------------------------- accounting of the balance of the trading prior to the effective date of this Circular, including mobilizing, lending, conversion of gold into Import and export Vietnamese cash, collateralized gold, gold safekeeping and utilization of gold for other Circular No. 41/2012/TT-BCT 5 purposes. In regard to the limit of the gold position, credit institutions are allowed neither to maintain the gold position at the closing of the working day 1 LEADCO – LEGAL COUNSEL Pacific Place, Suite 404, 83B Ly Thuong Kiet Street, Hoan Kiem District, Hanoi, Vietnam www.leadcolawyers.com Legal Update / Issue 1212 over 2% of their own capital, nor maintain the from their production and business to negative gold position. In special cases, credit make their loan repayments. institutions are allowed to maintain their gold b. Short-term loans to the primary petroleum position different from the aforesaid limit upon corporate importers who are allocated with the approval of the Governor of State Bank of the 2013 petroleum importation quotas by Vietnam. the Ministry for Industry and Trade and In regard to the reporting regime, credit need foreign exchange loans to make institutions should submit their gold position of overseas payments for the importation of the previous day at 2 p.m. of the current day at petroleum if the borrowers do not have or the latest to the State Bank of Vietnam (the have inadequate foreign exchange Foreign Exchange Department) in the format revenue from their production - business to attached to this Circular. make their loan repayments. This stipulation will be valid until December 31, The Circular stipulates the responsibility of the 2013. credit institutions for compliance with provisions on the gold position limit, and the c. Short-term loans to meet their domestic responsibilities of the related entities in guiding, capital requirements to execute their overseeing, checking and monitoring the production, business plans of goods to be implementation of this Circular. exported via the border points for borrowers who are to have adequate This Circular will take effect on January 10, foreign exchange revenue from exportation 2013 which coincides the last transitional period to make their loan repayments; when the for those enterprises and credit institutions credit institutions, branches of foreign engaged in the trading of gold bars to complete banks disburse the foreign exchange the registration application with the relevant loans, borrowers have to make spot sale of authorities and to complete the application for the disbursed foreign exchange loans to the license of gold bar trading with the State credit institutions, branches of foreign Bank of Vietnam. banks who lend in the form of spot foreign exchange transactions with the exception that the borrowers need foreign exchange Circular No. 37/2012/TT-NHNN of the State loans to make the payments which are Bank of Vietnam stipulating provisions on regulated to be paid in foreign currencies. foreign currency loans of the credit institutions This stipulation will be valid until December and branches of foreign banks with customers 31, 2013. being residents Issued on: 28 December, 2012 d. Loans to be made in overseas direct Effective date: 01 January, 2013 investment for those projects of national importance as approved by the National Accordingly, the credit institutions and foreign Assembly, the Government or the Prime bank branches with foreign exchange licenses Minister and granted with the overseas (hereafter referred as credit institutions) may investment license by the Ministry of consider deciding provision of foreign exchange Planning and Investment. loans to the resident borrowers for demands of capital loan as follows: The credit institutions may consider deciding provision of foreign exchange loans for a. Short, medium and long-term loans to make demands of capital loan other than the overseas payments for the importation of aforesaid demands in fields prioritized, goods and services if the borrowers are to encouraged for production and business have adequate foreign exchange revenue development in accordance with the guidelines 2 LEADCO – LEGAL COUNSEL Pacific Place, Suite 404, 83B Ly Thuong Kiet Street, Hoan Kiem District, Hanoi, Vietnam www.leadcolawyers.com Legal Update / Issue 1212 of Government after the State bank of Vietnam payment, denomination, forms and types of has accepted in writing under the orders and bonds to be issued, bonds issuance methods, procedures as specified in this Circular. provisions on buy-back and conversion of bonds (if any). When having demand of provision of foreign exchange loan, credit institutions must have The Circular guides in details about the case written request to the State Bank of Vietnam for multiple issuance of bonds in several times for acceptance of provision of foreign currency in the domestic market, the method of bonds loans. The written request for acceptance of issuance in the domestic market, notification provision of foreign currency loans includes and registration of bonds, reporting the principal contents: Credit institutions have mechanism. Issuing enterprises are appraised and ensure that projects, plans on responsible for reporting to the competent production and business of customers are authorities for approval and acceptance of the feasible, effective; the loan borrowers must bonds’ issuing plan and to the Ministry of meet sufficient conditions of capital loan as Finance about the issuance situation. In case prescribed by the law on loan activities, have of the issuance of bonds in the international ability to withdraw debt on schedule (principal market, enterprises must simultaneously and interest); credit institutions have to ensure submit to the State Bank of Vietnam (issuance the balance of their foreign currency capital result report within 15 days from the date of source in order to loan, provision of foreign completion of the issuance at the latest; exchange loan will not affect to limit of credit periodic reports on the payment of interest and grant and rate to assure safety in operation of principal until the bonds’ maturity within 30 credit institutions as prescribed by the State days after the end of the second quarter at the bank of Vietnam; demand of foreign exchange latest (for reports of the first 6 months) and the loan of customers for the implementation of end of the year (for annual reports); report projects, plans on production and business in after the due payment of all principal and fields prioritized, encouraged for production interest on bonds - within fifteen (15) days and business development according to the from the due date of payment of all principal guidelines of Government; credit institutions and interest on bonds at the latest, issuing commit to have responsibility for result of corporate shall be responsible for reporting the appraisal and contents, information supplied in payment situation of principal and interest on the written request. bonds. CORPORATE BONDS SECURITIES Circular No. 211/2012/TT-BTC of the Ministry Circular No. 210/2012/TT-BTC of the Ministry of Finance guiding the implementation of a of Finance guiding the establishment and number of articles of the Government’s Decree operation of securities company No. 90/2011/ND-CP, dated October 14, 2011, Issued on: 30 November, 2012 on the issuance of corporate bonds. Effective date: 15 January, 2013 Issued on: 05 December, 2012 According to the new Circular, securities Effective date: 20 January, 2013 company is restricted in some following issues: Accordingly, enterprises must make public the Loan restriction conditions and terms of the bonds to be issued in accordance with the regulations in the 1. The ratio of total debt over the equity of issuing market (term, amount of bonds securities company shall not exceed three (03) expected to issue, issuing currency and bonds times. The value of the total debt shall not 3 LEADCO – LEGAL COUNSEL Pacific Place, Suite 404, 83B Ly Thuong Kiet Street, Hoan Kiem District, Hanoi, Vietnam www.leadcolawyers.com Legal Update / Issue 1212 include the following amounts: to buy corporate bonds or contribute