Circular No. 03/2009/TT-BCT guiding the dossier, procedures, and formalities for issuing licenses to establish commodity exchanges as stipulated in Decree No. 158/2006/NĐ-CP dated December 28, 2006 of the Government detailing the Law on Trade regarding trading activities through commodity exchanges.

CIRCULAR

Guidelines for the dossier, procedure, and process of issuing trading commodity exchange establishment licenses and reporting regulations for Trading Commodity Exchanges as stipulated in Decree No. 158/2006/ND-CP dated December 28, 2006, of the Government detailing the Law on Trade regarding trading activities through Trading Commodity Exchanges.

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Pursuant to Decree No. 189/2007/ND-CP dated December 27, 2007, issued by the Government, detailing the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade;

Pursuant to Decree No. 158/2006/ND-CP dated December 28, 2006, of the Government detailing the Law on Trade regarding trading activities through Trading Commodity Exchanges (hereinafter referred to as Decree No. 158/2006/ND-CP);

The Ministry of Industry and Trade guides certain contents regarding the dossier, procedure, and process of issuing trading commodity exchange establishment licenses and reporting regulations for Trading Commodity Exchanges as stipulated in Decree No. 158/2006/ND-CP as follows:

I. DOSSIER FOR APPLICATION FOR ISSUANCE, AMENDMENT, SUPPLEMENTATION, AND REISSUANCE OF THE ESTABLISHMENT LICENSE FOR A TRADING COMMODITY EXCHANGE

1. The dossier for application for establishment of a Trading Commodity Exchange includes:

a) A document requesting the establishment of a Trading Commodity Exchange in accordance with the model prescribed in Appendix I (Model MG-1 and Model MG-2) issued together with this Circular;

b) A list of founding members in the case where the Trading Commodity Exchange operates under the form of a limited liability company with two or more shareholders or a list of authorized representatives of the Trading Commodity Exchange in the case where it operates under the form of a single-member limited liability company whose owner is an organization or a list of founding shareholders in the case where it operates under the form of a joint-stock company according to the model prescribed in Appendix II (corresponding to Models MDS-1, MDS-3, and MDS-2) issued together with this Circular;

c) Certified copies by competent authorities of identification cards or other legally recognized personal identification documents (as provided for by laws on business registration) of the owner, founding members, or founding shareholders who are individuals, and certified copies by competent authorities of the Decision on Establishment, Business Registration Certificate, or equivalent documents of organizations; power of attorney for authorized representatives;

d) Certified copies by competent authorities of university or bachelor's degree certificates of the Director or General Manager of the Trading Commodity Exchange and legal documents proving that the Director or General Manager has at least five years of work experience in the economic-financial field;

đ) A document confirming the statutory capital by the competent authority as prescribed in Section II of this Circular;

e) An economic-technical justification covering objectives, location, progress of establishment and commencement of operations, technological solutions for transaction implementation, physical infrastructure, information infrastructure, and scale of the Trading Commodity Exchange;

g) A draft Charter of Operations of the Trading Commodity Exchange as prescribed in Section IV of this Circular;

h) A draft Corporate Charter in compliance with the Law on Enterprises. The draft Corporate Charter must be fully signed by the company owner, the legal representative of a single-member limited liability company; by the legal representative, members, or authorized representatives of a limited liability company with two or more shareholders; by the legal representative, founding shareholders, or authorized representatives of founding shareholders of a joint-stock company.

2. The dossier for application for amendment or supplementation of the establishment license of a Trading Commodity Exchange includes:

a) A document requesting amendment or supplementation of the establishment license of a Trading Commodity Exchange in accordance with the model prescribed in Appendix I (Model MG-3) issued together with this Circular;

b) The original establishment license of the Trading Commodity Exchange.

3. The dossier for application for reissuance of the establishment license of a Trading Commodity Exchange includes:

a) A document requesting reissuance of the establishment license of a Trading Commodity Exchange in accordance with the model prescribed in Appendix I (Model MG-4) issued together with this Circular.

b) The remaining original part of the establishment license of the Trading Commodity Exchange that can still be identified in cases of tearing, damage, burning, or partial destruction; or a confirmation from the police authority regarding declaration in cases of loss, burning, or total destruction of the establishment license of the Trading Commodity Exchange;

c) A certified copy by the competent authority of the establishment license of the Trading Commodity Exchange (if available).

II. CONFIRMATION OF STATUTORY CAPITAL AT THE TIME OF ESTABLISHING A TRADING COMMODITY EXCHANGE

1. The document confirming statutory capital at the time of establishing a Trading Commodity Exchange sent to the Ministry of Industry and Trade includes:

a) Shareholders' contribution records for a joint-stock company or founding members' contribution records for a limited liability company with two or more shareholders; the decision on capital transfer by the owner for a single-member limited liability company whose owner is an organization; the investment capital registration of the owner for a single-member limited liability company whose owner is an individual;

b) In cases where the capital is contributed in cash, there must be a confirmation document from a commercial bank permitted to operate in Vietnam regarding the amount of deposit made by founding members or founding shareholders or the company owner. The deposit amount can only be released after the Trading Commodity Exchange has been granted the establishment license;

c) In cases where the capital is contributed in assets, there must be a valuation certificate from a valuation organization operating in Vietnam regarding the valuation result of the assets being contributed. The certificate must remain valid until the submission of the dossier to the Ministry of Industry and Trade.

2. During its operation, the Trading Commodity Exchange must maintain its registered capital at a level not lower than the statutory capital.

3. Organizations and individuals directly confirming the statutory capital shall jointly bear responsibility for the accuracy and truthfulness of the capital at the time of confirmation.

III. PROCEDURE AND PROCESS FOR ISSUANCE, AMENDMENT, SUPPLEMENTATION, REISSUANCE, AND REVOCATION OF THE ESTABLISHMENT LICENSE FOR A TRADING COMMODITY EXCHANGE

1. Procedure and process for issuance, amendment, supplementation, and reissuance of the establishment license for a Trading Commodity Exchange

a) The Ministry of Industry and Trade is the agency receiving the dossier for application for issuance, amendment, supplementation, and reissuance of the establishment license for a Trading Commodity Exchange.

b) The Ministry of Industry and Trade shall examine the validity of the application file or review the conditions and application file for issuing, amending, supplementing, or reissuing the Commodity Exchange Establishment License according to the specific deadlines set forth in Clauses 2, 3, and 4 of Article 10; Clause 3 of Article 12 and Clause 3 of Article 13 of Decree No. 158/2006/ND-CP based on the received application file and relevant laws.

2. Review of Conditions and Application Files for Establishing a Commodity Exchange

a) The review board under the Ministry of Industry and Trade shall be responsible for reviewing the conditions and application files for establishing a commodity exchange.

b) In cases where necessary, the Ministry of Industry and Trade shall chair the establishment of a review board to review the conditions and application files for establishing a commodity exchange in accordance with Article 8 and Article 9 of Decree No. 158/2006/ND-CP and this Circular. The review board shall include representatives from the Ministry of Finance, the State Bank of Vietnam, the Ministry of Planning and Investment, and relevant departments and bureaus under the Ministry of Industry and Trade.

3. Revocation of the Establishment License

The Minister of Industry and Trade may issue a decision to revoke the establishment license of a commodity exchange or compel compliance with the provisions of the law in the following cases:

a) The information declared in the application file for issuing, amending, supplementing, or reissuing the establishment license of a commodity exchange is false.

b) Establishment of the Commodity Exchange by individuals prohibited from establishing enterprises under the laws on enterprises;

c) Failure to publish the content of the establishment license, the operational charter, and other information about the commodity exchange as stipulated in Section V of this Circular;

d) Failure to register the tax identification number within one year from the date of issuance of the establishment license of the commodity exchange;

đ) Failure to operate at the registered address for six consecutive months from the date of issuance of the establishment license of the commodity exchange or the amendment, supplementation license regarding the registered address in the establishment license of the commodity exchange;

e) Ceasing business operations for one continuous year without notifying the Ministry of Industry and Trade;

g) Failure to comply with reporting requirements as prescribed in this Circular and the law on enterprises for twelve consecutive months or within three months from the date of written request;

h) Engaging in transactions of goods outside the list of permitted goods as specified in the Decision on the establishment of the commodity exchange;

IV. OPERATIONAL CHARTER OF THE COMMODITY EXCHANGE

1. The draft operational charter of the commodity exchange must contain the following main contents:

a) Conditions and procedures for approving member status; rights and obligations of members;

b) Circumstances leading to termination of member status and responsibilities upon termination of member status;

c) Types of traded goods; standards and units of measurement for such goods;

d) Sample trading contracts and trading orders;

đ) Trading contract duration and trading execution process;

e) Trading limits, trading margin, and trading fees;

g) Methods and procedures for executing contracts;

h) Content of information disclosure by the commodity exchange and reports on activities and financial statements of members;

i) Risk management measures;

k) Dispute resolution;

l) Amendments and supplements to the operational charter;

m) Other related contents.

2. The draft operational charter of the commodity exchange must not contravene the provisions of Decree No. 158/2006/ND-CP, this Circular, and current laws.

3. The draft operational charter of the commodity exchange shall be signed by the legal representative of the commodity exchange and submitted together with the application file for establishing the commodity exchange.

4. The application file for approval of the operational charter and approval of amendments and supplements to the operational charter of the commodity exchange includes:

a) A proposal requesting approval;

b) Draft of the operational charter or amended and supplemented version of the operational charter of the commodity exchange;

c) Minutes of approval of the operational charter or minutes of approval of the amended and supplemented version of the operational charter of the commodity exchange.

5. The examination and approval of the operational charter of the commodity exchange shall be conducted concurrently with the review of the application file and issuance of the establishment license of the commodity exchange. The approval period for amendments and supplements to the operational charter of the commodity exchange shall be thirty (30) days from the date of receipt of the valid application file of the commodity exchange.

V. PUBLICATION OF CONTENTS OF THE ESTABLISHMENT LICENSE, OPERATIONAL CHARTER, AND OTHER INFORMATION ABOUT THE COMMODITY EXCHANGE

1. Within thirty (30) days from the date of issuance of the establishment license, the commodity exchange must publish the content of the establishment license on a legally operating online newspaper or print newspaper in Vietnam for three (03) consecutive issues.

2. From the date of issuance of the establishment license, the commodity exchange must publish the operational charter, list, and other information about its members; information on transactions and trading orders for buying and selling goods through the commodity exchange and other information as stipulated in the operational charter of the commodity exchange at its headquarters, branches, representative offices, and on its official website (if available).

3. In case of changes to the content of the establishment license, the commodity exchange must publish the details of those changes within the time frame and method prescribed in point a of this clause.

VI. REPORTING SYSTEM OF THE COMMODITY EXCHANGE

1. Periodic reports

a) Contents of periodic reports according to the model prescribed in Appendix III issued along with this Circular, including:

- Model BC: Report on the operation of the commodity exchange;

- Model DSTV: Report on the list of members of the commodity exchange;

b) Deadline for submitting periodic reports to the Ministry of Industry and Trade:

- Before April 15 for the first quarter report and before October 15 for the third quarter report annually;

- Before July 20 for the mid-year report;

- Before January 31 of the following year for the annual report of the previous year.

2. Emergency Reports

a) When there are unusual developments in transactions, the Commodity Exchange must send a report to the Ministry of Industry and Trade by the fastest means possible.

b) Other ad hoc reports as required by specific content and time by the Ministry of Industry and Trade or other competent authorities.

3. Form and address for sending reports (both periodic and ad hoc)

a) The Commodity Exchange must send reports to the Ministry of Industry and Trade in both written form and electronic data file format.

b) Address for sending written reports: Ministry of Industry and Trade: No. 54 Hai Ba Trung Street, Hoan Kiem District, Hanoi.

c) Address for sending electronic data reports: [email protected].

VII. IMPLEMENTATION ORGANIZATION

1. The Domestic Market Department shall be responsible for receiving, examining the validity of the application dossier, leading the review of conditions and dossiers to submit to the Minister of Industry and Trade for deciding on issuing, reissuing, amending, and supplementing the Commodity Exchange Establishment License; approving the Rules of Operation of the Commodity Exchange in accordance with Articles 8, 9, 10, 12, 13, and 14 of Decree No. 158/2006/NĐ-CP and the guidance provided in this Circular.

2. This Circular shall take effect forty-five (45) days from the date of issuance.

3. During the implementation of this Circular, if any difficulties arise, organizations and individuals involved are requested to promptly report them to the Ministry of Industry and Trade for study and resolution./.