Circular No. 09/2022/TT-BTC Amending and supplementing certain articles of the Regulation on examination, review, and approval of foreign loans under the self-borrowing and self-repayment method for enterprises with more than 50% state-owned equity capital issued together with Circular No. 153/2014/TT-BTC dated October 20, 2014, of the Minister of Finance.

CIRCULAR

AMENDMENTS AND SUPPLEMENTS TO CERTAIN ARTICLES OF THE REGULATIONS ON REVIEWING, AUDITING, AND APPROVING FOREIGN LOANS OF STATE-OWNED ENTERPRISES WITH MORE THAN 50% STATE CAPITAL CONTRIBUTION UNDER THE SELF-BORROWING AND SELF-REPAYING MECHANISM AS ISSUED BY DECREE NO. 153/2014/TT-BTC ON OCTOBER 20, 2014

Pursuant to the Law on Management and Use of State Capital for Investment in Business Operations dated November 26, 2014;

Pursuant to the Law on Enterprises dated June 17, 2020;

Pursuant to the Foreign Exchange Regulations dated December 13, 2005 and the Decree Amending and Supplementing Certain Provisions of the Foreign Exchange Regulations dated March 18, 2013;

Pursuant to Decree No. 87/2017/NĐ-CP dated July 26, 2017, issued by the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

Pursuant to Decree No. 91/2015/NĐ-CP dated October 13, 2015 of the Government on State Capital Investment in Enterprises and Management and Use of Capital and Assets in Enterprises;

Pursuant to Decree No. 32/2018/NĐ-CP dated March 8, 2018 of the Government amending and supplementing certain articles of Decree No. 91/2015/NĐ-CP dated October 13, 2015 of the Government on State Capital Investment in Enterprises and Management and Use of Capital and Assets in Enterprises;

Pursuant to Decree No. 140/2020/NĐ-CP dated November 30, 2020 of the Government amending and supplementing certain articles of Decree No. 126/2017/NĐ-CP dated November 16, 2017 of the Government on Specialized State-Owned Enterprises and Joint Stock Companies with 100% State Capital Contribution Changing to Publicly Listed Companies; Decree No. 91/2015/NĐ-CP dated October 13, 2015 of the Government on State Capital Investment in Enterprises and Management and Use of Capital and Assets in Enterprises and Decree No. 32/2018/NĐ-CP dated March 8, 2018 of the Government amending and supplementing certain articles of Decree No. 91/2015/NĐ-CP;

Pursuant to Decree No. 10/2019/NĐ-CP dated January 30, 2019 of the Government on the exercise of rights and responsibilities of state-owned enterprise representatives;

Pursuant to the Decree No. 219/2013/NĐ-CP dated December 26, 2013 of the Government on Management of Foreign Borrowings and Repayments by Enterprises Not Guaranteed by the Government;

The Minister of Finance hereby issues this Circular amending and supplementing certain Articles of Circular No. 133/2015/TT-BTC dated August 31, 2015, issued by the Minister of Finance guiding the financial management mechanism for the Vietnam Chamber of Commerce and Industry (hereinafter referred to as Circular No. 133/2015/TT-BTC).

The Minister of Finance issues this Circular amending and supplementing certain articles of the Regulations on reviewing, auditing, and approving foreign loans of state-owned enterprises with more than 50% state capital contribution under the self-borrowing and self-repaying mechanism issued together with Circular No. 153/2014/TT-BTC dated October 20, 2014 of the Minister of Finance.

Article 1. Amending and supplementing certain articles of the Regulations on reviewing, auditing, and approving foreign loans of state-owned enterprises with more than 50% state capital contribution under the self-borrowing and self-repaying mechanism issued together with Circular No. 153/2014/TT-BTC dated October 20, 2014 of the Minister of Finance.

1. Amend and supplement Article 1 as follows:

"Article 1. Scope of Regulation and Applicability

Thông tư này quy định chi tiết khoản 4 Điều 38 Luật Thủy sản số 18/2017/QH14 đã được sửa đổi, bổ sung tại điểm c khoản 21 Điều 14 Luật số 146/2025/QH15.

These Regulations stipulate the contents of the Ministry of Finance's review and approval of the policy for foreign loans of state-owned enterprises with more than 50% state capital contribution under the self-borrowing and self-repaying mechanism in the form of loan contracts tied to investment projects of these enterprises.

第二条 组织和实施奖励工作的支出水平，如政府第152/2025/NĐ-CP号决定关于分级授权和奖励领域的分权规定

a) The representative body of the owner;

b) State-owned enterprises with 100% state capital contribution excluding credit organizations;

c) Relevant agencies, organizations, and individuals.”

2. Amending and supplementing Article 2 as follows:

"Article 2. Interpretation of Terms

In this Regulation, the following terms shall be understood as follows:

1. State-owned enterprises with 100% state capital contribution (hereinafter referred to as enterprises) include:

a) A single-member limited liability company with 100% state capital contribution that is the parent company of a state economic group, the parent company of a state corporation, or the parent company within a parent-subsidiary group;

b) A single-member limited liability company with 100% state capital contribution that operates independently.

2. Foreign loans under the self-borrowing and self-repaying mechanism as stipulated in these Regulations refer to medium- and long-term foreign loans under the self-borrowing and self-repayment mechanism without government guarantees for implementing investment projects of enterprises (hereinafter referred to as foreign loans).

3. The lender is a foreign agency, organization, or individual providing foreign loans to enterprises.

4. An investment project is a set of proposals to invest medium- or long-term funds to carry out business activities in a specific area over a defined period (hereinafter referred to as a project).”

3. Amend and supplement Article 3 as follows:

"Article 3. Principles for Reviewing and Approving the Policy for Foreign Loans

1. Compliance with laws and regulations on raising capital and foreign loans under the self-borrowing and self-repaying mechanism for state-owned enterprises with 100% state capital contribution regarding management and use of state capital invested in production and business operations at enterprises and management of foreign borrowing and repayment by enterprises not guaranteed by the government.

2. The Ministry of Finance shall conduct reviews and approve the policy for foreign loans based on the investment project decision of the competent authority, the proposal of the representative body of the owner, and the documents specified in Article 5 of these Regulations.

3. Enterprises shall bear all risks and be responsible under the law for raising, managing, and using foreign loan capital under the self-borrowing and self-repaying mechanism and repaying foreign loans fully and on time according to the agreements signed.”

4. Amend and supplement Clause 2, Clause 3, Clause 4, Clause 5, and Clause 8 of Article 4 as follows:

“2. Projects utilizing foreign loans must serve production and business activities in the main business sectors of enterprises, be initiated by enterprises themselves, and be included in the five-year development plan and annual production and business plans of enterprises.

3. The representative body of the owner has approved the policy for foreign loans.

4. The lender has provided written consent to provide foreign loans.

5. The total debt payable by the enterprise (including the value of guarantees for subsidiaries borrowing from credit institutions) does not exceed three times the enterprise's equity capital recorded in the most recent quarterly or annual financial report of the enterprise at the time of submitting the dossier to the Ministry of Finance for review in accordance with Point a, Clause 3, Article 23 of the Law on Management and Use of State Capital Invested in Production and Business Operations at Enterprises dated November 26, 2014. In cases where capital is raised above this limit, it must be approved by the representative body of the owner.

8. There is a financial plan ensuring the ability to repay foreign loans.”

5. Amend and supplement Article 5 as follows:

"Article 5. Provisions on Dossiers for Review and Approval of the Policy for Foreign Loans

The dossier for the Ministry of Finance to review and approve the policy for foreign loans of enterprises provided by the representative body of the owner includes:

1. A letter from the representative body of the owner requesting the Ministry of Finance to review and approve the policy for foreign loans of enterprises, detailing the following contents:

a) Compliance with the conditions for examination and approval of foreign loan proposals as stipulated in Article 4 of this Regulation;

b) The opinion of the agency representing the owner regarding the necessity of the foreign loan, the company's ability to balance corresponding capital, its capacity to repay the foreign loan, and the company's financial capability.

2. The document approving the proposal for foreign loans issued by the agency representing the owner, including the following contents:

a) Purpose of borrowing;

b) Main terms of the foreign loan: Value of the foreign loan, currency of the debt, loan term, interest rate and related fees, repayment method, grace period, repayment period;

c) Other basic clauses and conditions related to the foreign loan (if any);

d) Basic information in the financial plan of the project using the foreign loan, including total investment amount, investment capital structure, disbursement schedule of the foreign loan, annual corresponding capital allocation plan of the company, and annual source adjustment plan for repaying the loan from depreciation and profits generated by the project, along with accompanying numerical data.

3. Five-year investment development plan and the current year's production and business plan of the company.

4. The document from the lender approving the provision of the foreign loan for the implementation of the project, including the main terms of the foreign loan such as: Value of the foreign loan, currency of the debt, loan term, interest rate and related fees, repayment method, grace period, repayment period, and other basic conditions related to the foreign loan (if any).

5. Investment decision on the project by the competent authority or approval decision on the field development plan (FDP) for oil and gas projects.

6. The financial plan of the project using the foreign loan prepared by the company, explaining the total investment amount, investment capital structure (corresponding capital of the company, capital from the foreign loan, and other sources), disbursement schedule of the foreign loan, annual corresponding capital allocation plan, annual source adjustment plan for repaying the loan from depreciation and profits generated by the project, and accompanying numerical data.

7. Certificate of enterprise registration at the most recent date.

8. Separate financial statements and consolidated financial statements (in case the company is the parent company of a state-owned economic group, state-owned corporation, or a parent company within a parent-subsidiary group) audited according to the law in the three consecutive years closest to the present and the most recent quarterly financial report of the company up to the time of requesting the Ministry of Finance to examine.

In cases where the company has not been operating continuously for three years, the agency representing the owner must provide an opinion on the company's repayment capacity along with the most recent audited annual financial report and the most recent quarterly financial report of the company.

9. Report from the company on the value of guarantees provided for subsidiaries borrowing funds from credit institutions that remain valid at the end of the year and the end of the most recent quarter up to the time of requesting the Ministry of Finance to examine (if any).

10. Report from the company on overdue debts at financial and credit organizations, overdue debts related to guaranteed amounts, and overdue debts from relending of government and state budget foreign loans at the time of requesting the Ministry of Finance to examine.”

6. Amend and supplement Article 6 as follows:

“Article 6. Procedures, formalities, contents of examination and approval of foreign loan proposals

1. Within fifteen working days from the receipt of complete files provided by the agency representing the owner, based on the examination results of the file, the Ministry of Finance will notify the examination results and approval of the foreign loan proposal to the agency representing the owner.

2. Contents of the examination by the Ministry of Finance:

a) Compliance with the conditions for examination and approval of foreign loan proposals;

b) Completeness of the file;

c) Financial situation of the company at the time of examination;

d) Plan for balancing corresponding capital when borrowing foreign debt under the self-borrowing and self-repayment method;

đ) Ability to repay the foreign loan according to the approved proposal by the agency representing the owner at the time of examination.

3. The agency representing the owner shall be responsible for explaining opinions and contents provided to the Ministry of Finance during the organization and implementation of the examination and approval of foreign loan proposals.”

“a) Establishing and developing effectively concentrated raw material zones according to the orientations set forth in Decree No. 98/2018/NĐ-CP dated July 5, 2018 of the Government on policies encouraging the development of cooperation and linkage in agricultural production and consumption; Decision No. 100/QĐ-TTg dated January 19, 2019 of the Prime Minister approving the project to implement, apply, and manage traceability systems; Decision No. 1804/QĐ-TTg dated November 13, 2020 of the Prime Minister approving the Program to support the development of collective economic organizations and cooperatives from 2021 to 2025; Decision No. 255/QĐ-TTg dated February 25, 2021 of the Prime Minister approving the Plan to restructure the agricultural sector from 2021 to 2025; Decision No. 885/QĐ-TTg dated June 23, 2020 of the Prime Minister approving the Project to develop organic agriculture from 2020 to 2030, and according to the planning of concentrated raw material zones of localities.”

“Article 8. Supervision System

1. The agency representing the owner shall be responsible for supervising the management and use of foreign loans by enterprises under its jurisdiction to ensure that the borrowed capital is used for the intended purpose, effectively, and with sufficient sources for repayment as prescribed. In cases where enterprises use borrowed capital for unintended purposes or encounter financial difficulties that may result in non-payment of debt, the agency representing the owner shall organize inspections, clarify both subjective and objective reasons, and develop solutions for consideration and handling within its authority.

2. The Ministry of Finance shall take the lead and coordinate with relevant agencies to inspect and supervise according to their authority and regulations on managing foreign borrowing and repayment by enterprises not guaranteed by the Government.”

8. Amend and supplement Clause 1, Clause 2 of Article 9 as follows:

“1. The agency representing the owner:

a) Approves the proposal for foreign loans and provides all necessary documents for the Ministry of Finance to examine and approve the proposal for foreign loans as specified in Clause 1 of Article 1 of this Regulation;

b) If there are changes in the content compared to the documents submitted to the Ministry of Finance for examination and approval without altering the provisions set out in Point c and đ of Clause 2 of Article 6 of this Regulation, the agency representing the owner may independently review and approve according to its authority, without needing to resubmit to the Ministry of Finance for re-examination.

2. Board of Directors, Company Chairman:

a) Propose the agency representing the owner to consider and approve the proposal for foreign loans in accordance with the laws on the management and use of state capital invested in production and business activities of enterprises and the laws on the management of foreign borrowing and repayment by enterprises not guaranteed by the Government.

b) Shall be responsible for the accuracy, truthfulness, and completeness of the files and documents reported to the agency representing the owner regarding the effectiveness of the project and the ability to repay foreign loans of the enterprise;

c) Shall be responsible for directing the enterprise to comply with conditions, procedures, and formalities for foreign borrowing as stipulated by laws on foreign borrowing and repayment management for enterprises not guaranteed by the Government; signing and implementing agreements related to foreign loans in accordance with the law;

d) Organize the management and use of borrowed capital for its intended purpose. Implement reporting systems on the use of foreign loans in accordance with the law;

đ) Direct and organize the implementation of debt repayment plans, balance cash flows to ensure sources of repayment and full payment of debts due according to the agreed deadlines with the Lender;

e) In cases where the enterprise cannot repay debts due to subjective reasons, the members of the Board of Directors, the Chairman of the company, and relevant persons shall be subject to examination and handling in accordance with the law and the Articles of Association of the enterprise.";

Article 2. Replacing and abolishing certain phrases, points, clauses, and articles of Circular No. 153/2014/TT-BTC dated October 20, 2014, issued by the Minister of Finance, and the Regulation on Examination, Review, and Approval of Foreign Borrowings under Self-Borrowing and Self-Repayment Methods for Enterprises with State Ownership of More Than 50% of Charter Capital issued together with Circular No. 153/2014/TT-BTC dated October 20, 2014, issued by the Minister of Finance.

1. Replace certain phrases as follows:

a) Replace the phrase "examination, review, and approval of foreign borrowings under self-borrowing and self-repayment methods for enterprises with state ownership of more than 50% of charter capital" with the phrase "approval of the policy for foreign borrowings under self-borrowing and self-repayment methods for enterprises with state ownership of 100% of charter capital" as stipulated in Circular No. 153/2014/TT-BTC dated October 20, 2014, issued by the Minister of Finance, and this Regulation;

b) Replace the phrases "examination, review, and approval of foreign loans", "evaluation and approval of foreign loans", "examination and approval of foreign loans", and "review and approval of foreign loans" with the phrase "evaluation and approval of the policy for foreign loans" as stipulated in this Regulation.

2. Abolish the contents prescribed in Clause 1, Clause 7, Article 4; Article 7; Clause 3, Point b, Clause 4 of this Regulation.

Article 3. Implementation Provisions

1. This Circular takes effect from April 1, 2022.

2. For cases where the Ministry of Finance has received applications before the effective date of this Circular but have not yet completed the evaluation and approval of the policy for foreign loans, they shall be implemented in accordance with this Regulation.

3. As for foreign loans not within the scope of regulation prescribed in Clause 1, Article 1 of this Regulation, the agency representing the owner shall proactively examine and decide according to its authority. The Ministry of Finance will not conduct evaluations and approvals of policies for these foreign loans.

4. During the implementation process, if there are any difficulties, please promptly report them to the Ministry of Finance for consideration and specific guidance.