Circular No. 28/2018/TT-NHNN amending and supplementing certain Articles of Circular No. 40/2011/TT-NHNN dated December 15, 2011, issued by the Governor of the State Bank of Vietnam on the issuance of Licenses and the organization and operation of commercial banks, foreign bank branches, and representative offices of foreign credit institutions, and other foreign organizations engaged in banking activities in Vietnam.

CIRCULAR

Amending and supplementing some articles of Circular No. 40/2011/TT-NHNN dated December 15, 2011 of the Governor of the State Bank of Vietnam on the issuance of Licenses and organization and operation of commercial banks, foreign bank branches, representative offices of foreign credit institutions, and other foreign organizations engaged in banking activities in Vietnam.

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

Pursuant to the Law on Credit Institutions dated June 16, 2010, and the Law Amending and Supplementing Certain Provisions of the Law on Credit Institutions dated November 20, 2017;

Pursuant to Government Decree No. 16/2017/NĐ-CP dated February 17, 2017 on the functions, tasks, powers, and organizational structure of the State Bank of Vietnam;

At the proposal of the Director of Banking Inspection and Supervision;

The Governor of the State Bank of Vietnam issues this Circular to amend and supplement some articles of Circular No. 40/2011/TT-NHNN dated December 15, 2011 of the Governor of the State Bank of Vietnam on the issuance of Licenses and organization and operation of commercial banks, foreign bank branches, representative offices of foreign credit institutions, and other foreign organizations engaged in banking activities in Vietnam.

Article 1. Amending and supplementing some articles of Circular No. 40/2011/TT-NHNN dated December 15, 2011 of the Governor of the State Bank of Vietnam on the issuance of Licenses and organization and operation of commercial banks, foreign bank branches, representative offices of foreign credit institutions, and other foreign organizations engaged in banking activities in Vietnam (hereinafter referred to as Circular No. 40/2011/TT-NHNN).

1. Clause 3 shall be amended and supplemented as follows:

“Article 3. Competence to decide on issuing Licenses

The Governor of the State Bank of Vietnam decides on issuing Licenses in accordance with the Law on Credit Institutions, this Circular, and relevant laws.

2. Clause 2 of Article 6 is amended and supplemented as follows:

"2. The fee for issuing Licenses shall be in accordance with the law on fees and charges."

3. The name of Section 2 Chapter II is amended and supplemented as follows:

“Section 2

CONDITIONS FOR FOUNDING SHAREHOLDERS OF JOINT STOCK COMMERCIAL BANKS, FOUNDING MEMBERS OF JOINT-VENTURE BANKS, FOREIGN CREDIT INSTITUTIONS AS OWNERS OF 100% FOREIGN CAPITAL BANKS, AND PARENT BANKS OF FOREIGN BANK BRANCHES”

4. The name of Article 9 is amended and supplemented as follows:

“Article 9. Conditions for founding shareholders of joint stock commercial banks”

5. The name of Article 10 is amended and supplemented as follows:

“Article 10. Conditions for founding members of joint-venture banks, foreign credit institutions as owners of 100% foreign capital banks”

6. The name of Article 11 is amended and supplemented as follows:

“Article 11. Conditions for parent banks of foreign bank branches”

7. Point a Clause 4 Article 14 is amended and supplemented as follows:

"a) Curriculum vitae according to the form prescribed in Appendix 03 of this Circular; Criminal record certificate:"

For Vietnamese citizens: Criminal record certificate issued by the authority managing the criminal record database, which must include complete information about criminal records (including expunged and unexpunged criminal records) and information about prohibition from holding positions, establishing, and managing enterprises and cooperatives;

For non-Vietnamese citizens: Criminal record certificate or equivalent document (containing complete information about criminal records, including expunged and unexpunged criminal records; information about prohibition from holding positions, establishing, and managing enterprises and cooperatives) must be issued by the competent authority of Vietnam or the competent authority of a foreign country in accordance with regulations;

The criminal record certificate or equivalent document must be issued by the competent authority before the date of submitting the application for License not more than six months;

8. Point a (iii) Clause 3 Article 15 is amended and supplemented as follows:

"(iii) In addition to the documents mentioned above, founding shareholders must provide the following documents:

- Curriculum vitae according to the form prescribed in Appendix 03 of this Circular; Criminal record certificate issued by the authority managing the criminal record database, which must include complete information about criminal records (including expunged and unexpunged criminal records) and information about prohibition from holding positions, establishing, and managing enterprises and cooperatives;

The criminal record certificate must be issued by the competent authority before the date of submitting the application for License not more than six months;

- Financial statements of three consecutive years prior to the year of submitting the application for License of the enterprise managed by the founding shareholder or a copy of a bachelor's degree or higher in economics or law;

- Declaration of assets worth 100 million dong or more, debts, and related documents of individuals according to the form prescribed in Appendix 07 of this Circular;"

9. Point b (vi) Clause 3 Article 15 is amended and supplemented as follows:

"(vi) Identity card or citizen identification card or passport of the legal representative and capital contribution representative of the organization at the bank;"

10. Point b (ix) Clause 3 Article 15 is amended and supplemented as follows:

"(ix) In addition to the documents mentioned above, founding shareholders must provide the following documents:

- Curriculum vitae of the capital contribution representative according to the form prescribed in Appendix 03 of this Circular; Criminal record certificate according to point a Clause 4 Article 14 of this Circular;

- Audited financial statements of five consecutive years prior to the year of submitting the application for License by an independent auditing company listed by the Ministry of Finance as meeting the criteria for auditing enterprises, and these financial statements must not have any reservations from the auditing company;"

11. Clause 4 Article 17 is amended and supplemented as follows:

"4. Curriculum vitae of the General Director (Director) of the proposed foreign bank branch according to the form prescribed in Appendix 03 of this Circular, confirmed by the parent bank; Criminal record certificate according to point a Clause 4 Article 14 of this Circular; Copies of certificates proving qualifications and professional expertise and documents proving compliance with the conditions and standards stipulated in the Law on Credit Institutions and relevant laws of the proposed General Director (Director)."

12. Clause 7 Article 18 is amended and supplemented as follows:

"7. Curriculum vitae of the proposed Head of Representative Office according to the form prescribed in Appendix 03 of this Circular, confirmed by the foreign credit institution, or other foreign organization engaged in banking activities; Criminal record certificate according to point a Clause 4 Article 14 of this Circular; Copies of certificates proving qualifications and professional expertise of the proposed Head of Representative Office in Vietnam."

13. Point b Clause 2 Article 23 shall be amended and supplemented as follows:

“b) Must be within the territory of Vietnam, with a determinable address including the name of the building (if any), house number, alley, lane, street, road, village, commune, ward, town, district, city district, provincial city, province, centrally governed city; telephone number, fax number, and email address (if any). In case a commercial bank registers its headquarters at more than one house or building with different addresses, these houses or buildings must be adjacent to each other;"

14. Point b Clause 3 Article 23 shall be amended and supplemented as follows:

“b) Must be within the territory of Vietnam, with a determinable address including the name of the building (if any), house number, alley, lane, street, road, village, commune, ward, town, district, city district, provincial city, province, centrally governed city; telephone number, fax number, and email address (if any);”

15. Clause 4 Article 23 shall be amended and supplemented as follows:

“4. The office of the representative office must be within the territory of Vietnam, with a determinable address including the name of the building (if any), house number, alley, lane, street, road, village, commune, ward, town, district, city district, provincial city, province, centrally governed city; telephone number, fax number, and email address (if any).”

16. Point b Clause 1 Article 35 shall be amended and supplemented as follows:

“b) Ministry of Public Security regarding the list of personnel proposed for election or appointment as members of the Board of Directors, Members of the Board of Members, members of the Supervisory Board, and General Director (Director) of commercial banks, General Director (Director) of foreign bank branches, Head of Representative Office.”

17. Clause 2 Article 35 shall be amended and supplemented as follows:

“2. Within fifteen days from the date of receipt of the document from the State Bank of Vietnam, the relevant agencies mentioned above shall provide their opinions in writing to the State Bank of Vietnam.”

18. Clause 6 Article 36 shall be amended and supplemented as follows:

“6. Department of Information Technology:

a) Within thirty days from the date the Banking Inspection and Supervision Agency sends a request, the Department of Information Technology shall review the application for a License and send a written response to the Banking Inspection and Supervision Agency;

b) Evaluate issues related to information technology of commercial banks and foreign bank branches.”

19. Point b Item 4 Appendix 05a and point b Item 6 Appendix 05b shall be amended and supplemented as follows:

“b) Not to use raised funds or loans from other organizations or individuals to contribute capital; bear legal responsibility for the legality of the source of capital for establishing a bank;”

Article 2.

1. Delete the phrase "and register with the State Bank of Vietnam in accordance with Clause 3 Article 27 of this Circular" at Point c Clause 3 Article 18b of Circular No. 40/2011/TT-NHNN (supplemented by Clause 3 Article 1 of Circular No. 17/2017/TT-NHNN dated November 20, 2017 of the Governor of the State Bank of Vietnam amending and supplementing certain provisions of Circular No. 40/2011/TT-NHNN).

2. Delete the phrase "and the confirmation document of the charter registration of the commercial bank" at Point a (ii) Clause 2 Article 36 of Circular No. 40/2011/TT-NHNN.

3. Replace the term "Identity Card" with "Identity Card or Citizen Identification Card or Passport" in Appendix 07 of Circular No. 40/2011/TT-NHNN.

4. Repeal Article 7, Article 8, Clause 1 Article 9, Clause 1 Article 10, Clause 1 Article 11, Article 12, Article 20, Article 21, Article 24, Article 27, and Article 28 of Circular No. 40/2011/TT-NHNN.

Article 3. Responsibility for implementation

The Chief of the Office, the Chief Inspector of Banking Inspection and Supervision, Heads of units under the State Bank of Vietnam, Governors of the State Bank of Vietnam branches in provinces and centrally governed cities, Chairmen of the Board of Directors, Chairmen of the Board of Members, General Directors (Directors) of commercial banks, General Directors (Directors) of foreign bank branches, Heads of representative offices of foreign credit institutions, and other foreign organizations engaged in banking activities are responsible for organizing the implementation of this Circular.

Article 4. Implementation Provisions

This Circular takes effect from January 15, 2019./.