The registration of foreign exchange transactions related to offshore investment activities means the procedure that the investor registers with the State Bank of Vietnam (“SBV”) information about the investor, the investment capital, the investment capital account opened at a licensed credit institution for conducting offshore investment activities, and the status of transferring investment capital abroad as regulated by legal instruments.
A. Dossiers and procedures of registering foreign exchange transactions related to offshore investment activities
1. Dossier of registering foreign exchange transactions
Pursuant to Article 9 of Circular 12/2016/TT-NHNN (“Circular 12”), a dossier of registering foreign exchange transactions includes:
– The statutory application form for foreign exchange transactions;
– The copy extracted from the master register or the certified true copy or the copy enclosed with the original for comparison, of the Investment Certificate or Offshore Registration Certificate or Offshore Investment Registration Certificate issued by competent authorities of Vietnam;
– The copy in foreign language and corresponding translation in Vietnamese (with the Investor’s comfirmation that such translation is an accurate representation based on the copy) of the written approval or permit on investment issued by the host country or other documents proving that the investment activities executed in the host country are conformable with the host country’s law;
– The original written confirmation of licensed credit institutions on the opening of the investor’s investment capital account, including account number and type of foreign currency;
– The original written confirmation of licensed credit institutions on the amount transferred abroad by the investor before the investor obtains the Offshore Investment Register Certificate for the purpose of covering expenditures for activities related to the forming of such investor’s investment project abroad in compliance with laws in the case of transferring investment capital abroad before obtaining Offshore Investment Register Certificate;
– The written explanation on the need of transfer investment capital in VND to foreign countries in cases the investment capital is VND.
2. Procedures for registering foreign exchange transactions
a) Before registering foreign exchange transactions with the SBV, the investors must complete the following procedures:
– Obtaining a valid Offshore Investment Register Certificate issued by the competent authority;
– Obtaining an investment approval or investment license issued by the competent authority in the host country or a document proving that investment activities are in accordance with the law of the host country; and
– Opening an investment capital account at a licensed credit institution as prescribed in Article 5 of Circular 12 and before the investor transfers investment capital abroad.
b) The investor submits 01 (one) set of dossier of registering foreign exchange transactions to the competent authority by the following way:
(i) For the investor being a credit institution:
– Submiting directly to the One-Stop Department of SBV; or
– Sending via postal service.
(ii) For the investor being a non-credit institution:
– Submiting online via the National Public Service Portal or the SBV’s Public Service Portal;
– Submiting directly at the One-Stop Department of provincial SBV’s branches; or
– Sending via postal service.
c) Within 05 (five) working days from the date of receiving dossier, the SBV shall issue a written request for modification or supplementation to the investor if the submitted dossier is invalid and/or insufficient.
d) Within 10 (ten) working days from the date of receiving valid dossier, the SBV shall, in the form of paper or electronic documents,confirm or refuse to confirm on the application for registering foreign exchange transactions.
e) In case of refusal to confirm the the application for registering foreign exchange transactions, the SBV shall issue a written notice of the reasons for refusal.
3. The receiving and processing authority
a) For the investor being a credit institution: the confirmation of the registration of foreign exchange transactions is under the authority ofthe SBV.
b) For the investor beinga non-credit institution: the confirmation of the registration of foreign exchange transactions is under the authority of provincial SBV’s where the investor locates the head office address (for the investor is an enterprise) or registers the permanent residence (for the investor is an individual) or registers for business (for the other investor).
B. Scope of services of LMP Lawyers, potential risks if clients would like to handle the procedures themselves, and the advantages of having assistance from LMP Lawyers.
1. Scope of work
LMP Lawyers can support the client to perform the following tasks:
(a) Advising the client on legal issues related to procedures;
(b) Providing the checklist of the documents and information for conducting the procedures that meet legal regulations and as required by licensing agencies;
(c) Lodging application dossier to the competent authority on behalf of the client;
(d) Monitoring the status of processing, promptly discussing with the processing officer when there are requests for adjustments or additional information; and
(e) Receiving the results on behalf of the client and delivering them to the client.
2. Potential risks if clients would like to handle the procedures themselves
With years of experience in assisting clients in carrying out licensing procedures, we have found that clients may encounter the following risks if they would like to handle the procedures themselves:
(a) It will be very difficult for the client to determine the applicable legal basis for the procedures due to the regulations may be amended, supplemented, replaced, or guided by other legal documents from time to time.
(b) It will take a lot of time for the client to identify the documents and information required to prepare the dossier.
(c) The documents prepared by the client may not comply with the legal regulations and requirements of the licensing authority due to lack of experience.
(d) The client may not be able to promptly adjust and/or supplement documents as requested by the licensing authority due to lack of diligent monitoring of the dossier processing status.
3. The advantages of having assistance from LMP Lawyers
When receiving support from LMP Lawyers, the client will gain the following advantages:
(a) The procedures will be carried out quickly and accurately, and in accordance with the law.
(b) The client will receive enthusiastic and timely advice and support from LMP Lawyers.
(c) The client will be promptly updated on the status of dossier processing.
Note: The content presented above is for reference only. Subject to each specific case from time to time, the above content may no longer be relevant. For further advice, please contact LMP Lawyers.