Decree 51/2018/ND-CP about trading in commodities through commodity exchanges

DECREE

AMENDMENTS TO SOME ARTICLES OF THE GOVERNMENT’S DECREE NO. 158/2006/ND-CP DATED DECEMBER 28, 2006 ELABORATING THE COMMERCIAL LAW WITH RESPECT TO TRADING IN COMMODITIES THROUGH COMMODITY EXCHANGES

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Commercial Law dated June 14, 2005;

Pursuant to the Law on Enterprises dated November 26, 2014;

Pursuant to the Law on Investment dated November 26, 2014;

At the request of the Minister of Industry and Trade;

The Government hereby promulgates a Circular on amendments to some articles of the Government’s Decree No. 158/2006/ND-CP dated December 28, 2006 elaborating the Commercial Law with respect to trading in commodities through commodity exchanges.

Article 1. Amendments to some articles of the Government’s Decree No. 158/2006/ND-CP dated December 28, 2006 elaborating the Commercial Law with respect to trading in commodities through commodity exchanges (hereinafter referred to as “the Decree No. 158/2006/ND-CP”)

1. Clause 3 of Article 3 is amended as follows:

“Article 3. Definitions

3. “trading order” means a client’s request in writing or any equivalent forms, to acquire commodities through commodity exchanges.”

2. Clause 14 and Clause 15 are added to Article 3 as follows:

“Article 3. Definitions

14. “interconnection” means commodity exchanges having an interconnection agreement whereby a commodity contract of a commodity exchange is traded at the other and vice versa.

15. “brokerage and trading in commodities through commodity exchanges” mean a member of the commodity exchange acting as broker for the client in the purchase or sale of commodity contracts on the commodity exchange.”

3. Point b Clause 2 of Article 4 is amended as follows:

“Article 4. State management

b) Decide on establishment and operation of commodity exchanges, approve their charter and amendments thereto;”

4. Article 5 is amended as follows:

“Article 5. Vietnamese traders that trade commodities through foreign commodities exchanges

1. Vietnamese traders are entitled to trade commodities through foreign commodity exchanges through domestic commodity exchanges interconnected with foreign commodity exchanges.

2. Commodity exchanges shall promulgate regulations on trading in commodities through foreign commodities exchanges.

3. Settlement for trading in commodities through foreign commodity exchanges shall be conducted through a credit institution that is allowed to conduct international settlement on the basis of compliance with relevant regulations on foreign exchange management.

4. The import and export of commodities for trading in commodities through foreign commodity exchanges shall comply with regulations on international commodity trading and commercial agency, trading, processing and transit of commodities with foreign countries and relevant regulations of law.”

5. Article 5a is added after Article 5 as follows:

“Article 5a. Notice of interconnection with foreign commodity exchanges

1. The Vietnamese commodity exchange that interconnects with a foreign commodity exchange shall submit notification documentation, directly, by post or through website of the Ministry of Industry and Trade, to the Ministry of Industry and Trade. The documentation includes:

a) A written notice of interconnection with the foreign commodity exchange;

b) A record on cooperation between the Vietnamese commodity exchange and the foreign commodity exchange or the trader of the foreign commodity exchange that is certified by a foreign-based Vietnamese representative authority in the foreign country.

2. Within 30 days from the date on which the record on cooperation with the foreign commodity exchange is signed, the commodity exchange shall submit notification documentation to the Ministry of Industry and Trade. Within 30 working days from the date on which the documentation is received, the Ministry of Industry and Trade shall send a written response to the commodity exchange in case the documents are unsatisfactory. By the aforementioned deadline, if the commodity exchange does not receive any response from the Ministry of Industry and Trade, the notification documentation will be considered satisfactory.”

6. Article 6 is amended as follows:

“Article 6. Legal status of commodity exchanges

A commodity exchange is an enterprise that is established and operates in accordance with regulations of the Law on Enterprises and this Decree.”

7. Article 8 is amended as follows:

“Article 5. Conditions for establishment of commodity exchanges

A commodity exchange may be established if:

1. it has a charter capital of at least one hundred and fifty (150) billion dong;

2. it has an information system that meets requirements for technology for trading in commodities through commodity exchanges. To be specific:

- The server system shall operate stably and there should be at least one backup server at the ready in the event of a failure of the primary server;

- The server system shall back up business application data, trading data and recover data in the event of a failure;

- Application software shall comply with requirements for intellectual property rights in accordance with regulations of law;

- The software system shall have the ability to log trading, payment and delivery during business process for a period of at least 05 years;

- The information system shall comply with technical regulation on cyberinformation security, if any.

3. Its charter is not contrary to regulations of this Decree.”

8. Article 9 is amended as follows:

“Article 9. Applications for establishment of commodity exchanges

An application for establishment of a commodity exchange includes:

1. An application form (Form No. 01 in the Appendix I hereof);

2. A copy of the enterprise registration certificate;

3. An economic and technical report specifying objectives, office buildings, infrastructure and information technology system, enclosed with documentary evidences;

4. A draft of the commodity exchange’s charter, specifying contents set forth in Article 14 of this Decree, enclosed with the record on approval for the draft. The draft of the charter shall be signed by the legal representative of the commodity exchange.”

9. Article 10 is amended as follows:

“Article 10. Verification and issuance of the license for establishment of a commodity exchange

1. The Ministry of Industry and Trade shall be the receiving authority and verify fulfillment of conditions and applications for establishment of the commodity exchange as prescribed in this Decree.

2. Procedures for issuance of the establishment license (hereinafter referred to as “the establishment license”)

a) The trader shall submit 01 application, directly, by post or through website of the Ministry of Industry and Trade, to the Ministry of Industry and Trade.

b) In case the application is unsatisfactory, within 07 working days from receipt of the application, the Ministry of Industry and Trade shall request the trader in writing to complete it.

c) Within 45 working days from receipt of the satisfactory application, the Ministry of Industry and Trade shall carry out verification and issued the establishment license using the Form in the Appendix III hereof in case the trader satisfies all conditions specified in this Decree. In case of rejection of the application, the Ministry of Industry and Trade shall provide written explanation.”

10. Article 11 is amended as follows:

“Article 11. Contents of the establishment license

The establishment license shall be also treated as the certificate of eligibility for business and include the following contents:

1. Headquarters’ name and address;

2. Full name, permanent address, nationality, number of ID card, passport or other valid identity documents of the legal representative of the commodity exchange;

3. Number of the business registration certificate of the enterprise establishing the commodity exchange;

4. Charter capital of the commodity exchange;

5. Commodities to be traded."

11. Article 12 is amended as follows:

“Article 12. Amendments to the establishment license

1. In case of a change in information on the establishment license that is specified in Article 11 of this Decree, the commodity exchange shall make and submit an application for amendments to the establishment license, directly or by post or through the website of the Ministry of Industry and Trade, to the Ministry of Industry and Trade.

2. The application for amendments to the establishment license shall be made into 01 set, including:

a) An application form (Form No. 02 in the Appendix I hereof);

b) A copy of the establishment license;

c) Documentary evidences for amendments.

3. Within 10 days from receipt of the satisfactory application specified in Clause 2 of this Article, the Ministry of Industry and Trade shall decide on amendments to the establishment license. In case of rejection, the Ministry of Industry and Trade shall provide written explanation.”

12. Clause 1 and Clause 2 of Article 13 are amended as follows:

“Article 13. Reissuance of the establishment license

1. In case the establishment license is lost, torn or destroyed in other forms, the commodity exchange shall make and submit an application for reissuance of the establishment license, directly or by post or through the website of the Ministry of Industry and Trade, to the Ministry of Industry and Trade.

2. The application for reissuance of the establishment license shall be made into 01 set, including an application form (Form No. 03 in the Appendix I hereof).”

13. Point e Clause 1 of Article 14 is amended as follows:

“Article 14. Charter of the commodity exchange

e) Margin trading and trading fees;”

14. Article 14a is added after Article 14 as follows:

“Article 14a. Approval for the amended charter of the commodity exchange

1. In case of a change in the information on charter of the commodity exchange that is specified in Article 14 of this Decree, the commodity exchange shall prepare and submit an application for approval for the charter, directly or by post or through the website of the Ministry of Industry and Trade, to the Ministry of Industry and Trade.

2. The application for approval for amendments to the charter of the commodity exchange shall be made into 01 set, including:

a) A written request for approval for the amended charter of the commodity exchange;

b) The amended charter of the commodity exchange;

c) A record on approval for the amended charter of the commodity exchange.

3. Within 30 working days from receipt of the satisfactory application specified in Clause 2 of this Article, the Ministry of Industry and Trade shall decide to approve amendments to the charter of the commodity exchange. In case of rejection, the Ministry of Industry and Trade shall provide written explanation.”

15. Clause 12 is added to Article 15 as follows:

“Article 25. Powers of a commodity exchange

12. The Vietnamese commodity exchange is entitled to interconnect with the foreign commodity exchange in accordance with regulations of this Decree.”

16. Clauses 11 and 12 are added to Article 16 as follows:

“Article 16. Responsibilities of a commodity exchange

11. Promulgate regulations on posting, publishing information and trading in commodities through commodity exchanges.

12. Promulgate regulations on operation and risk management of the clearing house.”

17. Article 16a is added after Article 16 as follows:

“Article 16a. Foreign investors that trade commodities through Vietnamese commodities exchanges

1. Foreign investors are entitled to trade commodities through Vietnamese commodities exchanges.

2. The foreign investor is entitled to contribute capital to establish a Vietnamese foreign commodity exchange; purchase shares and stakes of the Vietnamese foreign commodity in accordance with the following regulations:

a) The foreign investor is entitled to contribute capital to establish a Vietnamese foreign commodity exchange; purchase shares or stakes of the Vietnamese foreign commodity, provided his/her holding shall not exceed 49% of the charter capital.

b) The foreign investor is entitled to contribute capital to establish a Vietnamese foreign commodity exchange as a client or become a member of the commodity exchange (a broker or a trader) without restraint on the ownership of charter capital.

c) Procedures for capital contribution or share/stake purchase by the foreign investor are specified in the Law on Enterprises, Law on Investment and other relevant regulations of law.”

18. Article 16b is added after Article 16a as follows:

“Article 16b. Reporting by the commodity exchange

1. Periodic reports

a) Periodic reports are prepared using the form in the Appendix II hereof and include:

- Form No. 01: Report on operation of the commodity exchange;

- Form No. 02: Report on the list of commodity exchange’s members.

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

- Before April 15, regarding the first quarter’s report and before October 15, regarding the third quarter’s report;

- Before July 20, regarding the first six months’ report;

- Before January 31 of the succeeding year, regarding the previous year’s report.

2. Ad hoc reports

a) In the case of an unusual event, the commodity exchange shall submit a report to the Ministry of Industry and Trade as soon as practicable.

b) Other ad hoc reports at the request of the Ministry of Industry and Trade or a competent authority.

3. Methods for submission of reports (both periodic and ad hoc)

a) The commodity exchange shall submit physical and electronic reports to the Ministry of Industry and Trade.

b) Physical reports shall be submitted to the Ministry of Industry and Trade, 54 Hai Ba Trung street, Hoan Kiem District, Hanoi.

c) Electronic reports shall be sent to sogiaodich@moit.gov.vn”.

19. Article 17 is amended as follows:

“Article 17. Members of a commodity exchange

1. Members of a commodity exchange include:

a) Trader;

b) Broker.

2. Traders of the commodity exchange are entitled to engage in proprietary trading and brokerage of commodities through commodity exchanges.

3. Brokers are only entitled to engage in brokerage of commodities through commodity exchanges.”

20. Clause 2 of Article 19 is amended as follows:

“Article 19. Brokers

A broker must satisfy all of the following conditions:

2. The charter capital is at least five billion dong;”

21. Clause 2 of Article 21 is amended as follows:

“Article 21. Traders

A trader must satisfy all of the following conditions:

2. The charter capital is at least seventy five billion dong;”

22. Name of Chapter IV is amended as follows:

“Chapter IV

TRUNG TÂM THANH TOÁN BÙ TRỪ VÀ TRUNG TÂM GIAO NHẬN HÀNG HÓA (“CLEARING HOUSE AND COMMODITY DELIVERY CENTER”)”

23. Article 26 is amended as follows:

“Article 26. Clearing house

1. The clearing house trading commodities through a commodity exchange (hereinafter referred to as “clearing house”) means an affiliate of the commodity exchange that is licensed to provide clearing services upon trading in commodities through the commodity exchange. To be specific:

a) Issue commodity trading account number to members of the commodity exchange; manage and use membership deposits;

d) Calculate, publish and update members’ deposits to the trading system under the regulations on operation of the commodity exchange;

c) Clear members’ position at the end of each trading session;

d) Update members’ open position limits according to the balance of their account;

dd) Inspect and process request for withdrawal of deposits by traders and brokers;

e) Impose and collect trading fees;

g) Send payment orders to the payment service provider designated by the commodity exchange to transfer cash and debit/credit account of the commodity exchange’s account.

2. The clearing house shall operate independently from the commodity exchange’s members.

24. Clause 4 of Article 27 is amended as follows:

“Article 27. Rights of the clearing house

4. Other rights under the regulations on operation of the commodity exchange.”

25. Clause 5 of Article 28 is amended as follows:

“Article 28. Obligations of the clearing house

5. Other obligations under the regulations on operation of the commodity exchange.”

26. Article 32 is amended as follows:

“Article 32. Commodities traded through commodity exchanges

1. Regarding the commodities on the list of commodities subject to conditional business and limited to business, the commodity exchange shall register with a competent authority so that such commodities can be listed on the commodity exchange.

2. Regarding the commodities that are not on the list of commodities banned from business, limited to business and subject to conditional business, the commodity exchange shall submit notice documentation to inform the Ministry of Industry and Trade at least 30 days before such commodities are officially listed on the commodity exchange. The documentation shall be submitted directly or by post to the Ministry of Industry and Trade or through website of the Ministry of Industry and Trade.

The notification documentation includes:

a) A written notice of listing new commodities on the commodity exchange;

b) Documents that describe the contract on each commodity expected to be listed on the commodity exchange.

Within 30 working days from receipt of the notification documentation, the Ministry of Industry and Trade shall send a written response to the commodity exchange in case the notification documentation is unsatisfactory. By the aforementioned deadline, if the commodity exchange does not receive any response from the Ministry of Industry and Trade, the notification documentation will be considered satisfactory.”

27. Article 53 is amended as follows:

“Article 53. Power of and procedures for imposing administrative penalties

Power of and procedures for imposing administrative penalties for violations against regulations on trading in commodities through commodity exchanges are specified in the law on imposition of administrative penalties. ”

28. Article 53a is added after Article 53 as follows:

“Article 53a. Obligation to publish information by the commodity exchange

1. Within 30 days after receipt of the establishment license, the commodity exchange shall publish the content of the establishment certificate in 03 consecutive issues of an online newspaper or newspaper that is operating lawfully in Vietnam.

2. When issued with the establishment license, the commodity exchange shall publish its charter, list of and information about its members; information about trading and trading orders and other information according to its charter at its headquarters, branches and representative offices and on website.

3. In case of amendments to the establishment license, the commodity exchange shall publish such amendments according to Clause 1 of this Article 1.”

29. Article 53b is added after Article 53a as follows:

“Article 53b. Revocation of the license

1. The Minister of Industry and Trade has the right to revoke the establishment license in the following cases:

a) The information included in the application for issuance, amendment or reissuance of the establishment license is falsified or documents are forged;

b) The commodity exchange is established by the persons who are banned from establishing enterprises as prescribed by the Law on Enterprises;

c) The commodity exchange fails to publish information as prescribed in this Decree;

d) The commodity exchange fails to satisfy conditions as prescribed;

dd) The commodity exchange fails to register tax identification number or has its tax identification number invalidated as prescribed by law;

e) The commodity exchange has not operated at its registered headquarters for 06 consecutive months from the date on which it is issued with the establishment license or license for amendments to the establishment license (in case of change of the headquarters);

g) The commodity exchange has shut down for 01 consecutive year without informing the Ministry of Industry and Trade.

h) The commodity exchange has not complied with reporting regulations and regulations of the law on enterprises for 12 consecutive months or within 03 months from the date on which a written request is made.

2. Within 02 working days from the effective date of the decision on revocation of the license, the Ministry of Industry and Trade shall issue the revocation decision to the commodity exchange whose license is revoked and relevant authorities and units, and publish information concerning license revocation on its website. The commodity exchange shall send the original of the license to the Ministry of Industry and Trade within 05 working days from receipt of the decision on license revocation.”

Article 2. Annulment of regulations and text replacement

1. Point dd Clause 2 Article 4 of the Decree No. 158/2006/ND-CP is annulled.

2. Clause 3 Article 4 of the Decree No. 158/2006/ND-CP is annulled.

3. Clause 6 Article 15 of the Decree No. 158/2006/ND-CP is annulled.

4. Clause 3 Article 19 of the Decree No. 158/2006/ND-CP is annulled.

5. Clause 3 Article 21 of the Decree No. 158/2006/ND-CP is annulled.

6. Clauses 1, 2 and 3 Article 34 of the Decree No. 158/2006/ND-CP are annulled.

7. Article 46 of the Decree No. 158/2006/ND-CP is annulled.

8. Article 52 of the Decree No. 158/2006/ND-CP is annulled.

9. The phrase “Bộ Thương mại” (“Ministry of Trade”) is replaced with “Bộ Công Thương” (“Ministry of Trade and Industry”) in Articles 4, 7, 9, 10, 12, 13, 16, 18, 32, 34 and 55.

10. The phrase “Trung tâm thanh toán” (“Payment center”) is replaced with “Trung tâm thanh toán bù trư” (“Clearing house”) in Articles 26, 27, 28, 39, 41 and 42.

Article 3. Effect

This Decree comes into force from June 01, 2018.

Article 4. Transition clauses

1. Within 12 months from the effective date of this Decree, the commodity exchange issued with the establishment license before the effective date of this Decree shall satisfy conditions specified in Clause 7 Article 1 of this Decree and is not required to reapply for issuance of the establishment license.

2. By the deadline specified in Clause 1 of this Article, the commodity exchange that fails to satisfy conditions as prescribed shall have its establishment license revoked.

Article 5. Implementation

Ministers, heads of ministerial agencies, heads of Governmental agencies, Presidents of provinces and central-affiliated cities and relevant organizations and individuals are responsible for the implementation of this Decree./.

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