Thông tư 23/2017/TT-BTC sửa đổi Thông tư 11/2016/TT-BTC hướng dẫn Nghị định 42/2015/NĐ-CP về chứng khoán phái sinh và thị trường chứng khoán phái sinh do Bộ trưởng Bộ Tài chính ban hành

CIRCULAR

REVISING AND SUPPLEMENTING CERTAIN ARTICLES OF THE CIRCULAR NO. 11/2016/TT-BTC DATED JANUARY 19, 2016 ON INSTRUCTIONS FOR CERTAIN ARTICLES OF THE GOVERNMENT'S DECREE NO. 42/2015/ND-CP DATED MAY 5, 2015 ON DERIVATIVE SECURITIES AND DERIVATIVES EXCHANGES

Pursuant to the Law on Securities dated June 29, 2006;

Pursuant to the Law on Amendments and Supplements to several articles of the Law on Securities dated November 24, 2010;

Pursuant to the Government's Decree No. 58/2012/ND-CP dated July 20, 2012 on providing specific provisions and guidance on the implementation of several articles of the Law on Securities and the Law on Amendments and Supplements to several articles of the Law on Securities;

Pursuant to the Government's Decree No. 60/2015/ND-CP dated June 26, 2015 on amending and supplementing several articles of the Government's Decree No. 58/2012/ND-CP dated July 20, 2012 on providing specific provisions and guidance on the implementation of several articles of the Law on Securities and the Law on Amendments and Supplements to several articles of the Law on Securities;

Pursuant to the Government’s Decree No. 42/2015/ND-CP dated May 5, 2015 on derivative securities and derivatives exchanges;

Pursuant to the Government's Decree No. 215/2013/ND-CP dated December 23, 2013 on defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the request of the Chairman of the State Securities Commission;

The Minister of Finance hereby issues the Circular prescribing revision and supplementation of certain articles of the Circular No. 11/2016/TT-BTC dated January 19, 2016 on instructions for certain articles of the Government's Decree No. 42/2015/ND-CP dated May 5, 2015 on derivative securities and derivatives exchanges.

Article 1. Revising and supplementing certain articles of the Circular No. 11/2016/TT-BTC dated January 19, 2016 on instructions for certain articles of the Government's Decree No. 42/2015/ND-CP dated May 5, 2015 on derivative securities and derivatives exchanges as follows:

1. Supplementing Article 2 by adding Clause 24 as follows:

“24. General transaction account refers to a transaction account of an investor where a long or short position of a futures contract (on the same underlying asset and expiring in the same month) is opened and maintained until a clearing member requests deduction to be made under specified agreements or at the request of the investor.”

2. Revising and supplementing Point c Clause 2 Article 6 as follows:

 “c. The investor's position on the trading account must be within the position limit according to the rules of VSD. In case the position limit is exceeded, the investor shall conduct matched sale-purchase transactions to reduce his position or provide additional margins (in case of need) within the period regulated by VSD.

After the stated period, the investor fails to reduce its position, the clearing member may perform matched transactions to contribute a portion or all of its positions. In case where the clearing member fails to perform matched transactions to close its position, VSD shall be allowed to perform matched transactions to close part or all of the investor's position held in the name of the clearing member."

3. Supplementing Article 7 by adding Clause 4 as follows:

“4. The investor may open an general transaction account when

a. the fund management company referred to in Clause 2 of this Article is allowed to open one (01) general transaction account held in the name of the domestic entrusting investor and one (01) general transaction account held in the name of the foreign entrusting investor;

b. a securities enterprise established in overseas countries as prescribed by Clause 3 of this Article is allowed to open one (01) general transaction account to act on behalf of the foreign investor to perform derivatives brokerage activities;

c. Other situations that may occur are subject to instructions given by the VSD."

4. Revising and supplementing Clause 1 Article 8 as follows:

“1. The clearing member shall open a margin account of the investor held in the name of the clearing member in accordance with Point a Clause 4 Article 26 of the Decree No. 42/2015/ND-CP and take responsibility for managing separate margin amounts of specific investors. These margin amounts shall be owned by these investors rather than the clearing member. The clearing member can use the investor’s margin accounts in accordance with Clause 2 of this Article.

The clearing member shall open one (01) securities margin account in order for each investor to manage assets pledged as a margin and perform obligations to pay for positions on the investor's trading account. Non-clearing members and brokerage clients thereof shall be allowed to request clearing members to open their securities margin accounts."

5. Revising and supplementing Point a, b Clause 1 Article 9 as follows:

“a) Payment for long or short positions:

- Upon the trading date prior to the expiration date, value of payment for a long or short position is determined on a daily basis by relying on positions remaining open in the investor's trading account and the difference between the closing price and that determined in the preceding trading date; or the difference between the closing price and the payment price (in case of positions that have been open within the trading date); or the difference between the payment price and the closing price determined at the end of the preceding trading date (in case of positions that are closed before the expiry date); or the difference between the price of payment for closing of a position and the price of payment for opening of a position (in case of positions that are opened or closed within the same trading date).

- Upon the expiration date, value of payment for a long or short position is determined on the basis of the positions remaining open in the investor's trading account and the difference between the price of last payment and the closing price determined in the preceding trading date; or the difference between the price of last payment and the payment price (in case of positions that have been open within the trading date); or the difference between the payment price and the closing price determined at the end of the preceding trading date (in case of positions that are closed before the expiry date); or the difference between the price of payment for closing of a position and the price of payment for opening of a position (in case of positions that are opened or closed within the same final trading date).

The aforesaid prices shall be publicly posted on the website of a Stock Exchange.

b) Payment for execution of contracts:

- In case of cash payment for contract execution, the contract settlement must be completed upon completion of payment for long or short positions arising in the last trading date.

- In case of payment for contract execution made in the form of transfer of the underlying asset, the investor at the writer’s side must transfer the underlying asset and the investor at the buyer’s side must pay a monetary amount for such transfer under contractual terms and conditions and regulations of the VSD.”

6. Revising Point b Clause 3 Article 19 and supplementing Clause 3 Article 19 with Point c as follows:

“b) In case of payment made in the form of transferring the underlying asset, the clearing member at the writer’s side must transfer an adequate quantity and correct kind of the transferable underlying asset specified in the derivative contract to the member’s securities margin account at the request of VSD. The clearing member may use securities borrowed from the system for lending and borrowing securities of the VSD to make such payment in accordance with the VSD’s Statutes.

The clearing member at the buyer’s side can accept the transfer of the underlying asset only after making full payments at the request of the VSD, and then immediately assign it to the investor at the buyer’s side;

c. Where the clearing member have neither enough money to make such payment nor Government bonds to make such transfer, the VSD may make cash payment for a Government bond futures contract. To that extent, the clearing member at fault shall be responsible for paying the clearing member concerned a compensation sum which is not less than 5% of contract settlement value through the VSD. The VSD shall set out regulations on determination of value and mechanism for payment of compensation.”

7. Revising and supplementing Point d Clause 2 Article 24 as follows:

“d) Use contributions of other clearing members in a certain ratio defined by the VSD. In this case, the VSD shall inform relevant clearing members of use of clearing fund right on the usage date. The clearing member who is incapable of settlement shall return all used assets of the clearing fund and pay interests to other clearing members under the interest rate defined by the VSD as conformable to applicable laws and regulations;”

8. Supplementing Article 24 by adding Clause 5 as follows:

“5. Where the clearing member is incapable of making payment and obtains payment support actions referred to in Clause 2, Clause 3 of this Article from the VSD, that member shall be responsible for paying back the entire portion of asset derived from the Clearing Fund, Risk Hedge Fund and other sources which is used to discharge its payment obligations, and for incurring all relevant expenses that may arise.”

9. Revising and supplementing Point a Clause 1 Article 28 as follows:

“a) monthly reports must be submitted within the permitted duration of ten (10) days from the closing date of a specified reporting month;

Article 2. Repealing Point b Clause 1 Article 28.

Article 3. Implementation

1. This Circular shall enter into force from May 1, 2017.

2. The State Securities Commission, the Vietnam Securities Depository, the Stock Exchange, derivatives trading organizations, trading members, clearing members, entities or individuals engaged in derivatives investment and trading activities, and derivatives exchanges in Vietnam, shall be responsible for implementing this Circular.

3. Any amendment, supplement to or replacement of this Circular shall be subject the decision of the Minister of Finance./.

---------------

This document is handled by Luật Dương Gia. Document reference purposes only. Any comments, please send to email: dichvu@luatduonggia.vn