THE GOVERNMENT -

Số: 75/2011/ND-CP

Ha Noi, date 30 month 08 year 2011                          

DECREE

Decree No. 75/2011/ND-CP of August 30, 2011, on state investment credit and export credit

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Pursuant to the December 16, 2002 Law on the State Budget;

Pursuant to the November 29, 2005 Investment Law;

Pursuant to the June 17, 2009 Law on Public Debt Management;

Pursuant to the June 16, 2010 Law on Credit Institutions;

At the proposal of the Minister of Finance,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of regulation

1. Scope of regulation:

a) Investment credit, including investment loans and post-investment support.

b) Export credit, including export loans (for exporters and overseas importers).

2. Subjects of regulation:

a) Enterprises, economic institutions and revenue-generating non-business units having projects eligible for investment credit (below referred to as investors);

b) Domestic enterprises and economic institutions having export contracts or foreign organizations importing export credit-eligible goods from Vietnam;

c) The Vietnam Development Bank and other organizations and individuals involved in the provision of investment credit and export credit.

Article 2. Investment credit and export credit principles

1. Providing loans for investment projects and contracts on export/import of Vietnamese goods which directly recover capital and prove their effectiveness and solvency.

2. To get loans, investment projects and export/import contracts must have financial plans and loan repayment plans appraised by the Vietnam Development Bank.

3. Loan-taking investors, exporters and overseas importers shall use loans for proper purposes; fully and timely repay loan principals and interests under signed credit contracts; fulfill all contractual commitments and comply with this Decree.

4. The Government shall issue the list of projects eligible for investment credit and the list of goods eligible for export credit.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Exporters include Vietnamese enterprises and economic institutions exporting goods made in Vietnam.

2. Overseas importers include overseas organizations buying goods made in and exported from Vietnam.

3. Loan term means a period from the time customers withdraw capital for the first time to the time they fully pay loan debts under credit contracts.

4. Grace period means a period counted from the time a credit contract is signed to the time the investor, exporter or overseas importer is not yet required to pay loan principals but is required to pay loan interests.

5. Debt payment period means a period from the time the first payment of the loan debt to the time the loan debt is fully repaid under a credit contract.

6. Debt payment term means a period specified for each time of debt payment within the debt payment period.

7. Lending means the Vietnam Development Bankrsquo;s provision of loans to investors, exporters or overseas importers for implementing investment projects and goods export)import contracts.

8. Post-investment support means the Statersquo;s provision of partial support in interest rate to investors that borrow loans from credit institutions for investment in projects after the projects have been completed and put into use and the investors have paid loan debts.

9. Actual charter capital means the charter capital amount reflected in accounting books of the Vietnam Development Bank.

Article 4. State investment credit and export credit plans

1. State investment credit and export credit plans shall be announced on an annual basis, including the following indicators:

a) Total growth rate of state investment credit and export credit;

b) Capital sources for providing state investment credit and export credit;

c) State budget allocations for offsetting interest rate differences and providing post-investment support.

2. At the time of making annual state budget estimates, the Vietnam Development Bank shall work out and report on annual and long-term state investment credit and export credit plans to the Ministry of Finance and the Ministry of Planning and Investment.

3. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, appraising state investment credit and export credit plans worked out by the Vietnam Development Bank; the Ministry of Planning and Investment shall summarize and report such plans to the Prime Minister for consideration and inclusion in socio-economic development plans.

Chapter II

STATE INVESTMENT CREDIT

Section 1

INVESTMENT LOANS

Article 5. Eligible borrowers

Eligible borrowers are investors having investment projects on the list of projects eligible for investment credit attached to this Decree.

Article 6. Lending conditions

1. Being borrowers defined in Article 5 of this Decree.

2. Fully carrying out investment procedures under law.

3. Investors have effective production and business projects and plans and prove their debt payment capability; and have financial plans and debt payment plans appraised and loan provision approved by the Vietnam Development Bank.

4. Investors have equity capital contributed to projects representing at least 20% and have sufficient capital for project implementation, and satisfy specific financial conditions for the investment capital amount in addition to the state investment credit amount.

5. Investors provide loan security under this Decree and law.

6. Investors shall buy asset insurance at insurance enterprises lawfully operating in Vietnam for loan-formed assets subject to compulsory insurance throughout the loan term.

7. Investors shall conduct cost-accounting and make financial statements under law, and have their annual financial statements audited by independent audit institutions.

8. Offshore investment projects under agreements between two governments and offshore investment projects under the Prime Ministerrsquo;s decisions comply with Article 11 of this Decree.

Article 7. Loan amounts

1. A loan amount for each project is 70% at most of the projectrsquo;s total investment (excluding working capital) while the maximum loan amount for each investor is 15% of the actual charter capital of the Vietnam Development Bank.

2. The Director General of the Vietnam Development Bank shall decide on a loan amount for each project and investor under Clause 1 of this Article.

3. In special cases in which projects and investors must take loans exceeding the maximum levels specified above, the Vietnam Development Bank shall report such to the Ministry of Finance for further submission to the Prime Minister for consideration and decision.

Article 8. Loan term

1. The loan term shall be determined based on a projectrsquo;s capital-recovering capacity and its investorrsquo;s solvency suitable to the projectrsquo;s production and business characteristics but must not exceed 12 years.

2. The Director General of the Vietnam Development Bank shall decide on the loan term for each project under Clause 1 of this Article.

Article 9. Loan currency

The loan currency is Vietnam dong.

Article 10. Loan interest rate

1. The investment loan interest rate must not be lower than the average interest rate for capital sources plus operating expenses of the Vietnam Development Bank.

2. The Director General of the Vietnam Development Bank shall calculate the average interest rate for capital sources and operating expenses and report such to the Chairman of the Management Council of the Vietnam Development Bank for further submission to the Ministry of Finance to announce investment credit interest rates. In case the average interest rate of capital raising sees great fluctuations, the Chairman of the Management Council of the Vietnam Development Bank shall report such to the Ministry of Finance for adjustment of interest rates as appropriate.

3. Loan interest rates shall be written in credit contracts. Loan interest rates may be adjusted upon each time of capital disbursement based on announced loan interest rates.

4. The overdue debt interest rate for each disbursed amount equals 150% of the loan interest rate within the loan term for such disbursed amount.

Article 11. Provision of loans for projects implemented under government agreements and offshore investment projects under the Prime Ministerrsquo;s decisions

1. Loan conditions and terms, loan interest rates and amounts as well as contents related to project loans comply with the provisions of the agreements.

2. In case loan conditions, interest rates and terms, loan amounts and security are not specified in the agreements, this Decreersquo;s provisions on investment loans apply.

3. Offshore investment projects under the Prime Ministerrsquo;s decisions comply with this Decreersquo;s provisions on investment lending.

Section 2

POST-INVESTMENT SUPPORT

Article 12. Eligible recipients of post-investment support

1. Eligible recipients of post-investment support include investors having projects eligible for investment credit, except projects having loans under government agreements and offshore investment projects under the Prime Ministerrsquo;s decisions.

2. Projects are identified as eligible for post-investment support at the time of issuance of competent agenciesrsquo; decisions approving projects for the first time.

Article 13. Conditions for post-investment support

1. Projects are eligible for post-investment support as defined in Article 12 of this Decree.

2. Projects have been appraised and post-investment support contracts have been signed by the Vietnam Development Bank.

3. Investment projects have been completed and put into use with investment finalization-approving decisions of competent agencies and loan debts have been paid.

Article 14. Post-investment support levels

1. The Ministry of Finance shall decide on post-investment support levels on the basis of the difference between investment loan interest rates applied by credit institutions and the state investment credit interest rates and at the proposal of the Chairman of the Management Council of the Vietnam Development Bank. Post-investment support levels shall be publicized simultaneously with investment credit interest rates.

2. The Vietnam Development Bank shall consider and decide to provide post-investment supports based on investorsrsquo; debt payment results.

Chapter III

EXPORT CREDIT

Article 15. Forms of export loans

1. Provision of loans to exporters, including provision of loans before or after goods delivery.

2. Provision of loans to overseas importers.

Article 16. Borrowers

Exporters having export contracts and overseas importers having contracts on import of goods on the list of those eligible for export credit attached to this Decree.

Article 17. Lending conditions

1. Being borrowers defined in Article 16 of this Decree.

2. Exporters have export contracts. Overseas importers have export contracts already signed with Vietnamese enterprises or economic institutions.

3. Exporters and overseas importers have effective production and business plans appraised and loan provision approved by the Vietnam Development Bank.

4. Exporters and overseas importers have legal capacity and full civil act capacity.

5. In addition to the conditions specified in Clauses 1 thru 4 of this Article:

a) Exporters shall comply with this Decreersquo;s provisions on loan security; buy asset insurance at insurance enterprises lawfully operating in Vietnam for loan-formed assets subject to compulsory insurance throughout the loan term;

b) Overseas importers must have loan guarantee from their governments, central banks or financial institutions with investment credit or export credit function.

6. Exporters shall comply with regulations on cost-accounting and financial statements under law, and have their annual financial statements audited by independent audit institutions.

Article 18. Loan amounts

1. A loan amount must not exceed 85% of the value of a signed export/import contract or the value of an L/C in case the loan is provided before goods delivery, or the value of a lawful bill of exchange in case the loan is provided after goods delivery; at the same time a loan amount for an exporter or overseas importer must not exceed 15% of the actual charter capital of the Vietnam Development Bank.

2. The Director General of the Vietnam Development Bank shall decide on a loan amount in each case under Clause 1 of this Article.

3. In special cases in which exporters or overseas importers must take loans exceeding the maximum amount specified above, the Vietnam Development Bank shall report such to the Ministry of Finance for further submission to the Prime Minister for consideration and decision.

Article 19. Loan term

1. The loan term shall be determined based on the capital recovery capacity suitable to characteristics of each export contract and solvency of the exporter or overseas importer but must not exceed 12 months.

2. The maximum loan term for exported seagoing ships is 24 months.

3. The Director General of the Vietnam Development Bank shall decide on the loan term for each commodity under Clauses 1 and 2 of this Article.

Article 20. Loan currency

The loan currency is Vietnam dong.

Article 21. Loan interest rate

1. The Chairman of the Management Council of the Vietnam Development Bank shall report export loan interest rates to the Ministry of Finance for publicization on the principle that they must match market interest rates.

2. The overdue debt interest rate for each disbursed amount equals 150% of the loan interest rate within the loan term under the credit contract signed with the Vietnam Development Bank.

3. Interest rates for loans as designated or under government agreements comply with regulations of competent authorities.

Article 22. Capital disbursement and debt collection

1. The Vietnam Development Bank shall directly disburse capital and collect debts or entrust financial or credit institutions lawfully operating at home and overseas to disburse capital and collect debts.

2. The Vietnam Development Bankrsquo;s provision of loans to overseas importers shall strictly comply with regulations of the State Bank of Vietnam.

Chapter IV

LOAN SECURITY, PAYMENT OF LOAN DEBTS AND HANDLING OF RISKS IN STATE INVESTMENT CREDIT AND EXPORT CREDIT

Article 23. Loan security

1. When receiving state investment credit or export credit, investors or exporters shall take measures to secure loans at the Vietnam Development Bank under regulations on security transactions. Security measures include pledge of assets, mortgage of assets, use of future assets and other measures (if any) under regulations on security transactions.

2. The Vietnam Development Bank may handle security assets under regulations on security transactions; repair and upgrade assets for sale, lease or operation; or contribute security assets as joint-venture capital to economic institutions under law for debt recovery.

Article 24. Payment of loan debts

1. Investors, exporters and overseas importers shall fully and timely pay debts to the Vietnam Development Bank under signed credit contracts.

2. In the grace period, investors are not yet required to pay loan principals but are required to pay loan interests under signed credit contracts, unless otherwise provided by the Prime Minister.

3. From the date of loan maturity, if loan-borrowing investors, exporters or overseas importers are incapable of paying such loans, they shall bear overdue-debt interest rates for late-paid loan principals and interests under regulations.

4. In case overseas importers are incapable of paying loans or fail to fully pay loans, the Vietnam Development Bank shall recover loans from guarantee organizations of importing countries strictly under guarantee contracts.

Article 25. Classification of debts and setting up of risk provision funds

1. The Vietnam Development Bank may set up risk provision funds for dealing with risks caused by insolvency of investors, exporters or overseas importers.

2. The Vietnam Development Bankrsquo;s debts shall be classified under regulations of the State Bank of Vietnam.

3. Money amounts deducted for setting up risk provision funds shall be accounted as operating expenses of the Vietnam Development Bank.

4. The Prime Minister shall decide on levels of deduction for setting up and use of risk provision funds in the financial mechanism of the Vietnam Development Bank.

Article 26. Risks and handling of risks

1. Risks to be handled as investment credit and export credit debts include:

a) Force majeure risks such as natural disasters, epidemics, fires, accidents, political risks or wars directly damaging assets of investors or exporters; or bankruptcy or dissolution of investors or exporters;

b) Financial difficulties of wholly state-owned single-member limited liability companies upon transformation into multiple-owner companies;

c) Other cases of risks as decided by the Prime Minister.

2. Risk handling measures to be applied include debt rescheduling, debt freezing, remission of debts (principal and interest), and sale of debts.

3. The Prime Minister shall issue regulations on handling of state investment credit and export credit risks at the Vietnam Development Bank.

Article 27. Competence to handle risks

1. The Director General of the Vietnam Development Bank may consider and decide to adjust debt payment terms and extend debts for projects receiving investment credit or export credit.

2. The Minister of Finance shall decide to freeze debts for investors and exporters at the proposal of the Chairman of the Management Council of the Vietnam Development Bank.

3. The Prime Minister shall decide on remission of debts (principal and interest) and sale of debts as submitted by the Ministry of Finance based on the proposal of the Chairman of the Management Council of the Vietnam Development Bank and appraisal opinions of the Ministry of Finance, the Ministry of Planning and Investment and the State Bank of Vietnam.

Chapter V

CAPITAL SOURCES FOR PROVIDING STATE INVESTMENT CREDIT

AND EXPORT CREDIT

Article 28. State budget funds

1. Charter capital and funds of the Vietnam Development Bank.

2. Loans for development investment and implementation of target programs of the Government and local administrations.

Article 29. Official development assistance and concessional loans

Competent agencies shall allocate foreign official development assistance (ODA) and concessional loans for on-lending or lending under target credit programs.

Article 30. Raised capital

1. Issuing government-guaranteed bonds under regulations on issuance of bonds or government-guaranteed bonds.

2. The Vietnam Development Bankrsquo;s issuance of bonds, treasury bills or valuable papers in Vietnam dong under law.

3. Loans from domestic and foreign financial and credit institutions.

4. Loans from the Vietnam Social Security.

5. Loans from the State Bank of Vietnam (capital re-allocation or pledge and discount of valuable papers via open-market operations).

6. Loans from other domestic and foreign organizations and individuals.

Article 31. Entrusted capital

Entrusted capital of local administrations and domestic and foreign organizations and individuals as loans for development investment projects and goods export programs at the request of entrusting agencies.

Chapter VI

RESPONSIBILITIES OF AGENCIES

Article 32. The Ministry of Finance

1. To assume the prime responsibility for, and coordinate with related agencies in, submitting to the Government for promulgation relevant mechanisms and policies on state investment credit and export credit; to supplement and amend the list of projects eligible for investment credit and the list of goods eligible for export credit when necessary.

2. To guide or promulgate according its competence relevant mechanisms and policies on state investment credit and export credit for the Vietnam Development Bank to implement.

3. To assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment and the State Bank of Vietnam in, annually assessing implementation of policies on state investment credit and export credit and operation situation of the Vietnam Development Bank, then report such to the Prime Minister to approve regulations on regular and extraordinary reporting of the Vietnam Development Bank.

4. To assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, appraising the Vietnam Development Bankrsquo;s annual and long-term plans on state investment credit and export credit.

Article 33. The Ministry of Planning and Investment

1. To summarize annual and 5-year plans on state investment credit and export credit and submit them to the Prime Minister for consideration and decision.

2. To coordinate with the Ministry of Finance in elaborating policies and monitoring and assessing implementation of policies on state investment credit and export credit and operation situation of the Vietnam Development Bank.

Article 34. The Ministry of Industry and Trade

1. To formulate and submit to the Government or the Prime Minister export development strategies and programs in each period; to coordinate with the Ministry of Finance in elaborating policies on state investment credit and export credit.

2. To publicize information on export markets; to propose solutions and guide their implementation for expanding and developing markets for exporting Vietnamese goods.

Article 35. The State Bank of Vietnam

1. To perform the state management of monetary and banking operations related to state investment credit and export credit and guide the Vietnam Development Bank in providing foreign exchange services and conducting other operations.

2. To coordinate with the Ministry of Finance in elaborating policies and monitoring and assessing implementation of policies on state investment credit and export credit and operation situation of the Vietnam Development Bank.

Article 36. The Vietnam Development Bank

1. To implement policies on state investment credit and export credit strictly according to this Decree.

2. To propose competent agencies to amend and supplement policies on state investment credit and export credit.

3. To handle risks according to its competence and take responsibility for the accuracy and transparency in risk handling proposals submitted to competent agencies for consideration and decision.

4. To examine and supervise investors, exporters and overseas importers in using loans to ensure that loans are properly and effectively used and fully and timely repaid, both principal and interest, to the Vietnam Development Bank.

5. To collect investment credit and export credit principal and interest.

6. To issue regulations on loan provision and capital and credit safety in its operations.

7. To work out annual plans on investment credit and export credit and report them to the Ministry of Finance and the Ministry of Planning and Investment for further submission to competent agencies for consideration and decision.

8. To report matters related to implementation of policies on state investment credit and export credit to competent agencies.

Article 37. Within the ambit of their functions and competence, ministries, ministerial-level agencies, government-attached agencies and provincial-level Peoplersquo;s Committees shall:

1. Publicize development master plans, plans and orientations as well as processes, regulations, standards and econ-technical norms of sectors, products and territories as a basis for implementation of policies on state investment credit and export credit.

2. Direct, examine and supervise investors in making investment to ensure that they comply with state regulations on investment; handle matters under their management which are related to the implementation of policies on state investment credit and export credit.

Article 38. Investors, exporters and overseas importers

1. To provide the Vietnam Development Bank with accurate, adequate and timely information and documents related to the borrowing and use of loans.

2. To use loans for proper purposes, fully and timely pay debts and fulfill all commitments in credit contracts.

3. When transformed, enterprises taking loans from the Vietnam Development Bank shall notify such in writing to the Vietnam Development Bank for dealing with investment credit and export credit debts under law.

Chapter VII

REPORTING, INSPECTION, EXAMINATION, AND HANDLING OF VIOLATIONS

Article 39. Inspection, examination and reporting

1. Investment credit and export credit activities provided in this Decree are subject to inspection and examination by competent state agencies under law.

2. Inspection and examination may be conducted at every stage or all stages of construction investment, production, business and loan recovery process.

3. Ministers, heads of ministerial-level agencies and government-attached agencies and chairpersons of provincial-level Peoplersquo;s Committees shall, within the scope of their management, examine and supervise implementation of state investment credit and export credit policies.

4. The Vietnam Development Bank shall quarterly or extraordinarily summarize and report on implementation of investment credit and export credit to the Prime Minister and concurrently to the Ministry of Finance, the Ministry of Planning and Investment, the State Bank of Vietnam and the General Statistics Office.

Article 40. Handling of violations

1. Borrowers violating this Decree, thus damaging assets or losing capital, shall pay compensations and be handled under law.

2. The Vietnam Development Bank shall take responsibility before law for implementation of state investment credit and export credit policies; all acts in violation of this Decree shall be handled under law.

Chapter VIII

IMPLEMENTATION PROVISIONS

Article 41. Effect

This Decree takes effect on October 20, 2011, and replaces the Governmentrsquo;s Decree No. 151/2006/ND-CP of December 20, 2006, on state investment credit and export credit and Decree No. 106/2008/ND-CP of September 19, 2008, amending and supplementing a number of articles of the Governmentrsquo;s Decree No. 151/2006/ND-CP of December 20, 2006, on state investment credit and export credit.

Article 42. For contracts already signed

1. Projects with investment credit, investment credit guarantee or post-investment interest-rate support for which contracts are signed with the Vietnam Development Bank before the effective date of this Decree may continue to be implemented under contractual commitments.

2. Contracts on export credit, export credit guarantee, bid guarantee and contract performance guarantee which are signed with the Vietnam Development Bank before the effective date of this Decree may continue to be implemented under contractual commitments.

Article 43. Responsibility for implementation guidance

The Ministry of Finance, the State Bank of Vietnam and related ministries and sectors shall, within the ambit of their respective functions and competence, guide the implementation of this Decree.

Article 44. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level Peoplersquo;s Committees, and the Chairman of the Management Council and the Director General of the Vietnam Development Bank shall implement this Decree.-

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Appendix I

List of projects eligible for investment credit

(Attached to the Governmentrsquo;s Decree No. 75/2011/ND-CP of August 30, 2011)

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Appendix II

List of goods eligible for export credit

(Attached to the Governmentrsquo;s Decree No. 75/2011/ND-CP of August 30, 2011)

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Pursuant to the December 25, 2001 Law on Organization of the Government;