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VIETNAM – GUIDE to Anti-Money Laundering

Member of Financial Action Task Force (FATF)?

No, Vietnam is currently not a member of FATF.

On FATF Blacklist?

No.

Member of Egmont?

No.

  • ML background in region
    • Overview of country risks

Vietnam’s deeper integration into regional and world’s economy for the past few years has been a great opportunity for international money laundering crimes. However, money laundering activities only become clearly visible recently though bank accounts opening, securities trading, gambling, illegal transfer of foreign currencies out of the country, use of credit cards, etc. Combating money laundering becomes one of the top concerns not only for the State Bank of Vietnam but also other relevant authorities in Vietnam. According to a report of the State Bank of Vietnam, in 2012, suspicious transactions have a total value of VND51,000 billion, while in 2013 is VND79,000 billion and in 2014, the value goes up to VND119,000 billion. This shows an increasing and alarming number of transactions suspicious of money laundering. We note that the Law on Anti-money Laundering took effect on 01 January 2013. However, it seems that the anti-money laundering legal framework is still not sufficient, guiding implementation remains unclear, awareness of credit institutions of money laundering is low, ability to detect money laundering activities is weak, information technology in anti-money laundering activities is not sufficient, and especially punishment regime for violating acts of the AML is only formalistic. The Government, especially the State Bank of Vietnam is strongly recommended to tighten their regulations in this sector.

  • Key Directives / Legislative framework
  1. Law on Prevention of and Anti Money Laundering No. 07/2012/QH13, issued by the National Assembly on 18 June 2012 (“AML”);
  2. Decree No. 116/2013/ND-CP on detailing the implementation of certain provisions of the AML (“Decree 116”);
  3. Circular No. 35/2013/TT-NHNN on guiding the implementation of certain regulations on anti- money laundering, issued by the State Bank of Vietnam on 31 December 2013 and amended by Circular No. 31/2014/TT-NHNN; and
  4. Penal Code No. 15/1999/QH10 issued by the National Assembly on 21 December 1999, as amended by Law No. 37/2009/QH12.
  • Who are the regulators / monitoring authorities
    • Who are affected / reporting entities?

According to the AML, the following state authorities are responsible for reporting, preventing, and fighting against money laundering activities:

  • SBV is mainly responsible to the Government for state administering the implementation of AML regulations;
  • Ministry of Public Security is responsible for collecting, receiving and investigating information of money laundering related crimes;
  • Ministry of Finance is responsible for implementing AML measures in insurance business, securities sector, prize-winning games and casinos;
  • Ministry of Construction is responsible for implementing AML measures in real estate business sector;
  • Ministry of Justice is responsible for implementing AML measures applicable to lawyers, legal practice organizations, notaries and notary public offices;
  • The People’s Procuracy and the People’s Court coordinate with other agencies in the investigation, prosecution, and resolution of money laundering crimes;
  • People’s Committees at all levels are responsible for conducting legal training on anti-money laundering in the province, co-ordinating with state authorities to implement policies, strategies, and plans to prevent and fight money laundering; and
  • The Anti-Money Laundering Steering Committee is responsible for assisting the Prime Minister in preparing strategy, plans, policies and programs in the process of preventing and fighting against money laundering.
  • Legal requirements for KYC
    • Customer Due diligence

According to the AML, in which cases application of measures to identify clients are required depend on the types of entities and which business activities they are conducting. In particular:

–          For financial institutions:

ü  The clients open accounts or set up transactions with the financial institutions for the first time;

ü  The clients who make infrequent transactions of high value or carry out the transaction of electronic money transfer but lack the information about the name, address, account number of the originator;

ü  There are doubts about transaction or the parties concerned in transactions are related to the money laundering;

ü  There are doubts about the accuracy or completeness of the clients identification information previously collected.

–          For relevant non-financial institutions or individuals:

ü  Doing business in prize-winning games, casinos: clients implementing high value transactions (i.e.¸ over VND60 million per day);

ü  Doing real estate management services, brokerage; real estate transaction floor: when providing these services to the buyer, purchaser and asset owner;

ü  Trading in precious metals and stones: when clients performing the sale and purchase transaction of precious metals and stones with value of over VND300 million per day;

ü  Providing notary and accounting services, the lawyer’s legal service and lawyer practice organizations: when preparing the conditions for conducting the transactions to transfer the land use right, house ownership, management of money and securities or other assets of the clients; managing the clients’ accounts at banks, securities companies; administrating and managing the operation of the clients’ companies, and participating in the activities of purchase and sale of business organizations on behalf of clients;

ü  Providing investment trust services: due diligence for the entrusting party;

ü  Providing services of establishment, management and executive of enterprise; supplying registration office, address or place of business; supplying services of company representative : clients requesting such services;

ü  Providing services of director and secretary provision of the enterprise to a third party: third party and director / secretary to such director;

ü  Providing services of representative supply for shareholders: shareholders and representatives of such shareholder.

The abovementioned services providers/ entities must update the client identification information on a regular basis during the period of having relations with the clients.

In addition, clients must also be classified into different groups, product and services used, their place of residence or headquarter based on different risk exposure levels.

  • Reporting requirements / Obligations
    • Record keeping

Records of clients’ transactions must be kept for at least 5 years from the date of the transaction. Records of customer identification, accounting documents and reports of high value transactions, suspicious transactions and transactions of electronic money transfer exceeding VND500 million or equivalent amount in foreign currency (for domestic transfer) or USD1,000 (for inbound or outbound transfer), must be kept for at least 5 years from the closing date of the transaction or the date of account closure or the reporting date.

    • Tipping off

The reporting entity/ individual is not allowed to inform a person involved in a suspicious transaction that it has reported or will report the transaction to the State Bank of Vietnam.

    • Whistleblowing

The AML only sets out regulations on reporting to the State Bank of Vietnam instead of whistle blowing.

  • Offences
    • Enforcements

If the parties related to the transactions are included in the blacklist or there are grounds to believe that the transaction required to be performed is related to the criminal activities, the reporting entity/ individual must apply measures to delay the transaction within maximum 3 working days and must immediately report in writing and notify via phone to the competent State agencies and the SBV for cooperation. If the reporting entity/ individual does not receive any feedback from the competent State agencies after 3 working days, it can proceed the transaction.

In addition, the reporting entity/ individual must block the accounts or seal or temporarily seize assets of the individuals/ organizations upon having decision of competent state agencies under the law and make report on the implementation to the State Bank of Vietnam.

    • Penalties

Persons violating the AML are subject to administrative sanctions of up to VND250 million, discipline or criminal penalty depending on the nature and seriousness of such violations. The criminal sanctions varies from one year to maximum 15 year imprisonment, together with partly or wholly confiscation of assets, monetary fine of up to 3 times of the violated amount, abandonment of holding certain positions or titles from one to five years.

  • Internal procedures & training

Pursuant to Article 20 of the AML, reporting entities/ individuals must establish internal procedures on prevention and combating money laundering with the following contents:

ü  Client acceptance policy;

ü  Processes and procedures to identify clients, verify and update client information;

ü  Transactions which must be reported;

ü  The process of review, detection, handling and reporting of suspicious transactions; the way to communicate with the clients who make suspicious transaction;

ü  Information keeping and security;

ü  Applying temporary measures and principles of handling the cases of transaction delay;

ü  Reporting and information supply regime to the State Bank of Vietnam and the competent state agencies;

ü  Professional training on the prevention of and combating money laundering;

ü  Internally controlling and auditing the compliance with the policies, regulations, processes and procedures related to the prevention of and combating money laundering, responsibilities of each individual and division in the implementation of internal rules in the prevention of and combating money laundering.

  • Sanctions
    • International conventions

International cooperation in the field of prevention of and combating money laundering includes: (i) exchange of information on prevention of and combating money laundering; (ii) determining and blocking assets of the violating persons; (iii) performing judicial assistance and cooperation in extraditing money laundering offences; and (iv) other aspects. The process, procedures and cooperation methods are in accordance with international agreements to which Vietnam is a party.

  • CTF – Countering terrorist finance

The Ministry of Public Security is tasked with the preparation of a list of organizations and individuals related to terrorism and terrorist finance (“Blacklist”). The reporting entity/ individual must promptly report to the competent anti-terrorism authorities, and at the same time send reports to the State Bank of Vietnam upon detecting organizations and individuals to conduct transactions included in the blacklist or when there is evidence that other organizations and individuals commit acts related to the money laundering crime for terrorism financing.

At the same time, the reporting entity/ individual must apply measures to delay the transaction and block the accounts or seal or temporarily seize assets of the individuals/ organizations.

  • Anti bribery and corruption laws

Corruption is widespread throughout Vietnam. For information, Vietnam ranks 111 out of 168 according to 2015 Corruption Perception Index, a barely budge compared with its rank in 2014 (119th) and in 2013 (116th). Sectors most affected by corruption are Police; Public administration; Health sector, Judiciary; and Land management. Vietnamese government has acknowledged the negative impact of corruption on both Vietnam’s future prosperity and the Party’s own legitimacy, thus has adopted one of the most comprehensive and ambitious anti-corruption laws in Asia. The anti-corruption legal framework has significantly improved after the adoption of the Anti-corruption Law by the National Assembly in 2005 and the National Strategy on Anti-corruption to 2020.

However, in the last ten years of implementation, considering the increasing level of complexity of corruption cases, the current legal framework has been proved to be inadequate to combat corruption in Vietnam. This prompted the Vietnamese Government to refine the current regime to make the policies fully effective and operational in practice.

Draft Law provides a new chapter on Assets and Income Transparency and Control.  Deputies to the National Assembly and People’s Councils, officials holding positions as from deputy head of division in People’s Committee of districts, Secretary, Deputy Secretary, Chairman, Deputy Chairman of People’s Committee, people who work in public companies, credit institutions, etc. must enumerate their assets and incomes. In case their actual assets and incomes are bigger than ones enumerated, the competent authorities shall request tax authority to collect taxes applied on the discrepancy between actual assets and incomes and the ones enumerated; initiate a law suit before courts.

A new section of “Anti-corruption at social organizations” is added.  Chairman, General Secretary, Chief Accountant of a social organization must enumerate their assets and incomes.

Draft Law also provides a new chapter on “Forming a healthy and anti-corruption business culture.” Specifically, enterprises are liable to issue and implement a code of ethics internally in order to form a healthy and anti-corruption business culture.  In its charter and operation policy, the enterprise is responsible to provide its internal control mechanism to prevent conflict of interests, bribery, abuse of powers and other corruption acts. Chairman of Board of Directors, members of Board of Directors, General Director, Directors, Head of Inspection Committee, Chief Accountant of a public company, credit institution, investment fund must enumerate their assets and incomes.  Enterprises are liable to issue their policy on control of their management staff’s assets and incomes control.

There is no definition of “bribery” under Vietnam laws. However, in essence, it could be defined as an act of offering, promising, making or receiving money or anything of value (minimum threshold:  VND 2 million (approx. US$ 100) to induce or influence an act/ omission or decision. The current laws only target people with positions and power (i.e., state officials). Please note the receipt of minimum VND2 billion is subject to death penalty.

  • Forthcoming issues/legislation

o   Money transmitters

Money transfer transactions with nature mentioned under Customer Due Diligence and Record Keeping sections are subjects of the AML. The laws regarding these issue remain in force and there is no information that these rules will be revised in the short term.

If you have any question on the above, please do not hesitate to contact Mr. Oliver Massmann under omassmann@duanemorris.com, Oliver Massmann is the General Director of Duane Morris Vietnam LLC.

Thank you very much!

 

 

 

 

 

 

VIETNAM INSURANCE GUIDE

Market overview

Global

  • Member of International Association of Insurance Supervisors (IAIS) ?

Yes, Vietnam became member of IAIS in 2007.

  • Global regulators, bodies and legislation applicable to country

A project “ComFrame” set up by the Internationally Active Insurance Groups (IAIG related to IAIS), is planned to establish regulatory framework with mandatory standards. For now, it remains at the test phase but would become effective by 2019. Vietnam, as a member of the IAIS will have to comply with its regulations.

As a member of the WTO and WHO, Vietnam must also comply with regulations of these organizations with respect to insurance. In its bilateral / multilateral agreements such as Korea – Vietnam FTA, EU- Vietnam FTA, Hong Kong –  ASEAN FTA, ASEAN- China FTA, ASEAN – Australia – New Zealand FTA, commitments on insurance are also binding on Vietnam

In addition, Vietnam is a member of the OECD, which issues guidelines and good practices of non-binding nature for member countries.

European (if applicable) Not applicable for Vietnam

  • Supervised by EIOPA?
  • Does Solvency II apply?
  • Key regulators and rulebooks

Domestic

  • Key regulators

The Ministry of Finance is in charge of the state regulation on insurance business. In addition, on 12 February 2009, the Ministry of Finance (MOF) issued Decision No. 288/QD-TTg to establish the Insurance Supervisory Authority (ISA) under the MOF. The ISA will assist the Minister of the MOF to regulate insurance business nationwide; directly govern and supervise insurance business activities and services related to insurance business in accordance with law.

In June 2009,  Insurance Research and Training Centre (IRTC) under the ISA was established according to Decision No.  1379/QD-BTC . The IRTC is tasked with organizing scientific study and training on insurance and insurance market.

  • Laws and relevant court decisions/judgements

The following laws and regulations mainly govern insurance business in Vietnam:

  1. Law on Insurance Business issued by the National Assembly on 09 December 2000, as amended by Law No. 61/2010/QH12 dated 24 November 2010 (Law on Insurance Business);
  2. Decree No. 73/2016/ND-CP on guiding the implementation of the Law on Insurance Business issued by the Government on 01 July 2016 (Decree 73);
  3. Decree No. 98/2013/ND-CP on administrative sanctions on insurance business and lottery business issued by the Government on 28 August 2013 (Decree 98);
  4. Circular No. 195/2014/TT-BTC on guiding the assessment and classification of insurance companies issued by the Ministry of Finance on 17 December 2014 (Circular 195);
  5. Circular No. 101/2013/TT-BTC on guiding the management and use of fund for policy-holders, issued by the Ministry of Finance on 30 July 2013 (Circular 101);
  6. Decision No. 1826/QD-TTg of the Prime Minister on approving the Plan on “Restructuring the securities market and insurance companies” on 28 December 2012 (Decision 1826).
  • Key rules and requirements may include
  • Senior management responsibilities
  1. Promulgation of legal instruments and implementing guidelines on insurance business; formulation of strategies, policies, master planning and specific plans for the development of the Vietnamese insurance market;
  2. Issuance and withdrawal of licenses for establishment and operation insurers and insurance brokers, and of licenses for establishment of representative offices of foreign insurers and foreign insurance brokers in Vietnam;
  3. Promulgation, ratification and guiding the implementation of insurance regulations, provisions, scales of premiums and commissions;
  4. Supervision of insurance business activities via professional activities, financial status, enterprise management, risk management and compliance with the law on insurers and brokers; application of necessary measures to ensure that insurers satisfy the financial requirements and fulfil their undertakings to purchasers of insurance;
  5. Organization of provision of information on the status of the insurance market and market forecasts;
  6. International cooperation in the area of insurance;
  7. Consent for overseas operations of insurers and insurance brokers;
  8. Administration of the operations of representative offices of foreign insurers and foreign insurance brokers in Vietnam;
  9. Organization of the formation and training of a workforce of insurance management personnel and insurance professional experts; and
  10. Inspection and checks of insurance business activities; resolution of complaints and denunciations, and dealing with breaches of the laws on insurance business.
  • Whistle-blowing rules

There is no such rules specifically for the insurance sector.

  • Foreign ownership limit in an existing shareholding company

ü  The maximum shareholding by an individual shareholder is limited to 10% of the charter capital of the target company;

ü  The maximum shareholding by an institutional shareholder is limited to 20% of the charter capital of the target company; and

ü  The maximum shareholding owned by a shareholder and related persons/affiliates in aggregate is limited to 20% of the charter capital of the target company.

Capital reserve requirements

Reserve funds

Insurers and insurance brokers must establish a compulsory fund to supplement their charter capital and ensure their solvency. Appropriations for the compulsory reserve fund shall be made annually at 5% of after-tax profits. The maximum amount of compulsory reserve fund is equivalent to 10% of the charter capital of the insurance enterprise or issued capital of the foreign branch.

In addition to this compulsory reserve fund, insurers and insurer brokers may establish other reserve funds from their after-tax profits of the fiscal year as determined in their charter. It is noted that after-tax profits must not be first shared among shareholders but only after 5% of such profits is contributed to the compulsory reserve fund.

Insurance reserves

Insurance reserve means an amount of money which an insurer must set aside to pay for its insurance liabilities determined in advance and arising from the insurance contracts which it has entered into.

Insurance reserve must be established for each type of insurance product or insurance contract with respect to that part of liability retained by the insurer or foreign branch. Specific amount contributed for insurance reserve is not yet provided by the MOF given the recent effectiveness of Decree 73.

Security deposit

Insurers must pay a security deposit into a commercial bank operating in Vietnam in an amount of  2% of the legal capital as specified for each type of insurance company (for example, a health insurance company must pay a security deposit of  VND6 billion or USD270,000) within 60 days from the issuance date of the operating license in Vietnam. An insurance enterprise or foreign branch may only use its security deposit to meet undertakings to purchasers of insurance when its solvency is inadequate and upon written approval of the MOF. The whole amount of their security deposit can only be withdrawn upon termination of their operation.

Product specific legislation

Relevant advisory documentation or other requirements, including tax.

  • Life

Legal capital

ü  For life insurance business (excluding unit linked insurance and retirement insurance) and health care insurance business: VND600 billion

ü  Life insurance business and unit linked insurance business or retirement insurance business: VND800 billion

ü  Life insurance business, unit linked insurance business and retirement insurance business: VND1,000 billion.

Qualifications of the appointed actuary

ü    Not be prohibited from managing an enterprise according to Vietnam laws;

ü    In the three consecutive years prior to the time of appointment:

o   Not have been subject to an administrative penalty for a breach in the insurance business sector with the form of penalty being compulsory dismissal from his or her position as a manager or executive, approved by the MOF, or with the form of penalty being suspension from a position to which such person was appointed by an insurance enterprise, insurance broker or foreign branch;

o   Not have been disciplined in the form of dismissal for a breach of internal rules on underwriting, assessment, compensation and indemnity, internal control, management of finance and investment or management of a re-insurance program in an insurance enterprise or foreign branch; or for a breach of the rules on professional insurance broking operations, on internal control or professional ethics of an insurance broker;

o   At the time of being appointed as a manager or executive of an insurance enterprise or foreign branch, not be directly related to any case prosecuted by a competent agency.

ü Have undergone training as an appointed actuary, and have at least 10 years’ work experience as an appointed actuary in the life insurance and be a fellow of one of the Associations of Actuaries which are widely recognized internationally such as the Institute of Actuaries of England; the Society of Actuaries of the USA; the Institute of Actuaries of Australia; the Canadian Institute of Actuaries; or be a member of another Association of Actuaries which is an official member of the International Associations of Actuaries; or have at least 5 years’ work experience as an appointed actuary in the life insurance or health insurance sector from the time of becoming a fellow of one of the above associations.

ü Not have committed any breach of the professional ethics of actuaries.

ü Be an employee of the life insurer.

ü Be resident in Vietnam during the term of office.

Permitted scope of business

Life insurers are not allowed to do non-life business.

Life insurance products must be approved by the MOF in advance.

Insurance reserve

Insurance reserve for life insurance companies includes: actuarial reserve, unearned premium reserve, compensation reserve, profit distribution reserve, committed interest rate reserve and balance reserve.

Investment of idle capital from insurance reserves

Investments of idle capital from insurance reserves of insurance enterprises or foreign branches may be made directly by the insurance enterprise or foreign branch or by entrusting another entity to make the investment, but shall only be invested in Vietnam in the following sectors:

ü Purchase of Government bonds, Treasury bills, Treasury bonds, public bonds for construction of the Homeland, local authority bonds and Government guaranteed bonds without any restriction;

ü Deposits with credit institutions without any restriction;

ü Purchase of shares, bonds of enterprises and fund certificates but not to exceed 50% of idle capital from insurance reserves;

ü Real estate business in accordance with the Law on Real Estate Business but not to exceed 20% of idle capital from insurance reserves;

ü Capital contribution to other enterprises but not to exceed 20% of idle capital from insurance reserves.

  • General insurance

Under Vietnam laws, general insurance is called non-life insurance, which means the types of insurance products being property insurance, civil liability insurance and other products which are not life insurance.

Legal capital

– For non-life insurance business (excluding aviation insurance business and satellite insurance business) and health insurance: VND300 billion

– For non-life insurance business (including aviation insurance business or satellite insurance business) and health insurance: VND350 billion

– For non-life insurance business, including aviation insurance business and satellite insurance business and health insurance: VND400 billion

Qualifications of an appointed actuary regarding reserves and solvency of non-life insurer

ü    Not be prohibited from managing an enterprise according to Vietnam laws;

ü    In the three consecutive years prior to the time of appointment:

o   Not have been subject to an administrative penalty for a breach in the insurance business sector with the form of penalty being compulsory dismissal from his or her position as a manager or executive, approved by the MOF, or with the form of penalty being suspension from a position to which such person was appointed by an insurance enterprise, insurance broker or foreign branch;

o   Not have been disciplined in the form of dismissal for a breach of internal rules on underwriting, assessment, compensation and indemnity, internal control, management of finance and investment or management of a re-insurance program in an insurance enterprise or foreign branch; or for a breach of the rules on professional insurance broking operations, on internal control or professional ethics of an insurance broker;

o   At the time of being appointed as a manager or executive of insurance enterprise or foreign branch, not be directly related to any case prosecuted by a competent agency.

ü Be an associate of an Association of Actuaries which is an official member of the International Associations of Actuaries; or

ü Have at least five years’ work experience in the non-life insurance sector and have evidence of passing two exams of one of the following Associations: the Institute of Actuaries of England; the Society of Actuaries of the USA; the Institute of Actuaries of Australia, and the Canadian Institute of Actuaries, or evidence of passing exams of a training course or program on actuaries recognized by the above Associations as equivalent to two exams of the above Associations; and

ü Not have committed any breach of the professional ethics of actuaries.

Permitted scope of business

Non-life insurance companies are allowed to do health insurance business.

Insurance reserve

Insurance reserve for non-life insurance companies includes unearned premium reserve, claim reserve, and large loss fluctuation reserve.

Investment of idle capital from insurance reserves

ü  Purchase of Government bonds, Treasury bills, Treasury bonds, public bonds for construction of the Homeland, local authority bonds and Government guaranteed bonds without any restriction;

ü  Deposits with credit institutions without any restriction;

ü  Purchase of shares, bonds of enterprises, fund certificates and capital contribution in other enterprises but not to exceed thirty five (35) per cent of idle capital from insurance reserves; and

ü  Real estate business in accordance with the Law on Real Estate Business but not to exceed ten (10) per cent of idle capital from insurance reserves.

  • Reinsurance

Legal capital

–          For non-life reinsurance business or both non-life reinsurance business and health reinsurance business: VND400 billion;

–          For life reinsurance business or both life reinsurance business and health reinsurance business: VND700 billion;

–          For business in all three types of life reinsurance, non-life reinsurance and health reinsurance, VND1,100 billion.

Qualifications of an appointed actuary regarding reserves and solvency of reinsurer

Same as in non-life insurance.

Permitted scope of business

ü  An insurance enterprise or may transfer part but is not permitted to assign all of the liability for which insurance has already been accepted in an insurance contract to one or a number of domestic and foreign insurance enterprises, and other foreign branches;

ü  The maximum level of the liability retained on each risk or on each separate loss shall not exceed 10% of equity.

ü  If an insurance enterprise cedes reinsurance as appointed by an insured person, the maximum rate for re-insurance by appointment shall be 90% of the liability insured;

ü  An insurance enterprise may accept reinsurance of the liability for which another insurance enterprise has already accepted insurance.

Insurance reserve

–          For non-life reinsurance: unearned premium reserve, claim reserve, and large loss fluctuation reserve;

–          For life reinsurance: actuarial reserve, unearned premium reserve, compensation reserve, profit distribution reserve, committed interest rate reserve and balance reserve;

–          For health reinsurance: actuarial reserve, unearned premium reserve, compensation reserve, and balance reserve.

Investment of idle capital from insurance reserves

–          For non-life reinsurance: same as non-life insurance

For life reinsurance and health reinsurance: same as life insurance and health insurance

  • Commercial insurance

Please refer to the Section on General insurance above.

Investment management and markets

Overview of relevant regulation affecting insurers’ investment portfolios, including Asset Liability Management (ALM).

An insurance enterprise can make investment from its equity, idle capital from insurance reserves and other lawful sources.

In addition to rules of domestic investment of idle capital from insurance reserves as mentioned above for each type of insurance business, the following principles apply:

ü  It is not permitted to borrow loans for purposes of direct investment or entrusted investment in securities, real estate, or capital contribution to other enterprises;

ü  It is not permitted to reinvest in any form [being lending to or reinvesting with] capital contributing shareholders (members) or related persons [affiliated persons] as defined in the Law on Enterprises, except for deposits with shareholders (or members) which are credit institutions;

ü  It is not permitted to invest more than 30% of its investment capital sources in companies within one Group or within one group of companies with a mutual ownership relationship (this provision shall not apply to deposits at credit institutions and offshore investment capital sources in the form of establishment of enterprises or branches overseas);

ü  In the case of investment entrustment, the organization accepting entrustment must be issued by the competent agency with a licence to carry out the activities of acceptance of investment entrustment in compliance with the contents of acceptance of investment entrustment.

An insurance enterprise may also make offshore investment but only to set up offshore insurance company or an offshore insurance branch. Such offshore investment must be approved by the MOF.

Enforcement and investigation

  • Rules of regulatory investigation

Insurance business activities must be checked without overlapping and no more than once in respect of one item in any one year with respect to enterprises (except for the case of an extraordinary or unscheduled check).

  • Complaints procedure

There is no specific rule on complaints handling procedure in insurance enterprises. Instead, such rules are as indicated in the insurance contracts and must follow relevant regulations of the Civil Code and economic agreements.

Complaints on administrative decisions will be handled according to laws on complaints and denunciations, which are applied for all sectors.

  • Redress, including Ombudsman service

Depending on the nature and seriousness of violations, the violators may be subject to administrative sanctions (warnings, monetary fines, suspension of operation, remedies) or criminal penalty. In case of causing damages, they must compensate according to Vietnam laws.

  • Insurance mediation compensation schemes

As indicated in the insurance contract. The insured person has maximum one year to claim for indemnity from the date of occurrence of the insured event. Upon occurrence of such insured event, the insurer must pay the indemnity with the time-limit stated in the insurance contract. If there is no statement in the contract, the time-limit is 15 days from the date of receipt of a complete and proper application requesting payment of indemnity.

Personal accident and health care insurance

–          Personal accident insurance: the insurer must pay insurance proceeds to the beneficiary up to the sum insured, based on the actual injury of the person insured and as agreed in the contract.

–          Health care insurance: the insurer must pay insurance proceeds to the beneficiary up to the sum insured, based on the costs of medical examination, treatment and convalescence of the insured person arising as a result of an illness or accident and as agreed in the contract.

Property insurance

–          Property insurance below value: the insurer is only responsible to indemnify in accordance with the ratio of the sum insured to the market value of the insured property at the date of entering the contract.

Double insurance contracts

Upon occurrence of the insured event, each insurer is only responsible to indemnify in accordance with the ratio of the agreed sum insured to the total sum insured under all insurance contracts which the purchaser of the insurance has entered into. The total sum of indemnity payable by all the insurers will not exceed the value of the actual property damage.

Insolvency and policy-holder protection

  • Relevant resolution regime?

There is no separate insolvency regime for insurers. Instead, the Law on Bankruptcy which deals with bankruptcy and insolvency in all sectors will apply.

The general procedure to handle bankruptcy cases is as follows:

ü  Filing the petition to the court to commence bankruptcy procedures (by creditors, employees, grass-root trade union, legal representative of the company, shareholders, Chairman of the Board of Management, etc.)

ü  The court will handle the bankruptcy case according to its competence within 6 working days from the receipt of the petition. Decisions to open bankruptcy procedure must be sent to all relevant parties and published on local newspapers and the People’s Supreme Court web portal.

ü  Calling for the meeting of creditors

ü  Depending on the Resolution of the Creditors’ meeting, the company’s operation can be recovered or the court is requested to announce the bankruptcy.

ü  Management and liquidation of assets are conducted by a liquidator or company that is appointed by the court and specializes in the management and liquidation of assets.

Data protection

There is no separate rule governing data protection in the insurance sector in Vietnam. Instead, Vietnam’s data protection laws are scattered in many legislations, which include the Civil Code, the Penal Code, the Law on Cyber Information Security, the Law on Information Technology, the Law on Telecommunications, the Law on Consumer Protection, the Law on E-Transactions and relevant Decrees guiding implementation of the mentioned laws. These laws include provisions to prevent, detect, stop and address spam, computer viruses and cyber-attacks, and protect information exchanged in cyberspace.

There is no consistent definition of “personal information” in Vietnam laws. General speaking, personal information could be any information that could be used to identify a specific person, including information on payment transactions.

Organisations processing personal information must take appropriate management and technical measures to protect personal information that they have collected and stored and ensure that the personal information is not lost, stolen, disclosed, modified or destroyed without consent.

Depending on the nature of violations of data protection policies, administrative fines (warning, monetary fine) and possible remedial measures or criminal penalties might apply.

Corporate governance

Managers and executives of insurance enterprises, foreign branches and insurance brokers are:

ü  Chairman of the board of management (chairman of the members’ council or company chairman); members of the board of management (members of the members’ council);

ü  Head of the inspection committee; head of the internal audit committee; inspectors (if the enterprise does not establish an inspection committee);

ü  General Director (Director); Deputy General Director (Deputy Director);

ü  Head of the internal control or audit division; chief accountant; branch directors; heads of representative offices; heads of professional sections; appointed actuaries (in the case of a life insurer or health insurer); appointed actuaries regarding reserves and solvency (in the case of a non-life insurer or foreign branch).

Allocation of these people must follow the below principles:

ü  A member of the board of management or members’ council of an insurance enterprise or insurance broker is not permitted to concurrently be a member of the board of management or members’ council of an enterprise operating in the same sector (non-life insurance, life insurance, reinsurance or insurance brokerage);

ü  The general director (director) or deputy general director (deputy director) of an insurance enterprise, foreign branch or insurance broker is not permitted to concurrently work for another insurance enterprise, foreign branch or insurance broker operating in the same sector in Vietnam; and the general director (director) of an insurance enterprise, foreign branch or insurance broker is not permitted to be a member of the board of management or members’ council of another insurance enterprise or insurance broker operating in the same sector in Vietnam;

ü  The general director (director), deputy general director (deputy director), a branch director or a head of a representative office of an insurance enterprise or insurance broker is only permitted to concurrently be the head of no more than one branch or representative office or professional section of the insurance enterprise or insurance broker. The director or deputy director of a foreign branch is only permitted to concurrently be the head of no more than one professional section of such branch;

ü  An appointed actuary of a life insurer or health insurer, an appointed actuary regarding reserves and solvency of a non-life insurer, of a reinsurer or of a foreign branch has the duty of organizing implementation of work to ensure the financial safety of the insurance enterprise or foreign branch. An appointed actuary or an appointed actuary regarding reserves and solvency has independent rights regarding his or her professional specialty and is not permitted to concurrently be the general director (director) or chief accountant.

Financial crime prevention

  • Member of FATF? On FATF blacklist?

Not a members of FATF and not blacklisted either.

***

If you have any question on the above, please do not hesitate to contact Mr. Oliver Massmann under omassmann@duanemorris.com, Oliver Massmann is the General Director of Duane Morris Vietnam LLC.

Thank you very much!