Under Circular 12/2014 of the State Bank of Vietnam (SBV), a private company including foreign-invested companies in Vietnam can only borrow from a foreign lender if it satisfies the following requirements, among others:
- A foreign loan can only be used to (1) implement an investment project of the borrower or of a company in which the borrower has “direct investment” capital; or (2) refinance existing foreign loans without increasing borrowing costs. (1) is a positive development as it allows the borrower to use a foreign loan proceed to make capital contribution or, even possibly, on-lend to another company. (2) seems to be more restrictive than earlier regulations and may make it more difficult for a Vietnamese company to restructure its foreign debt;
- A foreign loan with a term of no more than 1 year is considered as a short term loan. A short term foreign loan must not be used for medium or long term use. In practice, a short term foreign loan is not required to be registered with the SBV. However it must be made in writing before draw down;
- The repayment and disbursement of a foreign loan of Vietnamese borrower being a foreign invested enterprise must be made through a foreign direct investment account in foreign currency opened by such borrower with a licensed bank in Vietnam. The bank will check all supporting documents before making any repayment to foreign lenders;
- A medium and long term loan together with all other outstanding long and medium term loans of must not exceed the difference between the total investment capital and the equity capital of the investment project as recorded in the relevant investment certificate. However, a short term loan is not subject to this restriction. This is a positive development as under old regulations a short term loan is also subject to the same funding limit except in limited circumstance;
- A medium and long term foreign loan must be registered with the SBV within 30 working days from the signing date of the loan agreement and before disbursement;
- A foreign loan must be made in foreign currencies except for loans given to micro finance organisations, loans between the foreign investor in a foreign-invested company and such foreign-invested company; or loans approved the SBV; and
- A foreign loan secured by shares or capital contribution or convertible bonds issued by a Vietnamese issuer must comply with the relevant foreign ownership limits. It is not clear if this means that the parties need to comply with the relevant foreign ownership limits at the time of taking or enforcing the relevant securities.