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DECREE
PROVIDING DETAILED REGULATIONS ON THE
COMMERCIAL LAW REGARDING CONDITIONS FOR ENGAGING IN
LOGISTIC SERVICES BUSINESS, AND LIMITATIONS ON
LIABILITY OF LOGISTIC SERVICES BUSINESS ENTITIES
The Government
Pursuant to the
Law on Organization
of the Government
dated 25 December 2001;
Pursuant to the
Commercial Law
dated 14 June
2005;
Having considered the
proposal of the Minister of Industry and Trade;
Decrees:
CHAPTER I
General Provisions
Article 1
Governing scope
This Decree provides
detailed regulations for implementation of the
Commercial Law
with regard to conditions for engaging in
logistic services business and the limitations on liability of business entities engaging in logistic
services business.
Article 2
Applicable
entities
This Decree applies to
business entities engaging in logistic services business and to other
organizations and individuals with
activities related to logistic services.
Article 3
Interpretation
of terms
In this Decree, the
following terms shall be construed as follows:
1.
Logistic services
means the
commercial activities stipulated in article 233 of the
Commercial Law.
2.
Business entity engaging in logistic services business
means a business entity
who organizes the performance of logistic
services for clients by itself conducting such services or by hiring another business entity to conduct
one or a number of stages of such services.
3.
Foreign business
entity engaging in logistic services business
means a business entity
from any country or territory with
which Vietnam has an undertaking in an international treaty regarding opening of the logistic
services business market.
4.
Limitation on
liability means
the maximum level at which a business entity engaging in logistic services business is
liable to pay compensation to a client for loss and damage arising during the process of organization of
the performance of logistic services in accordance with the provisions in this Decree.
Article 4
Classification
of logistic services
Logistic services as
stipulated in article 233 of the
Commercial Law
shall be
classified as follows:
1. Principal logistic
services, comprising:
(a) Services of arranging
pickup and loading of goods, including loading goods into containers;
(b) Goods warehousing and
storage services, including the business of warehousing in containers and storage for processing
raw materials and equipment;
(c) Transportation agency
services, including agency activities of conducting customs procedures and preparing plans for
unloading goods1;
(d) Other subsidiary
services including activities of receiving, archiving and managing information about transportation and
storage of goods throughout the entire logistic process; activities being reprocessing of
goods returned by clients, reprocessing of goods in storage and of outof-date goods and
redistribution of such goods; and activities being leasing out and hire purchase of containers.
2. Logistic services
relating to transportation, comprising:
(a) Sea carriage services;
(b) Internal waterways
carriage services;
(c) Aviation carriage
services;
(d) Rail carriage
services;
(dd) Road carriage
services;
(e) Pipeline conduit
services.
3. Other related logistic
services, comprising:
(a) Services being
technical checks and analysis;
(b) Post services;
(c) Wholesale commercial
services;
(d) Retail commercial
services, including activities of managing goods in storage; collecting goods from various sources,
assembling and classifying the goods, and redistributing and delivering them;
(dd) Other subsidiary
transportation services.
CHAPTER II
Conditions for
Engaging in Logistic Services Business and Limitations on
Liability of Business Entities Engaging in Logistic
Services Business
Article 5
Conditions for
engaging in logistic services business applicable to principal logistic services Business entities engaging
in the principal logistic services stipulated in article 4.1 of this Decree must satisfy all the following
conditions:
1. The enterprise must
have lawful business registration in accordance with the law of Vietnam.
2. There must be adequate
facilities, equipment and working facilities which ensure technical [standards] and safety
criteria, and there must be a team of staff who satisfy the requirements.
3. Foreign business
entities, in addition to satisfying the conditions stipulated in clause 2 of
this article, shall only be permitted to
engage in logistic services business when they also satisfy the following specific conditions:
(a) In the case of
business in unloading goods, a foreign business entity shall only be permitted
to establish a joint venture
company in which the capital contribution ratio of the foreign investor does not exceed 50%;
(b) In the case of
business in warehousing services, the foreign business entity shall be permitted to establish a joint
venture company in which the capital contribution ratio of the foreign investor does not exceed
51%; this restriction shall terminate in year 2014;
(c) In the case of
business in transportation agency services, the foreign entity shall be
permitted to establish a joint
venture company in which the capital contribution ratio of the foreign investor does not exceed
51%, and as from year 2014 the establishment of a joint venture company shall not be
restricted in terms of the capital contribution ratio of the foreign investor;
(d) In the case of
business in other subsidiary services, the foreign business entity shall be permitted to establish a
joint venture company in which the capital contribution ratio of the foreign investor does not
exceed 49%; this restriction shall be 51% as from year 2010 and [this restriction] shall
terminate in year 2014.
Article 6
Business conditions
applicable to entities engaging in logistic services relating to transportation
Any business entity
engaging in logistic services relating to transportation as stipulated in
article 4.2 of this Decree must satisfy the
following conditions:
1. The enterprise must
have lawful business registration in accordance with the law of Vietnam.
2. Compliance with the
conditions applicable to transportation business as stipulated by the law of Vietnam.
3. Foreign business
entities engaging in logistic services business, in addition to satisfying the conditions stipulated in
clause 2 of this article, shall only be permitted to engage in logistic services business when they also
satisfy the following specific conditions:
(a) In the case of
business in maritime transportation services, a foreign business entity shall
only be permitted to establish
a fleet operating joint venture company as from year 2009 in which the capital contribution
ratio of the foreign investor does not exceed 49%; and shall be permitted to establish an
international sea transportation services joint venture in which the capital contribution ratio
of the foreign investor does not exceed 51%, and this restriction shall terminate in year 2012;
(b) In the case of
business in internal waterway transportation services, a foreign business entity shall only be permitted to
establish a joint venture company in which the capital contribution ratio of the foreign
investor does not exceed 49%;
(c) Aviation transport
business services shall be implemented in accordance with the
Law on Civil Aviation of Vietnam;
(d) In the case of rail
transportation business services, a foreign business entity shall only be permitted to establish a
joint venture company in which the capital contribution ratio of the foreign investor may not
exceed 49%;
(dd) In the case of
business in road transportation services, a foreign business entity shall be permitted to establish a
joint venture company in which the capital contribution ratio of the foreign investor does not
exceed 49%; and this restriction shall be 51% as from year 2010;
(e) It shall not be
permitted to provide pipeline conduit services, except where an international treaty of which the
Socialist Republic of Vietnam is a member contains some other provision.
Article 7
Business
conditions applicable to entities engaging in other relevant logistic services
Any business entity
engaging in the other logistic services stipulated in article 4.3 of this Decree
must satisfy all the following
conditions:
1. The enterprise must
have lawful business registration in accordance with the law of Vietnam.
2. Foreign business
entities engaging in logistic services business shall only be permitted to
conduct business in [other]
logistic services when they satisfy the following specific conditions:
(a) In the case of
business in services of technical checks and analysis:
In the case of services
provided in order to exercise authority of the Government, they may only be provided in the
form of a joint venture after three years or in other forms after five years, as from the date on
which the private enterprise is permitted to conduct business in such services.
It shall not be permitted
to conduct business in services of acceptance testing of, and issuance of certificates for
transportation facilities.
The provision of services
of technical checks and analysis shall be restricted [not permitted] in geographical locations as
determined by the competent body for reasons of national defence and security.
(b) Business in services
being posts, wholesale commercial services and retail commercial services shall be subject
to discrete regulations of the Government.
(c) It shall not be
permitted to provide other subsidiary transportation services, unless an international treaty of
which the Socialist Republic of Vietnam is a member contains some other provision.
Article 8
Limitations on
liability
1. The limitations on the
liability of any business entity engaging in logistic services business relating
to transportation shall be as
stipulated by the relevant law on limitations on liability in the transportation sector.
2. The limitation on
liability of any business entity engaging in logistic services business not
within the scope of clause 1 of this
article shall be as agreed by the parties. If the parties do not have any agreement, then the issue
shall be regulated as follows:
(a) In a case where a
client does not provide prior notice about the value of the goods, then the maximum liability shall be
500 (five hundred) million dong applicable to each claim for compensation;
(b) In a case where a
client provided prior notice of the value of the goods and this was verified by the business entity
engaging in the logistic services business, then the limitation on liability shall be the entire value
of such goods.
3. In a case where a
business entity organizes a number of work stages which stipulate different limitations on liability,
then the limitation on liability of a work stage shall be the highest limitation
of any one work stage.
CHAPTER III
State
Administration of Logistic Services
Business Activities
Article 9
State
administration
1. The Ministry of
Industry and Trade shall be responsible before the Government for the exercise
of State administration of
logistic services business activities.
2. The Ministry of
Transport, the Ministry of Industry and Trade, and the Ministry of Information
and Communication shall,
within the scope of their respective duties and powers, be responsible to check and supervise logistic
services business activities, including checking and supervising compliance with business conditions
and compliance by business entities concerned with the law on logistic services business in the
sectors in which administration is delegated to such ministries.
3. The Ministry of
Planning and Investment shall be responsible to guide business registration for logistic services in
accordance with current regulations.
4. Other ministries,
ministerial equivalent bodies and Government bodies shall be responsible to
coordinate with the ministries
stipulated in clauses 1, 2 and 3 above during the work of State administration of logistic
services business activities.
Article 10
Dealing with
breaches
Any business entity
engaging in logistic services business activities, or any other organization or
individual concerned who breaches the
provisions of this Decree shall, depending on the nature and seriousness of the breach, be subject to
a disciplinary penalty or an administrative penalty or shall be subject to
criminal prosecution; and if the
offender causes loss and damage, then the offender must pay compensation in accordance with law.
CHAPTER IV
Implementing
Provisions
Article 11
Transitional
provision
Any business entity
engaging in logistic services business which received permission from the
competent State body to provide such
services before the effective date of this Decree shall be permitted to continue such business and shall
not be required to re-register.
Article 12
Effectiveness
1. This Decree shall be of
full force and effect fifteen (15) days from the date of its publication in the Official Gazette.
2. Ministers, heads of
ministerial equivalent bodies and Government bodies and chairmen of people's committees of provinces
and cities under central authority shall be responsible for the implementation
of this Decree.
On behalf of the
Government
Prime Minister
NGUYEN TAN DUNG
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