DECREE 163/2007/ND-CP ON 30/12/2017 PROVIDING FOR LOGISTICS SERVICES OPERATIONS

- 1322 lượt xem

On 30/12/2017, the Government (VN) issued Decree No.163/2017/ND-CP regulating the operations of logistics services, effective from February 20, 2018, replacing Decree No.140/2007/NĐ-CP dated September 5, 2007 detailing the Commercial Law, 2005 on conditions for trading in logistics services and limitation of liabilities for traders providing for logistics services. The enactment of this Decree has “comprehensive coverage of logistics services, internal legislation of international commitments on logistics” as set out in the Action Plan for Enhancing Competitiveness and Developing Logistics Services up to the year 2025, promulgated under Decision No. 200 / QD-TTg dated February 14, 2107 (Decision 200) of the Prime Minister. This is a new step of the Government in the reform of the logistics services regulations relating to the logistics services industry on entering 2018, including specific regulations on investment in development of logistics services in Vietnam.

Decree 140/2007 (NĐ140) was issued to implement the commitments of Vietnam in the WTO on related logistics services after the National Assembly Resolution No.71/2006 /QH11 on November 29, 2006 ratifying the Protocol to accede to the Agreement Establishing the World Trade Organization (WTO) of the SRV. So far, after more than 10 years (2007-2017) over the commitment periods 2007-2012 (5 years) and 2014-2017 (7 years and 10 years), many provisions of those commitments have expired in terms of time and began the implementation as committed. Therefore, many provisions in Decree No140 are no longer appropriate and need to change. In addition, the deepening international integration of Vietnam, especially the implementation of the new FTA agreements, requires appropriate regulations to create favorable conditions for our country’s logistics services industry to develop, promoting domestic investment and international cooperation. The Decree is still subject to the Commercial Law 2005, pending the amendment and supplementation of this Law.

The Decree 163 applies to traders providing logistic services and organizations and individuals involved. Article 3 of Decree 163 lists the types of “logistics services provided” including 16 categories of services and a very open item 17: “Supply of other services shall be agreed upon by logistics service providers and their customers in accordance with the basic principles of the Commercial Law”.

The 17 logistics services include:

  • Container Handling Services, except services provided at airports,
  • Container Warehouse Services supporting Maritime Transport Services,
  • Storage and Warehouse Services under Services auxiliary to all Modes of Transport,
  • Delivery Services,
  • Freight Transport Agency Services,
  • Customs Brokers’ Services (including Customs Clearance Services),
  • Other services including the activities: Bill of Lading Auditing; Freight Brokerage Services, Freight Inspection, Weighing and Sampling Services; Freight Receiving and Acceptance Services; Transport Document Preparation Services,
  • Whole Sale and Retail Supporting Services including activities of freight storage control, consolidation, collection, sorting of freight and freight delivery,
  • Freight Transport Services under Maritime Transport,
  • Freight Transport Services under Inland Waterways Transport,
  • Freight Transport Services under Railways Transport,
  • Freight Transport Services under Road Transport,
  • Air Transport Services,
  • Multimodal Transport Services,
  • Technical Analysis and Inspection,
  • Other Services Auxiliary to Transport.
  • Other services to be agreed upon by logistics service traders and their customers in accordance with the basic principles of the Commercial Law.

Pipe line transport services are not mentioned, but Multi-modal transport services were covered.

     Conditions of logistics service operations

Article 4, item 1, of the Decree 163 provided that traders operate specific logistics services as mentioned above shall comply with conditions of investments and operations as provided for by law and regulations applied for such services.

Article 4, item 2, also provided that “Traders carry out part or all of the logistics operations by electronic means connected to the Internet, mobile telecommunication network or other open network” shall also comply with regulations on e-commerce in addition to satisfying the provisions of law and regulations for specific services as provided for in Article 3 of the present Decree.

     Specific conditions for foreign investors operating logistics services

Conditions for foreign investors to provide logistics services (Article 4, item 3) stated that in addition to “having to meet the conditions provided for in Item 1 and Item 2 of Article 4,  foreign investors belonging to countries and territories that are members of the World Trade Organization are allowed to provide related logistics services under the conditions specified as follows:

  1. In case of freight transportation services operation under maritime transport services less cabotage: – Foreign investors are allowed to establish registered companies for the purpose of operating a fleet under the national flag of Vietnam or to contribute capital, purchase a certain ration of shares and stakes in an enterprise with foreign capital contribution not exceeding 49% of the total legal capital. The total foreign seafarers working on board ships under the national flag of Vietnam (or registered in Vietnam) owned by joint ventures in Vietnam not exceeding 1/3 of the total employees of the ships.  The Master or the chief officer must be Vietnamese citizen.

– Foreign shipping companies are allowed to set up an enterprise or contribute capital, purchase a certain ration of shares and stakes in an enterprise.

  1. In case of container handling services operations under maritime transport auxiliary services (certain areas may be reserved for providing services or for licensing procedures in these areas), Foreign investors are allowed to set up an enterprise or to contribute capital, purchase a certain ration of shares and stakes in an enterprise with foreign capital contribution not exceeding 50% of the total legal capital. Foreign investors are also allowed to establish commercial presence in Vietnam in the form of business cooperation contracts.
  2. In case of container handling services operations under services auxiliary to all Modes of Transport, except for services provided at airports, foreign investors are allowed to set up an enterprise or to contribute capital, purchase a certain shares and stakes in an enterprise with foreign capital contribution not exceeding 50% of the total legal capital.
  3. In case of customs clearance services operations under services auxiliary to maritime transport, foreign investors are allowed to set up an enterprise or to contribute capital, purchase a certain shares and stakes in an enterprise with capital contribution by the domestic investors. Foreign investors are allowed to establish commercial presence in Vietnam in the form of business cooperation contracts.
  4. Other services operations including the following activities: Bill of Lading Auditing, Freight Brokerage Services, Freight Inspection, Weighing and Sampling Services, Freight Receiving and Acceptance Services; Transport Document Preparation Services, foreign investors are allowed to set up an enterprise or to contribute capital, purchase a certain shares and stakes in an enterprise with capital contribution by the domestic investors
  5. In case of operations of freight transport services under the inland waterways transport services and freight transport services under the railways transport services, foreign investors are allowed to set up an enterprise or to contribute capital, purchase a certain shares and stakes in an enterprise with foreign capital contribution not exceeding 49% of the total legal capital.
  6. In case of freight transport services operations under the road transport services, it shall be done through the form of a business co-operation contract or establishment of an enterprise or to contribute capital, purchase a certain shares and stakes in an enterprise with foreign capital contribution not exceeding 51% of the total legal capital. 100% drivers of the enterprise must be Vietnamese citizens.
  7. In case of air transport services operations, the provisions of Civil Aviation Law and Regulations shall apply.
  8. In case of technical analysis and inspection services operations:

– For services provided for the exercise of the Government’s authority, it shall be carried out in the form of enterprises having capital contributed by the domestic investors after three years or in the form of an enterprise in which there is no restriction on capital contribution by foreign investors after five years from the time when the private service supplier was permitted to operate such services.

– It is prohibited to provide inspection and certification services for vehicles.

-The provision of technical analysis and inspection services is restricted to geographical areas authorized by the competent authorities for security reasons.

– Decree 163 also stipulated the conditions that foreign investors subject to the application of international treaties having different provisions on logistics operating conditions, they are entitled to select to apply investment conditions provided for in one of such treaties.

In accordance with Decree 163, foreign investors now may invest in the form of commercial presence, representative office, business co-operation contract, joint venture, establishment of an enterprise or capital contribution, purchase of shares and stakes in an enterprise, of which the foreign capital contribution ratio is not more than 49%, 50% or 51%, or not limited depending on the type of logistics services operations as stated.

     Limitation of liability of logistics services providers

Article 5 of the Decree 163 provided for limitation of liability.

1. Limitation of liability is the maximum amounts that traders providing logistics services are liable to compensate their customers for any loss or damage arising or resulting from their carrying out the logistics services in accordance with the provisions of the present Decree.

2. In the event that relevant law and regulations provide for the limitation of liability of traders providing logistics services, the provisions of such relevant law and regulations shall be applicable.

3. Where relevant law and regulations do not provide for limitation of liability, the limit of liability of traders providing logistic services shall be agreed upon by the parties. In cases where the parties have no agreement, the following shall apply:

a) Where the value of the goods have not been declared by the customers before the goods have been taken in charge by the traders providing logistics services, the maximum limitation of liability shall be Vietnamese Dong 500 million per each claim.

b) Unless the value of the goods have been declared by the customers before the goods have been taken in charge and confirmed by the traders providing logistics services, the liability shall not exceed the value of the goods.

4. Limitation of liability for cases where the traders providing logistic services perform many stages of operations with different limitations of liability is the limitation of liability of the stage with the highest limit of liability.

It is hoped that the Decree 163 will be a great contributor to enhancing development of Vietnam’s logistics services industry in the process of international integration and economic growth of the country.

DESIGN BY KHL LOGISTICS LTD

COPYRIGHT © 2018

Đăng ký

1
Bạn cần hỗ trợ?