THE GOVERNMENT
------- |
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness ---------- |
No. 140/2007/ND-CP
|
Hanoi, September
05, 2007
|
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;
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;
(e) 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 |