Nghị định 163/2017/NĐ-CP quy định về kinh doanh dịch vụ logistics

DECREE

ON PROVISION OF LOGISTICS SERVICES

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Commerce dated June 14, 2005;

Pursuant to the Law on Investment dated November 26, 2014;

At the request of the Minister of Industry and Trade;

The Government hereby promulgates a Decree on provision of logistics services.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree deals with provision of logistics services and limitations on liability of logistics service providers.

Article 2. Regulated entities

This Decree applies to logistics service providers and relevant organizations and individuals.

Article 3. Classification of logistics services

Logistics services include:

1. Container handling services, except for services provided at airports.

2. Container warehousing services classified as auxiliary services for sea transport.

3. Warehousing services classified as all auxiliary services for multimodal transport.

4. Delivery services.

5. Freight transport agency services.

6. Customs brokerage services (including customs clearance services).

7. Other services including bill of lading inspection, cargo brokerage services, cargo inspection, sampling and weighing services; goods receipt and acceptance services; and preparation of transport documents.

8. Wholesaling auxiliary services and retailing auxiliary services including management of goods in storage, and collection, collation and classification of goods and their delivery.

9. Cargo transport services classified as sea transport services.

10. Cargo transport services classified as inland waterway transport services.

11. Cargo transport services classified as rail transport services.

12. Cargo transport services classified as road transport services.

13. Air carriage services.

14. Multimodal transport services.

15. Technical inspection and analysis services.

16. Other auxiliary services for transport.

17. Other services under the agreement signed between the logistics service provider and customer according to basic rules of the Law on Commerce.

Chapter II

CONDITIONS FOR PROVISION OF LOGISTICS SERVICES AND LIMITATIONS ON LIABILITY OF LOGISTICS SERVICE PROVIDERS

Article 4. Conditions for provision of logistics services

1. Providers of any of the logistics services specified in Article 3 of this Decree must satisfy conditions for provision of such services as prescribed by law.

2. Regarding the provider that provides part or whole of logistic services on the Internet, cellular network or other open networks, in addition to satisfying the conditions that are applied to the services specified in Article 3 of this Decree, such provider must comply with regulations on e-commerce.

3. Conditions to be satisfied by a foreign investor in provision of logistics services:

In addition to complying with the conditions and regulations specified in Clauses 1 and 2 of this Article, a foreign investor in the country or territory that is a World Trade Organization member may provide logistics services under the following conditions:

a) For cargo transport services classified as sea transport services (except for inland transport):

- The foreign investor may establish companies operating ships flying Vietnamese flag or contribute capital, purchase shares or stakes in another enterprise, provided the holding of the foreign investor in such company does not exceed 49%. Total number of foreign seafarers working on the ship flying Vietnamese flag (or registered in Vietnam) under the ownership of these companies in Vietnam shall not exceed 1/3 of the ship’s personnel. Captain or first mate must be a Vietnamese citizen.

- The foreign sea transport company may establish an enterprise or contribute capital, purchase shares or stakes in another enterprise.

b) For container handling services classified as auxiliary services for sea transport (some areas may be used exclusively for provision of services or procedures for issuance of licenses may be completed in these areas), the foreign investor may establish an enterprise or contribute capital, purchase shares or stakes in another enterprise, provided the holding of the foreign investor in such company does not exceed 50%. The foreign investor may establish a commercial presence in Vietnam under a business cooperation agreement.

c) For container handling services classified as auxiliary services for multimodal transport, except for services provided at airports, the foreign investor may establish an enterprise or contribute capital or purchase shares or stakes in another enterprise, provided the holding of the foreign investor in such company does not exceed 50%.

d) For customs clearance services classified as auxiliary services for sea transport, the foreign investor may establish an enterprise or contribute capital or purchase shares or stakes in another enterprise which is invested in by a domestic investor. The foreign investor may establish a commercial presence in Vietnam under a business cooperation agreement.

dd) For other services including bill of lading inspection, cargo brokerage, cargo inspection, sampling and weighing services; goods receipt and acceptance services; and preparation of transport documents, the foreign investor may establish an enterprise or contribute capital or purchase shares or stakes in another enterprise which is invested in by a domestic investor.

e) For cargo transport services classified as inland waterway transport services or cargo transport services classified as rail transport services, the foreign investor may establish an enterprise or contribute capital or purchase shares or stakes in another enterprise, provided the holding of the foreign investor in such company does not exceed 49%.

g) For cargo transport services classified as road transport services, the foreign investor may provide such services under a business cooperation agreement or establish an enterprise or contribute capital or purchase shares or stakes in another enterprise, provided the holding of the foreign investor in such company does not exceed 51%. All drivers of the enterprise must be Vietnamese citizens.

h) For air carriage services provided in contravention of regulations of the law on aviation.

i) For technical inspection and analysis services:

- Regarding the services provided to exercise authority of the Government, they may be provided by an enterprise which is invested in by a domestic investor after three years or by an enterprise in which foreign investment is not limited after five years from the date on which the private service provider is allowed to provide such services.

- It is not allowed to provide vehicle inspection services and issue certificates to such vehicles.

- The provision of technical analysis and inspection is limited in the areas determined by the competent authority for national defense and security reasons.

4. In case the foreign investor is regulated by international treaties containing different regulations on conditions for provision of logistics services, the foreign investor may select to apply investment conditions specified in one of such treaties.

Article 5. Limitations on liability

1. Limitations on liability are maximum liability assumed by logistics service providers for granting compensation to customers for losses incurred during the provision of logistic services in accordance with regulations of this Decree.

2. In case limitations on liability of logistics service providers are specified by a relevant law, such relevant law shall be complied with.

3. In case limitations on liability of logistics service providers are not specified by any law, such limitations shall be agreed upon by the parties. In case no agreement is made:

a) In case customer fails to give a prior notice of the value of cargoes, the maximum liability shall be 500 million dong for each claim for compensation.

b) In case customer gave a prior notice of the value of cargoes and this was verified by the logistics service provider, the liability shall not exceed such value.

4. In case a logistics service provider performs multiple tasks on which different limitations on liability are imposed, the highest limitation shall apply.

Chapter III

IMPLEMENTATION CLAUSE

Article 6. Transition clause

The logistics service provider that has been registered or licensed to provide logistics services before the effective date of this Decree may continue to provide services in accordance with the registration or license.

Article 7. Effect

1. This Decree comes into force from February 20, 2018.

2. The Decree No. 140/2007/ND-CP dated September 05, 2007 elaborating the Law on Commerce on conditions for provision of logistics services and limitations on liability of logistics service providers is null and void from the effective date of this Decree.

Article 8. Implementation

1. The Ministry of Industry and Trade is responsible for organizing the implementation of this Decree.

2. Ministers, heads of Governmental agencies, heads of Governmental agencies, People’s Committees of provinces and central-affiliated cities are responsible for the implementation of this Decree.