Tóm tắt Luận án The law on multimodal transport in the context of international intergration

Orientation and solutions to improve the law and enhance the efficiency of law enforcement on multimodal transport in Vietnam in condition of international integration. AN OVERVIEW OF THE RESEARCH SITUATION 1. An overview of the research situation in foreign countries and Vietnam The thesis made in general a presentation of scientific works published at home and abroad on: theoretical issues on multimodal 6 transport, legal theoretical issues on multimodal transport, legal status and practice of law enforcement on multimodal transport, orientation and solutions to improve the law and enhance the efficiency of law enforcement on multimodal transport. 2. Evaluation of the achieved research results and the raising issues required for further study and completion in the thesis 2.1. The achieved research results Through the process of studying scientific works published at home and abroad, the author has drawn some comments evaluating in general the achieved research results as follows: Firstly: The general theoretical issues of multimodal transport have been mentioned in many research projects about such contents as concepts, characteristics, roles, benefits of multimodal transport, and models of multimodal transport. Secondly: Legally, the said-above researches focus on the theoretical issues of multimodal transport contracts and responsibility in multimodal transport. However, there is not any research work introducing the legal concept of multimodal transport, the legal structure of multimodal transport and building a general theoretical system on this issue. Thirdly: Some studies have analyzed intensively the international legal provisions on the most basic issues such as: multimodal transport contracts, responsibility of the forwarders ... Besides, there are some studies in the laws of specific countries, regions, and applicable practices. There is not any project that refers to Vietnamese law in the foreign research projects, and it is the same for the domestic research projects, they studied inadequately and incomprehensively the law 7 and the real situation of law enforcement on multimodal transport in Vietnam. Finally: Regarding the proposal of solutions to the multimodal transport law in condition of international integration, there is not any research offering the solutions to perfect the law and improve the effectiveness of law enforcement on multimodal transport in Vietnam in condition of international integration. Thus, up to now, there is not any published studies at master’s and doctorate level, monograph books, comprehensive scientific topics of the multimodal transport law in Vietnam in condition of international integration. Therefore, the topic: “The law on multimodal transport in the context of international integration” does not overlap with any published scientific works as well as has made new scientific and practical contributions. 2.2. The raising issues required for further study and completion in the thesis The issues must be solved by the author to execute the topic: “The law on multimodal transport in the context of international integration” as follows: Firstly, researching the history of formation and development of multimodal transport and the multimodal transport law in Vietnam. Secondly, building up the legally theoretical system of multimodal transport. Thirdly, clarifying the advantages and disadvantages of multimodal transport laws and the practical application of the current legal provisions, in order to make an assessment on this matter in Vietnam. 8 Finally, proposing solutions to enhance the law and improve the application efficiency of legal provisions on multimodal transport as requested by the international integration process of Vietnam. 3. Rationale, research questions and hypotheses 3.1. Rationale To perform the thesis, the author has followed some typical theoretical bases such as: General theory of commodity transport; Marxist - Leninist theory of State and Law; contract theory; theory of state management to build theoretical system of multimodal transport and the multimodal transport law. In addition, the thesis is also made on the basis of the views, guidelines and policies of the Communist Party of Vietnam on economic development and international integration to propose orientations and solutions to in an attempt to establish and perfect the multimodal transport law in the condition of international integration. 3.2. Research questions and hypotheses - What is multimodal transport? What benefits does multimodal transport bring about to the economy? Research hypothesis: Multimodal transport is a form of commodity transportation by at least two modes of transport, under a contract, a freight document and one person in charge for all commodities. Multimodal transport can be conducted by many different models, consequently brings about great benefits for all parties involved in particular and for the whole society in general. - What is the multimodal transport law? What does the formal structure and contents of the multimodal transport law like? Research hypothesis: The Multimodal transport law includes overall legal provisions promulgated or recognized by the state that 9 govern the relationships arising in multimodal transport operations. The legal provisions on multimodal transport are shown in many different types of legal documents such as: international treaties, the legal documents promulgated by the countries. In addition, in some cases, international custom or case law are also used to regulate multimodal transport relationship. As a type of commodity transportation, therefore, the multimodal transport law is also a part of the law on commodity transportation. The legal content of multimodal transport will include groups of legal documents governing multimodal transport business conditions, regulating the relationship of multimodal transport entities, multimodal transport contracts, solving multimodal transport disputes, and regulations related to the State management on multimodal transport. - What are the shortcomings in the multimodal transport law and the law enforcement on multimodal transport in Vietnam? How should the multimodal transport law in Vietnam be improved and what solutions should be taken to enhance the effectiveness of law enforcement? Research hypotheses: The multimodal transport law has initially met the requirements of regulation with specific contents of multimodal transport, especially of the responsibilities of multimodal transport operators. Besides, there are still limitations and shortcomings. To meet the requirements of the international integration process, the multimodal transport law in Vietnam should be further amended and supplemented in the direction of ensuring consistency with the law on commodity transportation and logistics as well as of the entire legal system in general, as well as ensuring the compatibility with international law to enhance integration. 10 Chapter 1: THEORETICAL ISSUES ON MULTIMODAL TRANSPORT AND THE MULTIMODAL TRANSPORT LAW 1.1. Theoretical issues on multimodal transport 1.1.1. The beginning and development of multimodal transport The development of commodity trading and exchange induced the need for a fast and efficient transportation of goods. The history of multimodal transport was marked by the combination of at least two means of transport in a seamless journey from the late 20s and early 30s of the twentieth century. The container revolution in the 60s, the introduction of the cellular container vessels, Ro-Ro ships, gantry cranes ... spurred the growth of multimodal transport. In Vietnam, multimodal transport services were organized by a Vietnamese forwarding company for the first time namely Vietfracht in 1982. In recent years, the very rapid development of Vietnam's economy and significantly improved physical and technical facilities of the Transport sector have created a favorable condition for rapid development of this model transport in Vietnam. 1.1.2. The concept of multimodal transport According to the author, multimodal transport can be understood as follows: Multimodal transport is a form of transporting goods by at least two modes of transport, under a contract, a transport document and a person in charge for all goods. 1.1.3. Characteristics of multimodal transport Multimodal transport has the following basic characteristics in comparison with the traditional modes of commodity transport and logistics services, 11 Firstly, multimodal transport is the commodity transport with involvement of at least two different modes of transport. This is the basic difference of multimodal transport from monogamous transport and logistics. Secondly, the multimodal transport operator acts as the person responsible for organizing the entire transport operation and the core of the entire multimodal transport process. Thirdly, the entire process of commodity transport is based solely on a contract between the carrier and the consignor and shown in a single document of transport or a multimodal bill of lading. Fourthly, there is only one person responsible for the commodities before the consignor, that is the multimodal transport operator. Fifthly, the consignor must pay the multimodal transport operator the fixed freight or price determination principles agreed in a contract for all modes of commodity transport. Sixthly, multimodal transport has a wide range of operation with the participation of diverse modes of transport. 1.1.4. Multimodal transport models and its roles 1.1.4.1. Multi-modal transport models Multimodal transport can be conducted in many different models such as: Sea transport - air transport (Sea - Air), Road transport - Air transport (Road - Air), Railway transport - Road transport (Rail - Road), Railway/Road/Inland waterway transport - Sea transport (Rail/Road/Inland waterway - Sea), Land Bridge (Land Bridge) and some other models. 1.1.4.2 The role of multimodal transport in the economy The benefits of multimodal transport include: Creating a single contact of transportation; Reducing transportation costs and time; 12 Simplifying procedures and documents; creating a better condition to apply transport modes, paving the way for new transport services; contributing to environmental protection etc. Thanks to the fast and easy connection of the transport network, multimodal transport has played an increasingly important role in the economy, especially in the process of international integration. 1.2. Legal theoretical issues on multimodal transport 1.2.1. Legal concept of multimodal transport In the scope of the thesis, according to the author, the multimodal transport law includes overall legal provisions which have been promulgated or recognized by the State and guaranteed to be implemented and control the rising social relations in multimodal transport. 1.2.2. Formal structure and content of the multimodal transport law 1.2.2.1. Formal structure of the multimodal transport law Multimodal transport often operates beyond national borders. The formal structure of the multimodal transport law includes: International treaties on commodity transport, national law, international commercial practices, and case law. 1.2.2.2. Content structure of the multimodal transport law The content structure of the multimodal transport law is determined by grouping social relations subject to the law. In Vietnam, the content of the multimodal transport law includes: Legal provisions on business conditions; Provisions on the subject of multimodal transport relations; Legal provisions on multimodal transport contracts; Regulations on dispute settlement of multimodal transport. 13 1.2.3. The principles of the multimodal transport law Principles of multimodal transport law include: principles of ensuring freedom and equality in business; Principles of ensuring the interests of the parties involved in transport activities; Principles of ensuring proactive international trade integration. 1.2.4. Development of the Multimodal transport law in Vietnam 1.2.4.1. Period before 2003 Before the Government Decree No. 125/2003/NĐ-CP dated October 29, 2003 on multimodal transport was issued by Vietnam Government, multimodal transport business and legal framework on this issue was quite fragmented in Vietnam. 1.2.4.2. Period from 2003 to present In 2003, with the appearance of Decree No. 125/2003/NĐ-CP, the multimodal transport was directly adjusted for the first time by a legal document together with other general legal documents on commodity transport. 1.2.5. Factors affecting to the multimodal transport law in condition of international integration Factors affecting to the multimodal transport law include: State guidelines and policies on multimodal transportation development; Development of the multimodal transport market; Requirements of the international integration process; International laws and international practices on multimodal transport; Interaction between legal bodies. Chapter 2: EXISTING LEGAL STATUS AND PRACTICE OF LAW ENFORCEMENT ON MULTIMODAL TRANSPORT IN VIETNAM 14 2.1. Legal status of multimodal transport 2.1.1. Legal status of multimodal transport business conditions In Vietnamese law, multimodal transport is divided into domestic and international multimodal transports and must meet different conditions. The multimodal transport business conditions in Vietnam can be assessed in general as follow: Firstly, Vietnam's regulations on multimodal transport business are basically similar to international laws and the laws of regional countries. Secondly, the conditions for licensing multimodal transport business in Vietnam are simpler than those in many countries by only requesting assets and professional liability insurance for multimodal transport business in orientation of ensuring the financial capacity of a multimodal transport operator. 2.1.2. Legal status of subject relations in multimodal transport 2.1.2.1. Consignor The use of the concept of consignor in the Vietnamese multimodal transport law is consistent with the concept of consignor in international treaties and the laws of other countries on multimodal transport. However, in comparison with the provisions of the Civil Code 2015 on property transport contracts and the current legal documents on unilateral transport, it is easy to cause confusion in application. 2.1.2.2. The multimodal transport operator and the actual carrier Provisions of Vietnamese law on the multimodal transport operator show that: 15 Firstly, Vietnamese law is quite similar to the laws of regional countries in terms of recognizing the participant contract as a multimodal transport operator. However, there is different in terms of business scope. Vietnamese laws divide the multimodal transport into domestic and international multimodal ones and apply different conditions for corresponding multimodal transport operators and those are not shown in the law of majority countries. Secondly, although the term “carrier” in Decree No. 87/2009/ND- CP was used consistently with that in ASEAN Framework Agreement on multimodal transport and in the laws of some countries in the region, but it is not equivalent to the provisions of legal documents on unilateral transport such as the 2006 Civil Aviation Law (amended), the 2015 Maritime Code. 2.1.2.3. Consignee Under the provisions of Decree No. 87/2009/ND-CP, the consignee is an organization or individual entitled to receive goods from a multimodal transport operator. However, the identification of consignee in the multimodal transport legislation is rather fuzzy. Provisions on multimodal transport documents also do not specify clearly the delivery of goods in association with multimodal transport documents. 2.1.3. Existing legal status of multimodal transport contracts To regulate the multimodal transport contract relationship, Vietnamese laws set out specific provisions governing the following matters: 2.1.3.1. Regarding to the multimodal transport contract subject In a multimodal transport contract relationship, the subject of a multimodal transport contract includes the consignor and the 16 multimodal transport operator (as described in sections 2.1.2.1 and 2.1.2.2). 2.1.3.2. Regarding to the object of the multimodal transport contract The object of a multimodal transport contract is different than that of other model in that the multimodal transport operator does not only perform the transport but also takes responsible for organizing the entire transportation process of two or more transportation modes. The commodities which are referred to in the multimodal transport are often defined in a wide range, including the items used to store and pack for the transportation. 2.1.3.3. Regarding to the content and form of multimodal transport contract a. Content of multimodal transport contract The contract content includes overall rights and obligations of the parties in the contract. In the multimodal transport law, this content is expressed through the provisions on the obligations and responsibilities of the consignor and the multimodal transport operator. b. Regarding to the form of multimodal transport contract The Decree No. 87/2009/ND-CP has made a significant step forward when it does not require a form of contract, and removes the provisions on the compulsory form of multimodal transport contract. 2.1.3.4. Regulations on multimodal transport documents Regulations on multimodal transport documents in Vietnamese law are built on the basis of the general provisions of the UNCITAD/ICC Rules on international multimodal transport documents, in accordance 17 with the ASEAN Framework Agreement on multimodal transport and the regulations of the countries in the region. 2.1.4. Legal status of the law on dispute settlement 2.1.4.1. Scope of complaints and lawsuits The provisions of Vietnam on the scope of complaints and lawsuits in the multimodal transport law of Vietnam are satisfactory with international laws and regulations on scope of liability of a multimodal transport operator. 2.1.4.2. Term, statute of limitations Some issues arise from these regulations in comparison with current legal provisions on dispute settlement as follows: About the term for complaints: Firstly, Decree No. 87/2009/ND-CP does not discriminate the time period for complaints for cases of complaints about quality and quantity of goods. Secondly, in cases where a logistics service trader participates in multimodal transport as a multimodal transport operator, the complaint period will be applied according to Decree No. 87/2009/ND-CP. Thirdly, Decree No. 87/2009/ND-CP does not refer to the issue that if the complaint period is passed, the affected party shall lose the right to initiate a lawsuit at an arbitration or a competent court. It means that failure to make a claim will not affect the rights of the affected party to sue. Regarding to the statute of limitations for lawsuits: The statute of limitations for initiation of lawsuits appliable for a multimodal transport dispute is 9 months from the date which the commodities have been delivered to the consignee as provided in 18 Clause 3, Article 20 or after the date which the commodities were supposed to be delivered as specified in the multimodal transport contract or after the date specified at Point b, Clause 1, Article 21 of Decree No. 87/2009/ND-CP. The limitation of this provision is that the short statute of limitations basically leads to the limitation of the right to sue when multimodal transport disputes occur. 2.1.4.3. Regarding to the dispute settlement method The dispute settlement of multimodal transport shall be resolved only through three methods: negotiation between the parties, arbitration or court in accordance with the law. This provision does not only contradict to the 2005 Commercial Law, but also affects the parties' right to choose the form and method of dispute settlement in multimodal transport relations as well as against the policy of developing commercial mediation in Vietnam. 2.2. Practice of law enforcement on multimodal transport 2.2.1. Achievements in enforcement of the multimodal transport law Along with completing the legal framework for multimodal transport, the implementation of legal provisions on multimodal transport has also achieved remarkable results as shown through a number of aspects: Firstly, the administrative procedures are gradually simplified, create favorable conditions for entities participating in multimodal transport operation. Second, the investment and business environment are improved and ensure equal competition in multimodal transport operation. The aforementioned achievements of Vietnam have shown Vietnam's efforts in implementing international commitments, 19 especially Free Trade Agreements of the new generation in eliminating non-tariff barriers, facilitating international trade. 2.2.2. Limitations, shortcomings and causes Laws and practice of implementing the multimodal transport law in recent years have also revealed many limitations and shortcomings. Firstly, in the implementation of regulations on business conditions. By removing the regulation on business conditions for domestic multimodal transport and replacing with the provisions that the operator of different modes of transport participating in multimodal transport must satisfy the business conditions in accordance with the law for each mode of transport. Therefore, it is difficult to determine when an enterprise participates as a multimodal transport operator, the relationship is established as a multimodal transport or conventional transport combination to perform the State management for this activity. The reason is that there is not a clear distinction between multimodal transport services with logistics and conventional transport, thus cause confusion between transportation, forwarding, loading and unloading services, and multimodal transport, etc. and logistics services. Secondly, in terms of business registration procedures. It is requested to do business registrations for specific industries, the multimodal transport operator must meet the conditions for those specific commodity transport. This creates many layers of business conditions, becomes a burden causing difficulties for business entities. Thirdly, the division of multimodal transport into domestic multimodal transport and international multimodal transport is not 20 suitable and cause disadvantages to domestic multimodal transport businesses. Because the law does not have specific provisions for these activities, the purpose of facilitating the development of domestic multimodal transport has not achieved, and there exists inappropriate regulations exist applicable to both domestic multimodal transport and international multimodal transport. This division also leads to disadvantages for domestic enterprises themselves in applying some policies, not does not ensure the equality in business between domestic and foreign enterprises. Fourth, in implementation of the legal provisions on multimodal transport contracts and dispute resolutions. Although the subject of a multimodal transport contract is the organization of commodity carriage by at least two modes, however the related parties do not always establish this type of contract. The fact that the parties do not properly name the relationship in establishing a contract makes it difficult to correctly identify a established contractual relationship. The established relationship which is determined as a multimodal transport contract or other contract types shall lead to the application of the law to settle contractual disputes. In resolving commodity carriage disputes, it is seldom to find out multimodal transport disputes that are resolved by the proceedings. One of the reasons for this phenomenon is that the concept of "logistics services" stipulated in Vietnamese law also includes multimodal transport. The next reason is that in commodity transport relations in particular and business and commercial contracts in Vietnam in gener