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.
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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
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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
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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.
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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
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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.
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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,
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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;
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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.
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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
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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
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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
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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
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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,
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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
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