On 10 September 2014, the Government issued Decree No.
86/2014/ND-CP setting out conditions on transportation business
(Decree 86) that automotive vehicles with designed capacity of 10
tones and above and from 7-10 tones must bear badges (the Badges).
On 7 November 2014, the Ministry of Transportation and
Communications (MT) issued Circular No. 63/2014/TT-BGTVT guiding
Decree 86 (Circular 63), which requires that only enterprises
having the Certificate of doing transport business by automotive
vehicles can apply for the Badges.
However, according to Vietnam's WTO Schedule of Specific
Commitments in Services, foreign contribution in a joint venture
doing transportation services must not exceed 49% of the total
charter capital of that joint venture. Accordingly, enterprises
with more than 51% foreign ownership do not have transportation
business in their investment certificates, resulting in the
impossibility to obtain the Certificate of doing transport business
by automotive vehicles. This further leads to the fact that these
enterprises will neither be able to apply for the Badges.
Moreover, Decree 86 creates the concept of 'transport business
with indirect money collection' which is defined as 'the
transport business by automotive vehicles, in which the transport
business units perform the transport phase and perform at least
another phase in the process from production to consumption of
products or services and collect freight through revenues from such
products or services' (Article 3.3). Circular 63 further
requires trucks used by companies that carry out the transport
business with indirect money collection to affix the Badges thereon
when in traffic.
It is noted that some enterprises, considering their business
nature, have to invest in specialized means of transportation to
transport their own products between their locations and to their
customers in Vietnam (for example, industrial gas products).
Examples would be road tankers, special trailers and tube trailer,
etc. that must be imported because their special designs make them
impossible to be produced in Vietnam. Given high technical safety
standards of international level, it is nearly impossible/very
difficult for enterprises to rent these special vehicles in Vietnam
while relying on the same standards.
It does also not make any business and legal sense if a
manufacturing foreign invested enterprise which is allowed to
import means of transport for its operations to serve its
production activities is forced to register for professional
transportation business or outsource this internal job to a
professional business transportation company. In fact, thousands of
other foreign invested enterprises have been long granted with the
right to import means of transportation without any requirement on
transportation business until the adoption of Decree 86.
Considering the abovementioned difficulties of enterprises with
more than 49% foreign ownership doing business in crude oil
products with special characteristics, the Ministry of Transport
has proposed to the Government to consider the issuance of the
Badges for vehicles of these enterprises without requiring the
Certificate of doing transport business by automotive vehicles, and
at the same time consider the amendment of Decree 86.
Consequently on 30 March 2016, the Prime Minister issued Resolution
No. 23/NQ-CP which clearly states that in the short term, the
Government allows the Ministry of Transport to issue the Badges to
commodity carrying trucks of foreign invested enterprises with 49%
foreign ownership or more for the purpose of the main production
and business of these companies. For the next step, the Ministry of
Transportation is responsible for incorporating the same
regulations in the amendments of Decree 86. This has basically
solved difficulties resulting from Decree 86 for enterprises with
49% foreign ownership or more.
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