The Bill on Vietnam Civil Aviation has been designed to form a complete legal framework for the country’s aviation sector in the context of global economic integration. It was presented last year to the National Assembly (NA) for comments. In mid-February it was again put up for discussion at a meeting of full-time deputies of the NA. It is expected to be passed into law at the upcoming NA session.
New provisions of the Bill
As compared with the existing Civil Aviation Law, which was passed in 1991 and amended in 1995, the Bill contains a wealth of new provisions, especially those on state management over civil aviation activities, socialization of the aviation domain, and obligations of carriers.
According to drafters, the Bill has been designed in the direction of separating state management functions from business activities.
Under the Bill, existing airport authorities would be divided into two different entities, i.e., new airport authorities and airport enterprises. New airport authorities would perform specialized state management over civil aviation activities at airports and, together with other state management agencies, ensure safety and security in the operation of airports. Meanwhile, business activities at airports would be carried out by airport enterprises and other business entities as prescribed by law.
In order to avoid an overlap between state management and business activities in flight control, the Bill proposes that the existing civil flight control agencies, which both provide flight control services and perform the state management of flights, would be transformed into state enterprises providing flight control services (public-utility services), including air traffic services and flight support services. Meanwhile, the state management of flights would be performed by state management agencies.
Regarding the socialization of civil aviation activities, the Bill allows all economic sectors to take part in the aviation domain, saying that all organizations and individuals are encouraged to invest in airport development, set up new carriers or provide different aviation services, provided that they satisfy certain conditions. It also permits the establishment of joint-venture airlines between Vietnamese and foreign parties with the ratio of capital contribution by foreign parties to be decided by the Prime Minister.
In addition, in order to encourage fair competition and restrict monopoly in the aviation domain, the Bill abolishes the preferences for the Vietnam Airlines defined in Article 56 of the current Civil Aviation Law. Instead, it sets forth the principles of publicity and transparency in the grant of rights to air transport and assigns the Transport Ministry to arrange arrival and departure schedules at airports.
Responsibilities of carriers towards passengers are also clearly identified in the Bill, especially in case of flight delays or cancellations. Article 126 of the Bill offers different levels of compensation, ranging from free meals, accommodation, refund of fares or cash compensation.
Some debatable issues
Regarding the governing scope of the Law, Article 1 of the Bill says: “This Law provides for civil aviation activities, covering aircrafts, airports, airfields, air personnel, management of flying activities, air transport, aviation security, civil liability, general aviation and other activities related to civil aviation.”
There are opinions that as air transport constitutes the most principal activity in the aviation domain, the phrase “civil aviation activities” should be replaced with “air transport activities.”
However, others hold that apart from air transport, the Bill governs other issues and, therefore, such a replacement would narrow the governing scope of the law.
As for rights over aircrafts, some want to see specific provisions on rights over aircrafts, arguing that although the Bill provides for a number of rights over aircrafts, it still fails to specify all these rights. Others say that it is unnecessary to include too specific provisions on rights over aircrafts in the Bill because the Civil Code already completely and comprehensively govern property rights, from ownership rights, right of possession, and rights to mortgage and pledge. In addition, as a specialized law, the Civil Aviation Law should deal with only issues of distinct nature such as registration of rights over aircrafts, forms of transfer of ownership rights, rights of enterprises assigned by the State to manage and exploit aircrafts while general issues should comply with the Civil Code and relevant legal documents. Other matters related to the procedures and order for registration of rights over aircrafts and registration of priority rights in payment of remuneration for salvage or maintenance of aircrafts would be stipulated by the Transport Minister.
Regarding management of land and infrastructure at airports, there have been two types of opinions.
According to the first type of opinions, airports and airfields are comprehensive complexes designed to serve air transport, therefore, in order to ensure safety, security and efficiency of operation of airport as well as coordination of activities of specialized state management agencies at airports, land and infrastructure at airports would be placed under the management of a single agency. Holders of these opinions suggest a mechanism whereby People’s Committees of provinces and centrally-run cities where exist airports would allot land to airport authorities for subsequent allotment to enterprises operating in airports according to approved plannings.
Experts of the second type of opinions hold that airport authorities, in their capacity as agencies performing specialized state management over civil aviation at airports, would be allotted land only for construction of their working offices and non-business works under Article 88 of the Land Law but not for re-allocation to organizations and individuals for business purposes. Therefore, only airport enterprises should be allotted land at airports for construction of production and business establishments. Furthermore, according to the Bill, airport enterprises should not necessarily be state enterprises, but may be those set up by organizations and individuals of all economic sectors, so the State cannot interfere into their land use and management.
As for policies on civil aviation development, some say that provisions on this matter remain too general. Others hold that these provisions constitute the most general principles on the state guarantee for legitimate rights and interests of organizations and individuals of all economic sectors that participate in civil aviation domain. Detailed provisions would be made in legal documents on investment and enterprises.
Basic contents of the Civil Aviation Bill
The latest draft of the Civil Aviation Law consists of 10 chapters with 195 articles.
Chapter I (Articles 1 thru 11) – General provisions – provides for the governing scope, subjects of application, principles of civil aviation activities, policies on civil aviation development, environmental protection in civil aviation activities, application of laws, principles for application of laws upon legal disputes, state management over civil aviation, aviation inspectorate, aviation service charges, fees and freights, and prohibited acts.
Chapter II (Articles 12 thru 47) - Aircrafts - consists of seven sections.
Section 1: Nationality of aircrafts.
Section 2: Criteria for flights.
Section 3: Exploitation of aircrafts.
Section 4: Rights over aircrafts.
Section 5: Hire and charter of aircrafts.
Section 6: Import and export of aircrafts as well as engines, propellers and spare parts thereof.
Section 7: Suspension of flights, detention and temporary detention of aircrafts.
Chapter III (Articles 48 thru 65) - Airports and airfields -consists of four sections.
Section 1: General provisions.
Section 2: Plannings on, and investment in, the construction of airports and airfields.
Section 3: State management at airports and airfields.
Section 4: Operation of airports and airfields.
Chapter IV (Articles 66 thru 75) - Aviation personnel - is divided into two sections.
Section 1: General provisions.
Section 2: Flight crew.
Chapter V (Articles 76 thru 102) - Flying activities - comprises four sections.
Section 1: Management of flying activities.
Section 2: Flight control services.
Section 3: Search and rescue.
Section 4: Investigation into aircraft incidents and accidents.
Chapter VI (Articles 103 thru 152) - Air transport - consists of six sections.
Section 1: Vietnamese air carriers.
Section 2: Exploitation of air transport.
Section 3: Cargo transport.
Section 4: Passenger and baggage transport
Section 5: Contractual transport and actual transport.
Section 6: Special cargo transport.
Chapter VII (Articles 153 thru 182) - Civil liability - is divided into three sections.
Section 1: Liability of carriers.
Section 2: Liability for compensation for damage caused to a third party on ground.
Section 3: Liability for compensation for damage when aircrafts crash or obstruct one another.
Chapter VIII (Articles 183 thru 190) - Aviation security.
Chapter IX (Articles 190 thru 194) - General aviation.
Chapter X (Article 195) - Implementation provisions.-