Trade remedies in Vietnam
According to the Article 67 of the Law on Foreign Trade Management No. 05/2017/QH14 dated 12 June 2017 (“Law No.05”), trade remedies include: (i) Anti-dumping measure; (ii) Countervailing measure; (iii) Safeguard measure that are imposed on imports into Vietnam by the Minister of Industry and Trade in each specific case.
Table of contents:
I. Legal grounds:
- Law on Foreign Trade Management No. 05/2017/QH14 dated 12 June 2017;
- Decree No. 10/2018/ND-CP dated 15 January 2018 on guidelines for the Law on Foreign Trade Management on Trade Remedies;
- Circular No. 37/2019/TT-BTC dated 29 November 2019 provides detailed Regulations on Trade Remedies.
II. Trade Remedies in Vietnam
Anti-dumping is a measure imposed on products that are dumped when being imported to Vietnam, which causes material injury or threatens to cause material injury to domestic industry or retard the establishment of the domestic industry.
Anti-dumping measures include:
a) Imposition of anti-dumping duty;
b) Undertakings to implement measures for removing the dumping carried out by organizations and individuals producing and exporting products subject to the anti-dumping measures with the investigating authority of Vietnam or domestic producers in case of the approval of the investigating authority.
The countervailing measure is a measure imposed on products that are subsidized when being imported to Vietnam, which causes material injury or threat of material injury to the domestic industry or retards the establishment of the domestic industry.
Countervailing measures include:
a) The imposition of countervailing duties
b) The undertakings between the producer or exporter or the Government thereof and the competent authority of Vietnam on the voluntary removal or reduction of subsidies or price undertakings;
c) Other countervailing measures.
Safeguard measures is measure imposed on increased imports of particular products to Vietnam, which causes serious injury or threat of serious injury to the domestic industry.
Safeguard measures include:
a) Imposition of safeguard duties;
b) Imposition of import quotas;
c) Imposition of tariff-rate quotas;
d) Issuance of import license;
e) Other safeguard measures.
III. Principles for the imposition of trade remedies
1. The trade remedies shall only be imposed within the reasonable scope and level for a certain period of time to protect domestic industry and prevent or limit injury to it.
2. The trade remedies shall only be imposed after the investigation is carried out transparently and fairly in accordance with regulations of law and based on determinations of the investigation.
3. Decisions on the investigation and the imposition of trade remedies shall be published.
4. If the duty rate of an official trade remedy is higher than those of a provisional trade remedy, the difference in duty will not be collected.
5. If the duty rate of an official trade remedy is lower than those of the provisional trade remedy, the difference in duty will be returned.
6. If the Minister of Industry and Trade does not impose an official trade remedy, the duty of provisional trade remedy that has been collected or the amount for ensuring the payment of temporary trade remedy duties shall be returned.
IV. Injury to the domestic industry
1. Domestic industry refers to the producers as a whole of the like products within the territory of Vietnam or those whose collective output of the like products constitutes a major proportion of domestic production of those products. If a domestic producer directly imports a product under consideration or is related to exporters or importers of the product under consideration, this producer will not be considered a domestic producer.
“like product” refers to a product alike in all aspects to the product under consideration, or, in the absence of such a product, another product which, though not alike in all respects, has characteristics closely resembling those of the product under consideration.
2. The injury to domestic industry shall be determined as follows:
a) Material injury to the domestic industry means a material impairment in or the inhibition of the growth of production and business activities of domestic industry;
b) Threat of material injury to the domestic industry means a situation in which the material injury to the domestic industry is clearly imminent.
c) Material retardation of the establishment of a domestic industry is a situation that creates difficulty in establishing a domestic industry;
d) Serious injury means a significant overall impairment in the position of a domestic industry;
dd) Threat of serious injury to the domestic industry means a situation in which serious injury to the domestic industry is clearly imminent.
V. Procedures for trade remedy investigations
1. An organization or individual representing a domestic industry may submit a request for applying the trade remedy if it is found that the domestic industry is injured caused by dumping on imports, import subsidies or a surge in imports.
2. Within 45 days from the day on which the valid application is notified, the Minister of Industry and Trade shall decide whether the investigation is conducted according to the authority investigating trade remedies (hereinafter referred to as “investigating authority”). In some cases, the time limit for the issuance of a decision may receive a possible extension of up to 30 days.
3. The time limit for the investigation is specified as follows:
a) Anti-dumping and countervailing investigations shall be completed in 12 months from the day on which the decision on an investigation is issued. In some special cases, the Minister of Industry and Trade may extend the time limit for investigation but the total time limit shall be 18 months;
b) The safeguard investigation shall be completed in 09 months from the day on which the decision on the investigation is issued. In some special cases, the Minister of Industry and Trade may extend the time limit for investigation but the total time limit shall be 12 months;
4. The consultation during the investigation shall be carried out as follows:
a) During the investigation, interested parties of the investigated case (hereinafter referred to as “interested party”) may send the investigating authority the information and opinions related to the cases in writing;
b) The inspecting authority shall give an opportunity to interested parties for consultation in case of the written request as prescribed in Point a of this Clause;
c) Before the final determination of the investigation is disclosed, the investigating authority can organize the public consultation in a manner that interested parties can present information and opinions related to the case.
5. The responsibility for the notification is specified as follows:
a) Within 15 days from the day on which the Minister of Industry and Trade issues the decision on anti-dumping or countervailing investigation, the investigating authority shall notify the Governments of the countries of relevant producers and exporters and other interested parties of the investigation;
b) The investigating authority shall give public notice of the investigation's preliminary determination and final determination, the acceptance of price undertakings and the termination of the investigation to interested parties.
c) The investigating authority shall fulfill other notification obligations according to regulations of international treaties to which the Socialist Republic of Vietnam is a signatory;
VI. Termination of trade remedy investigations
The Minister of Industry and Trade shall decide to terminate the investigation in the following cases:
1. The applicant voluntarily withdraws the application;
2. The preliminary determination of the investigating authority shows that there is no injury or threat of injury to the domestic industry or material retardation of establishment of the domestic industry;
3. The final determination of the investigating authority obtains one of the following contents:
a) The product under consideration imported to Vietnam is not dumped, subsidized, or imported excessively;
b) There is no injury to the domestic industry prescribed in Clause 2 of Article 69 of this Law;
c) There is no objective evidence of the existence of a causal link between the dumping on imports, import subsidies, and the surge of imports and the injury or threat of injury to domestic industry or the material retardation of the establishment of the domestic industry;
4. The investigating authority reaches an agreement with the competent authority of the country, which is accused of granting subsidies to its products imported to Vietnam on removing the abovementioned subsidies.
VII. Prevention of the evasion of trade remedies
1. Evasion of trade remedies means actions aiming to evade partial or total obligations to enforce the valid trade remedy imposed on products subject to these measures when being imported to Vietnam.
2. The trade remedy being imposed will be expanded if the investigating authority discovers the evasion of the trade remedy.
3. The investigating authority can investigate the evasion of trade remedies at the requests of domestic industry representatives or the information collected by the investigating authority.
4. According to the determination of the investigating authority, the Minister of Industry and Trade shall issue a decision on preventing the evasion of trade remedies applied to products or parts of products imported from relevant countries under consideration.
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