Decree No. 86/2025/ND-CP dated April 11, 2025 on elaboration of Law on foreign trade management regarding trade remedies
|
THE GOVERNMENT OF VIETNAM |
SOCIALIST REPUBLIC OF VIETNAM |
|
No. 86/2025/ND-CP |
Hanoi, April 11, 2025 |
DECREE
ELABORATION OF LAW ON FOREIGN TRADE MANAGEMENT REGARDING TRADE REMEDIES
Pursuant to the Law on Government Organization dated February 18, 2025;
Pursuant to the Law on Foreign Trade Management dated June 12, 2017;
At the request of the Minister of Industry and Trade;
The Government promulgates Decree on elaboration of Law on Foreign Trade Management regarding trade remedies.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Decree elaborates some articles of the Law on Foreign Trade Management regarding method for determination of the injury to domestic industry; prevention of evasion of trade remedies; bases for investigation, procedures, time limit, contents and bases for termination of trade remedy investigation (hereinafter referred to as “investigation”); application and review of trade remedies; determination of subsidies and anti-subsidy measures; responsibilities of relevant authorities for cooperation in investigation; and handling of trade remedies applied to the Vietnamese exports.
Article 2. Regulated entities
1. Regulatory bodies competent to conduct investigation, apply and handle trade remedies.
2. Vietnamese and foreign traders, other domestic and foreign authorities, organizations and individuals relevant to investigation, application and handling of trade remedies.
Article 3. Definition of terms
1. “Evidence” refers to factual things which are used by an investigating authority to serve as a basis for determination of a trade remedy case to be handled.
2. “Trade remedy cases” include anti-dumping cases, anti-subsidy cases, safeguard cases and cases where measures against evasion of trade remedies are taken regarding goods imported into Vietnam.
3. “Requesting party” refers to an organization or individual acting as a legal representative of a domestic industry and submitting a request for application of trade remedies or measures against evasion of trade remedies.
4. “Accused party” refers to a foreign organization or individual producing or exporting goods against whom the requesting party submits a request for investigation for application of trade remedies or measures against evasion of trade remedies or investigated by the investigating authority under a decision issued by the Minister of Industry and Trade.
5. “Investigation period” refers to a period of time determined by the investigating authority for collection of information, evidence and data serving the investigation into each trade remedy case
6. “Initial investigation period" refers to a proposed period of trade remedy application.
7. “Consultation” refers to an act of exchanging or giving opinions about cases with/to the investigating authority by relevant parties as per law.
8. “New exporter” refers to a producer or exporter of an exporting country/territory that is subject to an anti-dumping or anti-subsidy measure or a measure against evasion of trade remedies, has not yet been reviewed and meets the following conditions:
a) Do not export goods undergoing investigation to Vietnam during the initial investigation period;
b) Do not have relationship with other producers or exporters subject to anti-dumping/anti-subsidy measures or measures against evasion of trade remedies according to clause 5 of this Decree;
c) Export goods to which anti-dumping/anti-subsidy measures or measures against evasion of trade remedies are applied to Vietnam after the initial investigation period.
9. “Directly competitive goods” refer to goods that can be accepted by buyers as substitutes for the goods undergoing investigation.
Article 4. Determination of domestic industry
1. Domestic industry shall be determined according to clause 1 Article 69 of the Law on Foreign Trade Management.
2. It will be determined that the good constitutes a major proportion of the total domestic production of that good in accordance with clause 1 Article 69 of the Law on Foreign Trade Management in the following cases:
a) Regarding anti-dumping/anti-subsidy cases, the volume and quantity of the produced good account for at least 50% of the total quantity and volume of the domestically produced good similar to the good undergoing investigation;
b) Regarding safeguard cases, the volume and quantity of the produced good account for at least 50% of the total quantity and volume of the domestically produced good similar to or directly competitive with the good undergoing investigation.
3. The investigating authority may consider a lower proportion specified in clause 2 of this Article if there is evidence that such proportion is sufficient to constitute a major proportion of the total domestic production.
4. Regarding anti-dumping anti-dumping/anti-subsidy cases, any producer in a specific geographic market within the Vietnam territory may be treated as a domestic industry if the following conditions are satisfied:
a) They sell all or almost all goods they can produce in the market;
b) The needs of the geographic market are not considerably satisfied by producers of similar domestic goods in other geographic markets.
If it is determined that there is any dumping or subsidy-related act that only occurs in such geographic market and causes injuries to all or almost all producers in such market, the investigating authority can still determine such injuries even when similar domestic producers in other geographic markets do not suffer from injuries.
Article 5. Determination of relationship between producers of similar goods and organizations and individuals importing/exporting goods undergoing investigation for application of trade remedies
1. A producer of similar goods is considered relevant to an organization/individual importing/exporting goods undergoing investigation for application of trade remedies in accordance with clause 1 Article 69 of the Law on Foreign Trade Management in the following cases:
a) This party directly or indirectly controls the other party;
b) Both parties are directly or indirectly controlled by a third party;
c) Both parties directly or indirectly control a third party.
2. A party may be deemed to control another party when that party has the right to legally govern financial policies and operations of the other party in one of the following cases:
a) Parent company with subsidiary and vice versa; subsidiaries of a parent company; managers and members of the Board of Controllers of a parent company, individual or organization competent to appoint these persons with a subsidiary and vice versa;
b) Company with its managers, or members of the Board of Controllers, or with company or organization competent to appoint these persons and vice versa;
c) Company with organization or individual that owns at least 5% or more of the charter capital or voting share capital of that company and vice versa;
d) Individual with his/her spouse, natural father/mother, father-in-law, mother-in-law, legal caretakers, natural/foster child, sibling; half-sibling specified in points b and c of this clause;
d) Individual authorized to act as a representative of the organization or individual specified in points a,b,c and d of this clause;
e) Individuals authorized to act as representatives of stakes of an institution.
Article 6. Settlement of overpaid safeguard duties
1. Overpaid safeguard duties shall be handled according to regulations in clause 5 and clause 6 Article 68 of the Law on Foreign Trade Management.
2. Overpaid safeguard duties specified in clause 1 of this Article will not accrue any interest.
3. Procedures for settlement of overpaid safeguard duties shall be followed in similar way to those of import duties according to the law on tax administration.
Article 7. Request receipt forms and methods of determining duration, time limit and time for handling of trade remedy cases
1. Requests for investigation, application and review of trade remedies or measures against evasion of trade remedies and questionnaires prepared by to investigation authorities may be received online or in person.
2. Methods of determining duration, time limit and time for handling of trade remedy cases shall comply with the civil law.
Article 8. Rights and obligations of the requesting party and the accused party to trade remedy case
1. The requesting party or the accused party has the following rights:
a) Access information provided by other relevant parities for an investigating authority, except for confidential information according to regulations;
b) Give opinions about draft conclusions investigation and review of application of trade remedies or measures against evasion of trade remedies within 07 days from the date on which the investigating authority sends such draft conclusions to seek opinions;
c) Request the investigating authority to extend the time limit for provision of information and the time limit for response to the questionnaire;
d) Request the confidentiality of information as per law;
dd) Participate in consultation and present viewpoints, provide evidence and documents related to the trade remedy case;
e) Authorize another party on their behalf to participate in the handling of the trade remedy case;
g) Request the investing authority to hold a separate consultation as prescribed in clause 1 Article 14 hereof;
h) File complaints about or lawsuits against decisions issued by the Minister of Industry and Trade according to laws on complaints about and lawsuits against administrative decisions.
2. The requesting party or the accused party has the following obligations:
a) Sufficiently, truthfully and accurately provide evidence, information and documents;
b) Sufficiently, truthfully and accurately provide evidence, information and documents as requested by the investigating authority within the prescribed time limit;
c) Execute decisions of the Minister of Industry and Trade.
Article 9. Non-cooperation in a trade remedy case
1. Non-cooperation during the investigation/review of a trade remedy case means a case where the parties:
a) refuse to allow the investigating authority to conduct on-site investigation as requested;
b) refuse to allow the investigating authority to access information and documents as requested;
c) refuse to provide information and documents or insufficiently provide information and documents at the request of the investigating authority within the prescribed time limit;
d) Provide misleading or false information and documents as identified by the investigating authority.
2. Regarding a case undergoing investigation and review of application of the anti-dumping measure, in case information and documents provided by the relevant parties are not accepted, the investigating authority shall notify the parties providing such information and documents and request them to offer explanations within a certain duration. If the parties providing such information and documents fail to offer explanations or their explanations are not accepted by the investigating authority, the investigating authority will identify such information and documents as misleading or false information and documents in accordance with point d clause 1 of this Article.
Article 10. Use of available information
1. After the Minister of Industry and Trade issue a decision on investigation for application of trade remedies, a decision on investigation for application of measures against evasion of trade remedies, a decision on review of application of trade remedies or a decision on review of application of measures against evasion of trade remedies, the investigating authority shall notify the parties of its request for provision of information and power to use available information in case of non-cooperation specified in Article 9 of this Decree and for conclusions of investigation and review.
2. Available information includes:
a) Information included in requests for investigation for application of trade remedies or measures against evasion of trade remedies or review of application of trade remedies or measures against evasion of trade remedies;
b) Information collected from independent, official and public sources;
c) Information provided by other parties during the investigation;
c) Other lawful information sources.
Article 11. Disclosure of information about trade remedy case undergoing investigation
The investigating authority shall be responsible for disclosing non-confidential information on trade remedy cases undergoing investigation to the parties. Information may be disclosed electronically or by other methods appropriate to technical infrastructure of the investigating authority.
Article 12. Decision on non-investigation for application of trade remedies, decision on non-investigation for application of measures against evasion of trade remedies, decision on non-review of application of trade remedies or decision on non-review of application of measures against evasion of trade remedies
1. After appraising a request for investigation for application of an anti-dumping/anti-subsidy measure, if the investigating authority confirms that there is no evidence that the good is dumped or subsidized when it is imported into Vietnam, causing or threatening to cause a material injury to or hindering establishment of a domestic industry, the Minister of Industry and Trade shall consider issuing a decision on non-investigation for application of the anti-dumping/anti-subsidy measure.
2. After appraising a request for investigation for application of a safeguard measure, if the investigating authority confirms that there is no evidence about sudden increase in imports into Vietnam, causing or threatening to cause the serious injury to the domestic industry, the Minister of Industry and Trade shall consider issuing a decision on non-investigation for application of the safeguard measure.
3. After appraising a request for investigation for application of measures against evasion of trade remedies, if the investigating authority confirms that there is no evidence that evasion of trade remedies is causing the injury or compromising the effect of trade remedies being applied to protect the domestic industry, the Minister of Industry and Trade shall consider issuing a decision on non-investigation for application of measures against evasion of trade remedies.
4. After appraising a request for review of application of trade remedies or measures against evasion of trade remedies, except for the review specified in Article 52, Article 73 of this Decree, if the investigating authority confirms that there is no evidence to conduct review as requested, the Minister of Industry and Trade shall consider issuing a decision on non-review of application of trade remedies or measures against evasion of trade remedies.
Article 13. On-site investigation
1. During investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies, or review of application of measures against evasion of trade remedies, the investigating authority may conduct on-site investigation to verify the adequacy, truthfulness and accuracy of evidence, information and documents provided by relevant parties.
2. The investing authority may only conduct on-site investigation if it is notified or obtains consent from the relevant parties that are requested to be on-site investigated.
3. After obtaining consent from the relevant parties that are requested to be on-site investigated, at least 07 days before the on-site investigation, the investigating authority shall send notification of contents requested to be investigated to the relevant parties.
4. In case the on-site investigation is conducted oversea, in addition to regulations in clauses 2 and 3 of this Article, the investing authority shall notify a representative of the Government of the country/territory of the enterprise that is investigated on-site.
Article 14. Consultation
1. After receiving a full and valid request for application of the anti-subsidy measure, the investigating authority shall invite the Government of the exporting country/territory of the good undergoing investigation to send enquiries to clarify the request. When receiving written enquiries from the Government of the exporting country/territory of the good undergoing investigation, the investigating authority shall hold a consultation with the representative of the Government.
2. During investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies, or review of application of measures against evasion of trade remedies, the investigating authority may hold a separate consultation with the relevant parties as requested by them in writing, provided that such consultation is legitimate and does not affect the time limit for investigation/review of the case.
3. Before the end of investigation for application of trade remedies or investigation for application of measures against evasion of trade remedies, the investing authority shall organize a public consultation with relevant parties. The investigating authority shall be responsible for notifying the organization of the public consultation to relevant parties at least 30 days before the consultation.
4. At least 07 days before the organization of the public consultation, the relevant parties shall prepare an application for participation in the consultation to the investing authority, including the issues to be consulted that must be clearly specified and enclosed with written arguments Relevant parties are exempted from the consultation participation fee.
5. Within 07 days from the organization of the public consultation, the relevant parties shall send written documents on contents presented at the consultation to the investing authority.
6. Within 20 days from the organization of the public consultation as specified in clause 3 this Article, the investing authority shall publish the consultation record to relevant parties.
Article 15. Completion of investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies, or review of application of measures against evasion of trade remedies
1. The investigating authority shall publicly announce completion of investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies, review of application of measures against evasion of trade remedies at least 07 days before the time limit for investigation/review expires and discontinue receiving opinions, information and documents provided by relevant parties from the time of announcement.
2. Within 20 days after the announcement about completion of the investigation/review according to clause 1 of this Article, the investigating authority shall issue an investigation/review conclusion.
Article 16. Notification of final draft conclusion of investigation for application of trade remedies or measures against evasion of trade remedies, draft conclusion of review of application of trade remedies, review of application of measures against evasion of trade remedies
1. Before the expiration of the time limit for investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies, review of application of measures against evasion of trade remedies, the investigating authority shall notify a final draft conclusion of investigation or a draft conclusion of review to all relevant parties to seek opinions.
2. The final draft conclusion of investigation or draft conclusion of review containing information to be kept confidential and bases for determination of dumping margin, subsidies and evasion of trade remedies related to each producer/exporter shall be sent to such producer/exporter.
3. The final draft conclusion of investigation or draft conclusion of review containing information to be kept confidential and bases for determination of subsidies related to the Government of each exporting country/territory shall be sent to the representative of the Government of such exporting country/territory.
Article 17. Notification of conclusion of investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies or review of application of measures against evasion of trade remedies sent to relevant parties
1. The investigating authority shall notify a summary of information on conclusion of investigation/review within 20 days from the date on which the Minister of Industry and Trade issues one of the following decisions:
a) Decision on application of provisional trade remedies;
b) Decision on application of official trade remedies;
c) Decision on result of reviewing application of provisional trade remedies;
d) Decision on application of measures against evasion of trade remedies;
dd) Decision on result of reviewing application of measures against evasion of trade remedies.
2. Summaries of information on conclusions of investigation and review include:
a) Non-confidential summaries of information on conclusions of investigation and review sent to all relevant parties to cases;
b) Summary containing information on conclusion of investigation/review to be kept confidential, related to each producer/exporter, and sent to such producer/exporter.
c) Summary containing information on conclusion of investigation/review to be kept confidential, related to the Government of each exporting country/territory relevant to an anti-subsidy case, and sent to the representative of the Government of such exporting country/territory.
Article 18. Obligations of regulatory bodies, associations, enterprises’ representative organizations to provide information
1. A customs authority, within its powers and functions, has the obligations to:
a) Provide data and information on goods undergoing investigation for import to Vietnam at the request of the investing authority in a full, prompt and adequate manner;
b) Cooperate with the investing authority in providing data and information on the volume, quantity and value of imports and exports related to the investigation, application and handling of trade remedies as requested by enterprises and trade associations. Procedures, costs and cases of refusal to provide information and other contents shall comply with the Law on Access to Information;
c) Cooperate with the investigating authority in investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies, review of application of measures against evasion of trade remedies at the request of the investigating authority.
2. From the effective date of the decision on application of trade remedies, the customs authority shall provide information on safeguard duties, the volume, quantity and value of imports subject to trade remedies at the request of the investing authority.
3. Trade associations, enterprises’ representative organizations and the Vietnam Chamber of Commerce and Industry shall, within their functions and powers, cooperate with the investing authority in providing information and data on import and export, production and trade of goods within their jurisdiction at the request of the investing authority.
Article 19. Application of trade remedies to goods originating in underdeveloped and developing countries/territories
1. The application of trade remedies to imports originating in an underdeveloped/developing country or territory shall comply with clauses 2 and 3 of Article 86 and clause 2 Article 92 of the Law on Foreign Trade Management.
2. The Minister of Industry and Trade shall determine the underdeveloped and developing countries/territories whose goods are subject to each trade remedy as proposed by the investigating authority on the basis of reliable and public data provided by independent international organizations and commitments included in international treaties of which Vietnam is a signatory or member.
3. On a 6-month basis, the investigating authority may conduct review and request the Minister of Industry and Trade to modify the application of trade remedies to imports originating in underdeveloped/developing countries or territories specified in clause 1 and clause 2 of this Article according to the following criteria:
a) Data on imports undergoing investigation, provided by customs authorities;
b) Reliable, independent and public data provided by international organizations;
c) Commitments included in international treaties of which Vietnam is a signatory or member
Article 20. Consideration of adequacy and validity of requests for investigation for application of trade remedies or measures against evasion of trade remedies
1. Within 20 days from the date of receipt of a request for investigation for application of trade remedies or measures against evasion of trade remedies, the investigating authority shall notify the requesting party of the adequacy and validity of the request. If the request is adequate and valid, the investigation authority shall notify the requesting party and publicly announce the receipt of the adequate and valid request.
2. If the request is inadequate and invalid, the investigating authority shall notify the requesting party for revisions. The time limit for revision to the request is 30 days from the date on which the investigating authority gives a notification of such revision.
3. In case the requesting party has revised their request as notified by the investigating authority within the time limit mentioned in clause 2 of this Article, the period of consideration of the adequacy and validity of the request in accordance with this Article shall begin from the date on which the investigating authority receives the revised request.
4. In case the requesting party fails to revise or fully revise their request as notified by the investigating authority within the time limit mentioned in clause 2 of this Article, the investigating authority shall return the request to the requesting party and explain reasons in writing.
Article 21. Consideration of adequacy and validity of requests for review of application of trade remedies or measures against evasion of trade remedies
1. Within 20 days from the expiration of time limit for submission of a request for review, the investigating authority shall notify the requesting party of the adequacy and validity of the received request. If there is no specific time limit for submission of the request, the time limit for notification of the adequacy and validity or proposal for revisions to the request shall begin from the date on which the investigating authority receives the request for review.
2. If the request is adequate and valid, the investigation authority shall notify the requesting party and publicly announce the receipt of the adequate and valid request.
3. If the request is inadequate and invalid, the investigating authority shall notify the requesting party for revisions. The time limit for revision to the request is 15 days from the date on which the investigating authority gives a notification of such revision.
4. Within 20 days from the date on which the revised request is received within the time limit, the investigating authority shall notify the requesting party of the adequacy and validity of the revised request in accordance with clause 2 and clause 3 of this Article.
5. In case the requesting party fails to revise or fully revise their request as notified by the investigating authority within the time limit mentioned in this Article, the investigating authority shall return the request to the requesting party and explain reasons in writing.
Chapter II
INVESTIGATION, APPLICATION AND REVIEW OF ANTI-DUMPING OR ANTI-SUBSIDY MEASURE
Section 1. DUMPING AND SUBSIDY
Article 22. Methods for determining prices of exports undergoing anti-dumping/anti-subsidy investigation
1. Export price refers to selling price of the good undergoing the anti-dumping/anti-subsidy investigation and exported to Vietnam according to legal transaction vouchers.
2. In the absence of export price or there is evidence proving that the export price is unreliable, the investigating authority shall determine the export price as follows:
a) The export price is set on the basis of the resale price for the first independent customer according to import and export conditions considered reasonable as assessed by the investigating authority. The first independent customer refers to a customer that has no relationship with the concerned producer and exporter specified in Article 5 this Decree;
b) If the export price cannot be determined in accordance with point a of this clause, it shall be set on other reasonable bases.
3. The export price shall be considered as unreliable as specified in clause 2 this Article if the producer, exporter, importer or a third party has any relationship as prescribed in Article 5 hereof or reaches agreements on netting.
Sub-section 1. DUMPING
Article 23. Methods for determining normal prices
1. In case a similar good is sold in the domestic market of the exporting country with considerable volume or quantity, normal price is comparable price of the similar good sold in the domestic market of the exporting country under common commercial conditions prescribed in Article 24 hereof.
2. In the absence of the similar good sold on the domestic market of the exporting country or in case the sale in that country does not allow a fair comparison due to the special conditions of that market or the similar good is sold on the domestic market of the exporting country with an inconsiderable volume or quantity, the normal price shall be determined by one of the following methods:
a) Export price of the similar good exported to an appropriate third country if the export price is representative;
b) Price set by the investing authority on the basis of the reasonable price of the good plus other reasonable costs and reasonable profits based on each stage from production to circulation on the market of the exporting country or a third country.
3. Volume and quantity of similar goods sold on the domestic market of the exporting country specified in clause 1 of this Article shall be considered as considerable if they account for at least 5% of the total quantity and volume of goods undergoing investigation for export to Vietnam. The investigating authority may consider a lower proportion if there is evidence that such proportion is large enough to make a reasonable comparison.
Article 24. Common commercial conditions
It is considered that a similar good is being sold in the domestic market of the exporting country under common commercial conditions except for the following cases:
1. With regard to any transaction of sale of the similar good on the domestic market of the exporting country, or export of the similar good to a third country, its selling price is lower than the unit price within at least 6 months with the considerable volume/quantity and weighted average of the cost of production of a unit of the similar good during the investigation period in order to identify the dumping.
2. Transactions of sale of similar goods on the domestic market of the exporting country, or export of similar goods to the third country are conducted by the parties having the relationships as prescribed in Article 5 hereof and selling prices among such parties do not reflect the market price;
3. Transactions of sale of similar goods on the domestic market of the exporting country, or export of similar goods to the third country are conducted according to agreements on netting.
4. The volume/quantity specified in clause 1 of this Article will be considered considerable when the weighted average price of the transactions being considered for determination of the normal price is lower than the weighted average price of the cost per unit of product, or when the volume/quantity of goods being sold at a selling price lower than the cost per unit of product makes up at least 20% of the total volume/quantity of goods being sold in the transactions being considered for determination of the normal price.
Article 25. Adjustments to normal price and export price
When determining the dumping margin, the investigating authority shall consider the following adjustments:
1. Adjusting normal price and export price to the same stage in the goods circulation process;
2. Adjusting normal price and export price to the same calculation time or at the nearest calculation times;
3. Adjusting normal price and export price in case when there are differences in duty, sale terms, commercial levels, volume, physical characteristics and other factors considered appropriate as assessed by the investigating authority.
4. When converting currencies, the investigating authority shall use the exchange rate at the time of goods sold, unless the exchange rate in the export sale transaction under a forward contract is the exchange rate specified in such contract. In the event of exchange rate fluctuation, the investigating authority shall adjust the fluctuation to an appropriate exchange rate in the investigation period.
5. Other adjustments.
Article 26. Method for determining dumping margin
1. The dumping margin is determined according to the difference between the normal price and the export price.
2. The difference between the normal price and the export price specified in clause 1 of this Article shall be determined by one of the following methods:
a) Comparing the weighted average of the normal price with the weighted average of the export price;
b) Comparing the normal price with the export price on the basis of each transaction;
c) Comparing the weighted average of the normal price with the weighted average of the export price on the basis of each transaction if there are significant differences in the export price among purchasers, geographical areas and export time.
3. The investigating authority shall determine a separate dumping margin applied to goods undergoing investigation of each foreign producer and exporter in the case of investigation for application of the anti-dumping measure, except for the cases specified in Article 27 of this Decree.
Article 27. Method for determining dumping margin in case of sampling
1. In case there are multiple foreign producers and exporters of the same country/territory or the number of categories of goods undergoing investigation is large, the investigating authority may limit the scope of the investigation by the investigation sampling method prescribed in Article 40 of this Decree to determine the dumping margin.
2. In case the investigating authority limits the scope of investigation by the investigation sampling method in accordance with clause 1 this Article, it shall determine the dumping margin of each group of foreign producers/exporters as follows:
a) Producers/exporters whose goods are sampled for investigation;
b) Producers/exporters whose goods are not sampled for investigation of the same country/territory, voluntarily participating and cooperating with the investigating authority in the investigation phase;
c) The remaining producers and exporters.
3. The separate dumping margin applied to the good undergoing investigation of each foreign producer and exporter whose goods are sampled for investigation shall be determined by the method specified in clause 1 or clause 2 Article 26 of this Decree.
4. The dumping margin applied to the good undergoing investigation of each producer/exporter whose goods are not sampled for investigation of the same country/territory, voluntarily participating and cooperating with the investigating authority in the investigation phase shall be determined as follows:
a) Be equal to the weighted average of the separate dumping margin applied to the good undergoing investigation of each foreign producer/exporter whose goods are sampled for investigation of the same country/territory, except for foreign producers/exporters of the same country/territory whose samples have a separate dumping margin not exceeding 2% and foreign producers/exporters of the same country/territory whose samples have a separate dumping margin determined on the basis of the available information specified in Article 10 of this Decree; or
b) Be equal to the difference between the weighted average of the normal price set by foreign producers/exporters of the same country/territory whose goods are sampled and the export price set by foreign producers/exporters whose goods are not sampled in case of all foreign producers/exporters of the same country/territory whose samples have a separate dumping margin not exceeding 2% or determined on the basis of the available information specified in Article 10 of this Decree.
5. Dumping margins applied to goods of the remaining producers and exporters shall be determined on the basis of the available information specified in Article 10 of this Decree.
Sub-section 2. SUBSIDY
Article 28. SPECIFICITY OF SUBSIDIES
1. A subsidy specified in Article 84 of the Law on Foreign Trade Management shall be considered as specific when such subsidy is only applied to a certain organization, individual or production sector, or such subsidy is only applied to an organization, individual or production sector in a certain geographical area of the country undergoing investigation for application of the anti-subsidy measure.
2. The specificity of subsidies shall be determined as follows:
a) Clear restriction is imposed on one or a group of organizations/individuals, or one or a certain group of production sectors that receive subsidies;
b) Objective criteria and conditions for receipt of subsidies are defined in legislative documents or other official documents but are neither universally applied nor strictly adhered to;
c) Clear restriction is imposed on organizations or individuals in a certain geographical area;
d) In case subsidies are not specific as specified in points a, b and c this clause, the investigating authority may still determine their specificity on the basis of review of factors, including the limited number of subsidized enterprises, unbalanced distribution of subsidies and the methods for providing subsidies by competent authorities.
3. Subsidies in accordance with clauses 1 and 2 Article 85 of the Law on Foreign Trade Management shall be considered as specific subsidies.
Article 29. Methods for determining subsidy value and subsidies
1. Method for determining subsidy value is regulated as follows:
a) In case the subsidy is a grant, its value shall be determined on the basis of the actual value of the grant offered to the subsidized organization/individual;
b) In case the subsidy is granted in the form of a loan given by the Government or an organization assigned or authorized by the Government, its value shall be determined on the basis of the difference between the interest rate that must be paid for the loan under market conditions and the interest rate actually paid for the loan by the organization/individual;
c) In case the subsidy is granted in the form of loan guarantee given by the Government or an organization assigned or authorized by the Government, its value shall be determined on the basis of the difference between the interest rate that must be paid for the non-guaranteed loan and the interest rate actually paid for the guaranteed loan;
d) In case the subsidy is granted in the form of share transfer or direct capital transfer by the Government or an organization assigned or authorized by the Government, its value shall be determined on the basis of the capital actually received by the enterprise;
dd) In case the subsidy is granted in the form of the Government or an organization assigned or authorized by the Government purchasing goods /services at prices higher than market prices on behalf of another organization or individual, its value shall be determined on the basis of the difference between the market prices and the actual prices paid by the Government or the organization assigned or authorized by the Government for such goods/services;
e) In case the subsidy is granted in the form of the Government or an organization assigned or authorized by the Government providing goods /services at prices lower than market prices on behalf of another organization or individual, its value shall be determined on the basis of the difference between the market prices and the selling prices imposed by the Government or the organization assigned or authorized by the Government
g) In case the subsidy is granted in the form that the Government or an organization assigned or authorized by the Government ignores or does not collect amounts payable by another organization/individual, its value shall be determined on the basis of the difference between the amount payable in accordance with regulations of law and the amount actually paid by the organization/individual.
2. The value of subsidy granted in another form shall be determined in a manner that is equitable, reasonable and conformable to international practices.
3. Certain subsidies granted to foreign producers/exporters shall be determined on the basis of total specific subsidy value received by such producers/exporters in accordance with regulations in this Article and Article 28 of this Decree.
Section 2. DETERMINATION OF INJURY TO DOMESTIC INDUSTRY
Article 30. DETERMINATION OF MATERIAL INJURY TO DOMESTIC INDUSTRY
1. A material injury to the domestic industry shall be determined on the basis of consideration of the following factors:
a) Absolute or relative increase in the volume/quantity of goods dumped and subsidized for import into Vietnam as compared to the volume/quantity of similar goods domestically produced or consumed;
b) How domestic producers of similar products are forced to lower their prices due to the predatory pricing of the imports undergoing investigation;
c) Impact of the dumped or subsidized goods on production and business of the domestic industry, including actual decline, potential decline of revenue, sales volume, profit, quantity, market share, capacity, productivity, investment; factors affecting the domestic selling prices; the magnitude of the dumping margin, subsidy; actual and potential adverse impacts on cash flow, inventory, labor, wages and capacity for raising fund;
d) Other factors.
2. The material injury to the domestic industry shall be determined on the basis of specific evidences.
Article 31. Determination of threat to cause material injury to domestic industry
1. Threat to cause material injury to the domestic industry shall be determined on the basis of consideration of the following factors:
a) Absolute or relative increase in the volume/quantity of goods dumped and subsidized for import into Vietnam as compared to the volume/quantity of similar goods domestically produced or consumed;
b) Production capacity of the foreign producer or exporter that is large enormous or may be significantly increased in the coming time, leading to a significant increase in the volume/quantity of goods undergoing investigation for import to Vietnam;
c) Dumped or subsidized imports to Vietnam that cause a considerable reduction in prices, maintain considerably low prices, or prevent considerable increases in prices of similar goods domestically produced, resulting in increase in the demand for imports;
d) Inventory data on goods undergoing investigation;
dd) Other relevant factors.
2. Threat to cause material injury to the domestic industry shall be determined on the basis of specific evidences.
Article 32. Determination of considerable hindrance to establishment of domestic industry
1. The establishment of a domestic industry shall be determined on the basis of consideration of the following factors:
a) Characteristics;
b) Operation duration;
c) Business scale of the domestic industry in comparison with the whole market;
d) Reasonable financial break-even point;
dd) A new production sector or an expansion of the existing production sector;
e) Other relevant factors.
2. Considerable hindrance to establishment of a domestic industry specified in clause 1 of this Article shall be determined on the basis of consideration of the following factors:
a) Plan of the domestic industry;
b) Production capacity and output;
c) Quantity and volume of goods sold domestically;
d) Market share, revenue, profit;
dd) Selling prices of similar domestic goods;
e) Export of similar goods and import of goods undergoing investigation;
g) Inventory data on goods undergoing investigation;
h) Labor and wages;
i) Other relevant factors.
3. The considerable hindrance to establishment of the domestic industry shall be determined on the basis of specific evidences.
Article 33. Consideration of aggregation
1. In case goods undergoing investigation are imported from two or more producing/exporting countries, the investigating authority may determine the aggregated injuries to the goods undergoing investigation.
2. The aggregation of effects of goods undergoing investigation shall consider conditions for competition among the goods undergoing investigation and competition between the goods undergoing investigation and similar goods domestically produced.
3. Regulations on consideration of aggregation specified in clause 1 this Article does not apply to countries with dumping margins specified in clauses 2 and 3 Article 78 and subsidies specified in clauses 2 and 3 Article 86 of the Law on Foreign Trade Management.
Article 34. Determination of causal relationship between dumped/subsidized import and injury to the domestic industry
When determining the causal relationship between the dumping/subsidization of the import and a material injury, threat to cause the material injury to a domestic industry or considerable hindrance to the establishment of the domestic industry, the investigating authority shall consider the following factors. To be specific:
1. The dumping/subsidization of the import causes a material injury, threat to cause the material injury to the domestic industry or considerable hindrance to establishment of a domestic industry.
2. Any factor other than the dumping/subsidization of the import which causes or threatens to cause any material injury to the domestic industry or considerably hinders the establishment of a domestic industry shall not be considered as an effect caused by the dumped or subsidized good, including:
a) Volume/quantity of similar goods which are imported into Vietnam and are not dumped or subsidized;
b) Decline in consumer demand or change in the form of consumption of similar goods domestically produced;
c) Trade restriction policy;
d) Technology development;
dd) Exportability and productivity of the domestic industry;
e) Other relevant factors.
Section 3. PROCEDURES FOR INVESTIGATION FOR APPLICATION OF ANTI-DUMPING OR ANTI-SUBSIDY MEASURE
Sub-section 1. REQUEST
Article 35. Request for investigation for application of anti-dumping or anti-subsidy measure
1. A request for investigation for application of anti-dumping or anti-subsidy measure includes the following information, documents and evidence:
a) Name, address and other necessary information on the representative of the domestic industry;
b) Information, data and evidence serving identification of the representative of the domestic industry, including list of domestic organizations and individuals producing similar goods; volume and quantity of similar goods produced by such organizations and individuals;
c) Names and addresses of organizations and individuals producing similar goods, and supporting or opposing the case;
d) Description of imports requested to be investigated for application of an anti-dumping/anti-subsidy measure, including scientific names, trade names, common names; ingredients; basic physical and chemical characteristics; production process; main purposes; Vietnam and international standards/regulations; codes in accordance with the List of Imports and Exports of Vietnam;
dd) Description of similar goods of the domestic industry, including scientific names, trade names, common names; ingredients; basic physical and chemical characteristics; main purposes; production process; Vietnam and international standards/regulations;
e) Information on the volume, quantity and value of the imports specified in point d of this clause within at least 03 years prior to the submission of request for application of the anti-dumping measure;
g) Information, data and evidence about the material injury or threat to cause the material injury to the domestic industry or considerable hindrance to the establishment of the domestic industry within the period of at least 3 years before the submission of the request or from the date of official operation of the domestic industry in case where it operates for less than 03 years;
h) Information, data and evidence about the causal relationship between the import of goods specified in point d this clause and the material injury or threat to cause material injury to the domestic industry or considerable hindrance to the establishment of a domestic industry;
i) Specific requirements for application of the anti-dumping/anti-subsidy measure, the time limit for and the extent of application.
2. In addition to the contents specified in clause 1 of this Article, the request for investigation for application of the anti-dumping measure includes the following information:
a) Information on the normal price and the export price of the good as described in point d clause 1 of this Article; the dumping margin of the import requested to be investigated for application of the anti-dumping measure;
b) Information on the exporting country or the origin of the good requested to be investigated for application of the anti-dumping measure, including a specific list of foreign producers and exporters and importers.
3. In addition to the contents specified in clause 1 of this Article, the request for investigation for application of the anti-subsidy measure shall include information and evidence about a foreign subsidy, including the existence of the subsidy; the allegedly subsidizing country; name and address of the foreign organization or individual accused of receiving the subsidy; form and policy of subsidy; quantity, volume and value of the subsidy;
Article 36. Appraisal of request for investigation for application of anti-dumping or anti-subsidy measure
1. Consideration of adequacy and validity of a request for investigation for application of an anti-dumping/anti-subsidy measure shall comply with regulations in Article 20 of this Decree.
2. The appraisal of the request for investigation for application of an anti-dumping/anti-subsidy measure and the issuance of an investigation decision shall comply with regulations in clause 2 Article 70 of the Law on Foreign Trade Management.
3. The request shall be appraised as follows:
a) Identifying the legal representative status for a domestic industry of the organization or individual submitting the request as provided for in clause 2 of Article 79 and clause 2 of Article 87 of the Law on Foreign Trade Management;
b) Determining evidence about the dumping/ subsidization of the import to Vietnam which causes the material injury, threatens to cause the material injury to the domestic industry or considerably hinders the establishment of a domestic industry.
Sub-section 2. INVESTIGATION FOR APPLICATION OF ANTI-DUMPING OR ANTI-SUBSIDY MEASURE
Article 37. Decision on investigation for application of anti-dumping or anti-subsidy measure
A decision issued by the Minister of Industry and Trade on investigation for application of anti-dumping or anti-subsidy measure shall include the following contents:
1. Specific description of imports undergoing investigation, and their codes in accordance with the List of Imports and Exports of Vietnam;
2. Information on domestic organizations and individuals producing similar goods subject to the anti-dumping or anti-subsidy measure;
3. Summary of the information on the dumping/subsidization of the import to Vietnam which causes the material injury, threatens to cause the material injury to the domestic industry or considerably hinders the establishment of a domestic industry;
4. Information about the investigation period for determination of the dumping/subsidization and the investigation period for determination of the injury to the domestic industry;
5. Procedures for anti-dumping or anti-subsidy investigation
Article 38. Investigation period
1. The period of investigation for determination of the dumping/subsidization is 12 months. In special cases, the investigating authority may determine another investigation period but the period must not be less than 06 months.
2. The period of investigation for determination of the injury to the domestic industry is at least 03 years and it must cover the whole period of investigation for determination of the dumping/subsidization. In case the related party has less than 3 years of operation, the collected data will be the entire operation duration of such related party up to the end of the period of investigation for determination of the dumping/subsidization.
Article 39. Sampling questionnaire
1. Within 07 days from the date on which the Minister of Industry and Trade issues a decision on investigation, the investigating authority shall send a sampling questionnaire to the following parties:
a) Producers and exporters producing/exporting goods to Vietnam undergoing anti-dumping/anti-subsidy investigation and known by the investigating authority;
b) Representative of Vietnam at the producing/exporting country/territory whose goods are undergoing anti-dumping/anti-subsidy investigation.
2. Within 10 days after receiving the questionnaire, the relevant parties shall provide written replies to all questions in the questionnaire. The questionnaire shall be considered having reached the recipient after 07 days from the date on which it is sent by the investigating authority. The sending date shall be determined according to the postmark or the date on which the investigating authority publishes the questionnaire on its web portal.
3. The case where any foreign producer/exporter fails to provide written reply to the questionnaire within the prescribed time limit will be considered as non-cooperation in accordance with Article 9 of this Decree.
Article 40. Sampling
1. In case there are multiple foreign producers and exporters of the same country/territory or the number of categories of goods requested to be subject to the anti-dumping/anti-subsidy measure is large, the investigating authority may limit the scope of the investigation by the investigation sampling method.
2. Samples shall be taken on the basis of information about the volume, quantity and categories of goods undergoing anti-dumping/anti-subsidy investigation and exported to Vietnam by one of the following methods:
a) Selecting foreign producers/exporters of the same country/territory with the largest quantity of goods exported into Vietnam over the investigation period the investigation into which does not affect the time limit for investigation into the case in accordance with clause 3 Article 70 of the Law on Foreign Trade Management;
b) Selecting foreign producers/exporters of the same country/territory on the basis of information about categories of imports into Vietnam that are deemed to have appropriate statistical values by the investigating authority at the time of sampling.
3. Within 10 days from the deadline for reply to the sampling questionnaire, the investigating authority shall notify the sampling and list of foreign producers/exporters whose goods are sampled in case of sampling. The investigating authority may consult with producers/exporters whose goods are not expected to be sampled.
4. The investigating authority may consider including other foreign producers/exporters that have provided written replies to the questionnaire in a full and punctual manner in the list of foreign producers/exporters whose goods are sampled if requested by such foreign producers/exporters and the inclusion does not affect the investigation time limit specified in clause 3 Article 70 of the Law on Foreign Trade Management.
Article 41. Questionnaire concerning investigation for application of anti-dumping or anti-subsidy measure
1. The investigating authority shall send a questionnaire to the following parties:
a) Domestic producers of similar goods;
b) Foreign producers and exporters exporting goods undergoing anti-dumping/anti-subsidy investigation to Vietnam which the investigating authority knows;
c) Representative of Vietnam at the producing/exporting country/territory whose goods are undergoing anti-dumping/anti-subsidy investigation (if any);
d) Importers of goods undergoing anti-dumping/anti-subsidy investigation;
dd) Other relevant parties.
2. Within 20 days from the date on which the Minister of Industry and Trade issues a decision on investigation, the investigating authority shall send the questionnaire to the relevant parties specified in points a, d and dd clause 1 of this Article.
3. Within 10 days from the date on which the investigating authority notifies the sampling in accordance with regulations in clause 3 Article 40 of this Decree, the questionnaire shall be sent to the relevant parties specified in points b and c clause 1 of this Article.
4. The relevant parties shall submit their written replies to the questionnaire within 30 days from the date of receipt of the questionnaire. In case of necessity or there are written requests for extension with reasonable reasons from the relevant parties, the investigating authority may extend the time limit and it may be extended for up to 30 more days.
5. The investigation questionnaire shall be considered having reached the recipient after 07 days from the date on which it is sent by the investigating authority. The sending date shall be determined according to the postmark or the date on which the investigating authority publishes the questionnaire on its web portal.
Sub-section 3. APPLICATION OF ANTI-DUMPING OR ANTI-SUBSIDY MEASURE
Article 42. Imposition of provisional anti-dumping or anti-subsidy duty
1. The imposition of provisional anti-dumping/anti-subsidy duty, duty, time limit for imposition and extension of the time limit shall comply with the regulations specified in clause 1 Article 81 and clause 1 Article 89 of the Law on Foreign Trade Management.
2. Decision to impose the provisional anti-dumping/anti-subsidy duty includes:
a) Description of imports on which the anti-dumping/anti-subsidy duty is imposed, including names, basic characteristics and codes in accordance with the List of Imports and Exports of Vietnam;
b) Names and other necessary information on producers and exporters of goods on which the provisional anti-dumping/anti-subsidy duty is imposed;
c) Name of the country producing/exporting goods on which the anti-dumping/anti-subsidy duty is imposed;
d) Provisional anti-dumping/anti-subsidy duty;
dd) Effective date and the time limit for the imposition of the provisional anti-dumping/anti-subsidy duty;
e) Procedures and documentation on inspection and imposition of provisional anti-dumping or anti-subsidy duty.
3. The provisional anti-dumping or anti-subsidy duty shall be imposed no sooner than 60 days after the date on which the Minister of Industry and Trade issues the decision on investigation.
4. In case the provisional anti-dumping or anti-subsidy duty is lower than the dumping margin/subsidy mentioned in the preliminary conclusion or the exporter of goods undergoing investigation for export to Vietnam requests extension of the duration of imposition of the provisional anti-dumping or anti-subsidy duty and the volume and quantity of goods undergoing investigation account for a considerable proportion of the total volume and quantity of goods undergoing investigation for import into Vietnam, the Minister of Industry and Trade may extend the duration of imposition of the provisional anti-dumping or anti-subsidy duty for up to 60 more days.
Article 43. Application or non-application of official anti-dumping or anti-subsidy measure
1. Within 20 days from the date on which the investigating authority sends the final conclusion of investigation to the Minister of Industry and Trade, the Minister of Industry and Trade shall issue a decision on application or non-application of official anti-dumping or anti-subsidy measure.
2. In case the Minister of Industry and Trade issues a decision on application of official anti-dumping or anti-subsidy measure, such decision shall include:
a) Description of imports to which the anti-dumping/anti-subsidy measure is applied, including names, basic characteristics and codes in accordance with the List of Imports and Exports of Vietnam;
b) Names and other necessary information on producers and exporters of goods to which the official anti-dumping/anti-subsidy measure is applied;
c) Name of the country producing/exporting goods to which the official anti-dumping/anti-subsidy measure is applied;
d) Investigation conclusion showing the necessity to apply the official anti-dumping/anti-subsidy measure;
dd) Official anti-dumping or anti-subsidy measure;
e) Effective date and time limit for application of the official anti-dumping or anti-subsidy measure;
g) Provisional anti-dumping/anti-subsidy duty difference and handling of overpaid duties (if any);
h) Procedures and documentation on inspection and application of the official anti-dumping or anti-subsidy measure.
3. In case the Minister of Industry and Trade issues a decision on non-application of the official anti-dumping or anti-subsidy measure and termination of the anti-dumping or anti-subsidy investigation in accordance with regulations in clause 3 Article 71 of the Law on Foreign Trade Management, such decision shall include:
a) Description of imports that are excluded from application of the official anti-dumping or anti-subsidy measure, and investigation for application of the anti-dumping or anti-subsidy measure, including names, basic characteristics and codes in accordance with the List of Imports and Exports of Vietnam;
b) Name of the country producing/exporting goods that are excluded from application of the official anti-dumping or anti-subsidy measure, and investigation for application of the anti-dumping or anti-subsidy measure;
c) Investigation conclusion containing one of the contents specified in clause 3 Article 71 of the Law on Foreign Trade Management.
d) Guidelines for handling the provisional anti-dumping/anti-subsidy duty overpaid (if any);
Article 44. Retroactive imposition of anti-dumping or anti-subsidy duty
1. The retroactive imposition of anti-dumping/anti-subsidy duty shall comply with regulations specified in clause 4 Article 81 and clause 4 Article 89 of the Law on Foreign Trade Management.
2. In case of consideration of the retroactive imposition of anti-dumping/anti-subsidy duty within 90 days before the imposition of the provisional anti-dumping or anti-subsidy duty according to regulations in point b clause 4 Article 81 and point b clause 4 Article 89 of the on Foreign Trade Management, all of the following issues shall be confirmed in the final investigation conclusion:
a) It is confirmed that goods undergoing investigation are dumped and/or subsidized;
b) The volume/quantity of similar goods undergoing investigation for import into Vietnam during the period from the investigation to the imposition of the provisional anti-dumping or anti-subsidy duty is suddenly increased in comparison with that of the preceding period;
c) Goods undergoing the previous investigation were dumped, causing the injury or the importer already knows or is liable to know that the foreign manufacturer or exporter is committing the dumping act which will cause the injury;
d) The injury caused by dumping or subsidizing a large quantity of imports over a relatively short period of time might seriously diminish the effect of the official anti-dumping or anti-subsidy duty. The investigating authority shall be responsible for enabling importers to give their opinions on such issues.
3. If the official anti-dumping/anti-subsidy duty is higher than the provisional anti-dumping or anti-subsidy duty, the anti-dumping/anti-subsidy duty imposed retroactively shall be equal to the provisional anti-dumping or anti-subsidy duty.
4. If the official anti-dumping/anti-subsidy duty is lower than the provisional anti-dumping or anti-subsidy duty, the anti-dumping/anti-subsidy duty imposed retroactively shall be equal to the official anti-dumping or anti-subsidy duty.
Article 45. Application of commitment measure to anti-dumping/anti-subsidy investigation
1. After the Minister of Industry and Trade issues a decision on imposition of the provisional anti-dumping or anti-subsidy duty or when there is a preliminary investigation conclusion, at least 30 days before the end of the investigation period, the accused party or the Government of the accused party involved in the anti-subsidy investigation may send a written anti-dumping/anti-subsidy commitment to the investigating authority.
2. An anti-dumping commitment includes:
a) Scope of goods;
b) Reference prices, including self-determined prices, price increases and price adjustment options;
c) Periodic notification obligation;
d) Obligation to cooperate with the investigating authority in the implementation of the anti-dumping/anti-subsidy commitment;
dd) Other relevant contents.
3. An anti-subsidy commitment includes:
a) Scope of goods;
b) Reference prices, including self-determined prices, price increases and price adjustment options;
c) Commitment to completely or partially eliminate subsidy programs of the Government of the exporting country/territory;
d) Periodic notification obligation;
dd) Obligation to cooperate with the investigating authority in the implementation of the anti-dumping/anti-subsidy commitment;
e) Other relevant contents.
4. Within 30 days from the date of receipt of the anti-dumping/anti-subsidy commitment, the investigating authority shall consider requesting the Minister of Industry and Trade to issue a decision.
5. The anti-dumping/anti-subsidy commitment shall be considered on the basis of:
a) Whether the imposition of the anti-dumping/anti-subsidy commitment can overcome the material injury, prevent threat to cause the material injury to the domestic industry or avoid considerable hindrance to the establishment of a domestic industry;
b) Whether the existing management mechanism can effectively supervise the implementation of the anti-dumping/anti-subsidy commitment;
c) Ability to evade the anti-dumping/anti-subsidy measure through the commitment;
d) Other relevant factors.
6. The investigating authority shall only review the anti-dumping/anti-subsidy commitment made by the accused party or the Government of the accused party involved in the anti-subsidy investigation that has sufficiently cooperated during the investigation period. During the review of the commitment, the investigating authority may request adjustment to the commitment. In case the accused party or the Government of the accused party involved in the anti-subsidy investigation agrees to adjust the commitment, the adjusted commitment shall be sent to the investigating authority.
7. The investigating authority shall publicly notify the anti-dumping/anti-subsidy commitment to the relevant parties in accordance with regulations in Article 11 of this Decree. The relevant parties are entitled to send written opinions within the time limit specified in the notification. If the commitment contains confidential information, the accused party or the Government of the accused party involved in the anti-subsidy investigation shall ensure security as per law.
Article 46. Decision on anti-dumping/anti-subsidy commitment
1. The investigating authority shall consider whether to accept or reject the anti-dumping/anti-subsidy commitment made by the accused party or the Government of the accused party involved in the anti-subsidy investigation. If the commitment is rejected, reasons for rejection shall be provided. If the commitment is accepted, the Minister of Industry and Trade shall issue a decision to accept the commitment.
2. Decisions and notification specified in clause 1 this Article shall be publicly announced to the relevant parties by appropriate methods.
3. After a notification of rejection of the commitment specified in clause 1 of this Article is issued, the investigating authority shall continue the investigation and issue a final conclusion.
4. After the decision to accept the commitment specified in clause 1 of this Article is issued, the investigating authority shall continue the investigation and issue a final conclusion as follows:
a) In case the final conclusion confirms that no dumping or subsidy-related act is committed or there is no any material injury, threat to cause material injury to the domestic industry or considerable hindrance to the establishment of a domestic industry, the Minister of Industry and Trade shall issue a decision on termination of the case and the implementation of the commitment;
b) In case the final conclusion confirms that the dumping or subsidy-related act is committed or there is a material injury, threat to cause material injury to the domestic industry or considerable hindrance to the establishment of a domestic industry, the commitment shall continue to be implemented according to regulations mentioned in the commitment.
Article 47. Supervision of implementation of anti-dumping/anti-subsidy commitment
1. When the Minister of Industry and Trade issues a decision to accept the anti-dumping/anti-subsidy commitment, the accused party or the Government of the accused party involved in the anti-subsidy investigation shall be supervised by the investigating authority regarding the implementation of the commitment.
2. The investigating authority shall supervise the implementation of the anti-dumping/anti-subsidy commitment as follows:
a) Request the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment to periodically provide information and documents related to the implementation of the anti-dumping/anti-subsidy commitment and prove the accuracy of such information and documents;
b) Periodically compare the information provided by the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment on quantity, volume and prices of imports subject to the anti-dumping/anti-subsidy commitment with the information provided by the customs authority;
c) Conduct on-site investigation regarding the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment if necessary;
d) Check the information with importers of the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment;
dd) Other appropriate supervision forms.
Article 48. Violations against regulations on implementation of anti-dumping/anti-subsidy commitment
The implementation of the anti-dumping/anti-subsidy commitment shall be considered as a violation in the following cases:
1. The accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment exports goods undergoing the investigation to Vietnam at a price lower than that as committed.
2. The accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment fails to periodically provide information on the implementation of the commitment as specified in the commitment.
3. It is determined that the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment fails to cooperate with the investigating authority in accordance with regulations in Article 9 of this Decree in verification and on-site investigation into information periodically provided by the accused party or the Government of the accused party as committed.
4. Information and data on the implementation of the commitment provided by the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment are not accurate.
5. It is determined that the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment evades the applied anti-dumping/anti-subsidy measure.
6. The accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment cancels the commitment but does not notify the investigating authority as prescribed in clause 3, Article 49 of this Decree.
7. Other cases.
Article 49. Cancellation of anti-dumping/anti-subsidy commitment
The anti-dumping/anti-subsidy commitment shall be cancelled in the following cases:
1. The accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment commits violations against the commitment as prescribed in Article 48 hereof;
2. The investigating authority proposes cancellation of the anti-dumping/anti-subsidy commitment.
3. The accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment may propose the cancellation of the commitment at any time during the validity period of the commitment provided that the proposal for cancellation shall be made in writing and it shall be sent to the investigating authority at least 30 days before the cancellation.
Article 50. Application of anti-dumping/anti-subsidy measure after cancellation of anti-dumping/anti-subsidy commitment
1. In case of cancellation of the anti-dumping/anti-subsidy commitment according to regulations specified in clause 1 Article 49 of this Decree, the Minister of Industry and Trade shall decide to cancel the anti-dumping/anti-subsidy commitment, apply the official anti-dumping/anti-subsidy measure on the basis of the available information to, and retroactively impose the anti-dumping/anti-subsidy duty on goods of the accused party or the Government of the accused party involved in the anti-subsidy investigation and the anti-dumping/anti-subsidy commitment that violates the commitment.
2. In case of cancellation of the anti-dumping/anti-subsidy commitment according to regulations specified in clause 2 and clause 3 Article 49 of this Decree, the anti-dumping/anti-subsidy measure shall be applied as follows:
a) If the anti-dumping/anti-subsidy commitment is cancelled during the period of the application of the provisional anti-dumping/anti-subsidy measure, the Minister of Industry and Trade shall decide to cancel the implementation of the commitment and notify the customs authority of application of the provisional anti-dumping/anti-subsidy measure on the basis of the preliminary conclusion.
b) If the anti-dumping/anti-subsidy commitment is cancelled during the period of the application of the official anti-dumping/anti-subsidy measure, the Minister of Industry and Trade shall decide to cancel the implementation of the anti-dumping/anti-subsidy commitment and notify the customs authority of application of the official anti-dumping/anti-subsidy measure on the basis of the available information according to the final conclusion.
Section 4. REVIEW OF APPLICATION OF ANTI-DUMPING OR ANTI-SUBSIDY MEASURE
Sub-section 1. REVIEW
Article 51. Review as requested by relevant parties
1. During the first four years, on an annual basis, from the effective date of the decision on application of the official anti-dumping or anti-subsidy measure or the decision on extension of the anti-dumping or anti-subsidy measure, the review-requesting party is entitled to submit a request for review.
2. At least 60 days before the end of the one-year period from the effective date of the decision on application of the official anti-dumping or anti-subsidy measure or the decision on extension of the anti-dumping or anti-subsidy measure, the investigating authority shall notify the receipt of the request for review.
3. Within 30 days from the date on which the investigating authority gives notification as prescribed in clause 2 of this Article, the review-requesting party is entitled to submit the request for review.
4. The investigating authority shall review one or some of the following contents on the basis of contents requested to be reviewed by the relevant parties:
a) Dumping margin set by and subsidies granted by one, some or all of foreign producers/exporters;
b) Injuries to the domestic industry and the causal relationship between foreign producers’ or exporters’ dumping/subsidies and injuries to the domestic industry;
c) Changes to business operations conducted by foreign producers/exports, resulting in change of their names/structure.
Article 52. FINAL REVIEW OF APPLICATION OF ANTI-DUMPING OR ANTI-SUBSIDY MEASURE
1. At least 15 months before the expiry date of the decision on application of the anti-dumping or anti-subsidy measure, the investigating authority shall notify the receipt of the request for review.
2. Within 30 days from the date on which the investigating authority gives notification, the review-requesting party is entitled to submit the request for final review of application of the anti-dumping or anti-subsidy measure.
3. If the request for final review satisfies the regulations specified in clause 5 Article 57 of this Decree, the investigating authority shall review the following contents:
a) possibility of continuation in or recurrence of dumping and subsidization of imports in case of termination of the application of the anti-dumping or anti-subsidy measure;
b) possibility that the material injury would continue or reoccur, or pose a threat to the domestic industry in case of termination of the application of the anti-dumping or anti-subsidy measure;
c) socio-economic impacts of continuation in application of the anti-dumping or anti-subsidy measure.
4. Except for the case specified in clause 3 of this Article, the investigating authority shall review the following contents:
a) Volume/quantity of imports subject to the anti-dumping or anti-subsidy measure from the date on which the measure is applied;
b) Necessity, rationality, effectiveness and socio-economic impacts of the anti-dumping or anti-subsidy measure.
Article 53. Review of new exporters
1. The review-requesting party that is a new exporter is entitled to submit a request for review at any time after the effective date of decision to impose the official anti-dumping or anti-subsidy duty
2. The investigating authority shall review new exporters regarding the following contents:
a) Separate dumping margin and subsidy;
b) Conditions for application of the anti-dumping or anti-subsidy measure to be satisfied by new exporters.
Article 54. Review of scope of goods subject to anti-dumping or anti-subsidy measure
1. The review-requesting party is entitled to submit a request for review at any time after the effective date of decision to impose the official anti-dumping or anti-subsidy duty
2. The investigating authority shall review scope of goods subject to the anti-dumping or anti-subsidy measure regarding the following contents:
a) Comparison of imports requested to be reviewed with similar goods domestically produced;
b) Domestic industry’s capacity to produce similar goods
Article 55. Review due to change in situation where anti-dumping or anti-subsidy measure is applied
1. In case of review due to change in situation, the review-requesting party is entitled to submit a request for review at any time after the effective date of the decision on application of the official anti-subsidy measure.
2. The investigating authority shall conduct review due to change in situation regarding the contents specified in clause 5 Article 90 of the Law on Foreign Trade Management.
Sub-section 2. PROCEDURES FOR REVIEW OF APPLICATION OF ANTI-DUMPING OR ANTI-SUBSIDY MEASURE
Article 56. Parties requesting review of application of anti-dumping or anti-subsidy measure
Parties requesting review of application of the anti-dumping or anti-subsidy measure in accordance with regulations in this Decree include:
1. Domestic producers as prescribed in clause 2 Article 79 and clause 2 Article 87 of the Law on Foreign Trade Management that are entitled to submit requests for review according to regulations in Articles 51, 52 and 55 of this Decree.
2. Foreign producers/exporters as prescribed in clause 1 Article 74 of the Law on Foreign Trade Management that are entitled to submit requests for review according to regulations in Articles 51, 52, 53, 54 and 55 of this Decree.
3. Importers of goods subject to the anti-dumping or anti-subsidy measure as prescribed in clause 1 Article 74 of the Law on Foreign Trade Management that are entitled to submit requests for review according to regulations in Articles 51, 52, 54 and 55 of this Decree.
4. Governments of foreign producers/exporters as prescribed in clause 1 Article 74 of the Law on Foreign Trade Management that are entitled to submit requests for review of application of the anti-subsidy measure to their producers/exporters according to regulations in Article 55 of this Decree.
Article 57. Request for review of application of anti-dumping or anti-subsidy measure
1. A request for review of application of the anti-dumping or anti-subsidy measure includes the following information, documents and evidence:
a) Name, address and other necessary information on the review-requesting party;
b) Information on the anti-dumping or anti-subsidy measure requested to be reviewed;
c) Specific requests for review;
d) Additional information specified in clauses 2, 3, 4, 5, 6 and 7 of this Article corresponding to each specific review case.
2. In case of review specified in point a clause 4 Article 51 of this Decree, the request shall include the following additional information:
a) Name, address and other necessary information on each foreign producer/exporter requested to be reviewed if the review-requesting party is a domestic producer or importer;
b) Information on export of goods subject to the anti-dumping or anti-subsidy measure to Vietnam by the foreign producer/exporter within at least 01 year before the time of submission of the request;
c) Information on production/sale of goods subject to the anti-dumping or anti-subsidy measure to Vietnam by the foreign producer/exporter in the market of the exporting country (if any) within at least 01 year before the time of submission of the request;
d) Information on subsidization, subsidy value and subsidy with regard to the request for review of the subsidy;
dd) Other information deemed necessary by the review-requesting party.
3. In case of review specified in point b clause 4 Article 51 of this Decree, the request shall include the following additional information:
a) Information on injuries to the domestic industry;
b) Information on the causal relationship between the dumping/subsidization and injuries to the domestic industry;
c) Other information deemed necessary by the review-requesting party.
4. In case of review specified in point c clause 4 Article 51 of this Decree, the request shall include the following additional information:
a) Legal documents as regulated by the host country on change in information on the review-requesting company;
b) Information and documents showing change or non-change in organizational structure and production capacity after there is any change in the company’s structure;
c) Other information deemed necessary by the review-requesting party.
5. In case of review specified in Article 52 of this Decree, the request shall include the following additional information:
a) Information, data and evidence serving identification of the representative of the domestic industry, including list of domestic organizations and individuals producing similar goods; volume and quantity of similar goods produced by such organizations and individuals;
b) Names and addresses of organizations and individuals producing similar goods, and supporting or opposing the case (if any);
c) Information on the volume, quantity and value of the imports subject to the anti-dumping or anti-subsidy measure within the 12-month period prior to the submission of the request;
d) Information, data and evidence about possibility that imports are dumped/subsidized in case of termination of the application of the anti-dumping or anti-subsidy measure;
dd) Information, data and evidence about possibility that material injury would continue or reoccur, or pose a threat to the domestic industry in case of termination of the application of the anti-dumping or anti-subsidy measure;
e) Other information deemed necessary by the review-requesting party.
6. In case of review specified in Article 54 of this Decree, the request shall include the following additional information:
a) Detailed information and description of goods requested to be reviewed;
b) Information and documents proving that the application of the anti-dumping or anti-subsidy measure to the goods mentioned in point a of this clause is inappropriate;
c) Other information deemed necessary by the review-requesting party.
7. In case of review specified in Article 55 of this Decree, the request shall include the following additional information:
a) Information and documents showing changes after the effective date of the decision on application of the anti-subsidy measure;
b) Proposal to change the anti-subsidy measure made by the review-requesting party;
c) Other information deemed necessary by the review-requesting party.
Article 58. Appraisal of request for review of application of anti-dumping or anti-subsidy measure
1. Consideration of adequacy and validity of a request for review of application of an anti-dumping/anti-subsidy measure shall comply with regulations in Article 21 of this Decree.
2. Within 30 days from the date on which the investigating authority notifies the receipt of the adequate and valid request for review, the investigating authority shall appraise the request and send it to the Minister of Industry and Trade to consider deciding the review of the anti-dumping/anti-subsidy measure. The request for review shall be appraised as follows:
a) Determining eligibility of the request-submitting organization/individual as per law;
b) Determining that information, documents and evidence included in the request are suitable for the request for review.
Article 59. Final review in case where no request for review is submitted or request for final review is inadequate and invalid
1. In case no request for final review is submitted or request for final review is inadequate and invalid, the final review of the anti-dumping/anti-subsidy measure shall comply with regulations in clause 2 Article 82 and clause 2 Article 90 of the Law on Foreign Trade Management.
2. Final review contents shall comply with regulations in clause 4 Article 52 of this Decree.
Article 60. Decision on review of application of anti-dumping or anti-subsidy measure
A decision issued by the Minister of Industry and Trade on review of application of anti-dumping or anti-subsidy measure shall include the following contents:
1. Basic information on application of the anti-dumping or anti-subsidy measure.
2. Review bases.
3. Information on the review-requesting party, except for the case specified in Article 59 of this Decree.
4. Specific review contents.
5. Review period.
6. Review procedures.
Article 61. Questionnaire on review of application of anti-dumping or anti-subsidy measure
1. Within 20 days from the date on which the Minister of Industry and Trade issues a decision on review, the investigating authority shall send a review questionnaire to the relevant parties.
2. Within 30 days from the date of receipt of the review questionnaire, the relevant parties shall submit their written replies to the questionnaire to the investigating authority. In case of necessity or there are written requests for extension with reasonable reasons from the relevant parties, the investigating authority may extend the time limit and it may be extended for up to 30 more days.
3. The questionnaire shall be considered having reached the recipient after 07 days from the date on which it is sent by the investigating authority. The sending date shall be determined according to the postmark or the date on which the investigating authority publishes the questionnaire on its web portal.
Article 62. Decision on result of review of application of anti-dumping or anti-subsidy measure
1. Within 20 days from the date on which a review conclusion is sent by the investigating authority, the Minister of Industry and Trade shall issue a decision on result of review of application of anti-dumping or anti-subsidy measure
2. According to the review conclusion at the request of the relevant party of the investigating authority, the Minister of Industry and Trade shall issue a decision containing one of the following contents:
a) Adjustment or non-adjustment to the application of the anti-dumping/anti-subsidy measure;
b) Termination of the application of the anti-dumping/anti-subsidy measure in case where the review conclusion shows that the anti-dumping/anti-subsidy measure is no longer necessary to overcome the injury to the domestic industry or there is insufficient basis to determine that the material injury will continue or reoccur if the application of the anti-dumping/anti-subsidy measure is terminated.
c) Adjustment to name and relationship of each relevant producer/exporter and the imposed anti-dumping/anti-subsidy duty.
3. According to the investigating authority’s conclusion of review of new exporters, the Minister of Industry and Trade shall issue a decision containing one of the following contents:
a) Application of the separate anti-dumping/anti-subsidy measure to each new exporter;
b) Continuation in the application of the effective anti-dumping/anti-subsidy measure in case the new exporter withdraws the request for review or does not cooperate in the review process.
4. According to the investigating authority’s conclusion of review of scope of goods, the Minister of Industry and Trade shall issue a decision containing one of the following contents:
a) Non-adjustment to scope of goods subject to the anti-dumping/anti-subsidy measure;
b) Narrowness of scope of goods subject to the anti-dumping/anti-subsidy measure.
5. According to the investigating authority’s conclusion of review due to change in situation, the Minister of Industry and Trade shall issue a decision containing one of the following contents:
a) Termination of the application of the anti-subsidy measure in case where the review conclusion shows that the anti-subsidy measure is no longer necessary to overcome the injury to the domestic industry or there is insufficient basis to determine that the material injury will continue or reoccur if the application of the anti-subsidy measure is terminated;
b) Adjustment or non-adjustment to the application of the anti-subsidy measure;
c) Adjustment to name and relationship of each relevant producer/exporter and the imposed anti-subsidy duty.
6. According to the investigating authority’s conclusion of final review, the Minister of Industry and Trade shall issue a decision containing one of the following contents:
a) Adjustment or non-adjustment to the application of the anti-dumping/anti-subsidy measure;
b) Extension of the application of the anti-dumping/anti-subsidy measure in case where the final review conclusion shows that the non-extension of the application of the anti-dumping/anti-subsidy may result in the continuation or recurrence of the dumping/subsidization and cause the material injury to the domestic industry;
c) Non-extension of the application of the anti-dumping/anti-subsidy measure in the case specified in clause 7 of this Article;
d) Narrowness of scope of goods subject to the anti-dumping/anti-subsidy measure.
7. The Minister of Industry and Trade shall issue a decision on non-extension of the application of the anti-dumping/anti-subsidy measure in case the investigating authority’s conclusion of final review contains one of the following contents:
a) Showing that the domestic producer fails to submit the request for final review to extend the application of the anti-dumping/anti-subsidy measure within the prescribed time limit;
b) Showing that the request for final review for extension of the application of the anti-dumping/anti-subsidy measure is inadequate and invalid within the prescribed time limit;
c) Showing that there is insufficient basis to confirm that the dumping/subsidization will continue or reoccur;
d) Showing that there is insufficient basis to confirm that the material injury to the domestic industry will continue or reoccur in case of non-extension of the application of the anti-dumping/anti-subsidy measure.
8. The adjustment to application of the anti-dumping/anti-subsidy measure specified in point a, point c clause 2 of this Article, point a, point b clause 3 of this Article; point a, point b clause 4 of this Article; point b, point c clause 5 of this Article shall not affect the time limit for application of the effective anti-dumping/anti-subsidy measure.
Chapter III
INVESTIGATION, APPLICATION AND REVIEW OF APPLICATION OF SAFEGUARD MEASURES
Section 1. PROCEDURES FOR INVESTIGATION FOR APPLICATION OF SAFEGUARD MEASURES
Sub-section 1. REQUEST
Article 63. Request for investigation for application of safeguard measure
A request for investigation for application of a safeguard measure shall include the following documents and evidence:
1. Name, address and other necessary information on the representative of the domestic industry.
2. Information, data and evidence serving identification of the representative of the domestic industry, including list of domestic organizations and individuals producing similar goods or directly competitive goods; volume and quantity of similar goods or directly competitive goods produced by such organizations and individuals.
3. Names and addresses of organizations and individuals producing similar goods or directly competitive goods, and supporting or opposing the case.
4. Description of imports requested to be investigated for application of the safeguard measure, including scientific names, trade names, common names; ingredients; basic physical and chemical characteristics; production process; main purposes; Vietnam and international standards/regulations (if any); codes in accordance with the List of Imports and Exports of Vietnam.
5. Description of similar goods or directly competitive goods of the domestic industry, including scientific names, trade names, common names; ingredients; basic physical and chemical characteristics; production process; main purposes; Vietnam and international standards/regulations (if any).
6. Information on volume, quantity and value of imports specified in clause 4 of this Article within at least 03 consecutive years before submission of the request for application of the safeguard measure.
7. Information, data and evidence about the serious injury or threat to cause the serious injury to the domestic industry within at least 3 years before submission of the request for application of the safeguard measure or from the time on which the domestic industry begins operating in case the domestic industry has been operating for less than 03 years.
8. Information, data and evidence about the causal relationship between the import of goods specified in clause 4 of this Article and the serious injury or threat to cause the serious injury to the domestic industry.
9. Specific requirements for application of the safeguard measure, time limit for and extent of the application.
Article 64. Appraisal of request for investigation for application of safeguard measure
1. Consideration of adequacy and validity of the request for investigation for application of a safeguard measure shall comply with regulations in Article 20 of this Decree.
2. The request for investigation for application of the safeguard measure shall be appraised and an investigation decision shall be issued in accordance with regulations in clause 2 Article 70 of the Law on Foreign Trade Management.
3. The request for investigation for application of the safeguard measure shall be appraised as follows:
a) Identifying the legal representative status for the domestic industry of the organization or individual submitting the request as per law;
b) Determining evidence about sudden increase in imports into Vietnam, causing or threatening to cause the serious injury to the domestic industry.
4. Organizations and individuals will be considered as legal representatives of the domestic industry as specified in point a clause 3 of this Article when the total volume and quantity of similar goods or directly competitive goods produced by domestic producers submitting requests for and supporting requests for investigation for application of safeguard measures account for at least 25% of total volume and quantity of similar goods or directly competitive goods produced domestically.
5. In case the investigating authority obtains clear evidence about sudden increase in imports into Vietnam, causing or threatening to cause the serious injury to the domestic industry, the Minister of Industry and Trade shall issue a decision on investigation for application of the safeguard measure.
Sub-section 2. INVESTIGATION FOR APPLICATION OF SAFEGUARD MEASURES
Article 65. Decision on investigation for application of safeguard measure
A decision on investigation for application of a safeguard measure issued by the Minister of Industry and Trade shall include:
1. Detailed information on imports undergoing investigation, and their codes in accordance with the List of Imports and Exports of Vietnam.
2. Names and addresses of domestic organizations and individuals producing similar goods or directly competitive goods, and requesting the application of the safeguard measure .
3. Summary of information on increase in imports undergoing investigation, causing or threatening to cause the material injury to the domestic industry.
4. Procedures for investigation for application of the safeguard measure.
Article 66. Period of investigation for determination of injury to domestic industry in case of investigation for application of safeguard measure
The period of investigation for determination of the material injury or threat to cause the material injury to the domestic industry shall be at least 03 years. In case the relevant party has less than 3 years of operation, the collected data will be the entire operation duration of the related party.
Article 67. Questionnaire about investigation for application of safeguard measure
1. Within 20 days from the date on which the Minister of Industry and Trade issues a decision on investigation, the investigating authority shall send an investigation questionnaire to the relevant parties, including:
a) Domestic producers of similar goods or directly competitive goods;
b) Importers of goods undergoing investigation for application of the safeguard measure;
c) Other relevant parties.
2. The relevant parties shall submit their written replies to the investigation questionnaire within 30 days from the date of receipt of the questionnaire. If necessary or there are written requests for extension with reasonable reasons from the relevant parties, the investigating authority may extend the time limit and it may be extended for up to 30 more days.
3. The questionnaire shall be considered having reached the recipient after 07 days from the date on which it is sent by the investigating authority. The sending date shall be determined according to the postmark or the date on which the investigating authority publishes the questionnaire on its web portal.
Article 68. Determination of serious injury and threat to cause serious injury to the domestic industry in case of investigation for application of safeguard measure
1. A serious injury to the domestic industry shall be determined on the basis of consideration of the following factors:
a) Absolute or relative increase in the volume/quantity of goods undergoing investigation for import into Vietnam as compared to the volume/quantity of similar goods or directly competitive goods domestically produced;
b) Increase in volume/quantity of goods undergoing investigation specified in point a of this clause due to the impact of unforeseen developments;
c) Impacts on prices of imports undergoing investigation regarding the prices of similar goods or directly competitive goods domestically produced;
d) Impacts of increase in imports undergoing investigation on the domestic industry through the following factors: revenue, output, sales volume, market share, capacity, utilized capacity, profit, labor, inventory and other relevant factors deemed appropriate by the investigating authority.
2. A threat to cause the serious injury to the domestic industry shall be determined on the basis of consideration of the following factors:
a) Absolute or relative increase in the volume/quantity of goods undergoing investigation for import into Vietnam as compared to the volume/quantity of similar goods or directly competitive goods domestically produced;
b) Increase in volume/quantity of goods undergoing investigation specified in point a of this clause due to the impact of unforeseen developments;
c) Production capacity of the foreign producer or exporter that is large enormous or may be significantly increased in the coming time, leading to a significant increase in the volume/quantity of goods undergoing investigation for import into Vietnam;
d) Sudden increase in imports into Vietnam, causing a considerable reduction in prices, maintaining considerably low prices, or preventing considerable increases in prices of similar goods or directly competitive goods of the domestic industry, resulting in increase in the demand for imports;
dd) Inventory data on goods undergoing investigation;
e) Other relevant factors.
3. The serious injury or threat to cause the serious injury to the domestic industry shall be determined on the basis of specific and objective evidences.
Article 69. Determination of causal relationship between sudden increase in imports into Vietnam and injury to domestic industry in case of investigation for application of safeguard measure
When determining the causal relationship between the sudden increase in imports undergoing investigation and the serious injury or threat to cause the serious injury to the domestic industry, the investigating authority shall consider the following factors. To be specific:
1. The sudden increase in imports undergoing investigation mainly causes the serious injury or threat to cause the serious injury to the domestic industry.
2. Any factor other than the sudden increase in imports which causes or threatens to cause any serious injury to the domestic industry will not be considered as an effect caused by the sudden increase, including:
a) Decline in consumer demand or change in the form of consumption of similar goods or directly competitive goods domestically produced;
b) Volume/quantity of imports undergoing investigation and originating from countries and territories that do not undergo the investigation;
c) Trade restriction policy;
d) Technology development;
dd) Exportability;
e) Productivity of the domestic industry;
g) Other relevant factors.
Sub-section 3. APPLICATION OF SAFEGUARD MEASURE
Article 70. Application of provisional safeguard measure
1. The Minister of Industry and Trade shall decide to apply a provisional safeguard measure when there is one of the following factors:
a) Sudden increase in imports undergoing investigation;
b) Serious injury or threat to cause serious injury to the domestic industry;
c) Sudden increase in imports specified in point a of this clause, mainly causing the serious injury or threat to cause the serious injury to the domestic industry;
d) Delay in the application of the safeguard measure, causing or threatening to cause the serious injury to the domestic industry that is hard to recover.
2. The provisional safeguard measure shall be only applied in the form of additional import duty.
3. A decision to apply the provisional safeguard measure includes:
a) Specific regulations on the imports subject to the provisional safeguard measure , their codes in accordance with the List of Imports and Exports of Vietnam;
b) List of countries and territories exempting from the application of the provisional safeguard measure;
c) Provisional safeguard duty;
d) Effective date of the decision and time limit for the application of the provisional safeguard measure;
dd) Investigation conclusion containing information or evidence proving that the increase in imports undergoing investigation causes or threatens to cause the serious injury to the domestic industry;
e) Procedures and documentation on inspection and application of the provisional safeguard measure;
4. The Minister of Industry and Trade may decide to suspend the application of the provisional safeguard measure before the deadline if necessary.
Article 71. Application or non-application of official safeguard measure
1. Within 20 days from the date on which a final review conclusion is sent by the investigating authority to the Minister of Industry and Trade, the Minister of Industry and Trade shall issue a decision on application or non-application of an official safeguard measure.
2. In case the Minister of Industry and Trade issues the decision on application of the official safeguard measure, such decision shall include:
a) Description of imports subject to the safeguard measure, including names, basic characteristics and codes in accordance with the List of Imports and Exports of Vietnam;
b) List of countries and territories exempting from the application of the official safeguard measure;
c) Official safeguard measure;
d) Effective date of the decision and time limit for the application of the official safeguard measure;
dd) Provisional safeguard duty difference and handling of overpaid duties (if any);
e) Investigation conclusion showing the necessity to apply the official safeguard measure;
g) Procedures and documentation on inspection and application of the official safeguard measure.
3. In case the Minister of Industry and Trade issues a decision on non-application of the official safeguard measure and termination of the investigation into the safeguard case in accordance with regulations in clause 3 Article 71 of the Law on Foreign Trade Management, such decision shall include:
a) Description of imports that are excluded from application of the official safeguard measure and investigation for application of the safeguard measure, and investigation for application of the safeguard measure, including names, basic characteristics and codes in accordance with the List of Imports and Exports of Vietnam;
b) Investigation conclusion containing one of the contents specified in clause 3 Article 71 of the Law on Foreign Trade Management.
c) Guidelines for handling the provisional safeguard duty overpaid (if any).
Article 72. Application of safeguard measure in the form of import quota/tariff-rate quota
In case the Minister of Industry and Trade issues a decision on application of the official safeguard measure in the form of the import quota/tariff-rate quota, the following regulations shall be complied with:
1. The import quota/tariff-rate quota shall not lower than the average quantity/volume of imports within the last 03 years with import data, unless the investigating authority has reasonable argument/evidence that it is necessary to impose a lower import quota to prevent or overcome serious injury or threat to cause serious injury.
2. The Ministry of Industry and Trade shall allocate quotas among exporting countries/territories on the basis of their market shares, which are calculated according to the total volume/quantity of goods exported from such exporting countries/territories to Vietnam in the last 03 years with import data and such quota allocation shall take into account special factors affecting the trade, except for the case specified in clause 3 of this Article.
3. In case the volume/quantity of imports from one or several countries/territories disproportionately increases in comparison to increase in total volume of imports undergoing investigation within a period of 03 years, the Ministry of Industry and Trade may impose a quota lower than the average quota of the 03 most recent years or allocate the quota to each country/territory without depending on market shares of the exporting countries/territories within 03 most recent years.
4. The quota imposition specified in clause 3 of this Article shall be based on legitimate grounds and conditions considered after agreements with relevant countries/territories are reached in order to ensure fairness to all countries/territories whose exports to Vietnam are subject to the safeguard measure. The quota shall not be allocated in case where the investigating authority determines that there is any threat to cause serious injury in a safeguard case.
5. If the duration of imposition of the import quota/tariff-rate quota exceeds 01 year, the Ministry of Industry and Trade shall increase the import quota/and tariff-rate quota for the imposition in the subsequent years.
6. The customs authority shall monitor the application of the safeguard measure in the form of the import quota/tariff-rate quota and deduct the import quota/tariff-rate quota.
7. The Ministry of Industry and Trade shall be responsible for consulting with countries/territories whose goods are subject to import quotas.
Section 2. REVIEW OF APPLICATION OF SAFEGUARD MEASURE
Sub-section 1. REVIEW
Article 73. MID-TERM REVIEW OF APPLICATION OF SAFEGUARD MEASURE
1. If the duration of application of the safeguard measure, including the duration of application of the provisional safeguard measure is more than 03 years, the Minister of Industry and Trade shall carry out a midterm review of the application of the safeguard measure before half of the application duration expires.
2. At least 06 months before half of the duration of application of the safeguard measure expires, the investigating authority shall notify the receipt of the request for mid-term review of the application of the safeguard measure.
3. The mid-term review of the application of the safeguard measure includes the following contents:
a) Identification of information and data on volume/quantity of imports subject to the safeguard measure from the date on which the safeguard measure is applied;
b) Assessment of production and business of the domestic industry from the date on which the safeguard measure is applied;
c) Possibility of relaxation or termination of the application of the safeguard measure.
Article 74. Final review of application of safeguard measure
1. At least 15 months before the time limit for application of the safeguard measure expires, the investigating authority shall notify receipt of each request for review of the application of the safeguard measure.
2. Within 30 days from the date on which the investigating authority gives notification, a representative of the domestic industry is entitled to submit a request for final review of application of the safeguard measure.
3. The Minister of Industry and Trade shall consider deciding to conduct the final review of the application of the safeguard measure when there is an adequate and valid request for extension of the application of the safeguard measure, submitted by a producer of similar goods or directly competitive goods that acts as a representative of the domestic industry.
4. Organization and individual submitting requests for extension of the application of safeguard measures will be considered as legal representatives of the domestic industry when the total volume and quantity of similar goods or directly competitive goods produced by domestic producers submitting requests for and supporting requests for final reviews account for at least 25% of total volume and quantity of similar goods or directly competitive goods produced domestically.
5. The final review of the application of the safeguard measure includes the following contents:
a) Identifying information and data on volume/quantity of imports subject to the safeguard measure from the date on which the safeguard measure is applied;
b) Assessing production and business of the domestic industry from the date on which the safeguard measure is applied;
c) Assessing adjustments to the domestic industry from the date on which the safeguard measure is applied;
d) Assessing whether the continuation in application of the safeguard measure is necessary or unnecessary to prevent or overcome the serious injury to the domestic industry.
Article 75. Review of scope of goods subject to safeguard measure
1. The review-requesting party is entitled to submit a request for review at any time after the official safeguard measure is in effect.
2. The Minister of Industry and Trade shall consider deciding to conduct the review of scope of goods subject to the safeguard measure when there is a request for review, submitted by an importer of goods subject to the safeguard measure in accordance with point a clause 3 Article 96 of the Law on Foreign Trade Management.
3. Review of scope of goods subject to the safeguard measure includes:
a) Comparison of imports with similar goods or directly competitive goods domestically produced;
b) Alternative capacity of imports;
c) Domestic industry’s capacity to produce similar goods or directly competitive goods.
Sub-section 2. PROCEDURES FOR REVIEW OF APPLICATION OF SAFEGUARD MEASURE
Article 76. Request for application of safeguard measure
1. A request for review of application of the safeguard measure includes the following information, documents and evidence:
a) Name, address and other necessary information on the review-requesting party;
b) Information on the safeguard measure requested to be reviewed;
c) Specific requests for review;
d) Other information specified in clause 2 and clause 3 of this Article.
2. In case of final review of the application of the safeguard measure in accordance with Article 74 of this Decree, the request shall include the following additional information:
a) Information and data on volume/quantity of imports into Vietnam subject to the safeguard measure from the date on which the safeguard measure is applied;
b) Information and data on production and business of the domestic industry from the date on which the safeguard measure is applied;
c) Information and data on adjustments to the domestic industry from the date on which the safeguard measure is applied;
d) Information, data and evidence about necessity of continuing application of the safeguard measure to prevent or overcome the serious injury to the domestic industry;
dd) Other information deemed necessary by the review-requesting party.
3. In case of review specified in Article 75 of this Decree, the request shall include the following additional information:
a) Information, data and evidence related to scope of goods requested to be reviewed;
b) Comparison of imports with similar goods or directly competitive goods domestically produced;
c) Information on assessment of alternative capacity of imports;
d) Information and data on domestic industry’s capacity to produce similar goods or directly competitive goods;
dd) Other information deemed necessary by the review-requesting party.
Article 77. Appraisal of request for application of safeguard measure
1. Consideration of adequacy and validity of a request for review of application of a safeguard measure shall comply with regulations in Article 21 of this Decree.
2. Within 30 days from the date on which the investigating authority notifies the receipt of the adequate and valid request for review, the investigating authority shall appraise the request and send it to the Minister of Industry and Trade to consider deciding the review of the application of the safeguard measure. The request for review of the application of the safeguard measure shall be appraised as follows:
a) Determining eligibility of the request-submitting organization/individual as per law;
b) Determining that information, documents and evidence included in the request are suitable for the request for review.
Article 78. Decision on review of application of safeguard measure
A decision on review of the application of the safeguard measure includes the following contents:
1. Basic information on application of the safeguard measure.
2. Review bases.
3. Information on the review-requesting party.
4. Specific review contents.
5. Review period.
6. Review procedures.
Article 79. Questionnaire about investigation for review of application of safeguard measure
1. Within 20 days from the date on which the Minister of Industry and Trade issues a decision on review of the application of the safeguard measure, the investigating authority shall send a questionnaire to the relevant parties.
2. Within 30 days from the date of receipt of the questionnaire, the relevant parties shall submit their written replies to the questionnaire to the investigating authority. This time limit may be considered to be extended for up to 30 more days by the investigating authority on the basis a written request for extension.
3. The questionnaire shall be considered having reached the recipient after 07 days from the date on which it is sent by the investigating authority. The sending date shall be determined according to the postmark or the date on which the investigating authority publishes the questionnaire on its web portal.
Article 80. Decision on result of review of application of safeguard measure
1. According to the investigating authority’s conclusion of the midterm review, the Minister of Industry and Trade shall issue one of the following decision:
a) Maintenance of the application of the safeguard measure;
b) Relaxation of the application of the safeguard measure;
c) Termination of the application of the safeguard measure.
2. According to the investigating authority’s conclusion of the final review, the Minister of Industry and Trade shall issue one of the following decision:
a) Extension or non-extension of the application of the safeguard measure;
b) Adjustment to extent of the application of the safeguard measure;
b) Adjustment to scope of the application of the safeguard measure;
3. According to the investigating authority’s conclusion of the review of scope of goods, the Minister of Industry and Trade shall issue one of the following decision:
a) Non-adjustment to scope of goods subject to the safeguard measure;
b) Narrowness of scope of goods subject to the safeguard measure.
Chapter IV
INVESTIGATION AGAINST EVASION OF TRADE REMEDIES
Section 1. EVASION OF TRADE REMEDIES
Article 81. Expansion of scope of application of trade remedies
Scope of application of trade remedies may be expanded for goods involved in evasion of trade remedies as follows:
1. Goods involved in evasion of trade remedies through production/assembly in Vietnam.
2. Goods involved in evasion of trade remedies through production/assembly in a third country.
3. Goods involved in evasion of trade remedies through insignificant changes in goods subject to trade remedies.
4. Goods involved in evasion of trade remedies by transshipment throughout one or more different countries.
5. Goods involved in evasion of trade remedies by way of changing their producers to benefit from the difference in extent of application of trade remedies.
Article 82. Evasion of trade remedies through production/assembly in Vietnam
1. Goods specified in clause 1 Article 81 of this Decree will be considered involved in evasion of trade remedies through production/assembly in Vietnam when the following conditions are satisfied:
a) Goods similar to those subject to trade remedies are produced/assembled in Vietnam from raw materials, components or materials imported from countries subject to trade remedies and sold at the prices lower than the normal prices of the goods subject to trade remedies in the initial investigation period;
b) There is a considerable increase in production and assembly in Vietnam after the Minister of Industry and Trade decides the investigation or the application of initial trade remedies;
c) Value of raw materials, components or materials originating from countries subject to initial trade remedies account for at least 60% of total value of raw materials, materials or components used for production or assembly of goods similar to those subject to initial trade remedies in Vietnam;
d) Added value of domestically produced/assembled goods similar to those subject to initial trade remedies is inconsiderable.
2. Inconsiderable added value of domestically produced/assembled goods similar to those subject to initial trade remedies in accordance with regulations in point d clause 1 of this Article shall be based on the following factors:
a) Percentage of added value of domestically produced/assembled goods, accounting for less than 25% of total cost for production of similar goods;
b) Inconsiderable extent of investment in production in Vietnam;
c) Inconsiderable extent of research and development of products in Vietnam;
d) Inconsiderable number of pieces of equipment additionally invested in to serve production in Vietnam;
dd) Inconsiderable different factors constituting process of production of goods in Vietnam.
Article 83. Evasion of trade remedies through production/assembly in a third country
Goods specified in clause 2 Article 81 of this Decree will be considered involved in evasion of trade remedies when the following conditions are satisfied:
1. Export price of the good exported from a third country to Vietnam and undergoing investigation into evasion of trade remedies is lower than the normal price of the good subject to trade remedies in the initial investigation period;
2. There is a considerable increase in the volume/quantity of imports into Vietnam after the Minister of Industry and Trade decides the investigation or the application of initial trade remedies.
3. Value of raw materials, components or materials originating from countries subject to initial trade remedies account for at least 60% of total value of raw materials, materials or components of exports to Vietnam undergoing investigation into evasion of trade remedies.
4. It is determined that goods undergoing investigation into evasion of trade remedies do not originate from the third country according to non-preferential rules of origin specified in applicable legislative documents.
Article 84. Evasion of trade remedies through insignificant changes in goods subject to trade remedies
1. Goods specified in clause 3 Article 81 of this Decree will be considered involved in evasion of trade remedies when the following conditions are satisfied:
a) There is a considerable increase in the volume/quantity of imports in comparison to the volume/quantity of imports subject to trade remedies after the Minister of Industry and Trade decides the investigation or the application of initial trade remedies;
b) There is a considerable increase in the volume/quantity of imports after the Minister of Industry and Trade decides the investigation or the application of initial trade remedies.
2. Goods undergoing investigation into evasion of trade remedies shall be considered to have insignificant changes compared to the goods subject to trade remedies on the basis of assessment of the following factors:
a) General physical and chemical properties;
b) Final use purpose;
c) Interchangeability;
d) Production process;
dd) Production costs;
e) Customer consumption trends;
g) Marketing methods;
h) Trade and distribution channels;
i) Business model;
k) Price changes.
Article 85. Evasion of trade remedies by transshipment throughout one or more different countries/territories
Goods specified in clause 4 Article 81 of this Decree will be considered involved in evasion of trade remedies by transshipment throughout one or more different countries/territories when the following conditions are satisfied:
1. Goods protected and produced by producers/exporters are subject to initial trade remedies.
2. Goods are imported into Vietnam from a country/territory that is not subject to initial trade remedies.
3. Trade remedies are applied against the initial exporting country of the goods.
4. Goods have been transshipped through one or more different countries or territories before being imported into Vietnam.
Article 86. Evasion of trade remedies by way of changing producers to benefit from the difference in extent of application of trade remedies
Goods specified in clause 5 Article 81 of this Decree shall be considered involved in evasion of trade remedies by way of changing producers to benefit from the difference in extent of application of trade remedies when the following conditions are satisfied:
1. Goods are imported into Vietnam from a country/territory subject to trade remedies.
2. Goods are imported from foreign producers in one of the following two cases:
a) Initial trade remedies are not applied to goods of such foreign producers; or
b) Initial trade remedies are applied to goods of such foreign producers at a duty rate lower than the one applied to goods of other foreign producers mentioned in clause 3 of this Article.
3. Goods are purchased by foreign producers from other foreign producers whose goods are subject to initial trade remedies for export to Vietnam.
4. Goods undergoing investigation into evasion of trade remedies are subject to trade remedies if they are imported into Vietnam from other foreign producers mentioned in clause 3 of this Article.
Section 2. INVESTIGATION FOR APPLICATION OF MEASURES AGAINST EVASION OF TRADE REMEDIES
Sub-section 1. REQUEST
Article 87. Requests for investigation for application of measures against evasion of trade remedies
1. Relevant parties specified in Article 74 of the Law on Foreign Trade Management are entitled to submit requests for investigation for application of measures against evasion of trade remedies.
2. A request for investigation for application of a measure against evasion of trade remedies includes the following information, documents and evidence:
a) Name, address and other necessary information on the requesting party;
b) Description of imports requested to be investigated for application of the measure against evasion of trade remedies, including scientific names, trade names, common names; ingredient; basic physical and chemical characteristics; production process; main purposes; Vietnam and international standards/regulations (if any); codes in accordance with the List of Imports and Exports of Vietnam; producing/exporting countries, origins;
c) Volume/quantity of imports specified in Article 81 of this Decree;
d) Quantity/volume of similar goods produced domestically;
dd) Information on export prices of the imports specified in point b of this clause at the time of import into Vietnam within at least 12 months before submission of the request for investigation for application of the measure against evasion of trade remedies;
e) Information, data and evidence about evasion of trade remedies claimed by the requesting party;
g) Other names, addresses and necessary information on producers/exporters/importers related to evasion of trade remedies;
h) Information on the injury to the domestic industry or compromise of the effect of trade remedies being applied to protect the domestic industry;
i) Specific requirements for application of the measure against evasion of trade remedies, the time limit for and the extent of application.
3. The Minister of Industry and Trade shall decide to conduct investigation for application of measures against evasion of trade remedies in case the investigating authority formulates requests and provides evidence about necessity for such investigation.
Article 88. Appraisal of requests for investigation for application of measures against evasion of trade remedies
1. Consideration of adequacy and validity of a request for investigation for application of a measure against evasion of trade remedies shall comply with regulations in Article 20 of this Decree.
2. Within 45 days from the date of receipt of the adequate and valid request, the Minister of Industry and Trade shall consider issuing a decision on investigation or non-investigation for application of the measure against evasion of trade remedies.
3. The request shall be appraised as follows:
a) Determining signs of evasion of trade remedies according to regulations in this Decree;
b) Determining signs of changes in quantity/value of imports from originating or exporting countries after the Minister of Industry and Trade decides to launch the investigation or apply initial trade remedies;
c) Determining evidence that the evasion of trade remedies causes the injury or compromises the effect of the measure against evasion of trade remedies being applied to protect the domestic industry;
Section 2. PROCEDURES FOR INVESTIGATION AGAINST EVASION OF TRADE REMEDIES
Article 89. Decision on investigation against evasion of trade remedies
A decision issued by the Minister of Industry and Trade on investigation against evasion of trade remedies shall include the following contents:
1. Basic information on trade remedies that are being applied.
2. Name of the investigation-requesting party for investigation for application of the measure against evasion of trade remedies.
3. Specific investigation contents.
4. Procedures for investigation against evasion of trade remedies.
Article 90. Investigation against evasion of trade remedies
The investigation against evasion of trade remedies includes one or some of the following contents:
1. Determination of signs of evasion of trade remedies according to regulations in Article 81 of this Decree.
2. Determination of absolute increase in the volume/quantity of imports involved in evasion of trade remedies into Vietnam after the Minister of Industry and Trade decides the investigation or the application of initial trade remedies.
3. Assessment of the injury to the domestic industry or the compromise of the effect of trade remedies being applied to protect the domestic industry.
4. Assessment of changes in quantity/value of imports from originating or exporting countries after the Minister of Industry and Trade decides to launch the investigation or apply initial trade remedies that are being applied and in case where changes are caused by the evasion of trade remedies that are applicable.
Article 91. Assessment of compromise of effect of trade remedies
1. The assessment of compromise of effect of trade remedies that are being applied shall be based on consideration of one or some of the following contents:
d) Difference in prices between goods undergoing investigation and corresponding imports regarding application of initial trade remedies;
b) Difference between prices of goods undergoing investigation and selling prices of prices of unaffected similar goods domestically produced;
c) Impacts of goods undergoing investigation on the domestic industry, including market share, revenue, sales volume, profit, quantity and inventory;
d) Other factors.
2. The assessment of compromise of effect of trade remedies shall be based on specific evidences.
Article 92. Time limit for investigation against evasion of trade remedies
1. The time limit for investigation against evasion of trade remedies shall not exceed 09 months from the date on which the Minister of Industry and Trade issues the investigation decision.
2. In a special case, the Minister of Industry and Trade may decide to extend this time limit for up to 3 more months.
Article 93. Questionnaire about investigation against evasion of trade remedies
1. Within 20 days from the date on which the Minister of Industry and Trade issues a decision on investigation, the investigating authority shall send a questionnaire to the relevant parties, including:
a) Domestic producers;
b) Foreign producers and exporters;
c) Importers of goods undergoing investigation into evasion of trade remedies;
d) Other relevant parties.
2. Within 30 days from the date of receipt of the questionnaire, the relevant parties shall submit their written replies to the questionnaire to the investigating authority. In case of necessity or there are written requests for extension with reasonable reasons from the relevant parties, the investigating authority may extend the time limit for up to 30 more days.
3. The questionnaire shall be considered having reached the recipient after 07 days from the date on which it is sent by the investigating authority. The sending date shall be determined according to the postmark or the date on which the investigating authority publishes the questionnaire on its web portal.
Sub-section 3. APPLICATION OF MEASURES AGAINST EVASION OF TRADE REMEDIES
Article 94. Application of provisional measures against evasion of trade remedies
1. Within 20 days from the date on which the investigating authority sends a preliminary investigation conclusion, the Minister of Industry and Trade shall issue a decision on application or non-application of a provisional measure against evasion of trade remedies.
2. A decision on application of the provisional measure against evasion of trade remedies shall include the following contents:
a) Description of imports to which the provisional measure against evasion of trade remedies is applied, including scientific names, trade names, common names; ingredient; basic physical and chemical characteristics; production process; Vietnam and international standards/regulations (if any); codes in accordance with the List of Imports and Exports of Vietnam;
b) Names and other necessary information on producers and exporters of goods to which the provisional measure against evasion of trade remedies is applied;
c) Name of the producing/exporting country whose goods are subject to the provisional measure against evasion of trade remedies is applied;
d) Preliminary conclusion showing necessity of applying the provisional measure against evasion of trade remedies;
dd) Provisional measure against evasion of trade remedies;
e) Effective date and time limit for application of the provisional measure against evasion of trade remedies;
g) Procedures and documentation on inspection and application of the provisional measure against evasion of trade remedies.
3. In case the Minister of Industry and Trade decides to apply the provisional measure against evasion of trade remedies, the effective trade remedies will also be applied to goods of producers/exporters specified in Article 81 of this Decree when it is determined that there is evasion of trade remedies.
4. The time limit for application of the provisional measure against evasion of trade remedies is expired when the official measure against evasion of trade remedies takes effect or initial trade remedies cease to have effect.
5. The provisional measure against evasion of trade remedies is the anti-dumping/anti-subsidy duty or the safeguard duty imposed on goods of all producers/exporters of each country/territory related to the investigation for application of initial trade remedies.
Article 95. Application or non-application of official measures against evasion of trade remedies
1. Within 20 days from the date on which the investigating authority sends a final investigation conclusion, the Minister of Industry and Trade shall issue a decision on application or non-application of an official measure against evasion of trade remedies.
2. In case the Minister of Industry and Trade issues a decision on application of the official measure against evasion of trade remedies, such decision shall include:
a) Description of imports to which the official measure against evasion of trade remedies is applied, including scientific names, trade names, common names; ingredient; basic physical and chemical characteristics; production process; Vietnam and international standards/regulations (if any); codes in accordance with the List of Imports and Exports of Vietnam;
b) Names and other necessary information on producers and exporters of goods to which the official measure against evasion of trade remedies is applied;
c) Name of the producing/exporting country whose goods are subject to the official measure against evasion of trade remedies is applied;
d) Official conclusion showing necessity of applying the official measure against evasion of trade remedies;
dd) Official measure against evasion of trade remedies;
e) Effective date and time limit for application of the official measure against evasion of trade remedies;
g) Difference in duties due to application of provisional measures against evasion of trade remedies and handling of overpaid duties (if any);
h) Procedures and documentation on inspection and application of the official measures against evasion of trade remedies.
3. In case the Minister of Industry and Trade issues a decision on non-application of the official measure against evasion of trade remedies and termination of investigation against evasion of trade remedies, such decision shall include:
a) Description of imports that are excluded from application of the official measure against evasion of trade remedies, and investigation for application of the measure against evasion of trade remedies, including scientific names, trade names, common names; ingredient; basic physical and chemical characteristics; production process; Vietnam and international standards/regulations (if any); codes in accordance with the List of Imports and Exports of Vietnam;
b) Names and other necessary information on producers and exporters of goods that are excluded from application of the official measure against evasion of trade remedies, and investigation for application of the measure against evasion of trade remedies;
c) Name of the country producing/exporting goods that are excluded from application of the official measure against evasion of trade remedies, and investigation for application of the measure against evasion of trade remedies;
d) Official conclusion showing that it is not necessary to apply the official measure against evasion of trade remedies;
dd) Guidelines for handling of overpaid duties due to application of provisional measures against evasion trade remedies (if any);
4. In case of decision on application of the provisional measure against evasion of trade remedies, the effective trade remedies will also be applied to goods of producers/exporters specified in Article 81 of this Decree when it is determined that there is evasion of trade remedies.
5. The application of the official measure against evasion of trade remedies is terminated when initial trade remedies cease to have effect.
6. The time limit for application of the official measure against evasion of trade remedies may be extended in such a way to coincide with the extended time limit for application of initial trade remedies.
7. The official measure against evasion of trade remedies is the anti-dumping/anti-subsidy duty or the safeguard duty imposed on goods of all producers/exporters of each country/territory related to the investigation for application of initial trade remedies.
8. Overpaid duties due to application of measures against evasion of trade remedies shall be handled according to regulations in clause 5 and clause 6 Article 68 of the Law on Foreign Trade Management.
Article 96. Procedures for supervising application of measures against evasion of trade remedies
1. After decisions on application of measures against evasion of trade remedies are issued, on a 6-month basis during the duration of application of measures, producers/exporters whose goods are not subject to measures against evasion of trade remedies according to decisions issued by the Minister of Industry and Trade shall notify the investigating authority of output, value, domestic sales, value and quantity of exports to Vietnam.
2. A notification of goods of producers/exports that are not subject to measures against evasion of trade remedies according to decisions issued by the Minister of Industry and Trade shall include the following documents:
a) Certificates of origin clearly showing origin criteria at the request of the Ministry of Industry and Trade;
b) Certificate of import of each shipment of goods into Vietnam issued to each producer/exporter and notified to the investigating authority before measures against evasion of trade remedies take effect. In case of any change in certificates, producers/exporters shall notify the investigating authority and the customs authority 15 days before initiation of procedures for clearance of shipments.
3. If necessary to compare and verify documents included in the import documentation, the investigating authority and the customs authority are entitled to request producers/exporters to send electronic certificates regarding each shipment 15 days before initiation of procedures for clearance of shipments by electronic means.
4. The authenticity and validity of a certificate specified in point b, clause 2 of this Article shall be inspected as follows:
a) The investigating authority shall preside over and cooperate with the customs authority in inspecting the authenticity and validity of the certificate during the period of application of trade remedies within its jurisdiction and in accordance with the law on foreign trade management.
b) The customs authority shall preside over and cooperate with the investigating authority in inspecting the authenticity and validity of the certificate within its jurisdiction and in accordance with the law on customs.
5. The authenticity and validity of the certificate specified in clause 4 of this Article shall be verified as soon as possible, but no later than 90 days after, the date on which the verification is conducted.
6. During the verification duration, if the importer proposes clearance and release of goods, the provisional duty rate shall be applied to the same goods of all other producers and exporters in the initial trade remedy case. After the verification result is produced, the customs authority shall imitate duty/tax procedures according to applicable regulations on duties and taxes.
Section 3. REVIEW OF APPLICATION OF MEASURES AGAINST EVASION OF TRADE REMEDIES
Article 97. Review of application of measures against evasion of trade remedies
1. Review-requesting parties may submit requests for review of application of measures against evasion of trade remedies that are being applied within the duration during which the investing authority receives requests for review of application of initial trade remedies in accordance with regulations in clauses 1, 2 and 3 Article 51 of this Decree or any time after initial trade remedies take effect.
2. The application of measures against evasion of trade remedies shall be reviewed as follows:
a) Identifying information and data on volume/quantity of imports into Vietnam subject to measures against evasion of trade remedies from the time such measures against evasion of trade remedies are applied;
b) Determining existence of evasion of trade remedies;
c) Assessing whether the continuation in application of measures against evasion of trade remedies is necessary or unnecessary to prevent or overcome the serious injury or compromise of the effect of trade remedies that are being applied.
3. In case any producer/exporter fails to give notification according to regulations in clause 1 Article 96 of this Decree or cooperate or provide information or provide accurate information during the process of which a competent authority inspects the authenticity and validity of documents specified in clause 2 Article 96 of this Decree, the investigating authority is entitled to immediately request the Minister of Industry and Trade to launch review of the application of measures against evasion of trade remedies to goods of such producer/exporter.
4. During the review duration, the provisional duty rate applicable to goods of all other producers and exporters in the initial trade remedy case shall be applied to imports of producers/exporters in accordance with clause 3 of this Article. After the review result is produced, the customs authority shall imitate duty/tax procedures according to applicable regulations on duties and taxes.
Article 98. Parties requesting review of application of measures against evasion of trade remedies
Parties that are entitled to submit requests for review of application of measures against evasion of trade remedies include:
1. Domestic producers.
2. Foreign producers and exporters.
3. New exporters.
4. Importers.
5. Import users.
Article 99. Requests for review of application of measures against evasion of trade remedies
A request for review of application of a measure against evasion of trade remedies includes the following information, documents and evidence:
1. Name, address and other necessary information on the review-requesting party.
2. Name, address and other necessary information on the accused party (if any).
3. Information on the measure against evasion of trade remedies requested to be reviewed.
4. Specific requests for review.
5. Other information and documents.
Article 100. Appraisal of requests for review of application of measures against evasion of trade remedies
1. Consideration of adequacy and validity of a request for review for application of a measure against evasion of trade remedies shall comply with regulations in Article 21 of this Decree.
2. Within 30 days from the date on which the investigating authority notifies the receipt of the adequate and valid request for review, the investigating authority shall appraise the request and send it to the Minister of Industry and Trade to consider deciding the review of the application of the measure against evasion of trade remedies.
3. The request for review shall be appraised as follows:
a) Determining eligibility of the review-requesting party;
b) Determining that information, documents and evidence included in the request are suitable for the request for review.
Article 101. Decisions on review of application of measures against evasion of trade remedies
A decision issued by the Minister of Industry and Trade on review of application of a measure against evasion of trade remedies shall include the following contents:
1. Basic information on application of the measure against evasion of trade remedies.
2. Review bases.
3. Information on review-requesting parties.
4. Specific review contents.
5. Review procedures.
Article 102. Questionnaire about investigation for review of application of measures against evasion of trade remedies
1. Within 20 days from the date on which the Minister of Industry and Trade issues a decision on review, the investigating authority shall send a questionnaire to the relevant parties.
2. Within 30 days from the date of receipt of the questionnaire, the relevant parties shall submit their written replies to the questionnaire to the investigating authority. In case of necessity or there are written requests for extension with reasonable reasons from the relevant parties, the investigating authority may extend the time limit for up to 30 more days.
3. The questionnaire shall be considered having reached the recipient after 07 days from the date on which it is sent by the investigating authority. The sending date shall be determined according to the postmark or the date on which the investigating authority publishes the questionnaire on its web portal.
Article 103. Decision on result of reviewing application of measure against evasion of trade remedies
According to the investigating authority’s conclusion of review of application of the measure against evasion of trade remedies, the Minister of Industry and Trade shall issue one of the following decision:
1. Maintenance of application of the measure against evasion of trade remedies.
2. Adjustment to scope and goods subject to the measure against evasion of trade remedies.
3. Termination of application of the measure against evasion of trade remedies.
Chapter V
HANDLING TRADE REMEDIES APPLIED TO VIETNAMESE EXPORTS
Article 104. Handling principles
1. Vietnamese traders whose goods undergo investigation conducted by importing countries/territories for application of trade remedies as specified in Article 76 of the Law on Foreign Trade Management shall be assisted on the basis of written requests made by Vietnamese traders and relevant trade associations.
2. Lawsuits against importing countries/territories specified in Article 108 of this Decree shall be filed by the Ministry of Industry and Trade on the basis of the collected information and after cooperation and exchange with ministries, ministerial authorities and other competent regulatory bodies, shall be reported to the Prime Minister that will approve a lawsuit plan.
3. The Ministry of Finance shall allocate budget for assistance for traders in accordance with Article 76 of the Law on Foreign Trade Management.
4. The assistance for Vietnamese traders specified in this Article shall comply with Vietnamese law and international treaties to which the Socialist Republic of Vietnam is a signatory.
Article 105. Provision of information related to the case
Information provided for traders as specified in point a clause 1 Article 76 of the Law on Foreign Trade Management shall be information published by relevant authorities of the importing country or permitted to be published in accordance with regulations of international treaties to which the Socialist Republic of Vietnam is a signatory.
Article 106. System of giving early warnings about foreign trade remedy lawsuits against Vietnamese exports
1. The Ministry of Industry and Trade shall build and operate a system of giving early warnings about possibility of foreign trade remedy lawsuits against Vietnamese exports in order to inform enterprises and trade associations to prevent and prepare for lawsuits.
2. The Ministry of Industry and Trade shall promulgate regulations on organization and operation of this system.
Article 107. Exchange with importing countries/territories that are conducting investigation for application of trade remedies to Vietnamese exports
The Ministry of Industry and Trade shall preside over exchange with importing countries/territories that are conducting investigation for application of trade remedies as stipulated in point b, clause 1, Article 76 of the Law on Foreign Trade Management by appropriate forms in accordance with Vietnamese law and international treaties to which the Socialist Republic of Vietnam is a signatory.
Article 108. Filing lawsuits against importing countries/territories violating international treaties to which the Socialist Republic of Vietnam is a signatory
1. On the basis of the collected information or written requests sent by Vietnamese traders, relevant trade associations, enterprise representative organizations, the Ministry of Industry and Trade shall preside over and cooperate with ministries, ministerial authorities and other regulatory bodies in considering formulation of a lawsuit plan according to clause 1 Article 76 of the Law on Foreign Trade Management, and making a documentation to be submitted to the Prime Minister.
2. The documentation submitted to the Prime Minister includes:
a) Proposal for necessity, purposes and legal bases for the lawsuit; plan contents and assessment of impacts of the lawsuit;
b) Consolidated report, explanations, receipt of opinions from ministries, ministerial authorities, organizations and individuals specified in clause 3 of this Article;
c) Other relevant documents.
3. Within 10 days from the date of receipt of written requests from the Ministry of Industry and Trade, the enquired ministries, ministerial authorities, organizations and individuals shall give their written responses to the documentation submitted to the Prime Minister. In case such written responses are not given within the time limit, the Ministry of Industry and Trade shall complete the documentation submitted to the Prime Minister according to the available information.
4. The Prime Minister shall consider deciding to approve the lawsuit plan on the basis of the documentation submitted by the Ministry of Industry and Trade.
5. The Ministry of Industry and Trade shall preside over filing lawsuits against importing countries/territories that are conducting investigation for application of trade remedies according to procedures specified in relevant international treaties to which the Socialist Republic of Vietnam is a signatory.
6. Vietnamese traders, relevant trade associations, enterprise representative organizations shall be responsible for cooperating with the Ministry of Industry and Trade during the process of filing lawsuits against importing countries/territories that are conducting investigation for application of trade remedies.
Article 109. Cooperation in case where Vietnamese traders’ goods undergo investigation conducted by importing countries for application of anti-subsidy measures
In case a Vietnamese trader’s good undergoes investigation conducted by the importing country for application of the anti-subsidy measure in accordance with regulations in clause 2 Article 76 of the Law on Foreign Trade Management, the Ministry of Industry and Trade shall preside over formulation of a plan for cooperation with a foreign investigating authority as follows:
1. Consult with the foreign investigating authority about the alleged subsidization programs of Vietnam
2. Provide information and documents related to the alleged subsidization programs of Vietnam at the request of the foreign investigating authority regarding the Government according to written requests sent by Vietnamese traders, relevant trade associations, enterprise representative organizations and in accordance with regulations of applicable laws.
3. Cooperate with the foreign investigating authority as requested during the on-site investigation into the alleged subsidization programs of Vietnam.
4. Do other appropriate activities.
Article 110. Formulation of plan to request compensation in case Vietnamese traders’ goods undergo investigation conducted by importing countries/territories for application of safeguard measures
1. In case a Vietnamese trader’s good undergoes investigation conducted by the importing country for application of the safeguard measure, the Ministry of Industry and Trade shall preside over and cooperate with ministries, ministerial authorities, relevant organizations and individuals in formulating a plan to request compensation, if necessary, making a documentation to be submitted to the Prime Minister for approval.
2. The documentation submitted to the Prime Minister includes:
a) Proposal for necessity, purposes and legal bases for the request for compensation; plan contents and assessment of impacts of the request for compensation;
b) Consolidated report, explanations, receipt of opinions from ministries, ministerial authorities, organizations and individuals specified in clause 3 of this Article;
c) Other relevant documents.
3. Within 10 days from the date of receipt of written requests from the Ministry of Industry and Trade, the enquired ministries, ministerial authorities, organizations and individuals shall give written responses to the documentation submitted to the Prime Minister. In case such written responses are not given within the time limit, the Ministry of Industry and Trade shall complete the documentation submitted to the Prime Minister according to the available information.
4. The Prime Minister shall consider deciding to approve the plan to request compensation on the basis of the documentation submitted by the Ministry of Industry and Trade.
5. The Ministry of Industry and Trade shall preside over consulting with a competent authority of the importing country about the plan to request compensation approved by the Prime Minister.
6. If an agreement on request for compensation is reached, the Ministry of Industry and Trade shall preside over supervision of implementation of such agreement.
7. Procedures for implementation of the plan to request compensation shall comply with Vietnamese law and international treaties to which the Socialist Republic of Vietnam is a signatory.
Article 111. Formulation of retaliation plan in case Vietnamese traders’ goods undergo investigation conducted by importing countries for application of safeguard measures
1. In case the agreement on request for compensation specified in clause 5 Article 110 of this Decree is not reached, the Ministry of Industry and Trade shall preside over and cooperate with ministries, ministerial authorities, relevant organizations and individuals in formulating a retaliation plan, if necessary, making a documentation to be submitted to the Prime Minister for approval.
2. The documentation submitted to the Prime Minister includes:
a) Proposal for result of consultation specified in clause 5 Article 110 of this Decree; necessity, purposes and legal bases for the retaliation plan; plan contents and assessment of impacts of the plan;
b) Consolidated report, explanations, receipt of opinions from ministries, ministerial authorities, organizations and individuals specified in clause 3 of this Article;
c) Draft decision on implementation of the retaliation plan;
d) Other relevant documents.
3. Within 10 days from the date of receipt of written requests from the Ministry of Industry and Trade, the enquired ministries, ministerial authorities, organizations and individuals shall give written responses to the documentation submitted to the Prime Minister. In case such written responses are not given within the time limit, the Ministry of Industry and Trade shall complete the documentation submitted to the Prime Minister according to the available information.
4. The Prime Minister shall consider deciding to approve the retaliation plan on the basis of the documentation submitted by the Ministry of Industry and Trade.
5. Procedures for implementation of the retaliation plan shall comply with Vietnamese law and international treaties to which the Socialist Republic of Vietnam is a signatory.
Article 112. Participation in relevant parties in trade remedy cases and third parties in dispute settlement cases at the World Trade Organization related to trade remedies
1. The Ministry of Industry and Trade shall consider registering the participation in relevant parties when a foreign country conducts investigation for application of trade remedies to Vietnamese exports.
2. The Ministry of Industry and Trade shall consider registering the third-party participation in a dispute settlement case at the World Trade Organization if the case is related to rights and interests of Vietnam in the trade remedy sector. The Ministry of Industry and Trade may consult with relevant ministries and central authorities for consideration of registration of participation if necessary.
3. The Ministry of Industry and Trade may consider providing information and documents during the participation in a third party as specified in clause 2 of this Article on the basis of written requests made by organizations or individuals, provided that such documents and information may be published in accordance with international treaties to which the Socialist Republic of Vietnam is a signatory.
Article 113. Use of legal services
1. The Ministry of Industry and Trade may employ lawyers or solicitors providing legal services during the implementation of regulations of Article 76 of the Law on Foreign Trade Management. Ministries and ministerial authorities shall cooperate with the Ministry of Industry and Trade in selecting lawyers or solicitors providing legal services in case the Ministry of Industry and Trade sends its written request.
2. The Ministry of Industry and Trade shall elaborate criteria for selection of legal services.
3. The Ministry of Finance shall allocate budget for use of legal services for assistance for Vietnamese traders in accordance with Article 76 of the Law on Foreign Trade Management.
Article 114. Cooperation between regulatory bodies, trade associations and traders
1. Regulatory bodies, trade associations and traders shall cooperate according to the following principles:
a) The Ministry of Industry and Trade shall preside over and promptly cooperate with ministries, ministerial authorities, provincial People's Committees, other competent regulatory bodies and relevant organizations and individuals in operations specified in Article 76 of the Law on Foreign Trade Management;
b) Ministries, ministerial authorities, provincial People's Committees, other competent regulatory bodies and relevant organizations, individuals shall provide information, documents and assessment opinions at the request of the Ministry of Industry and Trade when handling trade remedies applied to Vietnamese exports.
2. Cooperation shall be given as follows:
a) Ministries, ministerial authorities and other competent regulatory bodies shall, within their powers and functions, provide information, documents and assessment opinions within the time limit at the request of the Ministry of Industry and Trade, explain contents when the foreign investigating authority conducts on-site investigation as allocated by the Ministry of Industry and Trade;
b) Trade associations shall cooperate with the Ministry of Industry and Trade in monitoring information on export markets in order to assess risks that foreign countries conduct investigation for application of trade remedies to Vietnamese exports, reporting information related to investigation conducted by foreign countries, applying trade remedies to goods of members, considering participation in parties involved in cases and conducting other operations at the request of the Ministry of Industry and Trade;
c) Vietnam Chamber of Commerce and Industry shall, within its functions and powers, cooperate with the Ministry of Industry and Trade in providing guidance for and assisting Vietnamese traders when their goods undergo investigation conducted by foreign countries for application of trade remedies, and conducting other assistance operations at the request of the Ministry of Industry and Trade;
d) Vietnamese representative missions in foreign countries shall collect and monitor information on and notification given by relevant authorities of importing countries of trade remedies, promptly report them to the Ministry of Industry and Trade, and assist in selection of legal services at the request of the Ministry of Industry and Trade;
dd) The Ministry of Finance shall cooperate with the Ministry of Industry and Trade in conducting operations specified in this Chapter and promptly providing import and export data as requested by relevant agencies affiliated to the Ministry of Industry and Trade;
e) The Ministry of Foreign Affairs shall cooperate with the Ministry of Industry and Trade to conduct operations specified in this Chapter and direct Vietnamese representative missions in foreign countries to proactively cooperate with relevant authorities of importing countries to study, monitor and consolidate information on cases, promptly report them to the Ministry of Industry and Trade and cooperate with the Ministry of Industry and Trade to formulate settlement plans;
g) The Ministry of Justice shall cooperate with the Ministry of Industry and Trade in conducting operations specified in this Chapter, studying and assessing legal regulations issued by the World Trade Organization and other countries on trade remedies;
h) Vietnamese traders who have submitted written requests for assistance shall cooperate with the Ministry of Industry and Trade in handling cases and be responsible for information and documents provided for the Ministry of Industry and Trade.
Chapter VI
IMPLEMENTATION PROVISIONS
Article 115. Entry into force
1. This Decree enters into force from July 01, 2025.
2. The Government’s Decree No. 10/2018/ND-CP dated January 15, 2018 will cease to be effective from the effective date of this Decree.
Article 116. Responsibility for implementation
1. The Minister of Industry and Trade shall be responsible for implementing this Decree.
2. Ministers, Heads of ministerial authorities, Heads of Governmental authorities, Chairpersons of People's Committees of provinces and central-affiliated cities shall be responsible for implementing this Decree.
Article 117. Transitional provisions
Adequate and valid requests for investigation for application of trade remedies, review of application of trade remedies, investigation for application of measures against evasion of trade remedies, review of application of measures against evasion of trade remedies, which have been received by the investigating authority as notified before the effective date of this Decree will be processed according to regulations in the Government’s Decree No. 10/2018/ND-CP dated January 15, 2018.
|
|
ON BEHALF OF THE GOVERNMENT| |
Ý kiến bạn đọc
