04/1998/QH10 passed by the National Assembly on May 20thwhich allowed imposing additional duties on dumping imports into Vietnam.1However, the Law remained a number of defects regarding
VIETNAMESE LEGAL FRAMEWORK ON ANTI-DUMPING
Vietnamese policy regarding foreign trade and anti-dumping system8 1 Overview of Vietnam’s foreign trade policy
1.1.1 Overview of Vietnam’s foreign trade policy
Globalization, particularly in trade, has emerged as a significant trend in the global economy Following the implementation of its reform policy, Vietnam has progressively liberalized its economy to embrace economic integration In April 2001, the X Communist Party Congress reaffirmed that economic development and integration strategies should align with the ongoing globalization trend.
In light of such strategy, Vietnam started the integration operation on July
On July 25, 1995, Vietnam joined the Association of Southeast Asian Nations (ASEAN) and began implementing the Common Effective Preferential Tariff (CEPT) in 1996, establishing the legal framework for the ASEAN Free Trade Area (AFTA) Subsequently, Vietnam enhanced its global relations by becoming a founding member of the Asia-Europe Meeting (ASEM) in March 1996 and joining the Asia-Pacific Economic Cooperation (APEC) in November 1998 In 2000, Vietnam signed a landmark bilateral trade agreement with the United States (BTA), aligning with World Trade Organization (WTO) standards This agreement not only normalized trade relations with the U.S but also significantly contributed to trade liberalization in Vietnam, which was crucial for its WTO accession negotiations.
4 Hà Thị Thanh Bình (2012), “Trade protectionism in the scene of international economy integration and Vietnamese law’s implementation effectiveness”( Bảo hộ thương mại trong bối cảnh hội nhập quốc tế),
National Politics & Truth Publisher, Hanoi, p.15
In his 2005 work, "Legislation against dumping import goods in Vietnam: theoretical issues and practical considerations," Nguyễn Ngọc Sơn explores the legal frameworks addressing the issue of dumping in Vietnam Published by Justice Publisher in Ho Chi Minh City, this study delves into both theoretical aspects and practical implications of anti-dumping laws, providing valuable insights into the regulatory landscape.
6 Vietnam Association of Seafood Exporters and Prducers, “A brief of Vietnam’s commitments in
The ASEAN Free Trade Area (AFTA) outlines Vietnam's commitments within the ASEAN free trade zone, emphasizing the importance of regional economic integration This agreement aims to enhance trade and investment among member countries, fostering a more competitive environment The AFTA framework is crucial for Vietnam's economic growth and its strategic positioning in Southeast Asia.
7 National Economic Council (2000), “Vietnam Bilateral Agreement: Historical Strengthening of the U.S.-Vietnam Relationship”, The White House [https://clinton4.nara.gov/WH/EOP/nec/html/RosenUS-
Vietnam's trade policy has been significantly shaped by its accession to the WTO in 2007, which enabled the country to fully integrate into the global trading system This milestone allowed Vietnam to engage with major global trading partners and led to substantial changes in its national trade regime, aligning it with WTO rules and principles.
Vietnam's foreign trade regime has seen substantial improvements following over twenty years of open-door trade reforms Between 2007 and 2014, the service sector grew by 6.88%, while industry and agriculture increased by 6.2% and 3.3%, respectively During this period, the average export value in the industrial and construction sectors reached 50.94 billion USD, more than five times the amount from 2001 to 2006 Notably, after seven years of WTO membership, Vietnam's average exports in 2014 tripled compared to 2007, and imports doubled during the same timeframe This period also marked a significant shift in the structure of the exporting market.
160 to 230 foreign markets, in which the independence on Asian market had decreased 10 In addition, the figure demonstrating the foreign investment into Vietnam in 2014 is nearly 22 billion USD 11
Vietnam's economy has shown significant growth, alongside a reformation of its foreign trade policy to integrate into international trading networks A review by the Ministry of Justice in 2015 identified 438 legal documents at the central level that pertain to Vietnam's trade regulations.
Peter Naray (2006) discusses Vietnam's commitments to the WTO and the implications of its non-market economy status The analysis highlights both the advantages and challenges that arise from Vietnam's accession to the WTO, emphasizing the need for strategic adjustments to fully leverage the benefits of international trade.
The National Assembly’s Role” (Việt Nam gia nhập WTO: Thuận lợi, thách thức và vai trò của Quốc hội)
The Standing Committee of the National Assembly (2015) published a supervisory report detailing the outcomes of Vietnam's international economic integration since its accession to the World Trade Organization (WTO) This report, titled "Results in the Process of International Economic Integration Since Vietnam Became a Member of the World Trade Organization," highlights significant developments and impacts on Vietnam's economy The document is identified as No 957/BC-ĐGS and is available in Hanoi, providing valuable insights into the country's trade dynamics and economic policies.
In her 2016 work, Lâm Quỳnh Anh highlights the significant achievements of Vietnam in the realm of international economic integration, as documented by the Ministry of Foreign Affairs The article emphasizes Vietnam's progress in enhancing its global economic presence and fostering trade relationships, showcasing the country's successful strategies and policies that have contributed to its integration into the world economy.
Affairs [http://www.mofahcm.gov.vn/vi/mofa/nr091019080134/ns120222162217] (lass access: 06/08/2016)
The data presented is sourced from the General Statistics Office of Vietnam, reflecting the country's significant transformation in aligning its legal framework with international standards following its commitments to the WTO.
1.1.2 Establishment and development of Vietnamese anti-dumping policy
The open-door policy has fostered competition between Vietnamese domestic products and foreign goods While most domestic enterprises are small to medium-sized and offer average-quality products, high-quality items from large foreign firms have flooded the Vietnamese market As a result, Vietnamese goods risk losing their market position as consumers now have a wider array of choices at similar price points, regardless of the products' origins.
Massive imports into Vietnam may introduce dumping products aimed at monopolizing the market, which could lead to domestic enterprises losing their market share and significantly hindering the national economy Consumers may also suffer, as foreign companies could raise prices to recover losses and secure substantial profits The distortion of foreign trade has a serious impact on the country's economic development, yet domestic producers are often unaware of how to protect themselves or what rights they possess Additionally, the government has struggled to provide effective solutions due to inexperience with these new challenges.
As a member of the World Trade Organization (WTO), Vietnam has the right to implement measures to manage and control imports while fulfilling its commitments These legitimate actions are essential for regulating trade effectively.
12 Supervision Group – The Standing Committee of the National Assembly, supra note 9, p.3
13 Hà Thị Thanh Bình, supra note 4, p.25
14 Nguyễn Ngọc Sơn, supra note 5, p.75
Anti-dumping laws serve as a crucial tool for protecting domestic production while mitigating the harm caused by unfair trade practices Their implementation allows state authorities to adopt flexible trade protection measures, safeguarding the interests of domestic companies and the community Dumped imports typically have a detrimental impact on domestic industries, affecting production volume, sales, market share, profitability, employment, wages, and growth potential Consequently, anti-dumping measures aim to remedy the material injury inflicted by dumped imports, fostering a fair competitive environment and restoring a non-dumped market.
Vietnamese legal framework on anti-dumping proceedings in light
National anti-dumping legislation originated in the early 20th century, with the GATT 1947 introducing Article VI, which addresses dumping and allows importing Members to take measures against injurious dumping without outright prohibiting it This regulation was maintained in GATT 1994, leading to the implementation of the Agreement on Implementation of Article VI (ADA) in 1994 To this day, Article VI and the ADA continue to be applied in conjunction.
The Anti-Dumping Agreement (ADA), integral to GATT 1994, serves as a mandatory legal framework outlining essential anti-dumping regulations that importing Member authorities must follow to implement anti-dumping measures Consequently, as a WTO member, Vietnam is required to initiate anti-dumping proceedings in accordance with the stipulations set forth by the ADA.
2004, the final text of the ADO was adopted by the Standing Committee of the National Assembly The Anti-dumping Agreement shows a clear intention to
The United Nations Conference on Trade and Development emphasizes the importance of protecting foreign trade from the misuse of power by importing countries, which necessitates greater transparency in anti-dumping measures Additionally, the legal framework governing anti-dumping proceedings has been structured to align with the principles established by the Anti-Dumping Agreement (ADA).
1.2.1 Prevention of the abuse of anti-dumping measures in Vietnamese anti- dumping proceedings
Anti-dumping measures serve as a protective tool for domestic industries facing intense competition from low-priced imports The primary goal of the Anti-Dumping Agreement (ADA) is to establish a legal framework that prevents the misuse of anti-dumping actions as a substitute for broader import restrictions.
The Vietnamese anti-dumping system, established in accordance with the ADA, serves as a protective measure for the domestic industry while preventing the misuse of anti-dumping measures that could harm the national economy This system addresses the potential for anti-dumping measures to be exploited by inefficient domestic producers The ADO ensures transparency in legal procedures and implements comprehensive anti-dumping proceedings to prevent the abuse of power in decision-making By dividing the responsibilities among various anti-dumping authorities, a collaborative management mechanism is created, allowing each entity to influence and provide recommendations to others.
32 Rovegno, Laura & Vandenbussche, Hylke (2011), “A comparative analysis of EU Antidumping rules and application”, Discussion paper 2011-23, UCL, p 2
33 Agreement on Implementation of Article VI (Anti-dumping), in “Legal texts: the WTO
Agreement”, [https://www.wto.org/english/docs_e/legal_e/ursum_e.htm#fAgreement] (last access: 06/16/2016)
34 E.U, Petersmann (1997), “The GATT Dispute Settlement System – International Law, International Organizations and Dispute Settlement, p.67 See also: Adersen, Hendrick (2009), “EU Dumping Determinations and WTO Law”, Kluwer Law International, p 9
To prevent the misuse of anti-dumping mechanisms, the ADO and Decree 90/CP establish stringent legal procedures for initiating and handling anti-dumping cases Petitioners must represent the domestic manufacturing industry and meet specific legal criteria to request an investigation Clear regulations empower domestic enterprises to seek state assistance against unfair foreign trade practices According to Article 6 of the ADO, anti-dumping measures apply when a determined dumping margin threatens domestic industry However, investigations may be terminated if the dumping margin is insignificant (not exceeding 2% of export costs) or if the volume of dumped goods is minimal (not exceeding 3% of similar imports) These regulations align with the Anti-dumping Agreement, which also considers a dumping margin below 2% as de minimis, and stipulates that if dumped imports account for less than 3% of similar product imports, the investigation should cease.
35 Article 8.1, ADO provides certain figures as conditions for the petitioners to be deemed as representative for the industry
Article 19.2 of Decree 90/CP will be terminated immediately, while Vietnamese anti-dumping documents indicate a threshold of 'not exceeding 3%' Although Vietnam's decision to raise standards for anti-dumping investigations compared to the ADA is justified, it may restrict the Government's capacity to effectively address dumping and unfair trade practices.
Vietnamese anti-dumping proceedings, in accordance with WTO law, are structured into three key stages: investigation, preliminary determination, and final determination The Anti-Dumping Ordinance (ADO) establishes a legal framework that guides both the government and domestic industries Specialized anti-dumping agencies have been created by the government to initiate investigations, conduct assessments, and impose provisional or final anti-dumping duties on imported goods The timeline for Vietnamese authorities to complete an anti-dumping case ranges from 12 to 18 months, which aligns closely with the average duration of 531 days (approximately 17 months) outlined in the Anti-Dumping Agreement For example, in the case of "cold rolled stainless steel," the Vietnamese government took over 14 months from the start of the investigation to the final determination.
In 2016, the case involving galvanized steel was estimated to take around 12 months Consequently, the regulations governing anti-dumping cases in Vietnam align with the Anti-Dumping Agreement (ADA).
The principles outlined are not an exhaustive guide to the legal framework of Vietnamese anti-dumping procedures under the ADA However, they emphasize the key aspects that reflect the nature of the reformed anti-dumping processes and the alignment of the Vietnamese anti-dumping system with international standards.
37 Trần Việt Dũng, supra note 3, p256
Article 16 of the ADO outlines the proceedings specified in the ADA Additionally, the Vietnamese legislature has incorporated certain legal concepts into its anti-dumping regulations that are not mandatory under the WTO framework, such as the lesser duty rule and public interest considerations The lesser duty rule is exemplified in Article 12 of the Law on Import and Export Duties.
In 2016, the application of anti-dumping measures is guided by the principle that anti-dumping taxes should be imposed only at necessary and reasonable levels to protect domestic industries Legal documents, including Article 40.1 of the ADO, highlight the importance of public interest considerations, allowing the Minister to reject anti-dumping duties if they harm public interests However, there are notable shortcomings in Vietnam's anti-dumping procedures that require improvement Specifically, the lack of clear rules for comparing normal value and export price when numerous exporters or products are involved complicates the enforcement for anti-dumping authorities, a contrast to the clearer regulations outlined in the ADA.
1.2.2 Transparency in Vietnamese anti-dumping proceedings
Transparency, a core principle of the WTO, has been progressively integrated into Vietnam's legal framework since its accession negotiations with WTO members, especially following the 2000 BTA with the United States Today, the rules governing trade activities and the rights and obligations of merchants are more readily accessible.
In Vietnam, the public has access to national legal documents, provided that their publication does not conflict with public interests Numerous websites, including the official Ministry of Justice site and thuvienphapluat.vn, offer full texts of these documents in both Vietnamese and English, facilitating access to important information and policies for both domestic and foreign enterprises.
Recent improvements in transparency within Vietnamese procedural regulations have made national proceedings more accessible to individuals, enterprises, and organizations This enhanced transparency fosters greater public participation in the legislative process, allowing citizens to express their views on laws that impact community interests Notably, Vietnam's anti-dumping legislation has established a clear timeline for each stage of the anti-dumping proceedings, which authorities are required to follow This transparency in anti-dumping procedures reflects a commitment to justification and is crucial for aligning Vietnam's national anti-dumping system with the Anti-dumping Agreement, in line with the country's legal reform policy.
Conclusions
Vietnam's participation in trade liberalization offers significant economic advantages, leading to a surge in domestic commodities in the international market and a dramatic increase in exports As a result, Vietnamese products are gaining global recognition However, as a developing nation, Vietnam faces challenges, including the unavoidable issue of foreign dumping To address this, the implementation of an anti-dumping law is both urgent and essential Establishing anti-dumping proceedings in line with WTO standards is crucial for creating a transparent, rule-based system The alignment of Vietnamese anti-dumping legislation with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (ADA) demonstrates a commitment to fostering a fair competitive environment in the domestic market, rather than arbitrarily restricting foreign products to protect local industries.
LEGAL ISSUES CONCERNING VIETNAMESE ANTI-DUMPING
Proceedings on petition for an anti-dumping investigation
An anti-dumping investigation is triggered by a request from a domestic manufacturing industry representative, ensuring sufficient support among producers Additionally, national anti-dumping authorities may initiate an investigation if there is prima facie evidence of dumping, material injury, and a causal link within the domestic economy.
2.1.1 Determination of the representative to file a petition
Anti-dumping measures impose additional obligations on foreign goods and can significantly impact international trade flows, necessitating careful consideration of their application Consequently, Vietnamese laws and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (ADA) clearly outline the criteria for determining the standing to file a petition for an anti-dumping investigation, as specified in Article 8.1 of the Anti-Dumping Ordinance (ADO).
46 Van den Bossche, Peter (2005), “The law and policy of the World Trade Organization – Texts, cases and materials”, Cambridge University Press, p.536
According to Article 8 of the ADO, an investigation for anti-dumping measures is initiated upon a request from an individual or organization representing the domestic manufacturing industry To qualify as a representative, the requester must be supported by domestic producers of similar products and meet two criteria: first, they must account for at least 25% of the total volume or value of similar goods produced by the domestic industry; second, their output of like products must exceed that of those opposing the anti-dumping request.
The provision in question is based on the Anti-Dumping Agreement (ADA) of the WTO, specifically Article 5.4, which states that a petitioner for anti-dumping measures represents the industry if supported by domestic producers whose output exceeds 50% of total production of the like product Commentator Tran Viet Dung highlights a key difference: while the ADA requires a majority of production for representation, the Anti-Dumping Ordinance (ADO) only necessitates that the supportive production exceeds that of opposing producers This discrepancy introduces ambiguity in the interpretation of the law Additionally, the U.S Code: Title 19 – Custom Duties aligns with the ADA's requirement for industry representation in petitions To enhance compliance with WTO law, it is recommended that the ADO's criteria for assessing domestic industry representation be revised to align with the ADA and international standards.
U.S anti-dumping law provides significant support to petitioners, as outlined in Section 1673(c)(4)(D) of 19 U.S.C If a petition lacks sufficient backing from domestic producers or workers, the administering authority is required to poll the industry or utilize other information to assess support levels In industries with numerous producers, statistically valid sampling methods may be employed However, gathering support can be challenging for petitioners, especially if they are sole or private merchants lacking connections with other producers Additionally, petitioners may struggle to demonstrate representativeness in their applications due to limited experience in collecting and presenting anti-dumping evidence Thus, the assistance from anti-dumping authorities in securing adequate support for petitions is crucial and aligns with the provisions of the ADA.
To be considered a valid request, the petitioner must submit specific information regarding the alleged dumping practices, including evidence of reduced import prices and increased import quantities, as outlined in Vietnamese legislation.
48 Section 1671a(c)(4)(A) and (D) and Section 1673(c)(4)(A) and (D), 19.U.S.C
49 Jallab , Mustapha Sadni & Sandretto, Rene and Gbakou, Monet (2006), “Antidumping procedures and Macroeconomic factors: A comparison between the United States and the European Union”, Global
The Economy Journal outlines the essential requirements for submitting a petition to apply anti-dumping measures To be considered a legitimate request, the petitioner must provide specific criteria in their application, including basic information, a description of the alleged imports, their volume, normal price, export price, and the dumping margin Additionally, the petitioner must include data or evidence demonstrating the injury caused by the concerned goods, along with a formal request for the application of these measures.
The ADO offers regulations that are generally comparable to those of the ADA on similar issues; however, there are notable differences in the stringency of these rules.
The ADA requires applicants to provide a complete description of the allegedly dumped product, including the countries of origin, known exporters, and importers In contrast, Vietnamese law mandates that petitioners submit additional information, such as the volume, quantity, or value of imports within the 12 months prior to the application for anti-dumping measures This requirement necessitates greater effort from petitioners to gather comprehensive data, as filing a petition can negatively impact the domestic industry Given that Vietnam has rarely conducted anti-dumping investigations, a notable example is the series of cases involving "imported flat-rolled steel" in the US from 1985 to 1988, which accounted for 6.5 million tons of steel valued at nearly three billion dollars.
Korean and Japanese joint venture partners, the partners are irritated by the
52 Gutfeld, Rose & Milbank, Dana (1992), “U.S Steel Firms Get Early Boost In Import Fight”,
The recent antidumping action reported by the Wall Street Journal could jeopardize hundreds, if not thousands, of jobs Companies reliant on steel may face rising raw material costs, which could diminish their competitiveness in global markets and potentially result in further job losses.
The ADO mandates that applicants must submit information on normal values, export prices, and dumping margins for imported goods within 12 months before applying for anti-dumping measures In contrast, the ADA only requires information on selling prices for products consumed in the domestic markets of the exporting country This discrepancy indicates that Vietnamese anti-dumping legislation imposes stricter requirements than the ADA, making it more challenging for domestic producers to file anti-dumping petitions.
Vietnamese anti-dumping procedures are more stringent than WTO rules, reflecting the country's commitment to preventing unfair foreign trade practices while avoiding unjust protectionism The regulations require domestic manufacturers to thoroughly assess and prepare before submitting anti-dumping petitions against alleged dumping imports Such petitions can reduce competition, increase market share for domestic firms, and lead to a decline in imports alongside a rise in domestic output during the investigation period.
53 McGee, Robert W (1993), “Case to repeal the Antidumping laws”, Northwestern Journal of
International Law and Business, (13), p 524 petition, thedomestic industry is able to diminish the incentives of foreign firms to aggressively pursue domestic market share while the investigation is proceeding.” 54
The WTO allows its members to implement stricter and higher-standard regulations than those outlined in its legal documents, provided that these regulations remain consistent and compliant with WTO rules.
The stringent regulations set by the ADO may hinder the domestic industry’s ability to apply anti-dumping measures against unfair trade practices Additionally, Vietnamese authorities face challenges in aligning national legislation with international agreements, such as the ADA, which has been ratified by the National Assembly To better align Vietnam's anti-dumping system with international standards while still protecting domestic production, authorities should consider amending procedural rules to be more consistent with the ADA Easing these strict standards would not only provide domestic manufacturers with better opportunities to file petitions against material injury from dumped imports but also enhance transparency in national anti-dumping proceedings.
54 Staiger, Robert W & Wolak, Frank A (1994), “Measuring industry specific protection: Antidumping in the United States”, NBer Working paper No.4696, National Bureau of Economic Research, p 11, 12
According to the Law on Treaties of Vietnam 2005, specifically Articles 3 and 6, treaties ratified by the State must align with the Constitution and national interests In instances where Vietnamese laws conflict with ratified international treaties, the provisions of the treaties take precedence Additionally, the issuance of national legal documents must not hinder the enforcement of these international treaties.
56 Trần Việt Dũng, supra note 3, p 238
2.1.3 Acceptance or rejection of the petition
Investigation process
The ADO, similar to the ADA, mandates that if a complete application for anti-dumping measures is submitted, the Minister must initiate an anti-dumping investigation This investigation process consists of two key phases: the issuance of a preliminary determination, during which provisional measures may be implemented, and subsequent investigations.
62 Article 5.9, Council Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community (hereinafter referred to as “Council Regulation (EC) No
384/96”), in Consolidated text produced by the CONSLEG system of the Office for Official Publications of the European Communities
Australia's anti-dumping and countervailing system involves a thorough process that includes consultations, hearings, and the publication of non-confidential information The investigating authority collects and verifies evidence before issuing the final determination.
The competent authority who shall be responsible for the investigation process is the Investigating Authority on Anti-dumping (hereinafter referred to as
“Investigating Agency”) set up under the Ministry of Industry and Trade 64 The Investigating Agency is established by Vietnam Competition Authority (also referred to as the “VCA”) 65
2.2.1 Parties concerned in the anti-dumping investigation process
In an anti-dumping investigation, it is crucial to define the parties involved to ensure the Investigating Agency can recognize their interests, rights, and obligations Article 11 of the ADO outlines the interested parties, but their rights and obligations vary The Decree 90/CP categorizes these parties into four main groups, each with distinct rights The first group includes the applicant, who submits a request for anti-dumping measures, and the second group consists of defendants producing or exporting the contested goods Both parties have rights to access information, participate in consultations, request closed sessions, and appeal decisions made by the Minister Additionally, defendants can request extensions for providing information or returning questionnaires to the competent authority.
65 Article 2.5, Decree No 06/2006/ND-CP defining the functions, tasks, powers and organizational structure of the Vietnam Competition Authority dated on January 9 th 2006
Under Article 15 of Decree 90/CP, the investigation process allows lawyers representing either the applicant or the defendant to participate in court proceedings and handle anti-dumping cases, ensuring the defense of their clients' legitimate rights and interests Additionally, other parties involved, such as labor unions and consumer unions, possess limited procedural rights, which include providing necessary information, requesting confidential information as outlined in Article 30 of the Decree, accessing non-confidential information from other parties, and participating in consultation sessions, excluding closed sessions.
In anti-dumping practice, national authorities distinguish between "concerned parties" and "parties to the anti-dumping proceeding." Concerned parties are actively involved in the proceedings, while other parties have limited rights, such as submitting information and participating in hearings Article 11 of the ADO identifies concerned parties as domestic producers, foreign producers and exporters, importers, business associations, trade unions, consumer protection organizations, and relevant government agencies in Vietnam and exporting countries Compared to the ADA, Vietnam's anti-dumping law encompasses a broader range of concerned parties, including nearly all participants in the investigation, whereas the ADA's interested parties are limited to those directly involved with the alleged products Additionally, U.S anti-dumping law includes both ADA-stipulated parties and manufacturers as interested parties.
The current Vietnamese anti-dumping legislation, as outlined in the ADO, fails to include crucial stakeholders such as domestic industrial users, known as downstream producers, and their representative business associations This omission is a significant drawback, as these parties play a vital role in assessing public interests when authorities decide on anti-dumping measures To enhance the effectiveness of anti-dumping proceedings, it is essential to amend the legislation to include these stakeholders, ensuring their rights are protected and providing authorities with a comprehensive understanding of community benefits and public interests in their decision-making process.
The Investigating Agency will conduct several phases in the anti-dumping investigation to assess the existence of dumping practices and the resulting injury from imported goods These phases include sending questionnaires to interested parties for data collection, organizing consultations, inspecting non-confidential information, and managing confidential data Additionally, the agency will apply the "best information available" mechanism to determine both dumping and injury, as well as the causal relationship between them Ultimately, the final determination will be based on the findings from these investigative processes.
According to the ADA, the ADO mandates that the Investigating Agency must distribute questionnaires within 15 days of initiating an anti-dumping investigation While the Anti-dumping Agreement echoes similar requirements, neither the ADA nor Vietnamese law specifies penalties for parties that fail to provide timely and proper feedback In contrast, U.S law allows the Commission to use existing record evidence or "facts available" if foreign producers do not respond, potentially leading to adverse inferences for noncompliance Additionally, U.S regulations permit sending questionnaires only to the largest importers or a representative sample when the number of importers is substantial, a provision not found in Vietnamese legislation.
In 2013, the VCA sent a questionnaire to exporters regarding the 'Cold-rolled stainless steel' case, which included questions about exporter information, related companies, total product quantities, and turnover The questionnaire also requested details on the self-assessed dumping margin of the investigated products and export sales to Vietnam The clarity of the information required by the VCA enables exporters to prepare thoroughly for their export activities to Vietnam.
72 Those involved recipients are regulate in Article 23, Decree 90/CP
74 Catherine DeFilippo (2015), “Antidumping and Countervailing Duty Handbook”, United States
International Trade Commission, (14), Publication 4540, p.II-7
The ADA ensures that all interested parties have the opportunity to defend their interests during anti-dumping investigations Authorities are required to facilitate meetings between these parties to present opposing views and rebuttal arguments The ADO Ordinance mandates that the Investigating Agency organize consultations for concerned parties to express their opinions and provide essential information, although participation is not compulsory However, opting out of these consultations may hinder parties from voicing their concerns and sharing information that could strengthen their position If direct participation is not possible, parties can present evidence and arguments through representatives Additionally, the Investigating Agency may hold closed consultation sessions upon request, limiting attendance to those specified by the requesting parties.
Gathering essential information and evidence is crucial for a smooth investigation process All parties involved in the anti-dumping case must provide accurate information and necessary data when requested by the Investigating Agency.
The Investigating Agency is responsible for officially authenticating and verifying the accuracy of information and documents submitted by relevant parties To ensure a thorough resolution of the anti-dumping case, the Agency may request additional information or documents from these parties Before proceeding with verification or data collection, the Agency must notify the involved organizations or individuals, as well as the appropriate authorities in the respective country or territory, and obtain their consent Findings from the verification process, excluding confidential information, will be made public to the concerned parties.
The Investigating Agency is tasked with maintaining confidentiality for information requested by parties involved in the investigation, similar to regulations outlined in the ADA Authorities require that parties providing confidential information also submit non-confidential summaries However, if a confidentiality request is deemed unjustified and the information provider refuses to disclose it publicly or in summary form, the authorities may disregard that information unless its accuracy can be verified from reliable sources.
If the required information and data are not accurately submitted, the Investigating Agency may make its decision based on the available information, often referred to as 'facts available'.
Article 30 of Decree 90/CP imposes significant disadvantages on parties that fail to provide requested information accurately, as the "facts available" mechanism leaves them uncertain about the data used against them This approach aims to encourage foreign respondents to engage in the process, enabling the government to assess unfair trading practices more accurately The Decree outlines specific circumstances under which the Investigating Agency may rely on available information, including when parties do not supply necessary documents, when submitted information is found to be untruthful, when parties deny verification access, or when they obstruct the investigation However, the current regulations do not address force majeure events, such as a fire that destroys essential data, which could unfairly penalize parties unable to provide information Additionally, Article 22.5(b) states that if parties hinder the investigation, the agency will use available information for decision-making, yet it lacks clarity on what constitutes obstruction and the criteria for assessing it.
Application of anti-dumping measures in the final determination and
2.3.1 Application of anti-dumping measures a) Provisional anti-dumping duty
Following the initiation of an anti-dumping investigation, there is often a rise in imports of the products being examined, as importers anticipate the eventual implementation of definitive anti-dumping duties To mitigate this potential surge, provisional anti-dumping duties can be enacted on these imports.
During 90 days from the date of the issuance to initiate an anti-dumping investigation, the Investigating Agency shall announce its preliminary conclusion relating to the investigation process in an appropriate manner to the parties
The WTO Anti-dumping Practice Committee recommends that the time-limit for announcing data collection periods in anti-dumping investigations may be extended in special cases, but not beyond 60 days Following an affirmative preliminary determination, the Investigating Agency can suggest that the Minister impose a provisional anti-dumping duty if dumping is confirmed Conversely, if the preliminary conclusion indicates no significant dumping or threat to domestic industries, the Minister may terminate the investigation This regulation aligns with Article 5.8 of the ADA In contrast to the ADA and Vietnamese laws, U.S anti-dumping legislation involves two distinct agencies: the Department of Commerce (DOC) conducts investigations and determines dumping practices, while the International Trade Commission (ITC) assesses injury from alleged dumped imports The ITC's preliminary determination is published 45 days after the petition is filed, and the investigation cannot be terminated until the DOC makes its preliminary determination, even if the ITC's finding is negative.
After 60 days from the date of the initiation of the anti-dumping investigation, the Minister may issue a decision to apply interim anti-dumping measures The rate of provisional measure cannot exceed the dumping margin set out in the preliminary conclusion, and its payment shall not exceed 120 days from the date of issuance of the decision to apply this measure Notwithstanding this time limit, in case there is a request from the exporters of similar goods, the Minister
According to Article 1673c of 19 U.S.C., if the ITC's preliminary determination is negative, the investigation will be terminated This termination occurs only after the DOC has issued its preliminary determination, which may extend the provisional measure for up to 60 days.
The current Vietnamese anti-dumping legislation reveals a significant loophole regarding the time frame for the Minister's decision on provisional measures While the Investigating Agency has 90 days, extendable by 60 days under special circumstances, to make a preliminary determination, the Minister is only allotted 60 days to issue a decision on interim anti-dumping measures This discrepancy is problematic, as the Minister's decision relies on the preliminary conclusion, which takes longer to finalize Therefore, it is essential to amend the legislation to ensure clarity and correctness in the anti-dumping process.
During 30 days after the completion of the investigation process, the Investigating Agency will announce its final determination in regards to whether or not dumping and material injury or threat of material injury to the domestic manufacturing industry exist as well as the causal link between them Within 07 working days as from the date the definitive conclusion is publicized, the Investigating Agency must send necessary documents to the Handling Council, namely the dossier requesting the imposition of anti-dumping measures, report on investigation, preliminary conclusion, definitive conclusion as well as main grounds for making such conclusion, and the recommendations made by the Investigating Agency 94
The Handling Council comprises standing members and a number of other members working on each particular case, in order to consider the conclusions of
According to Article 33.2 and 33.3 of Decree 90/CP, the Investigating Agency is responsible for evaluating whether there is dumping of goods into Vietnam that could significantly harm the domestic manufacturing industry They must reach a majority decision and recommend to the Minister the imposition of anti-dumping duties within 30 days of receiving the relevant dossier If the Handling Council confirms the existence of dumping that poses a material threat to the domestic industry, they will advise the Minister to implement the anti-dumping duty.
Based on the Handling Council's recommendations, the Minister will decide on the application of definitive anti-dumping duties, which cannot exceed the dumping margin determined by the Investigating Agency The maximum duration for these duties is five years, subject to specific legal exceptions However, Vietnamese anti-dumping law lacks a defined timeframe for the Minister to issue this decision after receiving the Handling Council's recommendation This absence of regulation may result in delays in implementing anti-dumping measures.
A significant issue in anti-dumping cases is the role of the Handling Council, which is responsible for advising the Minister on the imposition of definitive anti-dumping duties based on the Investigating Agency's documentation Ultimately, the decision to apply these duties rests solely with the Minister, as the law does not specify the conditions under which the Minister may act.
The circumstances surrounding the application of definitive anti-dumping duties, as outlined in part (c) of this section, raise questions about the extent of the Handling Council's influence in protecting its recommendations Notably, the Minister is not obligated to justify decisions that diverge from those proposed by the Handling Council, leaving the Council's rights unclear within anti-dumping legal frameworks This ambiguity stems from the organizational structure of Vietnam's anti-dumping authority, which aims to establish a transparent system The Investigating Agency, operating under the VCA, prioritizes competition benefits over the domestic industry's interests in anti-dumping measures Consequently, the Handling Council was created to assess the Investigating Agency's decisions and provide an objective perspective on balancing competition interests with anti-dumping practices However, the Minister ultimately holds the authority to decide on anti-dumping measures, often disregarding the Handling Council's recommendations due to the absence of regulatory guidelines.
Vietnamese legislation allows for the retrospective application of anti-dumping duties on imports for up to 90 days before the provisional measures are enacted, provided that a final determination shows significant harm to the domestic industry due to dumping practices This rule is similar to Article 10 of the Anti-Dumping Agreement (ADA), although it lacks the detailed provisions found in the ADA Therefore, it is essential to ensure that this regulation is not misused to impose undue burdens.
Article 10.6 of the ADA allows for the imposition of a definitive anti-dumping duty on products imported within 90 days before the provisional measures are applied This is applicable when authorities find a history of dumping that has caused injury, or when the importer was aware, or should have been aware, of the higher duties practiced by the exporter Additionally, to limit the infringement of retrospective anti-dumping duties on imports, Vietnamese anti-dumping law should offer further guidance in line with these requirements.
The Minister can reject the implementation of anti-dumping measures if the investigation reveals no evidence of dumping, if the dumping margin is minimal, or if the potential harm is negligible Additionally, if the defendant agrees to certain commitments accepted by the Minister, this may also lead to a denial of anti-dumping measures.
One reason for not implementing definitive anti-dumping measures, despite the presence of dumping practices and the resulting injury from dumped imports, is the consideration of public interests According to Article 40.2 of Decree 90/CP, if the imposition of an anti-dumping duty negatively impacts public interests, the Minister has the authority to reject the duty's implementation.
However, the law does not clarify the situations which can be deemed an impairment to public interests as well as a mechanism to determine it c) Undertakings
Proposals for the improvement of Vietnamese anti-dumping
Based on the points mentioned above, the thesis seeks to propose some solutions for the improvement of Vietnamese anti-dumping proceedings Those
Article 25 of the ADO outlines three key proposals: (i) enhanced guidance for the application of the "facts available" mechanism, (ii) restructuring of anti-dumping authorities to improve their organizational framework, and (iii) a greater emphasis on public interest considerations when imposing anti-dumping measures.
2.4.1 Additional guidance on the application of “facts available” mechanism
The Investigating Agency will utilize the "facts available" mechanism to issue decisions during investigations when parties fail to provide essential information as required by law, impede the investigation, or in other relevant circumstances However, the Vietnamese anti-dumping system lacks clear definitions for determining violations of these conditions To enhance the regulations surrounding this mechanism, the author proposes several improvements.
Vietnamese legislation should establish clear guidelines for how parties must submit essential information to the Investigating Agency, specifying that data and documents can be provided in either computer format or writing, as outlined in the Investigating Authorities' requests Additionally, the law should define circumstances under which parties are not held accountable for failing to provide requested information, such as force majeure events like natural disasters or serious accidents that impede their ability to comply Furthermore, regulations should be added to allow for an extension of the deadline for submitting information if parties encounter difficulties in gathering the necessary data.
Vietnamese anti-dumping legislation aims to provide clarity regarding the use of the best available information by the Investigating Agency when parties are obstructing the investigation Specifically, parties may be considered obstructive if they intentionally conceal or misappropriate essential information This regulation not only deters parties from hindering the investigation but also safeguards against potential abuse by the competent authority, ensuring fair treatment for all interested parties.
2.4.2 Reformation of anti-dumping authorities regarding the organizational structure
Aiming to establish a fair and transparent system, Vietnamese law has created a quite complex organizational structure for handling an anti-dumping case
The Investigating Agency established by the VCA is tasked with the investigation process, while a temporary Handling Council reviews documents and evidence related to the agency's findings and makes recommendations to the Minister The Minister then decides on the application of anti-dumping measures based on these recommendations and the agency's information, including whether to conduct an administrative review on the continuation or cancellation of such measures However, the Handling Council's role is seen as redundant, as it duplicates the Investigating Agency's work Nguyen Ngoc Son criticizes this complex organizational structure as inappropriate for today's context.
The Investigating Agency plays a crucial role in anti-dumping cases by overseeing the petition's validity, initiating investigations, and managing all investigation phases It also provides recommendations for anti-dumping measures Consequently, the Handling Council can only discuss and suggest recommendations based on the Investigating Agency's findings If the Handling Council presents conflicting evidence or determinations, it may create confusion among anti-dumping authorities, highlighting a gap in the separation of powers within the anti-dumping framework Additionally, the Handling Council's ability to influence decisions made by the Minister can lead to further confusion for authorities and stakeholders This involvement may unnecessarily prolong the process, ultimately harming the domestic industry affected by dumping practices.
National anti-dumping legislations exhibit a variety of organizational structures for their respective authorities In the United States, the anti-dumping system involves two distinct authorities: the Department of Commerce (DOC), which determines the existence of dumping, and the International Trade Commission (ITC), which assesses the injury caused by the alleged dumped imports Following their investigations, both authorities issue decisions on the matter.
The U.S anti-dumping system is characterized by its clear and transparent structure, requiring significant costs and human resources for maintenance, with investigations conducted independently by two agencies In contrast, the EU's anti-dumping framework involves the European Commission initiating investigations and making decisions, while the Advisory Committee provides non-binding opinions on these determinations Ultimately, the European Council decides on the application of anti-dumping duties and administrative reviews Notably, the Handling Council in Vietnam's anti-dumping system has a role similar to that of the EU's Advisory Committee, although its rights are less clearly defined.
The author suggests eliminating the foundation of the Handling Council within the Vietnamese anti-dumping system, allowing the Investigating Agency under the VCA to initiate cases, conduct investigations, and publish determinations The VCA will recommend anti-dumping measures to the Minister, who will then decide on their application and provide justifications for the decision This proposed mechanism is expected to significantly enhance the anti-dumping system, as the VCA, being responsible for competition issues, possesses the necessary expertise to thoroughly assess the implications of applying such measures.