Ordinance No. 20/2004/PL-UBTVQH11 on Countering Dumping of Imported Goods into Vietnam

ORDINANCE

Anti-dumping on Imported Goods into Vietnam

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Based on the Constitution of the Socialist Republic of Vietnam in 1992, amended and supplemented by Resolution No. 51/2001/QH10 dated December 25, 2001 of the Tenth National Assembly, tenth session;

Based on the Law on Export Duties and Import Duties dated December 26, 1991, which has been amended and supplemented by the Law Amending and Supplementing Certain Provisions of the Law on Export Duties and Import Duties dated July 5, 1993, and the Law Amending and Supplementing Certain Provisions of the Law on Export Duties and Import Duties dated May 20, 1998;

Based on Resolution No. 21/2003/QH11 dated November 26, 2003 of the National Assembly, Session 4, regarding the legislative program for 2004;

This Ordinance stipulates measures to combat dumping of imported goods into Vietnam.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Ordinance stipulates anti-dumping measures ; procedures, contents of investigations for application, and the application of such measures against dumped goods imported into Vietnam.

Article 2. Definitions

In this Ordinance, the following terms shall be understood as follows:

1. Anti-dumping duty is an additional import duty applied when dumped goods imported into Vietnam cause or threaten to cause significant damage to domestic production industries.

2. Dumping margin is the calculable difference between the normal value of imported goods into Vietnam and the export price of those goods into Vietnam.

3. Insignificant dumping margin is a dumping margin not exceeding 2% of the export price of the goods into Vietnam.

4. Insignificant quantity, volume, or value of dumped goods imported into Vietnam is when the quantity, volume, or value of dumped goods from a country does not exceed 3% of the total quantity, volume, or value of similar goods imported into Vietnam;

a) The quantity, volume, or value of dumped goods from a country does not exceed 3% of the total quantity, volume, or value of similar goods imported into Vietnam;

b) The total quantity, volume, or value of dumped goods from multiple countries that meet the conditions specified in point a of this clause does not exceed 7% of the total quantity, volume, or value of similar goods imported into Vietnam.

5. Domestic production industry is a collection of domestic producers or their representatives whose quantity, volume, or value of produced goods constitutes a major proportion of the total quantity, volume, or value of similar goods produced domestically, provided that these producers do not import and have no direct link with organizations or individuals exporting the goods subject to anti-dumping measures.

6. Similar goods are goods having all characteristics identical to the goods subject to anti-dumping measures or, if there are no such goods, goods having basic characteristics similar to the goods subject to anti-dumping measures.

7. Significant damage to the domestic production industry is a considerable decline or restraint in growth of production volume, price level, consumption level, profit, production development speed, employment of workers, investment, and other indicators of the domestic production industry or a situation leading to difficulties in establishing a domestic production industry.

8. Threat of causing significant damage to the domestic production industry is a clear and demonstrable potential to cause significant damage to the domestic production industry in the near future.

Article 3. Determination of Dumped Goods Imported into Vietnam

1. Goods originating from a country or territory considered to be dumping when imported into Vietnam (hereinafter referred to as dumped goods into Vietnam) shall be deemed to be sold at a price lower than the normal value as prescribed in Clauses 2 and 3 of this Article.

2. The normal value of imported goods into Vietnam is the comparable price of similar goods being sold on the domestic market of the exporting country or territory under normal trade conditions.

3. In cases where there are no similar goods being sold on the domestic market of the exporting country or territory or where there are similar goods being sold on the domestic market of the exporting country or territory but with insignificant quantity, volume, or value, the normal value of imported goods into Vietnam shall be determined according to one of the following two methods:

a) The comparable price of similar goods of the exporting country or territory being sold on the market of a third country under normal trade conditions;

b) The reasonable cost of production of the goods plus reasonable additional costs and a reasonable profit margin, considering each stage from production to circulation on the market of the exporting country or territory or a third country.

Article 4. Anti-Dumping Measures

1. Application of anti-dumping duties.

2. Commitment by organizations or individuals producing and exporting goods subject to anti-dumping measures to the competent authority applying anti-dumping measures in Vietnam or to domestic producers if agreed upon by the competent authority applying anti-dumping measures in Vietnam.

Article 5. Principles for Applying Anti-Dumping Measures

1. Anti-dumping measures shall only be applied to the extent necessary and reasonable to prevent or limit significant damage to the domestic production industry.

2. The application of anti-dumping measures shall only be carried out after conducting an investigation and must be based on the conclusions of the investigation as prescribed in Chapter II of this Ordinance.

3. Anti-dumping measures shall only be directly applied to dumped goods into Vietnam as stipulated in this Ordinance.

4. The application of anti-dumping measures shall not cause damage to the national economic and social interests.

Article 6. Conditions for Applying Anti-Dumping Measures

Anti-dumping measures shall only be applied to dumped goods imported into Vietnam when the following two conditions are met:

1. The dumped goods imported into Vietnam and the dumping margin must be specifically determined.

2. The dumping of goods referred to in Clause 1 of this Article is the cause or threat of causing significant damage to the domestic industry.

, Clause 1, Clause 2 Article 7a of this Regulation.. State Management Responsibilities for Anti-Dumping

1. The Government shall uniformly manage state affairs concerning anti-dumping for imported goods into Vietnam.

2. The Government shall establish and define the organizational structure, functions, tasks, and specific powers of the anti-dumping agency under the Ministry of Trade, including:

a) The anti-dumping investigation agency (hereinafter referred to as the investigating agency) to conduct investigations, reviews of anti-dumping cases, and, if necessary, recommend the Minister of Trade to issue a decision on applying provisional anti-dumping duties;

b) The anti-dumping case handling council consisting of permanent members and other members working on a case-by-case basis to review the conclusions of the investigating agency; discuss and decide by majority on whether there is or is not dumping of goods into Vietnam causing or threatening to cause significant damage to the domestic industry; recommend the Minister of Trade to issue a decision on applying anti-dumping duties.

3. The Minister of Trade shall be responsible before the Government for managing state affairs concerning anti-dumping, deciding on the application of anti-dumping measures, and shall be responsible for such decisions.

4. Ministries, agencies at the same level as ministries, provincial people's committees, and centrally governed city people's committees within their respective functions and powers shall have the responsibility to coordinate with the Ministry of Trade in managing state affairs concerning anti-dumping and applying anti-dumping measures.

Chapter II

INVESTIGATION FOR THE APPLICATION OF ANTI-DUMPING MEASURES

Article 8. Basis for Conducting Investigations

1. An investigation to apply anti-dumping measures shall be conducted when there is a file requesting the application of anti-dumping measures submitted by organizations or individuals representing the domestic industry.

Organizations or individuals submitting a file requesting the application of anti-dumping measures shall be considered as representatives of the domestic industry when the following two conditions are met:

a) The volume, quantity, or value of goods produced or represented by them constitutes at least 25% of the total volume, quantity, or value of similar goods produced by the domestic industry;

b) The volume, quantity, or value of goods specified in point a of this clause and of domestic producers supporting the submission of the file requesting the application of anti-dumping measures must exceed the volume, quantity, or value of similar goods produced by domestic producers opposing the request for the application of anti-dumping measures.

2. The Minister of Trade may issue a decision to investigate when there is clear evidence of dumping of goods causing or threatening to cause significant damage to the domestic industry.

Article 9. File Requesting the Application of Anti-Dumping Measures

The file requesting the application of anti-dumping measures shall be sent to the investigating agency and includes:

1. A request for the application of anti-dumping measures containing the following information:

a) Name, address, and other necessary information of the organization or individual requesting the application of anti-dumping measures;

b) Description of the imported goods subject to the request for the application of anti-dumping measures, including the name of the goods, basic characteristics, main purpose of use, tariff code according to the current import tariff schedule, applicable import duty rate, and origin of the imported goods;

c) Description of the volume, quantity, and value of the imported goods specified in point b of this clause during the twelve months prior to the submission of the file requesting the application of anti-dumping measures;

d) Description of the volume, quantity, and value of similar goods produced domestically during the twelve months prior to the submission of the file requesting the application of anti-dumping measures;

đ) Information about the normal price and export price of the goods described in accordance with point b of this clause at the time of importation into Vietnam during the twelve months prior to the submission of the file requesting the application of anti-dumping measures;

f) Dumping margin of the imported goods subject to the application of anti-dumping measures;

g) Information, data, and evidence regarding significant injury caused to the domestic industry by dumped goods entering Vietnam or threatening to cause such injury;

h) Name, address, and other necessary information of the organization or individual producing and exporting the goods into Vietnam subject to the request for the application of anti-dumping measures;

i) Specific requests regarding the application of anti-dumping measures, duration of application, and degree of application;

2. Other relevant documents and information that the organization or individual requesting the application of anti-dumping measures considers necessary.

Article 10. Decision to Investigate for the Application of Anti-Dumping Measures

1. Within fifteen days from the date of receipt of the file, if the investigating agency finds that the file requesting the application of anti-dumping measures does not contain all the required contents as stipulated in Article 9 of this Ordinance, it must notify the organization or individual submitting the file to supplement the missing information.

2. The time limit for supplementing the documents shall be determined by the investigating authority but shall not be less than thirty days from the date the organization or individual receiving the notification to supplement the documents receives the notification.

3. Before the Minister of Trade issues a decision to investigate, the investigating agency must notify the competent authority of the country or region exporting the goods subject to the request for the application of anti-dumping measures about Vietnam's anti-dumping regulations.

4. Within sixty days from the date of receiving the file containing all the required contents as stipulated in Article 9 of this Ordinance, the Minister of Trade shall issue a decision to investigate; in exceptional cases, the deadline for issuing the decision to investigate may be extended but not more than thirty days.

5. Within fifteen days from the date of the decision to investigate for the application of anti-dumping measures, the investigating agency shall notify the decision to investigate to the organization or individual requesting the application of anti-dumping measures, domestic producers and exporters, the competent authority of the country or region exporting the goods subject to the request for the application of anti-dumping measures, and publish it to other interested parties.

6. The Minister of Trade shall not issue a decision to investigate if the organization or individual requesting the application of anti-dumping measures withdraws the file, except in the case provided for in Clause 2 of Article 8 of this Ordinance.

Article 11. Parties Involved in the Investigation Process

The parties involved in the investigation process include:

1. Organizations and individuals with application files requesting the imposition of anti-dumping measures;

2. Foreign organizations and individuals producing or exporting goods subject to anti-dumping measures;

3. Organizations and individuals importing goods subject to anti-dumping measures;

4. Domestic organizations or individuals producing similar goods;

5. Domestic industry associations representing the majority of organizations or individuals producing or importing similar goods;

6. Foreign industry associations representing the majority of organizations and individuals producing or exporting goods subject to anti-dumping measures;

7. Trade unions or other organizations representing the interests of workers in domestic production industries;

8. Consumer protection organizations;

9. Competent state agencies of Vietnam;

10. Competent authorities of the country or territory exporting goods subject to anti-dumping measures;

11. Other organizations or individuals whose rights and interests are related to the investigation process.

Article 12. Content of the investigation for the imposition of anti-dumping measures

1. Determining dumped goods entering Vietnam and the dumping margin

2. Determining significant injury or threat of significant injury to the domestic industry based on the following considerations:

a) The volume, quantity, or value of dumped goods entering Vietnam compared to the volume, quantity, or value of like goods produced or consumed domestically has increased significantly absolutely or relatively;

b) The price effect of the goods subject to anti-dumping measures on having to lower prices or restraining the reasonable price increase capacity of like goods domestically;

c) Negative impact on the domestic industry or on the establishment of the domestic industry.

3. The relationship between the dumping of goods into Vietnam and significant injury or threat of significant injury to the domestic industry.

Article 13. Provision of information and documents during the investigation

1. The parties related to the investigation process as stipulated in Article 11 of this Ordinance shall be responsible for providing authentic information and necessary documents upon the request of the investigating authority.

2. In cases where necessary information and documents are not provided as required, the investigating authority shall decide based on the available information and documents.

Article 14. Consultation

1. The investigating authority organizes consultations with the parties involved in the investigation process as stipulated in Article 11 of this Ordinance to facilitate the presentation of opinions and provision of necessary information by the parties.

2. Parties involved in the investigation process are not required to be present at the consultations; if any party is absent from the consultations, the interests of that party related to the imposition of anti-dumping measures will still be guaranteed.

3. Conducting consultations shall not obstruct the investigation process and the imposition of anti-dumping measures as prescribed by this Ordinance.

Article 15. Confidentiality of information

1. The investigating authority is responsible for keeping confidential information provided when receiving reasonable requests from the parties involved in the investigation process and requesting these parties to provide summaries of the information to be kept confidential.

2. The parties related to the investigation process are permitted access to the information they have provided to the investigating authority, except for confidential information.

Article 16. Investigation period

1. The investigation period for the imposition of anti-dumping measures shall not exceed twelve months, starting from the date of the decision to investigate.

2. In exceptional cases, the Minister of Commerce may decide to extend the investigation period but not more than six months.

Article 17. Preliminary conclusion

1. Within ninety days from the date of the decision to investigate, the investigating authority publishes a preliminary conclusion regarding the contents related to the investigation process as stipulated in Article 12 of this Ordinance; in exceptional cases, the deadline for publishing the preliminary conclusion may be extended but not more than sixty days.

2. The preliminary conclusion and the main grounds for the preliminary conclusion must be notified to the parties related to the investigation process through appropriate means.

Article 18. Final conclusion

1. Upon completion of the investigation process, the investigating authority publishes a final conclusion regarding the contents related to the investigation process as stipulated in Article 12 of this Ordinance.

2. The final conclusion and the main grounds for the final conclusion must be notified to the parties related to the investigation process through appropriate means.

Article 19. Termination of investigation

The Minister of Commerce decides to terminate the investigation in the following cases:

1. Organizations and individuals with application files requesting the imposition of anti-dumping measures voluntarily withdraw their applications;

2. The preliminary conclusion stipulated in Article 17 of this Ordinance includes at least one of the following contents:

a) There is no dumping as defined in Article 3 of this Ordinance;

b) The dumping margin is insignificant;

c) The volume, quantity, or value of dumped goods entering Vietnam is insignificant;

d) There is no significant damage or threat of causing significant damage to the domestic industry.

Chapter III

IMPOSITION OF ANTI-DUMPING MEASURES

Article 20. Application of Temporary Anti-Dumping Duties

1. After sixty days from the date of the investigation decision, based on the preliminary conclusion, , the Minister of Commerce may issue a decision to apply temporary anti-dumping duties.

2. The rate of the temporary anti-dumping duty shall not exceed the dumping margin in the preliminary conclusion.

3. The temporary anti-dumping duty may be secured for payment by cash deposit or by other measures as provided for by law.

4. The period for applying the temporary anti-dumping duty shall not exceed one hundred twenty days from the date of the decision to apply this measure.

5. Upon request of similar goods exporters, the Minister of Commerce may extend the application of the temporary anti-dumping duty but not more than sixty days.

Article 21. Application of Undertakings

1. After the preliminary conclusion and before the end of the investigation phase, organizations or individuals producing or exporting goods subject to investigation may offer undertakings to the Ministry of Commerce and domestic producers regarding one or more of the following contents:

a) Adjusting sale prices;

b) Voluntarily limiting quantities or values of dumped goods sold into Vietnam.

2. The Minister of Commerce may accept, not accept, or request adjustments to the content of the commitment but shall not compel parties to make such commitments.

3. The investigating authority shall publicly announce the content of the commitment for the parties involved in the investigation process to be aware of.

4. In case of non-acceptance of the undertakings of the parties concerned, the Minister of Commerce must notify the reasons for non-acceptance and continue the investigation to apply anti-dumping measures as stipulated in this Ordinance.

5. The Minister of Commerce issues a decision to suspend the anti-dumping investigation and apply the undertaking if it is deemed that the implementation of the undertaking will not cause or threaten to cause significant damage to the domestic industry.

Parties with undertakings must periodically provide the investigating authority with information and documents related to the implementation of the undertaking and prove the accuracy of such information according to the decision of the Minister of Commerce.

6. In case the parties concerned fail to implement the undertaking properly, causing or threatening to cause significant damage to the domestic industry, the Minister of Commerce issues a decision to continue the investigation to apply anti-dumping measures or to apply anti-dumping measures as stipulated in this Ordinance.

Article 22. Application of Anti-Dumping Duties

1. In case the undertaking specified in Article 21 of this Ordinance is not reached, based on the final conclusion and recommendation of the Anti-Dumping Case Handling Council, the Minister of Commerce issues a decision to apply or not apply anti-dumping duties.

2. The rate of the anti-dumping duty shall not exceed the dumping margin in the final conclusion.

3. The period for applying the anti-dumping duty shall not exceed five years from the date of the decision to apply the anti-dumping measure.

4. The period for applying the anti-dumping duty may be extended in case the Minister of Commerce issues a decision to review the application of the anti-dumping duty as stipulated in Chapter IV of this Ordinance.

5. The investigating authority shall notify the relevant parties to the investigation process of the decision to apply or not apply the anti-dumping duty by appropriate means.

Article 23. Application of Anti-Dumping Duties with Retroactive Effect

1. In case the final conclusion determines significant damage or threat of significant damage to the domestic industry and the temporary anti-dumping duty has been applied prior to the final conclusion, the anti-dumping duty applied shall have retroactive effect.

2. The anti-dumping duty applied shall have retroactive effect for goods imported within ninety days before the application of the provisional measure if the following two conditions are met:

a) Such goods are dumped;

b) The quantity, volume or value of dumped goods entering Vietnam increases rapidly, causing significant damage to the domestic industry that is difficult to remedy.

3. No back-taxation shall be made for the difference in tax when the anti-dumping duty rate in the final conclusion is higher than the temporary anti-dumping duty rate stipulated in Article 20 of this Ordinance.

4. Refund of the difference in tax when the anti-dumping duty rate in the final conclusion is lower than the temporary anti-dumping duty rate stipulated in Article 20 of this Ordinance.

5. In case the Minister of Commerce issues a decision not to apply the anti-dumping duty, the temporary anti-dumping duty already collected or the security deposits for the temporary anti-dumping duty stipulated in Article 20 of this Ordinance shall be refunded.

Chapter IV

REVIEW OF THE APPLICATION OF ANTI-DUMPING MEASURES

Article 24. Review of the Application of Anti-Dumping Measures

1. One year after the date of the decision to apply the anti-dumping measure, the Minister of Commerce has the right to decide to review the application of the anti-dumping measure upon request of one or more interested parties as stipulated in Article 11 of this Ordinance and based on the examination of evidence provided by the requesting party.

2. One year before the expiration date of the decision to apply the anti-dumping measure, the Minister of Commerce issues a decision to review the application of the anti-dumping measure.

3. The investigating authority conducts the review of the application of the anti-dumping measure as stipulated in Articles 9, 10, 11, 12, 13, 14, and 15 of this Ordinance.

4. The conduct of procedures related to the review process shall not hinder the ongoing application of the anti-dumping measure.

5. The period for reviewing the application of the anti-dumping measure as stipulated in Clause 1 and Clause 2 of this Article shall not exceed twelve months from the date of the review decision.

Article 25. Decision on the Result of the Review of the Application of Anti-Dumping Measures

When the review of the application of the anti-dumping measure is concluded, the Minister of Commerce shall issue one of the following decisions:

1. Continue to apply or extend the application of the anti-dumping measure;

2. Adjust the level of the anti-dumping duty corresponding to the result of the review;

3. Terminate the application of the anti-dumping measure.

Chapter V

COMPLAINTS AND VIOLATION HANDLING

Article 26. Appeals and Lawsuits

1. Within sixty days from the date on which the Minister of Commerce issues a decision on the imposition of anti-dumping duties, the parties involved in the investigation and application of anti-dumping measures who disagree with the Minister of Commerce's decision have the right to appeal to the Minister of Commerce.

2. Within sixty days from the date of receipt of the appeal, the Minister of Commerce shall be responsible for resolving the appeal; in special cases, the deadline for resolving the appeal may be extended but not exceeding sixty days and must be notified in an appropriate manner to the organization or individual making the appeal.

3. In case the Minister of Commerce has not issued a decision to resolve the appeal within the time limit specified in Clause 2 of this Article or the organization or individual making the appeal disagrees with the Minister of Commerce's decision to resolve the appeal, they have the right to initiate a lawsuit at the Court in accordance with Vietnamese law.

Article 27. Resolution of disputes and handling of violations

The resolution of disputes and handling of violations of Vietnamese law concerning anti-dumping of goods into Vietnam shall be carried out in accordance with Vietnamese law; in cases where international treaties to which Vietnam is a party provide otherwise, such treaties shall prevail.

Chapter VI

IMPLEMENTING PROVISIONS

Article 28. Effectiveness

This Ordinance takes effect from October 1, 2004.

Article 29. Implementation guidance

Government, People's Courts organize credit institutions, foreign bank branches are responsible for organizing the implementation of this Circular.shall, within their respective spheres of responsibility, issue detailed regulations and guidelines for the implementation of this Ordinance.