Ordinance No. 22/2004/PL-UBTVQH11 on Countering Subsidies for Imported Goods into Vietnam

||| Ordinance

||| On Countering Subsidies for Imported Goods into Vietnam

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Pursuant to 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 National Assembly, tenth session;

||| Based on the Law on Export Duties and Import Duties dated December 26, 1991, 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 11th National Assembly, fourth session, concerning the Program on Law Building and Legislative Decrees in 2004;

||| This Ordinance stipulates measures to counter subsidies for imported goods into Vietnam.

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

||| This Ordinance stipulates measures to counter subsidies; procedures and contents of investigations to apply such measures and the application thereof to subsidized imported goods.

Article 2. Interpretation of Terms

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

1. ||| Subsidy is financial support provided by the Government or its agencies to organizations or individuals when producing or exporting goods into Vietnam, which brings benefits to those organizations or individuals.

2. ||| The domestic industry is a group of domestic producers or their representatives whose volume, quantity, or value of produced goods constitutes a significant proportion of the total volume, quantity, or value of similar goods produced domestically, provided that these producers do not import and have no direct link with organizations or individuals producing, exporting, or importing goods subject to anti-subsidy measures.

3. ||| Anti-dumping duty is an additional import duty applied in cases where subsidized imported goods cause or threaten to cause significant damage to the domestic industry.

4. ||| Significant damage to the domestic industry is a situation of 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 industry, or a situation leading to difficulties in establishing a domestic industry.

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

6. ||| Similar goods are goods having all characteristics identical to the goods subject to anti-subsidy measures, or in the absence of such goods, goods having basic characteristics similar to the goods subject to anti-subsidy measures.

7. ||| De minimis subsidy level is a subsidy amount lower than 1% of the product's value.

8. ||| Specific subsidy is a subsidy exclusively applicable to a specific organization, individual, or industry, or a subsidy exclusively applicable to organizations, individuals, or industries within a specific geographic area of the country or territory under investigation for anti-subsidy measures.

||| Article 3. Forms of Subsidy

1. ||| The Government or its agencies provide capital to organizations or individuals in the form of grants, transfer of shares, preferential loans, or guarantees to obtain loans at lower interest rates without such guarantees.

2. ||| The Government or its agencies waive or fail to collect amounts that organizations or individuals are obligated to pay.

3. ||| The Government or its agencies supply goods or services that are not common infrastructure or purchase goods or services at higher prices and sell them to organizations or individuals at prices lower than market prices.

4. ||| The Government or its agencies contribute money to a funding mechanism, instruct, or order a private entity to implement one or more forms prescribed in Clauses 1, 2, and 3 of this Article.

5. ||| Other subsidies not included in the forms of subsidy prescribed in Clauses 1, 2, 3, and 4 of this Article are determined fairly, reasonably, and in accordance with international practices.

Article 4. Anti-subsidy Measures

1. Apply anti-subsidy duties.

2. Accept commitments from organizations, individuals, or the Government of the producing or exporting country or territory with the competent authority of Vietnam regarding voluntarily ending subsidies, reducing subsidy levels, committing to adjust export prices, or applying other appropriate measures.

Article 5. Principles for Applying Anti-subsidy Measures

1. Anti-subsidy measures shall only be applied at a level necessary and reasonable to prevent or limit significant damage to domestic industries.

2. The application of anti-subsidy measures shall only be implemented after conducting investigations and must be based on the investigation conclusions stipulated in Articles 19 and 20 of this Ordinance.

3. Anti-subsidy measures shall only be directly applied to subsidized goods imported into Vietnam as provided for in this Ordinance.

4. The application of anti-subsidy measures shall not cause damage to domestic economic and social interests.

Article 6. Conditions for Applying Anti-subsidy Measures

Anti-subsidy measures shall only be applied to subsidized goods imported into Vietnam when the following conditions are met:

1. Imported goods are determined to have subsidies according to the provisions of Article 3 of this Ordinance.

2. The imported goods specified in Clause 1 of this Article are the cause or threat of causing significant damage to domestic industries.

Article 7. State Management Responsibilities for Anti-subsidy

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

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

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

b) The anti-subsidy 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 subsidy on imported goods causing or threatening to cause significant damage to domestic industries; recommend the Minister of Trade to issue a decision to apply anti-subsidy measures.

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

4. Ministries, ministerial-level agencies, People's Committees of provinces and centrally-run cities within their respective tasks and authorities shall have the responsibility to coordinate with the Ministry of Trade in managing state affairs concerning anti-subsidy and applying anti-subsidy measures.

PART II
INVESTIGATION FOR THE APPLICATION OF ANTI-DUMPING MEASURES

Article 8. Basis for Conducting Investigations

1. Investigations to apply anti-subsidy measures shall be conducted when there is a request file for applying anti-subsidy measures submitted by organizations or individuals representing domestic production industries.

Organizations or individuals submitting the request file for applying anti-subsidy measures shall be considered as representatives of domestic production industries when they meet the following two conditions:

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

b) The volume, quantity, or value of goods specified in point a of Clause 1 of this Article and of domestic producers supporting the submission of the request file for applying anti-subsidy measures must be greater than the volume, quantity, or value of similar goods of domestic producers opposing the request for applying anti-subsidy measures.

2. The Minister of Trade may issue a decision to investigate when there is clear evidence that subsidized goods imported into Vietnam are causing or threatening to cause significant damage to domestic industries.

Article 9. Documents for Requesting Anti-subsidy Measures

The documents for requesting anti-subsidy measures shall be submitted to the investigating authority and include:

1. An application form for anti-dumping measures containing the following contents:

a) The name, address, and other necessary information of the organization or individual requesting the application of anti-subsidy measures;

b) A description of the imported goods subject to the request for anti-subsidy measures, including the name of the goods, basic characteristics, primary intended use, current import tariff code, applicable import tax rate, and country of origin of the imported goods;

c) A description of the quantity, number, unit price, and value of the imported goods specified in point b of this Clause within twelve months prior to the submission of the request for anti-subsidy measures;

d) A description of the quantity, number, unit price, and value of similar goods produced domestically within twelve months prior to the submission of the request for anti-subsidy measures;

đ) Information on foreign government subsidy policies, the situation and forms of subsidies;

e) Information, data, and evidence regarding significant damage caused to the domestic industry by subsidized imported goods entering Vietnam or threatening to cause such damage;

g) The name, address, and other necessary information of the organization or individual producing and exporting goods into Vietnam subject to the request for anti-subsidy measures;

h) Specific requests regarding the application of anti-subsidy measures, the duration of application, and the level of application;

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

Article 10. Decision to Initiate Investigation for Anti-subsidy Measures

1. Within fifteen days from the date of receipt of the documents, if the investigating authority finds that the documents for requesting anti-subsidy measures are incomplete as required under Article 9 of this Ordinance, it must notify the organization or individual submitting the documents to supplement them.

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. Prior to the Minister of Commerce issuing the decision to initiate investigation, the investigating authority must notify the competent authority of the country or territory producing or exporting the goods subject to the request for anti-subsidy measures about Vietnam's anti-subsidy regulations.

4. Within sixty days from the date of receipt of the complete documents as required under Article 9 of this Ordinance, the Minister of Commerce must issue the decision to initiate investigation; in special cases, the deadline for issuing the decision to initiate investigation may be extended but not more than thirty days.

5. Within fifteen days from the date of issuance of the decision to initiate investigation for anti-subsidy measures, the investigating authority must notify the decision to initiate investigation to the organization or individual requesting the application of anti-subsidy measures and the organization or individual, and the competent authority of the country or territory producing or exporting the goods subject to the request for anti-subsidy measures, and publish it to other related parties.

6. The Minister of Commerce shall not issue the decision to initiate investigation if the organization or individual requesting the application of anti-subsidy measures withdraws the documents, except in the case provided for in Clause 2, Article 8 of this Ordinance.

Article 11. Parties Involved in the Investigation Process

The parties involved in the investigation process include:

1. The organization or individual with the documents requesting the application of anti-subsidy measures;

2. Organizations or individuals outside Vietnam producing or exporting goods subject to the request for anti-subsidy measures;

3. Organizations or individuals importing goods subject to the request for anti-subsidy 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 or individuals producing or exporting goods subject to the request for anti-subsidy measures;

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

8. Consumer protection organizations;

9. Competent authorities of Vietnam;

10. Competent authorities of the country or territory producing or exporting goods subject to the request for anti-subsidy measures;

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

Article 12. Provision of Information and Documents During the Investigation Process

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 13. Content of Investigation for Anti-subsidy Measures

The content of investigation for anti-subsidy measures includes:

1. Determining subsidies;

2. Determining damage and threats of damage caused to the domestic industry.

Article 14. Determination of Subsidies

The determination of subsidies shall be carried out as follows:

1. Identifying imported goods receiving subsidies in Vietnam, the specificity of such subsidies, and the extent of subsidies enjoyed by those goods;

2. Total value of subsidies. The method of calculating the total value of subsidies is as follows:

a) In cases where the subsidy is a non-repayable grant, the value of the subsidy is calculated based on the actual value of the subsidy granted to the organization or individual;

b) In cases where the subsidy is granted in the form of a loan, the value of the subsidy is calculated based on the difference between the interest rate that would have been paid under normal commercial conditions for the loan and the actual interest rate paid by the organization or individual for the loan;

c) In cases where the subsidy is granted in the form of a loan guarantee, the value of the subsidy is determined based on the difference between the interest rate that would have been paid without the guarantee and the actual interest rate paid with the guarantee;

d) In cases where the subsidy is granted in the form of share transfer, the value of the subsidy is determined based on the actual amount of capital received by the enterprise;

đ) In cases where the subsidy is granted in the form of the Government or government agency purchasing goods or services at a price higher than the market price and selling them to organizations or individuals at a price lower than or equal to the market price, the value of the subsidy is determined based on the difference between the market price and the actual price paid by the Government or government agency for the goods or services, or the difference between the purchase price and the sale price of the Government or government agency to organizations or individuals;

3. The value of subsidies granted in other forms will be calculated fairly, reasonably, and in accordance with international practices.

Article 15. Determination of Damage and Threats of Damage to the Domestic Industry

The determination of damage and threats of damage shall be carried out as follows:

1. The determination of material damage and the risk of damage to the domestic industry must be based on specific evidence;

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

a) The quantity, volume, or value of imported goods receiving subsidies has significantly increased due to low prices, reducing the market share of the domestic industry, changing consumption patterns, and decreasing productivity of the domestic industry;

b) The low price of imported goods due to subsidies leads to a decrease in the price of goods produced by the domestic industry;

c) The impact of subsidized imported goods on economic indicators, productivity, and profitability of the domestic industry;

d) The impact of subsidized imported goods in relation to the production volume of similar products manufactured domestically. In cases where such determination cannot be made, this impact is assessed through examining the production volume of a certain group of products or a specific product within the narrowest range of similar products manufactured domestically;

3. When imported goods from two or more countries or territories are the subject of investigation for the application of anti-subsidy measures, the investigating authority may assess the impact of imports from these countries or territories if it has established that:

a) The total value of subsidies applied to imported goods from each country or territory is significant and the volume of imports from each country or territory is significant;

b) Competitive conditions among imported goods and competitive conditions between imported goods and goods produced by the domestic industry serve as a reasonable basis for assessing the impact.

Article 16. Consultation

1. Prior to and during the investigation process, the investigating authority may organize consultations with the parties related to 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. The parties related to the investigation process are not required to be present at the consultations; if any party is absent from the consultations, their interests related to the application of anti-subsidy measures shall still be guaranteed.

3. Conducting consultations shall not impede the investigation process and the application of anti-subsidy measures as prescribed by this Ordinance.

Article 17. Confidentiality of Information

1. The investigating authority is responsible for keeping confidential the information provided when receiving a reasonable request from the parties related to the investigation process and requesting these parties to provide summaries of the information that needs 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 18. Investigation Period

1. The investigation period for applying anti-subsidy 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 19. Preliminary Conclusion

1. Within ninety days from the date of the decision to investigate, the investigating authority shall publish a preliminary conclusion regarding the contents related to the investigation process as stipulated in Articles 13, 14, and 15 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 20. Final Conclusion

1. Upon completion of the investigation process, the investigating authority shall publish the final conclusion regarding the contents related to the investigation process as stipulated in Articles 13, 14, and 15 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 21. Termination of Investigation

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

1. The organization or individual who has filed a request for the application of anti-subsidy measures voluntarily withdraws the request;

2. The preliminary conclusion as stipulated in Article 19 of this Ordinance includes one of the following contents:

a) There is no subsidy on imported goods into Vietnam;

b) The volume, quantity, or value of subsidized imported goods into Vietnam is insignificant;

c) The level of subsidy is insignificant;

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

CHAPTER III
APPLICATION OF ANTI-SUBSIDY MEASURES

Article 22. Application of Temporary Anti-subsidy Duties

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

2. The rate of the temporary anti-subsidy duty shall not exceed the level of subsidy determined in the preliminary conclusion.

3. The temporary anti-subsidy duty may be secured by a deposit or other measures as prescribed by law.

4. The duration of the application of the temporary anti-subsidy duty shall not exceed one hundred twenty days from the date of the decision to apply such measure.

5. The Minister of Commerce may extend the application of the temporary anti-subsidy duty but not more than sixty days.

Article 23. Application of Commitment Measures

1. After issuing preliminary conclusions and before concluding the investigation phase, organizations, individuals producing or exporting goods subject to investigation, or the government of a country or territory may make commitments with the Ministry of Commerce regarding voluntarily ending subsidies, reducing subsidy levels, committing to adjust export prices, or applying other appropriate measures.

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 cases where commitments from related parties are not accepted, the Minister of Commerce must notify the reasons for not accepting those commitments and continue the investigation to apply anti-subsidy measures as stipulated in this Ordinance.

5. The Minister of Commerce issues a decision to suspend the anti-subsidy investigation and apply commitment measures if it is determined that the implementation of the commitment will not cause or threaten to cause significant damage to the domestic production industry.

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

6. In cases where related parties fail to comply with their commitments, causing or threatening to cause significant damage to the domestic production industry, the Minister of Commerce issues a decision to continue the investigation to apply anti-subsidy measures or issue a decision to apply anti-subsidy measures as stipulated in this Ordinance.

Article 24. Application of Anti-subsidy Duties

1. In cases where commitments as prescribed in Article 23 of this Ordinance are not reached, based on the final conclusion and recommendation of the Anti-subsidy Case Handling Council, the Minister of Commerce issues a decision to apply or not apply anti-subsidy duties.

2. The rate of anti-subsidy duty shall not exceed the level of subsidy determined in the final conclusion.

3. The period for applying anti-subsidy duties shall not exceed five years, starting from the date of the decision to apply anti-subsidy duties.

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

5. The investigating authority shall notify the decision to apply or not apply anti-subsidy duties to the parties involved in the investigation process through appropriate means.

Article 25. Retroactive Application of Anti-subsidy Duties

1. In cases where the final conclusion determines significant damage or threat of significant damage to the domestic production industry and temporary anti-subsidy duties have been applied prior to the final conclusion, the retroactive application of anti-subsidy duties shall take effect.

2. Anti-subsidy duties shall be applied retroactively to imported goods within ninety days prior to the application of provisional measures if both of the following conditions are met:

a) Such imported goods are subsidized by the foreign government or its agencies;

b) The volume, quantity, or value of subsidized goods imported into Vietnam has increased sharply, causing significant damage to the domestic production industry that is difficult to remedy.

3. No additional tax difference shall be collected when the final anti-subsidy duty rate is higher than the provisional anti-subsidy duty rate specified in Article 22 of this Ordinance.

4. A refund of the tax difference shall be made when the final anti-subsidy duty rate is lower than the provisional anti-subsidy duty rate specified in Article 22 of this Ordinance.

5. In cases where the Minister of Commerce issues a decision not to apply anti-subsidy duties, the temporarily collected anti-subsidy duties or the security deposits for provisional anti-subsidy duties specified in Article 22 of this Ordinance shall be refunded.

PART IV
REVIEW OF THE APPLICATION OF ANTI-SUBSIDY MEASURES

Article 26. Review of the Implementation of Anti-subsidy Measures

1. Within twelve months from the date of the decision to implement anti-subsidy measures, the Minister of Commerce has the right to decide on a review of the implementation of anti-subsidy measures upon request of one or more interested parties as stipulated in Article 11 of this Ordinance, based on the evidence provided by the requesting party.

2. Twelve months before the expiration date of the decision implementing anti-subsidy measures, the Minister of Commerce shall issue a decision to review the implementation of anti-subsidy measures.

3. The investigating authority shall conduct a review of the implementation of anti-subsidy measures in accordance with Articles 9, 10, 11, 12, 13, 14, 15, 16, and 17 of this Ordinance.

4. The procedures related to the review process shall not hinder the ongoing implementation of anti-subsidy measures.

5. The review period for the implementation of anti-subsidy measures as prescribed in Clause 1 and Clause 2 of this Article shall not exceed twelve months from the date of the review decision.

Article 27. Decision on the Results of the Review of the Implementation of Anti-subsidy Measures

Upon completion of the review of the implementation of anti-subsidy measures, the Minister of Commerce shall issue one of the following decisions:

1. Continue to apply or extend the application of anti-subsidy measures;

2. Adjust the anti-subsidy duty rate or accept a corresponding undertaking based on the review results;

3. Terminate the application of anti-subsidy measures.

CHAPTER V
COMPLAINTS AND VIOLATION HANDLING

Article 28. Complaints and Litigation

1. Within sixty days from the date the Minister of Commerce decides on the application of the anti-subsidy duty, if the parties involved in the investigation and implementation of anti-subsidy measures disagree with the Minister's decision, they have the right to file a complaint with the Minister of Commerce.

2. Within sixty days from the date of receipt of the complaint, the Minister of Commerce shall be responsible for resolving the complaint; in special cases, the resolution period may be extended but not exceeding sixty days, and must be notified appropriately to the organization or individual filing the complaint.

3. If the Minister of Commerce fails to issue a decision to resolve the complaint within the time limit specified in Clause 2 of this Article, or if the organization or individual filing the complaint disagrees with the Minister's decision to resolve the complaint, such organization or individual has the right to initiate litigation at the court in accordance with Vietnamese law.

Article 29. Dispute Resolution and Handling of Violations

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

Chapter VI
IMPLEMENTING PROVISIONS

Article 30. Effective Date

This Ordinance takes effect from January 1, 2005.

Article 31. Guidance on Implementation

The Government and the Supreme People's Court, within their respective functions and powers, shall provide detailed regulations and guidance on the implementation of this Ordinance./.