Ordinance No. 42/2002/PL-UBTVQH10 on Defensive Measures in Importing Foreign Goods into Vietnam

ORDINANCE

Regarding anti-dumping measures for imported goods from foreign countries into Vietnam

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To strengthen state management over the economy, create conditions for the Vietnamese economy to integrate effectively into the international economy, and limit adverse impacts causing serious damage to domestic production due to abnormal increases in imports of goods into Vietnam;

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 10th National Assembly, 10th session;

Based on the National Assembly's Resolution of the 10th term, 10th session on the legislative program for 2002;

This Ordinance stipulates anti-dumping measures for imported goods from foreign countries into Vietnam.

Chapter 1:

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Ordinance stipulates anti-dumping measures, conditions, and procedures for applying such measures when the importation of goods exceeds normal levels into Vietnam, causing serious damage to domestic production.

Article 2. Right to apply anti-dumping measures

The Government of Vietnam has the right to apply anti-dumping measures in cases where a specific type of goods is imported into Vietnam in excess of normal levels as prescribed by this Ordinance.

Article 3. Anti-dumping measures

Anti-dumping measures in the importation of foreign goods into Vietnam include:

1. Increase import tariffs;

2. Apply import quotas;

3. Apply other measures as prescribed by the Government.

Article 4. Definitions

In this Ordinance, the following terms are understood as follows:

1. "Excessive importation of goods" means importing goods in quantities, volumes, or values that increase absolutely or relatively compared to the quantities, volumes, or values of similar or directly competing domestically produced goods.

2. "Serious damage to domestic production industry" refers to a significant decline in production volume, domestic consumption level, production profit, production growth rate; increased inventory levels; negative impact on employment, wages, investment, and other indicators of the domestic production industry producing such goods.

3. "Imminent threat of serious damage to the domestic production industry" is a clear and verifiable possibility of serious damage being caused to the domestic production industry.

4. "Domestic production industry" means all producers of similar or directly competing goods within the territory of Vietnam or their legitimate representatives who hold a predominant share in the total production volume of that industry produced domestically.

5. "Similar goods" are identical or nearly identical goods in function, utility, quality indices, technical features, and other basic attributes.

6. "Directly competing goods" are goods that buyers may accept as substitutes for goods subject to anti-dumping measures due to price advantage and intended use.

Article 5. Principles for Applying Anti-Dumping Measures

1. Anti-dumping measures shall be applied within the necessary scope and degree to prevent or mitigate serious damage to the domestic production industry and provide conditions for that industry to enhance its competitiveness.

2. The application of anti-dumping measures must be based on the results of investigations as stipulated in Chapter II of this Ordinance, except in cases of temporary anti-dumping measures.

3. Anti-dumping measures shall be applied on a non-discriminatory basis and shall not depend on the origin of the goods.

Article 6. Conditions for Applying Safeguard Measures

Safeguard measures may only be applied to imported goods if the following conditions are met:

1. The volume, quantity, or value of imported goods has increased suddenly and absolutely or relatively compared to the volume, quantity, or value of similar goods or directly competing goods produced domestically.

2. The increase in the volume, quantity, or value of imported goods as stipulated in Clause 1 of this Article causes or threatens to cause serious damage to the domestic industry producing similar goods or directly competing goods.

Article 7. Consultation

1. The Ministry of Commerce may conduct consultations with interested parties regarding the investigation and application of safeguard measures at their request to facilitate all interested parties in presenting their views and providing necessary information.

2. Interested parties are not required to attend consultations; if any party does not attend consultations, their interests related to safeguard measures will still be protected.

Article 8. Compensation for Damage

1. The compensation and extent of compensation for damage caused by the application of safeguard measures shall be carried out in accordance with Vietnamese law, international treaties to which Vietnam is a party.

2. The compensation and extent of damage are determined based on the results of consultations between interested parties.

Chapter 2:

INVESTIGATION TO APPLY ANTI-DUMPING MEASURES

Article 9. Authority Responsible for Conducting Investigations

The Ministry of Commerce is responsible for conducting investigations before deciding to apply or not apply safeguard measures.

Article 10. Basis for Conducting Investigations

1. The Ministry of Commerce conducts investigations when there is a request for the application of safeguard measures from organizations or individuals representing the domestic production industry, provided that the entire output of goods produced by such organizations or individuals constitutes at least 25% of the total output of similar goods or directly competing goods produced domestically. Organizations or individuals submitting the request must bear responsibility for the information in the request.

2. The Ministry of Commerce initiates investigations proactively in cases where evidence proves the necessity to apply safeguard measures.

Article 11. Request for Application of Safeguard Measures

The request for the application of safeguard measures submitted to the Ministry of Commerce includes:

1. A request form for applying safeguard measures according to a template prescribed by the Ministry of Commerce;

2. Relevant documents and information concerning the type of goods subject to the investigation for the application of safeguard measures and similar goods or directly competing goods.

Article 12. Decision to Initiate Investigation for Application of Safeguard Measures

1. In cases where the request for the application of safeguard measures lacks sufficient information, the Ministry of Commerce must notify the organization or individual submitting the request to supplement the information within 15 days from the date of receipt of the request. The period for supplementing information is at least 30 days from the date the organization or individual receives the request to supplement information. The Ministry of Commerce will not issue a decision to initiate an investigation if the information is not provided within the specified time limit.

2. Within 30 days from the date of receipt of the supplemented request containing complete information, the Ministry of Commerce must issue a decision to initiate an investigation.

3. Before issuing a formal decision to initiate an investigation, the Ministry of Commerce must not disclose the contents of the request for the application of safeguard measures.

4. In cases where a decision to initiate an investigation is not issued, the Ministry of Commerce must inform the organization or individual submitting the request for the application of safeguard measures of the reasons.

5. The Ministry of Commerce will not issue a decision to initiate an investigation if the organization or individual submitting the request for the application of safeguard measures withdraws the request, except in cases where there is evidence indicating the need to continue the investigation.

Article 13. Parties related to the investigation process

The parties involved in the investigation process include:

1. Organizations and individuals outside the country producing and exporting the type of goods under investigation;

2. Organizations and individuals importing the type of goods under investigation;

3. Foreign industry associations representing the majority of organizations and individuals producing, exporting, or importing the type of goods under investigation;

4. Government and competent authorities of the exporting country for the type of goods under investigation;

5. Organizations and individuals with applications requesting the application of safeguard measures;

6. Domestic organizations and individuals producing similar goods or directly competing goods;

7. Domestic industry associations representing the majority of organizations and individuals producing similar goods or directly competing goods;

8. Trade unions representing the interests of workers in domestic production industries;

9. Vietnam Farmers' Association;

10. Organizations protecting the rights of Vietnamese consumers;

11. Competent state agencies of Vietnam;

12. Organizations and individuals having legitimate rights and interests related to the investigation process or those who can assist the investigation process.

Article 14. Provision of information for the investigation process

1. State agencies, organizations, and individuals related have the responsibility to cooperate, create favorable conditions for the investigation process, and provide necessary information at the request of the Ministry of Commerce.

2. The Ministry of Commerce has the responsibility to keep information confidential in accordance with the provisions of the law.

Article 15. Management of importation of goods under investigation

1. The investigation process to consider the possibility of applying safeguard measures shall not hinder the customs procedures for imported goods currently under investigation.

2. From the date of the decision to initiate the investigation until the end of the investigation process, the Ministry of Commerce may implement a licensing system for the type of goods currently under investigation. Such licensing is solely for statistical purposes and does not limit the quantity, volume, or value of imported goods.

Article 16. Content of the investigation

The investigation must be objective and take into account the specific characteristics of the domestic production situation, clarifying the following contents:

1. The sudden increase in imports of the type of goods under investigation in terms of volume, quantity, or value;

2. Severe damage or threat of severe damage to the domestic production industry based on the assessment:

a) Changes in the consumption situation of the goods under investigation in the domestic market;

b) Changes in the production volume of the goods, labor productivity indices, capacity utilization rates, profit and loss levels, employment ratios in the production industry of the goods under investigation;

c) The proportion of imported goods under investigation in the total volume of similar goods or directly competing goods being consumed in the domestic market.

3. The relationship between the increase in imports and severe damage or the risk of causing severe damage to the domestic production industry.

Article 17. Suspension of Investigation

The Ministry of Commerce decides to suspend the investigation in the following cases:

1. The party with the application requesting the application of safeguard measures withdraws the application during the investigation process;

2. The foreign party involved commits to eliminating severe damage or the risk of causing severe damage to the domestic production industry;

3. Other cases prescribed by the Government.

Article 18. Investigation Period and Publication of Investigation Results

1. The investigation period shall not exceed six months from the date on which the Ministry of Commerce issues the decision to initiate the investigation; in cases of necessity, the investigation period may be extended once for up to two additional months.

2. After completing the investigation, the Ministry of Commerce shall publicly announce the results of the investigation.

Article 19. Decision to Apply or Not Apply Safeguard Measures

1. Based on the investigation results, the Ministry of Commerce shall issue a decision to apply or not apply safeguard measures after consulting the relevant ministries and agencies. Such decision must be publicly announced.

2. The safeguard measures prescribed in this Ordinance may not be applied if their application leads to any of the following consequences:

a) Causing damage to the national economy and society;

b) Causing damage to the interests of the majority of consumers;

c) Other consequences determined by the Government.

Chapter 3:

APPLICATION OF ANTI-DUMPING MEASURES;

Article 20. Application of Temporary Safeguard Measures

1. The Ministry of Commerce may issue a decision to apply temporary safeguard measures before the conclusion of the investigation if it deems that the delay in implementing such measures would cause or threaten to cause serious damage to the domestic production industry and such damage would be difficult to remedy later.

2. Temporary safeguard measures can only be applied under the condition that the Ministry of Commerce continues to conduct the investigation.

3. The decision to apply temporary safeguard measures must be publicly notified to the relevant parties.

4. Temporary safeguard measures can only be applied in the form of import duties as stipulated by the Law on Export Duties and Import Duties.

5. The duration of the effectiveness of temporary safeguard measures shall not exceed the necessary time to eliminate serious damage or prevent the risk of causing serious damage to the domestic production industry and allow the domestic production industry to adjust to competitive conditions. The validity period of temporary safeguard measures ends when the Ministry of Commerce makes a decision on applying or not applying safeguard measures, but in any case, it shall not exceed 200 days from the date of implementation of temporary safeguard measures.

6. The Ministry of Commerce may issue a decision to suspend the application of temporary safeguard measures before the deadline if necessary.

7. In cases where the investigation results of the Ministry of Commerce show that the implementation of temporary safeguard measures is unnecessary or should only increase import duties at a lower rate than the previously applied rate, the difference in duty shall be refunded to the taxpayer according to the provisions of the law.

Article 21. Application of Safeguard Measures

1. The application of safeguard measures shall be carried out based on the effective decision of the Ministry of Commerce.

2. Safeguard measures may not be applied to goods originating from less developed countries..

Article 22. Duration of Application of Safeguard Measures

1. The duration of the application of safeguard measures, including the period of application of temporary safeguard measures, shall not exceed four years.

2. The duration of the application of safeguard measures may be extended once for up to six additional years, provided that serious damage or the threat of serious damage to the domestic production industry still exists and there is evidence showing that the industry is adjusting to enhance its competitiveness.

Article 23. Suspension of Anti-Dumping Measures

The Ministry of Commerce shall issue a decision to suspend the application of anti-dumping measures in the following cases:

1. When the conditions for applying anti-dumping measures no longer exist;

2. The continued application of anti-dumping measures causes serious damage to the domestic economy and society.

Chapter 4:

REVIEW OF ANTI-DUMPING MEASURES

Article 24. Principles for Conducting Reviews of Anti-Dumping Measures

1. In cases where the period of application of anti-dumping measures exceeds three years, the Ministry of Commerce must conduct a review of these measures before half of this period has elapsed to conclude on whether to maintain, revoke, or reduce the level of application of such measures.

2. The review of anti-dumping measures must comply with the provisions set out in Chapter II of this Ordinance.

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

After reviewing the anti-dumping measures, the Ministry of Commerce shall issue one of the following decisions:

1. Maintain the existing anti-dumping measures;

2. Reduce the level of application of these measures;

3. Suspend the application of the existing anti-dumping measures.

Chapter 5:

EXTENSION AND REAPPLYING OF ANTI-DUMPING MEASURES

Article 26. Extension of the Application of Anti-Dumping Measures

1. The Ministry of Commerce shall consider extending the application of anti-dumping measures based on the request for extension submitted by organizations or individuals representing the domestic production industry in accordance with the provisions of Clause 1, Article 10 of this Ordinance.

The request for extension of the application of anti-dumping measures must include evidence showing that the domestic production industry has implemented necessary adjustment measures to enhance its competitiveness and must be submitted to the Ministry of Commerce at least six months before the expiration date of the anti-dumping measure.

2. The procedures for investigation, publication, and notification stipulated in Chapter II of this Ordinance shall apply correspondingly to the extension of the application of anti-dumping measures.

3. The level of application of anti-dumping measures during the extension period shall not exceed the level applied in the immediately preceding period.

Article 27. Provisions on Reapplying Anti-Dumping Measures

An anti-dumping measure that has been applied to a type of goods may be reapplied to that type of goods according to the following provisions:

1. In cases where an anti-dumping measure has been applied to a type of goods for more than four years, it can only be reapplied to that type of goods after a period equal to half of that time.

2. In cases where an anti-dumping measure has been applied to a type of goods from six months to four years, it can only be reapplied to that type of goods after two years.

3. In cases where an anti-dumping measure has been applied to a type of goods for less than six months, it may be reapplied when the following conditions are met:

a) At least one year has passed since the previous application of the anti-dumping measure;

b) The anti-dumping measure has not been applied to the type of goods more than twice within five years prior to the reapplication of the anti-dumping measure.

4. The reapplication of an anti-dumping measure to a type of goods must be carried out according to the procedures followed when the measure was first applied.

Chapter 6:

STATE MANAGEMENT OF THE APPLICATION OF ANTI-DUMPING MEASURES

Article 28. Contents of State Management on the Application of Safeguard Measures

The contents of State management on the application of safeguard measures include:

1. Issuing and implementing regulatory legal documents on the application of safeguard measures;

2. Implementing safeguard measures;

3. Propagating and disseminating laws and policies related to the application of safeguard measures;

4. Conducting investigations for the application of safeguard measures;

5. Organizing and conducting consultations with relevant parties;

6. Deciding to apply or not apply safeguard measures;

7. Guiding the application of safeguard measures;

8. Organizing the collection, processing, and provision of information related to the application of safeguard measures;

9. Inspecting and supervising compliance with laws on the application of safeguard measures;

10. Resolving complaints and handling violations of laws on the application of safeguard measures.

Article 29. State Management Agencies on the Application of Safeguard Measures

1. The Government uniformly manages state affairs regarding the application of safeguard measures.

2. The Ministry of Trade is responsible before the Government for uniformly managing state affairs concerning the application of safeguard measures; organizing the implementation of the application of safeguard measures based on consulting opinions from relevant ministries and equivalent agencies.

3. Ministries, equivalent agencies, People's Committees of provinces and centrally governed cities within their respective duties and authorities have the responsibility to coordinate with the Ministry of Trade in the implementation of management over the application of safeguard measures.

Chapter 7:

COMPLAINTS AND VIOLATION HANDLING

Article 30. Complaints

1. Complaints related to the investigation process and the application of safeguard measures must be submitted to the Ministry of Trade.

2. The Ministry of Trade has the responsibility to resolve complaints within thirty days from the date of receipt of the complaint; in special cases, this period may be extended but shall not exceed sixty days.

3. In case the Ministry of Trade fails to resolve the complaint within the time limit stipulated in Clause 2 of this Article, or if the organization or individual making the complaint disagrees with the decision resolving the complaint made by the Ministry of Trade, then such organization or individual has the right to initiate litigation at court in accordance with the provisions of the law.

Article 31. Resolution of Disputes and Handling of Violations

The resolution of disputes and handling of violations are carried out in accordance with the provisions of Vietnamese law and international treaties to which Vietnam is a party.

Chapter 8:

IMPLEMENTING PROVISIONS

Article 32. Effectiveness

This Ordinance takes effect from September 1, 2002.

Article 33. Guidance on Implementation

The Government shall provide detailed regulations and guidance on the implementation of this Ordinance.