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THE
STANDING COMMITTEE NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom Happiness
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No.
: 41/2002/PL-UBTVQH10
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Hanoi,
May 25th, 2002
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ORDINANCE
ON MOST FAVOURED NATION TREATMENT AND NATIONAL TREATMENT IN
INTERNATIONAL COMMERCE
THE STANDING COMMITTEE NATIONAL ASSEMBLY
In order to unify State
administration of most favoured nation treatment and national treatment on the
basis of equality and mutual benefit in international commerce; to effectively
implement external economic policy and enhance the economic co-operative
relationship between the Socialist Republic of Vietnam and other countries;
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as
amended by resolution No. 51-2001-QH10 of Legislature X of the National
Assembly at its 10th session on 25 December 2001;
Pursuant to the resolution of Legislature X of the National Assembly at its
10th session on the program for formulation of laws and ordinances in 2002;
This Ordinance provides for the application of most favoured nation treatment
and national treatment in international commerce.
Chapter 1
GENERAL PROVISIONS
Article 1.
Governing scope
This Ordinance regulates the
scope of, principles for, and the cases for applicability of most favoured
nation treatment and national treatment in international commerce, comprising
the [following] sectors of trade in goods, trade in services, investment, and
intellectual property rights.
Article 2.
Applicability
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1. Goods imported into Vietnam
and goods exported from Vietnam;
2. Foreign services and foreign
service providers;
3. Foreign investment and
foreign investors;
4. Holders of intellectual
property rights being foreign organizations and individuals.
Article 3.
Interpretation of terms
In this Ordinance, the following
terms shall be interpreted as follows:
1. “Most favoured nation
treatment in commercial goods” means treatment not less favourable than the
treatment Vietnam accords to imported goods originating from any one country in
comparison to similar imported goods originating from third countries, or to
goods exported to any one country in comparison to similar goods exported to
third countries.
2. “Most favoured nation
treatment in commercial services” means treatment not less favourable than the
treatment Vietnam accords to services and service providers of any one country
in comparison to the equivalent services and service providers of third
countries.
3. “Most favoured nation
treatment in investment” means treatment not less favourable than the treatment
Vietnam accords to investment and investors of any one country in comparison to
investment and investors of third countries in similar conditions.
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5. “National treatment in commercial
goods” means treatment not less favourable than the treatment Vietnam accords
to imported goods in comparison to similar domestic goods.
6. “National treatment in
commercial services” means treatment not less favourable than the treatment
Vietnam accords to foreign services and service providers in comparison to
similar domestic services and service providers.
7. “National treatment in
investment” means treatment not less favourable than the treatment Vietnam
accords to foreign investment and foreign investors in comparison to domestic
investment and domestic investors in similar conditions.
8. “National treatment in
intellectual property rights” means treatment not less favourable than the
treatment Vietnam accords to the creation, protection and enforcement of
intellectual property rights and the benefits from such rights of foreign
organizations and individuals in comparison to domestic organizations and
individuals.
Article 4.
Principles applicable to most favoured nation treatment and national treatment
The State of Vietnam shall apply
most favoured nation treatment and national treatment in international commerce
on the basis of equality, reciprocity and mutual benefit.
Article 5.
General exceptions
1. Most favoured nation [“MFN”]
treatment and national treatment [“NT”] shall not apply in cases where it is
necessary to protect national defence interests and national security; to
preserve national cultural values and the national spirit; to protect people’s
health; to protect plants, animals and the environment; and to prevent acts of
commercial fraud.
2. MFN treatment and NT shall
not be applied to countries which are engaged in or which participate in
activities opposing the independence, sovereignty, unification and territorial
integrity of the Socialist Republic of Vietnam.
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MOST FAVOURED NATION
TREATMENT
Article 6.
Cases in which MFN treatment shall apply
The State of Vietnam shall apply
a part or all of MFN treatment in the following cases:
1. Where the laws of Vietnam provide
for the applicability of MFN treatment.
2. Where an international treaty
which Vietnam has signed or to which Vietnam has acceded provides for the
applicability of MFN treatment.
3. Where a nation or territory
has in fact already applied MFN treatment to Vietnam.
4. In other circumstances as
decided by the Government.
Article 7.
Scope of applicability of MFN treatment to commercial goods
MFN treatment to commercial
goods shall apply to:
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2. Payment methods and the
remittance of payments for import and export goods.
3. Provisions and procedures
relating to import and export of goods.
4. Taxes and all types of
charges collected directly or indirectly in Vietnam on import goods.
5. Quantitative restrictions and
issuance of permits to import or to export goods.
6. Other provisions of law which
impact on the sale, offer, purchase, transport, distribution, wharehousing and
use of goods on the domestic market.
Article 8.
Exceptions on MFN treatment to commercial goods
MFN treatment to commercial
goods shall not apply to the following:
1. Preferences granted to
members of Agreements on economic integration which Vietnam has signed or to which
Vietnam has acceded.
2. Preferences granted to
countries which have common borders with Vietnam aimed at facilitating the
circulation of border goods on the basis of bilateral Agreements.
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4. Preferences pursuant to
Agreements on goods in transit which Vietnam has signed or to which Vietnam has
acceded.
5. Tenders for the procurement
of goods for projects using aid funded by international organizations or
foreign aid and other projects pursuant to regulations of the Government.
Article 9.
Scope of applicability of MFN treatment to commercial services
MFN treatment to commercial
services shall apply to measures for adjusting commercial services activities
in which foreign service providers engage within the territory of Vietnam.
Article 10.
Exceptions on MFN treatment to commercial services
MFN treatment to commercial
goods shall not apply to the following:
1. Exceptions to MFN treatment
applicable to service industries provided for in bilateral or multilateral
Agreements which Vietnam has signed or to which Vietnam has acceded.
2. Preferences granted to
services and service providers of countries which have common borders aimed at
promoting commercial services activities between Vietnam and those countries.
3. Preferences granted to
foreign services and foreign service providers provided for in regional
economic Agreements, Agreements on free commercial zones and other similar Agreements
which Vietnam has signed or to which Vietnam has acceded.
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5. In other circumstances as
decided by the Government.
Article 11.
Scope of applicability of MFN treatment in investment
MFN treatment in foreign
investment activities shall apply to investment and investors of any one
country in the setting up, sale, acquisition, expansion, management,
administration and operation of production and business establishments and to
other investment items or determinations in other forms.
Article 12.
Exceptions on MFN treatment in investment
The applicability of exceptions
to MFN treatment for investment and investors of any one country shall be
consistent with the laws of Vietnam and with international treaties which
Vietnam has signed or to which Vietnam has acceded.
Article 13.
Scope of applicability of MFN treatment to intellectual property rights
MFN treatment to intellectual
property rights shall apply to all types of intellectual property rights which
the State of Vietnam protects pursuant to the law of Vietnam and international
treaties which Vietnam has signed or to which Vietnam has acceded, comprising:
1. Rights of authors and related
rights.
2. Industrial property rights
with respect to patents, utility solutions, industrial designs, trademarks;
geographical instructions including appellations of origin of goods, trade
names, trade secrets, layout designs of integrated circuits, plant varieties.
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Article 14.
Exceptions on MFN treatment to intellectual property rights
MFN treatment to intellectual
property rights shall not apply to the following:
1. Exceptions to MFN treatment
provided for in international treaties which Vietnam has signed or to which
Vietnam has acceded.
2. Provisions of law or
practical measures which are essential to ensure law enforcement and protection
of intellectual property, including requirements for representation and
transaction addresses in Vietnam of foreign owners relevant to administrative
procedures and trial procedures.
Chapter III
NATIONAL TREATMENT
Article 15.
Cases in which NT shall apply
The State of Vietnam shall apply
a part or all of NT in the following cases:
1. When the laws of Vietnam
provide for the applicability of NT.
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3. When a nation or territory
has in fact already applied NT to Vietnam.
4. In other circumstances as
decided by the Government.
Article 16.
Scope of applicability of NT
NT shall apply to the subjects
within the category in article 2 of this Ordinance on the principles set out in
article 4 of this Ordinance on the basis of compliance with the laws of Vietnam
and international treaties relevant to NT which Vietnam has signed or to which
Vietnam has acceded.
Article 17.
Exceptions on NT to commercial goods
NT shall not apply to the
following:
1. Procurements by the
Government of Vietnam with the goal of consumption by the Government.
2. Subsidies granted to domestic
manufacturers and subsidy programs implemented in the form of the Government of
Vietnam acquiring goods manufactured domestically.
3. Regulations restricting the
amount of time for which films are shown.
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Chapter IV
STATE ADMINISTRATION OF
MOST FAVOURED NATION TREATMENT AND NATIONAL TREATMENT
Article 18.
Contents of State administration of MFN treatment and NT
State administration of most
favoured nation treatment and national treatment shall comprise the following
matters:
1. Promulgation of legal
instruments and organization of the implementation of guidelines on most
favoured nation treatment and national treatment.
2. Decisions on the applicability
or non-applicability of most favoured nation treatment and national treatment.
3. Entering into, acceding to
and implementing international treaties relevant to most favoured nation
treatment and national treatment.
4. Formulation and organization
of the implementation of policies on most favoured nation treatment and
national treatment.
5. Organization of collation,
processing and provision of information relevant to most favoured nation
treatment and national treatment.
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7. Inspections and checks of
compliance with the laws on most favoured nation treatment and national
treatment.
8. Resolution of complaints and
dealing with breaches of the laws relating to most favoured nation treatment
and national treatment.
Article 19.
State administration bodies of MFN treatment and NT
1. The Government shall
uniformly exercise State administration of MFN treatment and NT.
2. The Ministry of Trade shall
be responsible before the Government to carry out uniform State administration
of MFN treatment and NT.
3. Ministries and ministerial
equivalent bodies shall, within the scope of their respective duties and
powers, be responsible to co-ordinate with the Ministry of Trade in exercising
State administration of most favoured nation treatment and national treatment
within the sectors for which they have been allocated responsibility.
The Government shall provide
specific regulations on the co-ordination between ministries and ministerial
equivalent bodies [on the one hand] with the Ministry of Trade [on the other]
in exercising State administration of most favoured nation treatment and
national treatment.
Article 20.
Proposals and decisions on the applicability or non-applicability of MFN
treatment and NT
1. The Ministry of Trade shall,
after it has written opinions from the ministries and ministerial equivalent
bodies concerned, make proposals on the applicability or non-applicability of
MFN treatment and NT within the sector for which it exercises State
administration and submit those proposals to the Government.
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3. The Government shall make
decisions on, or make submissions to the competent State authority to make
decisions on the applicability or non-applicability of MFN treatment and NT.
Article 21.
Signing and implementing international treaties
The signing, acceding to and
implementing international treaties relating to most favoured nation treatment
and national treatment shall be implemented in accordance with the laws of
Vietnam on signing and implementing international treaties.
Article 22.
Dispute resolution and dealing with breaches
Dispute resolution and dealing with
breaches relating to most favoured nation treatment and national treatment
shall be implemented in accordance with the laws of Vietnam and with
international treaties which Vietnam has signed or to which Vietnam has
acceded.
Chapter V
IMPLEMENTING PROVISIONS
Article 23.
Effectiveness
This Ordinance shall be of full
force and effect as from 1 September 2002.
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The Government shall provide
detailed regulations and guidelines for the implementation of this Ordinance.
ON
BEHALF OF THE STANDING COMMITTEE OF THE NATIONAL ASSEMBLY
CHAIRMAN
Nguyen Van An