THE
STANDING COMMITTEE OF NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
42/2002/PL-UBTVQH10
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Hanoi,
May 25, 2002
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ORDINANCE
ON SAFEGUARDS IN THE IMPORT OF FOREIGN GOODS INTO VIETNAM
(No. 42/2002/PL-UBTVQH10 of May 25, 2002)
In order to enhance the State
management over the economy, create conditions for the Vietnamese economy to
effectively integrate into the international economy, restrict unfavorable impacts
causing serious injury to the domestic production due to abnormal increases in
the import of goods into Vietnam;
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam,
which was amended and supplemented under Resolution No. 51/2001/QH10 of
December 25, 2001 of the Xth National Assembly at its 10th session;
Pursuant to the Resolution of the Xth National Assembly, 10th session, on
the 2002 law- and ordinance-making program;
This Ordinance provides for the safeguard measures in the import of foreign
goods into Vietnam,
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope of regulation
This Ordinance prescribes the
safeguard measures, the conditions and procedures for the application of these
measures in cases of excessive import of goods into Vietnam, which causes
serious injury to the domestic production.
Article 2.-
Right to apply safeguard measures
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Article 3.-
Safeguard measures
The safeguard measures in the
import of foreign goods into Vietnam include:
1. Raising the import tariffs;
2. Imposing import quotas;
3. Other measures to be
stipulated by the Government.
Article 4.-
Interpretation of terms
In this Ordinance, the following
word phrases are construed as follows:
1. "Excessive import of
goods" means the import of goods with a volume, quantity or value
increasing, absolutely or relatively, as compared with the volume, quantity or
value of similar or directly competitive home-made goods.
2. "Serious injury to the
domestic manufacturing industry" means a state where such manufacturing
industry declines considerably in its output, domestic consumption level, production
profits, production growth rate, and has greater and greater amounts of unsold
goods, badly affecting employment, salary level, investment and other norms of
the domestic manufacturing industry which turns out such goods.
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4. "Domestic manufacturing
industry" means all manufacturers of the similar or directly competitive
goods within the territory of Vietnam or their lawful representatives,
accounting for a major proportion in the total output of goods made by that
industry in the country.
5. "Similar goods" are
identical goods or goods with the same functions, utility, quality
specifications, technical properties and other basic intrinsic features.
6. "Directly competitive
goods" are goods likely to be accepted by buyers in replacement of the
goods falling under the scope of application of safeguard measures, because of
their competitive edges in terms of price and use purpose.
Article 5.-
Principles for application of safeguard measures
1. Safeguard measures shall be
applied within the necessary scope and to the necessary extent in order to
prevent or limit serious injury to the domestic manufacturing industry and
create conditions for that manufacturing industry to raise its competitiveness.
2. The application of safeguard
measures must rely on the investigation results prescribed in Chapter II of
this Ordinance, except for cases of application of temporary safeguard
measures.
3. Safeguard measures shall
apply on the basis of non-discrimination and non-dependence on goods origin.
Article 6.-
Conditions for the application of safeguard measures
Safeguard measures shall apply
to imported goods only when the following conditions are met:
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2. The rapid increases in the
volume, quantity or value of imported goods mentioned in Clause 1 of this
Article cause or threaten to cause serious injury to the domestic industry
producing similar or directly competitive domestic goods.
Article 7.- Consultation
1. The Ministry of Trade may
consult the concerned parties in the process of investigation and application
of safeguard measures at their requests in order to create conditions for all the
concerned parties to express their opinions and supply necessary information.
2. The concerned parties shall
not be obliged to attend consultations; Any parties not present at
consultations shall still have their interests related to safeguard measures
preserved.
Article 8.-
Injury indemnification
1. The indemnification and
extent of indemnification of injury caused by the application of safeguard
measures shall comply with the provisions of the Vietnamese laws and the
international treaties which Vietnam has signed or acceded to.
2. The indemnification and
degree of injury shall be determined on the basis of the results of
consultation between the concerned parties.
Chapter II
INVESTIGATION FOR THE
APPLICATION OF SAFEGUARD MEASURES
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The Ministry of Trade shall be
responsible for conducting investigation before deciding to apply or not to
apply safeguard measures.
Article
10.- Bases for investigation
1. The Ministry of Trade shall
conduct investigation after receiving the dossiers requesting the application
of safeguard measures from the organizations and/or individuals representing
the domestic manufacturing industry on the condition that all goods made by
these organizations and/or individuals accounting for at least 25% of the
output of similar or directly competitive home-made goods. The organizations
and/or individuals submitting such dossiers shall be accountable for the
information in their dossiers.
2. The Ministry of Trade shall
conduct investigation at its own initiative in cases where they have evidences
proving the necessity to apply safeguard measures.
Article
11.- Dossiers requesting the application of safeguard measures
The dossiers requesting the
application of safeguard measures addressed to the Ministry of Trade shall
consist of:
1. The written request for the
application of safeguard measures, made according to the form set by the
Ministry of Trade;
2. Documents and information
related to the kind of goods subject to investigation for the application of
safeguard measures, and similar or directly competitive goods.
Article
12.- Decisions to investigate for application of safeguard measures
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2. Within 30 days after
receiving the dossiers already added with full information, the Ministry of
Trade must issue investigation decisions.
3. Pending the official
investigation decisions, the Ministry of Trade must not disclose the contents
of the dossiers requesting the application of safeguard measures.
4. Where it refuses to issue an
investigation decision, the Ministry of Trade must notify the reasons therefor
to the organization or individual that has submitted the dossier requesting the
application of safeguard measures.
5. The Ministry of Trade shall
not issue investigation decisions if the organizations or individuals that have
submitted the dossiers requesting the application of safeguard measures
withdraw the dossiers, except for cases where it has evidences substantiating
the necessity to continue the investigation.
Article
13.- Parties related to the investigation process
The parties involved in the
investigation process include:
1. Overseas organizations or
individuals manufacturing and exporting the goods subject to investigation;
2. Organizations or individuals
importing the goods subject to investigation;
3. The overseas commodity line
association representing the majority of organizations and/or individuals
manufacturing, exporting or importing the goods subject to investigation;
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5. Organizations and/or
individuals submitting the dossier requesting the application of safeguard
measures.
6. Domestic organizations and/or
individuals manufacturing similar or directly competitive goods;
7. The domestic commodity line
association representing the majority of organizations and individuals
manufacturing similar or directly competitive goods;
8. The trade union organizations
representing the interests of the laborers in the domestic manufacturing
industry;
9. Vietnam Peasants Association;
10. The organization that
protects the interests of Vietnamese consumers;
11. The competent Vietnamese
State agencies;
12. Organizations and
individuals having legitimate rights and interests related to the investigation
process or being helpful for the investigation process.
Article
14.- Supply of information for the investigation process
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2. The Ministry of Trade shall
have the responsibility to keep information confidential according the
provisions of law.
Article
15.- Management of the import of goods subject to investigation
1. The process of investigation
to consider the possibility to apply safeguard measures must not hinder the
clearance of customs procedures for imported goods being subject to
investigation.
2. From the issuance of the
investigation decision to the end of the investigation process, the Ministry of
Trade may apply the regime of granting import permits to the goods subject to
investigation. Such permit granting shall serve the statistical purpose only
but not limit the quantity, volume or value of the imported goods.
Article
16.- Investigation contents
The investigation must be
conducted in an objective manner, taking into account the peculiarities of the
domestic production situation and clarifying the following:
1. The sudden rapid increase in
the volume, quantity or value of the imported goods subject to investigation;
2. Serious injury or threat to
cause serious injury to the domestic manufacturing industry on the basis of
evaluating:
a/ Changes in the situation of
consumption of the goods subject to investigation in the domestic market;
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c/ The proportion of the
imported goods subject to investigation in the aggregate volume of similar or
directly competitive goods being consumed in the domestic market.
3. The relation between the
rapidly increasing import of the goods and the serious injury or threat to
cause serious injury to the domestic manufacturing industry.
Article
17.- Termination of investigation
The Ministry of Trade shall
decide to stop investigation in the following cases:
1. The submitters of the
dossiers requesting the application of safeguard measures withdraw such
dossiers during the investigation process;
2. The related foreign parties
commit themselves to precluding the serious injury or the threat to cause
serious injury to the domestic manufacturing industry;
3. Other cases to be stipulated
by the Government.
Article
18.- Investigation duration and publicization of investigation results
1. The investigation duration
shall be no more than 6 months as from the date the Ministry of Trade issues
the investigation decision; in cases of necessity, the investigation duration
may be extended once for another 2 subsequent months.
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Article
19.- Decision to apply or not to apply safeguard measures
1. On the basis of the
investigation results, the Ministry of Trade shall issue decisions to apply or not
to apply safeguard measures after consulting the concerned ministries and
ministerial-level agencies. Such decisions must be made public.
2. The safeguard measures
prescribed in this Ordinance may not be applied if their application results in
one of the following consequences:
a/ Causing domestic
socio-economic injury;
b/ Causing harm to the interests
of the majority of goods consumers;
c/ Other consequences to be
determined by the Government.
Chapter
III
APPLICATION OF SAFEGUARD
MEASURES
Article
20.- Application of temporary safeguard measures
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2. Temporary safeguard measures
shall be only applied on the condition that the Ministry of Trade continues the
investigation.
3. The decisions to apply temporary
safeguard measures must be publicly notified to the related parties.
4. Temporary safeguard measures
shall be applied only in the form of import tariffs in accordance with the
Export Tax and Import Tax Law.
5. The effective duration of
temporary safeguard measures must not exceed the duration needed for
eliminating the serious injury or for preventing the threat to cause serious
injury to the domestic manufacturing industry and for the domestic
manufacturing industry to adapt itself to the competitive circumstance. The
effective duration of temporary safeguard measures shall end after the Ministry
of Trade issues the decision to apply or not to apply the safeguard measures
but, under any circumstances, must not exceed 200 days as from the date their
application starts.
6. In cases of necessity the
Ministry of Trade may issue decisions to terminate the application of temporary
safeguard measures ahead of time.
7. Where the Trade Ministry’s
investigation results show that the application of temporary safeguard measures
is unnecessary or the import tariff should be set at a rate lower than the one
already imposed, the tax difference shall be refunded to the tax payers
according to the provisions of law.
Article
21.- Application of safeguard measures
1. The application of safeguard
measures shall be based on the effective decisions of the Ministry of Trade.
2. The safeguard measures may
not be applied to goods originating from underdeveloped countries.
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1. The duration of application
of safeguard measures, including the duration of application of temporary ones,
shall not exceed four years.
2. The duration of application
of safeguard measures may be extended once for another six subsequent years, provided
that the serious injury or the threat to cause serious injury to the domestic
manufacturing industry still lingers on and there are evidences proving that
the affected manufacturing industry is adjusting itself to be more competitive.
Article
23.- Termination of application of safeguard measures
The Ministry of Trade shall
issue decisions to terminate the application of safeguard measures in the
following cases:
1. The conditions for
application of safeguard measures no longer exist;
2. The continued application of
safeguard measures cause serious injury to the domestic socio-economic
situation.
Chapter IV
SCRUTINY OF SAFEGUARD
MEASURES
Article
24.- Principles for scrutiny of safeguard measures
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2. The scrutiny of safeguard
measures must comply with the provisions in Chapter II of this Ordinance.
Article
25.- Decision on the results of scrutiny of safeguard measures
After scrutinizing the safeguard
measures, the Ministry of Trade shall issue one of the following decisions:
1. To maintain the safeguard
measures being applied;
2. To mitigate the application
of these measures;
3. To terminate the safeguard
measures being applied.
Chapter V
EXTENSION AND
RE-APPLICATION OF SAFEGUARD MEASURES
Article
26.- Extension of the application of safeguard measures
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The dossiers requesting the
extension of the application of safeguard measures must include the evidences showing
that the affected manufacturing industry has taken the necessary adjusting
measures to raise its competitiveness, and must be sent to the Ministry of
Trade at least six months before the date such safeguard measures cease to be
effective.
2. The procedures for
investigation, publicization and notification prescribed in Chapter II of this
Ordinance shall apply similarly to the extension of the application of
safeguard measures.
3. The extent of application of
safeguard measures during the extended time must not be higher than that in the
preceding duration.
Article
27.- Regulations on the re-application of safeguard measures
A safeguard measure already
applied to a certain kind of goods may be re-applied thereto according to the
following regulations:
1. Where a safeguard measure was
applied to a certain kind of goods for over 4 years, it may be re-applied
thereto only after a time equal to half of such duration has passed.
2. Where a safeguard measure was
applied to a certain kind of goods for between six months and four years, it
may be re-applied thereto only after two years have passed.
3. Where a safeguard measure was
applied to a certain kind of goods for less than six months, it may be applied
thereto only if the following conditions are fully met:
a/ At least one year has passed
after the previous application of the safeguard measure;
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4. The re-application of a
safeguard to a certain kind of goods must comply with the procedures as for the
first-time application.
Chapter VI
STATE MANAGEMENT OVER
THE APPLICATION OF SAFEGUARD MEASURES
Article
28.- Contents of State management over the application of safeguard
measures
The contents of State management
over the application of safeguard measures shall include:
1. To promulgate, and organize
the implementation of, legal documents on the application of safeguard
measures;
2. To organize the application
of safeguard measures;
3. To propagate and disseminate
the legislation and policies related to the application of safeguard measures;
4. To conduct investigation
before applying safeguard measures;
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6. To decide to apply or not to
apply safeguard measures;
7. To guide the application of
safeguard measures;
8. To organize the gathering,
processing and supply of information about the application of safeguard
measures;
9. To inspect and supervise the
observance of the legislation on the application of safeguard measures;
10. To settle complaints about
and handle violations of the legislation on the application of safeguard
measures.
Article
29.- Agencies in charge of the State management over the application of
safeguard measures
1. The Government shall perform
the unified State management over the application of safeguard measures.
2. The Ministry of Trade shall
be responsible to the Government for performing the unified State management
over the application of safeguard measures; organize the application of
safeguard measures after consulting the concerned ministries and
ministerial-level agencies.
3. The ministries, the
ministerial-level agencies and the People�s
Committees of the provinces and centrally-run cities shall, within the ambit of
their respective tasks and powers, have to coordinate with the Ministry of
Trade in managing the application of safeguard measures.
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COMPLAINTS AND HANDLING
OF VIOLATIONS
Article
30.- Complaints
1. Complaints related to the
process of investigation and application of safeguard measures must be
addressed to the Ministry of Trade.
2. The Ministry of Trade shall
have to settle complaints within 30 days after receiving the written
complaints; in special cases, this time limit may be prolonged but must not
exceed 60 days.
3. Where the time limit
prescribed in Clause 2 of this Article has expired but the Ministry of Trade
has not yet settled the complaints or the complaining organizations or
individuals disagree with the complaint-settling decisions of the Ministry of
Trade, these organizations or individuals may initiate lawsuits at court
according to the provisions of law.
Article
31.- Settlement of disputes and handling of violations
The settlement of disputes and
handling of violations shall comply with the provisions of the Vietnamese law
and the international treaties which Vietnam has signed or acceded to.
Chapter
VIII
IMPLEMENTATION
PROVISIONS
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This Ordinance takes effect as
from September 1, 2002.
Article
33.- Implementation guidance
The Government shall specify and
guide the implementation of this Ordinance.
ON BEHALF OF THE STANDING
COMMITTEE OF THE NATIONAL ASSEMBLY
CHAIRMAN
Nguyen Van An