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THE
STANDING COMMITTEE OF NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
20/2004/PL-UBTVQH11
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Hanoi,
April 29, 2004
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ORDINANCE
ON ANTI-DUMPING OF IMPORTS 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, the 10th session;
Pursuant to the December 26, 1991 Export Tax and Import Tax Law, which was
amended and supplemented under the July 5, 1993 Law Amending and Supplementing
a Number of Articles of the Export Tax and Import Tax Law and the May 20, 1998
Law Amending and Supplementing a Number of Articles of the Export Tax and
Import Tax Law;
Pursuant to Resolution No. 21/2003/QH11 of November 26, 2003 of the XIth National
Assembly, the 4th session, on the 2004 law- and ordinance-making
program;
This Ordinance provides for anti-dumping of imports into Vietnam.
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope of regulation
This Ordinance provides for
anti-dumping measures; procedures and contents of investigation for
application, and application of such measures to imports dumped into Vietnam.
Article 2.-
Interpretation of terms
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1. Anti-dumping tax means an
additional import tax imposed on imports dumped into Vietnam, which causes or
threatens to cause material injury to a domestic industry.
2. Dumping margin means the
calculable difference between the normal prices and the export prices of goods
imported into Vietnam.
3. Negligible dumping margin
means a dumping margin which is no more than 2% of the export prices of goods
imported into Vietnam.
4. Immaterial volume, quantity
or value of imports dumped into Vietnam means a volume, quantity or value of
imports dumped into Vietnam, which satisfies the following conditions:
a/ The volume, quantity or value
of goods dumped from one country does not exceed 3% of the total volume,
quantity or value of the like goods imported into Vietnam;
b/ The total of the volumes,
quantities or values of goods dumped from many countries, which satisfy the
condition set at Point a of this Clause, does not exceed 7% of the total
volume, quantity or value of the like goods imported into Vietnam.
5. Domestic industry means a
group of domestic producers or their representatives that produce a volume,
quantity or value of goods accounting for a major proportion in the total
volume, quantity or value of domestically produced the like goods under the
condition that these producers do not import, and have no direct alignment
relations with the organizations or individuals exporting or importing the
goods which are requested for application of anti-dumping measures.
6. Like goods mean goods bearing
all of their characteristics resembling goods which are requested to be subject
to the application of anti-dumping measures or, in the absence of such goods,
mean goods having many of their basic characteristics resembling goods which
are requested to be subject to the application of anti-dumping measures.
7. Material injury to a domestic
producing industry means the state of significant decline or growth restriction
in terms of capacity, price and sale of goods, profit, production development
rate, employment, investment and other indexes of the domestic industry, or the
state of retardation of the formation of a domestic industry.
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Article 3.-
Determination of imports dumped into Vietnam
1. Goods originated from a
country or territory shall be regarded as sold at a dumping price when imported
into Vietnam (hereinafter called goods dumped into Vietnam) if such goods are
sold at a price lower than the normal price prescribed in Clause 2 and Clause 3
of this Article.
2. The normal price of an import
into Vietnam is a comparable price of the like goods currently on sale on the
domestic market of the exporting country or territory under normal commercial
conditions.
3. In cases where there are no
like goods on sale on the domestic market of the exporting country or territory
or there are like goods on sale on the domestic market of the exporting country
or territory but in a negligible volume, quantity or value, the normal prices
of the imports into Vietnam shall be determined in either of the following two
ways:
a/ The comparable prices of the
like goods of the exporting country or territory, which are on sale on the
market of a third country under normal commercial conditions.
b/ The reasonable costs of the
goods plus other reasonable expenses as well as reasonable profits, determined
at each stage from production to circulation on the market of the exporting
country or territory or of a third country.
Article 4.-
Anti-dumping measures
1. Application of anti-dumping
tax.
2. Commitments to take measures
to preclude dumping, made by organizations or individuals producing and/or
exporting the goods which are requested for application of anti-dumping
measures with Vietnamese State bodies competent to apply anti-dumping measures
or with domestic producers if it is so approved by Vietnamese State bodies
competent to apply anti-dumping measures.
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1. Anti-dumping measures shall
be applied at a necessary and reasonable level only in order to prevent or
limit material injury to the domestic industries.
2. The application of
anti-dumping measures shall be effected only after investigation has been
conducted and must be based on the investigation conclusions prescribed in
Chapter II of this Ordinance.
3. Anti-dumping measures shall
only be applied directly to the imports dumped into Vietnam under the
provisions of this Ordinance.
4. The application of
anti-dumping measures must not cause harm to the national socio-economic
interests.
Article 6.-
Conditions for application of anti-dumping measures
Anti-dumping measures shall be
applied to goods dumped into Vietnam only when there exist the following two
conditions:
1. The goods dumped into Vietnam
and the dumping margins must be specifically determined;
2. The dumping of goods
prescribed in Clause 1 of this Article constitutes the cause of, or the threat
to cause, material injury to the domestic industries.
Article 7
- State management responsibility for anti-dumping
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2. The Government shall set up,
and specify the organizational apparatuses, functions, tasks and powers of,
anti-dumping bodies under the Ministry of Trade, including:
a/ The anti-dumping
investigation agency (hereinafter called the investigation agency), which shall
investigate and look into anti-dumping cases and, when necessary, propose the
Trade Minister to issue decisions to apply provisional anti-dumping taxes;
b/ The Council for handling of
anti-dumping cases, which shall consist of a number of standing members and
other members who shall work on each case to review the conclusions of the
investigation agency, discuss and decide by majority on whether the goods are
dumped into Vietnam or not, causing or threatening to cause material injury to
the domestic industries; and propose the Trade Minister to issue decisions to
apply anti-dumping taxes.
3. The Trade Minister shall be
responsible before the Government for performing the State management over
anti-dumping, decide on the application of anti-dumping measures and bear
responsibility for such decisions.
4. The ministries, the
ministerial-level agencies and the provincial/municipal People's Committees
shall, within the scope of their respective tasks and powers, have to
coordinate with the Trade Ministry in performing the State management over
anti-dumping measures and applying anti-dumping measures.
Chapter II
INVESTIGATION FOR
APPLICATION OF ANTI-DUMPING MEASURES
Article 8.-
Grounds for investigation
1. The investigation for
application of anti-dumping measures shall be conducted when dossiers of
request for application of anti-dumping measures are filed by organizations or
individuals representing the domestic industries.
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a/ The volume, quantity or value
of goods they produce or represent accounts for at least 25% of the total
volume, quantity or value of the like goods of the domestic industry.
b/ The volume, quantity or value
of goods prescribed at Point a of this Clause and of the domestic producers
that support the filing of dossiers of request for application of anti-dumping
measures must be bigger than the volume, quantity or value of the like goods of
the domestic producers that oppose the requests for application of anti-dumping
measures.
2. The Trade Minister may issue
investigation decisions when there are clear evidences that the dumping of
goods causes or threatens to cause material injury to a domestic industry.
Article 9.-
Dossiers of request for application of anti-dumping measures
A dossier of request for
application of anti-dumping measure, which shall be addressed to the investigation
agency, comprises:
1. The written request for
application of anti-dumping measures, including the following contents:
a/ The name, address and other
necessary information of the organization or individual filing the request for
application of anti-dumping measures;
b/ Description of the imports
which are requested to be subject to the application of anti-dumping measures,
stating the name of the goods, their basic characteristics and main use
purpose, their codes according to the current import tariffs, the currently
applied import tax rates, and the imports' origin;
c/ Description of the volume,
quantity and value of the imports stated at Point b of this Clause within
twelve months before the dossier of request for application of anti-dumping
measures is filed;
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e/ Information on the normal prices
and export prices of the goods described under the provisions of Point b of
this Clause at the time of their importation into Vietnam within twelve months
before the dossier of request for application of anti-dumping measures is
filed;
f/ The dumping margin of the
imports requested to be subject to the application of anti-dumping measures;
g/ Information, data and proofs
on the material injury which the goods dumped into Vietnam cause or threaten to
cause to the domestic industry in question;
h/ The name, address and other
necessary information of the organization and/or individual producing and
exporting into Vietnam the goods requested to be subject to the application of
anti-dumping measures;
i/ The specific request
regarding the application of anti-dumping measures, the application time limit
and extent;
2. Other relevant documents and
information which are deemed necessary by the organization or individual
requesting the application of anti-dumping measures.
Article
10.- Decision on investigation for application of anti-dumping measures
1. Within fifteen days after
receiving the dossiers of request for application of anti-dumping measures, if
deeming that such dossiers fail to fully contain the contents prescribed in
Article 9 of this Ordinance, the investigation agency must inform the filing
organization or individual thereof for supplementation.
2. The time limit for dossier
supplementation shall be set by the investigation agency but must not be
shorter than thirty days as from the date the organization or individual
receives the dossier supplementation notice.
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4. Within sixty days as from the
date of receiving the dossiers with the full contents prescribed in Article 9
of this Ordinance, the Trade Minister shall issue investigation decisions; in
special cases, the time limit for issuance of investigation decisions may be
extended for no more than thirty days.
5. Within fifteen days as from
the date of issuance of the decisions on investigation for application of anti-dumping
measures, the investigation agency shall notify the investigation decisions to
the organizations or individuals requesting the application of anti-dumping
measures; the producers, exporters and competent authorities of the countries
or territories that export the goods requested for application of anti-dumping
measures and announce them to the other involved parties.
6. The Trade Minister must not
issue investigation decisions if the organizations or individuals requesting
the application of anti-dumping measures withdraw their dossiers, except for
the case specified 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. Organizations, individuals
filing dossiers of request for the application of anti-dumping measures;
2. Foreign organizations,
individuals producing or exporting goods requested for application of
anti-dumping measures;
3. Organizations, individuals
importing goods requested for application of anti-dumping measures;
4. Domestic organizations,
individuals producing the like goods;
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6. Foreign business associations
representing the majority of organizations, individuals producing and/or
exporting the goods requested for application of anti-dumping measures;
7. Trade union or other
organizations representing the interests of laborers in the domestic industries;
8. Organizations protecting
consumers' interests;
9. Competent Vietnamese State
bodies;
10. Competent authorities of the
countries or territories exporting the goods requested for application of
anti-dumping measures;
11. Other organizations, individuals
that have their rights and interests involved in the investigation process.
Article
12.- Contents of investigation for application of anti-dumping measures
1. Determining the goods dumped
into Vietnam and the dumping margin.
2. Determining the material
injury or the threat to cause the material injury to the domestic industries on
the basis of examining the following contents:
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b/ Price effects of the goods
requested for application of anti-dumping measures on the reduction of, or the
restriction of the possibility to reasonably increase, the prices of the
domestic like goods;
c/ Adverse impacts on the
domestic industries or on the formation of the domestic industries.
3. The link between the dumping
of goods into Vietnam and the material injury or the threat to cause material
injury to the domestic industries.
Article
13.- Supply of information, documents in the investigation process
1. The parties involved in the
investigation process prescribed in Article 11 of this Ordinance shall have to
supply truthful information and necessary documents at the request of the
investigation agency.
2. Where necessary information
or documents are not supplied as requested, the investigation agency shall make
decisions on the basis of available information and documents.
Article
14.- Consultation
1. The investigation agency
shall organize consultations with the parties involved in the investigation
process prescribed in Article 11 of this Ordinance in order to create
conditions for the parties to express their opinions and supply necessary
information.
2. The parties involved in the
investigation process are not obliged to attend consultation meetings; if any
party is absent from consultation meetings, its interests related to the
application of anti-dumping measures shall still be assured.
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Article
15.- Confidentiality
1. The investigation agency
shall be responsible for keeping confidential information supplied to it when
receiving justified requests of the parties involved in the investigation
process and request these parties to supply brief information which needs to be
kept confidential.
2. The parties involved in the
investigation process may have access to information already supplied to the
investigation agency, excluding information which needs to be kept
confidential.
Article
16.- Investigation time limit
1. The time limit for
investigation for application of anti-dumping measures shall not exceed twelve
months as from the date of issuance of investigation decisions.
2. In special cases, the Trade
Minister may decide to extend the investigation time limit for no more than six
months.
Article
17.- Preliminary conclusions
1. Within ninety days as from
the date of issuance of investigation decisions, the investigation agency shall
publicize the preliminary conclusions on the contents related to the
investigation process prescribed in Article 12 of this Ordinance; in special
cases, the time limit for publicization of preliminary conclusions may be
extended for no more than sixty days.
2. Preliminary conclusions and
major grounds for making such preliminary conclusions must be publicized by
appropriate modes to the parties involved in the investigation process.
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1. After completing the
investigation process, the investigation agency shall publicize its final
conclusions on the contents related to the investigation process prescribed in
Article 12 of this Ordinance,
2. The final conclusions and
major grounds for making such final conclusions must be publicized by
appropriate modes to the parties involved in the investigation process.
Article
19.- Termination of investigation
The Trade Minister shall decide
to terminate investigation in the following cases:
1. Organizations or individuals
that have filed dossiers of request for application of anti-dumping measures
voluntarily withdraw their dossiers;
2. Preliminary conclusions
prescribed in Article 17 of this Ordinance contain at least one of the
following contents:
a/ There is no dumping as
prescribed in Article 3 of this Ordinance;
b/ The dumping margin is
negligible;
c/ The volume, quantity and
value of the goods dumped into Vietnam is negligible;
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Chapter III
APPLICATION OF
ANTI-DUMPING MEASURES
Article
20.- Application of provisional anti-dumping taxes
1. After sixty days as from the
date of issuance of investigation decisions, on the basis of the preliminary
conclusions, the Trade Minister may issue decisions to impose provisional
anti-dumping taxes.
2. The rates of provisional
anti-dumping taxes must not exceed the dumping margins determined in the preliminary
conclusions.
3. The payment of provisional
anti-dumping taxes may be secured with cash deposits or by other measures as
prescribed by law.
4. The time limit for
application of provisional anti-dumping taxes must not exceed one hundred and
twenty days as from the date of issuance of decisions on the application of
this measure.
5. At the requests of the
exporters of the like goods, the Trade Minister may extend the time limit for
application of provisional anti-dumping taxes for no more than sixty days.
Article
21.- Application of commitment measures
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a/ To adjust the selling prices;
b/ To voluntarily restrict the
volume, quantity or value of the goods dumped into Vietnam.
2. The Trade Minister may accept
or reject or request adjustment of the commitment contents but must not force
the parties to make such commitments.
3. The investigation agency
shall make public the commitments' contents to the parties involved in the
investigation process.
4. In case of rejecting the
commitments of the involved parties, the Trade Minister must notify the reasons
therefor and order the investigation to be continued for application of
anti-dumping measures according to the provisions of this Ordinance.
5. The Trade Minister shall issue
decisions to cease the anti-dumping investigation and apply the commitment
measure if deeming that the realization of such commitments shall not cause or
threaten to cause material injury to the domestic industries.
The committing parties must
periodically supply the investigation agency with information and documents on
the realization of their commitments and prove the accuracy of such information
under decisions of the Trade Minister.
6. Where the involved parties
fail to properly realize their commitments, causing or threatening to cause
material injury to the domestic industries, the Trade Minister shall issue
decisions to resume the investigation for application of anti-dumping measures
or issue decisions to apply anti-dumping measures as provided for by this
Ordinance.
Article
22.- Application of anti-dumping taxes
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2. The rates of anti-dumping
taxes must not exceed the dumping margins determined in the final conclusions.
3. The time limit for
application of anti-dumping taxes shall not exceed five years as from the date
of issuance of the decisions to apply anti-dumping measures.
4. The time limit for
application of anti-dumping taxes may be extended in cases where the Trade
Minister issues decisions to review the application of anti-dumping taxes as
provided for in Chapter IV of this Ordinance.
5. The investigation agency
shall notify by appropriate modes the decisions to impose or not to impose
anti-dumping taxes to the parties involved in the investigation process.
Article
23.- Retrospective application of anti-dumping taxes
1. Where the final conclusions
determine that there is material injury or a threat to cause material injury to
the domestic industries and the provisional anti-dumping taxes have been applied
before the final conclusions are made, anti-dumping taxes shall be applied
retrospectively.
2. The anti-dumping taxes shall
be retrospectively applied to the imports for ninety days back before the
application of the provisional anti-dumping taxes if there exist the following
two conditions:
a/ The imports are sold at
dumping prices;
b/ The volume, quantity or value
of the goods sold at dumping prices into Vietnam surge suddenly, causing hardly
remediable injury to the domestic industries.
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4. Any tax difference shall be
refunded when the applied anti-dumping tax rate stated in the final conclusion
is lower than the provisional anti-dumping tax rate prescribed in Article 20 of
this Ordinance.
5. Where the Trade Minister
issues decisions not to impose anti-dumping taxes, the provisional anti-dumping
taxes already collected or amounts deposited to secure the payment of
provisional anti-dumping taxes prescribed in Article 20 of this Ordinance shall
be refunded.
Chapter IV
REVIEW OF APPLICATION OF
ANTI-DUMPING MEASURES
Article
24.- Review of the application of anti-dumping measures
1. After one year, as from the
date of issuance of the decisions to apply anti-dumping measures, the Trade
Minister shall be entitled to review the application of such anti-dumping
measures when it is so requested by one or many of the involved parties
prescribed in Article 11 of this Ordinance and on the basis of examining the
proofs supplied by the requesting party(ies).
2. One year before the expiry of
the decisions to apply anti-dumping measures, the Trade Minister shall issue
decisions to review the application of such anti-dumping measures.
3. The investigation agency
shall review the application of anti-dumping measures according to the
provisions of Articles 9, 10, 11, 12, 13, 14 and 15 of this Ordinance.
4. The carrying out of
procedures related to the review process must not obstruct the current
application of anti-dumping measures.
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Article
25.- Decisions on the results of review of the application of anti-dumping
measures
At the end of the review of the
application of anti-dumping measures, the Trade Minister shall issue one of the
following decisions:
1. To continue, or extend the
time limit for, the application of anti-dumping measures;
2. To adjust the anti-dumping
tax rates as appropriate to the review results;
3. To terminate the application
of anti-dumping measures.
Chapter V
COMPLAINTS AND HANDLING
OF VIOLATIONS
Article
26.- Complaints, lawsuits
1. Within sixty days as from the
date the Trade Minister issues the decisions to apply anti-dumping measures, if
the parties involved in the investigation process and the application of
anti-dumping measures disagree with such decisions, they may lodge complaints
with the Trade Minister.
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3. Past the time limit stated in
Clause 2 of this Article, if the Trade Minister fails to issue decisions to
settle their complaints or the complaining organizations or individuals
disagree with the Trade Minister's decisions to settle their complaints, they
may initiate lawsuits at courts according to Vietnamese law provisions.
Article
27.- Settlement of disputes and handling of violations
The settlement of disputes and
the handling of violations of the legislation on anti-dumping of goods into
Vietnam shall comply with Vietnamese laws; if international agreements which
Vietnam has signed or acceded to otherwise provide for, such international
agreements shall apply.
Chapter VI
IMPLEMENTATION PROVISIONS
Article
28.- Implementation effect
This Ordinance takes effect as
from October 1, 2004.
Article
29.- Implementation guidance
The Government and the Supreme
People's Court shall, within the scope of their respective tasks and powers,
detail and guide the implementation of this Ordinance.
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ON BEHALF OF THE
NATIONAL ASSEMBLY STANDING COMMITTEE
CHAIRMAN
Nguyen Van An