THE
STANDING COMMITTEE OF NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
22/2004/PL-UBTVQH11
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Hanoi,
August 20, 2004
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ORDINANCE
ON ANTI-SUBSIDY FOR 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 Law on Import Tax and Export Tax, which was
amended and supplemented by the July 5, 1993 Law Amending and Supplementing a
Number of Articles of the Import and Export Tax Law and the May 20, 1998 Law
Amending and Supplementing a Number of Articles of the Import and Export Tax
Law;
Pursuant to November 26, 2003 Resolution No.21/2003/QH11 of the XIth
National Assembly, 4th session, on the 2004 law- and
ordinance-making program;
This Ordinance prescribes anti-subsidy for imports into Vietnam.
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope of regulation
This Ordinance prescribes
anti-subsidy measures; procedures and contents of investigation for application
and the application of such measures to the subsidized imports into Vietnam.
Article 2.-
Interpretation of words and phrases
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1. Subsidy means financial
supports rendered by the Government or Government agencies to organizations and
individuals when they produce and/or export goods into Vietnam, which bring
about benefits to such organizations and individuals.
2. Domestic production branches
mean groups of domestic producers or their representatives that produce goods
with volume, quantity or value accounting for a major proportion of the total
volume, quantity or value of similar home-made goods, provided that such
producers neither import nor have direct relationships with organizations
and/or individuals that produce, export or import goods requested for the
application of anti-subsidy measures.
3. Anti-subsidy tax means import
surtax applicable to cases where subsidized imports into Vietnam cause or
threaten to cause material injuries to domestic production branches.
4. Material injuries for
domestic production branches means the considerable decline or restriction of
the growth in terms of outputs, price level, level of goods consumption,
profits, production growth rate, jobs for laborers, investment and other norms
of domestic production branches, or the state that leads to difficulty for the
formation of a new domestic production branch.
5. Threat to cause material
injuries to domestic production branches means an immediate, obvious and
provable possibility of material injuries caused to domestic production
branches.
6. Similar goods mean those
goods that have all the same properties as the goods requested for the
application of anti-subsidy measures or, in cases where such goods don’t exist,
mean those goods whose basic properties are similar to the goods requested for
the application anti-subsidy measures.
7. Immaterial subsidy level
means a subsidy level below 1% of the product value.
8. Particular subsidy means the
subsidy applicable to only certain organizations, individuals or production
branches or to only organizations, individuals or production branches within a
certain geographical area of the country or territory subject to investigation
for the application of anti-subsidy measures.
Article 3.-
Forms of subsidy
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2. The Government or Government
agencies leave out or don't collect revenues obligatorily payable by
organizations and/or individuals.
3. The Government or Government
agencies supply goods and/or services other than the common infrastructure or
purchase goods and/or services at high prices and resell them to organizations
and/or individuals at prices lower than market prices.
4. The Government or Government
agencies contribute money to a financial assistance mechanism, and assign or
order a private organization to apply one or many forms defined in Clauses 1, 2
and 3 of this Article.
5. Other subsidies other than
those defined in Clauses 1, 2, 3 and 4 of this Article, which are determined in
an equitable and reasonable manner and not contrary to international practices.
Article 4.-
Anti-subsidy measures
1. Imposition of anti-subsidy
tax.
2. Acceptance of commitments
made by organizations, individuals or Governments of goods-producing/exporting
countries or territories to Vietnam's competent State agencies regarding the
voluntary termination of subsidy, reduction of subsidy levels, adjustment of
export prices or application of other suitable measures.
Article 5.-
Principles for application of anti-subsidy measures
1. Anti-subsidy measures shall
apply only at necessary and reasonable levels to prevent or restrict material
injuries to domestic production branches.
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3. Anti-subsidy measures shall
directly apply only to subsidized imports into Vietnam under the provisions of
this Ordinance.
4. The application of
anti-subsidy measures must not cause harms to the national socio-economic
interests.
Article 6.-
Conditions for the application of anti-subsidy measures
Anti-subsidy measures shall
apply to subsidized imports into Vietnam only when the following conditions are
fully met:
1. The imports are determined as
having been subsidized according to the provisions of Article 3 of this
Ordinance;
2. The imports defined in Clause
1 of this Article cause or threaten to cause material injuries to domestic
production branches.
Article 7.-
State management responsibilities for anti- subsidy
1. The Government shall exercise
uniform State management over anti-subsidy for imports into Vietnam.
2. The Government shall set up
and define the organizational apparatus, specific functions, tasks and powers
of anti-subsidy agencies under the Trade Ministry, including:
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b/ Anti-subsidy case-handling
council, which consists of a number of permanent members and other members
working on a case-by-case basis to examine conclusions of the investigation
agency; discuss and decide by majority on subsidy or non-subsidy of imports
into Vietnam, that cause or threaten to cause material injuries to domestic
production branches; and propose the Trade Minister to issue decisions on the
application of anti-subsidy measures.
3. The Trade Minister shall be
held responsible to the Government for exercising the State management over
anti-subsidy, decide on the application of anti-subsidy measures and take
responsibility for his/her decisions.
4. The ministries, the
ministerial-level agencies, the People's Committees of the provinces and
centrally-run cities shall, within the ambit of their tasks and powers, have to
coordinate with the Trade Ministry in exercising the State management over
anti-subsidy and the application of anti-subsidy measures.
Chapter II
INVESTIGATION FOR THE
APPLICATION OF ANTI-SUBSIDY MEASURES
Article 8.- Grounds
of investigation
1. Investigation for the
application of anti-subsidy measures shall be conducted when there are dossiers
requesting the application of anti-subsidy measures from organizations and/or
individuals representing domestic production branches.
Organizations and/or individuals
submitting dossiers requesting the application of anti-subsidy measures shall
be considered as representing domestic production branches when meeting two
following conditions:
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 similar goods of the domestic production branches;
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2. The Trade Minister may issue
investigation decisions when there are clear evidences that the subsidized
imports cause or threaten to cause material injuries to domestic production
branches.
Article 9.-
Dossiers requesting the application of anti-subsidy measures
A dossier requesting the
application of anti-subsidy measures shall be sent to the investigation agency,
consisting of:
1. A written request for the
application anti-subsidy measures with the following contents:
a/ Names and addresses of, and
other necessary information on, organizations and/or individuals requesting the
application of anti-subsidy measures;
b/ Descriptions of the imports
requested for the application of anti-subsidy measures, including their
appellations, basic properties and use purposes, codes according to the current
import tariff and current import tax rate applicable to them as well as their
origins;
c/ Descriptions of the volume,
quantity, unit price and value of goods defined at Point b of this Clause,
imported within 12 months before the submission of the dossier requesting the
application of anti-subsidy measures;
d/ Descriptions of the volume,
quantity, unit price and value of similar goods produced in the country within
12 months before the submission of the dossier requesting the application of
anti-subsidy measures;
e/ Information on the foreign
Government's subsidy policies, subsidy situation and form;
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g/ Names and addresses of, and
other necessary information on, organizations and/or individuals producing or
exporting goods into Vietnam, which are requested for the application of
anti-subsidy measures;
h/ The specific request for the
application of anti-subsidy measures, the application time-limit and extent;
2. Other relevant documents and
information deemed necessary by organizations and/or individuals requesting the
application of anti-subsidy measures.
Article
10.- Decision on investigation for the application of anti-subsidy measures
1. Within fifteen days after
receiving dossiers requesting the application of anti-subsidy measures, if
deeming that such dossiers are incomplete according to the provisions of
Article 9 of this Ordinance, the investigation agency must notify the
dossier-submitting organizations and/or individuals thereof for supplementation
of the dossiers.
2. The time-limit for dossier
supplementation shall be defined by the investigation agency but must not be
less than thirty days as from the date the concerned organizations and/or
individuals are notified of the dossier supplementation.
3. Before the Trade Minister
issues investigation decisions, the investigation agency must notify Vietnam's
anti-subsidy regulations to the competent agencies of the countries or
territories that produce or export goods requested for the application of
anti-subsidy measures.
4. Within sixty days after
receiving dossiers with full contents prescribed in Article 9 of this
Ordinance, the Trade Minister must issue investigation decisions; in special
cases, this time limit may be extended but for no more than thirty days.
5. Within fifteen days as from
the date of issuance of decisions on investigation for the application of
anti-subsidy measures, the investigation agency shall notify such decisions to
organizations and/or individuals requesting the application of anti-subsidy
measures as well as to competent organizations, individuals and/or agencies of the
countries or territories that produce or export goods requested for the
application of anti-subsidy measures, and announce such decisions to relevant
parties.
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Article
11.- Parties involved in the investigation process
Parties involved in the
investigation process include:
1. Organizations and/or
individuals that submit dossiers requesting the application of anti-subsidy
measures;
2. Foreign-based organizations
and/or individuals that produce or export goods requested for the application
of anti-subsidy measures;
3. Organizations and/or
individuals that import goods requested for the application of anti-subsidy
measures;
4. Home-based organizations
and/or individuals that produce similar goods;
5. Domestic business-line
associations that represent the majority of organizations and/or individuals
producing or importing similar goods;
6. Foreign business-line
associations that represent the majority of organizations and/or individuals
that produce and/or export goods requested for the application of anti-subsidy
measures;
7. Trade unions or other
organizations that represent the interests of laborers of domestic production
branches;
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9. Vietnam's competent agencies;
10. Competent agencies of the
countries or territories that produce or export goods requested for the
application of anti-subsidy measures;
11. Other organizations and
individuals whose rights and interests are related to the investigation
process.
Article
12.- Providing information and documents in the investigation process
1. The parties involved in the
investigation process, defined in Article 11 of this Ordinance, shall have to
provide truthful information and necessary documents at the request of the
investigation agency.
2. In cases where necessary information
and documents are not provided strictly according to its request, the
investigation agency shall make decision based on available information and
documents.
Article
13.- Contents of investigation for the application of anti-subsidy measures
Contents of investigation for
the application of anti-subsidy measures include:
1. Determination of subsidy;
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Article
14.- Determination of subsidy
The determination of subsidy
shall be conducted according to the following provisions:
1. Determining subsidized
imports into Vietnam, particular subsidy and level of subsidy for those
imports;
2. Determining the total subsidy
value. The calculation of the total subsidy value is prescribed as follows:
a/ In cases where the subsidy is
a nonrefundable allocation, the subsidy value shall be calculated on the basis
of the actual value of the allocation granted to the concerned organization or
individual.
b/ In cases where the subsidy is
granted in form of a loan, the subsidy value shall be calculated on the basis
of the difference between the payable interest rate applicable to that loan
under normal trade conditions and that actually paid by the concerned organization
or individual;
c/ In cases where the subsidy is
granted in form of loan guarantee, the subsidy value shall be determined on the
basis of the difference between the payable interest rate applicable to
non-guaranteed loans and the actual interest rate applicable to the guaranteed
loan;
d/ In cases where the subsidy is
granted in form of share transfer, the subsidy value shall be determined on the
basis of the capital amount actually received by the concerned enterprise;
e/ In cases where the subsidy is
granted in the form under which the Government or Government agencies purchase
goods and/or services at prices higher that the market prices and resell them
to organizations and/or individuals at prices below or equal to the market
prices, the subsidy value shall be determined on the basis of the difference
between the market prices and the actual prices already paid by the Government
or Government agencies for such goods and/or services, or the difference
between the purchase prices and sale prices of goods when such goods are resold
by the Government or Government agencies to organizations and/or individuals.
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Article
15.- Determining material injuries and threat to cause material injuries to
domestic production branches
The determination of material
injuries and threat to cause material injuries to domestic production branches
shall comply with the following provisions:
1. It must be based on concrete
evidences;
2. The determination of the
extent of material injuries or threat to cause material injuries to domestic
production branches must be based on the examination of the following contents:
a/ The quantity, volume or value
of the subsidized imports has been rising considerably due to the low sale
prices, thus reducing the market shares of domestic production branches,
changing the consumption structure and/or decreasing the productivity of
domestic production branches;
b/ The imports' prices are low
due to the subsidy, thus entailing the lower prices of home-made goods;
c/ The impacts of subsidized
imports on domestic production branches as reflected in their economic,
productivity and profit indexes;
d/ The impacts of subsidized
imports in relation to the outputs of similar home-made products. In cases
where this relation cannot be determined, such impacts shall be assessed
through examination of the output of a group of certain products or one product
among the most similar home-made products;
3. When goods imported from two
or more countries or territories are all subject to investigation for the
application of anti-subsidy measures, the investigation agency may assess
impacts of the import of those goods from such countries or territories when it
can determine:
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b/ The conditions of competition
among the imports and those between the imports and home-made goods, which
serve as basis for assessment of the impacts.
Article
16.- Consultation
1. Before and during
investigation, the investigation agency may organize consultation with parties
involved in the investigation process, defined in Article 11 of this Ordinance,
so as to create conditions for these parties to present their opinions and
provide necessary information.
2. The parties involved in the
investigation process are not necessarily be present at consultation sessions;
a party absent at consultation sessions shall still have its interests related
to the application of anti-subsidy measures guaranteed.
3. The consultation must not
obstruct the process of investigation and application of anti-subsidy measures
according to the provisions of this Ordinance.
Article
17.- Information confidentiality
1. The investigation agency
shall have to keep secret supplied information when receiving reasonable
requests from the parties involved in the investigation process and shall
request such parties to supply the summarized information that must be kept
secret.
2. The parties involved in the
investigation process are allowed to access information supplied to investigation
agency, excluding information which need to be kept secret.
Article
18.- Investigation time-limit
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2. In special cases, the Trade
Minister may decide on extension of the investigation time- limit, which,
however, must not exceed 6 months.
Article
19.- Preliminary conclusions
1. Within ninety days as from
the date of issuance of an investigation decision, the investigation agency
shall announce preliminary conclusions on the contents related to the
investigation process as defined in Articles 13, 14 and 15 of this Ordinance.
In special cases, the time limit for announcement of preliminary conclusions
may be extended but must not exceed sixty days.
2. The preliminary conclusions
and principal grounds therefor shall be announced by appropriate modes to the
parties involved in the investigation process.
Article
20.- Final conclusions
1. Upon the completion of the
investigation process, the investigation agency shall announce final
conclusions on the contents related to the investigation process according to
the provisions of Articles 13, 14 and 15 of this Ordinance.
2. The final conclusions and
major grounds therefor must be notified through appropriate media to the
parties involved in the investigation process.
Article
21.- Stopping investigations
The Trade Minister shall decide
to stop investigations in the following cases:
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2. The preliminary conclusions
defined in Article 19 of this Ordinance contain one of the following contents:
a/ There’s no subsidy for the
imports into Vietnam;
b/ The volume, quantity or value
of subsidized imports into Vietnam is immaterial;
c/ The subsidy level is
immaterial;
d/ There are neither material
injuries nor threat to cause material injuries to domestic production branches.
Chapter III
APPLICATION OF
ANTI-SUBSIDY MEASURES
Article
22.- Imposition of provisional anti-subsidy tax
1. Sixty days from the date of
issuance of an investigation decision, based on the preliminary conclusions,
the Trade Minister may issue decision on the imposition of provisional
anti-subsidy tax.
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3. The payment of provisional
anti-subsidy tax may be guaranteed by deposits or by other measures as
prescribed by law.
4. The time-limit for the
imposition of provisional anti-subsidy tax must not exceed one hundred and
twenty days as from the date the decision on the application of this measure is
issued.
5. The Trade Minister may extend
time- limit for the imposition of provisional anti-subsidy tax, but for no more
than sixty days.
Article
23.- Application of commitment measures
1. After the announcement of the
preliminary conclusions and before the end of the investigation stage,
organizations and/or individuals producing or exporting goods subject to
investigation or the Governments of goods-producing/exporting countries or
territories may make commitments with the Trade Ministry on the voluntary
termination of subsidy, reduction of subsidy levels, adjustment of export
prices or application of other appropriate measures.
2. The Trade Minister may accept
or not accept the contents of commitments or propose the adjustment thereof but
must not force the concerned parties to make commitments.
3. The investigation agency
shall publicly announce the contents of commitments to the parties involved in
the investigation process.
4. If not accepting commitments
of relevant parties, the Trade Minister must notify the reasons therefor and
permit further investigation for the application of anti-subsidy measures under
the provisions of this Ordinance.
5. The Trade Minister shall
issue decision to stop anti-subsidy investigations and apply the commitment
measure if deeming that the realization of such commitments shall not cause or
threat to cause material injuries to domestic production branches.
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6. In cases where the concerned
parties fail to strictly comply with their commitments, thus causing or
threatening to cause material injuries to domestic production branches, the
Trade Minister shall issue decisions on further investigations for the
application of anti-subsidy measures or on the application of anti-subsidy
measures according to the provisions of this Ordinance.
Article
24.- Imposition of anti-subsidy tax
1. In case of failure to reach
commitments defined in Article 23 of this Ordinance, basing him/herself on the
final conclusions and proposals of the anti-subsidy case- handling council, the
Trade Minister shall issue decision to impose or not to impose anti-subsidy
tax.
2. The anti-subsidy tax rate
must not exceed the subsidy level defined in the final conclusions.
3. The time-limit for the
imposition of anti-subsidy tax shall not exceed five years as from the date of
issuance of a decision on anti-subsidy tax imposition.
4. The time-limit for imposition
of anti-subsidy tax may be extended in cases where the Trade Minister issues
decision to review the imposition of anti-subsidy tax under the provisions of
Chapter IV of this Ordinance.
5. The investigation agency
shall announce through appropriate media the imposition or non-imposition of
anti-subsidy tax on the parties involved in the investigation process.
Article
25.- Imposition of anti-subsidy tax with retrospective effect
1. In cases where the final conclusions
determine that there are material injuries or threat to cause material injuries
to domestic production branches and the provisional anti-subsidy tax had been
imposed before the announcement of such final conclusions, the imposed
anti-subsidy tax shall have retrospective effect.
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a/ Such imports have been
subsidized by foreign governments or Government agencies;
b/ The volume, quantity or value
of subsidized imports into Vietnam increases unexpectedly, thus causing
hardly-redressable material injuries to domestic production branches.
3. Not to retrospectively
collect tax differences when the applied anti-subsidy tax rate defined in the
final conclusions is higher than the provisional anti-subsidy tax rate
prescribed in Article 22 of this Ordinance.
4. To reimburse tax differences
when the applied anti-subsidy tax rate defined in the final conclusions is
lower than the provisional anti-subsidy tax rate prescribed in Article 22 of
this Ordinance.
5. In cases where the Trade
Minister issues decisions not to impose anti-subsidy tax, the collected
provisional anti-subsidy tax amounts or other amounts paid as guarantees for
the payment of provisional anti-subsidy tax under the provisions of Article 22
of this Ordinance shall be refunded.
Chapter IV
REVIEWING THE
APPLICATION OF ANTI-SUBSIDY MEASURES
Article
26.- Reviewing the application of anti-subsidy measures
1. Twelve months after the
issuance of a decision on the application of anti-subsidy measures, the Trade
Minister may decide on reviewing the application of anti-subsidy measures at
the request of one or many relevant parties defined in Article 11 of this
Ordinance and on the basis of examining evidences provided by such parties.
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3. The investigation agency
shall review the application of anti-subsidy measures according to the
provisions of Articles 9, 10, 11, 12, 13, 14, 15, 16 and 17 of this Ordinance.
4. The filling of procedures related
to the reviewing process must not obstruct the application of anti-subsidy
measures.
5. The time-limit for reviewing
the application of anti-subsidy measures defined in Clauses 1 and 2 of this
Article shall not exceed twelve months as from the date of issuance of the
reviewing decision.
Article
27.- Decisions on the results of reviewing the application of anti-subsidy
measures
Upon the completion of the
review of the application of anti-subsidy measures, the Trade Minister shall issue
one of the following decisions:
1. To continue applying the
anti-subsidy measures or extend the application thereof;
2. To adjust anti-subsidy tax
rate or accept commitments corresponding to the review results;
3. To stop the application of
anti-subsidy measures.
Chapter V
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Article
28.- Complaint and initiation of lawsuits
1. Within sixty days as from the
date the Trade Minister issues decisions on the imposition of anti-subsidy tax,
if the parties involved in the process of investigation and application of
anti-subsidy measures disagree with such decisions, they may lodge their
complaints to the Trade Minister.
2. Within sixty days after
receiving complaints, the Trade Minister shall have to settle them; in special
cases, the complaint-settlement time- limit may be extended but for not more
than sixty days and such must be notified by appropriate modes to complaining
organizations and/or individuals.
3. If past the time-limit
prescribed in Clause 2 of this Article the Trade Minister has not issued
complaint-settling decisions or the complaining organizations and/or
individuals disagree with the Trade Minister's complaint-settling decisions,
such organizations and/or individuals may initiate lawsuits at courts according
to the provisions of Vietnamese law.
Article
29.- Dispute settlement and violation handling
The settlement of disputes and
handling of law violations on anti-subsidy for imports into Vietnam shall
comply with Vietnamese law provisions; in cases where an international
agreement which Vietnam has signed or acceded to contains different provisions,
the provisions of such international agreement shall apply.
Chapter VI
IMPLEMENTATION PROVISIONS
Article
30.- Implementation effect
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Article
31.- Guidance for implementation
The Government and the Supreme
People's Court shall, within the ambit of their tasks and powers, detail and
guide the implementation of this Ordinance.
ON BEHALF OF THE
NATIONAL ASSEMBLY STANDING COMMITTEE
CHAIRMAN
Nguyen Van An