An excerpt from The International Trade Law Review, 8th Edition
Overview of Trade Remedies
Vietnam is one of the “latecomers” in terms of trade remedies. While trade remedy regulations appeared in some countries over a century ago and modern trade remedy has been very popular in many countries since the 1990s, Vietnam’s trade remedy regulations have not been introduced for the first time only in 2002 and 2004 in the form of ordinances. Although these orders were proposed primarily as part of Vietnam’s commitments to join the World Trade Organization (WTO), they served as the basis for Vietnam’s first safeguard investigation in 2009 and the first anti-dumping investigation in 2013. Vietnam continued to “experiment” and “learn” with five more safeguard cases and two anti-dumping cases scattered over the following years. With the establishment of the Trade Remedies Authority of Vietnam (TRAV, or Investigative Authority) under the Ministry of Industry and Commerce in 2017 and the entry into force of the first official law governing the enforcement remedy measures from 2018, Vietnam has been considerably more active in this area, especially during the period 2019-2020 when it carried out 10 anti-dumping cases against 20 exporting countries. This streak has been interrupted since 2021, when the third wave of the covid-19 pandemic severely affected the country. At the time of writing this report, Vietnam has initiated 16 anti-dumping investigations, six safeguard investigations and one countervailing duty investigation, all of which resulted in the imposition of measures, except for two investigations. anti-dumping in 2019 and 2020. These investigations cover a fairly diverse range of products, including various steel products (eight cases), aluminum profiles, plastic films, monosodium glutamate, wire and sugar.
The TRAV, as mentioned above, is the competent authority for all trade remedy matters, including dumping, subsidy investigations, and safeguard and injury investigations. It is the authority responsible for investigating, reviewing available information (e.g. requests and responses to survey questionnaires) and conducting other formal proceedings in trade remedy investigations. Based on his findings, the Director General of TRAV must make recommendations to the Minister of Industry and Trade on whether or not to initiate the investigation, impose provisional measures or impose definitive measures. . This applies to all types of trade remedy investigations.
Trade remedies and other relevant matters are governed by Chapter IV of the Foreign Trade Management Law No. 05/2017/QH14 (the Law), dated June 12, 2017.
The law incorporates and expands on three previous orders on anti-dumping, countervailing and safeguard measures in one chapter, which further systematizes the legal framework in the area of trade remedies. In this chapter, anti-dumping and countervailing measures are provided for jointly in the same section, while safeguard measures are provided for separately.
The government further regulates this chapter in Decree No. 10/2018/ND-CP of January 15, 2018. The Ministry of Industry and Commerce provides specific guidelines for this decree in Circular No. 06/2018/TT -BCT of April 20, 2018, then replaced circular 06/2018/TT-BCT by circular n° 37/2019/TT-BCT of November 29, 2019. While retaining most parts of circular 06/2018/ TT-BCT, Circular 37/2019/ The TT-BCT also provides more detailed guidelines on the duty exemption applied to certain local businesses or certain types of products under investigation.
When an FTA, to which Vietnam is a signatory, enters into force, the Ministry of Industry and Trade issues a circular to provide guidance for the implementation of the regulated trade remedy chapter in a respective FTA, taking into account focusing mainly on transitional safeguard measures. As discussed in more detail in Section III and Section IV, none of the FTAs make substantial changes to the current trade remedy regime in the country.
The area of trade remedies is also governed by the Import and Export Duties Act, which has been in force since 2016. While reintroducing the basic definitions and terms of the previous three ordinances, the Duties Act d’importation et d’exportation deals with issues of collection, reimbursement and restitution of exchanges. appeal rights and customs principles and procedures in application of decisions by the Minister of Industry and Commerce to apply trade remedy measures against imports into Viet Nam.
Vietnam’s legal framework for trade remedies is developed on the basis of WTO agreements. However, it should be noted that like the WTO agreements, several practical issues are not specifically regulated. This leaves a lot of room for maneuver for the TRAV, which has led to several practical problems, as we will see in Section V.
Vietnam is one of the most proactive countries in the world in negotiating and joining Free Trade Agreements (FTAs). Since joining the WTO in 2007, a significant step that has enabled Vietnam to fully open up to the world from an economic and trade perspective, Vietnam has negotiated with many countries and economic partners to conclude free trade agreements. -exchange. By 2021, the country is a signatory to 17 FTAs, three of which are considered remarkable in terms of market size and complexity of commitments. These are the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), the Regional and Comprehensive Economic Partnership (RCEP) and the European Union – Vietnam Free Trade Agreement (EVFTA).
The proactive process of negotiating and joining FTAs over the past 15 years since joining the WTO has validated a strong and enduring position of the Government of Vietnam towards a more integrated and open economy. The network of 17 FTAs guarantees an accessible and stable business environment for the country’s development. Vietnamese exporters are eligible to enter the world’s most important markets. In return, all exporters and investors from FTA member countries are allowed to develop their businesses under a reliable and level playing field in the country.
Striking features of these FTAs in relation to Vietnam’s WTO commitments include investor-state dispute settlement, state-owned enterprises (SEs), and government procurement. While WTO membership has helped raise the country’s legal framework for trade to a more acceptable standard, FTA commitments have pushed the country to raise the bar of the legal environment for trade even further. and business. A specific investor-State dispute settlement mechanism provided for in the EVFTA ensures better protection of the rights and legitimate interests of European investors in the event of conflict or adverse treatment by Vietnamese government bodies. The SOE regulations in the CPTPP and EVFTA make Vietnamese SOEs more transparent and accountable to public and independent audit. This creates a fairer competitive environment for foreign investors doing business in Vietnam. Public procurement should also be more accessible to foreign companies, opening up more opportunities for foreign suppliers rather than just domestic entities, which may have an advantage in a closed/non-public procurement process.
It is also important to note that trade remedy measures are provided for in all FTAs to which Vietnam is a signatory. Although several additional obligations are required in these FTAs, for example prompt notification to FTA members before the initiation of an investigation, or that bilateral and regional safeguard measures in addition to global safeguards are regulated, the terms and basic notions are inherited from the WTO agreements.