   
  
  
G/ADP/Q1/VNM/7  
G/SCM/Q1/VNM/7  
G/SG/Q1/VNM/7  
 
7 November  2019 
(19-7582) Page: 1/5 
Comm ittee on Anti-Dumping Practices  
Committee on Subsidies and Countervailing Measures 
Committee on Safeguards  Original: English  
 
  
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5, 32.6  AND 12.6 OF THE AGREEMENTS  
REPLIES TO QUESTIONS1 POSED BY THE EUROPEAN  UNION  REGARDING  
THE NOTIFICATION OF VIET NAM2 
The following c ommunication, dated 5 November 2019, is being circulated at the request of the 
delegation of Viet Nam .3 
 
_______________  
 
 
Questions related to the provisions of Circular No. 06/2018/TT -BCT 
Question 1  
 
Article  5 "Registration as interested parties in a trade remedy investigation " states that 
there is a time limit for registration as interested parties. What are the consequences of 
such a registration for the latecomers? Are they allowed to enjoy those procedural rights, 
which are still available after their coming fo rward?  
 
Reply : 
 
Article 5.5 of The Circular regulates that after the deadline for registration as interested parties, 
organizations and individual under Article 74.1 (a), (d) and (đ) of Law on Foreign Trade Management 
continue to participate in the investigation as interested parties. As for other organizations and 
individuals, the investigating authority could deny registration depending on investigation practices.  
 
Question 2 
 
Article  8 "Request for protection of confidential information concerning a trade remedy 
investigation " foresees the possibility to treat information as confidential and protect it 
without mentioning the notion of "good cause " of Article  6.5 of the Anti-Dumping  
Agreement. Article  75 of the law on foreign trade managem ent No. 05/2017/QH14 does 
not refer to "good cause " neither.  What is the consequence of this omission?  
Reply : 
Protection of confidential information concerning an investigation is regulated in Article 75 of Law on 
Foreign Trade Management, Article 11 of De cree 10/2018/NĐ -CP and Article 8 of 
Circular  06/2018/TT -BCT. Article 11.3 of Decree 10/2018/NĐ -CP regulates that interested parties 
                                                
1 G/ADP/ Q1/VNM/ 5 – G/SCM/ Q1/VNM/ 5 – G/SG/Q1/VNM/ 5 (communicated on  29 April 2019 ). 
2 G/ADP/N/1/VNM/2  – G/SCM/N/1/VNM/1  – G/SG/N/1/VNM/2 ( communicated on  31 August  2018).  
3 The information in this document is for reference purposes only and does not affect the rights and 
obligations of Viet Nam in accordance with Vietnamese laws and international treaties to which Viet Nam is a 
party.  G/ADP/Q1/VNM/7 • G/SCM/Q1/VNM/7 • G/SG/Q1/VNM/7  
 
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  have to submit to the investigating authority detailed explanation of the reason (good cause) for the 
protection request.  
Questions related to the provisions of Decree n°10/2018/ND -CP 
Question 3 
 
Article  9 "Rights and obligations of interested parties in trade remedy cases " states that 
the applicant and respondent have the "obligation " to provide sufficient, truthful and 
accurate evidence, information and materials relating to their requests and at the request 
of the investigating authority. What are the consequences for the applicant and the 
respondent if they do not provide this information?  
Reply : 
 
When the applicant an d respondent do not provide sufficient, truthful and accurate evidence, 
information and materials relating to the case under their view or the request of investing authority, 
the investing authority could apply Article 10 of Decree 10/2018/ND -CP on non -cooperation of 
interested parties in trade remedy cases.  
Question 4 
 
Article  13 "Consultation " foresees the possibility to hold consultations with interested 
parties in the course of the investigation and before finishing the investigation. Does this 
process correspond to meetings/hearings4 with the interested parties?  
Reply : 
Yes. Article 13.2, 13.3, 13.4 and 13.5 on consultations correspond to meetings/hearings with the 
interested parties.  
 
Question 5 
 
Article  15 "Application of trade remedies to underdeveloped or developing countries and 
territories " contains the notion of "underdeveloped " countries. Does this notion 
correspond to the notion of last developed countries?  
Reply : 
Yes. 
Question 6 
 
Article  16 "Methods of determining normal value " state s that : 
"…normal values may be  … 
b) Set by the investigating authority based on reasonable costs of products plus other 
reasonable expenses and reasonable profits …" 
Could the authorities clarify how "reasonable " will be applied in practice as this qualifying 
adjective is not foreseen in the Anti-Dumping Agreement ? 
 
Reply : 
 
Article 16.2.(b) of Decree 10/2018/ND -CP regulates the situation where the investigating authority 
set the normal values under Article 2.2 of ADA. The method of determining normal value may be 
                                                
4 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8  June 2016 on protection 
against dumped imports from countries no t members of the European Union foresees this kind of hearings under 
Article  6.5 G/ADP/Q1/VNM/7 • G/S CM/Q1/VNM/7 • G/SG/Q1/VNM/7  
 
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  set by the investigating authority based on reasonable costs of  products and other reasonable factors 
in compliance with Article 2.2 of ADA.  
Question 7 
 
Article  16 "Methods of determining normal value " contains in its paragraph  3 the notions 
of "volume or quantity ". Could the authorities clarify the difference between  volume and 
quantity?  
 
Reply : 
 
Volume and quantity are two concepts used interchangeably depending on each case. In most 
investigations, the investigating authority uses volume figures (volume). However, in some cases, 
when goods cannot be converted to vol ume, the investigation will use unit amount (quantity) in 
consideration and evaluation of the case.  
Question 8 
 
Article  19 "Adjustment of normal values and export prices " states that "Adjusting the 
normal value and export price in the case where there are differences in taxation, 
conditions and terms of sale, commercial level, quantities, physical characteristics or 
other factors which are deemed appropriate by the investigating authority ". The notion of 
"differences which affect price comparability " which is foreseen as a criteria for 
adjustment to be made under Article  2.4 of the Anti-Dumping Agreement is absent from 
Article  19. What is the criteria to perform the adjustments foreseen in Article  19? 
Reply : 
 
Article 19.3 of Decree which regulates the adjustment factors affecting the price comparability, 
including the differences in taxation, conditions and terms of sale, commercial level, quantities, 
physical characteristics or other factors in compliance with Article 2.4 of ADA.  
 
Question 9 
 
Article  36 "Selection of samples for investigation " under its paragraph  2, point  a), seems 
to differentiate between volume and quantity. Could the authorities clarify the difference 
between the two?  
 
Reply : 
There is no difference between these two concepts. The same response to Question 5 . 
 
Question 10 
 
The section  4 "Application of anti -dumping measures or countervailing measures " does 
not contain any provision related to disclosure at provisional and definitive stage. The law 
on foreign trade management No. 05/2017/QH14 does not seem to contain any reference 
to a disclosure to parties before the adoption of measures.  
 
At which poi nt do the authorities see the possibility to disclose their findings to the parties 
(both at provisional and definitive stage)? Where this possibility is foreseen in the 
Vietnamese regulations? How the bilateral obligation for "full and meaningful disclosu re" 
created under Article  3.2 "Transparency " (chapter  3 "Trade remedies " of the bilateral 
Free Trade Agreement) will be implemented?  
 
Reply : 
Article 70.5 of Law on foreign trade management regulates the notification responsibility of the 
authority as follo w: 
 
 G/ADP/Q1/VNM/7 • G/SCM/Q1/VNM/7 • G/SG/Q1/VNM/7  
 
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  - Article 70.5(b): The investigating authority shall publicly announce its preliminary investigation 
determination, final investigation determination, approval of commitments and termination of 
investigation to interested parties in an investigation c ase. 
- Article 70.5(c): The investigating authority shall perform other notification obligations under 
treaties to which the Socialist Republic of Viet Nam is a contracting party.  
 
Hence, investigating authority has the responsibility to disclose to the in terested parties during the 
investigation both at provisional and definitive stage and the obligations under EVFTA could be 
applied directly.  
Question 11 
Article  45 "Application of retrospective anti -dumping and countervailing measures " does 
not reflect all the conditions for retroactive application of anti -dumping duties and 
countervailing measures as foreseen in Article  10.6 of the Anti -Dumping Agreement and 
Article  20.6 of the Agreement on Subsidies and Countervailing Measures. These conditions 
are not reflected in Article  81 and 89 of the Law on Foreign Trade Management. What is 
the consequence of this omission? Does it means that it is easier to apply measures 
retrospectively under the Vietnamese law?  
Reply : 
The principles and condit ions for application of anti -dumping and countervailing duty are compliant 
with Article 81, 89 of Law on Foreign Trade Management, Article 45 of the Decree as well as Article  10 
of ADA. Article 6.1 of the 2016 Law on Treaties provide that if a legal docume nt and a treaty to 
which the Socialist Republic of Viet Nam is a contracting party have different provisions on the same 
issue, the treaty shall prevail, except the Constitution. Therefore, retroactive application of anti -
dumping duties and countervailing measures under Vietnamese regulation does not means that it is 
easier to apply measures retrospectively than under ADA.  
Questions related to the provisions of Law on Foreign Trade Management 
No.°05/2017/QH14  
Question 12 
 
Article  75 "Provision and collection of information and documents and confidentiality in 
the investigation of trade remedy cases " states in its paragraph  4 that in case of non -
cooperation by the party to be investigated the authority "may use information and 
documents provided by i nterested parties or collected by itself or available 
information  …". This provision seems to give a lot of room of manoeuvre to the 
investigating authority. It seems to allow the investigating authority to base its decision 
only on the information and doc uments provided by the interested parties (as the different 
sources of information are separated by "or"). The concept of "facts available "5 is larger 
than "information and documents provided by interested parties ". Could the Vietnamese 
authorities clarify if as drafted paragraph  4 of Article  75 could potentially lead to the 
exclusive use of adverse facts supplied by the complainant?  
 
Reply : 
 
Pursuant to Article 75, when investigating trade remedy cases, the investigating authority would 
consider many sources of information, including information provided by interested parties or 
collected by itself if interested parties are not cooperative. Basing on all information received, 
investigating authority would examine and verify the authentici ty of information in order to make 
the accurate conclusion on the case. The provision on Article 75.4 does not mean that investigating 
authority only use the adverse facts supplied by the complainant.  
                                                
5 The notion of "facts available " is foreseen in Article  6.8 of the Anti -Dumping Agreement and Article  12.7 
of the Agreement on subsidies and countervailing measures.  G/ADP/Q1/VNM/7 • G/S CM/Q1/VNM/7 • G/SG/Q1/VNM/7  
 
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  Question 13 
 
Article  81 "Application of anti -dumping me asures " in its paragraph  4 on retrospective 
application of duties seems to give the same weight to "determination of injury " and 
"determination of a threat of injury ". The condition of Article  10.2 of the Anti -Dumping 
Agreement "in the case of a final dete rmination of a threat of injury, where the effect of 
the dumped imports would, in the absence of the provisional measures, have led to a 
determination of injury, anti -dumping duties may be levied retroactively " is not foreseen 
in this paragraph  4 of the Vi etnamese law.  
 
The situation under Article  89.4 on imposition of retrospective countervailing duties is the 
same. This Article does not reflect the distinction between "material injury " and "threat 
of material injury " described in Article  20.2 of the Agreement on Subsidies.  
 
Could we consider that it is easier to apply retrospective anti -dumping duties and 
countervailing measures under the Vietnamese law compared to the WTO rules?  
 
Reply : 
 
The retrospective application is regulated in Article 81 and Article 84 of the Law on Foreign Trade 
Management,  Article 45 of Decree as well as Article 10 of ADA. Article 6.1 of the 2016 Law on 
Treaties provide that if a legal document and a treaty to which the Socialist Republic of Viet Nam is 
a contracting party have different provisions on the same issue, the tr eaty shall prevail, except the 
Constitution. Therefore, retroactive application of anti -dumping duties and countervailing measures 
under Vietnamese regulation does not mean that it is easier to apply measures retrospectively than 
under ADA . 
Question 14 
Article 85 "Subsidies likely to be subject to countervailing measures " states that subsidies 
based on export results and aiming to prioritize the use of homemade products "…are 
likely to be subject to countervailing measures, unless otherwise provided by treaties to 
which the Socialist Republic of Viet  Nam is a contracting p arty." These subsidies are 
prohibited under Article  3 of the Agreement on Subsidies and Countervailing Measures. 
How could other treaties go against this provision?  
Reply:  
 
The application of other treaties is regulated in Article 85.3. The application of countervailing 
measures must be compliant with Article 3 of the Agreement on Subsidies and Countervailing 
Measures.  
Question 15 
 
Article  86 "Conditions for application of countervailing measures " seems to be more 
restrictive in its paragraph  3 than Article  27.10 b of the Agreement on Subsidies and 
Countervailing Measures. Article  27.10 b states that any countervailing investigation shall 
be terminated as soon as the authorities determine that "the volume of the subsidized 
imports represents less than 4 % of the total imports of the like product in the importing 
Member… ". Article  86, paragraph  3 states that "In the case the volume or quantity of 
imports originating from a developing country does not exceed 4% of the total volume or 
quantity of similar imports into Viet  Nam… ". Could the authorities confirm that our 
understanding is correct?  
 
Reply : 
Yes. 
__________  