Anti dumping proceedings under vietnamese law – legal issues and proposals to improve its effectiveness

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW -*** -MANAGING BOARD OF THE ADVANCED COURSES ĐẶNG PHƯƠNG THẢO ANTI-DUMPING PROCEEDINGS UNDER VIETNAMESE LAW – LEGAL ISSUES AND PROPOSALS TO IMPROVE ITS EFFECTIVENESS BACHELOR OF LAW THESIS Department: International Law Academic year: 2012 - 2016 HO CHI MINH CITY 2016 DEPARTMENT OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW -*** -MANAGING BOARD OF THE ADVANCED COURSES ĐẶNG PHƯƠNG THẢO ANTI-DUMPING PROCEEDINGS UNDER VIETNAMESE LAW – LEGAL ISSUES AND PROPOSALS TO IMPROVE ITS EFFECTIVENESS BACHELOR OF LAW THESIS Department: International Law Academic year: 2012 - 2016 Supervisor: Assoc.Prof.Dr Trần Việt Dũng Student in charge: Đặng Phương Thảo Student code: 1253801012270 Class: CLC 37A HO CHI MINH CITY 2016 DECLARATION This thesis has been written in partial fulfilment of the Bachelor of Law Program at Ho Chi Minh City University of Law The ideas and opinions expressed in this paper are made independently, represent my own views and are based on my own research I confirm that this work is my own and has not been submitted for academic credit in any other subject or course I have acknowledged all material and sources used in this paper ACKNOWLEDGEMENTS I would like to express my deepest gratitude to my supervisor Assoc.Prof.Dr Tran Viet Dung for his full support, expert guidance, understanding and encouragement throughout my thesis performance Without his patience and timely wisdom, my thesis work would have been a frustrating pursuit In addition, I would like to sincerely thank my best friends for their full consideration and enthusiasm in helping me with my coursework as well always cheering me up until my thesis has been completed Finally, I would like to show my appreciation to my family for their unconditional love and support during my undergraduate study Truthfully, I would not have completed my journey without their continuous love and encouragement Dang Phuong Thao TABLE OF CONTENTS INTRODUCTION CHAPTER VIETNAMESE LEGAL FRAMEWORK ON ANTI-DUMPING PROCEEDINGS 1.1 Vietnamese policy regarding foreign trade and anti-dumping system8 1.1.1 Overview of Vietnam’s foreign trade policy 1.1.2.Establishment and development of Vietnamese anti-dumping policy 10 1.2 Vietnamese legal framework on anti-dumping proceedings in light with WTO law and practice 17 1.2.1 Prevention of the abuse of anti-dumping measures in Vietnam anti-dumping proceedings 18 1.2.2 Transparency in Vietnam anti-dumping proceedings 21 1.3 Conclusions 24 CHAPTER LEGAL ISSUES CONCERNING VIETNAMESE ANTI-DUMPING PROCEEDINGS – PROPOSALS TO IMPROVE ITS EFFECTIVENESS 25 2.1 Proceedings on petition for an anti-dumping investigation 26 2.1.1 Determination of the representative to file a petition 26 2.1.2 Filing of the petition 28 2.1.3 Acceptance or rejection of the petition 32 2.2 Investigation process 33 2.2.1 Parties concerned in the anti-dumping investigation process 34 2.2.2 Procedures for further investigation 36 2.3 Application of anti-dumping measures in the final determination and review mechanism 44 2.3.1 Application of anti-dumping measures 44 2.3.2 Administrative review mechanism 51 2.4 Proposals for the improvement of Vietnamese anti-dumping proceedings 52 2.4.1 Additional guidance on the application of “facts available” mechanism 53 2.4.2 Reformation of anti-dumping authorities regarding the organizational structure 54 2.4.3 Improvement regarding the consideration of public interests 57 2.5 Conclusions 59 CONCLUSIONS 60 BIBLIOGRAPHY i LIST OF ABBREVIATIONS ADA Anti-Dumping Agreement (Agreement on Implementation of Article VI of GATT 1994) ADO Ordinance on Anti-dumping against imports into Vietnam No 20/2004/PLUBTVQH11 ASEAN Association of Southeast Asian Nations BTA Vietnam-U.S Bilateral Agreement DOC Department of Commerce E.U European Union ITC International Commission U.S./USA The United States of America 19.U.S.C U.S Code: Title 19 – Custom Duties of US law regarding anti-dumping VCA Vietnam Competition Authority WTO World Trade Organization INTRODUCTION The necessity of the topic Vietnamese anti-dumping law came into being in 2004, with sprint efforts in order to accede to the World Trade Organization In addition, under the pressure of the massive imports and unfair trade practices from foreign firms, it is urgent for the country to form a system of trade remedies against dumping imports Vietnam’s accession to the WTO and execution of international treaties in general as well as Anti-dumping Agreement (Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994) in particular plays an important role in increasing and extending international relationships Besides, the implementation of international treaties helps to construct and perfect Vietnamese legal system, such as the national anti-dumping law The first legal document adjusting dumping imports into Vietnam is The Amendment and Revision of the Law on Import and Export Duties No 04/1998/QH10 passed by the National Assembly on May 20th which allowed imposing additional duties on dumping imports into Vietnam.1 However, the Law remained a number of defects regarding specific regulations on the anti-dumping authorities, procedures and measures application as well as the mechanism of dumping determination Until 2004, the Ordinance on Anti-dumping against Imports into Vietnam came into force by the Standing Committee of the National Assembly which was the first document regulating directly and thoroughly the issues regarding dumping imports into Vietnam Moreover, the Ordinance and its implementation documents have built regulations on a complete anti-dumping proceeding, including anti-dumping investigation and handling regarding the decision whether or not to apply anti-dumping measures Besides, despite considered quite complete and adequate, Vietnamese antidumping system still contains vague and unclear rules in comparison with the Anti- Article 1, The Amendment and Revision of the Law on Import and Export Duties No 04/1998/QH10 dumping Agreement of the WTO and some national legislations such as the U.S or the EU anti-dumping law Vietnamese industries have low capacity to initiate a successful anti-dumping investigation The pressure of expenses prevents businesses from participating in anti-dumping actions Therefore, injury caused by dumping imports is likely to be severe and domestic merchants still lack antidumping knowledge Furthermore, Vietnamese goods produced under fragile and sporadic domestic industries can hardly compete with a lot of high-quality foreign merchandise The application of anti-dumping measures to dumping imports might cause injury to Vietnamese consumers or create an international trade barrier to protect the domestic industry, which may lead to retaliations from the outside However, the system of anti-dumping proceedings is still bulky and in the absence of the separation of specific tasks among agencies, which may easily lead to the equivocation and non-transparency in settling anti-dumping cases Thus, Vietnamese anti-dumping proceedings should be improved towards having the ability to balance between anti-dumping and competition as well as seriously considering the public interests when imposing anti-dumping measures Because the need of anti-dumping law application is a request upon the globalization process as well as a worldwide trend and also an actual demand for Vietnamese Government to protect domestic industry, the improvement of Vietnamese anti-dumping law should be improved and implemented as soon as possible Especially, the perfection of regulations on anti-dumping proceedingd is highly recommended Therefore, the thesis seeks to provide knowledge of anti-dumping proceedings under Vietnamese law and contributions to Vietnam’s policy on the same issue, by giving proposals to improve Vietnamese anti-dumping procedures in order to make it more transparent and effective Literature review There are not so many books, articles as well as in-depth researches looking into anti-dumping law in Vietnam Most of the materials focus on the anti-dumping system surrounded by the WTO law, or the risk of Vietnamese goods to be the subjects when imported into other countries, and some proposals for a better preparation when it happens as well as improvements of Vietnamese exporters in competition with other nations in international trade However, there are still some valuable researching projects on Vietnamese anti-dumping system One of them is the book “Pháp luật chống bán phá giá hàng nhập Việt Nam – Những vấn đề lý luận thực tiễn” (Legislation against dumping import goods in Vietnam: theoretical issues and practical considerations) written by Nguyễn Ngọc Sơn in 2005 The book summarizes a number of issues about dumping practice in international trade, rationales of anti-dumping measures as well as Vietnamese law regarding anti-dumping on imports Another reference providing a deep research into Vietnamese anti-dumping legislation is the LLD dissertation named “Antidumping, competition and the WTO system – Implications for Vietnamese legal reform”, written by Trần Việt Dũng in 2007 The thesis describes the development of Vietnamese anti-dumping law in the light of its ongoing economic reforms and recent successful accession to the WTO Furthermore, the thesis thoroughly looks into the proceedings regarding Vietnamese anti-dumping system, as well as provides some contributions to the improvement of the existing procedural regulations Besides, a number of researches considered as a precious referential source can be mentioned, namely the book “Bảo hộ thương mại bối cảnh hội nhập kinh tế quốc tế hiệu điều chỉnh pháp luật Việt Nam” (Trade protectionism in the scene of international economy integration and Vietnamese law’s implementation effectiveness) written by Hà Thị Thanh Bình in 2012, and the LLD dissertation “Điều tra chống bán phá giá góc độ luật so sánh” (Anti-dumping investigation under comparative law cornerstone) written by Nguyen Tu Those projects draw the insights of Vietnamese anti-dumping legislation as well as summarizes the legal basis and aspects of trade protectionism in globalization, on that basis provide some solutions to improve Vietnamese regulations regarding the national anti-dumping system 54 for the parties concerned sending the information to the Investigating Agency in case they have difficulties in collecting such information Secondly, Vietnamese anti-dumping legislation is supposed to make a clarity for the case in which the Investigating Agency may use the best information available if the parties concerned are deemed impeding the investigation In order to clarify this rule, the parties concerned shall be considered preventing the proceeding of the investigation if they deliberately hide or steal the essential information to restrain the conduct of the investigation A clear regulation on this issue not only prevent the parties concerned in the anti-dumping case from carrying out some acts to impede the investigation but also limit the competent authority to abuse it so as to create disadvantages to the interested parties 2.4.2 Reformation of anti-dumping authorities regarding the organizational structure Aiming to establish a fair and transparent system, Vietnamese law has created a quite complex organizational structure for handling an anti-dumping case In accordance with this mechanism, the Investigating Agency founded by the VCA is responsible for the investigation process, while a temporary Handling Council established prior to a specific case shall give a review of the documents and evidence with regard to the determinations of the Investigating Agency as well as discuss and make recommendations to the Minister Eventually, the Minister will issue his decision on the application of anti-dumping measures upon the recommendations made by the Handling Council and information collected by the Investigating Agency, as well as issue decision to conduct an administrative review on the canceling or continuation of the application of anti-dumping measures As can be seen, the tasks executed by the Handling Council is also a repetition of the work done by the Investigating Agency As criticized by Nguyen Ngoc Son, this 55 organizational structure is quite complex and inappropriate in the present-day context, since the role of the Handling Council is redundant.106 Taking a deep research in the tasks of the VCA, we can see that the Investigating Agency carries out work at almost all aspects of an anti-dumping case The Investigating Agency shall check the standing of the petition, conditions to initiate an investigation, and conduct all periods of the investigation Moreover, the Investigating Agency can also make recommendations on the application of antidumping measures Hence, after the inquiry proceeding, the Handling Council can only discuss, express their view and suggest recommendations upon the results given by the Investigating Agency In other words, if the Handling Council somehow have their own determinations or evidence about the case which is different from or in conflict with the ones provided by the Investigating Agency, their rights to make recommendations opposing to the documents given by the Investigating Agency is likely to confuse the anti-dumping authorities This point reflects a loophole in the separation of agencies in anti-dumping systems Moreover, as once mentioned in section 2.3.1, the extent that the Handling Council can interfere the decision issued by the Minister in case it is in conflicts with the findings of the Handling Council causes confusion to the competent authorities as well as the concerned subjects The participation of the Handling Council in an antidumping case may unnecessarily extend the process Therefore, it is likely to make the domestic industry suffer more from the current dumping practice Taking a look at some national legislations regarding anti-dumping, we can find the diversity in the organizational structure of their anti-dumping authorities Under the U.S anti-dumping system, there are two separate authorities in the investigation and handling an anti-dumping case DOC shall be responsible for the determination of whether or not there is dumping, while the ITC will investigate the injury caused by alleged dumped imports After that, they shall issue decisions 106 Nguyễn Ngọc Sơn, supra note 5, p.114 56 based on their investigations The investigations and decisions are made independently by those two agencies In case the determination of only one authority is negative, the investigation shall be terminated As can be seen, the U.S anti-dumping structure is quite clear and transparent However, it requires a high cost and plentiful human resources to maintain this system In difference from the U.S law, the EU anti-dumping system simply organizes two authorities upon the periods of an anti-dumping case At the beginning, the European Commission shall issue a decision to initiate an investigation, conduct an official investigation, terminate an investigation as well as approve price undertakings Next, the Advisory Committee including the representatives of each country member will raise their ideas upon the determinations and the conclusions whether or not to apply antidumping duties However, their opinions are not compulsorily applied but a reference to the issuance of the decision Finally, the European Council shall issue decisions on the application of anti-dumping duties as well as the administrative review of the anti-dumping measures if requested In summary, the role of Handling Council in Vietnamese anti-dumping system is quite similar to the mission of the Advisory Committee in the EU law However, the rights of the Handling Council are not clarified as compared to those of the Advisory Committee Therefore, the author proposes to omit the foundation of the Handling Council in Vietnamese anti-dumping system Based on that ground, the Investigating Agency under the VCA shall have rights to initiate an anti-dumping case, conduct the official investigation as well as publish the determination and make recommendations on the application of anti-dumping measures to the Minister Upon the proposals of the VCA, the Minister shall issue his decision whether or not to apply anti-dumping measures and explicitly state the reasons for the decision This mechanism is likely to bring a huge benefit to the anti-dumping system Firstly, the VCA is responsible for handling competition issues, so they must have deep knowledge in this criteria During the conduct of an anti-dumping case, the VCA may have a thorough consideration of the effects of the application 57 of anti-dumping measures on competition policy, so that anti-dumping would not become a protectionism to the domestic industry Secondly, after the investigation process, the Minister shall consider upon the determinations made by the VCA to issue a decision Playing a decisive role, the Minister may make a balance between the application of trade remedy and the operation of competition rules This mechanism not only creates a more simple organizational structure regarding Vietnamese anti-dumping system but also decrease the cost to maintain the national operation of anti-dumping authorities 2.4.3 Improvement regarding the consideration of public interests As stated in section 2.3.1, Vietnamese legislation prescribes that where the imposition of anti-dumping duty causes impairment to public interests, the Minister may issue a decision rejecting the imposition of an anti-dumping duty However, the law does not give an explanation to the situations which can be deemed an impairment to public interests as well as a mechanism to determine it In the absence of the rules on how to determine the public interests prior to the application of anti-dumping measures, the competent authorities may have lots of difficulties applying this institution In order to predict the injury which may be caused by the application of antidumping measures, the competent authority should conduct a separate in-depth study of the public interests after the affirmative findings of dumping, material injury and its causal link “Its purpose is to define whether the negative impacts of the imposition of anti-dumping duties on the community as a whole would outweigh the positive effects such duties may bring to the domestic industry The conduct of the public interests test should be divided into two stages: (1) an evaluation of the positive and negative effects of imposing anti-dumping duties in relation to the complaining industry itself; and (2) an evaluation of the positive effects on the Community industry of granting protection against the negative effects on other 58 industry and interested parties adversely affected.”107 If the imposition of antidumping measures cause negative impacts on the industry, another industry of the economy as a whole rather than bring benefits to a specific industry, then it shall be deemed not to be for the best of such domestic industry With the purpose to evaluate the public interests in all aspects, the competent authority is suggested to take into account the following issues: Firstly, the competent authority must consider whether the imposition of anti-dumping duties creates an imbalance in the competition among domestic producers as well as between domestic producers and foreign exporters In the consideration of this factor, the competent authority must examine the scope and structure of the industry As proved by Marc Wellhausen, if the industry contains lots of independent producers as well as a large number of consumers, the imposition of the anti-dumping duties will be more likely in the public interests.108 Because when the domestic producers cannot supply their goods to all the consumers, those foreign countries imposed anti-dumping duties can also sell their commodities to the users as there are plenty sources of alternatives Both of the domestic and foreign products’ price may get a little bit higher due to the demand of the consumers In contrast, where the industry is composed of a small number of producers, the application of anti-dumping duties should be cautious Secondly, the competent authority should take into account the effects of the anti-dumping measures on future production When the anti-dumping measures are imposed on specific goods, the number of foreign exporters importing such goods into Vietnam may decrease Because the imposition of anti-dumping duty or a commitment of price undertaking may make them increase their products’ price or 107 Vermulst, Edwin & Driessen, Bart (1997), “New Battle Lines in the Antidumping War – Recent Movements on the European Front”, 31J World Trade, p 154-156 See also: Wellhausen, Marc (2001), “The Community Interest Test in Antidumping Proceedings of the European Union”, American University International Law Review, volume 16, issue 4, p 1501 108 Wellhausen, Marc, “The Community Interest Test in Antidumping Proceedings of the European Union”, American University International Law Review, volume 16, issue 4, p 1550-1553 59 endure a decline in the profits Therefore, a shortage of exporters importing a number of specific goods into Vietnam might negatively influence the future production of the economy Thirdly, prior to the application of anti-dumping measures, the competent authority should consider the impacts of the measures on the consumers Consumer organizations may play an active role in the anti-dumping proceedings; however, their voice has never carried much weight with the issuance of a decision to the imposition of anti-dumping measures, despite the fact that they are those that pay the full cost of the measures imposed Hence, the imposition of anti-dumping measures results in the increase of price, which is likely to be condemned as a protectionism to domestic industry rather than for the deeds of community Therefore, before deciding to apply anti-dumping measures, the competent authority should take into account the opinions provided by the consumers of the products imposed anti-dumping measures 2.5 Conclusions The legal framework of anti-dumping proceedings is an effective tool to implement substantive rules so as to protect the domestic economy from foreign unfair trade practice In order to form a transparent and efficient anti-dumping legal system, Vietnam must establish a consistent procedural mechanism in accordance with the WTO rules regarding anti-dumping proceedings Even though Vietnamese anti-dumping proceedings are quite relevant to the Anti-dumping Agreement, there are still some loopholes and drawbacks laying in the procedural rules Therefore, the proposals suggested above by the author wish to make some improvement to the national rules regarding anti-dumping procedures fully consistent with the ADA 60 CONCLUSIONS Since the accession to WTO, Vietnam has made a significant change in the awareness of constructing the legal system in relevance with the socio-economic environment as well as the global trade Changing the mindsets about legal development in the globalization era means meeting the following criteria: (i) The national legal policy must be clear and consistent with the principles and regulations of WTO law Those legal documents detailing the implementation of laws must be unified and consistently explanatory, (ii) the process of drafting, construction, and promulgation of legal documents must be conducted in a transparent, detailed and clearest manner Every legal policy shall be widespread into all classes of the society, in order to collect various ideas from citizens such as individuals, organizations and interested persons as well as concerned specialists In addition, the national legal system must maintain the stability, consistency and last for a long period Since Vietnam is still a young country in the establishment and application of anti-dumping legislation, drawbacks arising within the system, especially in procedural regulations, are unavoidable However, as to fully make integration to the global trade, it is in need to build up a concrete legal framework with regard to anti-dumping procedures on the journey of protecting the domestic industry from unfair trade practice Therefore, the thesis gives a number of proposals with a hopeful purpose to give some amendments to the existing rules of the national antidumping proceedings Moreover, the recommendations aim to enhance the strength of Vietnamese anti-dumping law as well as make an improvement to the transparency in the trade remedies system In summary, despite the existence of some drawbacks and looseness, Vietnamese anti-dumping proceedings stipulated in the ADO and its detailing documents still shed light on the development of the national anti-dumping system Along with experiences learned from expert actors in the anti-dumping field and the authority’s efforts to maintain the stability of the domestic economy, the anti- 61 dumping law of Vietnam is supposed to be executed more frequently in an appropriate extent i BIBLIOGRAPHY A Vietnamese materials I National legislations The Constitutional 1992 Trade Law 1997 The Amendment and Revision of the Law on Import and Export Duties passed by the National Assembly in May 1998 Law on Price 2001 Resolution 48/2001 /NQ-QH10 adopted by the National Assembly on the Ratification of Vietnam-U.S Bilateral Trade Agreement dated 28/11 /2001 Circular of the Government Office No 226/VPCP/PC regarding the instruction of the Prime Minister to the Ministry of Trade to preside the drafting of the text of Anti-dumping Ordinance and assign the Minister of Trade to establish Legislative Committee on drafting Anti-dumping Ordinance, 14 January 2002 Ordinance against dumping of imported goods into Vietnam No 20/2004/PL-UBTVQH11 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luật”, Journal of State, (4) IV Reports, working papers, etc 22 quốc Lâm Quỳnh Anh (2016), “Những thành tựu tiến trình hội nhập kinh tế tế Việt Nam”, Ministry of Foreign [http://www.mofahcm.gov.vn/vi/mofa/nr091019080134/ns120222162217] Affairs iii 23 Interdisciplinary steering committee of international integration on economy (2015), “Tóm tắt q trình Việt Nam gia nhập WTO” [http://hoinhapkinhte.gov.vn/vi/hoi-nhap-quoc-te/to-chuc-thuong-mai-the-gioiwto/viet-nam-va-wto/tom-tat-qua-trinh-viet-nam-gia-nhap-wto.372691.aspx] 24 Peter Naray (2006), “Commitments of Vietnam to the WTO and Impacts of Non-economy market on Vietnam” (Cam kết Việt Nam WTO Tác động vị kinh tế phi thị trường Việt Nam), in Bùi Ngọc Thanh (2006), “Vietnam’s accession to the WTO: Advantages, Challenges and The National Assembly’s Role” (Việt Nam gia nhập WTO: Thuận lợi, thách thức vai trò Quốc hội) 25 The Standing Committee of National Assembly (2015), “Báo cáo giám sát: “Kết hội nhập kinh tế quốc tế từ Việt Nam thành 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[http://cpv.org.vn/tiengviet/tulieuvankien/vankiendang/details.asp?topic=191&subto pic=8&leader_topic=226&id=BT2280560851 ] Vietnam Chamber of Commerce and Industry (VCCI), “Cold rolled stainless 30 steel” (Thép không rỉ cán nguội), WTO Center, (2013) [http://chongbanphagia.vn/thep-khong-gi-can-nguoi-n4381.html] 31 VCCI, “Galvanized Steel” (Tôn mạ), WTO Center, (2016) [http://chongbanphagia.vn/thep-ma-ton-ma-n14752.html] 32 Official Letter 6172/VPCP-TCQT of the Office of Government dated 18/12/2001 B Foreign materials I Legislations 33 General Agreement on Tariffs and Trade (GATT) 34 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (ADA) 35 Australia Act 36 Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community 37 Council Regulation (EC) No 2331/96 of December 1996 38 Council Regulation (EC) No 905/98 of 27 April 1998 39 Council Regulation (EC) No 2238/2000 of October 2000 40 Council Regulation (EC) No 1972/2002 of November 2002 41 Council Regulation (EC) No 461/2004 of March 2004 42 The U.S Code: Title 19 – Customs Duties of US law regarding anti-dumping (19.U.S.C) II Books & Dissertations 43 Adersen, Hendrick (2009), “EU Dumping Determinations and WTO Law”, Kluwer Law International 44 Catherine DeFilippo (2015), “Antidumping and Countervailing Duty Handbook”, United States International Trade Commission, (14), Publication 4540 v 45 Czako, Judith & Human, Johann & Miranda, Jorge (2003), “A Handbook on Anti-dumping Investigations”, Cambridge University Press, Word Trade Organization 46 Guzman, Andrew T & Sykes, Alan O (2007), “Research Handbook in International Economic Law”, Edward Elgar Publishing, Inc., Massachusetts, the USA 47 Kotsiubska, Vikitoriia (2011), “Public Interest Consideration in Domestic and International Anti-dumping Disciplines”, MLE11 Thesis, World Trade Institute 48 Lindsey, Brink & Ikenson, Daniel J (2003), 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