SETTLEMENT OF ANTI DUMPING DISPUTES WITHIN THE WTO FRAMEWORK AND THE PARTICIPATION OF DEVELOPING COUNTRIES AND VIETNAM – THEORETICAL AND PRACTICAL ISSUES

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI UNIVERSITY OF LAW NGUYEN THI THU HIEN SETTLEMENT OF ANTI-DUMPING DISPUTES WITHIN THE WTO FRAMEWORK AND THE PARTICIPATION OF DEVELOPING COUNTRIES AND VIETNAM – THEORETICAL AND PRACTICAL ISSUES Speciality: International Law Ref Code No.: 62 38 01 08 SUMMARY OF THE DOCTORAL DISSERTATION HÀ NỘI - 2014 THE AUTHOR’S PUBLICATION LIST REGARDING TO THE DOCTORAL THESIS The thesis was completed at: HANOI UNIVERSITY OF LAW Nguyen Thi Thu Hien, (2011), Identifying principal legal Supervisor: Assoc Prof., Dr Hoang Phuoc Hiep features of anti-dumping disputes within the WTO, Jurisprudence Journal, No.8/2011, p 38-43 & p 24 Reviewer 1: Prof., Dr Le Hong Hanh Reviewer 2: Assoc Prof., Dr Tang Van Nghia Reviewer 3: Assoc Prof., Dr Dinh Ngoc Vuong Nguyen Thi Thu Hien, (2012), Historical development of the Rules on the Resolution of Anti-dumping disputes within the WTO, Jurisprudence Journal, No.10/2012, p 24-30 Nguyen Thi Thu Hien, (2013), Anti-dumping disputes settlement within the WTO – a comparison with dumping disputes settlement at national level, State and Law Review , No.6(302)/2013, p 61-67 The thesis is upholding at the University Doctoral thesis Examination Board, meeting at Hanoi University of Law The last (hour) on (date/month), 2014 The thesis can be found at: 1) The National Library 2) The Library of Hanoi University of Law INTRODUCTION Following the guidelines set forth by the Political Party, considering Vietnam’s recent participation in anti-dumping Rationale of the research paper cases as well as the exigent requirements of Vietnam, etc., there In current international trade practice, anti-dumping is clearly a highly urgent need for the doctoral research disputes have become increasingly popular and complex "Settlement of anti-dumping disputes within the WTO Facing this phenomenon, in addition to finding ways to deal framework and the participation of developing countries and with anti-dumping investigation and imposition of anti- Vietnam – Theoretical and practical issues”, which is both dumping duties overseas, Members of the World Trade theoretically and practically valuable Organization (WTO) actively resort to appropriate mechanisms The subjects and scope of research to protect their legitimate rights and interests The Dispute Subjects of the thesis include: the formation and Settlement Mechanism (DSM) of the WTO is thought to be one development history and the application of international law in of the most effective mechanisms at present anti-dumping dispute settlement at the WTO; the WTO's On 11/01/2007, Vietnam officially became the 150th current conceptions on anti-dumping issue, anti-dumping Member of the WTO Studying the WTO law and actively disputes and international law applicable to the anti-dumping participating in international economic integration as well as in dispute settlement; the content of general and specific legal resolving international disputes become a key task set out by issues of the international law applicable to anti-dumping the Political Party and the State in various documents In fact, dispute settlement at the WTO; the practices of the WTO anti- by the end of 12/2013, Vietnam has participated in nine out of dumping dispute settlement; the practices of participation of a nineteen anti-dumping lawsuits involving Vietnam at the WTO number of developing countries, and Vietnam, in anti-dumping In each dispute, Vietnam, at a certain level, actively dispute settlement at the WTO participated in the DSM of the WTO However, Vietnam’s Issues on anti-dumping disputes and the settlement participation has been limited due to the complexity of the mechanism within the WTO framework are complex, therefore, disputes as well as its ineffective coordination mechanism This require a wide scope of research Within the limited length for a reality puts out an urgent request on the need for a thesis, the author may only focus on some issues such as: (1) comprehensive study on the practice of law applicable to anti- the formation and development history and the application of dumping dispute settlement within the WTO framework as well international law in anti-dumping dispute settlement at the as the coordination mechanism among Vietnam’s agencies at WTO; (2) current conceptions of the WTO on anti-dumping, home and overseas in this field anti-dumping disputes and international law applicable to antidumping dispute settlement; (3) general and specific legal issues of international law applicable to anti-dumping dispute developing countries as well as their practices of participation settlement, focusing on distinctive characteristics of anti- in anti-dumping dispute settlement, and of Vietnam in dumping dispute settlement and the scope of anti-dumping particular; on that basis, suggests solutions that can help dispute issues referred to the Dispute Settlement Body (DSB) improve the effectiveness of participation of Vietnam in the Although all dispute settlement methods within the WTO WTO anti-dumping dispute settlement framework will be mentioned, the author will focus on discussing anti-dumping dispute settlement at the DSB/WTO; To accomplish such objectives, the thesis proposes the following tasks of research: (4) the WTO’s practices of anti-dumping dispute settlement in - Analysing various views on anti-dumping issue and general and the in-practice participation of India, China, anti-dumping dispute settlement, and fundamental theoretical Thailand and Vietnam in this field issues of international law applicable to anti-dumping dispute Methodology and research methods settlement within the WTO framework; To further clarify the above-mentioned issues, the thesis - Synthesising, analysing and evaluating practices of anti- is done on the basic of using scientific research methods such dumping dispute settlement at the WTO; focusing on the as: the method of dialectical materialism, historical materialism analysis of a number of cases and identifying shortcomings of combined with systematic approach, synthesis methods, the current regime; analysing and assessing the participation of analytical methods, statistical methods, methods of comparison India, China, Thailand and Vietnam in anti-dumping dispute and contrast, combining theoretical with practical studies to settlement at the WTO to present the experience lessons; provide specific and feasible solutions In this thesis, the - Analysing fundamental views and guidlines to suggest comparative method is utilized in most of the chapters, solutions that can help improve the effectiveness of especially in Chapter whenever related legal terms are participation of Vietnam in anti-dumping dispute settlement at compared Similarly, the method of combining theoretical with the WTO practical research is used throughout the entire content of the New research findings of the doctoral dissertation thesis Methods of synthesis and analysis are used to - The thesis further clarifies the WTO’s current conception complement comparative method on anti-dumping disputes by distinguishing these disputes The objectives and tasks of research within the WTO framework with: (i) "dumping disputes" and The objectives of the thesis is to further clarify the "anti-dumping disputes" under the national law of a Member theoretical and practical issues through a comprehensive and country, and; (ii) "anti-subsidy disputes" and "safeguard systematic research into issues relating to anti-dumping dispute disputes" These terms are often easily confused, therefore, the settlement within the WTO framework, the position of thesis helps to clarify and distinguish them; - The thesis contributes to clarifying the content and recommendations for Vietnam as either a plaintiff, defendant or distinctive characteristics of the international law applicable to third party in WTO anti-dumping cases anti-dumping dispute settlement in comparison with the law The structure of the thesis applicable to the settlement of international trade disputes at the WTO; - The thesis contributes to clarifying the interactive relationship between anti-dumping dispute settlement under the WTO law and dumping dispute settlement under the national law of a Member country; The thesis consists of an introduction, main content, conclusion, bibliography and appendices The main content of the thesis is organized into four chapters, each ends with a subconclusion, namely: Chapter 1: Overview on researches abroad and in Vietnam regarding to the doctoral dissertation topic - The thesis further clarifies the scope and characteristics Chapter 2: Theoretical issues of anti-dumping disputes of the four anti-dumping dispute issues referred to the DSB, and of international law applicable to anti-dumping dispute including disputes over definitive anti-dumping duties, disputes settlement at the WTO over the acceptance of a price undertaking, disputes over Chapter 3: The WTO’s practices of anti-dumping dispute provisional measures, and disputes over the inconsistency of the settlement and the participation of developing countries and national law of a Member country with the WTO Anti-dumping Vietnam Agreement (ADA); - The thesis speculates trends in the development of international law applicable to anti-dumping dispute settlement Chapter 4: Direction and solutions for improving the effectiveness of Vietnam's participation in anti-dumping dispute settlement at the WTO at the WTO; - The thesis analyses the practices of anti-dumping dispute settlement at the WTO; draws participating experiences of India, China and Thailand; and points out the current reality and MAIN CONTENT OF THE THESIS reasons for the limited participation in resolving these disputes of developing countries in general and that of Vietnam in particular; - Based on theoretical and practical analyses, the thesis presents lessons and suggests new feasible solutions that can help improve the effectiveness of participation of Vietnam in WTO anti-dumping dispute settlement, especially specific CHAPTER I OVERVIEW ON RESEARCHES ABROAD AND IN VIETNAM REGARDING TO THE DOCTORAL DISSERTATION TOPIC 1.1 Researches in other countries In other countries, there have been many studies on the can help improve the effectiveness of participation of Vietnam issue of anti-dumping dispute settlement within the WTO in the WTO anti-dumping dispute settlement framework and the participation of developing countries Some 1.2 Researches in Vietnam authors and publications are: (i) J.G Merrills (2011), Before, at the time and after Vietnam joined the WTO, in International Dispute Settlement, 5th ed., Cambridge University Vietnam, there have been many studies related to the issue of Press; (ii) James P Durling (2002), Matthew R Nicely, anti-dumping dispute settlement within the WTO framework Understanding Agreement: and the participation of developing countries and of Vietnam Negotiating History and Subsequent Interpretation, Cameron taking both theoretical and practical approaches, which includes May Ltd.,; (iii) David Palmeter, Petros C Mavroidis (2004), Bui Anh Thuy’s Ph.D thesis "International trade dispute Dispute settlement in the World Trade Organization: Practice settlement mechanism of the WTO " and Vu Thi Phuong Lan’s and procedure, 2nd ed., Cambridge: Cambridge Univ.,; (iv) Ph.D thesis "Law on anti-dumping in international trade and Peter Van den Bossche (2008), The Law and Policy of the the problems posed for Vietnam" Additionally, there have been the WTO Anti-Dumping nd ed., a number of master theses and researches that addressed this Cambridge University Press; (v) Terence P Stewart (1993), issue Moreover, in terms of reference books, there are: (i) Dr The GATT Uruguay Round: A negotiating history (1986-1992), Nguyen Vinh Thanh and MSc Le Thi Ha (2006), Developing Volume II: Commentary, Deventer: Kluwer Law and Taxation countries and the dispute settlement mechanism of the WTO, Publishers, etc In addition, there are other materials posted on Social Labor Publishing House; (ii) The Multilateral Trade various websites and some have been translated into Assistance Project Period II (EU-VIETNAM MUTRAP II) Vietnamese such as the book "Handbook of WTO Dispute (2007), The position, role and mechanism of the WTO in the Settlement", a translation of the National Committee for multilateral trading system; (iii) VCCI (2010), Anti-dumping International Economic Cooperation (2006), etc disputes in the WTO; (iv) Faculty of Law, Can Tho University World Trade Organization: Text, Cases and Materials, Although the issue of international trade dispute (2010), Summary of typical WTO disputes - Report of the settlement in general and anti-dumping dispute settlment within Panel and the Appellate Body from 1995 to 2010 year, etc the WTO framework in particular have been mentioned in Among studies in smaller scale, there are (i) Article "WTO’s many studies abroad, so far there is yet an academic research dispute settlement mechanism: from the perspective of that looks into both the theoretical and practical aspects of the developing countries" by Ly Van Anh on the Journal of issue of anti-dumping dispute settlement under the WTO and International Studies, issue (61), 2005; (ii) Article "WTO’s the participation of developing countries, and that addresses the dispute settlement mechanism and some suggestions for specific case of Vietnam to propose new feasible solutions that Vietnam" by Nguyen Vinh Thanh and Pham Thanh Ha on the 10 Journal of Africa & Middle East Research, Issue 8, 2006; (iii) countries and Vietnam; combined and analysed the experiences Article "Anti-dumping cases and WTO’s dispute settlement of some developing countries participating in anti-dumping mechanism " by Bui Anh Thuy on the Journal of State and dispute settlement to identify the causes and propose specific Law, Issue 2, 2007; (iv) Article "Anti-dumping dispute solutions settlement within the WTO framework" by Nguyen Linh Giang participation in anti-dumping dispute settlement at the WTO on the Journal of State and Law, Issue 3, 2008; (v) Article Especially, there is not yet any research at the doctorate level "Preferences for developing countries on the WTO trade that analyses both theoretical and practical aspects of the issue disputes settlement mechanism to that lawyers should pay of anti-dumping dispute settlement within the WTO framework attention" by Nguyen Thi Thu Hien on the Legal Professions and the participation of developing countries in which the case Review, Issue 3/2009; (vi) Article "Agency in charge and the of Vietnam is specifically focused coordination 1.3 Issues that require further research and tackling mechanism in WTO dispute settlement: experiences for Vietnam" by Nguyen Thanh Tu on the Journal to improve the effectiveness of Vietnam's methods of State and Law, Issue 10/2012, etc Also, there are numerous Firsly, regarding the theoretical aspects: postings on various websites, etc - Analysing and assessing of development trends of Overall, the studies in Vietnam, either focus mainly on analyzing anti-dumping issue or anti-dumping law in general; or focus on the general dispute settlement mechanism of the WTO, taking into consideration cases of other developing international law applicable to anti-dumping dispute settlement within the WTO framework; - Clarifying the WTO’s current conception of antidumping disputes; assessed - Clarifying the content and distinctive characteristics of comprehensively anti-dumping disputes; concepts, content and international law applicable to anti-dumping dispute settlement development trends of international law applicable to anti- within the WTO framework; countries and Vietnam They have yet dumping dispute settlement within the WTO framework; - Clarifying the interactive relationship between anti- attitudes of different groups of countries towards anti-dumping dumping dispute settlement under the WTO law and under the disputes; the interactive relationship between anti-dumping national law of a Member country; dispute settlement under the WTO law and under the national law of a Member country; concepts, nature and characteristics - Clarifying the concept and characteristics of the four types of anti-dumping dispute issues referred to the DSB of the four specific types of disputes that can be resolved at the Secondly, regarding the practical aspects: DSB; updated on the practices of anti-dumping dispute - Analysing and evaluating comprehensively the practices settlement at the WTO, the participation of developing of anti-dumping dispute settlement at the WTO; 11 - Clarifying how developing countries are participating in anti-dumping dispute settlement at the WTO in reality; - Specifically studying the participation of India, China and Thailand; 12 Anti-dumping means that the competent authorities of the importing country impose appropriate measures that directly impact imported dumping products in order to remove the harm that such products cause for the domestic industry producing - Studying the participation of Vietnam Thirdly, making proposals and suggesting solutions: like products According to the national law of a Member on anti- - Clarifying the basic views and directions to improve the dumping, there are two different types of disputes related to effectiveness of Vietnam's participation in anti-dumping dispute anti-dumping: (1) "dumping disputes" are disputes between settlement at the WTO; businesses exporting dumping products and domestic producers - Suggesting new feasible solutions that can help improve of the importing country producing products that are similar to the effectiveness of participation of Vietnam in the WTO anti- the imported dumping products; and (2) "anti-dumping dumping dispute settlement disputes" are disputes between private businesses (foreign exporters) with the government (the importing country that CHAPTER THEORETICAL ISSUES OF ANTI-DUMPING imposes anti-dumping measures) on the application of antidumping measures DISPUTES AND OF INTERNATIONAL LAW Within the WTO framework, an anti-dumping dispute is APPLICABLE TO ANTI-DUMPING DISPUTE a disagreement among WTO Members on issues relating to the SETTLEMENT AT THE WTO legal rights and obligations in the field of anti-dumping under 2.1 The history of formation and development and the application of international law appicable to anti-dumping the WTO agreements Anti-dumping disputes that are resolved at the WTO have dispute settlement at the WTO the following basic characteristics: (i) Being secondary 2.1.1 The period before 1947 disputes; (ii) Being disputes among WTO members; (iii) Being 2.1.2 The period from 1947 to 1995 limited in scope to four disputing issues related to either 2.1.3 The period from 1995 to date definitive anti-dumping duties, the acceptance of a price 2.2 The WTO’s current conception of anti-dumping, anti- undertaking, provisional measures, or the inconsistency of the dumping disputes and international law applicable to anti- national law of a Member country with the ADA; (iv) the legal dumping dispute settlement basis for anti-dumping dispute settlement, both substantive and 2.2.1 The WTO’s current conception of anti-dumping and procedural, will comply with the international law applicable to anti-dumping dispute anti-dumping dispute settlement at the WTO 13 14 "Anti-dumping dispute" under WTO law has some 2.3.3 The interactive relationship between anti-dumping fundamental distinctive features comparing with "dumping dispute settlement under the WTO law and under the national disputes" and "anti-dumping disputes" under the national law of law of a Member country In theory as well as in practice, the anti-dumping dispute a Member country, as well as comparing with "anti-subsidy disputes” and "safeguard disputes " settlement under the WTO law is the subsequent process of 2.2.2 The WTO’s current conception of international law anti-dumping dispute settlement between businesses under the applicable to anti-dumping dispute settlement national law of a Member country, which subsequently The WTO anti-dumping dispute settlement, becomes a dispute between governments This leads to overlaps substantively, will be based primarily on WTO rules, in and close link between the two types of dispute settlement particular Article VI of GATT 1994 and the ADA, along with However, despite the existence of such a relationship, there are other sources such as international practices; general principles still fundamental differences between them of law; WTO practices and reports of Panels and the Appelate 2.4 The content of specific issues regarding international Body on dispute settlement; practices of GATT 1947 and law applicable to anti-dumping dispute settlement at the Panel's reports; documents issued by the WTO bodies; other WTO international agreements; doctrines suggested by reputed 2.4.1 The scope of dispute referred to the DSB scholars Meanwhile, regarding the proceedings, dispute Anti-dumping disputes referred to the DSB are limited to settlement will comply with the DSU, and additionally, special four types: disputes over definitive anti-dumping duties, the rules and procedures stipulated in Article 17.4 to 17.7 of the acceptance of a price undertaking, provisional measures, and ADA as well as other relevant procedural provisions of the the inconsistency of the national law of a Member with the WTO ADA The above mentioned disputes must be identified clearly 2.3 The content of general issues regarding international in complainant’s request for establishment of a panel under law applicable to anti-dumping dispute settlement at the Article 17.4 of the ADA and Article 6.2 of the DSU WTO 2.4.2 The content of some other specific issues regarding 2.3.1 The DSM of the WTO –Fundamental applicable law for anti-dumping dispute settlement at the WTO anti-dumping dispute settlement at the WTO 2.3.2 Special and differential treatment in the DSM of the WTO for developing countries CHAPTER THE WTO’S PRACTICES OF ANTI-DUMPING DISPUTE SETTLEMENT AND THE PARTICIPATION OF DEVELOPING COUNTRIES AND VIETNAM 15 16 3.1 The WTO’s practices of anti-dumping dispute 3.2.3 Practices of Thailand’s participation in the WTO anti- settlement dumping dispute settlement Thailand officially became a member of the WTO from 3.1.1 The WTO’s practices of anti-dumping dispute settlement in general Practices of anti-dumping dispute settlement shows that anti-dumping dispute is the most common type of disputes 01/01/1995 In DSM under GATT, Thailand did not have much experience Only in the WTO, Thailand increasingly utilizes the WTO’s DSM to protect its interests resolved within the WTO framework While some developing From the practices of participation of India, China and Members participate very actively in resolving international Thailand in the WTO anti-dumping dispute settlement, it shows trade disputes as well as anti-dumping ones, many other that: developing Member not participate or only participate very - Participating as a third party is a clear demonstration of limitedly the capacity building strategy and of the policy "learning by 3.1.2 Practices of anti-dumping dispute settlement in doing"; different stages of DSM proceedings - Being confident and well-prepared when participating 3.2 Practices of participation of some developing countries in resolution of complex anti-dumping disputes is essential for in anti-dumping dispute settlement at the WTO and victory; noteworthy lessons - Forming linkages and support among developing 3.2.1 Practices of India’s participation in the WTO anti- countries, while taking advantage of the support of other dumping dispute settlement countries will increase the leverage in the WTO anti-dumping India is a founding member of both the GATT and the dispute settlement; WTO, therefore, while most developing countries take a rather - Utilizing effectively a team of international experts in reserved approach to the WTO’s DSM, India has participated fields related to the anti-dumping disputes However, in the very actively in DSM under both GATT and the WTO long run, it is necessary to develop a team of national experts in 3.2.2 Practices of China's participation in the WTO anti- order to maximize the advantages as well as protect nation’s dumping dispute settlement confidentiality while participating in the WTO anti-dumping After officially joining the WTO, with a most rapidly dispute settlement; developing economy in the world, China quickly becomes a - Increasing the capacity of the government’s and private "main player" in the WTO’s "playing field" China also quickly sector’s experts to participate general international trade becomes a frequent participation in WTO anti-dumping cases disputes, and anti-dumping disputes in particular; training and both as plaintiff and defendant appointing qualified individuals to the relevant bodies in the 17 18 WTO’s DSM; increasing the capacity and participation of trade - Vietnam has also been developing domestic human associations and chambers of commerce in resolving WTO resources for future disputes although it still relies heavily on disputes, including anti-dumping disputes foreign lawyers 3.3 Practices of Vietnam’s participation in the WTO antidumping dispute settlement CHAPTER By the end of 12/2013, Vietnam has participated in nine DIRECTION AND SOLUTIONS FOR IMPROVING THE anti-dumping cases at the WTO, of which in seven cases EFFECTIVENESS OF VIETNAM'S PARTICIPATION IN Vietnam participated as a third party, in the two cases as a ANTI-DUMPING DISPUTE SETTLEMENT AT THE plaintiff and not yet involved in any disputes as a defendant WTO From the practices of Vietnam's participation in the WTO 4.1 Fundamental views and direction for improving the anti-dumping dispute settlement, following remarks can be effectiveness of Vietnam's participation in the WTO anti- drawn: dumping dispute settlement - Vietnam has participated gradually, proactively, The solutions to improve the effectiveness of Vietnam's positive in the WTO’s DSM However, Vietnam has not yet participation in the WTO anti-dumping dispute settlement are fully taken advantage of WTO privileges for developing proposed consistently with the views and guidelines of the countries; Party and the State on proactive participation in international - Vietnam has rightly identified the scope and issues to economic integration, and in resolving international disputes sue on However, timing selection was not effective in some and also with specific conditions of Vietnam situations, which was one of the reasons for Vietnam’s 4.2 Solutions and specific suggestions for improving the incomplete victory in case DS404; effectiveness of Vietnam's participation in the WTO anti- - Vietnam has actively participated as a third party in other WTO members’ cases to gain valuable experience; - Vietnam has succeeded in seeking and taking advantage of other members’ support; - Vietnam has made active preparation, efforts came from dumping dispute settlement 4.2.1 General solutions for improving the effectiveness of Vietnam's participation in the WTO anti-dumping dispute settlement General solutions mainly focus on three important both the private sectors, trade associations and from state groups, include: taking advantages of preferences for agencies in a number of recent disputes; developing Member within the WTO; building and improving the capacity on participation of dispute settlement; taking advantages of other Members’s and the ACWL’s support 19 20 General solutions are ones that can be applied as Vietnam development with the GATT 1947 and the WTO It includes participates in the DSM/WTO regardless of its role as a both law on general WTO dispute settlement and specifically plaintiff, defendant or third party, in which, besides improving tailored provisions for anti-dumping disputes over definitive the effectiveness of currentlyimplemented measures, it is anti-dumping duties, the the acceptance of a price undertaking, important to increase the effectiveness of coordination provisional measures and the inconsistency of the national law mechanism between domestic ministries and agencies with the of a Member country with the ADA Vietnam’s delegation in Geneva in resolving international trade Developing Members have been establishing their role disputes in general and the WTO anti-dumping disputes in and position in the WTO anti-dumping dispute settlement particular When they participate in the settlement process of the WTO 4.2.2 Some specific suggestions to Vietnam when participate anti-dumping disputes, developing Members have many in the WTO anti-dumping dispute settlement as a plaintiff, opportunities but also face great challenges Anti-dumping defendant or third party disputes are inherently extremely complex, therefore, In addition to the general solutions, Vietnam also needs developing Member should study thoroughly the WTO’s to develop specific solutions and strategies when participating applicable law and practices as well as learn from the other in WTO anti-dumping disputes settlement at the WTO as a Members’ experience to develop an effective approach and to plaintiff, defendant or third party participate proactively in the WTO anti-dumping dispute settlement system Practices of the WTO anti-dumping dispute settlement CONCLUSION show an increase in both the quantity and the complexity of the Anti-dumping dispute is one of the most common types disputes Additionally, it also shows the active participation of disputes at the WTO The settlement of such disputes must some developing countries, namely India, China and Thailand comply with WTO applicable law, including both substantive The experience of three countries is valuable for Vietnam when and procedural rules Sources of law applicable to the WTO participating in the WTO anti-dumping dispute settlement anti-dumping dispute settlement correspond to the sources of After more than seven years of joining the WTO, the WTO law, which is basically based on traditional principles Vietnam's participation in the DSM of the WTO is still limited set forth in Article 38 (1) of the Statue of the International Obviously, Vietnam needs to put more effort, and actively learn Court of Justice from the experience of other Members to set out feasible International law applicable to anti-dumping dispute settlement at the WTO has a parallel history of formation and solutions to improve the effectiveness of its participation in the WTO anti-dumping dispute settlement 21 22 Solutions to improve the effectiveness of Vietnam’s - Participating more actively in the DSM of the WTO as participation in the WTO anti-dumping dispute settlement must well as take advantages of the WTO’s preferences for be built consistently with the views and guidelines of the developing countries; Political Party and the State which encourage proactive - Preparing by obtaining knowledge relevant to the WTO participation in international economic integration, and in anti-dumping dispute settlement, proactively learn from the resolving international disputes, and also consistently with experiences of other countries; basic orientations as follow: - Being based on results of objective and comprehensive assessment and predictive studies of trends and development of anti-dumping dispute settlement within the WTO framework; - Encouraging the active role of enterprises and promote collaboration between enterprises, associations and competent state agencies; - Establishing an effective mechanism of cooperation - Responding to specific conditions of Vietnam; between domestic agencies and the Vietnam’s delegation in - Being comprehensive and systematic, including both Geneva; preventive and corrective solutions to deal with anti-dumping - Establishing a training strategy to develop the disputes once they arise settlement within the WTO framework, workforce, allowing Vietnam nationals experts to participate placing the focus on preventing such disputes from arising; more comprehensively in WTO bodies as well as in panels and - Being built on the foundation of an effective the AB; cooperation mechanism between the State, enterprises and - Enlisting other members’ support; business associations; between domestic agencies and the - Utilizing more effectively the consultancy and Vietnam’s delegation in Geneva; assistance from the ACWL - Combining legal measures with other supportive When participating in a WTO anti-dumping case as a measures such as lobbying or forming alliance with same sided plaintiff, Vietnam should adopt some specific solutions as the parties, while at the same time taking induce the public to following: support Vietnam’s position; - Combining utilizing internal human resources with enlisting external supports, including the consultancy and assistance of the ACWL - Identifying the scope and timing of petition and chose the right issues; - Paying attention to and utilizing consultation more effectively; When involved in a WTO anti-dumping case, either as a - Preparing proactively and focus on the panel stage, from plaintiff, defendant or third party, Vietnam should adopt the preparing the request for the establishment of a panel to the following solutions: entire proceedings at the panel stage; 23 24 - Preparing in advance for appealing the case as - Taking advantage of defendant’s rights in resolving necessary, as well as for the posibility that the case will be dispute at the WTO; extending the deadlinesas far as allowed if appealed, to pursue the lawsuit until last win; necessary, while at the same time negotiating with or pressuring - Proactively coming up with a scheme to oversee the implementation the DSB's decisions by the losing party, including the posibility of imposing retaliatory measures if Vietnam is in the wining side; - Actively preparing both the finance and human the opponent or rapidly completing the anti-dumping investigation being conducted at home; - Preparing a plan for implementation of the DSB’s decisions in a reasonable manner in the situation of Vietnam loses the case resources for a long way pursuing a case; being active in If Vietnam participates as a third party in a WTO anti- presentation and debate at the meeting of the Panel; analysing dumping dispute: it should engage with a serious and proactive and identifying the situation and anticipate possible requests attitude, considering it a real experience as the disputing parties, and proposals of defendants to be able to respond effectively, not just a game with no string attached Vietnam should thus maximizing Vietnam’s legitimate interests establish groups of experts and/or lawyers, including lawyers of If Vietnam participates as a defendant in a WTO anti- private law firms, to represent Vietnam and building strategy dumping case, Vietnam should adopt some specific solutions as plans to participate effectively In addition, Vietnam should the following: establish an effective reporting mechanism, update information (1) To prevent being sued: of other partners, collect lessons and experiences after each - Regularly conducting periodical and spontaneous anti-dumping dispute in which Vietnam participates as a third review of the implementation of the ADA and Vietnam’s antidumping legislation to ensure the conformity of Vietnamese law with the ADA; - Actively participating in the improving the WTO’s law and DSM, including issues related to anti-dumping dispute settlement; - Confidently imposing anti-dumping measures on imported dumping products (2) If being taken to the DSB: - Willingly participating in the proceedings; party / [...]... approach and to plaintiff, defendant or third party participate proactively in the WTO anti- dumping dispute settlement system Practices of the WTO anti- dumping dispute settlement CONCLUSION show an increase in both the quantity and the complexity of the Anti- dumping dispute is one of the most common types disputes Additionally, it also shows the active participation of disputes at the WTO The settlement of. .. international trade Developing Members have been establishing their role disputes in general and the WTO anti- dumping disputes in and position in the WTO anti- dumping dispute settlement particular When they participate in the settlement process of the WTO 4.2.2 Some specific suggestions to Vietnam when participate anti- dumping disputes, developing Members have many in the WTO anti- dumping dispute settlement. .. dispute settlement at the WTO has a parallel history of formation and solutions to improve the effectiveness of its participation in the WTO anti- dumping dispute settlement 21 22 Solutions to improve the effectiveness of Vietnam s - Participating more actively in the DSM of the WTO as participation in the WTO anti- dumping dispute settlement must well as take advantages of the WTO s preferences for... views and direction for improving the anti- dumping dispute settlement, following remarks can be effectiveness of Vietnam' s participation in the WTO anti- drawn: dumping dispute settlement - Vietnam has participated gradually, proactively, The solutions to improve the effectiveness of Vietnam' s positive in the WTO s DSM However, Vietnam has not yet participation in the WTO anti- dumping dispute settlement. .. disputes must some developing countries, namely India, China and Thailand comply with WTO applicable law, including both substantive The experience of three countries is valuable for Vietnam when and procedural rules Sources of law applicable to the WTO participating in the WTO anti- dumping dispute settlement anti- dumping dispute settlement correspond to the sources of After more than seven years of. .. 12/2013, Vietnam has participated in nine DIRECTION AND SOLUTIONS FOR IMPROVING THE anti- dumping cases at the WTO, of which in seven cases EFFECTIVENESS OF VIETNAM' S PARTICIPATION IN Vietnam participated as a third party, in the two cases as a ANTI- DUMPING DISPUTE SETTLEMENT AT THE plaintiff and not yet involved in any disputes as a defendant WTO From the practices of Vietnam' s participation in the WTO. .. 18 WTO s DSM; increasing the capacity and participation of trade - Vietnam has also been developing domestic human associations and chambers of commerce in resolving WTO resources for future disputes although it still relies heavily on disputes, including anti- dumping disputes foreign lawyers 3.3 Practices of Vietnam s participation in the WTO antidumping dispute settlement CHAPTER 4 By the end of. .. being sued: of other partners, collect lessons and experiences after each - Regularly conducting periodical and spontaneous anti- dumping dispute in which Vietnam participates as a third review of the implementation of the ADA and Vietnam s antidumping legislation to ensure the conformity of Vietnamese law with the ADA; - Actively participating in the improving the WTO s law and DSM, including issues related... joining the WTO, the WTO law, which is basically based on traditional principles Vietnam' s participation in the DSM of the WTO is still limited set forth in Article 38 (1) of the Statue of the International Obviously, Vietnam needs to put more effort, and actively learn Court of Justice from the experience of other Members to set out feasible International law applicable to anti- dumping dispute settlement. .. consistently with the views and guidelines of the developing countries; Political Party and the State which encourage proactive - Preparing by obtaining knowledge relevant to the WTO participation in international economic integration, and in anti- dumping dispute settlement, proactively learn from the resolving international disputes, and also consistently with experiences of other countries; basic