In order to comply with international commitments as well as to promote the practical efficiency in the application of trade remedies, Vietnam needs to perfect its policies and laws, imp
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES
NGUYEN THU HUONG
TRADE REMEDIES UNDER FREE TRADE AGREMENTS
Mayor: Economic Law
Major code: 62 38 01 07
SUMMARY OF PHD THESIS ON LAW
HA NOI, 2017
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Trang 2The work is completed in:
VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES
Supervisor: 1 LÊ MAI THANH (PhD)
2 PHẠM THỊ THÚY NGA (PhD)
Reviewer No.1: PHD Dr NGUYEN THI MO
Reviewer No.2: Dr PHAM SY CHUNG
Reviewer No.3: Dr DINH THI MY LOAN
The thesis is put before Academy level Thesis Assessment Council meeting at: Vietnam Graduate academy of social sciences
No 477 Nguyen Trai road, Thanh Xuan District, Hanoi City
Trang 3Introduction
1 Necessity of the thesis
Free Trade Agreements (FTAs) have been becoming increasingly popular given their economic benefits, particularly in the context of limitations of global cooperation Nations have switched to bilateral cooperation and regional association in order to seek solutions for trade development of goods and services within FTAs
Vietnam is no exception to such trend International economic integration of Vietnam has been more in-depth, particularly with regard
to negotiations and signing of FTAs with numerous major trade partners
Up to date, Vietnam is a member to 10 FTAs in effect, and negotiating a number of FTAs
Objective of free trade is not only to eliminate trade barriers, tariffs, but also to protect fair competition, get rid of inappropriate trade-supporting policies of state members, protect market-oriented development among countries One of legal tools to such objectives is trade remedies Trade remedies are important and applied quite widely to protect domestic manufacturing industries, as well as guard against unfair competition from other countries
Currently, Vietnam has built laws on trade remedies through decrees on antidumping, subsidy and countervailing measures, and safeguards Such decrees have detailed legal grounds, applicable methods of trade remedies within WTO framework
However, as a member of FTAs, other than WTO standards, there are new regulations on trade remedies that Vietnam is bound to follow if resort to the application of such In order to comply with international commitments as well as to promote the practical efficiency
in the application of trade remedies, Vietnam needs to perfect its policies and laws, implementation mechanisms, heighten awareness and consciousness, as well as enhance capability to employ such legal tools
In reality, in the past 10 years, Vietnam was faced with hundreds of
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Trang 4cases relating to trade remedies applied in foreign markets On the other hand, the number of cases of investigation and application of trade remedies remains sparse, and these legal tools are not employed to protect domestic market and manufacturing industries
Hence, there is a need to analyze the particularity of trade remedies according to FTAs commitments Thereby, orientation for perfecting Vietnamese laws on trade remedies can be projected to ensure compliance with FTAs and international standards This will ensure legal certainty, as well as enhance capability to apply trade remedies with the purpose to protect domestic market and manufacturing industries, guard against unfair competition from other countries As a
result, study on “Trade remedies within Free Trade Agreements” shall
meet aforementioned demands
2 Research objectives and tasks
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Trang 5Explain mechanisms to ensure the application of trade remedies
in compliance with FTAs commitments
Analyze and assess the situation and practice of laws and its application regarding trade remedies in Vietnam
On the basis such assessments, the thesis makes proposals and recommendations to perfect laws on trade remedies of Vietnam in order
to strengthen capability, enhance effectiveness of the application, and yet still ensure the compliance with FTAs regulations on trade remedies
3 Research objects and scope
Vietnamese businesses have been slapped trade remedies in several FTAs countries, yet the thesis outlines its research scope only within the application of trade remedies in Vietnam The hypotheses and practical application in other countries offer certain implications only
The time frame of the research is since Vietnam enacted decrees: Decree No 42/2002/PL-UBTVQH10 of 25th May 2002 on safeguards against foreign goods imported into Vietnam (SG decree); Decree No 20/2004/PL-UBTVQH of 29th April 2004 on antidumping against goods imported into Vietnam (AD decree); Decree No 22/2004/PL-UBTVQH11 of 20th August 2004 on anti-subsidy against goods imported into Vietnam (AS Decree) by the Standing Committee
of the Congress (in other words, before Vietnam had become a member
to WTO) till now
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Trang 64 Methodology and research methods
To elucidate research issues, the author employs methodology
in conventional scientific research Particularly:
Meta-analysis is used to explain an hypothesis given research presumption, assess the situation as a ground to perfect laws on trade remedies in Vietnam to ensure objectivity and truthfulness This method will be used throughout the thesis
Historical method is used to identify issues relating to the formation and development of trade remedies in FTAs given Vietnam’s commitments This method is used mainly in Part 2
Systemization method is used to systemize issues have been studied relating to the topic of the thesis to identify sidelining issues in need of elucidation This method is used mainly in Part 1, 2, and 3
Statistics is used to assess the situation and practice of the law
in the application of trade remedies in Vietnam, to form the basis to analyze and provide findings and recommendations This method is used mainly in Part 3
Legal comparative method is used to assess the compatibility of the law on trade remedies in Vietnam with FTAs This method entails countries’ experience in the use of trade remedies to draw out implications for Vietnam This method is used mainly in Part 3 and partly of Part 4
Given research objects in each Chapter and section in the thesis, the author will employ and focus on different research methods properly Hence, throughout the thesis, methods to be used intertwine, and multi- and inter-disciplinary approaches offer analysis and assessment of all issues set out within the scope of the thesis
5 New points of the thesis
Firstly, the thesis has elucidated theoretical issues relating to
trade remedies under FTAs
Secondly, it has analyzed and assessed outcomes of domestic
incorporation of regulations on trade remedies under FTAs, and practice
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Trang 7of Vietnam’s application of trade remedies previously; pointed out shortcomings in the law and limited capability of mechanisms in the application of such remedies in Vietnam
Thirdly, on the basis of analysis and assessment, it has made
specific proposals in order to perfect Vietnamese law to ensure the compatibility with FTAs regulations on trade remedies, sidestep potential risks, as well as enhance capability to apply laws on trade remedies to protect domestic market in the context of that Vietnam has been/ will be a member to FTAs
6 Theoretical and practical significance of the thesis
Results of the research contribute greatly to the strengthening of theory on trade remedies in general and trade remedies under FTAs specifically
The findings in the thesis can be devoted to the research for supplementing and perfecting laws on trade remedies in the context of that Vietnam is a member to FTAs
The findings of the thesis can be used as reference for research, teaching and studying, as well as practical application of the law on trade remedies in Viet Nam
7 Structure of the Thesis
Apart from the introduction and conclusion, bibliography, the structure of the Thesis consists of 4 parts
Part 1: Overview of research situation and theoretical grounds for the research
Part 2: Theoretical issues relating to trade remedies under FTAs
Part 3: The situation of the application of trade remedies in Vietnam
Part 4: Orientation and measures to perfect the law in order
to enhance Vietnam’s capability of application of trade remedies
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Trang 8PART 1 OVERVIEW OF RESEARCH SITUATION AND
THEORETICAL GROUNDS FOR THE RESEARCH
1.1 Overview of research situation of issues relating to the topic of the Thesis
1.1.1 Research works on trade remedies
- Content of trade remedies under FTAs
- Concept and characterization of trade remedies
- Mechanisms for the implementation of law on trade remedies
in several countries in the world
- The situation of implementation of law on trade remedies in several countries in the world, including Vietnam
1.1.2 Research works on antidumping measure
- AD measures under FTAs
- Assessment of the situation of Vietnam’s application of AD measures
1.1.3 Materials on anti-subsidy measures
- AS measures under FTAs
- Assessment of the situation of Vietnam’s application of AS measures
1.1.4 Materials on safeguards measures
- SG measures under FTAs
- Assessment of the situation of Vietnam’s application of SG measures
1.2 Assessment of research situation relating to the topic of the Thesis
1.2.1 Research outcomes succeeded and developed
Theoretically, the research works have mentioned and analyzed some theoretical issues relating to trade remedies under WTO
Regarding the domestic incorporation of regulations on trade remedies and the situation of the use of such tools by a number of
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Trang 9countries, including Vietnam, the research works have assessed the situation of domestic incorporation and practical application of law on trade remedies under WTO by Vietnam, as well as other developed and developing countries to draw out experience for Vietnam
Regarding solutions, the published works have consolidated orientations and measures to perfect Vietnam’s law on trade remedies, as well as enhance Vietnam’s capability of applicability of trade remedies
1.2.2 Issues in need of further research
Firstly, the Thesis analyzes and systemizes theoretical issues on
trade remedies under FTAs with a focus on giving characterization of trade remedies under FTAs in comparison with WTO
Secondly, it explains the need to protect markets of member
states to FTAs in the context of increasing free trade and risks of unfair competition prompting the need of the application of trade remedies
Thirdly, it analyzes mechanisms to ensure the application of
Vietnamese law regarding trade remedies
Fourthly, it assesses comprehensively the situation of Vietnam’s
application of trade remedies in two respects: the situation of domestic incorporation and practical application of law on trade remedies
Fifthly, it offers orientation and measures to perfect law on trade
remedies in accordance with international law and FTAs to which Vietnam has been and will be a party with the purpose to enhance Vietnam’s capability of the application of trade remedies
The second research hypothesis: trade remedies under FTAs possess particularities from trade remedies under WTO, therefore put forth requirements for further research on the comparative basis
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Trang 10The third research hypothesis: the application of trade remedies under FTAs makes concurrently positive and negative impacts on Vietnam’s economy in general and businesses in particular Therefore, there is a need to explain such impacts to identify whether the requirement for the application of trade remedies in Vietnam
The fourth research hypothesis: Vietnamese legal system regarding trade remedies remains shortcomings and incompatible with commitments on trade remedies under FTAs Thus, it sets out the need
to research and assess: the situation of domestic incorporation, practical application of trade remedies in Vietnam to explain why measures must
be sorted out to perfect law on trade remedies to enforce the right to apply trade remedies under FTAs
The fifth research hypothesis: mechanisms to ensure the application of law on trade remedies to meet the requirements of FTAs, moreover, awareness and consciousness of authorities in this respect are short and limited, resulting in the inefficient and risky application of trade remedies under WTO in general and under FTAs in particular On such basis, there is need to perfect law and collaborating mechanism among related bodies in order to enhance capability of the mechanisms
in applying trade remedies in Vietnam
By assessing materials, it can be asserted that: contents that the Thesis can succeed and develop are mainly general theory on trade remedies Therefore, there are a number of issues in need of elucidation, such as:
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Trang 11(1) The nature of trade remedies?
(2) Particularities of trade remedies under FTAs in comparison with WTO?
(3) Impacts of the application of trade remedies under FTAs on Vietnam?
(4) The situation and practical application of law on trade remedies in Vietnam?
(5) Measures and recommendations to perfect law on trade remedies under FTAs, and to enhance capability of effective application
of this tool in Vietnam currently?
It offers proposals and measures to perfect law on trade remedies, and ensure the implementation in accordance with international law and FTAs to which Vietnam has been/ will be a member with purpose to enhance capability of effective use of trade remedies in practice with objective for Vietnam’s economic/trade development
These are points left-out that the Thesis will pay attention to study, explain, and clarify in theoretical and practical respects
PART 2 THEORETICAL ISSUES ON TRADE REMEDIES
UNDER FTAS
2.1 Free Trade Agreements and agreements on trade remedies
2.1.1 Concept, objectives and impacts of FTAs
2.1.2 Agreements on trade remedies under FTAs
2.2 Concept, characterization, role and impacts of trade remedies
2.2.1 Concept of trade remedies
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Trang 12Trade remedies under FTAs are measures which member states are allowed to apply against unfair competition or in the context of protecting domestic market
2.2.2 Characterization of trade remedies
i General characterization
Firstly, the application of trade remedies is a right, not an obligation of a member state to FTA Yet in case resorting to such measures, states are required to abide by FTAs regulations on trade remedies
Secondly, trade remedies aims to recover damage or temporarily limit competition for a period of time to support domestic manufacturing industries healthy enough to compete fairly
Thirdly, the use of trade remedies stems from the need of domestic businesses, however, the investigation, application of trade remedies are carried out by administrative authorities of the importing states
ii Particularities
Antidumping and anti-subsidy measures
Basically, agreements on trade remedies under FTAs have referred to WTO principles on trade remedies However, FTAs have been supplemented several new agreements on cooperation; recognition
of best practices on transparency, investigation process and application
of trade remedies
Safeguard measures
Agreements on trade remedies under FTAs particularly pay attention to the procedure to apply SG measures Accordingly, FTAs allow member states to maintain 2 categories of SG measures: (1) global
SG measures (under WTO); (2) bilateral SG measures (under FTAs commitments or so-called SG measures at the time of transition, besides specific agreements: (i) special SG measures on textile, (ii) temporary
SG measures on financial services (TPP Agreement), (iii) special SG measures in agricultural sector Specifically, this includes:
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