Các biện pháp phòng vệ thương mại theo Hiệp định thương mại tự do (2)

Header Page of 166 VIETNAM 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 Footer Page of 166 Header Page of 166 The work is completed in: VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES Supervisor: LÊ MAI THANH (PhD) 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 At…Date…… Month…… 2017 This thesis can be found at: National Library Library of Institute of Social Sciences Footer Page of 166 Header Page of 166 Introduction 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 tradesupporting 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 Footer Page of 166 Header Page of 166 cases 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 Research objectives and tasks 2.1 Research objectives Along with commitments on free liberalization, Free Trade Agreements (FTAs) recognize rights of member states in the application of trade remedies To enforce their rights, member states shall abide by their commitments on trade remedies in FTAs Currently, Vietnamese law on trade remedies and practical application thereof have not demonstrated the rights of member states to FTAs, including Vietnam Given agreements on trade remedies under FTAs to which Vietnam has been/will be a party, the Thesis proposes recommendations on laws, as well as enhances capability and mechanisms to enforce laws on trade remedies in Vietnam 2.2 Trade tasks To achieve aforementioned objectives, research tasks have been set out: To elucidate theoretical issues on trade remedies, such as: concepts, particularities, role, and legal nature of trade remedies in FTAs Footer Page of 166 Header Page of 166 Explain 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 Research objects and scope 3.1 Research objects Research objects include: trade remedies within WTO and FTAs to which Vietnam is a member 3.2 Research scope The thesis pays attention to laws on trade remedies, including measures: antidumping (AD), anti-subsidy (AS), and safeguards (SG) under FTAs to which Vietnam has been and will be a party Studying laws of other countries as well as model laws brings about referencing, comparative implications with the purpose to draw out appropriate experience compatible with Vietnam’s eco-social conditions 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 Footer Page of 166 Header Page of 166 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 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 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 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 and partly of Part 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 multiand inter-disciplinary approaches offer analysis and assessment of all issues set out within the scope of the thesis 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 Footer Page of 166 Header Page of 166 of 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 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 Structure of the Thesis Apart from the introduction and conclusion, bibliography, the structure of the Thesis consists of 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 Footer Page of 166 Header Page of 166 PART 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 Footer Page of 166 Header Page of 166 countries, 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 1.3 Theoretical grounds a Research questions b Research hypothesis The first research hypothesis: there is a need to explain the nature of trade remedies, thereby to show, albeit free trade oriented, that FTAs give way to state members to apply trade remedies is requisite 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 Footer Page of 166 Header Page 10 of 166 The 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 c Research theory Research theory of inter-disciplinary social sciences, law, and specialized law Conclusion of Part The overview of research situation has shown that numerous pieces of works both domestically and abroad on trade remedies have surfaced quite early 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: Footer Page 10 of 166 Header Page 11 of 166 (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 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 Footer Page 11 of 166 Header Page 12 of 166 Trade 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 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: Footer Page 12 of 166 10 Header Page 13 of 166 Global SG measures: allow FTAs members to use global SG measures, but exclude from applying against goods from FTAs partners Bilateral SG FTAs allow a member state to conduct investigation, application of SG measures against goods from one or many countries during the period of transition, however, applying state shall compensate equivalent free trade for the applied state In case of disagreement in compensation, applied state can withhold such equivalent compromises Special SG measures A number of FTAs have agreements on special SG measures for major manufacturing industries of member states Because FTAs create free market, damage of industries can pose a more significant risk than participating in WTO Therefore, the need to protect such industries is requisite and important In case of application of special SG measures, importing country shall compensate for economic damage of the exporting country Specially, TPP allows the application of special SG measures on textile A new supplementary is striking in the sense that previously SG measures were applicable against goods, yet TPP has made a provision for the applicability of such upon services if governments can control capital flow to limit the cash transfer relating to investment at time of crisis or at risk of crisis iii Comparison of characterization of trade remedies under FTAs Trade remedies under FTAs are measures to protect domestic markets concluded by FTAs members for use Trade remedies possess particularities in nature, objectives; requirements for, and scope of application; length and consequences of each measure 2.2.3 Role and impacts of trade remedies Trade remedies have a significant role in creating a fair and healthy international environment for competition Trade remedies are measures to ensure fair trade used as an effective tool to maintain fair Footer Page 13 of 166 11 Header Page 14 of 166 competition in the climate of trade liberalization Trade remedies are legal tools concluded by FTAs members on the basis of WTO agreements in order to protect domestic market Trade remedies hold a role in compensating for damage caused to domestic industries by unfair competition or trade liberalization However, the abuse of such measures by countries may fail to ensure the objectives of the application of trade remedies and trade liberalization resulting in negative consequences 2.3 Legal grounds for the application of trade remedies 2.3.1 Legal grounds for the application of antidumping measures To avoid abusing, FTAs members enforcing the right to apply trade remedies shall follow rules and procedures in accordance with Antidumping Agreements (ADA) 2.3.2 Legal grounds for the application of anti-subsidy measures Similarly to the AD measures, FTAs members enforcing the right to apply anti-subsidy measures shall follow regulations in the Agreement on Subsidy and Countervailing measures 2.3.3 Legal grounds for the application of Safeguards Having analyzed above, FTAs members are allowed to use global safeguards (under WTO) and bilateral safeguards (under FTAs) Hence, global SG must follow the Agreement on Safeguards, meanwhile bilateral SG must be in line with FTAs 2.4 Mechanisms for the application of Vietnam’s law on trade remedies 2.4.1 Concept and characterization of mechanisms for the application of law on trade remedies Mechanisms to apply the law on trade remedies are all institutions interact with each other, forming a system to ensure the application thereof Institutions to apply the law on trade remedies are known as bodies, organs, and individuals related to the process Footer Page 14 of 166 12 Header Page 15 of 166 2.4.2 Criteria to assess effectiveness of mechanisms for the application of law on trade remedies Mechanisms to implement law on trade remedies have an important role in ensuring effectiveness in trade remedies application - Capability to identify time point and length of the application of trade remedies - Capability to identify object imposed trade remedies - Capability to identify scope of the application - Capability to monitor and change appropriate measure - Capability to face lawsuit in case of wrongful application 2.4.3 Several models of mechanisms for the application of law on trade remedies Conclusion of Part Trade remedies are one of tools for the maintenance of orderly fair trade, reasonable for FTAs members Such tool is recognized under WTO and FTAs Therefore, FTAs members have enacted law on trade remedies on this common ground However, the application of trade remedies is a right, not obligation of FTAs members In order to enforce this right, state obligation is to ensure the compliance with trade remedies corresponding to this right on the common criteria During trade liberalization process under regional/bilateral/multilateral FTAs, countries conduct negotiations on trade remedies under WTO++ Comparing with WTO, agreements on trade remedies under FTAs (mainly new generation FTAs) possess new points (mainly on SG measures) Accordingly, apart from global SG measure under WTO, FTAs members are allowed to resort to: bilateral SG measure; special SG measure in agricultural sector (TPP does not permit the application of this measure against agricultural products with origin from TPP countries); special SG measure on textile, agricultural products; temporary SG measure relating to financial services (TPP) Beside, stringent regulations on rules and procedures, conditions for the application of trade remedies under FTAs play a role in promoting Footer Page 15 of 166 13 Header Page 16 of 166 transparency in the application of trade remedies as well as limit the abuse of such measures PART SITUATION OF THE APPLICATION OF TRADE REMEDIES IN VIETNAM 3.1 Situation of the application of antidumping measure 3.1.1 Situation of domestic incorporation of regulations on antidumping measure a Identify antidumping conduct b Investigation procedures c Application of antidumping measure In general, Vietnamese law on AD measure remains limited, such as: a number of regulations are not detailed as in ADA 3.1.2 Enforcing the right to apply antidumping measure in Vietnam According to VCA’s statistics, up to date Vietnam has carried out 03 investigation cases of antidumping: (1) cool-rolled stainless steel; (2) galvanized steel; (3) H-shaped steel, imported into Vietnam with origin of China (including Hong Kong) Antidumping measure has been imposed on cool-rolled stainless steel with origin of Malaysia, Indonesia, China and Taiwan The other two cases are under investigation Thus, this is the very first time Vietnam resorted to antidumping measure However, during investigation stage, the application of AD measure has shown bottlenecks, limitations, shortcomings in respect of the law and practical issues, such as: Firstly, legal limitations; Secondly, limitations of businesses 3.2 Situation of Vietnam’s application of anti-subsidy 3.2.1 Situation of domestic incorporation of anti-subsidy measure Footer Page 16 of 166 14 Header Page 17 of 166 a Identify subsidy conduct b Investigation procedures c Regulations on the application of anti-subsidy measure Generally, Vietnamese law on AS measure is not at odds with WTO/FTAs, yet still in need of amendment and supplementary in detail 3.2.2 Enforcing the right to apply anti-subsidy measure in Vietnam Up to now, there have never been any investigation cases on goods subsidy imported into Vietnam nor any AS measure applied, even though there exist subsidized-likely goods imported into Vietnam according to fieldwork survey by VCCI 3.3 Situation of the application of safeguards in Vietnam 3.3.1 Situation of domestic incorporation of safeguards FTAs give way to the application of global SG measure (under WTO), bilateral SG measure, and special SG measures in several sectors, such as textile, agriculture and wood stock (under FTAs) Therefore, the situation of the incorporation of law on SG will be studied and assessed under criteria: (i) global SG measure (compare with SA); (ii) bilateral SG measure compare with FTAs; (iii) special SG measure compare with FTAs Specifically, Vietnamese law on SG measure include major groups: a Regulations on investigation procedures b Regulations on the application of SG measure c Regulations on compensation and concession The decree on SG measure only provides general regulations on compensation in case of SG measure applied upon foreign goods causing difficulties for competent authorities Beside, there is an important point not specifically addressed in the decree, that is regulation on countervailing measure of Vietnam in case another country has applied SG measure on Vietnam but failed to make compensation Footer Page 17 of 166 15 Header Page 18 of 166 FTAs supplement more stringent regulations on bilateral SG measure, special SG measure in respect of rules and procedures for investigation, as well as condition and length of the application Meanwhile, Vietnamese law has not provided regulations on these SG measures 3.3.2 Enforcing the right to apply SG measure in Vietnam Vietnam has conducted investigation SG cases Investigating bodies have concluded non-imposition of SG measure upon float glass due to insufficient conditions under the law, and cases concluded with the application upon: (1) extracting vegetable oil; (2) seasoning powder; (3) forged blank and long steel Currently, VCA is carrying out investigation on imported colored tole In total of cases regarding trade remedies, the majority of cases (3/4) are that SG measure applied by Vietnam This seems different from the reality in other countries in comparison in this respect 3.4 Situation of mechanisms for the application of law on trade remedies 3.4.1 State mechanism responsible for the application of the right to apply trade remedies - Investigating bodies In investigation cases relating to trade remedies, VCA is competent to investigate dumping/subsidy conduct or sudden increase in importing goods, as well as identify damage suffered by the domestic industry and the causal relationship thereof However, VCA does not have power to render a judgment to impose AD, AS duty or SG measures but final findings to refer to steering Commission to decide - Steering Commission Legally speaking, Vietnamese law does not provide the status of legal person and functioning rules of Steering Commission The Commission is not an enforcement body of the state but stands as advisory commission for the minister of the Ministry of Trade and Industry Footer Page 18 of 166 16 Header Page 19 of 166 - The minister of the Ministry of Trade and Industry The minister is responsible before the Government for undertaking state management on trade remedies Based on the findings by VCA and the Steering Commission, the minister is competent to deliver decisions relating to investigations and application of trade remedies Hence, theoretically and practically, enforcement bodies relating to trade remedies of Vietnam remain limited regarding power, specialized capability, practical experience, inactive function resulting in failure to meet practical demands 3.4.2 Mechanisms collaborating to ensure the implementation of the right to apply trade remedies Currently, there are specialized agencies responsible for supporting businesses with regard to trade remedies, including: Vietnam Competition Agency (VCA) and Trade Remedies Commission (TRC) – VCCI Conclusion of Part Basically, the law on trade remedies of Vietnam is not at variance with regulations under WTO and other FTAs However, three decrees on antidumping, anti-subsidy and safeguards were enacted at the time when Vietnam was attempting to run up to WTO admission, thus most of the regulations are limited and short Although Vietnam is drafting the Law on foreign trade management, improvement remains to be seen The practice has shown that, although recent years the bodies to enforce the law have carried out investigations and applied trade remedies in cases, the regulations on trade remedies are still symbolic have not established a hefty and consistent legal ground for the use of such legal tools to protect domestic market The practice has also shown that Vietnam’s trade remedies applied cases have shortcomings, limitations and bottlenecks in respect of regulations Footer Page 19 of 166 17 Header Page 20 of 166 on trade remedies, and mechanisms to implement the law, as well as businesses Therefore, there is a need to re-orient and offer suggestions to perfect the law in order to enhance capability of mechanisms to implement the law on trade remedies in the context of that Vietnam has been/will be a member to FTAs PART ORIENTATION AND SOLUTIONS TO IMPROVE LAWS FOR ENHANCING VIETNAM’S CAPABILITY IN APPLYING TRADE REMEDIES 4.1 Orientation to improve laws on trade remedies 4.1.1 Creating adequate and transparent legal grounds in order protect domestic markets in compliant with FTAs commitments Laws on trade remedies measures of each FTAs members must sufficiently detail relevant provisions of FTAs in order to create legal ground for such measures To ensure the compliance of legal documents on trade remedies with the content of signed international treaties, competent authorities shall incorporate exactly and accurately contents of incorporated regulations Therefore, to create adequate and transparent legal ground in order to protect domestic markets in compliant with FTAs commitments, Vietnam must improve laws on trade remedies pursuant to the principle above 4.1.2 Ensuring the objectives of applying trade remedies In practice, because of weak compatibility, Vietnam needs to apply trade remedies in order to protect its businesses and markets Lessons from other countries of the same circumstance has showed significant success in applying laws on trade remedies in order to protect domestic markets The Vietnam’s legal framework is not of insufficient, however, investigation authorities and business lack awareness, Footer Page 20 of 166 18 Header Page 21 of 166 capability and determination in applying such measures Thus, despite of the available laws on trade remedies, Vietnam does not makes use of such measures to protect markets Therefore, improving laws must ensure the application objectives as well as the compliance with international commitments on trade remedies 4.1.3 Enhancing capability of mechanism for the application law on trade remedies The objectives of applying trade remedies can be achieved only if these measures are implemented effectively in practice Thus, an effective enforcement mechanism to ensure application objectives has an important role in protecting business and domestic markets Therefore, enhancing capability of mechanism for applying trade remedies is of urgent need Enhancing mechanism for enforcing trade remedies will ensure the reasonable and lawful objectives of applying trade remedies 4.2 Solutions for enhancing Vietnam’s capability of applying law on trade remedies At present, the Ministry of Trade and Industry is responsible for drafting the Law on Foreign Trade Management, which includes regulations on trade remedies under the Chapter IV However, the author’s opinion is that the incorporation of trade remedies in a independent chapter under the Law on Foreign Trade Management is not practical As discussed above, there are ordinances on this issue available Despite of some shortcomings, the codification these legal documents into an act is of necessity in order to fostering the legal effectiveness of such measure, and at the same time to amend, adjust, update, detail and supplement incomplete or insufficient provisions in these ordinance compared with WTO/FTA 4.2.1 Amendment of and supplementary to Vietnam’s law for incorporation of the right to apply trade remedies a Amendment of, supplementary to general regulations on trade remedies Footer Page 21 of 166 19 Header Page 22 of 166 - Amend to perfect regulations on the status, organization structure, and competence of trade remedies bodies - Amend investigating content to identify damage of domestic industry + Identify domestic industry + Amend the concept of “equivalent goods” + Supplement regulations regarding investigation on damage assessment - Improve regulations on competent bodies to authorize investigations (plaintiff) - Supplement subjects to file for lawsuit - Improve regulations on length for preliminary decision - Improve regulations on the termination of investigation - Improve regulations on judicial review b Investigation length - Prevent evasion of trade remedies - Supplement regulations on measures applicable in between the expired date of temporary duties until the point to impose official trade remedies - Supplement regulations on the application of concurrent antidumping and anti-subsidy measures (double lawsuit) - Supplement mechanisms to address conflict between final finding of investigating bodies and steering Commission - Amend regulations on mechanism to handle complaints and initiate lawsuits for the imposition of AD/AS duties and SG measures against goods imported in Vietnam c Amendment of and supplementary to the law on antidumping - Perfect the concept of antidumping - Supplement regulation on “ordinary trade condition” - Amend the regulation in the way to specify ordinary calculation of goods price - Supplement regulation on insignificant antidumping margin Footer Page 22 of 166 20 Header Page 23 of 166 d Amendment of and supplementary to the law on anti-subsidy - Supplement regulation on subsidy types - Supplement regulation on identifying particularity of subsidized goods imported into Vietnam - Supplement regulation on subsidy margin - Supplement regulation on consultation e Safeguards - Supplement regulation on investigation to apply bilateral SG measures - Global SG measures applicable - Length of the application of global SG measures - Supplement regulation on most favored nation principle - Supplement regulation on assessment criteria, identifying absolute or relative increase of imported goods - Supplement regulation on countervailing measures - Supplement regulation on compensation for SG applied party 4.2.2 Consolidation of mechanism and heightening of legal awareness, consciousness relating to trade remedies a Competent state bodies - Improve capability of mechanism to implement law on trade remedies - Collaborate among competent state bodies and businesses b Businesses and association Conclusion of Chapter The regionalization trend and the introduction of a series of large-scale FTAs with deep and wide commitments result in significant changes in the legal and practical value of the trade remedies Thus, although laws on trade remedies of Vietnam is not contrary to the FTAs commitments, the additional commitments on trade remedies demands the improvement of Vietnam’s laws in order to ensure the effectiveness and objective for applying trade remedies in practice Therefore, the Footer Page 23 of 166 21 Header Page 24 of 166 improvement of laws on trade remedies must ensure the consistency and comprehensiveness of the legal system in general as well as the need to develop a mechanism for the effective implementation trade remedies commitments Accordingly, the provisions under the three Ordinances on trade remedies should be codified into an act On the whole, regulations on trade remedies shall be amended and supplemented in order to ensure the feasibility Accordingly, it is necessary to supplement new regulations such as: anti-circumvention; bilateral safeguard measures, special safeguard measures, commercial retaliation, dual complaint (initiating investigations of both anti-dumping and anti-subsidy measures), normal commercial terms, subsidy forms; detailing regulations on commitment measures; mechanism for conflict settlement between the final conclusion of the investigation authority and of the handling council In addition, some provisions should be amended and improved such as: assessment of damages; conditions of the subject to have the right to initiate the investigation; grounds for the Minister of the Ministry of Trade and Industry to make a decision to initiate the investigation itself; consultation; mechanism for businesses to access information The regulations on the procedure for the application of trade remedies also need to be amended and supplemented in order to ensure the compliance with the FTAs agreement The scope of the subject who has the right to request a trade remedies investigation needs to be extended to the union on behalf of employees to initiate the action In addition, it is necessary to improve the capability of law enforcement of main competent agencies, supporting organizations, as well as businesses’ awareness on trade remedies Footer Page 24 of 166 22 Header Page 25 of 166 GENERAL CONCLUSION The law on trade remedies is a lawful protection tool for every nation's economy In the context of liberalization and globalization, countries are trying to gradually eliminate gaps in trade policies Vietnam is a member of the WTO and has entered into several FTAs Therefore, the requirement of the compatibility between domestic law and WTO legal norms, as well as FTAs’ trade remedies commitments, is of strictly compliance In fact, among the countries with the most trade remedies cases in the world there are nine countries that are partners in the free trade agreements with Vietnam It can be assumed that goods subjected to trade remedies in other countries are likely to compete unfairly in the Vietnam’s markets However, in fact Vietnam has overlooked this applicability Therefore, on the basis of the theoretical analysis and assessment of the practical application of laws on trade remedies in Vietnam, it can be concluded that improving the effectiveness of applying trade remedies in Vietnam is of practical significance for the development and future of many industries in Vietnam in the context of deep and wide integration into the world economy with its increasing openness for imported goods, both fair and unfair competition In practice, however, the effectiveness of the use of such tool is not simple, because the reality shows that the capability and awareness of Vietnamese business of the tool are limited in all aspects such as for gathering forces, gathering evidences, human resources and material resources Therefore, in order to improve the effectiveness of the use of trade remedies in Vietnam, the coordination of businesses, associations and competent authorities is of necessity These measures shall be taken simultaneously in order to achieve optimal effectiveness The amendment and improvement of laws on trade remedies also require the active consultation from businesses Footer Page 25 of 166 23 ... 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... Research theory Research theory of inter-disciplinary social sciences, law, and specialized law Conclusion of Part The overview of research situation has shown that numerous pieces of works both domestically... 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 Theoretical and practical significance of the thesis Results