The subsidy regulations and vietnams position as a member of the WTO

D O H O N G Q Ư Y E N The Subsidy Regulations and Vietnam’s position as a Member of the WTO THƠ V l ệ N TRƯỚNG ĐẠI HỌC LÙẬĨ HÀ NỘI L p h ò m sd ọ c • i ú x ì SUPERVISORS: Pr Christina Moẽll Dr Vu Thi Hong Minh Statutory Declaration I hereby declare that the thesis has been vvritten by m yself The thesis has been neither presented to any institution for evaluation nor previously published in its entirety or in part Any tables and íígures w hich are quoted from other sources have been acknowledged Acknowledgements This thesis has been com pleted with the help o f m y supervisors: Professor Christina Moêll and D octor Vu Thi Hong M inh and o f the Drafting Evaluation Council m em bers o f the Law Faculty o f the University o f Lund and Hanoi Law University I would like to express my special thank to all for their supervision and help Table of Contents Statutory Declaration and Acknovvledgements ] Table o f C ontent Introduction The basic understanding o f the subsidy in intemational tra d e 2.1 The concept o f the subsidy and the evolution o f the subsidy regulations in intemational tra d e 2.1.1 The concept 2.1.2 The revolution o f the regulations o f subsidies in intemational tra d e 11 2.2 The subsidy areas in intemational trad e 13 2.2.1 The subsidy to non - agriculture com m odities 13 2.2.2 The Subsidy to the agriculture com m odities .14 2.3 The Countervailing m easures to íĩght against subsidies in international trade a c tiv itie s 15 The subsidy regulations and countervailing measures o f the WTO and V ietnam 17 3.1 The subsidy regulations o f the W T O 17 3.1.1 Identiĩication o f subsidy 17 3.1.2 Regulations on application o f su b sid y 21 3.2 3.2.1 The regulations on countervailing m easures 25 The principles govem ing the application o f countervailing m easures 26 3.2.2 Institution for application o f the countervailing m easures .26 3.3 The subsidy regulations and VietnarrTs opposition to subsidies after becom ing a M ember o f the W T O 28 3.3.1 W TO comm itm ents o f Vietnam and Viet Nam subsidy regulations after becom ing a M ember o f the WTO 28 3.3.2 The regulations opposing subsidy o f Vietnam 36 Recom m endation and resolutions to improving the subsidy regulations in V ietn am .43 4.1 International experience on the adaptation o f subsidy policy after becoming a W TO M e m b e r 43 4.1.1 The overview o f the subsidized adaption in the W o rld 43 4.1.2 The experience o f China in ađapting its subsidy policy after becoming a M em ber o f the W T O 45 4.2 Suggestions for the improvement o f policies and laws and for strenthening the im plem enting mechanism regarding subsidies o f V ietnam 47 4.2.1 Suggestion for the improvement o f the policies regarding subsidies 47 4.2.2 R ecom m endations for improve subsidy law s 49 4.2.3 R ecom m endations for strenthning the C onclusion 51 CVM executive m echanism 50 Table o f Statutes and other Legal Instrum ents Table o f C a se s B ibliography Abbreviations AoA Agreem ent on Agriculture AM S A ggregate M easurem ant oJ Support (in A greem ent Agriculture) CVM Countervailing M easures G A TT 1994 General A greem ent on Tariffs and Trade 1994 O rdinance O rdinance on m easures against subsiđized Products im ported into Vietnam , Ordinance on ASPI 2004 SCM Subsidy C ountervailing M easure(s) W TO W orld Trade Organization us U nited State 0/1 Introduction 1.1 General remark It would be very difficult to evaluate fully the effects o f subsidies on intemational trade, as well as those o f all the direct and indirect beneíĩts that flow from subsidy policies The majority o f subsidies come from Govem m ents and public authorities since they are used as instruments o f economic and social policies Thus, a subsidy can serve various purposes, such as, encouraging advanced technologies, assisting underdeveloped areas or protecting the environment As an example, the operation o f the Steel industry and factories m ay dam age the environm ent So, on the One hand the G ovem m ents have to control pollution and on the other hand they have to help com panies purchase and install pollution abatement equipment Developing countries tend to rationalize subsidization by linking it to the promotion o f their industrial development In addition, to maintain subsidies in some situations may be necessary for the stabilization o f national and intemational trade In practice, intemational trade institutions such as the WTO to allow their M embers to apply subsidy measures in some certain cases, especially, subsidies may be applied to sectors For example, the subsidies woulđ be applied to agricultural sector Hovvever, subsidies may damage intemational trade as they distort free competition In intem ational context, a subsidy gives an unfair competitive opportunity to subsidized prođucts over the like Products that have not been subsidized The business receiving the subsidy WĨ11 have advantages in competition with other businesses in the market since the price o f subsidized Products may be lovver than the cost o f non-subsidized products In addition, a subsidy can undermine market access as it can be seen as an instrument to limit the m ovement o f commodities in the intemational market Vietnam becam e the M ember o f the W TO in November, 7, 2006 The acceding WTO o f Vietnam marked a great step íor itself into the intemational economic integration process In this circumstance, what Vietnam, as the M ember o f WTO should and how to get opportunities for having success in its intemational integration Introduction Hovvever, Vietnam is a developing country, so how to adapt reasonably the policy and lavv on the subsidy is diffícult This is because the adaptation not only to comply with W TO com m itm ents on trade liberalization but also to protect new I n d u st r ie s by using subsidies in intem ational integration process In reality, the investigating results showed that a small number o f subsidy policies of Vietnam G overnm ent are useful for the development o f the enterprises For example, electronic and sugar industries received subsidies from the Governm ent but they were very difficult to compete with like commodities that were imported into V ietnain’s m arket1 Consequently, the regulations on subsidy policy and law of Vietnam are not only suitable with WTO regulations but also to ensure that the stability o f the economic development Thereíore, the researching on Subsidy Regulations in intem ational trade has a signiĩicant meaning in theory and practice, especially, when Vietnam is the official M ember o f the WTO 1.2 Purposes and tasks of the thesis The purposes o f thesis are to clarify some basic issues on Subsidy and Countervailing m easures in intem ational trade and to evaluate the regulations of Vietnam in com parison with the W TO ’s regulations on Subsidy and countervailing m easures Base on the results o f the thesis, the writer would like to give some recom m endations for improving the subsidy regulations o f Vietnam as the 150th M em ber o f the WTO In order to get the above purposes the thesis would focus on some following tasks: Firstly, to study some basic theories on subsidy in intemational trade; Secondly, to analyze the regulations on Subsidy and countervailing m easures o f the W TO and Vietnam; Thirdly, to analyze the reality o f using subsidies in the M embers o f the WTO and Vietnam ; Ho Duc Hung (Editor) (2007), Vietnam economic - integrative and unshcikeable development, pp 151-157 hìtroduction Fourthly, to make some recom mendations for Vietnam to complete its policy and regulations on Subsidy and Countervailing measures in intemational trade 1.3 Limitation of the thesis There are two m ajor aspects o f the subsidy issue in intemational trade which are usually both considered by Govem ments They are the subsidy on exported com m odities and the anti-subsidy which m ay be applied to imported comm odities by the countervailing measures Vietnam, as a new M em ber o f the WTO, needs to study the law on subsidy and this thesis vvill concentrate on studying issues relating to subsidy and íĩghting against subsidy To assess the subsidy and anti-subsidy regulations o f Vietnam and study them in connection with the subsidy and ĩighting against subsidy regulations o f the W TO seems a necessary task In addition, the thesis makes some general evaluations on reality o f using subsidy policy in some M ember State and Vietnam and recom m endations and resolution to improve the subsidy regulations in Vietnam 1.4 Method of the thesis Supporting subsidies and íĩghting against subsidies in intemational trade are usually argued for at the same time This is because they affect intemational trade both positively and negatively This thesis thus focuses on the subsidy regulations applying to both im ported and exported comm odities activities It limits itself to the subsidy regulations o f the WTO and o f Vietnam In addition, the thesis will make some recom m endations to Vietnam in its capacity as a M ember o f the WTO Certain basic research m ethods will be used in the thesis They are the comparative, logical, analytical and legal research methods: The com parative m ethod will be used in the process o f research The thesis will com pare the subsidy regulations of the W TO and o f Vietnam In addition, the logical and analytical m ethods vvill be used to identify legal issues that should be taken into account Furtherm ore, the legal research method will look for lessons applicable to the regulations in Vietnam The above m ethods will also focus on certain issues For example, the subsidy regulations o f the WTO; the subsidy regulations and policy o f Vietnam beíore and Ỉnỉroduction aíter its accession to the W TO In particular, they will be used to analyze certain subsidy disputes brought before the WTO and to make further recommendations to Vietnam 1.5 Structure of the thesis The thesis consists o f the three following parts: The first part covers the basic understanding o f subsidies in intemational trade The concept o f subsidy is considered in terms of' other ĩields, such as, linguistic, econom ic and political It also considered in the light o f the GATT 1994, the Subsidy Code 1979, the SCM A greem ent and the AoA Anti-subsidy in intemational trade is is also considered In the second part covers the subsidy regulations and anti-subsidy o f the WTO and of Vietnam The SCM A greem ent and the AoA o f the WTO were used in analysing the W TO subsidy regulations and anti-subsidy; the Ordinance was used to analyse the Vietnam ese regulations In the third part we give recom m endations for improving the subsidy regime of Vietnam Based on general research on the adaptation o f subsidy policies elsewhere in the W orld and in China in particular, suggestions for the improvement o f Vietnamese policics and laws and for strengthening its implemcnting mechanisms are proposed Recom m endations and resoìutions to improve the subsidy regulations in Vietnam 4.2 Suggestions for the improvement of policies and laws and for strengthening the implementing mechanism regarding subsidies in Vietnam 4.2.1 S u g g estio n s for the im provem ent o f the p o licies reg a rd in g subsidies Vietnam has m ade some improvements to its subsidy policies as it moved more deeply into intem ational integration in the two years after it becam e a M ember o f the W TO Though the econom y o f Vietnam was m odest at the time it becam e a Member, the com m itm ent o f V ietnam was well regarded and seem ed greater than that o f certain others countries at the time they joined the WTO However, Vietnam has had to cope with many diffículties in this íìrst period It must adapt both its policies in general and its subsidy policy while always following a specifíc direction in the following period The subsidy policy should be m odiíied in the following way: Firstly, Vietnam m ust im plem ent the commitments it made on its W TO accession, in particular, on cutting subsidies This would indicate how it stood regarding the com m itm ents and enhance Vietnam ’s reputation with domestic and intemational investors Past experience shows that if the comm itm ents are not implemented the govem m ent concem ed gets a small short term beneíit but the govem m ent would be poorly regarded by intem ational partners giving rise to problem s over the longer term Secondly, to establish a reasonable policy for supporting some young Industries that shows a good potential by applying appropriate subsidy policies vvhich comply with W TO niles For exam ple, apply import and export taxes at the same level with a ceiling com plies w ith the commitments, using the transitional period However, the application should be set up in such a way that subsidized enterprises could not rely totally on it or get unreasonable proíĩts and be able to cause distortions o f trade Thirdly, to m odiíy the subsidies given to some industries such as automobile and motorbike m anuíacturers that are important but provide only a small contribution to the economy The econom y the subsidy needs to be changed to a more effective and ílexible form And any overuse o f subsidies, for example, the application of privileges through the tax system should be removed 47 Recom m endations and resolutions to improve the subsidy regulations in Vietmim Fourthly, subsidy policies neeđ to be uniíled with other macro economic policies This is because they have a relationship to commerce and to industrial and labour policies AU govem m ental agencies concem ed need to enjoy a good cooperation Fifthly, to use the subsidy allowed for weak enterprises like agricultural producers Recently, the subsidy policy for agriculture focuseđ on buying these products at harvest time This policy helps the producers get income but it caused an indirectly harm íul effect when the prices rose as it then beneíited purchasing companies rather the producers them selves In addition, agriculture o f Vietnam is under strong com petitive pressure because it is backward, farm size is small, and there are too m any tenant farm ers w ho have, low productivity In order to enhance the developm ent o f agriculture and to strengthen its com petitiveness, the govem m ent has to provide timely and effective support policies which should be established and implemented as follows: Firstly, what W TO regulations allow when supporting the production operations and export o f Products Establish strategy program s and subsidy methods with the aim o f im provem ents in the long term Focus on supporting the production program instead o f dow nstream business activities The subsidy policy also needs to be compatible with the A oA o f the WTO This gives rise to the following points: G reen box subsidies m ust be implemented as appropriate For example, supply services and welfare for agriculture in perm itted forms (Scientiíìc research, education, agricultural encouragem ent ); support diffĩcult areas (diffícult, remote or disaster areas); support structural transform ations and create favourable condition for producers by tax and credit privileges Blue box subsidies should be considered by developing program s which are reasonable and lawfuì For example, the govem m ent can provide investment subsidies as part o f its íĩnancial support; it needs to pay attention to low income producers by way o f low interest rate loans; it also needs to support and encourage household who are changing their planting structures with a view to getting more incom e to them and a better result for society Secondly, within the fram ew ork o f the WTO, the govem m ent needs to pay attention and provide a reasonable level o f protection for Products that have higher prices when compares with sim ilar imported Products And it should think about protecting such Products as cotton, vegetable, meat to enhance the competitiveness of the 48 Recom m endations timl resolutions to improve tlìe subsidy regulations in Vietnam certain other Products All these protective barriers must be in accordance with WTO regulations Thirdly, with the aim o f developing agriculture in a stable way, the govem m ent has to on the one hand prom ulgate policy so as to reduce the negative impact o f the exploitation o f natural resources vvhile, on the other, it has to improve policy on land, water, and environm ent so as to encourage the best use o f these and other resources 4.2.2 R ecom m end atio n s for im proving the su b sid y ỉaw s In 2007, the Governm ent o f Vietnam asked the National Assembly to approve 10 laws and in 2008 the laws o f Vietnam are continuing to be improved in a free market sense in line with intem ational customs Though these changes show Vietnam means to com ply with the com m itm ents it undertook when it became a M em ber o f the W TO, the position still need to be improved For example, The Ordinance on subsidy 2004 has not been upgraded to Law This situation may not be effective in helping Vietnam ese enterprises in intem ational integration W ithin the scope o f the thesis, the author would like to present some recom m endations and suggestions that may be useful for the improvement o f the cuư ent subsidy regulations in Vietnam They are as follows: First, ensure the legal provisions comply with the actual subjects o f a subsidy Article o f the O rdinance provides that the “govem m ent” means the govemm ental agencies However, Article 22 o f the law on govemm ental organization provides that the govem m ent consists o f the m inistries and m inisterial level agencies only So, the regulation should be revised and provide that the “govem m ent” includes any public agencies located on a territory from which exported goods come to Vietnam This revision would m ake the concept o f subsidy fully compatible with Article o f the SCM o f the W TO And this enlargem ent o f the subject o f subsidy would help Vietnam dem onstrate the existence o f subsidies Secondly, in order to allovv enterprises to easily initialize protective lawsuits, the O rdinance needs to be upgraded into a law Accordingly, some concepts (in Article 14) such as "norm al trade condition", "market prices" "real prices" should be revised so that certain difficulties for enterprises are removed 49 Recom m endations and resoỉutions to improve the subsidy regulations in Vietnam Thirdly, in order to avoid m isunderstanding, the unclear name o f the Ordinance should be corrected The name ought to be the Ordinance on subsidy and antisubsidy Fourthly, the govem m ent should provide more reasonable subsidy policies for enterprises In recent years, the govem m ent has given some active support to enterprises However, this m ainly íocused on economic support and the govemment did not pay attention to the need for further law implementation The next time it prom ulgate decrees to help businesses, they should be able to actively use any new legal regulations to protect them selves from injuries caused by foreign govemm ent subsidies in Vietnam In addition, the govem m ent should create legal mechanism supporting business by passing good lawful subsidy regulations in general and some on anti-subsidies in particular 4.2.3 R eco m m en d atio n s for strengthening the CVM ex ecu tiv e m echanism Up to the present, Vietnam has not applied any anti-subsidy to imported Products Hovvever, the Departm ent for Com petitive M anagement (The M inistry o f Industry and Trade), the com petent organization on the settlem ent o f subsidies, is m odest in term s o f facilities and hum an resources Therefore, to protect dom estic producers from the threat o f im ported Products and unfair competition the organization needs to be review by the govem m ent M aking the organization stronger and better able to discharge its duty to protect the hom e m arket vvould comply with W TO regulations H aving experience o f anti-subsidy cases is a reasonable way for Vietnam to leam about them Before taking part in anti-subsidy cases as an independent plaintiff Vietnam should jo in other countries as a concem ed party to acquire usefu] experience Relevant here are the cases relating to subsidy and anti-subsidy on the export o f sugar cane betvveen Australia, Brazil, and Thailand and the EC58 and betw een Brazil, Australia, Canada, China, India, Thailand and Japan and the u s in the cotton case'’9 58 WT/DS267 59 W T/DS265,266,283 50 Conclusion Conclusion A subsidy is a direct or indirect support from a govem m ent to a business vvhich m ay have an im pact on intemational trade The involvem ent o f the govem m ent is intended to boost the com petitiveness o f the business in com parison to other foreign businesses that are not supported by their govem m ents The creation of com petitiveness through a subsidy also creates a trade distortion In intem ational trade, subsidies are usually considered as illegal The legal treatm ent o f subsidies is contained in several intem ational docum ents and conventions, in particular the series o f agreements o f the W TO Subsidy issues were íírst regulated in G A TT 1994, the subsidy Code 1979, the A greem ent on SCM, and the AoA In general, subsidies are applied in two sectors: A gricultural and nonagricultural In order to m inimize the negative effect o f a subsidy in intem ational trade, govem m ents may levy a tax on subsidizeđ im ported goods This tax is called a countervailing duty W ithin the fram ew ork o f the WTO, the levying o f a countervailing duty is based on two im portant agreem ents, the agreement on subsidies (SCM ) and the agreem ent on agriculture (AoA) Vietnam is a M ember o f the W TO, and intends to carry out its dutics regarding subsidies Hovvever, V ietnam is a developing country; it needs to im prove its policies, laws and procedure regarding subsidies in intemational trade Im provem ent should be carried out in the follow ing ways: First, improve the subsidy policy relating to intem ational trade The iưiprovernent should focus on the following points: Cut and m inim ize subsidies on export Products; protect young industries in accordance with W TO regulations; change the way o f subsidizing non-effective producers; protect easily hurt businesses Secondly, im prove the subsidy laws and regulations o f Vietnam The State com petent agencies should review the different subsidy related docum ents so that they could be revised and uniíied; with a view to upgrading the subsidy regulations The Ordinance on subsidy should be Lipgraded into a law on subsidies in intem ational trade Thirdly, m echanism s relating to subsidies should be strengthened The govem m ent should reasonably pay attention to all aspects o f the subsidy m echanism and help by providing ílnancial conditions and human 51 recourses The Department for Conclusion Com petitive M anagem ent (M inistry o f Industry and Trade) needs to be strengthened Cooperation regarding subsidy issues betw een the concem ed State agencies should be improved And the role o f sector association should be developed so that iníịrm ation and knowledge on intem ational trade in general and on subsidies in particular would be available and could be provided to individual businesses 52 VVTO SCM Notitication: Sum of horizontal subsidies and subsidies to industry, 1995-2002 (Pcrcentages of GDP) W TO M ember 1995 Argentina 0.034 0.042 Australia 0.029 0.049 Austría 0.015 1996 1997 0.071 0.029 0.162 Barbados 1998 1999 2000 2001 2002 0.055 0.023 0.016 0.014 0.019 0.024 0.025 0.051 0.062 0.123 0.1 13 0.097 0.201 0.089 0.088 0.108 0.586 0.770 0.011 Belgium 0.275 0.391 0.292 0.258 0.319 0.252 0.362 0.178 Brazil 0.574 0.505 0.499 0.508 0.389 0.280 0.069 0.084 0.633 1.339 1.848 0.929 0.691 0.428 0.406 0.096 0.088 Bulgaria Canada 0.116 0.091 0.082 0.094 0.092 0.088 Chile 0.454 0.213 0.398 0.408 0.436 0.407 Colombia 0.249 0.021 0.078 0.107 0.125 0.133 0.108 0.108 0.161 0.230 0.079 0.368 Czech Republic 1.041 0.523 0.332 0.192 Denrnark 0.144 0.438 0.636 0.543 Croatia Cyprus 0.339 0.200 0.604 0.636 0.829 Estonia 0.543 0.434 0.062 European Com m unity 0.525 0.531 0.546 0,551 0.622 0.583 0.514 517 Pinland 0.432 0.402 0.343 0.315 0.279 0,277 0.273 0.278 France 0.165 0.214 0.209 0.196 0.140 0.120 0.150 0.130 Germany 0.245 0.273 0.222 0.265 0.157 0.121 0.102 0.092 Grcece 0.612 0.475 Hungary 0.039 0.132 0.030 0.435 0.310 2.082 1.906 1.309 1.503 1.629 1.399 1.823 Iceland 0.127 0.112 0.117 0.118 0.120 0.101 0.088 Ireland 0.009 0.092 0.006 0.009 0.000 0.007 0.006 Israel 0.890 0.280 0.703 0.668 0.625 0.555 0.649 1.018 Italy 0.094 0.114 0.251 0.295 0.130 0.146 0.208 0.139 1.417 3.900 4.022 0.043 0.068 0.070 0.073 0.039 0.017 0.017 0.013 0.010 0.083 Jam aica Japan Jordan Korea, Rcpublic o f 0.218 0.196 Latvia 0.005 0.119 0.128 0.104 0.081 0.080 0.065 0.772 0.685 0.355 0.265 0.281 0.222 Luxembourg 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 Netherlaiuls 0.055 0.035 0.189 0.098 0.116 0.135 0.136 0.142 N ew Zealanđ 0.027 Nonvay 0.520 0.490 0.439 Pakistan 0.002 0.000 0.002 9.470 1.218 2.351 3.079 0.849 0.000 0.025 0.139 0.337 Panama Poland Portugal Romania 1.854 0.457 0.392 0.390 0.429 0.340 0.274 0.108 0.070 0.000 0.000 0.854 1.061 1.660 0.273 S a in t K itts a n d N e v is Saìnt Lucia 0.349 0.372 0.393 Slovenia 1.187 0.952 0.739 South Africa 0.027 S a in t V in c e n l a n d th e 0.297 1.717 2.160 7.653 4.687 0.579 0.599 Grenadines Slovak R e p u b lie 0.503 1.376 53 129 0.630 WTO M em ber 1995 19% Spain 1997 1998 1999 2000 0.196 0.101 0.145 0.107 2001 2002 0.120 0.093 Swedcn 0.193 0.254 0.308 0.297 0.205 0.172 0.152 0.148 Sw it/crland 0.015 0.013 0.026 0.020 0.022 0.067 0.075 0.069 Thailand 1.109 1.059 1.117 0.707 0.153 0.181 0.000 0.000 0.002 0.001 0.272 0.502 1.878 0.659 0.530 2.069 Taipei Chinese Tunisia 2.070 2.002 2.076 2.556 United Kingdom 0.000 0.130 0.099 0.148 0.198 0.1 75 0.100 0.106 United States 0.076 0.074 0.063 0.010 0.059 0.058 0.054 0.080 0.172 0.284 0.102 0.378 0.420 Uruguay Source: W TO Sccretariat 54 Table of Statutes and other Legal Instruments International Treaties and Conventions Agreem ent on Subsidies and Countervailing Measures, issued 1995 Agreem ent on Agriculture General A greem ent on Tariffs and Trade 1994 General A greem ent on Tariffs and Trade 1947 National Legislation Vietnam The Ordinence on m easures against subsidized Products imported intoVietnam (No 4/22//2004/PL/Ư B T V Q H 11) The Law on G overnm ent organization on 12/25/2001 Table of Cases W T/DS46/AB/R, Brazil-Export Financing Programm e f o r Aircraft, Appellate Body Report, Adopted 20 August 1999 W T/DS46/AB/RW , Braĩil-Export Financing Programme f o r Aircraft recourse by Canada to Article 21.5 o f the DSU, Appellate Body Report, Adopted 21 July 2000 W T/DS70/AB/R, Canada-measures Affecting the Export o f civilian Aircraft, Appellate Body Report, Adopted 20 August 1999 W T/DS267/AB/R, United States-Subsiclies on Upland Cotton, Appellate Body Report, Adopted March 2005 W 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