The EC anti dumping regulations and their application with respect to vietnam

Joint Svvedish-Vietnamese M aster’s Programme MASTER’S THESIS Pham Thi T n g The EC Anti-dumping Regulations Their application with respect to Vietnam D r B u i X a n N h u Prof Moẽll, Christina THƯ V IỆ N TRƯƠNG ĐẠI HỌC LŨÂT HÀ NÔI p h ỏ n g DO C Preĩace and Acknovvledgements First o f all, I would like to express my thanks to both o f my supervisors, Professor Christina Moell, Faculty o f Law, Lund University, Svveden and Dr Bui Xuan Nhu, Paculty o f International Law Hanoi Law University They have given me inany good pieces o f advice and supported me during my research Proíessor Moell spent a great deal o f time reading my thesis, even during her holiday, and made many valuable comments She also helped me fmd the necessary material for the thesis also express my thanks to the 1ibrarians vvorking in the libraries o f the Faculty of Lavv, Lund University and Hanoi Law University, especially Ms Huong and Ms Anna NVithout their kind help, I could not have finished my thesis also would like to thank Deputy Proíessor Hoang Phuoc Hiep - the international law department, Ministry o f Justice, Vietnam for his suggestions when I choose the topic o f my thesis and his ansvvers to my queries Last o f all, I \vant to thank all the members o f my íầmily and all o f my triends for their support Table of Content Preface and A cknow ledgem ents Table o f Content A bbreviations Introduction 1.1 Back ground 1.2 Purpose 1.3 M e th o d 1.4 M a te ria l 1.5 D elim itations Dumping, anti-dumping and overvievv on EC anti-dumping investigation against V ietnam 2.1 Dumping and anti-dum ping 2.1.1 What is “dum ping”? 2.1.2 History o f dumping and at p resen t 2.1.3 Anti-dumping in international l a w 2.1.4 The relation betvveen EC law and WTO l a w 2.1.5 Anti-dumping evolution in E C 2.2 Overview on EC anti-dưmping investigations against V ie tn a m .10 Determination o f d u m p in g 12 3.1 For the market economy countries 13 3.1.1 Normal value 13 3.1.2 Export p ric e 20 3.1.3 C o m p a riso n 23 3.1.4 Dumping m a r g i n 26 3.1.5 Zeroing 27 3.2 For the non- market economy country 27 Determination o f injury 30 4.1 Like product 31 4.1.1 Product c o n c e rn e d 31 4.1.2 Like p ro d u c t 32 4.2 Community in d u stry 33 4.2.] Notion o íC o m m u n ity industry 33 4.2.2 Determination o f Community industry 34 4.3 irýury 35 4.3.1 Notion o f “ in ịu ry " 35 4.4 The causal link betvveen dumped irnport and injury 39 4.5 Community interest 40 Procedure 41 5.1 The advantages o f cooperation 41 5.2 Terminating the proceeding 42 5.3 C ircum vention 42 Conclusion: 43 International Treaties and C onventions 44 National Legislations 44 Vietnam 44 Table o f C a s e s 45 EC D e c isio n 45 Bibliography 48 Official Reports and other D ocum ents 48 M onographs .48 Articles in Journals, Anthologies etc 48 Abbreviations AD Agreement Agreement on Implementation o f Article VI o f General Agreement on Tariffs ans Trade APEC Asian - Pacific Economic Conference ASEAN Association o f South East Asia Nations CIF Costs o f Insurance and Freight e.g For example EC European Community ECJ Court o f Justice o f the European Communities etc Et cetera EU European Union Eurostat European statistic FOB Free on Board G ATT General agreement on the Trade and Tariffs IP Investigution period IT Individual treament IZ Industrial Zone LEFASO Leather and Footwear Association M ET Market economy treatment M SG Monosodium Glutamate No Number OEM Original Equipment Manufacturer PCN Product concerned RBM Ring-binder mechanisms SGA Selling, General and Administration costs W TO World Trade Organizarion Introduction Introduction 1.1 Background As a result o f globalisation, economic integration has become a major tendency in every country and Vietnam is no exception Vietnam is now a member o f many international and regional associations and organisations, such as: the World Trade Organisation (WTO), the Association o f South East Asia Nations (ASEAN), the Asian-Paciíìc Economic Conference (APEC) The economy o f Vietnam is gradually accessing global trade When taking part in internationai trade, Vietnamese enterprises have had many good opportunities o f dealing with other foreign companies in order to market their Products, get proíit and broaden their market share However there have been many challenges to face And one o f these is the imposing o f anti-dumping duties on Vietnamese goods Up to May, 2008, there had been 27 anti-dumping investigations o f Vietnamese goods, 10 o f them from the E U No one can count the exact damage which the economy, the society and the people o f Vietnam has suffered as a result o f these investigations For example, due to the EC anti-dumping investigation o f Vietnamese footwear with uppers o f leather, exports will decline and foreign investment will move to other countries according to the report from the Leather and Footwear Association (LEFASO) and the Ministry of Trade From the \vebsite: http//www.vietnamnet.vn, and the article: “ Vietnam oppose E C ’s 10% tax on its shoes” 7th October, 2006 “Many foreign partners have left Vietnamese enterprises and decided to place orders with producers from other countries Local companies have become less competitive in the EU market This has resulted in low sales o f products and lower incomes for Vietnamese vvorkers, which were very low already” To avoid being subjected to such loss and damage, Vietnamese enterprises need to know about anti-dumping regulations and their application This thesis hopes to contribute to their understanding the EC anti-dumping regulations to allow them to avoid being involved in anti-dumping cases or at least be able to react positively if they are investigated Statistics on anti-dum ping case with Vietnam involvement up to May 2008 http://anti-dumping.vn/beta/en/page/statistics/anti-dumping Short title o f the thesis 1.2 Purpose The main aim o f my thesis is to íìnd ways for Vietnamese enterprise to avoid being involved in anti-dumping cases or to react in the positive way if their goods are considered as having been dumped ỉn order to achieve this, vvill examine the EC anti-dumping regulations and their application in Vietnam cases So these questions need to be ansvvered: What are the EC anti-dumping regulations ? How are the EC anti-dumping regulations applied against Vietnain? What lessons can be drawn by Vietnamese enterprises? 1.3 Method The method vvill be used in the thesis are the traditional methods uscd in law researching such as analysis, synthesis and comparison 1.4 Material All the legal texts and documents studied can be found on three main vvebsites: - The European Comm ission vvebsite: http://ec.eui'opa.eu The World Trade Organization website: w w w w to.org The website o f Vietnam http://chongbanphagia.vn Cham ber of comm erce and industry: The thesis will also use books, articles and cases which relate to the implementing o f the EC anti-dumping regulations and the ten Vietnarnese cases wi 11 also be studied 1.5 Delimitations The thesis will only cover o f the anti-dumping cases where the EC initiated proceedings against Vietnam (shoes/slippers will not be covered) However at one point, the íbcus will be on One typical example only Dumping, anti-dum ping and an overview o f the EC anti-dum ping investigatiom tìf Vietnamese eníerprises Dumping, anti-dumping and an overview o f the EC anti-dumping investigations of Vietnamese enterprises 2.1 Dumping and anti-dumping 2.1.1 W hat is “dum ping”? D um ping can be simply deíined as selling a product below its normal value It is defined in GATT (General Agreement on Tariff and Trade) Article VI as: 1) selling at an export price which is below the home market price 2) selling at an export price vvhich is below the export price to a third country, or selling at an export price \vhich is below the cost o f production plus proĩit and selling cost 2.1.2 History o f dum pin? and the current situation After World War II, a new surge o f dumping occurred, gathering strength in the late 1970s The phenomenon seems to have increaseđ because o f the GATT, advances in technology and the emergence o f newly industrialised countries Since the 18lh century, whenever production capacity increases rapidly and the desire for market expansion grows, dumping becomes a big issue.2 Antidumping laws were fưst passed in the early 20th century in Canada The law gave thc govemment the right to lcvy a special duty on goods After that, similar laws were passed in South Africa, Australia, Great Britain, New Zealand and the United State Article VI o f the GATT 1994 is now the basis for establishing an international anti-dumping lavv The purpose o f the Article is however not to control the practice o f duniping, but to regulate the administration o f antidumping measures A ntidumping measures imposed by a m ember o f the World Trade Organization are authorized under the Agreement on Implementation o f Article VI o f the General A greem ent on Tariffs and Trade 1994 (the AD Agreement) “A ntidumping measures are unilateral remedies which may be applied by a M em ber after an investigation and determination by that Member, in accordance with the provisions o f the A D Agreement, that an imported product is “ d um p e d ” and that the dumped Wenxi Li A ntid u m p in g Law o f the W TO /G A TT a n d the EC G d u a l E volution o f A n tid u m p in g Law in G lo b a l E conom ic Integration Juristfồrlaget i Lund Page 23-24 and also Viner, íòotnote 1, supra, pp.36-37 Short title o f the thesis imports are causing material injury to a domestic industry producing the like product” 2.1.3 Anti-dumping in international law Within the iníemational arena, anti-dumping la\v must be based on treaties: Ít is contained now in one agreement (the AD agreement) In general, the G A T T anti-dumping law in both Article VI and the subsequent C odes contains two prerequisite conditions and procedual ruies for an anti-dumping action Article VI does not prohibit dumpine, nor any o f the three Codes, Article VI condem ns dum ping only if there exists dumping which causes or threatens material inrjuy to an established domestic industry or materially retards the establishment o f a domestic industry The two conditions for an anti-dumping action are theretbre: (i) existence o f dumping, and (ii)material injury o r threat o f material injury to a domestic industry, or material retardation to establish a domestic industry In nature, the G A T T rules for determination o f both dum ping and injury are rather technical These rules provide various and sometimes, alternative or surrogate, approaches for determining vvhether dum ping has occurred as well as vvhether a domestice inđustry has been inịuried T he procedural rules are mainly developed by and contained in the three successive G A T T A nti-dumping C odes4 2.1.4 The relation between EC law and W TO law The relationship between EC and WTO anti-dumping law can be considered under two aspects: The íìrst relates to the applicability o f WTO law in the Community The ECJ has held in several cases that GATT and WTO law not have direct effect in the EC legal system but must operate through the EC legal instruments5 Secondly, even if WTO anti-dumping law is not directly applicable in the EU it still has an effect on this region by indirect means In other words, the WTO antidumping law is implemented in the EC by way o f Regulations which are directly applicable in all Member States Elenor Lissel, A field study o f an EU anti-dumping proceeding - The case o f Vietnamese footwear, p.13 W enxi Li A n tid u m p in g Law o f the W TO /G A TT a n d the EC G d u a ì E volution o f A n tid u m p in g Law in G lobal E conom ic Integration Juristfổrlaget i Lund Page 23-24 and also Viner, íootnote 1, supra, p p 36-37 See case C-149/96 Portugal V Council, ECR 1-8395, para 47 D eterm ination o f inịury An investigation shall not be initiated pursuant to paraaraph unless it has been determined, on the basis o f an examination as to the degree o f support for, or opposition to, the com plaint expressed by Com munity producers o f the like product, that the com plaint has been made by or on behalt' o f the Community industry The com plaint shall be considered to have been made by or on behalf o f the C om m unity industry if it is supported by those Com munity producers whose collective output constitutes more than 50 % o f the total production o f the like product produced bv that portion o f the Com munity industry expressing either support for or opposition to the complaint However, no investigation shall be initiated when C om m unity p roducers expressly supporting the com plaint account for less than 25 % o f total production o f the like product produced by the Cornmunity industry In the footwear case, the definition o f Community industry: T he com plaint was lodged by and/or on behalí' o f Com munity producers representing a total o f 814 com panies Those complainants vvere found to account for a mạjor proportion o f the total Com m unity production o f the product concerned, i.e in this case around 42 % For the purpose o f the injury analysis, and in view o f this significant number o f complaining C om m unity producers, the provisions o f the Article 17 o f the basic Regulation had to be applied A sample o f 10 producers vvas selected accordingly T hese 10 com panies, representing slightly more than 10 % o f the production o f the complaining C o m m unity producers, fully cooperatcd in the investigation On the basis o f the above, it is considered that the 814 complainant Com munity producers, i.e those sampled and the other non-sampled Community producers, are deemed to constitute the C o m m u nity industry vvithin the meaning o f Article 4(1) and Article 5(4) o f the basic Regulation They vvill hereinaữer be reíerred to as the ‘C om m unity industry’56 4.3 Injury 4.3.1 N otion o f “ injury” Article 3(1) stated that: Pursuant to this Regulation the term 'injury' shall, unless otherwise speciíìed be taken to mean material inịury to the Community industry threat o f material inịury to the Community industry or material retardation o f thc establishment of such an industry and shall be intcrpretcd in accordancc \vith thc provisions o f this Article According to above Article, there are three ways to determine irýury, they are: - The material irýury; - The threat o f material injury to the Community industry or 56 Council Regulation (E C ) N o 553/2006 , recital 150, 151, 152 Shorí íitle o f the thesis - The material retardation o f the e sta b lis h m e n t o f such an industry M aterial injury 4.3.1.1 There is no dìnition o f material injury in the Basic Regulation but it lists some factors \vhich are considered when determining material irýury, and they are: - the volume o f the dumped imports; - the effect o f the dumped imports on prices in the Community market for like Products; and - the consequent impact o f those imports on the Community industry57 (1) The volume o f the dumped imports Article 3(3) o f Basic Regulation stipulated that: With regard to the volum e o f the du m pe d imports, consideration shall be given to vvhether there has been a signiíicant increase in dum ped imports, either in absolute terms or relative to production or consu m ption in the C o m m u n ity In practice, the Commission normally assesses the volume o f the dumped import based on the increase in imports in terms o f absolute volumes and market share The data vvhich is used to calculate that volume is the figures published by Eurostat In bicycles, the volume imported from Vietnam for the period between January 2000 and 31 March 2004 increased from 307 282 units to 577 737 units (413%) The Vietnamese share o f the market increased from 1,77% to 8,7% in the IP In footwcar, the volume imported from Vietnam for the period betvveen 2001 and 1P increased from 41 241 pairs to 81 477 pairs (equal 98%) The Vietnamese share o f the market increased from 7,00% to 13,8% in the IP When determining the share market increase, it should be noted that the de minimis rule must be considered Article 5(7) Basic Regulation states that: P ro ce ed in g s shall not be initiated against countries vvhose imports represent a market share o f below % , unless such countries collectively accou nt for % or more o f C om m unity consumption This means that if the market share held by imports is lower than 1%, the antidumping proceeding shall be terminated unless such countries collectively account for 3% or more Although de minimis rule is contained in the W T O anti-dumping agreement, it is stil! a m ajor issue in most anti-dum ping cases Recent surveys reveal that de minimis rule is favorable to a decision vvhich states that injury for the Com m unity 57 Council Regulation (EC ) N o 384/96, Article 3(2) 36 D eterm ination fìf inịury industry exists For the EC anti-dumping investigation, if the de minimis rule is applied, the number o f cases where injury for Com m unity industry is found to exist increases % 58 In recent times, some types o f Vietnamese goods are imported have a market share lower than 1% but they are still involved in anti-dumping investigation when linked to the larger market share o f Chinese goods G as-fuelled pocket lighters is one example EC would like to apply anti-dumping measures to prevent the flood o f Chinese gas-fuelled pocket lighters and Vienamese lighters was also involved This seems to be a problem for Vietnamese enterprises who import the like product with other producers in other countries They must follow what is happening to get early signals o f an anti-dumping investigation so that they can react in a positive way (2) the effect of the dumped imports on prices in the Community market for like products The effect in this case must be understood as follows: With regard to the effect o f t h e dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as com pared with the price o f a like product o f the Com munity industry, or w hether the effect o f such imports is othervvise to depress prices to a signiíicant degree or prevent price increases, which wou!d othervvise have occurred, to a signiíicant d e g r e e 59 Price undercutting is normally determined by the average sale prices o f exporter in a specific country with the Community industry’s average selling prices in the Community However, it may be calculated in other ways In M onosodium G lutam ate: Price undercutting was established 011 the basis o f a com parison o f the export price, conventional duty paid, with the ex-works prices charged by the Community industry at the same level o f trade60 (3) the consequent impact o f those imports on the Community industry ỉt is stated in Article 3(5) o f Basic Regulation that: T he examination o f the impact o f the dumped imports on the Com munity industry concerned shall include an evaluation o f all relevant economic factors and indices having a bearing on the State o f the industry, including the fact that an industry is still in the process o f recovering from the effects o f past dumping or subsidization, 58 Dinh Thi My Loan, 2006, Activeness to react in the anti-dumping investigations 59 Council Regulation (EC) No 384/96 60 Council Regulation (EC) No 2051/98, recital 52 Shorl title o f the thesis the m agnitude o f the actual margin o f dumping, actual and potential decline in sales, proíits, output, market share, productivity, return on investments, utilization o f capacity; tầctors affecting Com munity prices; actual and potential negative effects on cash flow, inventories, em ployment, wages, growth, ability to raise Capital or investments This list is not exhaustive, nor can any one or more o f these factors necessarily give decisive guidance In Bicycles, to determine the impact o f dumped bicycles on the Community industry, ten tầctors were in consideration Finally, the Commission found that: - Despite the overall decrease o f Community production, the sampled producers have managed to maintain and even increase their production The sampled producers have managed to some extent to benìt from the existence o f the measures, but any possibilities for further growth has been undermined by the dumped imports - Sales prices have decreased and proíit levels have remained at low levels despite the increase in sales - Stock levels have increased and employment has decreased - The total Coinmunity production had decreased by 20 %, overall sales have decreased by 21 % and the market share o f the total Community industry has fallen by 16 % The above statistics led to the conclusion that the Community industry had suffered material injury within the meaning o f Article o f the basic Regulation.61 4.3.1.2 The threat o f m alerial injury to the Com munity industry The threat o f material injury to the Community industry is provided for in Article 3(9) as follows: A determination o f a threat o f material injury shall be based on facts and not merely on allegation, corýecture or remote possibility T he change in circumstances vvhich would create a situation in vvhich the dumping would cause injury must be clearly foreseen and imminent In making a determination regarding the existence o f a threat o f material inịury, consideration should be given to such íactors as: (a) a signiílcant rate o f increase o f dumped imports into the Community market indicating the likelihood o f substantially increased imports; (b) suffìcient freely disposable capacity o f the exporter or an imminent and substantial increase in such capacity indicating the likelihood o f substantially increased dum ped exports to the Community, account being taken o f the availability o f other export markets to absorb any additional exports; 61 Council Regulation (EC) No 1095/2005 recital 150, 151, 152 38 Determ ination o f inịurv (c) whether irnports are entering at prices that would to a significant degree, depress prices or prevent price increases which othervvise would have occurred, and would probably increase demand for further imports; and (d) inventories o f the product being investigated N o one o f the factors listed above by itself can necessarily give decisive guidance but the totality o f the factors considered must lead to the conclusion that further dum ped exports are imminent and that, unless protective action is taken, material injury will occur This dìnition is quite detailed There is no need to comment on it m aterial retardation o f the estabỉishm ent o f such an industry 4.3.1.3 There is no particular provision in the EC anti-dumping regulations reĩerring to this issue The Commission wi11 consider this factor on a case by case basis 4.4 The causal link betvveen dumped import and injury In an anti-dumping investigation, the causal link between the dumped import and injury is normally tested to ensure that the Community industry was injured after dumping occurred and because o f it To determine the causal link between dumped import and injury, the Commission regularly examines62: - The coincidence o f delerioration o f a Community industry with occurrence of dumped imports; - Other factors which were at the same time injuring a Community industry; and - Degree o f the irýury if a coincidence was established The term “coincidence” in this case is understood that two or more events occur or happen at the same time Other factors which were normally to be considered are: (i) Import that were not sold at dumping prices; (ii) Demand for or consumption o f a product under investigation; and (iii) Export o f the Community industry In M onosodium Glutamate, Cum ulated imports from the countries concerned by the new investigation increased their total market share from % in 1994 to 36 % in the investigation period, i.e by 27 percentage points or 300 % In contrast, the Com munity industry increased its market share by 14 % betvveen 1994 and 1995, but overall had a decrease in market share o f % between 1994 and the investigation period63 62 Wenxi Li, A nti-d u m p in g Lơw o f the W TO /G A TT a n d the EC: G d u a l E volution o f Anti- d u m p in g Law in G lobal E conum ic Integration, juristfõrlaget i Lund, 2003 Short title o f the thesis Other íầctors like other imports, development o f consumption export activity were also examined in this case but the Commission concluded that: Given the fact that MSG is a commodity-type product, offered in a transparent market through similar sales channels in the Community, it was considered that dum ped imports o f MSG originating in the three countries subject to the new investigation, taken in isolation, have caused material irýury to the Community industry T his conclusion has been confirmed by the analysis carried out in respect o f any other possible factors causing injury, notably imports from the countries concerned by the revievv investigation, which decreased substantially up to the investigation period, and the switch o f the production process carried out by the Community industry N one o f these factors was such as to break the causal link betvveen the material injury suffered by the C om m unity industry and the dumped imports from the countries concerned by the new investigation.64 4.5 Community interest Anti-dumping measures will be applied on the basis o f a dumping determination, irỹury determination and the Commưnity interest factor As stated in Article 21 (1) o f the Basic Regulation: based on an appreciation o f all the various interests taken as a whole, including the interests o f t h e domestic industry and users and consum ers A nti-dum ping may not be taken if they should contravene the interest o f the Community As analyzed above, in most cases, the Commưnity industry suffers injury from thc dumped import This means that the Community industry will get help if the antidumping measures are imposed This is the point o f levying the anti-dumping measures The interest o f users and consumers are considered as factors in the community interest under the Basic Regulation In practice, the Commission does not usually pay much attention to these factors on the basis that users or consumers tend not to care whether anti-dumping duties are imposed or not Instead o f that, the Commission takes other factors in consideration In Stainless S te e l fasteners\ the interests of Community industry, the importer/distributors, upstream suppliers, users and consumers were all evaluated and the Commission finally concluded that: H aving examined the various interests involved, it is provisionally concluded that, from an overall Com munity interest perspective, no 63 Council Regulation No 2051/98, recital 62 64 Ibid, recital 70 40 interest outvveighs the Procedure C om m unity industry's interest to provisionally impose m easures with the aim to eliminate trade distorting effects resulting from dum pe d imports6 So the important factor behind imposing anti-dumping measures is the Com m unity interest In practice we can conclude that: some factors are missing when evaluating the Com m unity interest such as: the value o f the trade affected by measures, the importance o f the Community industry and competition aspects They suggest the Community interest could be better assessed if one also looks at: estimating static costs o f anti-dumping duties, estimating the size and importance o f the total Community Industry, assessing the risks associated with dumping, assessing the interest o f concerned parties which did not contact the Commission and improving access to the Commission services for interested parties66 Procedure The procedure o f an anti-dumping start with the lodging o f complaints Based on these , the Commission will decide whether to initiate an anti-dumping proceeding or not After that, the investigations is carried out In this period, some preliminary decisions may be made: - a decision on applying a provisional anti-dumping duty and later the definitive anti-dumping duty; - term in atin g the p ro c e e d in g In this part, the author does not describe all o f these regulations but only íbcuses on: the advantages o f cooperation in the investigation period Terminating the proceeding Circumvention as some Vietnamese cases had problem with one or more o f these issues 5.1 The advantages of cooperation According to the Basic Regulation: The Commision has used the highest dumping margin found with regard to an exporter who did not cooperate in the IP 65 C om m ission Regulation ( E C ) N o 771/200 5, recital 175 66 National Board o f Trade, 0 , T re atm ent o f the “ C om m unity interest” in EU anti-dum ping investigations Short lille o f the thesis A Community producer who retuses to cooperate will not be regarded as being p a r t o f the Community industry If the analogue countrv refuses to cooperate, the Community has to select another analogue country If a party has subm itted false or misleading information, the Commission will rely on the facts available to calculate the dumping margin If the exporter provided partial replies only to a request for iníbrmation, the Commission can use the facts available to calculate dumping margin These regulations give the Commission the right to decide which method to apply when finding the true extent o f dumping If an exporter cooperates with the Commission and submits all iníormation related to itself, this is an advantage in comparison with just using the facts available If the Commission uses the facts available the duinping margin is, in most cases much higher than normal 5.2 Terminating the proceeding O f the ten Vietnamese cases , there were two (gas-fuelledpocket lighters and certain tube or pipe fìttings) which were terminated during the proceeding because o f the withdrawal o f the the complaint This was a good experience for the Vietnamese enterprises involved in the anti-dumping investigation They need to cooperate vvith the investigations authorities to show that in some cases our market share is very small in comparison with the larger shares o f other neighbouring countries and that applying the anti-dumping proceeding to our product is unfair 5.3 Circumvention O f the ten Vietnamese cases, three o f them (cerlain zìnc oxides, integrated electronic com pact Ịìuorescent lamps and rìng binder m echanism s) refer to the situation vvhere goods are made elsevvhere, transferred to Vietnam and only after that, exported to the Community Under the Basic Regulation, those goods can still be subjected to an anti-dumping proceeding if the goods can be considered as being dumped In these cases, the dumping margins found by the Commission are very high The level o f dìnitive anti-dumping duty was correspondingly high and the companies suffered a great deal from the investigation So Vietnamese enterprises need to be careful when importing goods from China and then exporting them to the EC 42 Conclusion: From the above statistics, \ve can conclude as t'ol!ows: On the one hand, undergoinu an anti-dumping investigation is very dangerous for the Vietnamese economv and the Vietnamese people and their society So the target for Vietnamese exporters should be to avoid being involved in such a situation For this, enterprises should note: Recognising the early signs o f an anti-dumping proceeding is very important because we can best prepare hovv to react to this Thus, we should pay attention to our Products which are exported to the EC Purthermore, we must follow vvhat happens to like Products from other countries in the region which are also imported there, especially if they are first shipped to Vietnam We can see that in the ten above cases, o f them involved other countries such as: the Peoples Republic o f China, Thailand and Taivvan The enterprises alone cannot this There should be cooperation between the competent authorities and the enterprises as a whole especially those operating by way o f a tederation o f enterprises So the enterprises producing in a íìeld need to establish a federation to get iníbrmation and act on behalf o f single cnterprises if needed cases Whcn untbrtuaately involving in an anti-dumping cases, Vietnamese enterprises need to keep calm and cooperate with the Commission in a positive way in order to get the best results Vietnamese enterprises should recorded figures pursuant to international standards so that they can use the data in other antidumping proceedings to help calculate the normal value which best reflects the actual operation o f the enterprises On the other hand, reacting to an anti-dumping case is not the duty o f the enterprises alone but is also the responsibility o f the competent authorities The authorities should help enterprises in understanding the EC regulations and their implementation The authorities should help the enterprises subject to an investigation because this is a problem not only for the enterprises but also for the Government Vietnam is a mem ber o f the WTO, so if there is a dispute under WTO antidumping law, the government o f Vietnam can ask the WTO disputes settlement body to resolve it These are some o f the ideas o f the author vvhich may assist both Vietnamese enterprises and the government 43 Table o f Statutes and other Legal Instruments International Treaties and Conventions The general agreement on trade and tariff The anti-dumping agreement National Legislations Vietnam Constitution (1992) o f the Socialist Republic o f Vietnam Civil Code (No 33/2005/Q H 11 o f 14 June 2005) Law on Land (No 13/2003/QH11 o f 26 Novem ber 2003) Law on Investment 44 Table of Cases EC Decision Council Regulation (EC) N o 2051/98 o f 24 September 1998 imposing a deíinitive anti-dumping duty on imports o f monosodium glutamate originating in Brazil and Vietnam, am ending Regulation (EC) no 81/96 in respect o f anti-dumping measures concerning imports o f monosodium glutamate originating in the Republic o f Korea and Taiwan and terminating the proceeding in respect o f imports o f monosodium glutamate originating in the United States o f America and Indonesia, OJ L264 29.9.98 Notice o f initiation o f an anti-dumping proceedings concerning imports o f disposable gas-fuelled pocket lighters originating in People's Republic o f China, Indonesia, Malaysia and Vietnam and o f the initiation o f an interim revievv o f the antidumping duty on imports o f gas-fuelled, non-refillable pocket flint lighters originating in the People’s Republic o f China or consigned from or originating in taivvan and on imports o f certain reĩillable pocket flint lighters originating in the People’s Republic o f China or consigned from or originating in Taiwan, OJ C153 27.6.2002 Commission Decision o f 11 September 2003 terminating the anti-dumping proceedings concerning imports o f disposable gas-fuelled pocket lighters originating in People’s Republic o f China, Indonesia, Malaysia and Vietnam and terminating the interiin revievv o f the anti-dumping duty on imports o f gas-fuelled, non-refillable pocket flint lighters originating in the People’s Republic o f China or consigned from or originating in taiwan and on imports o f certain relìllable pocket flint lighters originating in the People’s Republic o f China or consigned from or originating in Taivvan, OJ L228 12.9.2003 Commission Regulation (EC) No 2261/2002 o f 18 December 2002 on initiating an investigation concerning the alleged circumvention o f anti-dumping measures imposed by Council Regulation (EC) No 408/2002 on imports o f certain zinc oxides originating in the People’s Republic o f China by imports o f certain other zinc oxides originating in the People’s Republic o f China and by imports o f certain zinc oxides consigned from Vietnam and making such imports subject to registration, OJ L344 19.12.2002 Council Regulation (EC) N o 1623/2003 o f 11 September 2003 extending the antidumping duty imposed by Regulation (EC) No 408/2202 on imports o f certain zinc oxides originating in the People’s Republic o f China to imports o f certain other zinc oxides consigned from Vietnam, whether declared as originating in Vietnam or not, and to imports certain zinc oxides originating in the People’s Republic o f China and mixed with silica, OJ L232 18.9.2003 Commission regulation (EC) No 1733/2003 o f Setember 2003 imposing an investigation concerning the alleged circumvention o f anti-dumping measures imposed by Council Regulation (EC) No 119/97 on imports o f certain ring binder m echanisms originating in the People’s Republis o f China by import o f certain ring binder m echanism s sonsigned from Vietnam whether declared as originating 45 in Vietnam or not and making such imports subject to registration, OJ L249 1.10.2003 Council Regulation (EC) No 1208/2004 o f june 2004 extending the detìnitive andtidumping measures imposed bv Regulation No 119/97 on imports of certain ring binder mechnisms originating in the PeopIe’s Republis o f China to import of the same product consigned from Vietnam OJ L232 1.7.2004 Notice o f initiation o f an anti-dumping proceeding concerning imports ofbicycles originating in Vietnam, OJ c 103 29.4.2004 Council Regulation 1095/2005 o f 12 July 2005 imposing a deíinitive anti-dumping duty on imports o f bicycles originating in Vietnam and amending Regulation (EC) No 1524/2000 imposing a dìnitive anti-dumping duty on imports o f bicycles originating in the People's Republis o f China, OJ LI 83 14.7.2005 Notice o f initiation oa an anti-dumping proceeding concerning imports o f certain tube or pipe ĩittings originating in Taiwan ans Vietnam, OJ C203 11.8.2004 Commission Decision o f July 2005 terminating the anti-dumping proceeding concerning imports o f certain tube or pipe íittings originating in Taiwan and Vietnam OJ L 175 8.7.2005 Notice o f initiation o f an anti-dumping proceeding concerning imports o f stainless Steel íasteners and parts thereof originating in the People’s Republis o f China, Indonesia, Malaysia, the Philippines, Taiwan, Thailand and Vietnam, OJ C212 24.8.2004 Commision Regulation (EC) No 771/2005 o f 20 May 2005 imposing a provisional antidu m pin g duty on im port o f certain stainless Steel fasteners and parts th e re o f originating in the People’s Republis o f China, Indonesia, Taivvan, Thailand and Vietnam, OJ L128 21.5.2005 Council Regulation (EC) No 1890/2005 o f 14 November 2005 imposing a definitive antidumping duty and collecting definitively the provisional duty imposed on import o f certain stainless Steel fasteners and parts thereof originating in the People’s Republis o f China, Indonesia, Taivvan, Thailand and Vietnam, OJ L302 19.11.2005 Commission regulation (EC) No 1582/2004 o f Setember 2004 initiating an antidumping investigation concerning the possible circumvention o f anti-dumping measures imposed by Council Regulation No 1470/2001 on import of intergrated electronic compact fluorescent lamp originating in the People’s Republic o f China by import o f integrated electronic compact fluorescent lamp consigned from Vietnam, Pakistan or the Philipines, whether declared as originating in Vietnam, Pakistan or the Philipines or not, and making such imports subject to registration OJ L 289 10.9.2004 Council Regulation (EC) No 866/2005 o f June 2005 extending the deíinitive antidumping measures imposed by Regulation (EC) No 1470/2001 on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People’s Republis o f China to imports o f the same product consigned ữom the Socialist Republic o f Vietnam, The Islamic Republic o f Pakistan and the Republic o f the Philippines, OJ L145 9.6.2005 46 Council Regulation (EC) No 1205/2007 o f 15 October 2007 imposing anti-dumping duties on imports o f integrated electronic compact íluorescent lamps (CFL-i) originating in the People’s Republis o f China follo\ving an expiry revievv pursuant to Article 11(2) o f Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic o f Vietnam, the Islamic Republic o f pakistan and the Republic o f the Philippines, OJ L27217.10.2007 Commisssion Regulation (EC) No 553/2006 o f 23 March 2006 imposing a provisional anti-dumping duty on imports o f certain footwear with uppers of leather originating in the People’s Republis o f China and Vietnam, OJ L98 6.4.2006 " Council Regulation (EC) No 1472/2006 o f October 2006 imposing a deĩmitive anti-dumping duty and collecting detìnitively the provisional duty imposed on imports o f certain footwear with uppers o f leather originating in the People’s Republis o f China and Vietnam Bibliography Unless otherwise stated, all Internet links shown in this bibliography have been assessed on 30 Novem ber 2008 Official Reports and other Documents The European Commission website: http://ec.europa.eu The World Trade Organization website: www.wto.org The website o f Vietnam Chamber o f commerce http://chongbanphaaia.vn and industry: Monographs Analytical index, Guide to G A T T law a n d practice, Printed in USA, 1994 Wenxi Li, A nti-dum ping Law o f the ĨVTO/GATT and the EC: Graduaỉ Evolution of A nti-dum ping Law in Global Economic Ịntegration, juristfÕrlaget i Lund, 2003 Van Bael & Bellis, A nti-dum ping and other trade protection Laws o f the EC, Kluwer-Law International, 2004 Wolfgang Muller, Nicholas Khan, Hans-Adolf Neumann, EC Antì-dum ping Law - A com m entary on Reguỉation 384/96, John Wiley & Sons, 1998 Paul Craig and Grainne De Burca, E U law: text, cases and materials, Oxford University Press, 2003 Mitsuo Matshusita, Thomas J Schoenbaum and Petros c Mavroidis, The W orld Trade Organization: !aw, practice and policy, Oxford University Press, 2006 International Bar Association Series, Keith Steele (Ed.), Anti-dumping under the WTO: a comparative review, Kluwer Law International and International Bar Association, 1996 Articles in Journals, Anthologies etc Treat o f the “Community interest” in Eu antidumping investigation - National Board of trade Kommerskollegium 48 European Communities - Antidumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil Irỹury Investigation in Antidumping and the Super-Addtivity Effect: A theoretical Explanation Europeasn Communities - antidumping measures on farmed salinon from norway ... already” To avoid being subjected to such loss and damage, Vietnamese enterprises need to know about anti- dumping regulations and their application This thesis hopes to contribute to their understanding... anti- dumping regulations and their application in Vietnam cases So these questions need to be ansvvered: What are the EC anti- dumping regulations ? How are the EC anti- dumping regulations applied... only Dumping, anti- dum ping and an overview o f the EC anti- dum ping investigatiom tìf Vietnamese eníerprises Dumping, anti- dumping and an overview o f the EC anti- dumping investigations of Vietnamese