RESTRICTEDWORLD TRADE
ORGANIZATIONWT/ACC/VNM/23
6 March 2003
(03-1292)
Working Party on the
Accession of Viet NamOriginal:  English
ACCESSION OF VIET NAM
Additional Questions and Replies
The Government of the Socialist Republic of Viet Nam has submitted the following replies to
additional questions raised concerning the Memorandum on the Foreign Trade Regime of Viet Nam,
with the request that they be circulated to the members of the Working Party.  Hereunder are replies to
questions raised by WTO Members on the basis of document WT/ACC/VNM/16 and other relevant
documents.WT/ACC/VNM/23
Page ii
CONTENTS
II. ECONOMY, ECONOMIC POLI CIES AND FORE IGN T RADE ......................................1
2. Economic Policies............................................................................................................ ..........1
(a) Main directions ............................................................................................................. ............1
(c) Monetary and fi scal policies................................................................................................ .....1
(d) Foreign and domestic investment policies ..............................................................................2
(f) Privatizati on polic ies...................................................................................................... ...........3
III. FRAMEWORK FOR MAKING AND ENFORCING POLICIES AFFECTING
FOREIGN TRADE IN GOODS AND TRADE IN SERVICES ...........................................5
5. Laws and Legal Acts.......................................................................................................... .......5
IV. POLICIES AFFECTING TRADE IN GOODS .....................................................................6
1. Import Regulation............................................................................................................ .........6
(a) Registration requirements fo r engaging in importing...........................................................6
(b) Characteristics of  national tariff .......................................................................................... ...8
(c) Tariff quotas, ta riff exemptions............................................................................................ ...8
(d) Other duties and charges, specifying, any charges for services rendered ...........................9
(e) Quantitative import restrictions, including prohibitions, quotas and licensing
systems ........................................................................................................................ .............10
(f) Import licensing procedures ................................................................................................. .11
(h) Customs valuation........................................................................................................... ........13
(k) Application of internal taxes on imports ..............................................................................15
(m,n,o) Anti-dumping, countervailing duty and safeguard regimes ...............................................163. Internal policy affecting foreign trade in goods ...................................................................16
(a) Industrial policy, including subsidy policies.........................................................................16
(b) Technical regulations and standards, including measures taken at the border
with respect to imports ........................................................................................................ ...29
(c) Sanitary and phytosanitary measures, including measures taken with respect to
imports ........................................................................................................................ .............29
(d) Trade-related inve stment measures ......................................................................................34
(e) State-tradi ng practices ..................................................................................................... ......39
(k) Government procurement practices .....................................................................................40
4. Policies affecting foreign tr ade in agricultu ral products.....................................................42
V. TRADE-RELATED INTELLECTUAL  PROPERTY REGIME.......................................45
1. General...................................................................................................................... ...............45
(a) Intellectual pr operty policy................................................................................................ ....47
(c) Membership of international intellectual property conventions and of regional
or bilateral agreements........................................................................................................ ...50WT/ACC/VNM/23
Page iii
(e) Fees and taxes.............................................................................................................. ............50
2. Substantive standards of protection, in cluding procedures for the acquisition
and maintenance of intelle ctual property rights ..................................................................51
(a) Copyright and related rights................................................................................................ ..51
(b) Trademarks, includi ng service marks...................................................................................58
(c) Geographical Indications .................................................................................................... ...59
(d) Industrial designs.......................................................................................................... ..........62
(e) Patents..................................................................................................................... .................64
(g) Layout designs of in tegrated circuits ....................................................................................69
(h) Requirements on undisclosed information, including trade secrets and test data............69
4. Enforcement .................................................................................................................. ..........70
(d) Any special bo rder measures ................................................................................................. 83
VI. TRADE-RELATED SE RVICES RE GIME .........................................................................85
1. General...................................................................................................................... ...............85
VII. INSTITUTIONAL BASE FOR TRADE AND ECONOMIC RELATIONS
WITH THIRD COUNTRIES ................................................................................................88
1. Bilateral or pluril ateral agreements......................................................................................88WT/ACC/VNM/23
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II. ECONOMY, ECONOMIC POLICIES AND FOREIGN TRADE
2. Economic Policies
(a) Main directions
Question 1
Dual Pricing.  From what we understand, the dual pricing mechanism is still applied to
electricity prices, airfares, rail fares, and the expenses charged for using such infrastructures as
port facilities.  Through this system, higher costs have been imposed on foreign firms andpersons than on the Vietnamese ones.  Since those foreign firms and persons have been facing
certain difficulties in developing their businesses, we hope that Viet Nam will abolish the dual
pricing mechanism.
Answer:
Heading towards a uniform pricing mechanism, the Government of Viet Nam has worked out a
schedule to progressively eliminate the price gap between Vietnamese and foreign individuals and
firms. As the result, almost all the charges and fa res, including the rail fares and charges for using
infrastructures, have been uniformed. As from July 2002, only electricity tariffs and domestic airfares
are subject to dual pricing. The price gap between foreign and domestic customers in these two
sectors, however, will be narrowed gradually so  that by 2005 a uniform pricing mechanism shall
apply.
As far as the electricity tariffs are concerned, the price gap will be eliminated by raising the prices
borne by the Vietnamese customers to the level payable by the foreigners. Due to the low level of
income of the Vietnamese people, the adjustment process may become extremely difficult. It is,
therefore, reasonable to make this process more or less gradual to mitigate the negative effects it may
have on people’s livelihood.
Despite many difficulties, the Government of Viet Nam is determined to implement the schedule of
eliminating the dual pricing mechanism. This process will be supported by a salary reform, which has
already taken place.
(c) Monetary and fiscal policies
Question 2
Foreign Exchange.  As Viet Nam has a lot of restri ctions, such as the compulsory sale of foreign
currency, the limitations on banks which can settle  trade in import and export, and restrictions
on the transfer of foreign currency, we request Viet Nam to make improvements
Answer:
Surrender requirement is a temporary balance of payment measure of Viet Nam after the regional
financial crisis. It has never been a trade measure. Under the Poverty Reduction and Growth Facility
(PRGF) program signed between Viet Nam and IMF, the surrender rate was gradually lowered from
80 per cent (1998), 50 per cent (1999), 40 per cent (2001) and 30 per cent (2002). According to the
agreement, Viet Nam undertakes to lower this rate by the end of 2003.WT/ACC/VNM/23
Page 2
At present, almost all restrictions on current transaction were removed. Also under the PRGF
program, Viet Nam will remove in 2003 all remaining restrictions on current accounts transactions
relating to import/export payment and international remittance.
(d) Foreign and domestic investment policies
Question 3
It is necessary to go through more than 2 differen t procedures involving different ministries in
order to carry out investment in Viet Nam.  Furthermore, there are a lot of ambiguous matters
in relation to the requirements and procedures.  We request Viet Nam to introduce a one-stop
service and to make its system clearer.  A uniform application of an investment-related regime
should be secured all over the region.  Stock-ho lding companies should be allowed as one form
of investment.
Answer:
In order to simplify procedures relating to investment and increase the transparency and predictability
of the legal and policy system relating to investment, The Government is reviewing some regulations
of Decree No 24/2000/N§-CP which provide guidelines for implementing the Law on Foreign
Investment. The purpose of reviewing is to increase the group of projects subject to investment
registration regime which is much more open than investment licensing regime and clarify criteria for
accepting or refusing the grant of investment licence….  Viet Nam has authorized the grant ofinvestment licence to provincial committees and management committee of industrial parks at
provincial level with a view to simplifying and sh ortening the licensing procedures. Such province as
Binh Duong has applied the licensing regime which allows the investment licence to be granted in 1
week only.
Question 4
Labour policy.  Viet Nam has a discriminatory labour system against foreign-invested
companies.  The latter can only hire employees through the “Recruit Center”, and must pay a
salaries in dollars to the local persons working in the local offices of a foreign-invested company.We request Viet Nam to make improvements in this regard.
Answer:
On 2 April 2002, the National Assembly of the Socialist Republic of Viet Nam approved the amended
Labor Code which went into effect from 1st January 2003. According to Section 1 of Article 132,
“foreign invested enterprises are allowed to directly recruit Vietnamese employees without having
recourse to any employment promotion centers…” As a result, since January 1st 2003, foreign
invested enterprises are not obliged to recruit their personnel through employment promotion centers.
Payment of wages to Vietnamese employees working for domestic offices of foreign invested
enterprises in Viet Nam is carried out according to Decision No 708/`1999/Q §-BL§TBXH dated
15/6/1999 by the Minister of Labors, Invalids and Social Affairs on minimum wages payable to
workers in foreign invested enterprises.
Question 5
Land policy.  As the Vietnamese land regime is complicated and unclear, this has become a
large barrier to foreign compan ies when establishing their co mmercial presence and engagingWT/ACC/VNM/23
Page 3
in business.  We request Viet Nam to improve its laws and regulations relating to land, and to
make the provisions clearer.  In addition, we also request an extension of the right to use land,
for example over 100 years or an indefinite period.
Answer:
Over the past years, Viet Nam’s legal system governing land use rights has constantly been amended
and complemented in order to simplify related pro cedures and create favorable conditions for foreign
investors. The 2000 amended law on foreign investment allows investors to pledge their assets
associated with land and land use right to borrow  capital from all credit institutions permitted to do
business in Viet Nam. Previously, they were allowed to borrow from Vietnamese credit institutions
only. This Law also clearly provides for the responsibility of Provincial Committees and parties on
the Viet Nam side in compensating and clearing necessary procedures relating to land use rights.
 (f) Privatization policies
- State-owned enterprises
Question 6
Para 36 of the factual summary document notes that certain state-owned enterprises in Group 2
would remain majority state-owned, some would retain a special or controlling interest by the
state and a certain limited group of long-standing loss-making enterprises would be disposed ofby the state.  In addition, foreign investors co uld only participate up to 30 per cent of the shares
of enterprises/sectors and only in those areas identified by the Prime Minister.
To what extent has this privatization/equiti zation program succeeded ? Have any changes been
made to the selection of enterprises/sectors where government ownership or control was to be
maintained? Have changes been made to the sectors and/or percentage of shares that can be
owned by foreigners?
Answer:
Up to 31 August 2002, Viet Nam has equitized and tr ansformed the ownership of 985 enterprises, 90
of which are in transport sector, 344 in trading sector, 19 in fishery sector, 501 in construction sector
and 31 in agricultural sector.
Decree No.64/2002/ND-CP dated 19 June 2002 on tran sforming State-owned enterprises to joint-
stock companies has superseded the Decree No.44 /1998/ND-CP dated 29 J une 1998. The new Decree
has relaxed a number of restrictions such as: (i) removing limitations on the proportion of initially
issued shares that individuals and legal entities can purchase from the equitized enterprises; (ii) after
selling shares to their staff with favorable condi tions, the equitized enterprises shall sell at least
30 per cent of the remaining shares for outsiders th rough intermediary financial institutions in the
form of auctions.
The criteria for enterprises in which 100 per cent State-ownership should be retained and enterprises
subject to  equitization have been adjusted by  the Decree No.58/2002/QD-TTg dated 26 April 2002
of the Prime Minister, which stipulates that the State only retains certain large scale enterprises  doing
business in State-monopoly fields  or public-interest enterprises.  Other State-owned enterprises will
be equitized with a view to diversifying the owne rship types.  State-owned general corporations will
be merged, dissolved or transformed into individual enterprises.  Only a few qualified general
corporations will be retained and restructured, foll owing the model of parent (i.e., holding) companies
and subsidiaries.WT/ACC/VNM/23
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The limit on total value of shares owned by foreign investors remains unchanged as stipulated in the
Amended Law on Promotion of Domestic Investme nt (i.e., foreign ownership shall not exceed
30 per cent of the joint-stock company’s registered capital) Foreign investors may own more than
30 per cent per cent of the joint-stock company’s re gistered capital if the company shifts into FDI
enterprise being governed by the Law on Foreign Investment.
Question 7
Viet Nam has also sought a transition period to eliminate the dual pricing for foreigners and
Vietnamese by 2005. What justification does Viet Nam have for a transition period? Can
Viet Nam advise what plans it has for the phased elimination of dual pricing over the proposed
transition period? Similar information needs to be provided for the other transition periods that
Viet Nam has sought.
Viet Nam is encouraged to use the negotiation period to introduce ch anges needed for the
implementation of WTO consistent measures.
Answer:
The Government of Viet Nam has worked out a schedule to eliminate progressively the dual pricing,
heading toward a uniform pricing for both Vietnamese and foreigners.  In July 2002, the dual pricing
mechanism applied only to electricity and domestic air fares.  The price gap between foreign anddomestic customers in the two service sectors shall be narrowed gradually.  By 2005, a uniform
pricing mechanism shall apply for both foreigners and Vietnamese.
In order to eliminate the differences in electricity tariffs for foreigners and Vietnamese, in the coming
years, Viet Nam will increase the electricity price for Vietnamese toward the same price payable by
the foreigners.  However, as the income of Vietnamese remains low and Viet Nam’s enterprises arefacing  fierce price competition in the process of international integration, the adjustment of
electricity price is a difficult process and therefore must be done gradually to mitigate its effects on
people’s normal life and businesses.
Concerning domestic air fares for passengers, Viet Nam will consider increasing air fares for
Vietnamese and reducing air fares for foreigners until a uniform pricing structure is reached.
Despite many difficulties in solving the two issu es, the government of Viet Nam is determined to
implement the schedule for eliminating the dual pric ing mechanism.  This will be done in tandem with
the salary reform to raise people’s income.
Question 8
We welcome the new/amended laws that have been passed over the past two years (document
WT/ACC/VNM/15/Add.1 refers). Also pleased that Viet Nam has listed a number of
laws/ordinances which it intends to introdu ce during 2002-2003; these include the areas of
safeguard measures, and anti-dumping and countervailing duties, on which there is no proper
regulatory framework.
However, the existence of laws or regulations does not of itself ensure consistency with WTO
rules as there are sometimes disparities between  laws and their enforcement.  For example,
Viet Nam’s personal income tax legislation on the face of it provides more favorable terms of
foreigners.  It remains, however, very diffic ult for employers to implement these terms due to
the myriad of procedures involved.  Similarly, while the law on foreign investment provides for
broadening of the form and nature of the investment, foreign investors have found it difficult toWT/ACC/VNM/23
Page 5
utilize these new flexibilities in practice.  The ru le of law is very important and there needs to be
an improvement in the implantation of laws, lega l processes need to be more transparent, and
procedural laws and associated regulations need to be improved and completed.
Answer:
Viet Nam always spares no effort to improve its legal environment and law enforcement.  We highly
appreciate the specific comments on the shortcomings in our legal system as well as in law
enforcement in order to improve them.
III. FRAMEWORK FOR MAKI NG AND ENFORCING POLICIES AFFECTING
FOREIGN TRADE IN GOODS AND TRADE IN SERVICES
5. Laws and Legal Acts
Question 9
Ensuring a uniform application of laws:- We recognize that the bill to amend the Law on the Promulgation of Legal Document is
now under consideration in Viet Nam.  In this regard, we hope that the bill will include
procedures for public comments, and that it will be approved in the national assembly in
order to take prompt effect.
- We also hope that Viet Nam will correct the existing discrepancies among the various
laws and regulations as soon as possible.  When promulgating new laws and regulations,
Viet Nam should avoid any discrep ancy with the existing ones.
- Furthermore, we hope that the relevant government agencies and people’s committees
will respond in a prompter and more reliable manner to the queries raised in the
consultations regarding the interpretation of legal documents.  We understand that theMinistry of Justice intends to issue a recommendation to the Prime Minister’s Office to
the effect that each government body shall establish a consultation section in 2003.  We
hope that this will be realized as soon as possible.
- After the bill to amend the Law on Promulgation of Legal Document comes into effect, it
is expected that the Official Gazette shall be issued twice a month and that the period
for acquaintance shall be set at 90 days.  Thus, in order to develop a system enabling
easy and prompt access to the relevant law documents, we hope that this bill will be
approved and will take effect as soon as possible.
- We request Viet Nam to change the organizat ion in charge of civil trials from the
Bureau of Justice in the People’s Committee to the Court, and also to make clear which
organization is in charge of arbitration.  With regard to settlement of economic disputes,
we request Viet Nam to extend the period, during which a person can file a suit, fromthe current 6 months to 2 years, after the star t of a such dispute occurs (With regard to
intellectual property right, see 5. (2) (c)).  We hope that a series of relevant laws will be
approved in the national assembly and will be enforced as soon as possible.WT/ACC/VNM/23
Page 6
Answer:
- The organization supervising local courts is now the Supreme Court instead of the Ministry
of Justice;
- The civil cases have always been under the authority of Civil Courts which belong to the
People Court system;
- Article 31.1 of the Ordinance on Settlement of Economic Cases specifies that within 6
months from the date on which the economic dispute in question arises, the complainant is
required to file the suit by submitting a written request to the Court. The Decree No 116/CP
dated 5/9/1994 by the Government on the Organization and Operation of Economic
Arbitrators, however, does not have any provision restricting the period to file a case.
- Currently, Viet Nam is in the process of drafting the Ordinance on Arbitration of Commercial
Cases. According to this draft Ordinance, the Ministry of Justice is responsible for exercising
the State control over all the arbitration work. With regard to the period for filing the suit via
arbitration agency, if there is no specific provision for such period, it will automatically be
taken as 2 years after the date on which the dispute in question arises.
IV. POLICIES AFFECTING TRADE IN GOODS
1. Import Regulation(a) Registration requirements for engaging in importing
Question 10
Concerning Viet Nam's current restrictions on foreign-invested firms' right to import, import
for resale, or export, and in response to Question 12 in WT/ACC/VNM/16, Viet Nam indicates
that it "shall adequately deal with this issue when tabling the elimination schedule of existingnon-tariff barriers in WTO accession negotiatio ns." We appreciate this confirmation.  We
suggest that Viet Nam provide additional inform ation to the Working Party on its plans in this
regard.
Answer:
According to our previous response, Viet Nam is of  the opinion that maintaining such restriction does
not violate the "national treatment" obligation (as required by Article III of GATT 1994) as
enterprises are free to choose their scope of business (trading lines) and, upon receiving their
Certificate of Business Registration, they can freely do business within their registered scopes.  Still,
Viet Nam is willing to discuss with interested partners to solve this problem satisfactorily in
comprehensive negotiations on the schedule to eliminate non-tariff barriers within the framework of
Viet Nam’s WTO accession negotiations.
Question 11
WT/ACC/VNM/18 indicates that Article 76, Decree No. 24/2000/ND-CP, 31 July 2000 confers
the right on foreign invested fi rms to export domestic goods, except for those prohibited from
export, and that Article 77 permits distribution by foreign invested firms of legal goods within
Viet Nam.  Please outline any restrictions that remain on foreign or domestic firms concerning
the right to import or to export goods, includi ng any goods whose trade is designated to specific
firms or to the government, and not includi ng trade in goods prohibited from trade.WT/ACC/VNM/23
Page 7
Answer:
Please refer to the paragraph 69 of the Factual Summary and to the answer to question 4.
Concerning State-owned enterprises plea se refer to the answer to question 103.
Besides, Viet Nam maintains no additional restrictions on trading rights.
Question 12
The reply to question 12 of WT/ACC/VNM/16 states that Viet Nam will table its plan for
eliminating its asymmetrical import registration requirements for firms as part of its NTM
elimination schedule in its accession negotiations.  Viet Nam's current import registration
regime is discriminatory against foreign invested enterprises and a violation of the GATT
Article III on national treatment for trade in good s.  National treatment is a basic principal of
the WTO with which all members must comply.  Please provide more details on how Viet Nam
intends to bring this system in to compliance with WTO rules.
Answer:
Please refer to the answer to question 4.
Question 13
We seek confirmation from Viet Nam that upon accession a nondiscriminatory import
registration regime will be in place that allows  both domestic and foreign invested entities to
import inputs, import items for resale, and to export without any restriction, other than
restrictions consistent with GATT Articles XX and XXI.
Answer:
Please refer to the answer to question 4.
Question 14
Trading rights.  Because Viet Nam has strictly restricted trade activities by enterprises with
foreign capitals, such trade activities are extremely limited compared with those of Vietnamese
enterprises, for example importing goods used as inputs in the manufacturing process.  Since
such treatment is against national treatment, we request Viet Nam to make an improvement to
its systems.  In addition, this issue is closely related to distribution services, and we also requestViet Nam to liberalize importation and sales by a foreign company.
Answer:
According to our previous response, Viet Nam is of the opinion that maintaining such regulation does
not violate the “national treatment” obligation (as required by Article III of GATT 1994) as
enterprises are free to choose their scope of business (trading lines) and, upon receiving their
Investment Licence, they can freely do business within their registered scopes. Viet Nam, however, is
willing to discuss this matter with interested pa rtners within the framework of Viet Nam’s market
access negotiations.WT/ACC/VNM/23
Page 8
(b) Characteristics of national tariff
Question 15
We appreciate the confirmation, in the response to question 16 of WT/ACC/VNM/16, that
Viet Nam's current "tariff nomenclature has fu lly complied with the HS nomenclature at a
6-digit level," and that a delay of "one or two years" will be necessary only in establishing an8-digit harmonized tariff nomenclature within the ASEAN Harmonized Tariff Nomenclature
AHTN - Is Viet Nam's tariff nomenclature currently harmonized with that of the six-digit
AHTN? Please confirm the specific HS nomenclatu re currently used by Viet Nam at the 6-digit
level, e.g., is it HS 96?
Answer:
At present, Viet Nam’s import and export tariff nomenclature has been reviewed and adjusted
expeditiously to be harmonized with the ASEAN Harmonized Tariff Nomenclature (AHTN) with a
view to implementing it as of 1 July 2003. This tari ff nomenclature will be applied in intra- and extra-
regional trade.  The AHTN is drafted based on the HS2K version- a newly updated version of HS96.
Viet Nam’s current tariff nomenclature is basically in full compliance with the HS96 nomenclature at
the six-digit level.
Question 16
In response to question 16 in WT/ACC/VNM/9, Viet Nam stated that it would definitively adopt
the HS by 2005. In VNM/16, however, the timeframe was given as "one to two years." What is
the status of Viet Nam's efforts to adop t an 8-digit AHTN? Is 1 January 2005 still the
implementation date foreseen? What steps is Viet Nam taking now to adopt the 2002
Harmonized System nomenclature?
Answer:
The application of the ASEAN Harmonized Tariff Nomenclature (AHTN) depends on the general
development of ASEAN countries.  The current targeted date of ASEAN for the application of AHTN
is from 1 July 2003.
(c) Tariff quotas, tariff exemptions
Question 17
Viet Nam has still to submit is current customs tariff and import statistics for recent years, by
trading partner, and we encourage Viet Nam to provide these to the Working party.  Provision
of this material, in electronic format if possible, would assist in the tariff negotiations.
Answer:
Viet Nam will submit its current customs tariff at a suitable time.  Viet Nam has provided the
Working party with the import-export statistics covering the years 1997, 1998 and is now actively
preparing to submit import-export statistics covering the years 1999, 2000, detailed at the sixth digit
level of HS right after this document.WT/ACC/VNM/23
Page 9
Question 18
The Working Party applauds Viet Nam's assurance that any measures implemented in response
to discriminatory tariff treatment will be in accordance with WTO regulations.  Could
Viet Nam provide information regarding how its legal regulations will reflect this commitment?
What changes will to be made to current legislation?
Answer:
On 22 May 2002, the Standing Committee of the National Assembly approved the Ordinance on Most
Favor Nation (MFN) and National Treatment (NT). Viet Nam, accordingly, has to comply with MFN
and NT obligations when implementing internationa l treaties.  As a result, Viet Nam’s commitments
in WTO on non-discriminatory tariff treatment will be implemented strictly.
Question 19
We thank Viet Nam for the 1997 trade data at th e 6-digit level in HS nomenclature provided in
WT/ACC/VNM/16/Add.l.  Will data for 1998 and 1999 be available as well? If so,
approximately when?
Answer:
Please refer to the answer to the question 10.
Question 20
In WT/ACC/VNM/2, the Memorandum on the Foreign Trade Regime, Viet Nam stated that its
current rates of duty were basically established by Decision No. 280/TTg dated 25 April 1994,
with "some adjustment and modification" made "in response to change s in international and
domestic markets with a view to giving guidance on consumption and developing fair
competition," and that "tariff rates range from 60 per cent to 0 per cent. .." Does Decision No.280/TTg still basically govern Viet Nam's tariff  structure, or has there been a significant
revision? Please indicate what changes have been made, and provide a copy of Viet Nam's
current applied tariff rates.  We will find it difficult to make progress in market access
discussions without reference to Viet  Nam's current applied tariff rates.
Answer:
At present, the Decree No.280/TTg is still effective.  Concerning tariff rates, please refer to paragraph
81 of the Factual Summary.
Please refer to the answer to question 10.
(d) Other duties and charges, specifying, any charges for services rendered
Question 21
In WT/ACC/VNM/2, the Memorandum on the Foreign Trade Regime, Viet Nam stated that
"non-tax surcharges" were imposed selectively on some imports and exports on a temporarybasis to fund the Price Stabilization Fund and those importers were also required "to pay a
surcharge of about 5-10 per cent over c.i.f. price value to the Fund." We seek the elimination of
all non-tariff charges on imports that are not dome stic taxes applied in conformity with Article
III of the GATT, customs or other fees or charges applied to cover the cost of services, or otherWT/ACC/VNM/23
Page 10
charges authorized by WTO Agreements.  In part icular, we seek the elimination of all "other
duties and charges" within the meaning of Article II: 1(b) of the GATT and the binding of such
charges at "zero" in Viet Nam's GATT goods market access schedule.
Answer:
In our view, GATT 1994 does not oblige a Member to eliminate all "other duties and charges"
(ODCs) within the meaning of Article II: 1(b) of the GATT 1994. Viet Nam is in the process of
rationalizing its export-import tariff structure and rates so we need to use ODCs.  Commitments on
ODCs will be discussed in details between Viet Nam and interested WTO Members.
Question 22
Would Viet Nam please provide information to explain the basis for other duties and charges of
a type covered by GATTT Article II: 1 imposed on cement clinkers, ceramics, paper and steel,
as well as the level at which these charges are currently imposed?
Answer:
Other duties and charges (ODCs) have been imposed on cement, clinkers, ceramics, paper and steel in
order to implement the program to eliminate non-tariff measures to these products.  ODCs imposed on
these products, therefore, play the role of assisting the non-tariff barrier elimination program in order
to meet two requirements: (i) to mitigate the negative and direct impacts of the elimination of non-tariff measures to these products in the beginnin g period; (ii) Applying ODCs, in the context of
Viet Nam’s legal framework, would ensure the flexibility in solving issues which may arise when
implementing the non-tariff measure elimination program.
ODCs imposed on commodities have been provided in Initial Offer on tariffs of Viet Nam.
(e) Quantitative import restrictions, including prohibitions, quotas and licensing systems
Question 23
Could Viet Nam provide up-to-date and comprehensive information on all current quantitative
restrictions and non-tariff measures imposed on imports, together with a WTO justification or
plans for their removal? Viet Nam has previously indicated that the phased out period for
NTMs and QRs would be rather long, while in some  cases it had not determined the time frame
for their elimination (e.g.  the import restriction on cars-WT/ACC/VNM/9, reply 103). Viet Nam
has indicated that an elimination schedule of QRs will be provided in the context of market
access negotiations; has such a schedule  been submitted to the working party?
Answer:
The elimination schedule of non-tariff measures can be found in document WT/ACC/VNM/25.
Question 24
Under the current system foreign- invested firms do not have the same rights to import, import
for resale, or export as domestic firms.  As a result, imported goods do not benefit from the
national treatment requirements of GATT Article III and the system could also be seen as a
non-tariff barrier to imports prohibited by GA TT Article XI.  At the last Working Party
meeting, although Viet Nam acknowledged that the current regime violated national treatment
it reiterated that it was in the process of "transition" and that it would need to maintain theWT/ACC/VNM/23
Page 11
differences.  We reiterate that this is an issue Viet Nam needs to begin to address now so that
the discrimination can be eliminated prior to or by the time it accedes to the WTO.
Answer:
Please refer to the answer to question 4.
Question 25
While Viet Nam has made progress in the development and improvement of its legal and
administrative systems to encourage and attract foreign direct investment (FDI), the continued
lack of reform in the mining sector acts as a disincentive to investment by international mining
companies.  Two areas in particular needed to be addressed.  One is the current unclear division
of regulatory responsibility between central and provincial governments.  The other,
Viet Nam’s current approach whereby investment  licenses are traditionally granted for mining
after the exploration stage has been complete d.  Without the relevant investment licenses,
miners who infested capital in mineral exploration did not have the legal rights and protection
given to their investment capital under the foreign investment law.  If Viet Nam wants to attract
FDI in mining it must adjust its mineral investment licensing approach to conform to
international standards i.e. grant investment licenses at the exploration stage.
Answer:
Viet Nam would like to take note of the suggestion.  At present, it is in the process of revising the
Mineral Law to make it more consistent with inte rnational practice as well as with the specific
conditions of Viet Nam.  At the same time, with a view to improving the effectiveness of State’s
management over foreign investment in the particular area of mineral exploitation, the Government
has decentralized the management to local levels by defining clearly the roles, functions and authorityof central and local governments.
(f) Import licensing procedures
Question 26
Approval for import.  Under th e current system, foreign-inves ted companies have to obtain
approval to import from the relevant Vietnamese authority.  In order to obtain approval, such
companies are obliged to submit a detailed pr oduction and sales program, which is quite a
burden on foreign-invested companies.  Such a system has largely impeded trade, and should be
improved without delay.
Answer:
The importation activities of foreign invested compan ies, if complying with their investment licenses,
are not subject to any limitation. Please refer also to the answer to Question 8.
Question 27
We appreciate Viet Nam’s recent actions to eliminate export quotas and import quotas on
fertilizers, and foreign exchange balancing req uirements for importers of consumer goods, as
indicated in WT/ACC/VNM/16.  These are significant improvements in Viet Nam’s trade
regime.WT/ACC/VNM/23
Page 12
The answers to questions 24 and 26 of WT/ACC/VNM/16 mention that Viet Nam will provide
schedules for the elimination of all remaining non-tariff barriers in accession negotiations.
Can Viet Nam confirm that it is committing to the complete elimination of these barriers?
Answer:
The schedule to eliminate WTO-inconsistent non-tariff measures and the Action Plan to implement
the WTO Agreement on Import Licensing Procedur es can be found in document WT/ACC/VNM/22.
Question 28
The response to question 23 of WT/ACC/VNM/16 states: "The rationale for import prohibition
of second hand spare parts of various kinds of automobile is traffic safety, and for import
prohibition of second hand internal combustion engine below 30CV is environmental
protection." What is the domestic regulati on governing these safety and environmental
requirements? Is an import prohibition the leas t trade restrictive means to achieve these goals?
Can Viet Nam confirm that the domestic sale of second hand spare parts and internal
combustion engines below 30CV is also prohibited?
Answer:
The import prohibition of these products is the most feasible measure that Viet Nam can implement to
fulfill these targets given Viet Nam current conditions .  Viet Nam is willing to have further discussion
with interested Members on these measures in the context of detailed discussions on non-tariff
measures.
Question 29
The response to question 23 of WT/ACC/VNM/16 indicates that "Some kinds of virtual
toys" are a type of toy subject to import prohibition. Could Viet Nam clarify what products areincluded under this classification?
Answer:
Virtual toys incite the users to violence, run counte r to Viet Nam traditional morals, etc are subject to
import prohibition.
Question 30
The response to question 25 ofWT/ACC/VNM/16 states that businesses have tool of providing
comment on the Prime Minister's decisions on the importation of through input to their
respective management agency. Do these agencies currently have a formal procedure for
soliciting such what is the procedure? Are these procedures publicly available? If so, where?
Answer:
All enterprises are entitled to send their official documents to relevant management agencies to
express their opinions.WT/ACC/VNM/23
Page 13
Question 31
Viet Nam has undertaken to submit a detailed ac tion plan on implementation of the agreement
on import licensing procedures (reply 31 WT/ACC/VNM/16). We seek advice on when this plan
will be forwarded for consideration of the working party.
Answer:
The Action Plan to implement the WTO Agreement on Import Licensing Procedures has been
submitted to the Secretariat (document WT/ACC/VNM/22 refers).
Question 32
In order to move forward, we need a comprehensive listing of quantitative and licensing
restrictions applied to imports, such as that  promised in response to question 87 in
WT/ACC/VNM/16 and a timetable for the elimination of remaining measures inconsistent with
WTO provisions.
We also need an indication of when Viet Nam will adopt provisions consistent with Articles XI
and XIII of the GATT and the Agreement on Import Licensing Procedures to administer any
such requirements remaining.  Wh en might an Action Plan on the implementation of the WTO
Agreement on Import Licensing Procedures be available?
Such information is critical to market access negotiations, as well as to discussions of a protocol
for Viet Nam’s WTO accession.
Answer:
The NTMs Schedule and the Action Plan for implementing the Agreement on Import Licensing
Procedures have already been submitted to the WTO Secretariat for circulation to Members of the
Working Party.
(h) Customs valuation
Question 33
We have reviewed the documentation provided  for this meeting on Customs Valuation
contained in WT/ACC/VNM/15/Add.1 (Legislative Program); WT/ACC/VNM/1 Questions and
Replies); and WT/ACC/VNM/20 (Action Plan fo r the Implement VII of the GATT 1994). We
note that in the Legislative Program (WT/ACC/VNM/15/Add.1), Viet Nam’s documents have
been promulgated since the 4th session, including a "Law on Customs".
We requ est  tha t a cop y o f t hi s l a w b e pro vided  as soon as possible to the Working Party for
review;
In addition, Viet Nam should respond again to the Valuation Questionnaire with responses that
refer to Viet Nam's new laws and regulations.
Answer:
The Law on Customs No.29/2001-QH10 was approved on 29 June 2001 by the Session X of the
National Assembly of the Socialist Republic of Viet Nam. Article 71 of the Law stipulates additional
rules on customs valuation. We will send the unofficial English version of the Law on Customs to theWT/ACC/VNM/23
Page 14
Working Party. Viet Nam has submitted the Action Plan to implement the WTO Agreement on
Customs Valuation.
Question 34
In reviewing the Additional Questions and Replies (WT/ACC/VNM/16), we note that Viet Nam
has reduced the number of commodity groups subject to State management for minimumcustoms value and that Viet Nam intends to eliminate all minimum pricing Viet Nam fully
implements the WTO Valuation Agreement.
In this regard, and in reference to the Action  Plan for Implementation of the Agreement
contained in WT/ACC/VNM/20, could Viet Nam indicate which of the goals for 2001 were met?
Answer:
Regarding the reduction of the number of commodity groups subject to State management for
customs value, the following goals for 2001 were met:
Reduce the number of commodity groups subject to State management for customs valuation to 7;
Finalize the draft regulations of the Government on pilot application of the GATT/WTO Agreement
on Customs Valuation.
Question 35
Please confirm that Viet Nam's intention to  remove minimum customs value regulations
includes the "price differential surcharge" applied to the goods listed in Annex II of
WT/ACC/VNM/16.
Answer:
Please refer to the Action Plan to implement the WTO Agreement on Customs Valuation (Document
WT/ACC/VNM/20). "Price differential surcharge" is considered one kind of other duties and charges,and therefore, is beyond the coverage of the WTO Agreement on Customs valuation.
Question 36
We look forward to reviewing Viet Nam's new valuation law and the instrument repealing the
"price differential surcharge" as both these pr actices are inconsistent with WTO provisions.
Answer:
Please refer to the answers to questions 24 and 26.
Question 37
Viet Nam is still using minimum import prices  in customs valuation which result in higher
tariffs on imports from some countries, which raised issues of non-MFN treatment of imports,
transparency and consistency with the customs valuation agreement (para 112 of the factual
summary). This is an issue we wish to see Viet  Nam address by bringing its customs valuation
regime into conformity with the CVA.WT/ACC/VNM/23
Page 15
Answer:
While still using the minimum price list in the transitional period, Viet Nam has been minimizing the
differences in the minimum prices of imported goods of different origins. These differences will be
eliminated gradually with the steady implementation of the GATT/WTO Agreement on Customs
Valuation.
(k) Application of internal taxes on imports
Question 38
Re. Question 36: Please provide the current list of goods to which VAT and excise taxes are
applied.
Answer:
The application of VAT and excise taxes is not completely on HS basis (For example: they are
imposed on both goods and services, tax rates for bottled beer and canned beer are different eventhought they have the same HS code). The detailed tax rates have already been provided.
Question 39
Re. Question 39: Please specify which alcohol drinks are produced in Viet Nam and their
alcohol content. Please specify the reason for distinguish between, bottled, canned and fresh
beer for excise tax purposes.
Answer:
At present, Viet Nam is producing most alcoholic drinks with different alcoholic contents. The above-
mentioned tax distinction is mostly due to consumption demand, taking into account the taxable
coverage and the ability to pay tax of customers (consumers).
Question 40
As Viet Nam is currently applying HS nomenclature, we cannot agree, as indicated in the
response to question 36 in WT/ACC/VNM/16, that the listing of Viet Nam’s excise taxes must
await the adoption of the AHTN some years in the future. Please provide a list of indirect taxes
applied to goods, e.g., all sales, VAT, or excise taxes, indicating the HS category and the rates
applied to imports and to domestic products.
When might the list be available?
Please update information on any such taxes applied differently to similar domestic and
imported goods.
Answer:
Please refer to the answer to question 29WT/ACC/VNM/23
Page 16
(m,n,o) Anti-dumping, countervailing duty and safeguard regimes
Question 41
We note that WT/ACC/VNM/15/Add.1 indicates that Viet Nam is developing trade remedy
laws, i.e., "ordinances" for antidumping, countervailing duty, and safeguard action, during the
2002 -2003 period. Please give a status report on their preparation and when the Working Partymight receive a copy of the texts for review.
Answer:
Viet Nam has promulgated the Ordinance on safe guard action. This Ordinance was approved on
25 May 2002 by the Standing Committee of the National Assembly and comes into force on
1 September 2002. A copy of this Ordinance will be sent to the Working Party (if requested).
Viet Nam is drafting the Ordinance on antidumpi ng and the Ordinance on countervailing duty. At
present, the drafting committee chaired by Ministry of Trade has been established and the twoOrdinances are expected to be submitted to the Standing Committee of the National Assembly by the
end of 2003.
3. Internal policy affecting foreign trade in goods
(a) Industrial policy, including subsidy policies
Question 42As a general matter, please provide, where missing, information on the "subsidy per unit or
total budgeted amount".
Answer:
The quantification of the specific measurement su bsidy per unit or the annual total subsidy for each
item in the notifying document is very difficult given Viet Nam’s current statistics and datamanagement conditions regarding this issue.
Specifically, some subsidy measures by means of tax exemptions cannot be expressed through data as
enterprises enjoying the tax exemptions are not required to submit the tax declaration forms. Besides,
the statistics and reports in Viet Nam are mostly done manually; as a result, systemizing these data is
not feasible, given Viet Nam’s current circumstance.
Question 43
Program II (import tariff rates contingent upon localization ratios).  This program appears to
be a prohibited import substitution subsidy (Article 3.1(b) ASCM). Can Viet Nam please
explain how the "localization ratio" is defined and determined in a particular case?
Answer:
Viet Nam’s program on preferential import tariff rates contingent upon localization ratios is aiming at
promoting the development of the manufacturing of products and spare parts in the mechanical-electric-electronic sectors, within Viet Nam’s overall industrialization strategy. Actually, this program
only plays a useful role in a certain development phase of these sectors, but it is an important measure
being applied in Viet Nam. All information regard ing this program is provided in the NotificationsWT/ACC/VNM/23
Page 17
pursuant to Article XVI:1 of the GATT 1994 and Article 25 of the Agreement on subsidies and
countervailing measures (Document WT/ACC/VNM/13/Add.)
This relevant information has been provided in the Notifications pursuant to Article XVI:1 of the
GATT 1994 and Article 25 of the Agreement on subsidies and countervailing measures and
Notification on Trade-related measures. Please refer the above mentioned Documents.
Question 44
II.  Import Tariff Rates Contingent upon Localization Ratios with Respect to Products and
Parts of Mechanical-electric-electronic Industries.  Is assistance under this program contingent
upon export performance?
Answer:
Exporting requirement is not the criteria for applying import- duty incentives contingent upon local
content.
Question 45
Assistance under this program appears to be contingent upon the use of domestic goods over
imported goods. As such, this program constitu tes a prohibited import substitution subsidy
under Article 3 of the Agreement on Subsidies and Countervailing Measures. As such, please
explain what plans Viet Nam has to bring this program into conformity with the SCMAgreement prior to accession to the WTO.
Answer:
In the Action Plan on the Implementation of TRIMs Agreement, Viet Nam has notified this schedule
in which import- duty incentives contingent upon local content will be removed by
31 December 2006. (Please refer to answers regarding TRIMs for more details).
Question 46
Please explain in detail the eligibility requirements under this program.
Answer:
This issue has been explained in details in Notifications pursuant to Article XVI:1 of the GATT 1994
and Article 25 of the Agreement on subsidies and countervailing measures (WT/ACC/VNM/13/Add.)and Notification on Trade-related Investment measures. Please refer the above mentioned documents.
Question 47
Apart from import tariff rate reductions, are th ere any other incentives provided to eligible
firms under this program?
Answer:
Beside tariff-rate reduction of Program II, enterprises have no other incentives.WT/ACC/VNM/23
Page 18
Question 48
What has been granted assistance under this program? Is there a time limit attached to the
incentives?
Answer:
There is currently no legal specification regarding ap plication time for Subsidy Program. There is also
no such specification for eligible enterprises. Ho wever, if the enterprises, during their operation,
reduce the registered local content without approval by competent authorities, or if there is any
fraudulent behaviours committed, such enterprises will be treated according to the nature and level of
violation, and by means of re-collection of import duties or by other means as legally stipulated.
Question 49
What is the duration of the subsidy under this pr ogram?  Once an eligible enterprise has been
granted assistance under this program, is th ere a time-limit attached to the incentives?
Answer:
This program doesn’t have a specific duration.
Question 50
Is the amount budgeted for this program accounted for in the government's annual budget? If
so, what is the total amount or the annual amount budgeted for this subsidy?
Answer:
These subsidies are provided in the form of import-duty incentive which are not covered by annual
State budget and cannot be evaluated.
Question 51
III.  Investment Incentives Applied to Vietnamese Enterprises' Labor-intensive Projects.  Is
assistance under this program contingent upon export performance or upon the use of domestic
over imported goods?
Answer:
This assistant program is based only on the number of employees.
Question 52
Please explain whether assistance under this program is limited to certain enterprises,
industries, or groups of enterprises or industries, or whether all manufacturing and/or trading
sectors located in designated regions are eligible.
Answer:
The assistance under this program is not limited to certain enterprises, industries, or groups of
enterprises or industries.WT/ACC/VNM/23
Page 19
Question 53
We understand that all land is government-owned. Please explain what the average yearly land-
rental would be for eligible companies absent  the exemption provided by the government.
Answer:
The yearly land-rental fees vary between regions and an average level cannot be determined.
Furthermore, we are of the opinion that this program is not a specific subsidy.
Question 54
What is the duration of the subsidy under this program? Once an eligible enterprise has been
granted assistance under this program, is th ere a time limit attached to the incentives?
Answer:
This program doesn’t have a specific duration.
Question 55
Is the amount budgeted for this program accounted for in the government's annual budget? If
so, what is the total amount or the annual amount budgeted for this subsidy?
Answer:
The amount budgeted for this program is not covered by annual State budget and, therefore, cannot be
evaluated.
Question 56
Program IV.  Support for Enterprises Employing a Great Number of Female Employees.  Is
assistance under this program contingent upon export performance or upon the use of domestic
over imported goods?
Answer:
The assistance under this program is not contingent on export performance or upon the use of
domestic over imported goods.
Question 57
Please explain whether assistance under this program is limited to certain enterprises,
industries, or groups of enterprises or industries, or whether all manufacturing and/or tradingsectors located in designated regions are eligible.
Answer:
The assistance under this program is not limited to certain enterprises, industries, or groups of
enterprises or industries.WT/ACC/VNM/23
Page 20
Question 58
What is the duration of the subsidy under this program? Once an eligible enterprise has been
granted assistance under this program, is th ere a time limit attached to the incentives?
Answer:
This program doesn’t have a specific duration.
Question 59
Is the amount budgeted for this program accounted for in the government's annual budget? If
so, what is the total amount or the annual amount budgeted for this subsidy?
Answer:
The amount budgeted for this program is not limited to certain enterprises, industries, or groups of
enterprises or industries.
Question 60
Program V (development assistance).  The interest rate support appears to be export
contingent. Can Viet Nam confirm that this subsidy is repealed?
Answer:
Viet Nam is reviewing its assistant programs a nd working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development(with GNP per capita under US$1,000)
Question 61
Development Assistance for Some Production Projects of Mechanical Industry.  Is assistance
under this program contingent upon export performance or upon the use of domestic over
imported goods?
Answer:
Assistance under this program is not contingent  upon export performance or upon the use of domestic
over imported goods.
Question 62
Please provide a list of the firms that are eligible to receive subsidies under this program.
Answer:
Up to 9 February 1998, there were more than 34 projects in four mechanical sub-sectors: bicycle,
electric fan, power machine and shipbuilding that have received assistance under this program. During
the period when the program remains in force, this list will be further updated.
Question 63
Please provide all eligibility requirements under this program.WT/ACC/VNM/23
Page 21
Answer:
The eligibility requirements under this program are enterprises facing capital difficulties in renewing
technologies to improve the quality of their products.
Question 64
What is the duration of the subsidy under this program? Once an eligible enterprise has been
granted assistance under this program, is th ere a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government's annual budget? If
so, what is the total amount or the annual amount budgeted for this subsidy?
Answer:
Please refer to the Notifications pursuant to Article XVI:1 of the GATT 1994 and Article 25 of the
Agreement on subsidies and countervailing measures covering the period 1999-2000 (Document
WT/ACC/VNM/13/Add.1) for further details.
Question 65
Program VI (investment incentives enterprises with foreign owned capital).  We understand
that this program has been amended and now exists in the form as described in the notification
(see page 18, point 7 notification).  However, this program still constitutes an export and an
import substitution subsidy.  When will it be phased out?
Answer:
When revising the Law on Foreign Investment in 1996, Viet Nam already removed import-
substitution projects from the list of projects subject to investment incentives. In reality, Viet Nam
now doesn’t provide import-substitution projects with incentives.
Incentives applied to export production projects are compliant with WTO rules allowing developing
and less developed countries to apply such incentives  to improve competitiveness in attracting foreign
investment. Therefore, Viet Nam requests that such incentives could be maintained in accordance
with special and differential treatment to developing countries with GNP per capita lower than
US$1,000.
Question 66
VI. Investment Incentives Offered to Enterpri ses with Foreign Owned Capital Which Produce
Goods for Export.  Please confirm whether the G overnment of Viet Nam is prepared to commit
to eliminate subsidies under this program, which are contingent upon export performance, and
therefore prohibited under the SCM Agreement, prior to accession to the WTO.
Answer:
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development(with GNP per capita under US$1,000).WT/ACC/VNM/23
Page 22
Question 67
Program VII (investment incentives for Vietnamese enterprises).  This program constitutes an
export subsidy.  When will it be phased out?
Answer:
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development
(with GNP per capita under US$1,000).
Question 68
Investment Incentives Offered to Vietnamese Enterprises Which Have Projects to Produce
Goods for Export.  Please confirm whether the G overnment of Viet Nam prepared to commit to
eliminate subsidies under this program, which are contingent upon export performance, and
therefore prohibited under the SCM Agreement, prior to accession to the WTO.
Answer:
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development
(with GNP per capita under US$1,000).
Question 69
Program VIII (investment incentives for enterp rises with  foreign owned capital).  Please
describe the relationship between this programmed and program VI. Is eligibility contingent
upon export performance?
Answer:
These two programs are investment incentive programs contingent upon export performance and they
supplement each other in terms of sectors subject to incentives.
Question 70
VIII. Investment Incentives Offered to Enterprises with Foreign Owned Capital Which Operate
in Certain Business Fields and Sectors.  Is assistance under this program contingent upon
export performance or upon the use of domestic over imported goods?
What is the duration of the subsidy under this program?
Is the amount budgeted for this program accounted for in the government's annual budget? If
so, what is the total amount or the annual amount budgeted for this subsidy?
Answer:
Assistance for some kinds of projects under this program is contingent upon export performance.
Please refer to Annexes I and II of the Notifications pursuant to Article XVI:1 of the GATT 1994 and
Article 25 of the Agreement on subsidies and coun tervailing measures covering the period 1999-2000
(Document WT/ACC/VNM/13/A dd.1) for more details.WT/ACC/VNM/23
Page 23
This program does not have a specific duration.
The amount budgeted for this program is not covered by the government’s annual budget.
Question 71
IX. Investment Incentives Offered to Vietna mese Enterprises Which Operate in Certain
Business Fields and Sectors.  Is assistance under this program contingent upon exportperformance or upon the use of domestic over imported goods?
Please explain which business fields and sectors are eligible for this program.
What is the duration of the subsidy under this program? Once an enterprise has been granted
assistance under this program, is there a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted subsidy?
Answer:
The assistance under this program is not contingent upon export performance or upon the use of
domestic over imported goods.
Business fields and sectors eligible for this program are mostly sectors for the development of regions
with difficult socio-economic conditions.
This assistant program doesn’t have a specific duration.Regarding the eligibility criteria of this program, application periods for eligible enterprises, please
refer to section IX of the Notifications pursuant to Article XVI:1 of the GATT 1994 and Article 25 of
the Agreement on subsidies and countervailing measures covering the period 1999-2000 (Document
WT/ACC/13/Add.1).
This program is not covered by the Government’s annual budget.
Question 72
X. Investment Incentives Offered to Enterprises with Foreign Owned Capital in Certain Areas.
Is assistance under this program contingent upon export performance or upon the use of
domestic over imported goods?
Please explain which business fields and sectors are eligible for assistance under this program.Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted for this subsidy?
Answer:
List of regions in which investment is encourag ed is stipulated in Decree No. 24/2000/ND-CP dated
31 July 2000 providing guidelines for implementing the Law on Foreign Investment (we will send the
List to the Working Party). Accordingly, all projects operating in areas undergoing socio-economic
difficulties or special socio-economic difficulties are entitled to incentives in terms of enterpriseWT/ACC/VNM/23
Page 24
income tax, profit-repatriation tax and import duties. These subsidies are not covered by annual State
budget and can not be evaluated.
Question 73
XI. Investment Incentives Offered to Vietnamese Enterprises Which Have Production or
Business Projects Located in Certain Areas.  Is assistance under this program contingent uponexport performance or upon the use of domestic over imported goods?
Please explain which business fields and sectors are eligible for assistance under this program.
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted for this subsidy?
Answer:
Assistance under this program contingent upon investment regions. This is the major criterion to
receive assistance.
Business field criterion is hardly applied.
The amount budgeted for this program is not covered by the Government’s annual budget.
Question 74
Program XII ( export support fund).  Please define the terms "financial support" and "export
reward". Are they grants? The program constitutes an export subsidy. When will it be phasedout?
Answer:
Financial support means any kind of support that confers financial benefit, including grants. So
"financial support" and "export reward" are basically two kinds of grants.
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development
(with GNP per capita under US$1,000)
Question 75
XII. Export Support Fund.  Please confirm whether the Government of Viet Nam prepared to
commit to eliminate subsidies under this program, which are contingent upon export
performance, and therefore prohibited under th e SCM Agreement, prior to accession to the
WTO.
Answer:
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development
(with GNP per capita under US$1,000).WT/ACC/VNM/23
Page 25
Question 76
Program XIII (development assistance fund).  Eligibility is also defined as "production of
export goods". When will this criterion be phased out?
Answer:
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development
(with GNP per capita under US$1,000).
Question 77
XIII. Development Assistance Fund.  Is assistance under this program contingent upon export
performance or upon the use of domestic over imported goods?
What is the duration of the subsidy under this program? Once an enterprise has been granted
assistance under this program, is there a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted subsidy?
Answer:
Assistance under this program is not contingent  upon export performance or upon the use of domestic
over imported goods.
For details on the sourcing and duration of assistance, please refer to the Notifications pursuant to
Article XVI:1 of the GATT 1994 and Article 25 of the Agreement on subsidies and countervailing
measures covering the 1999-2000 period (Document WT/ACC/VNM/13/Add.1)
Question 78
We understand that Viet Nam considers that because it is a developing country with per capita
GNP below US$1,000 it would be able to maintain export subsidies (in other words, in
accordance with Article 27.2 (a) and annex VII of the subsidies and countervailing measures
agreement (SCM). This provision in the SCM is specific to developing countries referred to in
annex VII of the SCM. It is not a self-nominated or expanding list of countries. While we are
prepared to consider some flexibility on ho w Viet Nam phases out its prohibited export
subsidies, Viet Nam has no right to recourse under these provisions to continue to provide
prohibited subsidies following its accession. Furt her, we do not consider that the provisions of
Article 27.4 of the SCM Agreement available to developing countries with a small share of
world export trade agreed at the Doha Ministerial meeting are available to Viet Nam. Given
that Viet Nam will be acceding to the WTO aft er the completion of the implementation period
for phasing out export subsidies for developing countries, we consider that Viet Nam must
phase out its export subsidy schemes upon accession.
Answer:
Being a country at low level of development, with per capita GNP about US$400, Viet Nam proposes
that it receive the same treatment as those given to other WTO Member having similar level of
development.WT/ACC/VNM/23
Page 26
Question 79
Annexes I and II.  We understand that certain listed projects in Annexes I and II are related as
export production. Please explain to which programs the projects in the Annexes relate. When
will the respective program(s) be phased out?
Answer:
Annexes I and II are related to the assistant prog ram VIII (which was described in details in the
Notifications pursuant to Article XVI:1 of the GATT 1994 and Article 25 of the Agreement on
subsidies and countervailing measures covering the period 1999-2000) (Document
WT/ACC/VNM/13/Add.1).
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development
(with GNP per capita under US$1,000).
Question 80
Investment Assistance for Science and Technology Development.  Is assistance under this
program contingent upon export performance or upon the use of domestic over imported
goods?
Please explain which business fields and sectors are eligible for assistance under this program.
How is high-tech defined under this program?
What is the duration of the subsidy under this program? Once an enterprise has been granted
assistance under this program, is there a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted subsidy?
Answer:
Assistance under this program is not contingent  upon export performance or upon the use of domestic
over imported goods.
Please refer to paragraph 5, page 39 of the Notifications pursuant to Article XVI:1 of the GATT 1994
and Article 25 of the Agreement on subsidies and countervailing measures covering the period 1999-2000) (Document WT/ACC/VNM/13/Add.1).
This assistant program does not have a specific duration. Regarding eligible enterprises please refer to
the above Document.
The amount budgeted for this program is not covered by the Government’s annual budget.
Question 81
Support for the Implementation of the Schemes for Development of Priority Industrial
Products.  Is assistance under this program contingent upon export performance or upon theuse of domestic over imported goods?WT/ACC/VNM/23
Page 27
Is assistance under this program limited only to the three enterprises and to those enterprises
which serve as suppliers of materials, etc. to these listed firms?
What is the duration of the subsidy under this program? Once an enterprise has been granted
assistance under this program, is there a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted subsidy?
Answer:
Assistance under this program is not contingent  upon export performance or upon the use of domestic
over imported goods.
In addition to the three listed enterprises, under the Decision No. 19/2001/QD-TTg dated
20 February 2001 of the Prime Minister, computers have been added to this list.
According to the Circular No.86/2000/TT-BTC dated 16 August 2000, the State’s policy on tax
assistance will be valid until 31 December 2003.
The amount budgeted for this program is not covered by the Government’s annual budget.
Question 82
Assistance for the Development of Software Industry.  Is assistance under this program
contingent upon export performance or upon the use of domestic over imported goods?
Some of the assistance under this program does in fact appear to be contingent upon export
performance.
Please confirm whether the Government of Vi et Nam prepared to commit to eliminate any
subsidies under this program that are contingent upon export performance, and therefore
prohibited under the SCM Agreement , prior to accession to the WTO.
What is the duration of the subsidy under this program? Once an enterprise has been granted
assistance under this program, is there a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted subsidy?
Answer:
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries.
However, according to our initial opinion, this is an assistant program for trade in services .
Question 83
Assistance for Vietnamese Newly Established Production and Trading Businesses, for
Vietnamese Expanded Production Businesses, and for Vietnamese Trading Businesses Moving
to Mountainous, Island and Other Disadvantaged AreasWT/ACC/VNM/23
Page 28
Is assistance under this program contingent upon export performance or upon the use of
domestic over imported goods?
Please explain which business fields and sectors are eligible for assistance under this program.
What is the duration of the subsidy under this program? Once an enterprise has been granted
assistance under this program, is there a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted subsidy?
Answer:
Assistance under this program is not contingent  upon export performance or upon the use of domestic
over imported goods.
The eligible fields and sectors are mostly those subject to investment incentives. This program doesn’t
have a specific duration. Please refer to paragraph 5, page 51 and Annex 4 of the Notificationspursuant to Article XVI:1 of the GATT 1994 and Article 25 of the Agreement on subsidies and
countervailing measures covering the pe riod 1999-2000 (Document WT/ACC/VNM/13/Add.1).
The amount budgeted for this program is not covered by the Government’s annual budget.
Question 84
Assistance for Vietnamese Businesses Having Special Activities.  Is assistance under this
program contingent upon export performance or upon the use of domestic over imported
goods?
Please explain which business fields and sectors are eligible for assistance under this program.
How are "businesses have special activities" defined under this program?
What is the duration of the subsidy under this program? Once an enterprise has been granted
assistance under this program, is there a time limit attached to the incentives?
Is the amount budgeted for this program accounted for in the government budget? If so, what is
the total amount or the annual amount budgeted subsidy?
Answer:
Assistance under this program is not contingent  upon export performance or upon the use of domestic
over imported goods.
The term "business have special activities" can be understood as business engage in activities listed in
section XVIII.5 of the Notifications pursuant to Article XVI:1 of the GATT 1994 and Article 25 of
the Agreement on subsidies and countervailing measures covering the period 1999-2000 (Document
WT/ACC/VNM/13/Add.1). Please refer this Notification for other details.
The amount budgeted for this program is not covered by the Government’s annual budget.WT/ACC/VNM/23
Page 29
(b) Technical regulations and standards, including measures taken at the border with
respect to imports
Question 85
Re. Question 61: Please submit a detailed list of  the fees to be paid for safety certification.
Answer:
Viet Nam has established the safety certification system. However, this system has not been
implemented. The regulation on testing and quality certification fees is being drafted. As a result,
Viet Nam will provide the list of fees to be paid for safety certification as soon as this regulation is
issued officially. In principle, these fees are calculated on the basis of the actual costs of services
rendered.
Question 86
We look forward to information on the curren t implementation of the TBT Agreement form of
response to the checklist contained in WT/ACC/8, and the provision of Vi et Nam’s action plan
for legal implementation of the TBT Agreement. We believe that Viet Nam should provide a list
to the Working Party, for the record, of products subject to mandatory product quality
inspection.
Answer:
Regarding the current implementatio n of the TBT Agreement: at present, Viet Nam is expeditiously
establishing an enquiry point to provide enterprise s with information; at the same time completing a
website providing information on TBTs to meet the transparency requirement of the Agreement.
At present, Viet Nam is drafting the Action Plan to implement the WTO TBT Agreement. Viet Nam
will submit this Action Plan to WTO in the very near future.
Regarding the list of products subject to mandatory product quality inspection, at present, products
subject to mandatory product quality inspection are those in the list issued with the Decision
117/2000/QD-KHCNMT dated 26/01/2000, which stipul ate the List of exported and imported
products subject to state’s quality inspection. However, according to the amended Ordinance on the
Quality of Goods promulgated  in 1999, this List is being revised and supplemented in terms of its
governing coverage. Viet Nam will provide the Work ing Party with this new List as soon as it is
issued.
(c) Sanitary and phytosanitary measures, including measures taken with respect to imports
Question 87
We appreciate the action plan for implementati on of WTO provisions on SPS. We have the
following questions on that plan. Viet Nam should  clarify its capacity to do risk assessment.
Does Viet Nam conduct its own independent risk assessment in the areas of plant health, andfood safety?
Answer:
At present, Viet Nam lacks capacity to do its own plant and animal risk assessment  based on
international standards.WT/ACC/VNM/23
Page 30
Question 88
For those areas where Viet Nam does not conduct its own independent risk will Viet Nam
commit to adopting the relevant international standards, rather than saying that measures will
be "based on", or "take into consid eration", those international standards?
Answer:
In principle, Viet Nam applies relevant international standards in areas where Viet Nam does not
conduct its own independent risk assessment.
Question 89
Viet Nam indicates that a transition period will be required after membership in order to
comply with the SPS agreement. Which specific parts of the SPS agreement will require a
transition period? What assistance is needed and what specific steps will be taken by Viet Nam
in order to achieve compliance? Can Viet Nam provide a timeline?
Answer:
After becoming a WTO Member, Viet Nam needs a transition period of 2 to 3 years in order to
comply with the obligations and standards of the SPS Agreement. Viet Nam hopes to receive
international assistance in terms of technical issues, provision of experts, training Vietnamese staff
and provision of technical equipments for laboratories and information systems so that Viet Nam cansoon implement international obligations and standards, Viet Nam especially in need of experts in
disease risk analysis.
Question 90
Comments based on WT/ACC/VNM/11/Rev.1:  Box 1  (new standards shall conform to SPS
Agreement principles).  Viet Nam should plainly state that all new standards, etc., will conform
to SPS agreement principles. Viet Nam references  only certain specific new standards, which
are based on international standards. Do thos e new standards adopt international standards?
Answer:
New sanitary and phytosanitary standards  will conform to international standards.
Question 91
Viet Nam indicates they "shall consider" to ame nd Regulations on plant inspection so that they
will conform to international standards. Has Viet Nam come to a decision on this matter?
Answer:
At present, Viet Nam is considering to amend some national standards so that they will conform to
relevant international standards.
Question 92
Viet Nam indicated specific ordinances, decrees, et c., relating to animal and plant "inspection",
which have been issued or promulgated. But Vi et Nam also states that various standards forWT/ACC/VNM/23
Page 31
these areas are still needed ("shall draft and pr omulgate"). Viet Nam should clarify what has
been done and what is still needed as it relates to compliance with this provision.
Answer:
The amended Ordinance on Plant Protection and Quaran tine has been issued. At present, Viet Nam is
reviewing current regulatory documents on plant protection and inspection to make amendments andsupplements if necessary so that they are consistent with the newly revised Ordinance and
Regulations on plant protection and inspection, Viet Nam will also promulgate new regulatory
documents and standards on plant protection and inspection to provide the guidance for the
implementation of the above Ordinance and Regulations. Viet Nam is drafting the amendments to the
Veterinary Ordinance and other subsidiary legislations. Viet Nam will notify WTO Members of these
documents after the Ordinance  comes into force .
Question 93
Viet Nam indicates that the Ordinance on food and foodstuff is being drafted. Will this contain
all provisions relative to food safety? What is the current status? Are measures based on
independent risk assessment? Are Codex standards adopted?
Answer:
The Ordinance on food and foodstuff regulates all issues relating to food and foodstuff safety.
Specifically, the Ordinance provides regulations to ensure hygiene and safety for production, doing
business, exportation and importation of food and foodstuff, prevention and treatment of food and
foodstuff poison and toxic as well as state management on food and foodstuff hygiene and safety.
The Ordinance on food and foodstuff is being submitted to the Standing Committee of the National
Assembly for consideration and promulgation.
These measures are all based on risk assessment.
At present, Viet Nam has adopted about 60 per cent of CODEX standards and is planning to adopt all
CODEX standards.
Question 94
Box 2 (Transparency, enquiry point).  Question 72 from the August 2001 Working party
document requests clarification concerning establishment of a national enquiry point. The
response does not indicate that Viet Nam understands their obligations. There is no reference to
an enquiry point to cover food safety issues, a single enquiry point, or a timetable for
implementation. Box 2 from the December 2001 action plan still states that Viet Nam has not
established the enquiry point. When does Viet Nam intend to do this?
Answer:
Viet Nam has not established a single enquiry point to provide information on its SPS measures. The
Ministry of Agriculture and  Rural Development is se rving as an enquiry point until an official inquiry
point is established.
The Ministry of Health (the Department of food and foodstuff hygiene and safety management) is the
enquiry point responsible for providing information on food and foodstuff quality and safety.
However, in order to establish this enquiry point, the interagency cooperation among relevantWT/ACC/VNM/23
Page 32
ministries and agencies like the Ministry of Agriculture and  Rural Development, Ministry of Trade,
Ministry of Science and Technology, Ministry of Fishery, CODEX committee, etc is needed.
The scheduled time for the establishment of this enquiry point is in 2006.
Question 95
We have previously asked Viet Nam to commit to the requirement to publish proposed SPS
measures but Viet Nam’s December 2001 action plan does not address this. It will be necessary
for Viet Nam to establish law or guidance re quiring publication of proposed measures,
notification to the WTO, and a reasonable period of time for comments from members.
Answer:
As Viet Nam hasn’t had the enquiry point, it cannot publish its SPS measures. Viet Nam is committed
to publishing its SPS measures when the enquiry point is established in 2006.
Question 96
In the questions and replies published in WT/ACC/VNM/16, question 74 noted that the
transparency obligation was refe renced in the wrong places in Vi et Nam's previous action plan.
Viet Nam responded that "the comment is agree able", but did not make the change in this
action plan.
Answer:
Viet Nam agrees to remove it to the Box 2: Transparency, enquiry point.
Question 97
Box 3 (Necessity of measures applied).  Viet Nam did not make the change suggested and agreed
to concerning question 75 of WT/ACC/VNM/16.
Answer:
Viet Nam agrees with the comment.
Question 98
Box 4 (Regulations based on science).  Please clarify the basis for the statement that Viet Nam
"fully conforms to the obligation of the agreement". We note that Viet Nam has said that their
food safety laws are still pending, other SPS la ws are being drafted or changed, and they have
problems with risk assessment.
Answer:
After the Ordinance on Food and Foodstuff hygiene and safety is promulgated, other relevant SPS
regulatory legislations relating will be issued. The regulations in these legislations will be ensured by
remedies.
As a result, it possible to say that the basis for Vi et Nam to "fully comply with obligations of the
Agreement" is the commitments of the Viet Nam’s government when joining  the Agreement and the
regulatory legislations on food and foodstuff hygiene and safety.WT/ACC/VNM/23
Page 33
Question 99
Box 5 (Harmonization).  The item indicates that "Viet Nam sets out measures on the basis of
international standards..." , but it is still not clear if Viet Nam will adopt the standards of the
relevant international bodies, or under what circumstances Viet Nam might use different
standards.
Answer:
At present, Viet Nam’s standards on food and foodstuff hygiene and safety are set out on the basis of
adjusting and adopting standards of CODEX and FAO/WHO. In cases where CODEX standard s are
not available, the relevant Viet Nam’s standards will be set out on the basis of FAO/WHO. If both
CODEX standards and FAO/WHO standards are not available, Viet Nam will refer to and adopt
standards of regional countries or other developed countries.
Viet Nam is committed to applying international standards after becoming a WTO Member. For some
SPS issues where international standards are not available, Viet Nam will apply national standards to
the extent these standards are consistent with the WTO SPS Agreement.
Question 100
Box 7 (Risk Assessment).  Viet Nam's statements in this area have been confusing. In previous
responses, they indicated that risk assessment is  undertaken at the Central level. In the action
plan document, they state that they have "man y difficulties in the program for risk analysis".
Viet Nam should clarify their capacity to perform risk assessment for SPS measures, and state
their intention to adopt the rele vant international standards for those areas where they do not
have the capability to perform independent risk assessment.
Answer:
As in previous response, Viet Nam meets many difficulties in risk analysis. Viet Nam continues to
welcome and listen to constructive comments to undertake the program for risk analysis.
Question 101
Box 10 (Control, inspection and approval procedures ).  Please clarify this point for us. Viet Nam
has indicated that they conform fully to this obligation, but has also indicated that their foodsafety ordinance is yet to be approved.
Answer:
The Ordinance on Food and Foodstuff hygiene and safety has not been approved yet, but the full
compliance to this obligation is still based on the Law on protection of people’s health, Decree
No. 23/HDBT dated 24 January 1991 on promulgating the Regulation on hygiene, Ordinance on the
quality of Goods, Ordinance on Veterinary Activities, Ordinance on Plant Protection and Quarantine,
Decree No.86/CP dated 8 December 1996 on  settlement of administrative breaches in statemanagement over the health area.WT/ACC/VNM/23
Page 34
(d) Trade-related investment measures
Question 102
We request Viet Nam to fully comply with the TRIMs Agreement upon accession to WTO,
without invoking the transitional period.  Howev er, there still remain certain problems to be
resolved, and we hope that Viet Nam will make progress in the following areas.
- Local Content Requirement.  Viet Nam has imposed local content requirements on
manufactures with foreign-owned capital in  automobiles, motorcycles, and electronic
machinery sectors, and has applied different tariff rates depending on the percentage of
the local content or the preferential tariff ra tes.  These measures are inconsistent with
the TRIMs Agreement, and we request them to be abolished.
- Export Requirement for New Investment.  With regard to the “Decision of the Minister
of Planing and Investment on Promulgation of the List of Products Required to Be
Exported at Least 80%”, which was made publ ic in April 1998, this decision applies
only to foreign investors.  Such a measure is against national treatment and, therefore,
should be abolished.  Furthermore, we a re informed that there are some products on
which the export requirement has not yet been  eliminated, despite that such products
have already been deleted from the List, ba sed on the Decision made in December last
year.
Answer:
According to the submitted Action Plan to implemen t the Trims Agreement, Viet Nam will eliminate
all local content requirements currently applied to projects producing and assembling automobiles,
motorcycles and electronic goods by 2006. Export requirement applied to a number of industrial
products will also be eliminated by 2008.
(1) Local Content Requirement (LCR)
Maintaining the transitional period to eliminate the LCR is consistent with Viet Nam’s
position as a developing country at low level of development, not having enough necessary conditions
to develop these industries. In reality, Viet Nam’s localization program has been implemented only
for a few years. On the contrary, other countries in the region have been implementing these policies
since the 1960s and are still requesting for transitional period for the reasons of domestic difficulties.
Recently, some developing Members were approved to enjoy longer transitional period to implement
the Trims Agreement. Therefore, Viet Nam strongly wishes to be granted a transitional period before
completely removing all measures inconsistent with the TRIMS Agreement.
(2) Export requirement for new investments
In December 2001, the Minister of Planning and Investment issued Decision No 718 to
promulgate the new List of Products subject to e xport requirement. This List has been narrowed
compared to the previous one (from 24 products down to 14 products).
Maintaining such list is necessary for Viet Na m to mitigate the risk of balance of payments
difficulties and to meet other financial demands for economic development and payment of due and
overdue ODA loans. Viet Nam, however, commits to eliminate 2 years after accession at the latest.WT/ACC/VNM/23
Page 35
Question 103
Comments/paragraphs refer to the factua l summary (paragraphs 24, 27, 149 and 181):
Viet Nam provides a number of export subsidies. We note that in Viet Nam’s updated subsidies
notification (WT/ACC/VNM/13/Add.1) a number of programs continue to be contingent on
export performance or on the use of domestic over imported goods.  Some programs alsoappear to be inconsistent TRIMs measures. Viet Nam indicated (para 153) that it would be
studying the consistency of the investment incentives relating to investment in export-producing
sectors with the SCM and TRIMs Agreements.
We are concerned over Viet Nam’s position that it has the right to the continued use of export
subsidies –for example, the provision of tax incentives based on export performance (note paras
29 and 134) on the basis of annex VII of the SC M Agreement. We therefore remain interested in
how Viet Nam intends to phase out these programs upon accession and the timetable for such aphase-out.
Answer:
Viet Nam is reviewing assistant programs and working out an adjustment plan to make them
consistent with WTO regulations and rules for developing countries at a low level of development
(with GNP per capita under US$1,000).
Question 104
The Vietnamese Ministry of Finance issued a decision on 29 June 2001 to provide export
bonuses, based on the amount of export revenue generated, for a range of products including
rice, coffee, canned vegetables, canned fruit and port. It appears this scheme has not been
notified to the working party and Viet Nam shou ld provide details of the mechanism. We also
remind Viet Nam that in two accession negotiations there is clear expectation by WTO
Members that potential new Members will not introduce new restrictive or trade-distorting
measures during the period of the negotiations.
Answer:
Information on assistance will be provided in the Notification on domestic support and export
subsidies in agriculture (in accordance with WT/ACC/4 format).
Question 105
In WT/ACC/VNM/6, Viet Nam states that it "...is in the process of replacing the local content
requirements by local manufacturing requirements."
This would not appear to be acceptable or in comp liance with the TRIMs as it is difficult to see
how a local manufacturing requirement will significantly differ from a local content
requirement.
Local content provisions must be entirely eliminated as they have been found to be
counterproductive to economic development in addition to being inconsistent with WTO
provisions.WT/ACC/VNM/23
Page 36
Answer:
Viet Nam agrees not to replace "local content requirements" by "local manufacturing requirements".
However, Viet Nam requests that it should be allowed to maintain import duty incentives contingent
upon local content until 31 December 2006 as committed in the provided Action Plan for
implementing TRIMs Agreement.
Question 106
WT/ACC/VNM/6, Viet Nam indicates that it will eliminate any TRIMs-inconsistent measures,
and a plan for such elimination is provided in WT/ACC/VNM/8.
This outline is positive and helpful. However, Viet Nam indicates that it is not prepared to fully
eliminate these measures until 2007, claiming automatic recourse to the phased elimination
transition made available to original WTO members in 1995.
Viet Nam applied for WTO accession in 1995 and became acquainted with the requirements of
the TRIMs Agreement. It appears from the notification in WT/ACC/VNM/19 that most of these
measures have been enacted after the Viet Nam's application.
We cannot agree that, given the period of time that has passed, that Viet Nam recourse to this
facility, particularly those instituted after Viet Nam became an accession applicant.
We would prefer that all of Viet Nam's TRIMs be eliminated upon accession and we will need
much more information about TRIMs currently in place and an indication from Viet Nam that
it is prepared to constrain and reduce the scope and impact upon trade of any TRIMs
eventually considered for phased elim ination after the date of accession.
Answer:
After applying for WTO membership, Viet Nam has been positively adjusting foreign investment
laws and policies to make them increasingl y compliant with TRIMs Agreement. Detailed
improvements include:
The Law on Amendment and Supplement to some Ar ticles of the Law on Foreign Investment in
Viet Nam (2000) removed the requirement on foreign exchange self-balancing and allowed foreign-
invested enterprises to purchase foreign exchange  from credit institutions operating in Viet Nam;
According to the new Law, the requirement that foreign invested enterprises have to give priority to
domestic products when purchasing was removed and replaced by another requirement which
provides more alternatives;
The current legal requirement does not limit the quantity or value of domestic production by the
foreign invested enterprises or require them to keep the balance between the quantity or value of their
imports and that of their exports.
In brief, new improvements in the amended law have been made in the direction of compliance with
the TRIMs Agreement. Therefore, it can not be concluded that Viet Nam continues to promulgate
regulations inconsistent with TRIMs though it has been familiar with this Agreement since 1995.
On the other hand, the regulation that local content should be met as a condition for granting
investment licence has been replaced by incentive regulation in terms of import duties. In this regard,
there have been two documents issued since 1998 (Inter-ministerial Circular No 176/1998/TTLT-WT/ACC/VNM/23
Page 37
BTC-BCN-TCHQ and Decision No 1944/QD-BTC) but came into effect since January 2001. As a
developing country with establishing mechanic and electronic industries, Viet Nam requests that it
could maintain these regulations until 31 December 2006 (please refer to Notification on Trade-
related Investment Measures, answer number 97 and other answers regarding industrial subsidies).
Question 107
In WT/ACC/VNM/6 Viet Nam indicated that it is no longer enforces provisions requiring joint-
venture motor vehicle manufacturers to produce a minimum of their components locally.
Please elaborate on this point. If the laws a nd regulations requiring these manufacturers to use
local content in their operations are no long er enforced, have they been replaced? How and
when this would be accomplished?
Answer:
The obligatory requirement of local content as the condition for granting investment licence was
stipulated in Circular No 215/UB-LXT issued by the former State Committee on Cooperation and
Investment. This requirement has now been replaced by tariff incentives as stipulated in the Inter-
ministerial Circular No 176/1998/TTLT-BTC-BC N-TCHQ and Decision No  1944/QD-BTC. Please
refer to answer No 96 and Notification on Trade-related Investment Measures for more information
on this matter.
Question 108
Does Viet Nam believe that the TRIMs listed in WT/ACC/VNM/19 are the only ones in place? Is
Viet Nam still reviewing its regulations in order to identify any further inconsistencies with the
WTO TRIMs Agreement?
Answer:
Notification on Trade-related Investment Measures has already covered all measures which could be
identified at the time of notification. Viet Nam will continue to revise its existing legal documents to
identify other such measures (if any). In this re gard, Viet Nam looks forward to receiving technical
assistance from WTO Members.
Question 109
Please confirm that all foreign exchange ba lancing requirements for domestic and invested
firms have been eliminated and will not be re-introduced.
Answer:
The foreign exchange self-balancing requirement imposed on foreign invested enterprises was
eliminated since 2000 by the Law on amendment and supplement to some Articles of the Law on
Foreign Investment and Viet Nam has no intention to change this regulation. Moreover, Viet Nam
will continue to create favorable conditions for fore ign invested enterprises to get effective access to
foreign exchange at credit institutions for their current and other legitimate transactions.
Concerning the self-balancing requirements imposed on enterprises, Article 33 of the Law on
Amendments and Supplements to some Articles of the Law on Foreign Investment in Viet Nam and
the Decree No.63/1998/ND-CP on foreign exchange management, Circular No.04/2001/TT-NHNN of
the State Bank of Viet Nam stipulate that foreign invested enterprises and parties to businesscooperation contracts are entitled to buy foreign exchange at allowed Banks for their currentWT/ACC/VNM/23
Page 38
transactions, capital transactions and other allowed transactions. Moreover, the Viet Nam’s
Government also considers to ensure the foreign exchange balance for foreign investors investing in
especially important projects under Government’s programs and to ensure foreign exchange balance
of infrastructure projects and other important projects if the allowed banks don’t meet their foreign
exchange needs.
The self-balancing requirement was applied in the past to support the balance of payment, but this
requirement has been eliminated according to current regulations. At present, Viet Nam has no plan to
re-apply this requirement.
Question 110
We note that Viet Nam has now prepared a deta iled action plan (WT/ACC/VNM/18) to bring its
local content requirements into conformity with the TRIMs Agreement which Viet Nam
considers "take(s) into account the special a nd differential treatment provisions accorded to
developing countries"
We agree with the view expressed in para 171 of  the factual summary that Viet Nam should not
maintain any measures inconsistent with the TRIMs Agreement after its accession. We have
particular concerns with a number of TRIMs measures relating to the automotive industry
(outlined in para 172 of the factual summ ary and in WT/ACC/VNM/19) particularly as
Viet Nam’s notification of its TRIMs measures in the automotive sector contains no provision to
eliminate or phase down these measures (which a ppears to be in conflict with Viet Nam’s advice
contained in WT/ACC/VNM/18) (TRIMs Action Pl an) that these measures may be phased out
by 2006).
We consider that these measures may also, in some examples, constitute prohibited export
subsidies. Could Viet Nam advise on what special and differential treatment provisions it
considered applied in regard to these TRIMs measures?
Answer:
Viet Nam will adjust the measures referred to in 172 of the Factual Summary to make them compliant
with the Action Plan for the implementation of TRI Ms Agreement. In this regards, Viet Nam wishes
to receive special and differential treatment for developing countries as stipulated in TRIMs
Agreement.
Please refer also to answers to questions 96 and 97 for more information.
Question 111
While a number of action plans have been submitted, we still consider it would be of benefit to
all if Viet Nam produces a paper setting out requirements and details, including a timetable for
elimination, of all transition periods it is seek ing. For example, Viet Nam has sought a transition
until 2007 (WT/ACC/VNM/18) to maintain TRIMs providing local content requirements in the
auto and electrical product industries. What WTO justification does Viet Nam have for the
continuation of TRIMs once it accedes to the WTO?
Answer:
Please refer to the answers 96, 97 and 100.WT/ACC/VNM/23
Page 39
(e) State-trading practices
Question 112
We remain concerned that specific steps need to be taken to ensure that the operations and
policies of Viet Nam’s STEs are transparent, based on commercial considerations, and do not
distort trade. We believe that export STEs h ave the ability to use their special rights and
privileges to disguise export subsidies  or other anti-competitive behaviour.
One of the programs that we are currently conc erned about is an export enhancement program
called the Money Award For Rice Export Turnover.  We understand that under this program,
the government gives every rice exporter an export "turn-over" payment of VND 180 (about 1.2
US cents) for every dollar.
Can Viet Nam provide us further details on how they will fulfill their pledge to create a level
playing field for all enterprises, and ensure th at STEs activities are in accordance with
commercial considerations?
Answer:
After becoming a WTO Member, Viet Nam will comply with WTO regulations on State trading
enterprises, including the requirement that activit ies of state owned enterprises must be based on
commercial considerations. Regarding rice, Viet Nam has abolished the system of designating statetrading enterprises to export rice.
Question 113
The response to question 86 of WT/ACC/VNM/16 regarding the Agricultural Materials
Corporation (VIGECAM), confirms that the system of fertilizer import quotas and designating
authorized enterprises to import  fertilizer has been phased out.
Could Viet Nam update the Working Party on the method by which VIGECAM determines the
price of imported fertilizer? Are these still  set by the Government Pricing Committee?
Please provide further information on the new ro le of its state trading enterprises (STEs) for
rice now that the export quota on rice has been phased out?
Answer:
As in our response, Viet Nam maintains no focal enterprises (state trading) in rice exportation and
fertilizer importation. The Government Pricing Committee also does not control prices of imported
fertilizers and exported rice.
Question 114
The answer to question 89 of WT/ACC/VNM/16 states that Viet Nam will be issuing an updated
Notification of state trading enterprises for the period of 1999-2001.
When might this be available to the Working Party? There have been several changes to
Viet Nam's STEs since the filing of WT/ACC/VNM/14.WT/ACC/VNM/23
Page 40
What is the role of Viet Nam's state-owned f ood companies in marketing and exporting rice to
foreign markets? Can you provide more details on the Government of Viet Nam's support to
these state companies?
Answer:
Viet Nam will provide this Notification at the earliest possible time.
Regarding rice, please refer to the answer to question 102.
Question 115
Re. Question 85: We would welcome an update on  the reform of the state trading enterprises to
assure the respect of WTO rules
Answer:
Please refer to the answer to the question 103.
(k) Government procurement practices
Question 116
We remain interested in a commitment from Viet Nam to join the Government Procurement
Code.  Such a commitment would have an important impact on market access in Viet Nam
Answer:
Viet Nam is in the process studying the possibility of participating in Agreement on Government
Procurement. Viet Nam isn’t of the opinion that the participation of the Agreement on Government
Procurement is a WTO obligation. Viet Nam, however, has been making efforts to improve the
regulations on government procurement in Viet Nam
Question 117
From the response to question 91 in WT/ACC/VNM/16, we understand that Viet Nam has
passed new laws on issuing tenders and none of these laws make specific reference to lists of
procurement agencies and entities. It is a generally accepted practice that countries publish a
list of government entities and agencies that  procure in accordance with domestic and
international regulations governing procurement practices. When does Viet Nam intend to
produce a list of procuring government entities and agencies?
Answer:
At present, the list of agencies participating in the procurement process (procuring entities) has not
been published. However, these agencies will be established by competent persons or authorities and
notified in the bidding announcement for each particular biding package.
Question 118
Concerning the response to question 92 of WT/ACC/VNM/16, is Viet Nam's notification of
tenders done in a timely and transparent manner for all potential bidders? In other words, areWT/ACC/VNM/23
Page 41
tenders published in an accessible available to foreign and domestic suppliers with a reasonable
and specific deadline to submit bids?
Does Viet Nam have an official publication where tenders are listed? If not, does Viet Nam
intend to develop an official gazette for such actions?
Answer:
According to Viet Nam’s regulations on bidding announcement, procuring agencies and entities have
to publish in widely circulated daily newspapers, or audio-visual or other mass media for at least 3
consecutive issues. This announcement should be made at least 5 days for small bidding package (i.e.
below 2 VND billion for goods purchasing or construction and installation) and 10 days for other
bidding package before the issuance of the bidding documents.
For international tendering, procuring agencies and entities have to make announcement in at least 1
English newspaper widely circulated in Viet Nam or in a number of newspapers as requested by thesponsor.
At present, Viet Nam does not have an official publication for listing bidding activities. As in the draft
Ordinance on Procurement, Viet Nam will establish a newsletter issued and managed by a
government agency to provide general information on tendering activities.
Question 119
Concerning the response to question 93 of WT/ACC/VNM/16, what specific types of
construction projects does Viet Nam require foreign suppliers to enter into partnership with
Vietnamese contractors? Does this requirement apply when construction is merely a component
of a larger procurement contract?
Answer:
The current Regulations on Procurement stipulate that foreign bidders when attending the bidding
process in Viet Nam for construction packages have to form joint-venture with Vietnamese bidders or
commit to employ Vietnamese sub-contractors with clear division of work and respective costs. This
regulation is applied to all construction works.
Question 120
In the second part of the response to question 93, Viet Nam states that "contractors are also
required to ensure' safety' and some other necessary issues."
Does Viet Nam state in its tender documentation which safety regulations apply to a particular
contract? What actions on the part of suppliers constitute "ensuring 'safety'" on a project?
What are the other "necessary issues" that appl y to procurement contracts? If these issues
change by tender, does the tender documentation describe the other necessary issues suppliers
must address?
Answer:
Safety and other necessary issues are stipulated in the bidding documents as well as in contract for
specific package.WT/ACC/VNM/23
Page 42
Question 121
We appreciate Viet Nam's effort to make further improvements to its government procurement
regime, as described in the response to qu estion 95. Please describe the "Ordinance on
Tendering" and how that will provide greater transparency in the procurement process and
how it relates to the current "Decree on Tendering?"
Answer:
At present, the draft Ordinance on Procurement is being completed so that the Government can
present it to the Standing Committee of the Nationa l Assembly for consideration. Comparing with the
current Regulations on Procurement, the draft Ordinance has some new provisions to make the
procurement process more transparent by:
Stipulating that bidding procedures should be mainly conducted in a wide-scope approach whereby
bidding inviter have to make notice of terms and conditions, duration for application,…on the biddingnewsletter;
Publicizing all bidding information on the bidding newsletter, which covers: bidding invitation, list of
restricted bidders, result of selection, list of bidders prohibited for the reason of violation, list of
bidders forced to end contract before expiration for unqualified capability, etc;
Decentralizing to give ministries, agencies, local authorities and project owners more decision-making
power;
Stipulating bad practices, fraudulent behaviours, violations and penalties in tendering; defining rights
to make complaints and obligations to solve complaints for bidders.
4. Policies affecting foreign trade in agricultural products
Question 122We would appreciate information on when Viet Nam intends to submit its tables on aggregate
measures of support (in the format of WT/ACC/4) to the Working Party.
Answer:
Viet Nam intends to provide the Working Party with Notification on domestic support and export
subsidies in agriculture (WT/ACC/VNM/4) in the 6th Session of the Working Party.
Question 123
We would be interested in obtaining details on the trade and sectoral policy support
instruments applied by Viet Nam to its coffee sector over the past ten years, enabling it to
expand the sown area and its production and exports of coffee.  We would be grateful if the
Government of Viet Nam would reply to the following questions in this respect:
Viet Nam has received financial, material a nd technical assistance from various countries
and/or international organizations in developing it s coffee sector over the past 15 years.  In this
connection we have two questions:
− What coffee sowing, production and export programmes has Viet Nam
developed using grants, concessions or soft loans provided by countries,WT/ACC/VNM/23
Page 43
international or multilateral banks or international organizations?  Please
provide details for each programme (type of assistance, amounts involved,
origin, purpose, duration, main achievements, etc.).
− Please state whether Viet Nam is currently involved in international financial
and technical cooperation for the development of the coffee sector and whether
such cooperation is expected to continue over the next few years.  Please state the
countries or organizations involved and the programmes to be implemented.
Answer:
In 1983 Viet Nam signed a number of cooperation agreements with its former socialist partners (such
as USSR, Democratic Republic of Germany, Poland, Czechoslovakia etc.) on coffee sowing and
production. According to these agreements, Viet Nam received a total loan of 30 million Transferable
Roubles (currency unit used in CMEA countries) in fo rm of merchandise such as fertilizer, tractors,
petroleum products, trucks etc. With this kind support, Viet Nam managed to sow 24,500 ha of coffeein its Central Highland, i.e. Daklak, Gia Lai, Kon Tum and Phu Yen provinces. Viet Nam paid off all
these loans in 1991.
At present, Viet Nam is involved in only 02 coffee cooperation programs with foreign partners. The
first one is a technical assistance program  funded by UNDP/FAP aiming at research capacity
building  for Viet Nam's coffee industry. The second one is a project worth VND700 billion to sow
40,000 ha of arabica in the North. The Development Agency of France (AFD) has kindly agreed to
provide a loan of FRF 212 million, which is equi valent to VND 400 billion. The remaining VND 300
billion is financed by Viet Nam itself. The project has managed to sow 8,000 ha of arabica for which
AFD has disbursed loans equivalent to VND70 billion.
Question 124
Viet Nam informed the Working Party of the instruments it used to support the development of
the coffee sector in its "Memorandum on  the Foreign Trade Regime" (document
WT/ACC/VNM/2), in it s replies to questions of Members (documents WT/ACC/VNM/3,6 and
9) and in its "Notification on Industrial Subsidies" (document WT/ACC/VNM/13).  We have the
following questions in this respect:
− Although Viet Nam stated that agricultur al production now depends only on the
rapport between supply and demand in the market, could Viet Nam pleaseinform us whether this assertion applie s to current coffee production?  Please
explain.
− Credit Policy:  what has been the credit  policy for the sowing, production and
export of coffee over the past ten years?  Have subsidized credits been granted
for these activities?  If so, what has been the annual amount of these subsidizedcredits?  Please state the origin or source of the funds involved.
− Tax policy:  what tax policy, including land tenure policy and investment
incentives in the ethnic minority di stricts and high mountain areas, inter alia ,
has been applied in order to stimulate sowing, production and exports of coffee
over the past ten years, and what is the amount of the funds involved in each one
of the last three years for which information is available?
− Please state whether other macroeconomic policies have been introduced to
support the coffee sector and provide the relevant details.WT/ACC/VNM/23
Page 44
− Is coffee included among the perennial crops that benefit from the "support for
enterprises with foreign owned capital which operate in certain business fields
and sectors" described in Section V.6 of document WT/ACC/VNM/13?
Answer:
The coffee sector in Viet Nam is operating in rapport with market principles. The surge in robusta
price back in the 1994-1999 period triggered a sudden and unprompted increase in coffee sowing areaand, as the result, the coffee output. Thanks to extremely favourable soil and climate conditions, the
coffee industry in Viet Nam enjoys very high average productivity (more than 2 tons of green bean
per hectare). That can explain the low cost of Viet Nam's coffee.
Other indicators are the fluctuation of coffee price in Viet Nam and the gap between that price and the
price in LIFFE (London Commodity Exchange). Viet  Nam FOB prices fluctuate in tandem with
LIFFE prices with the gap ranging from US$150 to more than US$200. Oversupply in a short period
is the main reason for such a wide gap.
Question 125
Viet Nam informed the Working Party of its domestic support and export subsidies in
agriculture in its non-paper of 16 June 2000, which contains no mention of any specific support
or subsidy for coffee.  At the same time, Viet Nam notified the Working Group of its industrial
subsidies in document WT/ACC/VNM/13, in which coffee and perennial crops appear asbeneficiary sectors.  We have the following questions in this connection:
Export subsidies:
− Could Viet Nam confirm that over the past ten years it has not granted export subsidies
for coffee?  If it has, what are the annu al amounts that have been devoted to such
programmes for each of the last three years for which information is available?
− In document WT/ACC/VNM/13, Viet Nam notified as industrial subsidies its
programmes of "support for domestic enterprises which operate in certain business
fields and sectors", "support for enterprises with foreign owned capital which operate in
certain business fields and sectors", and "support for domestic enterprises which
operate in certain areas", by which the State grants investment privileges and incentives
for coffee, for perennial crops and for the agricultural sector.  Why did Viet Nam not
notify these programmes as export subsidies or as domestic support subject to thereduction commitments under the Agreement on Agriculture in its non-paper of 16 June
2000?
Domestic support:
− What  specific support measures (Amber Box, Blue Box and Amber Box) has the
Government of Viet Nam applied with respect  to the sowing, production and export of
coffee over the past ten years, and which of these measures does it continue to apply?
Answer:
The Notification on domestic supports and export subsidies in agriculture (in WTO format
WT/ACC/4) for the reporting period of 1999-2001 provides detailed information on domestic
supports and export subsidies granted to coffee.WT/ACC/VNM/23
Page 45
Question 126
For each measure of support to the coffee sector, please state the annual amount granted for
each of the last three years for which information is available.
Answer:
Please refer to Viet Nam’s Notification on domestic supports and export subsidies in
agriculture (in WTO format WT/ACC/4) for the reporting period of 1999-2001.
V. TRADE-RELATED INTELLECTUAL PROPERTY REGIME
1. General
Question 127
We are of the view that an acceding country should implement the obligations stipulated under
the TRIPS Agreement upon accession to the WTO, without recourse to the transitional period.
This i s al so app li cabl e to the a cce ss ion o f Vie t Nam, th us we  requ est V ie t Nam t o dev elop  i tslaws and regulations in an efficient and steady manner.
During the course of the accession negotiations, it is of utmost importance that information is
provided on the legislative development - for exampl e, the current situation, the provisions to be
amended, the prospects for future amendment.  Such information should be provided in an
effective, detailed and timely manner in order to proceed with the necessary work.
We believe that an early submission of information will enable Viet Nam to reflect upon the
requests and comments on such information fr om the Working Party Members, if necessary,
which, in the long run, will be beneficial to Vi et Nam.  We strongly hopes that Viet Nam will
provide its information in as detailed a manner as possible.
- In order to implement the TRIPS Agreement, Viet Nam should, first of all,
appropriately establish its laws and regulations.  In this regard, Viet Nam should
establish an adequate intellectual property rights regime, which is consistent with the
TRIPS Agreement, in the fields of, not only substantive standards regarding copyrights
and neighbouring rights, patents, trademarks, industrial designs, and commercial
secrets, etc., but also of enforcement such as civil procedures that allow plaintiffs tobring an action for infringement, enforcemen t by the police, and border measures by the
customs authorities.  At the same time, we consider it important to know how Viet Nam
would actually apply its IPR regimes, with a view to granting rights and realizing
remedy in a proper and prompt manner.  We sincerely hope that Viet Nam will make
further efforts in this regard.
- We are also interested in the implementation of a Vietnamese system regarding the
technology transfer agreement relating to patents and know-how, etc.  When setting uprequirement for certain procedures, these should not violate the TRIPS Agreement in
itself. However, with a view to promoting smooth investment in Viet Nam, we consider it
indispensable that Viet Nam implements th is system in consistency with the TRIPS
Agreement and international practices by concluding such an agreement, and thus
should keep it transparent.  We would lik e to point out the following for reminder in
relation to the TRIPS Agreement;WT/ACC/VNM/23
Page 46
- If a rule is different between that in an agreement made by “domestic companies” and
that made by “domestic and foreign companies”, Viet Nam violates national treatment
(Article 3 of the TRIPS Agreement).  If a rule is different depending on what countries
are involved in an agreement, Viet Nam violates the MFN treatment (Article 4).  Both
examples should thus be avoided.
- The TRIPS Agreement stipulates that a patent term shall be at least 20 years from the
filing date (Article 33), and that a term of trade secret is not limited if it satisfies the
provision under Article 39.  It should be possible to set a term of technology transfer
agreement, reflecting these provisions.
- How to pay royalty and what should be considered as the upper limitation in royalty
should be properly considered.  This may be a cause of hindrance for technology
transfer, depending on the substantive pr ovisions or the implementation of these
matters.  Even if the benefit of one person who has right has been impaired or nullified,
there may arise problems in relation to  the TRIPS Agreement (Article 64. 1).
Answer:
Viet Nam agrees with the above positions of Japan, and in the reality, it has been consistently
following these positions in the accession process. All information regarding the status of completing
its legal system has been provided in the Action Plan on the Implementation of TRIPS Agreement
(submitted to the WTO Secretariat in 2001) and the implementation status has been described in the
Answers to Questions by WTO Members as well as in the Working Party Meetings
(a) Viet Nam agrees with Japan’s position on building a legal framework to effectively
implement intellectual property rights. Viet Nam is now making efforts to complete
regulations on the settlement of disputes regarding intellectual properties and enforcement of
theses rights at border.
(b) Current legal system governing industrial property of Viet Nam has no discriminatory
regulations imposed on licensing agreement relating to intellectual properties between
domestic companies compared to between domestic and foreign companies. All the content
and registration procedures are the same.
According to current regulations, there is no limitation on the duration of transferring partnership and
trade secrets. Such duration is agreed among the relating parties provided that the subject properties
are still protected. Viet Nam is considering eliminating the ceiling limit of royalty concerning
intellectual property rights.
Question 128
As mentioned in above, with regard to the settle ment of economic disputes, we request that the
period during which a person can file a suit be extended from 6 months to 2 years, after the
start of a dispute. Do such economic disputes in clude the infringement of intellectual property
rights such as patents and trademarks?  If so, we further request Viet Nam to set the period
during which a person can file a suit to 3 years or more, with regard to the infringement of
intellectual property rights, in order to provid e sufficient protection of intellectual property
rights, and to avoid any problems relating to the TRIPS Agreement (Article 41.2), which
stipulates that the enforcement procedures do not entail unreasonable time limits.WT/ACC/VNM/23
Page 47
Answer:
Viet Nam’s position is that the period during which a suit has to be filed from 6 months to 2 years  as
currently provided is appropriate and it does not fall within the scope of “unreasonable time limits”  as
provided for in Article 41.2 of the TRIPS Agreement.
(a) Intellectual property policy
Question 129
We would appreciate a translation into English of the following legislation:
- Decree No. 63/CP (Trade Marks, Industrial Designs, Patents);
- Decree No. 06/2001/ND-CP which contains amendments and supplements to a
number of Articles of the Decree No. 63/CP;
- Draft Decree No. 76/CP (Copyrights and related rights);
- Decree No. 54/2000/ND-CP promulgated on 03 October 2000 (Geographical
indications including appellations of origin, Undisclosed information including
trade secrets and test data);
- Decree No. 13/2001/ND-CP promulgated on 20 April 2001 (Plant variety
protection);
- Draft Decree on Layout designs of integrated circuits;
- Draft regulations on measures and procedures of border-control against acts
infringing copyrights and related rights.
Answer:
Viet Nam shall provide these legal documents at the earliest time.
Question 130
According to WT/ACC/VNM/12, foreign nationals who do not have a representative office in
Viet Nam must use "Intellectual Property Agents, "to establish or enforce trademark, design
and patent rights. Even Vietnamese lawyers wo rking for foreign law firms have been asked to
work through such agents. We understand that of the 48 people who have obtained such licenses
in the Industrial Property area, 37 are former staff of the Viet Nam Intellectual PropertyDepartment. (See Article 58(2) of Decree No. 63/CP dated act. 24, 1996, as amended by Decree
No.06/2001/ND-CP dated 1 February 2001) (for I ndustrial Property Agent), and Section VI of
Circular No. 27/2001/TT-BVHTT (Dated 10 May 2001) (for Copyright Agent).)
Please confirm to what extent this requireme nt holds for copyright protection as well. Must
foreign companies use special agents to obtain  administrative or border enforcement of
copyrights?
Do such requirements apply only to foreigners? If so, what steps will Viet Nam undertake to
provide for equality of treatment between foreign and domestic rights holders with regard to
the requirement to use specially licensed trademark and copyright agents?
We are concerned that these requirements (a) m ay impose a burden on foreign applicants; (b)
restrict access to services by foreigners or Vietnamese and (c) lead to overly severe controls on a
service that is much needed for an effectiv e intellectual property system to develop.WT/ACC/VNM/23
Page 48
Law firms and other professionals should be permitted to engage in this line of activity. What
steps are being undertaken to ensure that licensure is not as strictly controlled?
Answer:
The prevailing laws and regulations of Viet Nam do not require foreign individuals, legal entities to
carry out the procedures for establishment and enforcement of copyrights through an IP representativeagent.
According to Article 15.3.b) of Decr ee No. 63/CP, only foreign natural persons whose residence is not
in Viet Nam or foreign legal persons without a lawful representative or a real and effective industrial
or commercial establishment in Viet Nam shall file applications for protection titles and carry out
related procedures through an industrial property agent. The requirement that foreigners must carry
out the related procedures through agent is to ensure the protection of the interests of right holders and
facilitate communications between State competent authorities of Viet Nam and the latter. Thisprovision is in conformity with the international practices and exceptions in respect of the principle of
national treatment of the TRIPS Agreement.
The provisions restricting services provided by fore igners (allowing only Vietnamese act as industrial
property representatives) also comply with international practices and norms. This restriction will
diminish along with the road-map of opening legal services of Viet Nam for the accession to WTO.
Enlargement of the number of providers of these services is underway through organizing of training
courses on industrial property for interested persons.
Not only those who used to work for the National Office of Industrial Property are entitled to act as
industrial property representatives and not all those who used to work for the National Office of
Industrial Property are entitled to act as industri al property representatives. According to Article 58.1
of Decree No. 63/CP, as amended and supplemen ted by Decree No.06/ 2001/ND-CP, one of the
requirements of eligibility for acting as an industrial property representative is that one must have
directly engaged in IP legal affairs for at least five consecutive years (in any organizations); or one
must have worked as an examiner in any national or international industrial property office for at least
5 consecutive years. This requirement replaces the requ irement that to be eligible for acting as an IP
representative, one "must have finished an official academic training course on industrial property".
This provision does not at all restrict accessibility to services of Vietnamese providers but in contrast
this aims at enhancing the IP representative services as the actual number of persons who have
undergone basic professional training courses on industrial property in Viet Nam is still limited.
Question 131
Please elaborate on how proposals for amendmen ts made publicly available so that others,
including foreign investors, will have the opportunity to express their views.
Do Vietnamese authorities publish a plan for new laws and regulations, and if so, is such a plan
publicly available?
With respect to the Law on the Promulgation of Laws and Regulations, regarding citizen’s
comments on bills, what provisions exist in Subsection 1, Section 40, for non-citizens, including
resident and non-resident non-citizens to provide public comments on laws and regulations?Can non-resident non-governmental organizations provide comments?
How does Viet Nam insure that all affected parties are advised of actual or pending legislation
in order to solicit their comments?WT/ACC/VNM/23
Page 49
What provisions are in place to provide advance notice by regulatory agencies of proposed
rules, to the public, including non-citizens, for comment?
What intellectual property laws if any have been submitted for public referendum?
Answer:
Under Vietnamese legislation, all legal trade and economic documents must be publicly available
through VCCI to collect opinion and comment from domestic enterprises (including foreign invested
companies) before being promulgated.
Viet Nam issued the Law on promulgation of Laws and Regulations in 1996 providing that the
compilation of annual and long-term legislation prog ram shall be approved by National Assembly and
publicly available.
Viet Nam does not restrict public opinions or comments on laws and related regulations and does not
impose any discrimination between residents and non-residents in this regard.
All laws and regulations are publicly available in the Official Gazette. Besides, Viet Nam is now in
the process of amending the Law on Promulgation of Laws and Regulations which shall provide that
the new laws and regulations must be publicly available in the Official Gazette for a certain time
before being effective.
The Civil Code, Part 6 provides for intellectual property rights and technology transfer (from Article
745 to 825). This Code was submitted for public referendum in the drafting process.
Question 132
Article 8 of TRIPS permits appropriate measures  to prevent the abuse of intellectual property
rights or unreasonably restrain trade or adversely affect the international transfer of
technology. We understand that certain intellectual property licensing requirements have aneffect of reducing the levels of technology and IP transfers to Viet Nam, including limitations on
duration of technology transfers, and limitations on royalties of trademark licenses, cf Circular
3055 regarding trademarks, and Article 32-37 Decree No. 45/1998/ND-CP, dated
7 January 1998 on Technology Transfer.
How do these measures prevent the abuse of  intellectual property rights? How do they
adversely affect intellectual property transfers ? What steps does Viet Nam intend to take to
liberalize its intellectual property markets?
Answer:
The limits on royalties for the intellectual property licenses have been abolished (Article 41 of Decree
63/CP of 24 October 1996, as amended and s upplemented by Decree No. 06/2001/ND-CP of
1 February 2001).
Question 133
Viet Nam has implemented many IP laws. However, it needs to demonstrate that we can have
confidence that these will provide adequate enforcement mechanisms and sanctions to ensure
that the IP of its trading partners will be protected.WT/ACC/VNM/23
Page 50
Answer:
One of the aims of the Vietnamese intellectual property system is to establish an enforcement
mechanism together with adequate remedies fo r protecting intellectual property rights. The
intellectual property enforcement system of Viet Nam consists of administrative, civil and criminal
procedures and remedies. With the available remedies and active improvement of enforcement bodies,we believe that intellectual property rights will be adequately protected.
Viet Nam is carrying out necessary steps to enhance the protection of intellectual property rights in
general and copyrights in particular as provided in the TRIPS Agreement (from Article 41 to
Article 61). Complaining on violation of copyrights  is regulated by Decree No. 31/2001/ND-CP dated
26/6/2001 on settlement of administrative violation in the area of culture and information; procedures
for settling disputes on copyright violation are regulated by Joint-Circular 01/2001/TANDTC-
VKSNDTC-BVHTT; border measures are regula ted by Decree No 101/2001/ND-CP dated
31/12/2001 providing guidelines on customs procedur es for the Customs Law; customs inspection and
supervision and criminal penalties are regulated by Article 131 of the Civil Code. Close and effective
cooperation among enforcement agencies, staff training, and judicial review of copyright regulations
are among matters attracting increasing attention.
(c) Membership of international intellectual property conventions and of regional or
bilateral agreements
Question 134
When Viet Nam accedes to the WTO, will the TRIPS Agreement be deemed an international
treaty to which Viet Nam is a party, i.e., will the TRIPS Agreement supersede domestic law, for
purposes of copyright and all other provisions?
Answer:
The accession of Viet Nam to the WTO shall also mean that Viet Nam will adhere to the TRIPS
Agreement as all WTO members are bound, but not replaced by the TRIPS Agreement. According to
Vietnamese legislative principles, the international treaties to which Viet Nam is a party shall not
have direct effect but shall be subject to "domestic legalization". However, the provisions under theinternational treaties shall supersede if there are divergences between the international treaties and the
domestic laws with respect to the same matter.
(e) Fees and taxes
Question 135
As regards the issue of fees and taxes in the field of industrial property (see paragraph 1(e) of
Chapter V on trade-related intellectual property  regime), Viet Nam considers that the rate of
fees and charges is a matter of administrative procedures and therefore is a permitted exceptionto national treatment as provided for in  Article 2 of the Paris Convention. Such an
interpretation, however, could lead to the application of different fees and charges for
foreigners and Vietnamese. The exceptions to na tional treatment in Article 2 of the Paris
Convention, however, have to be strictly interpreted and only re fer to judicial and
administrative procedures and to jurisdiction, and to the designation of an address for serviceor the appointment of an agent. In addition, the application of the national treatment clause to
the protection of intellectual property in th e TRIPS Agreement expressly includes inter alia
matters affecting the acquisition and maintenance of IPRs. This clearly covers all fees and
related charges before the grant of industrial property rights (filing, search, examination, etc.)WT/ACC/VNM/23
Page 51
and for the maintenance of the rights. We shou ld therefore ask the Vietnamese authorities to
adopt as soon as possible amendments to th e Circular No. 23T~/TCT dated 9 May 1997 of the
Ministry of Finance to provide uniform rate applied to both foreigners and Vietnamese
concerning fees and charges.
Answer:
Viet Nam will consider this request in order to amend Circular No. 23/TC-TCT.
Question 136
Are different fees requested of foreigners (case handling or similar fees) for administrative
authorities to take action against  intellectual property infringements?
Answer:
The existing Vietnamese laws do not require any fees to be paid when requesting administrative
measures against infringements of intellectual property rights.
Question 137
(WT/ACC/VNM/21 P3): If the reference here is to an additional fee on top of the application fee
to enjoy a priority right, then this is contrary to the Paris provisions.
Answer:
In the Paris Convention, there are no provisions on th e prohibition of collecting fees in respect of a
claim for priority right but the prohibition of collecting fees takes effect only in respect of the late
filing of documents for claiming priority right (thr ee months from the date of filing application). The
reason for collecting the fees is that the examiner has to do a lot of work so as to compare the
application filed with the Office the priority one to find out whether or not the two subject matters
under the two applications are identical. The similar provision is also provided for in other countries’
laws (e.g. Republic of Korea, the Philippines etc.).
Question 138
(WT/ACC/VNM/16, Question 99): We feel that the provisions for differential fees for nationals
and non-nationals are contrary to that provided for in Article 2 of the Paris convention and
Article 3 of TRIPS.
Answer:
Viet Nam will consider this request in order to amend Circular No. 23/TC-TCT.
2. Substantive standards of protection, incl uding procedures for the acquisition and
maintenance of intellectual property rights
(a) Copyright and related rights
Question 139
What is the current status of revisions to the Co pyright Law? When will a draft be provided for
Working Party review?WT/ACC/VNM/23
Page 52
Answer:
Currently, the Ministry of Justice is designated as focal point for organizing the review of the
amendment of the Civil Code, which includes regulations on copyright. The time of completion has
not yet been estimated.
Question 140
What procedures are currently in place for Customs protection of copyright, and what
formalities by rights-holders are necessary to engage such protection?
Answer:
According to articles 57 and 58 of the Customs Law 2001, the owner of IP protection under
Vietnamese laws can request the customs office to temporarily stop customs clearance of the
export/import goods, for which he/she has the proof of infringement.
In order to temporarily stop of customs clearance, the owner must:
- submit to the customs office the petition, documents of legal ownership of IPR, proof
of his/her IPR infringement.
- deposit bond money or guarantee documents for compensation of loss and fees rising
in accordance with the law in case of wrong petition.
Question 141
Please describe in detail what constitutes a "need for copyright" for purposes of copyright
protection and in the context of denial of copyright.
Answer:
There is no such "need for copyright" in Viet Nam Civil Code.  We do not understand the question.
Question 142
WT/ACC/VNM/9 indicates that Decree No. 55/2001 generally provides that all use of the
internet much comply with the IP laws.
How are digital copyright issues addressed by Vietnamese law?
Has Viet Nam recognized a digital copy as a copy?
What protection is afforded works that are co nverted into a digital format to prevent their
further copying/use to the detriment of the le gitimate expectations of the rights holder?
What "fair use" exceptions apply to di gital copies? (Article 13 of TRIPS)
Are temporary digital copies protected as copies? Will these copies be protected by amendment
of "other works prescribed by laws" under Article 747.1 of the Civil Code?
How are technological protection measures for copyright protected under Vietnamese law?WT/ACC/VNM/23
Page 53
Answer:
1. According to Article 6.1 Government Decree No. 55/ND-CP dated 23 Aug. 2001 on
management, providing and using of internet services: all kinds of information for database,
transmission and receiving on the Internet should comply with the respective regulations
under the Law on Newspapers, Law on Publishing, Ordinance on Protection of State secretsand law and regulations on IPR and information management on the Internet.
2. Article 754 Civil Code states: " the IPR starts from the date it was made in the determined
forms"
Article 6, government Decree 76/CP states: "the IPR starts from the date it was made in the
determined physical forms, whether it has been publicized or not, filed for protection or not."
At the time of promulgating the Civil Code, "the determined physical form is understood as
the customary and traditional form, no clear definition of digital copy yet.
3. It is not clearly addressed in the Civil Code.
4. Articles 760 & 761 of the Civil Code define the principles and forms of fair use exceptions
without permission and royalties. The computer software copy is not among those exceptions.
5. The Civil Code has no rules on the temporary copies. Article 747.1 defines the works under
protection. The temporary copies are not within the "other works" definition and therefore notapplicable.
6. Article 6.1 Government Decree No. 55/ ND-CP dated 23 Aug. 2001 on management,
providing and using of internet services: strictly prohibit theft and unlawful use of passwords,
code and private information of individuals and entities on the Internet…(Article 11)
There are no direct and specific rules on protection of technological protection measures for
the copies.
Question 143
Concerning copyrights on soft ware, books or other data:
Are libraries and government offices in Viet Na m required to buy authentic copies of software,
books or other data?
What provisions are in place to insure that "rep roduction of a work for personal use" does not
interfere with the legitimate expectations of the rights holder?
We are informed by our motion picture industry that there is almost no legally authorized
distribution of first-run motion pictures in  Viet Nam, thereby creating incentives and
opportunities for pirates.
What measures does Viet Nam intend to adopt to permit the legal importation, but both
Vietnamese nationals and foreigners, of first run motion pictures?
Answer:
Concerning copyrights on software, books or other data:WT/ACC/VNM/23
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1. Article 13.2 of the Ordinance on Librarie s No. 31/2000/PL-UBTVQH10 dated 12/28/2000
rules that all kind of entities, including libraries and government offices must comply with the
laws and regulations on IPR.
2. These provisions are Articles 760 & 761 of the Civil Code and Article 12 of the Government
Decree 76/CP.
3. Article 14.c of the Government Decree 48/CP  dated 7/17/95 allows private business in
distribution and show of motion picture:
The movie entities are businesses of other economic sectors doing business in movies
exportation, distribution and projection.
Basing on Decision No. 2455/QD-DA dated 8/9/ 1997 on movie inspection. Para 1 Article 2
movie inspection authority: all locally made and imported movies must be approved before
distribution.
4. Article 15 of the Government Decree 48/CP dated 7/17/95 on motion picture organizations
and activities:
Import of movies for all kinds of businesses is to be done through FAFIM under the Ministry
of Culture and Information.
Article 2 of Government  Decree 26/2000/ND CP:
- All the legally established motion picture entities in Viet Nam, including foreign
invested joint-ventures, which own cinema theatres meeting the requirements set by
the Ministry of Culture and Information are allowed to import motion picture for
show at their theatres.
- the import of motion picture, video tape and DVD to be approved by Ministry of
Culture and Information in plan and contents (contents to be approved prior to
distribution)
- Article 15 of the Government Decree 48/CP dated 7/17/95: the import of movies for
broadcasting on Viet Nam television to be done by Viet Nam television, in
coordination with Ministry of Culture and Information.
- Basing on the distribution capacities and the quantity of produced Viet Nam movies
(under the approved plan) to decide on the quantity of foreign movies for import.
Therefore, all movies on show in Viet Nam are legal.
Question 144
Concerning radio and television broadcasts:
What protection does Viet Nam afford to pr e-program signals from broadcast organizations?
What protection does Viet Nam afford to encrypted signals from Broadcast organizations?Does the definition of broadcasting include tran smission by wireless means where the last mile
is by wire?WT/ACC/VNM/23
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Answer:
There is no specific regulations in legal documents on copyrights and related rights;
There is no specific regulations in legal documents on copyrights and related rights;
Broadcasting includes only transmission by wireless means which could be directly received by the
public. There has been no specific regulation on the provision of this service to limited number ofusers in restricted geographic area.
Question 145
We thank Viet Nam for providing a copy of its current Copyright Law. We have the following
questions, for clarification:
What is meant by "scientific work" in the co pyright law? How is this different from other
written works? Please give some examples.
What is meant by "press work" in the copyright law? How is this different from other written
works? Please give some examples.
Are phonograms protected under Viet Nam's copyright law? If so, under what category of
works?
Will the provisions in Viet Nam's copyright law exempting from copyright protection works
that undermine the solidarity of the people, undermine tradition, disclose secrets of the privatelife of an individual, and damage the honour and dignity of an individual be applied works of
foreign authors?
What is meant by the term "hiring" in the pr ovisions of Viet Nam's copyright law addressing
the rights of authors and owners? Please give some examples.
Does Viet Nam's copyright law provide authors an exclusive right of reproduction? If so, please
identify the relevant provision(s).
Does Viet Nam's copyright law protect unfixed performances?
Will Viet Nam's copyright law provide to authors the exclusive right of translation?
Does Viet Nam provide provisional relief for copyright infringement? If so, please identify the
relevant provision(s).
Are prevailing right holders always awarded monetary damages in civil copyright infringement
cases in Viet Nam? What amount of damages may right holder recover?
What range of penalties is available against a person convicted of criminal copyright
infringement? Do the competent authorities in Viet Nam have authority to seize and destroy
infringing products and the tools of infringement?
What authority does Viet Nam's border enfo rcement authorities have to prevent the
importation and exportation of infringing goods?WT/ACC/VNM/23
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Does Viet Nam's copyright law include provisions  for the retroactive protection of works and
phonograms? If so, please identify the relevant provision(s).
Answer:
1. Scientific work: the works, which content refers to sciences and may be in writing format, e.g.
written works on theory in natural, social, technological, economic sciences
2. Press work: the works being published in the newspapers and maybe in writing format, e.g.
report, studies, research, inspection…
3. Phonograms protection: Vietnamese law protects the phonograms producers under the
relating rights protection (Article 776 & 777 under the Civil Code)
4. Article 749 under the Civil Code defines the works with such content are exempted from
copyright protection, whosoever Vietnamese or foreigner are the author. All the transactions
relating to the publication, use and distribution of such works are illegal and could lead topunishment depending on the level of damage to the public ethics and order, notwithstanding
the user is local or foreign.
5. The term "hiring" means the owner of the orig inal or the copy gives other people for use of
the original or the copy (there’s no transfer of ownership) and on the other side, the users pay
an amount of money agreed by both sides.
e.g. paintings or books for rent.
6. The right holder maybe the author or another person as per the Article 751, 752 & 753 Civil
Code. The exclusive right of reproduction means the right to allow or not allow other people
to use the work (Article 751.1.d) in the pay form.
7. The performances are protected under the relevant laws. The unfixed performances are
protected in the way other people can not freely broadcast, record phonograms, video and
make copy on the illegal record for distribution (Article 775 Civil Code)
8. The right holder (author or the right owner) has the exclusive right of translation. The
translation is one form of use permission under Article 751.1.d and 751.2.c of the Civil Code.
The translator must request permission from the right holder under Article 757 Civil Code.
9. Article 41 Ordinance on civil cases settlement, of 1990: during the court procedures, the
Court under the request from the Inspection authority or the claimant or can by itself apply
the provisional relief measures for claimant’s urgent request or to protect the proof: "seize and
make inventory of the dispute assets, avoiding disposal of these assets; to allow harvesting
and protect products in dispute, prohibit or compulsory fulfilment by the infringing persons of
several measures.
10. In case the infringement caused physical or spiritual damage to the award winner, then the
Court can apply the penalties as per the claimant’s request. The penalties depend on that
case’s damages.
11. Article 131 of the Civil Code defines: copyright infringement:
1. a person, who committed one of the following severe damages or had been fined an
administrative penalty or convicted and not  yet complied with the convict and stillWT/ACC/VNM/23
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violates, then that person has to pay penalty from VND 20 to 200 million or under
suspended sentence up to 2 years:
a) Seize the copyright  of the literature, arts, sciences, newspaper, phonograms,
CD, video, DVD programs;
b) falsify name on the literature, arts, sciences, newspaper, phonograms, CD,
video, DVD programs;
c) Illegal amendments of the literature, arts, sciences, newspaper, phonograms,
CD, video, DVD programs;
d) Illegal publicizing and distribution of the literature, arts, sciences, newspaper,
phonograms, CD, video, DVD programs.
2, Infringe one of the followings could be imprisoned from 6 months to 3 years:
a) organized crime;b) repeated infringements;
c) caused severe or extremely severe damages.
3. The infringing person could be fined from VND 10 to 100 million, banned from any
management positions, banned from doing business or from specific business from 1-
05 years.
* The Civil Code 1999 provided rules on the court measures : confiscation, confiscating to
government budget…of the tools for infringement; products or money made by infringement
or exchange, purchase and sale of these infringements…(Article 41).
Government Decree 31/2001/ND- CP dated 6/26/2001 on the administrative penalties
in the field of culture and information defines that the Vietnamese authorities havethe right to seize the tools and infringing products in the copyright activities (Article
42, 43 and 44).
12. The border enforcement authorities have the right to temporary stop the customs
clearance if the right holder requests so and he/she meets the requirements stipulated
in the above mentioned Customs Law and above mentioned Decrees.
13. Article 15 Civil Code 1995 provides: the Civil Code is applicable for the civil
relations from the date this Code comes into effect. Para 3 of the National Assembly
Resolution on the implementation of the Civil Code provides the retrospective
application for the civil relations prior to the validity date of the Civil Code. If the
works and phonograms have been protected just prior to the validity date of the Civil
Code and the protection is not in violation of the bans or against the public ethics as
per the Civil Code rules, then there can be continuous protection.WT/ACC/VNM/23
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(b) Trademarks, including service marks
Question 146
Article 28.2.c of the Decree 63/CP provides that a registered trade mark may be cancelled on
request of a third party in case the owner has not used his trade mark without legitimate
reasons for 5 consecutive years. This is in conf ormity with Article 19 of the TRIPS Agreement.
What happens, however, in cases when the owner did not use his trademark for an
uninterrupted period of 5 years and such non-use was never challenged by a third party? Can it
then be challenged subsequently? Will resumed use after 5 years lead to revival of the exclusive
trade mark rights with no further possibility for a third party to claim its revocation for non-
use?
Answer:
According to Article 28.2.c, Decree No. 63/CP, th e validity of a Certificate for a Trademark
Registration shall be terminated if the owner of the Trademark Registration Certificate has not used
the trademark, without adequate reasons, for 5 consecutive years prior to the request for termination
of validity. In such a case, the validity of the Certif icate shall be terminated on the first day after the
period of 5 years. Thus, it can be understood that the validity of a Certificate for a Trademark
Registration shall be terminated if the owner of a Trademark Registration Certificate has not used thetrademark, without adequate reasons, for 5 consecutive years up to the date of the request for
termination of validity. Without such a request, the registration shall not be invalidated. However, inthe event that up to the date of the request for te rmination of validity for the said reason the owner of
the trademark had actually started to use, the registration shall not be invalidated even the non-use
period lasted 5 years or more.
Question 147
Please confirm that, in order to benefit from protection, well-known trademarks need not to be
registered. Please specify whether, in order to be nefit from a protection in Viet Nam, a well-
known trade mark should be used in said territory.
Answer:
According to Decree No. 06/2001/ND-CP, well-known trademarks are protected without registration.
However, in order to be protected, a trademark must be recognized by a State competent authority as a
well-known trademark. The term of protection of a well-known trademark is indefinite counted from
the date of recognizing the mark as a well-known one. In order to be protected in Viet Nam, it is not
necessary that a well-known trademark must be used in Vietnamese territory.
Question 148
Article 6 of the Decree 63/CP seems to define a well-known mark as "... any mark which is
continuously used for reputable goods and services therefore widely known". Please provide a
copy of the procedures for recognition of  well-known trade marks in Viet Nam.
Answer:
Viet Nam is in the course of drafting a Circ ular guiding implementation of Decree No. 63/CP, as
amended and supplemented by Decree No. 06 /2001/ND-CP, which cont ains procedures of
recognizing well-known trademarks. The main content of the procedures in the Draft is that the owner
of trademark must file a request of recognizing the trademark as a well-known one together withWT/ACC/VNM/23
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evidences and facts proving the well-known status of the trademark: such as documents indicating
number of relevant consumers who know the tradem ark through the sale, purchase of goods, use the
goods or services bearing the trademark or advertisement; territories in which the goods or services
bearing the trademark have been circulated; revenues from the sale of the goods or provision of the
services bearing the trademark or the quantity of goods has been sold; time period of consecutive useof the trademark; widespread reputation of the goods or services bearing the trademark; number of
countries in which the trademark has been protected; number of countries which recognize the
trademark as a well-known one; value of the trademark in the form of assignment, licensing,
contribution  as an investment asset etc.
Question 149
Did Viet Nam took into consideration the Joint Recommendation concerning Provisions on the
Protection of Well-Known Marks adopted by  the Assembly of the Paris Union for the
Protection of Industrial Property and the General Assembly of the World Intellectual Property
Organization (WIPO) at the Thirty-Fourth Series  of Meetings of the Assemblies of the Member
States of WIPO 20 to 29 September 1999?
Answer:
The provisions on the protection of well-known trad emarks in Decree No. 63/CP, as amended and
supplemented under Decree No. 06 /2001/ND-CP and in the draft Circular guiding implementation of
Decree 63/CP (as amended) have been compiled taking  into consideration of the provisions under the
Joint Recommendation.
Question 150
(WT/ACC/VNM/21 P5) Regarding the reference to co-ownership of trade marks, we consider
that Viet Nam may be misinterpreting Article 5(c) of the Paris convention. We believe that
Article relates to the concurrent use by separate entities under domestic law. This allows in
certain circumstances for different owners to ow n identical trade marks (we provide for this).
Viet Nam appears to be saying that they will not allow a trade mark registration to have more
than one owner.  In our country, as with many  other countries, a trade mark may have joint
owners whether they be a number of individuals, firms, a combination of both etc. The
provisions outlined by Viet Nam appear to be unduly restrictive and could provide a limitation
on the rights of foreign trade mark owners to s eek protection in Viet Nam. It should be noted
that collective trade mark rights are not the same as joint ownership rights.
Answer:
The function of a trademark is to distinguish the goods or services of different business
establishments. The co-ownership of a trademark would cause consumers’ confusion whenpurchasing goods or services. Therefore, the law of  Viet Nam does not allow the co-ownership of a
trademark. The co-ownership is not obliged by the TRIPS Agreement and Paris Convention.
However, Viet Nam would further consider this matter.
(c) Geographical Indications
Question 151What does Article 10 (a) add to what is already required in Article 10 (b)? Do Article 10 (a),
read in conjunction with Article 10 (b) allow no n-geographical names (names that refer to a
territory but that are not the name of a country, region or locality -e.g., "vinho verde", aWT/ACC/VNM/23
Page 60
Portuguese GI that refers to a wine produced in a region in Portugal but does not coincide with
any geographical place in Portugal) that ye t identify goods with a certain protectable
characteristic as coming from a certain territ ory? It should be noted that Article 22.1. TRIPS
defines geographical indications and "indications" without requiring them to be the name of a
geographical location.
Answer:
Article 10 of Decree No. 54/2000/Nd-CP, which provides  for the criteria of protection of geographical
indications has completely complied with Article 21.1 of the TRIPS Agreement. In particular, in order
to be protected, a geographical indication must satisfy two criteria provided for under items (a) and
(b), subsection 1, Article 10 of the Decree. Item (a) requires that a geographical indication must be
information in form of a word, sign, symbol, pictures used for indicating a country or territory,
locality of the country; Item (b) requires that goods bearing that indication must have characteristicsof quality, goodwill or reputation substantially due to geographical origin. Therefore, it must be
understood that in order to be protected, a geographical indication must meet both criteria provided
for in item (a) and (b). According to item (a), a geographical indication could be but should not
necessarily be a name and geographical indication corresponding to a territory but should not be a
locality in an administrative map.
Question 152
Where and how the provisions Articles 22.3 and 23.2 TRIPS, which forbid the registration of
trademarks containing a geographical indication, are implemented into Vietnamese law?
Answer:
The provisions under in Articles 22.3 and 23.2 of the TRIPS Agreement are stipulated in Article 6.1(f)
of Decree 63/CP.
"Article 6. Trademarks
1. (f) It is not identical with, or confusingly similar to trade names or geographical
indications (including appellations of origin) being protected".
Question 153
How are the conflicts between trademarks and geographical indications to which Article 24.5
TRIPS refers, solved under Vietnamese law?
Answer:
Provisions under Article 24.5 of the TRIPS Agreement are accommodated by Article 6.1(f) of Decree
No. 63/CP, under which a sign which is deemed to be  distinguishable to be protected as a trademark
"should not be identical with, or confusingly similar to protected trade names or geographical
indications (including appellations of origin)."
Question 154
Could you provide any information as the geographical indications which are already
protected/registered in Viet Nam?WT/ACC/VNM/23
Page 61
Answer:
So far, three (3) appellations of origin are protected in Viet Nam. They are: "Phu  Quoc" for fish
sauce, "Moc Chau" for Shan Tuyet tea (products of Viet Nam), "Cognac" for brandy (product of
France). In addition, geographical indications other than appellations of origin are protected without
registration requirement, as long as the protection criteria provided for in Decree No. 54/2000/Nd-CPof 3 October 2000 are met. (see Answer 155 below for further information).
Question 155
Could you provide any information as to the procedure of registration of geographical
indications in Viet Nam?
Answer:
According to existing laws and regulations of Viet Nam, geographical indications in general are
protected under Decree 54/2000/ND- CP of 3 October 2000, except a special type of geographical
indication, i.e. appellations of origin wh ich are protected under Decree No. 63/CP of
24 October 1996. Rights to geographical indica tions protected under De cree No. 54/2000/ND-CP
automatically arise (without requirement of registration). Appellations of origin are protected under
procedures of registration (consisting of registration of appellations of origin and grant of Certificate
of the right to use an appellation of origin). Procedures of registration and grant of Certificate of theright to use an appellation of origin are as follows:
(1) The procedures for the registration of an appellation of origin
The application must comprise the following documents:
(i) The declaration requesting for registration of the appellation of origin, made in three
(3) copies according to an approved form,
(ii) The explanation of the peculiar quality of the products bearing the appellation of
origin of goods, with the certification by a competent State agency, 1 copy;
(iii) A document of the competent agency certifying that the products bearing the
appellation of origin have peculiar characteristics and quality and are produced on the
territory corresponding to the appellation of origin (in conformity with theexplanation in the document (ii)), 1 copy;
(iv) A copy of the title of protection of the appellation of origin granted by the country of
origin, or a document of the country of origin certifying that the right of the applicant
to use the appellation of origin of goods is currently protected in the country of origin
(in case the appellation of origin of goods comes from a foreign country), 1 copy;
(v) A map of the territory corresponding to the appellation of origin of goods, in which
the place where the applicant produces or conducts business is indicated, 1 copy;
(vi) The power of Attorney (if required), 1 copy;
(vii) The voucher of payment of the application fee, 1 copy.
Once an appellation of origin has been registered, organizations and individuals producing,
trading in the products with characteristics, quali ty, shall have the right to file an applicationWT/ACC/VNM/23
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for obtaining a Certificate of the right to use the appellation of origin for their products. The
application shall include following documents (only for a registered appellation of origin, as
for the case when business individuals or organizations file an application for registration and
request of granting Certificate of right to use the appellation of origin, the application shall
include the above-mentioned documents, together with Business Registration Certificate):
(i) The declaration requesting for the grant of certificate of the right to use the
appellation of origin, made under an approved form in 3 copies;
(ii) The copy of the document certifying the lawful business right (the business licence,
certificate of business registration, etc.), 1 copy;
(iii) The document of the competent agency certifying that the products made or traded by
the applicant have peculiar characteristics and quality and are produced on the
territory corresponding to the appellation of origin of goods, 1 copy;
(iv) The power of attorney (if required), 1 copy;
(v) The voucher of payment of the application fee, 1 copy.
After the applications received, they will be examined by the National Office of Industrial
Property pursuant to procedures provided fo r in Circular No. 3055/TT-SHCN. Time period
for the examination as to formality of the application is 3 months counted from the filing dateand that for substantive examination  is 6 months from the date of Notification of acceptance
officially filed application. The term of protection of appellations of origin is infinite as long
as  protection conditions are met.
(d) Industrial designs
Question 156Concerning the material in WT/ACC/VNM/21 on "On Industrial Designs", the previous
request for elaboration on the manner in which Articles 796 and 804 of the Civil Code and
Section 34 Decree No. 63/CP provide the required rights for designs that are "substantially a
copy" of a protected design, as required by Article 26.1 of the TRIPS Agreement was not
addressed in the above-referenced document. Accord ingly, we would like to repeat that request.
Answer:
Article 796 Civil Code provides that the owner of an industrial design has the right to exclusively use
the industrial design, to licence other persons to use the industrial design, to request the State
competent authorities to force the infringing partie s to stop the infringing act and pay the damages.
According to Article 804 Civil Code "Any person w ho uses another person's protected subject matters
of industrial property during the term of protecti on without authorization of  the industrial property
owner shall be considered to be infringing the industrial property rights". Article 805 of the CivilCode stipulates acts of infringing the rights on industrial designs as such "making products  based
upon a design protected in Viet Nam; importing, selling, advertising or using the products made under
an industrial design which is under protection in Viet Nam for commercial purpose".
Paragraph 53(1) Decree 63/CP defines the acts infringing  industrial property rights  as follows:WT/ACC/VNM/23
Page 63
"A person other than the owner of an industrial property subject matters committing one of the acts of
use as provided for in Article 805 of the Civil Code and as elaborated in Section 34 of this Decree,
within the term of protection, and without author ization of the industrial property owner, and the
person committing the act is not the person having the right to prior use as prescribed in Article 50 of
this Decree and the act does not fall under the categories provided for in Article 51 and Article 52 ofthis Decree, shall be considered as having committed an act infringing  an industrial property right."
Section 34(2) Decree 63/CP stipulates in details that the use of industrial design includes the
production of, putting into circulation, advertising, offering or storing for sale, importing a product
whose shape is protected as an industrial design.
Although the above mentioned provisions on the rights of the industrial design owner’s are not
construed in the same wording as in the Article 26.1 of the TRIPS Agreement, they are interpreted
and implemented in a manner compatible with the requirement that the scope of protection of anindustrial design also covers designs that are "substantially a copy" of the protected design.
Particularly, the use of designs not substantially different from a protected industrial design is also
deemed to be an infringement of the right. Such a provision has been stipulated in the Decree
12/1999/ND-CP of 6 March 1999 on administrative m easures against violations in the fields of
industrial property (e.g. Section 9.1(g)), and as well as in the Draft amendment to the Decree 63/CPwhich was submitted to and approved by the Government.
Question 157
Please provide further description of the manne r in which Article 802 of the Civil Code and
Section 51 Decree No. 63/CP accommodates th e provision in Article 26.2 of the TRIPS
Agreement that requires that limited exceptions to the protection of industrial designs "do notunreasonably conflict with the normal exploitation of protected industrial designs and do not
unreasonably prejudice the legitimate interests of the owner of the protected design."
Answer:
Under the prevailing laws and regulations of Viet Nam, the rights to protected industrial designs are
not different from patent rights to inventions. Therefore, restrictive exceptions in respect of industrialdesign owners’ rights are similar to those to pa tent owners’ rights, including non-voluntary licenses
provided for in Article 802 of the Civil Code and Section 51 of the Decree 63/CP. The provisions on
non-voluntary licenses with regard to industrial designs shall be interpreted as follows:
Upon request of persons having the need of using an industrial design, the competent authority may
issue a decision ordering its owner to grant, in return for remuneration, a licence in case all the
following conditions are met:
1. The owner fails to use the industrial design or his use fails, without justifiable
reasons, to satisfy the needs of social-economic development of the country;
2. The person having the need of use has tried to negotiate with the owner but failed to
reach an agreement on a contractual licence, even with a reasonable royalty offer;
3. The use of the industrial design is aimed at the satisfaction of the need of national
defense, national security, human health care and other urgent needs of the society.
Non-voluntary licenses shall only be granted in acco rdance with procedures provided for in detail in
Section 51 of Decree 63/CP. Decree 06/2001/ND- CP which amended and supplemented to Decree
63/CP had complied with the provisions of Article 31 of the TRIPS Agreement. Therefore, non-WT/ACC/VNM/23
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voluntary licence of industrial designs is a limited exception, compliant with the provision of Art 26.2
of the TRIPS Agreement. Furthermore, the TRIPS Agreement does not contain such a provision
prohibiting non-voluntary licensing of industrial designs as in the case of trademarks (Article 21).
(e) Patents
Question 158Do the exceptions on patent ability of inventions for reasons of public order and morality
(Article 787 Civil Code) apply only where the comm ercial exploitation of these inventions are
forbidden?
Answer:
The exceptions on patentability of inventions for reasons of public order and morality shall apply to
the inventions which are against the public order and morality, regardless of whether or not the
commercial exploitation of these inventions is prohibited by law.
Question 159
Is the importation of a patented product consider ed as sufficient "use" of a patented exemption
within the meaning of the term "use" in Arti cle 51.2 of Decree 63/CP (non-voluntary licenses).
Answer:
According to the definition under Article 34, Decree 63/CP, the use of patented products also includes
importation. Therefore, importation is considered as "use" under Article 51.2 of Decree No. 63/CP.
Question 160
Does Decree 63/CP specify that, before granting  a non-voluntary licence, the proposed user
must have made efforts to obtain authorizatio n from the right holder on reasonable commercial
terms and conditions and that such efforts have  not been successful within a reasonable period
of time (except in the case of a national emergency or other circumstances of extreme urgency
or in cases of public non-commercial use)?
Answer:
Decree 63/CP specifies that, before granting a non-voluntary licence, the proposed user must have
made efforts to obtain authorization from the right holder on reasonable commercial terms and
conditions and that such efforts have not been successful within a reasonable period of time (except in
the case of a national emergency or other circumstances of extreme urgency or in cases of public non-
commercial use).
Question 161
Please describe and explain how all of the conditions that must be imposed upon the grant of a
compulsory licence by virtue of the terms of Article 31 of the TRIPS Agreement are
accommodated by Article 802 of the Civil Code and Section 51 Decree No. 63/CP.WT/ACC/VNM/23
Page 65
Answer:
The specific conditions and procedures for the grant of a non-voluntary licence to use inventions,
utility solutions and industrial designs are provided for in Article 802 of Civil Code, as follows:
A non-voluntary licence will be granted only if all the following conditions are met:
The owner fails to use the industrial design or his use fails, without justifiable reasons, to satisfy the
needs of social-economic development of the country
The person having the need of use has tried to negotiate with the owner but failed to reach an
agreement on a contractual licence, even with a reasonable royalty offer;
The use of the industrial property subject matters is aimed at the satisfaction of the need of national
defense, national security, human health and other urgent needs of the society.
According to Article 51 of the Decree No. 63/CP, as amended and supplemented under Decree No.
06/2001/ND-CP, conditions a nd procedures of grant of a non-voluntary licence are elaborated as
follows:
"Article 51: Licence upon decision of the competent State authority ("Non-voluntary licence")
A non-voluntary licence refers to a permission compulsorily granted by the owner of an industrial
property right, or his or her licensee over the whole invention, utility solution or industrial design, to
another natural or legal person or another entity to use such industrial property object upon a decisionof the competent State body as provided for in this Section.
The industrial property owner shall be compelled to  grant a non-voluntary licence only subject to the
conditions provided for in Article 802 of the Civil Code.
The provisions of paragraph 1 of Article 802 of the Civil Code shall not apply before the expiration of
a period of the four years from the date of filing the application for a Protection Title or three yearsfrom the date of granting the Protection Title.
The industrial property owner who has been compelled to grant a non-voluntary licence is entitled to
request that the non-voluntary licence be terminated when the circumstances which led to it cease to
exist and are unlikely to recur, provided that such  termination does not prejudice the grantee of the
non-voluntary licensee.
The Ministry of Science, Technology and Environment is the competent State body having authority
to consider requests for a non-voluntary licence, to issue a decision ordering the grant of a non-
voluntary licence and decision on su spension of a non-voluntary licence.
Documents of the request for a non-voluntary licen ce shall comply with requirements for formality
and content in accordance with the regulations of the Minister of Science, Technology and
Environment.
Within 15 days from the receipt of the documents requesting a non-voluntary licence, the Ministry of
Science, Technology and Environment shall notify the owner of an industrial property right, or his or
her licensee over the whole invention, utility solution or industrial design, of such request and shall
ask for an opinion in writing within 30 days from the date of notice.WT/ACC/VNM/23
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If necessary, the Ministry of Science, Technology and Environment shall request the parties involved
to re-negotiate in order to overcome disputes and agree on a voluntary contractual licence.
If an agreement on a voluntary licence has not been reached and arguments objecting to a voluntary
licence by the right holder are unreasonable, the Minister of Science, Technology and Environment
shall, within 3 months from the date of receipt of the documents of request, issue a decision ordering anon-voluntary licence to be granted. Otherwise,  the Minister of Science, Technology and
Environment shall issue a notice rejecting the request for a non-voluntary licence.
The Minister of Science, technology and Environment shall, in the decision ordering a non-voluntary
licence to be granted, impose licence conditions in compliance with the following provisions:
- A non-voluntary licence shall be non exclusive;
- The scope and duration of a non-voluntary licence shall be limited to the purpose for
which it was granted;
- The party to which a non-voluntary licence is granted shall not assign, except with the
enterprise which enjoy the non-voluntary licence, or grant sub-licence thereof;
- The party to which a non-voluntary licence is granted shall pay adequate
remuneration corresponding to economic value of the use under the non-voluntary
likeness or equivalent to a royalty under contractual licence of equivalent scope andtime limit.
The decision ordering a non-voluntary licence to be granted shall be published in the Official Gazette
of Industrial Property within 1 month from the date of issue.
Within 1 month from the date the Minister of Science, Technology and Environment issues the
decision ordering a non-voluntary licence to be granted, the right holder shall comply with such
decision on the conditions stipulated therein.
The person who is compelled to grant a non-voluntary licence is entitled to make appeal against the
decision ordering the grant thereof before the Minister of Science, Technology and Environment.
The person making request for a non-voluntary licence is entitled to make appeal against the decision
refusing the grant thereof before the Minister of Science, Technology and Environment.
The provisions on appeal procedures and settlement of appeals in Section 27 of this Decree shall also
apply to the appeal before the Minister of Science, Technology and Environment under this
subsection, wherein the Minister of Science, Technology and Environment is the person competent
for the first instance.
In case of disagreement with the Science, Technology and Environment Minister’s Decision on the
appeal, the appellant is entitled to, either appeal further to The Prime Minister pursuant to the Law on
appeal, denounce, or initiate a court case in administrative procedures."
Question 162
It appears that portions of Article 31, paragraphs (b), (c), (d), (e), (h) and (i) are accommodated
in Viet Nam's intellectual property laws. Ho wever, we cannot find reference to all of the
requirements of those provisions, nor to the remaining provisions of Article 31.WT/ACC/VNM/23
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Answer:
The requirement under paragraph (a) is accommodated in subsections 1 and 3, Section 51 Decree
63/CP: "Any Decision on granting non-voluntary licence is to be made after taking into consideration
the request of the proposed user";
The requirement under paragraph (f) would be ineffective if it is to be accommodated in the national
law because after first sale in domestic market, patented products are subject to free circulation even
abroad depending on the national law of the importing country;
The requirement under paragraph (g) is accommodated in subsection 2, 51, Decree No. 63/CP;
The requirement under paragraph (j) is accommodated in subsection 6.d) Section 51 and subsection 8,
Section 51,  Decree 63/CP;
Provisions under paragraph (k) do not seem to be requirements;
The requirements under paragraph (l) need not be accommodated in Viet Nam’s law. That means, in
case of two dependent patents, of course, the person who want to exploit either patent (say "the
second patent") must also ask for authorization of the owner of the other patent (the first patent), even
if he already have the authorization of the owner of  the second patent since each of the two dependent
patents cannot work separately.
Question 163
Could Viet Nam explain whether importation would satisfy the "use" requirement in Article
802(1) of the Civil Code?
Answer:
According to the definition under Section 34 Decree 63/CP, the use of patented products also includes
importation. Therefore, importation does satisfy the "use" requirement in Art 802 of the Civil Code.
Question 164
As outlined, the list of subject matter "not prot ected by the State as inventions" in Section 4(4)
Decree No. 63/CP far exceeds that permitted by Article 27.3 of the TRIPS Agreement. How
Viet Nam reconciles this extended list with the far more limited list of permitted exclusions in
the TRIPS Agreement?
Answer:
The subject matters excluded from patent protection as provided for under Section 4(4) Decree 63/CP
are essentially equivalent to those under the European Patent Convention and patent law of many
other countries, and particularly fall under three categories as follows:
Subject matters that are not technical solutions, i.e. not inventions:
- discoveries, scientific theories and mathematical methods (scientific concepts, principles and
discoveries, mathematical models,  graphs  and the like);
- aesthetic creations (solutions concerning only the shape of articles and being of an aesthetic
nature only);WT/ACC/VNM/23
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- schemes, rules and methods for performing mental acts (methods and systems for education,
teaching and training); methods for the training  of animals; schemes, rules and methods for
doing business (methods and systems for econom ic organization and management); computer
software; designs and planning schemes for construction works, projects for regional
development and planning;
- presentations of information (systems in regard of linguistics, information, classifications and
compiling of documentation, conventional signs, timetables, rules and regulations and
symbols);
- Subject matters, which are not industrially applicable (methods for the prevention, diagnosis
or treatment of human or animal diseases);
- Subject matters, which shall be protected under separate forms of protection other than patent
(layout designs of integrated circuits, plant or animal varieties).
The subject matters, which are excluded from patentability under Section 4(4) Decree 63/CP, do not
far exceed that permitted by  Article 27 of the TRIPS Agreement.
Question 165
Concerning Article 34 of TRIPS, please provide the status of Viet Nam's efforts to implement a
reversal of the burden of proof in certain circumstances.
Viet Nam states that such a provision is to be  implemented by the end of 2002. Is this still on
schedule? Are any drafts available for review/comment?
Answer:
According to prevailing laws and regulations on civil procedures of Viet Nam, the burden of proof is
of the plaintiff, rather than the defendant.
Provisions complying with Article 34 of the TRIPS Agreement in which burden of proof of plaintiff is
required in some certain circumstances, are to be provided in a draft of joint Circular of the Supreme
People's Court, the Supreme People’s Prosecution Institute and Ministry of Science, Technology and
Environment guiding the judgment of cases relating to industrial property rights. This Circular is
scheduled to be promulgated by the end of 2002.
The draft provision is as follows:
"In a civil case in respect of the infringement of patent rights to an invention or utility solution, if the
subject matter of the patent is a process of maki ng a new product, the owner of the patent shall only
be required to provide evidences that the products produced and supplied to the market by the
infringer are identical to those made by the patented process and there is a likelihood that the identical
products have also been made by the patented process. In order to prove that the defendant does not
infringe the patent rights, he must produce the evidence that their products have been made under aprocess other than the patented process of the plaintiff.
Question 166
Concerning Articles 35-38, please provide st atus information for the implementation of
protection for layout designs of integrated circuits.WT/ACC/VNM/23
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Viet Nam states that appropriate provisions we re to have been submitted to the Government in
December 2001. Were such provisions submitted? Are drafts available for review/comment?
Answer:
A draft Decree of the Government on the protecti on of layout designs of semiconductor integrated
circuits has been submitted to the Government and scheduled to be enacted in 2002. The translationversion of the draft Decree is attached herewith.
(g) Layout designs of integrated circuits
Question 167
With respect to layout designs of integrated ci rcuits, what protections are being afforded to
"discretes" under new or proposed regu lations? (Article 35- 38 of TRIPS).
Answer:
We would request the question to be made clearer, in particular the term "discrete".
Question 168
WT/ACC/VNM/21 (P30, 34 and 36): We note that as yet that provisions for integrated circuits
have not been drafted, nor legislation for seizure of infringing goods or notification for the right
holder and imported. We look forward to developments in these areas.
Answer:
A draft Decree of the Government on the protecti on of layout designs of semiconductor integrated
circuits has been submitted to the Government and scheduled to be enacted in 2002.
(h) Requirements on undisclosed information, including trade secrets and test data
Question 169
Article 18 of the Decree No. 54/2000/N§-CP provide s that Acts of infringement of industrial
property right of business secrets include [ ...] 4. "accessing, acquiring other's information on
business secrets submitted for approval in accordance with licence application procedures
related to [ ...] marketing of products, [ ...] ". Please describe how this provision meets the
requirement of Article 39.3 TRIPS Agreement st ating that Members shall protect undisclosed
test or other data which is submitted as a condition of approving the marketing ofpharmaceutical or of agricultural products against unfair commercial use.
Answer:
Article 18.4 of Decree No. 54/ 2000/ND-CP has complied with the requirements provided for in
Article 39.3 of the TRIPS Agreement:
18. 4. "Accessing to, gathering business secret information submitted by others under the procedures
for approval of business-related licence or a permission for product circulation - especially
pharmaceuticals and agro-chemical products, or taking acts against secret-keeping measures ofadministrative agencies, or using such information for business purposes, including purpose of
obtaining business-related licence or licence for product circulation".WT/ACC/VNM/23
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Question 170
Does Viet Nam legislation prevent the regulatory authority itself from relying on original test
data for approving bio-equivalent products that are submitted by a generic manufacturer?
And, if so, what is the period of time?
Answer:
If the question is whether or not the State authority is prevented from relying on original test data for
approving a product to approve a product of another, th en the answer is yes. According to Article 18.4
of the Decree No. 54/2000/ND-CP, the use of test data submitted by others under the procedures for
approval of permission for product circulation is also considered as an infringing act with respect to
the rights over business secret of others. Therefore, the state authority approving the permission for
product circulation is not allowed to rely on the test data submitted by one producer to approve a
product of others. This requirement will be elaborated in a document guiding the implementation ofDecree No. 54/2000/ND-CP.
Question 171
Viet Nam government Decree 54/2000 Article 18.4 does not address how the Vietnamese
government itself will protect pharmaceutical and agricultural chemical test data provided to it
for marketing approval purposes. We expect othe r delegations will take the lead on this point
but would be interested in how the TRIPS requi rement for the Member, itself, to protect such
information will be met.
Answer:
The competent authorities are obliged to ensure the secrecy of the test data submitted under secret
keeping rules of administrative authorities, as applications for a patent, utility solution and industrialdesign are kept secret by the patent office.
4. Enforcement
Question 172
With respect to administrative enforcement of inte llectual property rights in Viet Nam, identify
the following:
The relationship, if any, between administrative penalties and criminal enforcement.
The use of evidence obtained in administrative enforcement for subsequent or concurrent civil
or criminal procedures.
The role of administrative penalties in providing deterrence to criminal activities, in view of the
low penalties provided.
The ability of administrative agencies to order cessation or alteration of conduct, and the
criminal penalties available for violation of an administrative order.
Whether central government approval for initiation of administrative enforcement actions for
IP rights, and if so, whether such approval applies only to foreigners, or applies equally to
Vietnamese and foreigners?WT/ACC/VNM/23
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Answer:
According to Article 131 (The crime of copyright infringement) and Article 171 (The crime of
industrial property right infringement) of the Criminal Code of 1999, one of the grounds on which an
act of intellectual property right infringement is considered as the crime of copyright or industrial
property right infringement is: "... although having been handled by the administrative penalties forthe same violation ... but the infringer commits further violation". In the event that an act of
administrative violation contains a criminal elemen t, the competent person shall immediately forward
the dossier (including evidences of the violating act) to the criminal competent authorities for
handling the violation, and must not detain those cases of criminal violations for the administrative
handling (Article 62.1 of the Ordinance on the administrative measures against violations of 2002). In
the event that a decision on penalty has been issued, if the act of violation is found out containing the
criminal element and the prosecution time limit of criminal liability has not expired, the person whoissued the decision must annul that decision and wi thin three (3) days of annulling the decision, must
forward the dossier of the case of violation to the criminal competent authorities (Article 62.2 of the
Ordinance on the handling of administrative violations of 2002). The evidences obtained under the
administrative procedures may also be gathered by the civil court when necessary in order to ensure
the proper settlement of the case (Article 3 of the Ordinance on procedures for handling civil cases of1989). These provisions are elaborated in the prevailing regulations on the handling of administrative
violations in the field of copyrights and industrial property rights.
As mentioned above, administrative measures serve as a tool for preventing the criminal acts. This is
reflected under the provision that if after having been handled by administrative measures, the
infringer commits another infringing act then he sh all be subject to criminal liability for violating
copyrights or industrial property rights. The administrative measures against violations in the field of
intellectual property are applied to exhaustively handle intellectual property violations which are not
so serious to be prosecuted for criminal liability, to eliminate causes and conditions of further
violations and to deal with the consequences caused by the act of violations, thus to prevent elements
constituting the crime.
The ability of administrative bodies to order the infringe to cease or alter the conduct and criminal
penalties available against violations of administrative orders: The Criminal Code of 1999 of
Viet Nam does not have any provisions concerning the criminal acts violating decisions on handling
of administrative violation in the field of intellectu al property, except the case further violation occurs
after having been handled (Article 131 and Article 171).
According to the Decree No. 12/1999/ND-CP of 03.06.1999 of the Government on the handling of
administrative violations in the field of industrial property and the Decree No. 31/2001/ND-CP of06.26.2001 of the Government on the handling of administrative violations in the field of culture and
information (including copyrights), the follow ing agencies have the authorization to handle
administrative violations: the People Committees, the Police, the Customs, the Market Management
Organizations, the specialized science and technology Inspectorates and specialized culture and
information Inspectorates at the various levels. The Government does not decide the administrativemeasures against each particular case but instead promulgates legislation on this issue. A foreign
organization and/or individual that commits an act of administrative violation in the field of
intellectual property in the territory of Socialist Republic of Viet Nam shall also be handled in
accordance  with to the existing regulations on the handling of administrative violations, unless
otherwise stipulated in the related international conventions, to which Viet Nam is a signatory or aparty (Article 2.3 of Decree No. 12/1999/ND-CP  of 03.06.1999 of the Government on the handling of
administrative violations in the field of industrial property and Article 2.2 of Decree No. 31/2001/ND-
CP of 06.26.2001 of the Government on the handling of administrative violations in the field of
culture - information).WT/ACC/VNM/23
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Question 173
Concerning administrative penalties, please explain how those applied by Viet Nam constitute a
"deterrent penalty" within the meaning of TRIPS requirements regarding criminal
enforcement of IP matters. What penalties a re attached to violating an administrative
injunction?
Answer:
In accordance with the current/existing regulations of Viet Nam on the handling of administrative
violations in the field of intellectual property, the administrative measures are applied to the acts of
violation that are not so serious to be prosecuted for criminal liability. The administrative measures
are effective to deter the acts of infringement that would constitute a crime, because according to
Article 171 of the Criminal Code of 1999, one of the grounds for identifying a criminal infringement
of intellectual property rights is that the violating act "has been handled by the administrativepenalties".
According to Article 64 of the Ordinance on the handling of administrative violations of 2002, the
decision on the handling of administrative violations is enforced within the time limit of 10 days
counted from the date issuing the decision. In the event that the time limit has expired but the
organization and/or individual refuses to voluntarily enforce the decision, they shall be forced to doso. The compelling measures could be the deduction from wages/salary or income or deduction from
the bank account, listing of properties equivalent to the value of the imposed penalty. The Criminal
Code of 1999 of Viet Nam does not contain any provisions on the offence in respect of violation of
the decision of the handling of administrative violati ons in the field of intellectual property, except for
Article 131 and Article 171.
Question 174
Pursuant to TRIPS Article 41, how are "actual material losses" calculated and determined?
How are "mental" damages defined, and how are they quantified and determined? How does
the implementation of mental and material damage awards create a deterrent effect?
Answer:
Article 310 of the Civil Code of 1995 provides for the liability to compensate for material and mental
damages.
"The actual material damages" as provided for in Article 310.2 of the Civil Code of 1995 means that
actual material losses caused by the infringer to th e victim, which are calculated in the monetary value
including losses of properties, costs of preventing and minimizing  damages, losses of actual income.
"The mental damages" as provided for in Article 310.3 of the Civil Code of 1995 means that damages
caused by the infringement to the life, health, honour dignity and prestige of the victim. Detailedprovisions on the determination of damages and the level of compensation for the damages are to be
promulgated in joint Circular of the Supreme People’s Court, the Supreme People’s Prosecution
Institute and the Ministry of Science and Technology and Ministry of Culture and Information
guiding the judgment of industrial property rights cases.
The implementation of the decision on compensation for mental and material damages are effective to
deter further violations, to overcome the consequences caused by the administrative violation in the
field of intellectual property.WT/ACC/VNM/23
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Question 175
Pursuant to TRIPS Article 43.1, please describe in detail the procedure by which rights holders
can request, or judges can order production of evidence in IPR related cases
Answer:
According to Article 41 of the Ordinance on procedures for handling civil cases of 1989, in the course
of handling the case, the Court itself has the right or at a request of either party to apply provisional
measures of prohibiting or compelling parties to fulfill certain acts, including the production of
necessary evidences to substantiate the other party’s claims in case the evidences are under that
party’s control. Detailed provisions on the procedures for providing the necessary evidences are to be
promulgated in the joint Circular of the Supreme People’s Court, the Supreme People’s Prosecution
Institute and the Ministry of Science and Technology guiding the judgment of industrial property
rights cases.
Question 176
Pursuant to TRIPS Article 46, please describe in  detail what provisions have been promulgated
concerning the seizure of infringing goods, and materials and implements the predominant use
of which is infringement.
Answer:
The seizure of infringing goods, and the materials and implements the predominant use of which is
infringement are provided in the Decree No. 12/1999/ND-CP of 03.06.1999 of the Government on the
handling of administrative violations in the field of industrial property and the Decree No.
31/2001/ND-CP of 06.26.2001 of the Government on the ha ndling of administrative violations in the
field of culture - information. The detailed provisions are as follows:
Article 18 of the Decree No. 12/1999/ND-CP of 03.06.19 99:  "Procedure for confiscation of material
evidences, implements used for administrative violations"
1. Procedure for confiscation of material evidences, implements used for administrative
violations in the field of industrial property shall comply with Article 51 of the Ordinance on
the handling of administrative violations.
2. The confiscation of material evidences, implements used for  the administrative violation  in
the field of industrial property shall be applied in the following cases:
a) The confiscation and the sealing of goods and the material evidences, implements are
necessary for gathering evidences and ensuring the protection of the evidence  (not to
be destroyed or lost or alternated);
b) There is a likelihood goods, documents and  implements  would lead to further
violations;
c) The violating organizations or individuals are not in a position  to remove or
intentionally refuse to implement of the request of the competent person to remove
the elements of violating, amending or adding the indications on the goods and
business means;WT/ACC/VNM/23
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d) Goods in the market and the exported, imported goods bearing the violating elements,
although it is impossible to identify the or igin of the goods, the owner, the producer
or the distributor of the goods, but there is  adequate grounds to determine that the
goods are not made available in the market by owner of the industrial property rights)
The implements, which are used in committing the act of violation, are merely usedfor  producing  the infringing goods or providing the infringing services;
Article 19. "Procedure for treating the confiscated material evidences, implements used in the
administrative violations"
Procedure for treating the confiscated material ev idences, implements used in the administrative
violations in the filed of industrial property shall comply with Article 52 of Ordinance on the handling
of administrative violations and the following provisions:
1) The destruction shall apply in the event that  the material evidences, implements fall under the
following categories:
a) The infringing goods are of  bad quality and  harmful to human health and the
environment;
b) The infringing goods and materials are of no value/useless;
c) The infringing goods and materials are product labels, trademark specimens,
product/goods packages;
d) Although the infringing goods and implements are of value/use it is impossible to
apply the measures provided for under item 2 of this Article;
2. The case where the evidences are goods, implements used for producing the infringing goods
and providing the infringing services,  are of value  shall be handled by the followingmeasures:
a) Removing infringing elements from goods, implements used for producing goods and
providing services, and then selling them via auction, provided that the buyers shall
have the appropriate measures for appropriate exploitation and making use of them
without the risk of committing further violation and shall not harm the legitimaterights and interests of the related industrial property owners.  The infringing
implements used merely to produce infringing goods or provide infringing services
shall not be sold through auction unless the buyers take appropriate measures to use
them with other function and purpose. b) Selling the infringing goods by auction,
provided that the buyers have been lawfully licensed by the owner of the industrial
property rights and the goods meet the required quality and the buyers take
appropriate measures to implement additional requirements;
c) In the case where it is impossible to remove the infringing elements or the infringing
goods are not eligible to be sold by auctio n according to provisions under in points a,
b of this item, the goods could  be distributed for non-commercial purpose (such as
charity/humanity, public welfare, research and education purposes), provided that the
exploitation and use of the goods do not negatively affect the legitimate rights andinterests of the industrial property owners;
Detailed provisions on additional remedies and measures of the judicial procedures, including
measures of seizure, measures applied outside the channels of commerce, and destruction of theWT/ACC/VNM/23
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infringing goods, are to be elaborated in a join t Circular between the Supreme People’s Court, the
Supreme People’s Prosecution Institute and the Ministry of Science and Technology guiding the
judgment of industrial property rights cases.
Question 177
Pursuant to TRIPS Article 48.1, what provisions have been promulgated concerning the
indemnification of the defendant in the case of abuse of enforcement procedures by the
complainant?
Answer:
According to Article 14.1.b of the Decree N o. 101/2001/ND-CP of 31 December 2001 of the
Government guiding the implementation of the Customs Law, when requesting the border
enforcement measures (the measure of suspension of customs procedures for imported-exported
goods which contain elements under suspicion of infringing intellectual property rights), theintellectual property right owner must deposit an amount of money equivalent  to 20 per cent of the
value of the batch of goods stated in the contract to the deposit account at a State Treasury or submit
the guarantee receipt of a credit organization to en sure the compensation for the owner of goods and
the payment of costs caused by the request for suspension of the customs procedures to related
agencies, organizations and/or individuals.
Detailed provisions on the ability of the competent bodies to order the plaintiff to pay the
compensation to the defendant in respect of the damages caused by the abuse of the enforcement civil
procedures by the plaintiff, shall be stipulated in the Civil Procedures and Code and joint Circulars
between the Supreme People’s Court, the Supreme People’s Prosecution Institute and the Ministry of
Science and Technology guiding the judgment of industrial property rights cases.
Question 178
Administrative judgments of intellectual property rights infringements may be "secondly
appealed either at superior administrative auth ority, or at the Administrative Court." Please
describe further how this appeal procedure satisfies the requirement judicial review of
administrative decisions under TRIPS Article 41.4.
Answer:
According to the Ordinance on procedures for judgment of administrative cases of 1995, as amended
and supplemented in 1998, the Appeal and Denounce Law of 1998, the administrative decisions on
the handling of intellectual property right infr ingements after having been appealed to the
administrative authority that issued the decision, may either be further appealed to a superior
administrative body or to the administrative court, depending on the plaintiff’s choice. Once the
plaintiff chooses the way of appealing to the superior administrative authority, that means he/sherefuses the court procedures. In that case, the decision issued by the superior administrative body shall
take effect as the final one and the case shall not be brought before the court.
Question 179
The Ordinance on procedures for judgment of civil cases, Decree No. 12/1999/ND-CP, Circular
No. 825/2000/TT-BKHCNMT, and Decree No. 31/2001 /ND-CP on administrative procedures in
culture and information sector each provide for pr ocedure that allows plaintiffs to bring action
for IPR infringement. Pursuant to TRIPS Article 42, please describe in detail the processesWT/ACC/VNM/23
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allowed for under these ordinances. What proced ures exist for notification of defendants in
intellectual property infringement actions? Please describe.
Answer:
The Ordinance on procedures for judgment of  civil cases of 1989 stipulates as follows:
- Citizens, legal entities, according to procedures  provided for by laws, shall have the right to
bring a civil case to the People Court to protect their legitimate interests (Article 1).
The Decree No. 12/1999/ND-CP of 6 March 1999 of the Government on the handling of
administrative violations in the field of industrial property stipulates as follows:
- When detecting the act of violation or elements of administrative violation of industrial
property rights, the competent person shall explain, make the violating organizations,
individuals understand and implement the provisions on penalties against administrative
violations in the field industrial property as well as related regulations on industrial property
(Article 14.1).
Circular No. 825/2000/TT-BKHCNMT of 3 May 2000 of the Ministry of Science, Technology and
Environment guiding the implementation of the Decree No. 12/1999/ND-CP of 6 March 1999 of the
Government on the handling of administrative viol ations in the field of industrial property, as
amended and supplemented by the Circular No. 49/2001/TT-BKHCNMT of 14 September 2001 ofthe Ministry of Science, Technology and Environment provides for as follows:
- Every organization, individuals shall have the right to and obligation to promptly detect the
acts of administration violation in the field of industrial property, and inform the competent
person of the violations for timely taking necessary procedures to ensure the cessation of the
infringement and overcome the consequences ( point 2.4). Every organi zations, individuals
shall have the right to denounce the acts of violation of laws on industrial property to the
competent authorities; the foreigners who are not residing in Viet Nam, the foreign legal
entities which do not have any lawful representative and an actual business establishment in
Viet Nam shall denounce the violation acts via a Vietnamese industrial property agent (point
26.1).
The denouncer shall have the obligation of submitting evidences of the industrial property right
infringement (point 26.2), the industrial property ri ght owner shall have the obligations of producing
the necessary documents, evidences, information for handling the violations on the request of the
competent person in charge of handling of the violations, and shall have the right to explain, propose
measures for protecting their legitimate rights and interests (point 27.2).
The competent person responsible for handling the in fringement shall inform the industrial property
right owner of the infringement and request the provision of necessary documents (point 27.1).
The Decree No. 31/2001/ND-CP of 26 June 2001 of the Government on the handling of
administrative violations in the field of culture and information stipulates as follows:
Citizens shall have the right to denounce the administrative violations by organizations, individuals in
the field of culture and information to the State competent agencies as provided for in this Decree
(Article 68.1). The procedures of denunciation shall comply with the Appeal, Denounce Law of 1998,which stipulates as follows:WT/ACC/VNM/23
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The denouncer shall have the right to either file a written denunciation or directly denounce the
infringement to the authorized agencies, organiza tions, individuals (Article 57.1.a)), the person who is
denounced shall have the right to be informed of the content of the denunciation and to deny the
denunciation by providing evidences to prove that the content of the denunciation is wrong (Article
58.1.a) and b).
Provisions on measures of protecting confidential information, the closed procedures for judgment
and the obligation of protection of confidential information of the parties involved in the procedures
are to be provided for in the joint Circulars between the Supreme People’s Court, the Supreme
People’s Prosecution Institute and the Ministry of Science and Technology guiding the judgment of
industrial property rights cases.
Question 180
Administrative remedies for IPR violations  are available under Decree No.12/1999/ND-CP of
the Government of 6 March 1999 on administrative  measures against violations in the field of
industrial property, Circular No. 825/2000/ TT -BKHCNMT, and Decree No.31/2001/ND-CP.
Please describe in detail how these administrative remedies conform with TRIPS Articles 41-48,
pursuant to TRIPS Article 49.
Answer:
The prevailing regulations on administrative measures of intellectual property right enforcement
(including the Decree No. 12/1999/ND-CP of the Government of 6 March 1999 on the handling of
administrative violations in the field of industr ial property, Circular No. 825/2000/TT-BKHCNMT of
3 May 2000 of the Ministry of Science, Technology and Environment guiding the implementation of
the Decree No. 12/1999/ND-CP of 6 Marc h 1999 of the Government on the handling of
administrative violations in the field of industrial property, as amended and supplemented by the
Circular No. 49/2001/TT-BKHCNMT of 14 September 2001 of the Ministry of Science, Technology
and Environment, the Decree No. 31/2001/ND- CP of 26 June 2001 of the Government on
administrative measures against violations in the field of culture and information) basically comply
with the requirements under Article 41-48 and Article 49 of the TRIPS Agreement. These provisionsare as follows:
The Decree No.12/1999/ND-CP of the Government  of 6 March 1999 on administrative measures
against violations in the field of industrial property, Circular No.825/2000/TT-BKHCNMT of
3 May 2000 of the Ministry of Science, Technology and Environment guiding the implementation of
the Decree No.12/1999/ND-CP of 6 March 1999 of th e Government on the handling of administrative
measures against violations in the field of industrial property, as amended and supplemented by the
Circular No. 49/2001/TT-BKHCNMT of 14 September 2001 of the Ministry of Science, Technology
and Environment, the Decree No.31/2001/ND-CP of 26 September 2001 of the Government on the
handling of administrative violations in the field of culture and  information contain provisions on
measures and remedies against administrative violations in the field of intellectual property in order to
exhaustively handle the violations, eliminate reasons and conditions that may lead to further
violations and overcome the consequences caused by the acts of administrative violations in the fieldof intellectual property. The procedures for administrative penalties  in the field of intellectual
property do not aim at creating barriers to legitimate trade, they are quite fair, equitable, and are not
too complicated or costly and do not provide for unreasonable time limits or indefinite delays. When
detecting the act of infringement or the signs of administrative violations of industrial property
rights/copyrights, the competent person shall order the suspension of the acts of administrativeviolations. In case of applying the measures  of imposing a warning or fine from 5,000VND to
100,000 VND, the competent person shall issue the decision on imposition of penalties on the spot.WT/ACC/VNM/23
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The time limit for issuing the decision on penalty shall be ten (10) days counted from the date on
which the administrative violation was detected; In the event of a complicated case, the time limit for
issuing the decision shall be 30 days. Any delay caused by the competent person in respect of the time
limit for issuing the decision shall be handled by the provisions under Article 121 of the Ordinance on
the handling of administrative violations of 2002.
The decision on the handling of administrative violations shall be in the written form, indicating acts
of administrative violation, the details of the handling of the infringement, legal provisions applied,
sanctions imposed. The administrative decisions on handling of intellectual property right
infringement may be further appealed to a superior administrative body or brought before the
administrative court, depending on plaintiff’s choice (see the Answer 162). The above mentioned
regulations basically satisfy the requirements of Article 41 of the TRIPS Agreement.
The competent agencies responsible for  handling  administrative violations shall have the right to,
without the liability for compensation in any form , apply the administrative measures (as mentioned
in the Answer 160) depending on the essence and the extent of the violations, in a manner as to
exhaustively handle the violation, to eliminate the causes and conditions for further violation and deal
with the consequences caused by the act of the ad ministrative violation in the field of industrial
property. In the event that the evidences of infringe ment are goods of value, the removal of infringing
elements from the goods (including the imitated trademarks stuck on the goods) and their sale by
auction shall be conducted on the condition that the buyer shall not commit any further acts of
violation to the prejudice of the legitimate rights and interests of the industrial property owners (in
compliance with Article 46 of the TRIPS Agreement).
Question 181
According to WT/ACC/VNM/6, part II, of 20 Apri1 1999, administrative procedures limit
damages to under 1,000,000 Vietnamese Dong (Approximately $65US). Please describe in detail
how administrative remedies available, including the above-mentioned fines, provide a
deterrent effect under TRIPS Article 41?
Answer:
According to the prevailing law and regulations of Viet Nam, industrial property rights shall be
enforced either by administrative, civil or criminal procedures. The compensation for damages is one
of the civil remedies. However, in order to facilitate and save the parties’ costs for pursuing the case,
the Vietnamese law encourages the related parties to amicably agree and deal with the issue of
compensation for damages. If the act of intellectual property right infringement is handled by
administrative procedures, the administrative remedies are the punishment for the deterrent purpose
but are not to compensate the damage to the righ t holder. The administrative authorities shall only
decide the compensation of up to 1 million VND when the related parties have not reached an
amicable agreement. Therefore, this provision does not exclude the possibility of   claiming
compensation for damages under civil procedures. The remedy for punishment under administrative
procedures and the remedy of compensation under civil procedures are effective to deter the acts of
intellectual property infringement.
Question 182
Decree No. 12/1999/ND-CP, together with Circular No. 825/2000/TT -BKHCNMT provide for
destruction of infringing goods as a remedy for infringement of industrial property. Can
competent authorities order destruction of goods pursuant to a finding of copyright
infringement, pursuant to TRIPS Article 59? Please list the provisions that grant this authority,
and describe them in detail.WT/ACC/VNM/23
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Answer:
Viet Nam shall provide this list at the earliest time.
Question 183
Decree 63/CP of 24 October 1996 provides that importation for "non-commercial" purposes
shall not be considered infringement of indu strial property rights. Please define "non-
commercial," pursuant to TRIPS Article 60. Does the definition include the activities of non-
profit or charitable organizations? How does this equate to the requirement of exempting de
minimis imports under TRIPS Article 60?
Answer:
Non-commercial imported goods are those for aid, temporary imports, exports, for maintaining  the
operation/functioning of Vietnamese or foreign or ganizations, individuals that are exempted under
diplomatic procedures, gifts, souvenirs, including personal luggage within the limits provided for by
the Government. These provisions are to be promulgated under the joint Circular of the General
Customs Office and the Ministry of Science and Technology on border enforcement of industrial
property rights.
Question 184
Article 760 of the Civil Code "stipulates that th e usage for non-business purposes that does not
conflict with the normal exploitation of th e works and does not unreasonably prejudice the
legitimate interests of the author shall not be considered infringement of copyright." Pursuant
to TRIPS Article 60, please define the following terms as they are applied in Article 760 of the
Civil Code:
- non-business purposes;
- normal exploitation of works;
- unreasonably prejudice, and
- author.
How does Article 760 equate to the requirement of exempting de minimis imports under TRIPS
Article 60?
Answer:
Non-business purpose means activities not for the economic purpose in all forms;
Normal exploitation of works means provision of works in normal and popular form with regards to
works;
Unreasonably prejudice means effects beyond permitted purpose;
Author is the person who directly creates a whole or  a part of literature, art and scientific works.
Author should only natural person;
Question 185
Under the Criminal Code of 1999:WT/ACC/VNM/23
Page 80
Please describe in detail the penalties available under Articles 131, 156, 162, 168, and 171.
Please describe how penalties under each provision provide deterrent effect, pursuant to TRIPS
Article 61.
Answer:
Article 131 (The crime of copyright infringement) of the Criminal Code of 1999:
1. Those who commit one of the following acts thus causing serious consequences or who have
been administratively sanctioned for one of the acts stipulated in this Article or have been
sentenced for such crime, not yet entitled to criminal record remission but repeat their
violations, shall be subject to a fine of between two million and twenty million Dong or non-
custodial reform/probation for up to two years:
a) Appropriating the copyright in respect of literary, art, scientific, journalistic works,
audiotapes or audio discs, videotapes or videodiscs;
b) Wrongfully assuming authors’ names on literary, art, scientific or journalistic works,
audiotapes or audio discs, videotapes or videodiscs;
c) Illegally amending the contents of literary, art, scientific, journalistic works,
programs on audiotapes or audio discs, videotapes or videodiscs;
d) Illegally publicizing or disseminating literary, art, scientific or journalistic works,
programs on audiotapes or disc, videotapes or disc.
2. Committing the crime in one of the following circumstances, the offenders shall be sentenced
to between six months and three years of imprisonment:
a) In an organized manner;
b) Committing the crime more than once;c) Causing very serious or extremely serious consequences.
3. The offenders may also be subject to a fine of between ten million and one hundred million
Dong, to a ban from holding certain posts, practising certain occupations or doing certain jobs
for one to five years.
Article 156 (The crime of manufacturing and/or trad ing in fake goods) of the Criminal Code of 1999:
1. Those who manufacture and/or trade in fake goods equivalent to the quantity of genuine
goods valued between thirty million Dong and under one hundred fifty million Dong, or
under thirty million Dong but causing serious consequences or who have been already
administratively sanctioned for acts defined in this Article or any of Articles 153, 154, 155,
157, 158, 159 and 161 of this Code or have already been sentenced for one of these offences
but not yet entitled to criminal record remission and repeat the violation, shall be sentenced to
from six months to five years of imprisonment.
2. Committing the crime in one of the following circumstances, the offenders shall be sentenced
to between three and ten years of imprisonment:
a) In an organized manner;WT/ACC/VNM/23
Page 81
b) The crime is committed in a professional manner;
c) Dangerous recidivism/repeated crime;
d) Abusing positions and/or powers;
e) Abusing the names of agencies or organizations;
f) The fake goods are equivalent to a quantity of genuine goods valued between one
hundred and fifty million Dong and under five hundred million Dong;
g) Gaining great illicit profits;
h) Causing very serious consequences.
3. Committing the crime in one of the following circumstances, the offender shall be sentenced
to between seven and fifteen years of imprisonment:
a) The fake goods are equivalent to a quantity of genuine goods whose value exceeds
five hundred million Dong;
b) Gaining very enormous or extremely enormous illicit profits;
c) Causing extremely serious consequences.
4. The offenders may also be subject to a fine of between five million Dong and fifty million
Dong, the confiscation of part or whole of the property, a ban from holding certain posts,
practising certain occupations or from doi ng certain jobs for one to five years.
Article 162 (The crime of deceiving customers) of the Criminal Code of 1999:
1. Those who, in purchase or sale of goods, use a trick in weighing, measuring, calculating or
fraudulently exchange goods or employ other deceitful ploys, causing serious loss to
customers, or who have already been admini stratively sanctioned for such acts or been
sentenced for such offences and not yet entitled to criminal record remission but repeat theirviolations, shall be subject to a warning, a fine of between five million Dong and fifty million
Dong, non-custodial reform for up to three years or imprisonment  of between three months
and three years.
2. Committing the crimes more than once or gaining enormous illicit profits, the offenders shall
be sentenced to between two and seven years of imprisonment.
3. The offenders may also be subject to a fine of between three million Dong and thirty million
Dong.
Article 168 (The crime of making false advertisements) of the Criminal Code of 1999:
1. Those who falsely advertise goods and/or services, causing serious consequences, or who
have been administratively sanctioned for such act or already sentenced for such offence and
not yet entitled to the criminal record remission but continue to commit it, shall be subject to
a fine of between ten million Dong and one hundred million Dong, non-custodial reform for
up to three years or to imprisonment of between six months and three years.WT/ACC/VNM/23
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2. The offenders may also be subject to a fine of between five million Dong and fifty million
Dong, to a ban from practising certain occupation s or doing certain jobs for one to five years.
Article 171 (The crime of industrial property ri ght infringement) of the Criminal Code of 1999:
1. Those who, for commercial purposes, appropriate and/or illegally use inventions, utility
solutions, industrial designs, trademarks, appellations of origin of goods or other industrialproperty subject matters, which are protected in Viet Nam, thus causing serious consequences
or who have already been administratively sanctioned for such acts or already been sentenced
for such offences, not yet entitled to criminal  record remission but continue to commit them,
shall be subject to a fine of between twenty million Dong and two hundred million Dong or to
non-custodial reform for up to two years.
2. Committing the crimes in one of the following circumstances, the offenders shall be
sentenced to between six months and three years of imprisonment:
a) In an organized manner;
b) Committing the crime more than once;
c) Causing very serious or particularly serious consequences.
3. The offenders may also be subject to a fine of between ten million Dong and one hundred
million Dong, to a ban from holding certain posts, practising certain occupations or doingcertain jobs for one to five years.
The above mentioned penalties of the crime of intellectual property rights including remedies of
imprisonment and/or fines which are provided for in a variety of levels of penalties corresponding to
the seriousness of each infringement of intellectual property rights the scale and extent of the
infringement (intentional or unintentional) committed by the infringer, are effective to deter the actsof infringement and comply with Article 61 of the TRIPS Agreement.
Question 186
Under the Ordinance on procedures for judgment of civil cases:
Please describe in detail the procedure by which a right holder can petition for interim relief or
provisional measures, pursuant to TRIPS Article 50.1.
Describe in detail what provisions have been promulgated concerning the authorization of a
court to order the applicant for interim relief to provide a security or equivalent assurance
sufficient to protect the defendant and p revent abuse, pursuant to TRIPS Article 50.3.
Answer:
The Ordinance on procedures for judgment of civil cases of 1989 provides that the parties have the
right to claim the Court to take necessary measures of inspection, to decide to apply the provisional
measures (Article 20.2). In the course of handling the case, the Court is able itself or on the request ofthe Prosecution Institute or parties, to prohibit or compel the parties to commit certain acts in order to
solve urgent requests of the party or to preserve evidences (Article 41.7). Before opening the trial, if
requesting the provisional measures, the party concerned shall have to make an application, the
Prosecution Institute shall provide a written reply to the Court. The Court shall hear the explanations
of persons who have rights and interests related to that request before applying the provisionalWT/ACC/VNM/23
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measures. If it is necessary to take the provisional measures, the Court shall have the right make an
immediate decision (Article 42.1). If the provisional measures are to prohibit the transfer of properties
and the deal must be registered with the competent agency, the Court’s decision shall be sent to the
party concerned and to the competent agency (Article 42.2). The decision on the provisional measure
shall be immediately implemented. The parties shall have the right to appeal, the Prosecution Institutehas the right to make a proposal regarding this decision to the Chief of Justice of the Court handling
the case. Within three (3) days of receiving the appeal and/or the proposal, the Chief Justice shall
examine and reply (Article 42.3). Detailed provisions on provisional measures against infringement of
industrial property rights, including the deposit of a certain amount of money for preventing the abuse
of the rights are to be promulgated in the joint Circulars of the Supreme People’s Court, the Supreme
People’s Prosecution Institute, the Ministry of Science and Technology guiding the judgment of
industrial property cases.
(d) Any special border measures
Question 187
Pursuant to the Action Plan for the Implementation of the TRIPS Agreement,
WT/ACC/VNM/21, under Article 58 of the Customs Law:
What is required of aright holder applicant in order to establish a prima facie case of
infringement, pursuant to TRIPS Article 52?
Answer:
According to Article 58 of the Customs Law, when requesting the suspension of the customs
procedures, the right holders must:
a) Apply a form requesting the suspension and provide evidences of intellectual property right
and the violence of that.
b) Deposit a certain amount of money or submit the guarantee receipt of the credit organization
to ensure the compensation and to cover any expenses as result of the wrongful request of
suspension.
Question 188
Please describe the process, procedure and time frame for notifying the right holder and
importer once border enforcement measures have been implemented. Under what provisions
are/will these procedures be provided for?
Answer:
According to Article 14 of Decree No. 101/2001/ND-Cp of 12.31.2001 of the Government on detailed
provisions on the implementation of some provis ions of the Customs Law on customs procedures,
regimes of customs examination and control, where the party, that requests the suspension of thecustoms procedures, fully complies with conditions of  proposal of suspension as provided for in the
paragraph 1 of this Article, the Chief of Customs Bureau shall issue the decision on suspension of the
customs procedures. The decision on suspension shall be sent to related parties i.e. the owners of
imported/exported goods and the requesting party. This decision must indicate the reasons and the
time limit of suspension for those related parties to know and implement. The time limit of suspensionis 10 days counted from the date of issuing the decision on suspension. This time limit may be
extended to a maximum of 10 extra days under cert ain circumstances. Within the time limit, the partyWT/ACC/VNM/23
Page 84
requesting the suspension of customs procedures must provide evidences or the conclusion of the
competent agencies, organizations to substantiate that the batch of goods of infringes intellectual
property rights. If failing to do so, the customs office shall take the procedures for release the
suspended goods and the party requesting for suspension must compensate for damages and cover any
expenses, caused by the request for suspension of customs procedures. In case of violating intellectualproperty right, the violent exporters and/or importers must compensate for damages and cover any
expenses caused by the request of suspension. Customs agency has responsibility to make the
reimbursement to the party requesting for suspension.
Question 189
What provisions have been promulgated allowing rights holders or importers to inspect
detained goods in order to substantiate the righ t holder's claims, pursuant to TRIPS Article 56?
Answer:
So far, there are no detailed provisions on procedures which allow the right holder and importer to
inspect the detained goods in order to substantiate the right holder’s and importer’s claims.
Question 190
Please describe in detail the requirements and procedures by which customs authorities can act
ex officio in suspending the release of allege d IPR infringing goods, pursuant to TRIPS Article
58?
Answer:
The customs office itself does not have the right to ex officio suspend goods under suspicion of
infringing intellectual property rights.
Question 191
Please define what it means when customs au thorities are empowered to "handle infringing
goods by other measures." How does this satisfy the requirement that infringing goods are to be
kept outside the channels of commerce under TRIPS Articles 46 and 59?
Answer:
Decree 12/1999/ND-CP provides the regulation on penalizing measures object to violation of
industrial property right, but no provisions on viol ation of author’s right and other related-right.
Question 192
Article 58.2 of the Customs Law requires the applicant to submit "a certain amount of money
or guaranteed bonds to ensure compensation fo r damages and charges caused by the unjustified
request of temporary suspension of customs clea rance..." Please set out in as exact amounts as
possible the amount of money that constitute s "a certain amount "under Article 58.2 of the
Customs Law. Please describe in detail how is this amount calculated?
Answer:
The certain amount of money deposit equivalent to 20 per cent of the value of the batch of goods as
specified in the contract (contract for importation).WT/ACC/VNM/23
Page 85
VI. TRADE-RELATED SERVICES REGIME
1. General
Question 193
Viet Nam has a number of horizontal restrictions in its offer of concern are the restrictions on
the ability of representative offices to operate as commercial enterprises (to make profits) and
the leasing of land. More details on the terms and conditions relating to the leasing of land are
needed. In particular, we are concerned abou t the limitation that the land leasing period
corresponds only to the time of the operation  of the enterprise. For instance, what would
happen to the lease if the enterprise relocates (if there inbuilt flexibility in the system) or wants
to sell the operation as a going concern to an other foreign services supplier? Limitations on
transfer of the lease and the commercial operation of representative offices will also prove to be
a considerable disincentive to commercial presence. Viet Nam’s dual – pricing system is a majorimpediment to growth in the service sector but we note that Viet Nam has undertaken to
eliminate it two years after accession.
Answer:
The regulation not allowing foreign representative offices to engage in profit making activities does
not affect the operation of commercial presence. For the purpose of making profit, foreign servicesuppliers can make direct investment in accordan ce with the Law on Foreign Investment and/or other
related legal documents without setting up a representative office.
In principle, foreign service suppliers can change the site of their projects on the condition that it is
accepted by the agency issuing investment licence. In such case, enterprises in question are allowed to
rent a new site in accordance with the objectives and duration of their projects. When transferringproject ownership, foreign investors are allowed to transfer land use right and all associated premises.
Viet Nam commits in the IO on services to elimin ate the dual pricing system 2 years after joining
WTO.
Question 194
We also note that the establishment and operat ion of foreign service providers are subject to
investment licensing, providing it is in conformity with Viet Nam’s foreign investment law. In
the offer the investment licensing regime applie s in the areas of accounting, auditing and book
keeping and taxation services. The operation of a licensing regime for foreign service suppliers
could theoretically be used to restrict the number of licenses granted and thereby prevent
market access. Is the government of Viet Nam intending to set in place a transparent
mechanism for granting of licenses to foreign service suppliers? We seek an explanation of the
economic rationale behind the application and opera tion of the licensing system and the impact
this regime would have on comp etition in the market place.
Answer:
Viet Nam is strengthening transparency and predictability of the foreign investment policy and legal
system by publicizing clearly all criteria for granting or refusing to grant investment licenses in all
sectors, including the service sector mentioned above.WT/ACC/VNM/23
Page 86
Question 195
We are also concerned about the limitations on national treatment. In a number of important
sectors, foreign service providers are only permit ted to supply services to foreign enterprises
operating in the domestic market and foreign f unded projects in Viet Nam. We would like to
ascertain whether this restriction applies to thos e joint ventures with 49 per cent foreign interest
or those enterprises with 100 per cent foreign investment.
Answer:
In principle, the above restrictions are applicable to all foreign service suppliers (including joint-
ventures and 100 per cent - foreign owned enterprises). However, as indicated in the Viet Nam’s
Initial Offer on Services, these limitations are only applied in certain periods for 100 per cent - foreign
owned enterprises on a case-by-case basis.
Question 196
We would also question whether the level and extent of foreign penetration into the Vietnamese
market would be sufficient to maintain a viable commercial presence in Viet Nam.
Answer:
In our view, The level and scope of market access for foreign service suppliers in Viet Nam are
enough to maintain the operation of commercial presence.
Question 197
We also note that a number of service providers, particularly engineers and architects, must
apply for working permit and/or have their qua lifications recognized by the government. Does
the government have the necessary infrastructu re and expertise to assess qualifications and
what are the procedures involved with the application for a work permit?
Answer:
Following are some major contents of the Regulation on granting Certificate for design practice of
Construction works (Promulgated in Conjun ction with the Decision No 23/2000/QD-BXD
13/11/2000 of the Minister of Construction).
I. PRINCIPLES, OBJECT AND SCOPE1. The professional who has Certificate for Design Practice of Construction Works is allowed to
carry out the following work:
- He/she can be the main responsible person or Chief of design work;
- He/she may use the Certificate for business registration and supplying services on
design of construction works under governing laws.
- He/she can sign the Design Document and is mainly responsible for quality of the
Design Document;
- He/she can independently practice as construction work design practitioner under
governing laws;
- The professionals who have no Certificate are only allowed to participate in
designing work under the management and supervision of the professional havingWT/ACC/VNM/23
Page 87
Certificate and are not allowed to sign the Design Document as the main responsible
person or Chief of design work.
2. The professionals who are Vietnamese citizens, overseas Vietnamese, foreigners residing in
Viet Nam can be granted certificate if they are in need of certificate, fulfill the professional
requirements and criteria defined in this Regulation.
Certificate has its effect within 5 years. It may be extended for 5 years each time.
The person who has Certificate may carry out design work throughout Viet Nam under
governing laws.
3. Design work includes:
- General Layout Design
- Architectural Design
- Exterior an Interior Design
- Structural Design
- Electrical and mechanical Design
- Water supply and sewage Design
- Energy supply Design
- Ventilation and Air conditioning Design
- Communication Design
- Fire protection Design
- Other Design
II. PROFESSIONAL CRITERIA NEEDED FOR GRANTING PRACTCING CERTIFICATE
1. Professional education:
Graduated with Bachelor or higher Degree granted by universities, institutions,
competent organizations of Viet Nam or foreign countries;
Design work to be registered must be in conformity with the professional branches of
education and suitable with practitioner's design capability.
2. Professional Experience:
Having at least 3 years experience in design of construction works (with one year working in
Viet Nam); having directly participated in design of at least 3 projects under the list of the
registered design work; understanding and impl ementing the work in conformity with the
laws relating to construction work design.
III. ORGANIZATION AND MANAGEMENT
1. The Ministry of Construction is in charge of state management for granting Certificate on
design of construction works and activities relating to the practice of design of constructionworks in the whole country; direct and organize the training activities on the management of
the construction works design practice; supervising and controlling the Certificate granting
under this Regulation.WT/ACC/VNM/23
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2. The construction departments of cities and provinces are in charge of granting Certificate for
the local persons and management of the practising activities in the locality under this
Regulation.
VII. INSTITUTIONAL BASE FOR TRADE AND ECONOMIC RELATIONS WITH
THIRD COUNTRIES
1. Bilateral or plurilateral agreements
Question 198
We seek a commitment from Viet Nam that it will become a member of the Agreement on
Trade in Civil Aircraft upon accession to the WTO
Answer:
Viet Nam will consider the possibility to particip ate in the Agreement on Trade in Civil Aircraft when
becoming WTO Member.
Question 199
Given the importance of air transportation, we believe that the provisions of this Agreement,
including the duty free treatment of imports of aircraft and parts, can make a significant
contribution to Viet Nam’s development and growth.
Answer:
Please refer to the answer 181.
__________