WORLD TRADE  
ORGANIZATION  G/SG/Q1/VNM/2 
9 June 2010 
 (10-3151) 
Committee on Safeguards Original:   English 
  
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLE 12.6 OF THE AGREEMENT 
 
Replies to Questions Posed by the UNITED STATES
1 
Regarding the Notification of VIET NAM2 
 
  The following communication, dated 7 June 2010, is being circulated at the request of the 
Delegation of Viet Nam.    
_______________ 
 
 
Question 1 
 
 Is the WTO Agreement on Safeguards (hereinafter Agreement on Safeguards) self 
implementing under Vietnamese law?  Assuming that the Agreement on Safeguards is self-
implementing, please clarify what legal authority takes precedence in the event of a conflict between the Ordinance , the Decree  and the Agreement on Safeguards?  We point out that 
Article 31 - Settlement of disputes and handling of infringements
 of the Ordinance  states "The 
settlement of disputes and handling of infringe ments shall comply with the provisions of 
Vietnamese law and the international treaties wh ich Viet Nam has signed or acceded to".  
However, it is not clear which legal authorit y takes precedence in the case of a conflict.   
 
Reply  
 
Viet Nam issued Ordinance No.42 /2002/PL- UBTVQH10 on Safeguard in the import of 
foreign goods into Viet Nam and Decree No. 150/2003/ND-CP detailing implementation of the 
Ordinance on Safeguard in the import of foreign good s into Viet Nam.  Provisions of the two legal 
documents are contained and consis tent with provisions of the WT O Agreement on Safeguards, thus 
WTO Agreement on Safeguards is self im plemented under Vietnamse law.   
 
In addition, Article 6.1, Law on Signing, Accession to and Implementation international 
treaties of Viet Nam stipulates that "In instance of difference between Vietnamese law and regulation 
and International treaties which Viet Nam has signed or acceded to, such treaties shall be applied".  
Thus, if there is a conflict between the Ordina nce, the Decree and the Agreement on Safeguards 
according to Article 31 of the Decree - Settlement of disputes and handling of infringement of the 
Ordinance, The settlement of disputes and handling of infringement shall comply with the provisions 
of Agreement on Safeguards.   
                                                      
1 G/SG/Q1/VNM/1.   
2 G/SG/N/1/VNM/1.   G/SG/Q1/VNM/2 
Page 2  
 
  Question 2 
 
 With regard to Article 3 – Safeguard Measures
 of the Ordinance , Viet Nam states that a 
measure may take the form of an import tariff, quo ta or "other measures to be stipulated by the 
Government".  Please clarify whether the "other measures" are those outlined in Article 2 of 
the Decree .   
 
Reply  
  Yes, other measures are those outlined in Article 2 of the Decree.   
 
Question 3 
 
 Article 4.1 – Interpretation of Terms
 - of the Ordinance  defines the term "excessive 
import of goods" to mean the importation of goods "with a volume, quantity or value 
increasing, absolutely or relatively, as compar ed to the volume, quantity or value of like 
products or directly competitive product".  Please  explain what is meant by "excessive".  Is this 
term intended to have the same meaning as the term "import surge", which is defined in 
Article 4.1 of the Decree?   
 
Reply  
 
Both the Ordinance and the Decree are issued in the Vietnamese language.  This may cause 
some differences in translating from Vietnamese into other languages.    
In this case, in the Vietnamese version, "excessive import of goods" as defined in the 
Ordinance and "import surge" in the Decree, are the same term.  It has the same meaning as increasing 
absolutely or relatively, which is defined as "increased" in Article 2.1 WTO Agreement on 
Safeguards.    
Question 4 
 
 Article 4.2 – Interpretation of Terms
 of the Ordinance  defines the term "serious injury 
to the domestic industry" relying upon the same  wording used to define the term "domestic 
industry", but does not define the term "serious injury".  Article 4.2 of the Decree defines the 
term 'serious injury' in a manner that closely fo llows the wording of the definition in the WTO 
Safeguards Agreement.  Which definition would the Ministry of Trade apply in making a 
determination?    
Reply
 
  Decree No. 150/2003/ND-CP detailing implementa tion of the Ordinance on Safeguard in the 
import of foreign goods into Viet Nam.   Both two definitions of terms "seriuos injury to the domestic 
industry" Article 4.2 of Ordinance and "seriuos injury" Article 4.2 of the Decree have the same 
meaning and shall be applied by the Ministry of Trade (now Ministry of Industry and Trade) in 
making a determination.    
Question 5  
 
 Article 7 – Consultation
 of the Ordinance  states that the Ministry of Trade "may 
consult" the interested parties during the invest igation and with respect to safeguard measures 
"in order to create conditions for all the interest ed parties to express their opinions and supply 
necessary information".  Article 10 of the Decree  appears to expand upon this provision when it  G/SG/Q1/VNM/2 
 Page 3 
 
 
  states that the parties will have the "right to present evidence in writing, present their 
arguments, to participate in debate and to express their opinions on the socio-economic 
benefits" of remedy measures.  Please explain how th is provision is consistent with Article 3.1 of 
the WTO Agreement on Safeguards.  In pa rticular, please clarify the following:   
 
• The processes and procedures under which Vi et Nam will hold hearings during the 
course of a safeguard proceeding.   
• How and where Viet Nam will provide "reaso nable notice to all interested parties" 
and whether there will be a public hearing.    
• The information that will be available to in terested parties, in cluding whether the 
petition and other submissions by the petitioner will be part of a public record that will be available to other interested parties.   
 Reply
 
 
Article 10 of the Decree states that the parties will have the "right to present evidence in 
writing, present their arguments, to participate in debate and to express their opinion on the socio-
economic benifits".  This article expands upon Ar ticle 7 of Ordinance, making importers, exporters 
and interested parties could present evidence and their views, as to whether or not the application of a 
safeguard measure would be in public interest.  Thus this provision is consiste nt with Article 3.1 of 
the WTO Agreement onf Safeguards.    
In the course of investigation, the Vietnamese investigation authority will:   
 
- Notify interested parties (directly to known  exporters, importers, producers, interested 
associations, related embassies in Vietnam) of date and venue to hold  a public hearing;   
- Publicize non-confidential versions of pe tition, preliminary report, final report;  
publicize decision to initiate investigation, decision to apply safeguards measures;   
- Ensure interested parties to have acces s to non-confidential version of information 
provided by all other interested parties.  
 
Question 6  
 
 Article 18 - Investigation duration and publication of investigation results
 of the 
Ordinance  notes that the Ministry of Trade will publicize the results of a safeguard 
investigation, Article 11 - Notification on the temporary application of safeguard measures  of 
the Decree  notes that the decision to impose a temp orary safeguard measure will be publicized 
and Article 14 - Notification on the application of safeguard measures  of the Decree  identifies 
the information to be published when a safeguard measure is to be imposed;  however, no other 
articles in either the Ordinance  or the Decree  discuss when or how information pertaining to a 
safeguard investigation will be publicized, notified  to interested parties, or transmitted to the 
WTO Committee on Safeguards.     1. Please clarify how and in what public ation or forum Viet Nam will publicize the 
initiation of a safeguard investigation, th e information that will be contained in the 
notice of initiation, and the deadlines associ ated with the safeguard proceeding.   
  2. Please confirm that Viet Nam will no tify the Members of the WTO Safeguards 
Committee when it has initiated a safeguard in vestigation as required by Article 12.1(a) 
of the Agreement on Safeguards, in additi on to notifying the Committee prior to 
imposition of provisional measures.   
 G/SG/Q1/VNM/2 
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   3. Please explain how interested parties to  the investigation will be notified of 
decisions made, upcoming deadlines and hearings during the course of the proceeding.   
 
Reply
 
 
1. Article 12 of Ordinance Ordinance No.42 /2002/PL-UBTVQH10 on Safeguard in the import 
of foreign goods into Viet Nam states details how Viet Nam initiate an investigation of safeguard 
application.  The information will be contained in  the notce of initiation provided in Article 7 of 
Decree No. 150/2003/ND-CP detailing implementation of the Ordinance on Safeguard in the import 
of foreign goods into Viet Nam.  The deadlines asso ciated with the safeguard proceeding is stipulated 
in Article 12.1 and 12.2 of the Ordinance.   
 2. In reality, 31 July 2009 Viet Nam notifie d initiation of first investigation application 
safeguard measures, then 7 April 2010 Viet Nam notified to the Committee as required by 
Article 12.1(a) of the Agreement on Safeguards.  In addition, Article 28, 29 of the Ordinance stipulate 
contents and agencies incharge of state manageme nt over the application of safeguard measures and 
Article 4 of Law on Signing, Accession to and Impl ementation international treaties of Viet Nam on 
State management on Signing, Accession to and Impl ementation international treaties.  We reaffirm 
that Viet Nam will take responsibility to notify.    
Question 7 
 
 Article 14.2 - Supply of information to the investigation process
 of the Ordinance  states 
that the Ministry of Trade will be responsible "to keep information confidential according [to] the provisions of law".  Please identify the "pr ovisions of law" to which Article 14.2 refers.   
 Reply
 
 
 Number of articles in different of Vietnam Laws (e.g. the Civil Code, Article 31) provides 
that relevant agencies of the Government (in this case means the inv estigation authority) are 
responsible for keeping confidentiality of informati on provided by individuals and organizations in 
certain circumstances.   
 
 In the case of investigation for application of  safeguard measures, please see details in our 
answer to Question 8.   
 
Question 8 
 
 Article 9 - Confidentiality  of the Decree  notes that the Ministry of Trade shall respect 
the confidentiality of information submitted by  parties during a safeguard proceeding.  Please 
clarify whether parties are required to submit for the public file non-confidential summaries of the confidential information submitted, as required by Article 3.2 of the WTO Agreement on Safeguards.   
 
 In addition, please clarify whether public summaries of confidential information referred to in Article 10 - Consulta tion in the investigation process
 of the Decree, including 
aggregation of data, will also be made available to interested parties during the investigation 
and prior to determinations made by the investi gating authorities so that interested parties are 
able to use such information in making their ar guments and defending their interests.  Please 
explain how interested parties will have access to  this information on a timely basis.    G/SG/Q1/VNM/2 
 Page 5 
 
 
  Reply  
  The Authority shall have to keep confidential the information supplied by interested parties 
involved in the investigation process.  Parties provi ding confidential information may be requested to 
furnish non-confidential summaries ther eof or, if such parties indicate that such information cannot be 
summarized, the reasons why a summary cannot be provided.   
  The interested parties involved in the inv estigation process are ensured to have access to non-
confidential information either at the head office of the investigation authority or via the Investigation 
Authority's notifications.   
 
Question 9 
 
 Please clarify the procedures interested pa rties must follow to obtain a refund under 
Article 12 - Refund of import tax differences due to the temporary application of safeguard 
measures  of the Decree .  If the Finance Ministry is charged with implementing that process, 
please identify the document explaining the refund procedure and how a refund may be 
obtained by interested parties.   
 
Reply  
 
 Article 12 of the Decree stipulated that in cases where the results of the Ministry of Industry 
and Trade (the old Ministry of Trade) investigati on show that the temporary application of safeguard 
measures is unnecessary or the import tax should only be increased at a rate lower than the already 
applied import tax increase rate, such tax difference amounts shall be returned to the tax payers.  
Ministry of Industry and Trade shall issue decisions thereon.   
 
 The tax difference amounts mentioned above sh all be refunded within 30 days as from the 
date the Ministry of Industry and Trade issues decisi ons to apply or not to ap ply safeguard measures.  
The interests on the tax difference amounts mentioned shall not be paid.   
 
 The Ministry of Finance shall have to carry  out procedures for tax refund under the current 
law provisions and on the basis of the decision to  apply or not apply safeguard measures by the 
Ministry of Industry and Trade.   
  On 7 April 2009 Ministry of Finance issued Circular No. 79/2009/TT-BTC guiding customs procedures;  check, customs supervision;  export tax, import tax and tax management for export and 
import goods.   
 
 According to the Circular, there has been guiding the application of safeguard tax 
(Article 93), the refund procedure (Article  112), tax refund dossiers (Article 125).   
  
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