WORLD TRADE  
ORGANIZATION  G/ADP/Q1/VNM/2 
G/SCM/Q1/VNM/2 18 June 2010 
 
(10-3342) 
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS 
 
Replies to Questions Posed by the UNITED STATES1  
Regarding the Notification of VIETNAM2 
   The following communication, dated 7 June 2010, is  being circulated at the request of the 
Delegation of Viet Nam.   
 
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Question 1 
 
 Please clarify the following regarding th e definition of "domestic industry":   
  a. Does Viet Nam automatically exclude from its domestic industry pursuant to 
Article 2.5 of the Ordinance  those producers that import the article under 
investigation?  Are there any criteria Vi et Nam uses in considering whether to 
exclude such producers from the domestic  industry?  If so, please identify those 
criteria.   
  b. Article 4.1 of the Agreement on Impl ementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (h ereinafter ADA) defines the domestic 
industry as "the domestic pr oducers as a whole of the like products or [to] those 
of them whose collective output of the products constitutes a major proportion 
of the total domestic production of those products ...".  The definition in Article 2.5 of the Ordinance consists of a restatement of the "major proportion" section 
of the Article 4.1 definition, but does not incorporate the other part of the definition to include a reference to the "domestic producers as a whole".  Please 
explain how Article 2.5 of the Ordinance is consistent with Article 4.1 of the 
ADA.   
 
Reply
 
 
1.a. Pursuant to Article 2.5 of the Ordinance,  Vietnam would exclude from its domestic industry 
under the following circumstances those producers:  who do not import the product concerned themselves, and/or are not directly related to th e organizations or individuals exporting or importing 
the product concerned.   
                                                     
 
1 G/ADP/Q1/VNM/1-G/SCM/Q1/VNM/1.   
2 G/ADP/N/1/VNM/1.   G/ADP/Q1/VNM/2 
G/SCM/Q1/VNM/2 Page 2 
 
 
   Vietnam uses the following criteria in consid ering whether to exclude such producers from 
the domestic industry:    
(i) import the product subjected to antidumping measures;   
(ii) directly related to the organizations or individuals exporting or importing the product 
subjected to antidumping measures. 
 
Article 5 of the Decree stipulates criteria to c onsider the above mentioned direct relationship, 
details as follows:   
 
 (i) A domestic producer of like product shall be  deemed to be related to the individual, 
[or] organization exporting,  [or] importing the goods concerned in the following 
circumstances:   
 
 a. One party controls the other directly or indirectly; 
 b. Both parties are controlled by a third party directly or indirectly;  or 
  c. Together they control a third party directly or indirectly.   (ii) A party may be deemed to control the ot her if the former has the ability to influence 
the latter's financial policies and operations, so  as to financially benefit from the latter's 
business operations.   
 1.b. Article 2.5 of the Ordinance defines:  "Domestic industry" means a group of domestic 
producers that produce a volume, quantity or value of goods accounting for a major proportion of the total domestic production of like products, provide d that these producers do not import the product 
concerned themselves, and/or are not directly relate d to the organizations or individuals exporting or 
importing the product concerned.     Article 4 of the Decree has stipulated in deta ils, instructed the implementation of Article 2.5 
of the Ordinance with respect to "major proporti on" in total volume of like products produced by 
domestic industry:  "A major proportion in volume or  value of like products produced by the domestic 
industry implies cases where the volume, quantity or  value of goods comprise not less than 50 per 
cent of the total production of like products produced by domestic industry".    
Therefore, Article 2.5 is consiste nt with Article 4.1 of ADA.   
 Question 2 
 
 Article 2.7 of the Ordinance defines the term "material injury to a domestic industry".  
It lists seven factors that the investigating au thority should consider in making an injury 
determination.  Article 12.2 of the Ordinance  specifies "elements" that must be examined in 
ascertaining whether there is material injury or  threat of material injury to the domestic 
industry.  None of the "elements" listed in Arti cle 12.2 correspond to the seven factors listed in 
Article 2.7.     a. Please clarify the relationship between Article 2.7 of the Ordinance  and Article 
12.2 of the Ordinance .  If the Vietnamese investigating authority finds 
"significant decline or growth" in the factors listed in Article 2.7, can it make an 
affirmative injury determination regardless of whatever findings it may make concerning the elements specified in Article 12.2?   
  G/ADP/Q1/VNM/2 
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   b. Please clarify the nature of the finding s the authority must make with respect to 
the seven factors listed in Ordinance  Article 2.7.  Please clarify whether the 
investigating authority must consider whether there has been "significant 
reduction or inhibition to growth" in each of these factors, or whether it must 
actually find that there has been "significant reduction or inhibition to growth" 
in all seven factors before it can make an affirmative injury determination.   
  c. Article 12.2(b) of the Ordinance  requires the authority to consider price 
depression or suppression in its analysis of price effects.  It does not reference 
price undercutting.  Please explain how Arti cle 12.2(b) is consistent with Article 
3.2 of the ADA.   
  d. Please explain how Viet Nam satisfi es the requirement to examine all impact 
factors specified in Article 3.4 of the ADA.  While Article 12.2(c) of the 
Ordinance  requires examination of impact, it does not reference any of the 
impact factors listed in Article 3.4 of the ADA.  By contrast, Article 2.7 of the Ordinance , which does not purport to add ress impact, references some Article 
3.4 factors, but does not list other facto rs such as capacity utilization, market 
share, the magnitude of the dumping marg in, cash flow, inventories, wages, and 
ability to raise capital.   
 
Reply
 
 2.a.  Article 2.7 of the Ordinance defines the term "material injury to  a domestic industry". 
 
 On the basis of Article 2.7, to identify material  injury or threat of material injury to the 
domestic industry, investigating authority shall exam ine the factors stipulated in Article 12.2.   
  Besides, during the investigation process, inv estigating authority shall consider the factors 
stipulated in Article 28 of the Decree.    
2.b. Pursuant to Article 2.7 of the Ordinance, inv estigating authority shall i nvestigate, consider the 
factors listed in this Article.     As mentioned above, Article 2.7 defines the te rm "material injury to a domestic industry".  
Therefore, when investigating to identify materi al injury to a domestic industry, investigating 
authority shall follow the provision of Article 12.2 of the Ordinance and examine the following 
factors:  (1) Volume;  (2) Price;  (3) bad impact  on the domestic industry or on the establishment of 
the domestic industry;  and (4) causal link.     In consistent with Article 12.7, the inv estigating authority shall examine "significant 
reduction or inhibition to growth" on:   
 
(i) The volume of the goods dumped in Vietnam, compared with the volume of like products domestically produced or sold;  and (ii) Price impact of the goods subject to the request for application of anti-dumping measures on the necessity of price undercutting, or price depression or suppression of the 
domestic like products.   
 
This provision is also consistent with Article 3.2 of ADA.   
 G/ADP/Q1/VNM/2 
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  2.c. This is due to translation discrepancies. Artic le 12.2(b) shall be interpreted as:  "Price impact 
of the goods subject to the request for applica tion of anti-dumping measures on the necessity of price 
undercutting, or price depression or suppression of the domestic like products".    
2.d. Article 28 of the Decree stipulates the exam ination of the relationship between the sale of 
dumping goods imported into Vietnam with material inju ry or threat of material injury to domestic 
industry.  According to Article 28, the investigating authority should consider such factors as:  The contraction in demand or changes in the patterns of  consumption with respect to the domestic like 
products;  The export performance and productivity of the domestic industry (Article 28.1.c, 28.1.d).  
Besides, the investigating authority shall also consider other factors related to the case (Article 28.1.e:  
Other elements deemed relevant by  the Investigating Authority).   
 
The content of Article 12 of the Ordinance and Article 28 of the Decree are consistent with 
the requirement of Article 3.4 of ADA.   
 
Question 3 
 
 Please explain how Viet Nam implements th e requirements of Article 3.7 of the ADA 
concerning threat of material injury.  Neither the threat definition in Article 2.8 of the Ordinance  nor any part of Article 12 of the Ordinance references the threat factors set forth in 
Article 3.7 of the ADA.   
 
Reply
 
 
 Please refer to the answer of question 2.d.   
 Question 4 
 
 Does Viet Nam conduct a cumulated analysis wh en imports from more than one country 
are simultaneously subject to investigation, as permitted by Article 3.3 of the ADA?   
 Reply
 
  Yes.  This issue is stipulated in  Article 2.4 of the Ordinance.   
 
Question 5 
 
 How does Viet Nam implement the requirement  of Article 6.9 of the ADA that the 
investigating authority inform all interested part ies of the essential fact s under consideration in 
sufficient time for parties to defend their interes ts?  Does Viet Nam und ertake additional fact-
finding after issuance of the preliminary conclusion under Article 31 of the Decree ?  If so, how 
does Viet Nam satisfy the requirement of ADA Arti cle 6.9 to disclose the essential facts prior to 
issuing the final decision?    
Reply
 
 
Article 17 of the Ordinance and Article 31 of the Decree stipulating on preliminary 
determinations and publication of preliminary determinations.   
  Article 18 of the Ordinance and Article 33 of the Decree stipulating on final determinations 
and publication of fina l determinations.    G/ADP/Q1/VNM/2 
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   Investigation conclusion shall be publishe d on the website of investigating authority 
(www.vca.gov.vn ) and sent directly to related parties who are known to the investigating authority 
and to diplomatic mission representative office of  countries which export the goods subject to the 
investigation.   
 
 After issuing Preliminary Determination pursuant to Article 31 of the Decree, the 
antidumping investigation shall proceed to veri fication and final investigation process.   
 
Moreover, after the preliminary determination and not exceed 30 days as the latest before 
concluding investigation process, legal representa tive of respondent can send a document to commit 
the exclusion of dumping directly to the investig ating authority or domestic producers to consider 
before submitting to the investigating authority.  The investigating authority considers and proposes to 
Minister of Trade (currently, Minister of Industry and Trade) to decide.    
 Within 30 days from the date ending the i nvestigation process, the investigating authority 
shall announce the Final conclusions.  Within 7 working days, from the day announcing the final 
conclusions, the investigating authority shall send the Council on Antidumping the antidumping file.   
 
Within 30 days from the date receiving the f ile, the Council on Antidumping is responsible 
for discussing and deciding on the content sti pulated in Article 39.1 of the Decree.   
 
Basing on the final determination and s uggestion of the Council on Antidumping 
(Article 39.3), Minister of Trade (currently Mini ster of Industry and Trade) issues a decision on 
applying antidumping.    
According to Article 33.3, before the investiga ting authority sends the file to the Council on 
Antidumping to discuss and decide by majority consen sus the issues stipulated in Article 39.1 of the 
Decree, the investigating authorit y has announced publicly final conc lusions on issues related to the 
investigation process.    
According to the above mentioned provisions, Vietnam satisfies the requirement of 
Article 6.9 of ADA.   
 
Question 6 
 
Article 2.4 of the Ordinance  defines "negligible volume, quantity or value of imports 
dumped in Viet Nam".  ADA Art. 5.8 refers only  to the "volume" of dumped imports in 
assessing negligibility, and not "quantity" or "val ue".  Similarly, in addressing the standing 
requirements for representati ves of the domestic industry, Article 8.1 of the Ordinance  makes 
repeated references to "volume, quantity, or value" rather than "total production", the term used in ADA Article 5.4 for measuring industry support for an application.  Please clarify 
whether these language differences are intended or  whether they are the result of translation 
discrepancies.    
Reply
 
 
The purpose of Article 2.4 is to give a definition for identifying under what conditions 
negligible issues are considered in a particular an tidumping investigation and this purpose is the same 
as the purpose of Article 5.8 of ADA.     The purpose of Article 8.1 of the Ordinance is also to identify legal standing of the petitioner 
filing an antidumping petition and whether representativ e of the domestic industry and to measure the G/ADP/Q1/VNM/2 
G/SCM/Q1/VNM/2 Page 6 
 
 
  support for the petition.  Therefore, the purpose of Artic le 8.1 of the Ordinance is the same as that of 
Article 5.4 of ADA.     Article 2.4 and 8.1 of the Ordinance stipulates "volume, quantity or value" as the method to 
put forward dispositive norms of law basing on which the investigating authority has enough flexibly 
discretion to select as well as request the provision of data in the form of volume, quantity or value or 
suitable conversion in particular investigation in  order to serve the purpose of the above-mentioned 
Article 2.4 and 8.1.    
According to Article 6.1 of Law No. 41/2005/QH11 "On Conclusion, Accession and 
Implementation of Treaties" of June  2005:  "In cases where a legal document and a treaty to which the 
Socialist Republic of Vietnam is a party, cont ains different provisions on the same matter, the 
provisions of the treaty shall prevail".    
 Therefore, in cases Article 2.4 and 8.1 of the Ordinance and Article 5.8 of ADA contain 
different provisions on the same matter, the inves tigating authority will apply the provisions of the 
international treaty (ADA).  Moreover, as mentioned above, the purpose of Article 2.4 and 8.1 of the 
Ordinance and Article 5.8 and 5.4 of ADA are similar.    
Question 7 
 
Article 11 of the Ordinance refers to parties involved in the investigation process;  
Article 14 of the Decree  refers to persons involved in the process of handling antidumping cases.   
  a. Please identify the "other interested parties" referenced in Article 14.4 of the 
Decree  and clarify whether "other interested parties" includes those parties 
referenced in Article 11.1 through Article 11.11 of the Ordinance.    
  b. Are parties required to register as an "interested party" under Viet Nam's law 
and, if so, what is the time limit for such registration?   
 Reply
 
 7.a. Parties involved in the investigation pro cess are parties referenced in Article 11 of the 
Ordinance (from Article 11.1 through Article 11.11).    
7.b. Parties which are considered as involvi ng in the antidumping investigation are parties 
referenced in Article 11 of the Ordinance as menti oned above, currently, Vietnam's law hasn't had any 
provisions in relation with registration as an interested party for the purpose of the antidumping investigation.    
Question 8 
 
As provided for in ADA Article 6.4, will the investigating authority place in a public file 
and make available to interested parties non-co nfidential summaries of internally generated 
reports such as verification reports and the calc ulations made by the investigating authority in 
determining margins of dumping based on co nfidential information submitted by other 
interested parties?    
Reply
 
 
Yes.    G/ADP/Q1/VNM/2 
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 Page 7 
 
 
  According to Article 15, 16 and 17 of the D ecree, parties involved in the antidumping 
investigation have the right to access informat ion on the antidumping investigation of the 
investigating authority, except for confidential inform ation as stipulated in Article 30 of the Decree.   
 Question 9 
 
Please confirm that the consultation process described in Article 14 of the Ordinance  
and Article 29 of the Decree  is intended to address the exchange of views between parties 
described in ADA Article 6.2.  Please describe the ti ming of the consultations.  Do consultations 
take place prior to or following a preliminary determination?  
Reply
 
 
According to Article 14 of the Ordinance, the investigating authority shall organise 
consultations with parties involved in the investig ation process to create opportunity for the parties to 
express their opinions and provide necessary information.    
The timing of the consultations shall be men tioned in the Investigation Decision to impose 
antidumping measures.  The content of the Investiga tion Decision is stipulated in Article 21 of the 
Decree.   
 
Question 10 
 
Article 17 (Preliminary conclusions) and Article 18 (Final conclusions) of the Ordinance  
reference the publication of conclusions "by appr opriate modes to the interested parties in the 
investigation process".  Similarly, Articles 31 and 33 of the Decree  provide for the publication of 
preliminary and final conclusions, and that such  conclusions shall be made known to interested 
parties.  Please identify the official journal or  gazette where such investigation conclusions will 
be published.  If the conclusions are available on-line, please provide the relevant website address.    
Reply
 
 
 Vietnam investigating agency will advise the in terested parties the preliminary and final 
conclusions by the appropriate modes in  line with WTO's Laws as following:   
 
- directly sending Note verbal to all inter ested parties notifying such investigation 
conclusions and/or;   
- informing the Embassy of the interested countri es in Vietnam of the conclusions and/or;   
- officially publicizing on the website of Ministry of Industry and Trade.   
 
These conclusions shall be made  available on the website:  http://www.moit.gov.vn .   
 Question 11 
 
 Article 12.2.2 of the ADA requires that the public notice or report providing 
information on the matters of fact and law that h ave led to the imposition of a definitive duty 
contain reasons for the acceptance or rejection of  relevant arguments or claims made by the 
exporters or importers.  How does Viet Nam impl ement this requirement?  Neither Article 18 of 
the Ordinance  nor Articles 33 or 40 of the Decree  contains a comparable provision.   G/ADP/Q1/VNM/2 
G/SCM/Q1/VNM/2 Page 8 
 
 
  Reply
 
  Article 18 (final conclusions) in Ordinan ce and Article 33 (final conclusion) and 40 
(imposition of antidumping duties) of the Decree whic h are consistent with Article 12.2.2 of the ADA 
state that public notice or report shall must contai n reasons for acceptance or rejection of relevant 
claims made by the exporters or importers.     Article 18 provides that:  "After completing the investigation process, the Investigating Authority shall publicize its final conclusions on the contents rela ted to the investigation process 
prescribed in Article 12 of this Ordinance ", and Article 33 and 40 aim to elaborate this rule.  This 
means that the contents of final conclusions re fer to the Article 12 of the Ordinance in which 
describes in details the matters of fact and law that have led to the imposition of definitive duty.  This 
means that the contents must contain facts and lega l basic explaining how the conclusion is drawn.   
 
 Moreover, the Article 18.2 of Ordinance provi des that "the final conclusions (with the 
contents prescribed in Article 12) and major grounds (major legal basic) for making such final 
conclusions must be publicized...".  It means that  all the arguments/conclusions in public notice or 
report must be clearly explained.    
Question 12 
 
Article 21 of the Ordinance  and Articles 35-37 of the Decree  address price undertakings.   
  a. Article 21.5 states that "The Trade Minister shall issue decisions to terminate 
the anti-dumping investigation and apply the undertakings if it deems such 
undertakings will eliminate the injurious effects of the dumping or will prevent 
such an effect from taking place".  Please confirm that, in accordance with ADA Art. 8.4, the investigation of dumping a nd injury are "completed if the exporter 
so desires or the authorities so decide".   
  b. Articles 4.2 and 21 of the Ordinance  and Article 34 of the Decree  suggest that 
price undertakings may be negotiated di rectly between the exporting companies 
and the Vietnamese petitioners.  Such a scenario does not appear to be permitted under Article 8 of the ADA.  Please explain how a price undertaking negotiated between foreign exporters and Vietnam ese producers would be in compliance 
with ADA Article 8.  In addition, pl ease explain whether Viet Nam has any 
safeguards in place to ensure that a price undertaking negotiated between 
foreign exporters and Vietnamese producers does not result in anti-competitive 
behaviour such as price fixing.   
 
Reply
 
 
12.a. The Article 21.2 of Ordinance clearly states that "the Trade Ministry may accept or reject... 
the undertakings but must not force  the parties to make such undertaking ".  Therefore, this Article 
complies with Article 8.4 of the ADA that the investigation of dumping and injury are "completed if the exporter so desires" unless the investigating authority has made a preliminary affirmative 
determination of dumping and injury caused by such dumping.   
 
On the other hand, the investigation are "complet ed if the authorities so  decide" in the event 
that "such undertakings will eliminate the injuriou s effects of the dumping or will prevent such an 
effects from taking place" (Article 21.5 of Ordinance).     G/ADP/Q1/VNM/2 
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  12.b. There are no principles in the Ordinance regulating that "price undertakings may be 
negotiated directly between the exporters and Vietnamese petitione rs", therefore the Article 4.2 
and 21 of the Ordinance and Article 34 of the Decr ee do not violate the Article 8 (price undertakings) 
of the ADA.  Price undertakings shall be applied pers uant to Article 4.2, Article 21 of the Ordinance 
and Article 35-37 of the Decree which ar e in conformity with the ADA.   
 
Currently, Vietnam has no any safeguards in place.   
 
Question 13 
 
 Article 24.2 of the Ordinance  directs the Trade Minister to conduct certain expiry 
proceedings, but does not indicate what standards the Minister is to use in determining whether 
or not an order should be revoked.  How does Viet Nam implement the requirements of Article 11.2 of the ADA? 
 Reply
 
 
 In general, the regulations of expiry proceedings are based on th e regulations of investigation 
proceedings.  This was confirmed in article 24.3 of the Ordinance.  The standards the Minister is to 
use in determining whether or not an applicati on of anti-dumping measures shall be carried out, was 
stated in Article 8.2 of the Ordinance and Article 19.2 of the Decree.   
 
Question 14 
 
Art. 42 of the Decree  addresses new shipper reviews and provides for the prompt review 
of exporters/producers that did not export goods during the period of investigation.   
 
 a. Please confirm that new shipper reviews will be initiated and carried out on an 
accelerated basis, compared to normal  duty assessment and review proceedings, 
as required by ADA Art. 9.5.   
  b. What antidumping rate will new shi ppers be assigned until such time as the 
review is completed?  How will such rate be calculated?   
 
Reply
 
 
a. New shipper reviews are regulated in Article 24.1 of the Ordinance and the Article 42 
of the Decree and are not inconsistence with ADA Art. 9.5.   
 
b. Yes, a provisional antidumping rate will be assigned to new shippers until such 
review is completed.  This provisional rate  is the currently-applied antidumping duty.   
 
 
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