G/ADP/Q1/VNM/5  
G/SCM/Q1/VNM/5  
G/SG/Q1/VNM/5  
 
2 May 2019 
(19-3017) Page: 1/3 
Comm ittee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures 
Committee on Safeguards  Original: English  
 
  
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5, 32.6  AND 12.6 OF THE AGREEMENTS  
QUESTIONS POSED BY THE EUROPEAN  UNION  REGARDING  
THE NOTIFICATION OF VIET NAM1 
The following c ommunication, dated 29 April 2019, is being circulated at the request of the 
delegation of the European  Union . 
 
_______________  
 
 
Questions related to the provisions of Circular No. 06/2018/TT -BCT 
Question 1  
 
Article  5 "Registration as interested parties in a trade remedy investigation " states that there is a 
time limit for registration as interested parties. What are the consequences of such a registration for 
the latecomers? Are they allowed to enjoy those procedural rights, which are still available aft er 
their coming forward?  
 
Question 2 
 
Article  8 "Request for protection of confidential information concerning a trade remedy investigation " 
foresees the possibility to treat information as confidential and protect it without mentioning the 
notion of "good cause " of Article  6.5 of the Anti-Dumping  Agreement. Article  75 of the law on foreign 
trade management No. 05/2017/QH14 does not refer to "good cause " neither.  What is the 
consequence of this omission?  
Questions related to the provisions of Decree n°10/20 18/ND -CP 
Question 3 
 
Article  9 "Rights and obligations of interested parties in trade remedy cases " states that the applicant 
and respondent have the "obligation " to provide sufficient, truthful and accurate evidence, 
information and materials relating to their requests and at the request of the investigating authority. 
What are the consequences for the applicant and the respondent if they do not provide this 
information?  
 
Question 4 
 
Article  13 "Consultation " foresees the possibility to hold consultations with interested parties in the 
course of the investigation and before finishing the investigation. Does this process correspond to 
meetings/hearings2 with the interested parties?  
                                                
1 G/ADP/N/1/VNM/2 –G/SCM/N/1/VNM/1 –G/SG/N/1/VNM/2 (dated 31  August  2018).  
2 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8  June 2016 on protection 
against dumped imports from countries no t members of the European Union foresees this kind of hearings under 
Article  6.5 G/ADP/Q1/VNM/5 • G/SCM/Q1/VNM/5 • G/SG/Q1 /VNM/5  
 
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  Question 5 
 
Article  15 "Application of trade remedies to underdeveloped or de veloping countries and territories " 
contains the notion of "underdeveloped " countries. Does this notion correspond to the notion of last 
developed countries?  
 
Question 6 
 
Article  16 "Methods of determining normal value " states that : 
"…normal values may be … 
b) Set by the investigating authority based on reasonable costs of products plus other reasonable 
expenses and reasonable profits… " 
Could the authorities clarify how "reasonable " will be applied in practice as this qualifying adjective 
is not foreseen in  the Anti-Dumping Agreement?  
 
Question 7 
 
Article  16 "Methods of determining normal value " contains in its paragraph  3 the notions of "volume 
or quantity ". Could the authorities clarify the difference between volume and quantity?  
 
Question 8 
 
Article  19 "Adjustment of normal values and export prices " states that "Adjusting the normal value 
and export price in the case where there are differences in taxation, conditions and terms of sale, 
commercial level, quantities, physical characteristics or other facto rs which are deemed appropriate 
by the investigating authority ". The notion of "differences which affect price comparability " which is 
foreseen as a criteria for adjustment to be made under Article  2.4 of the Anti-Dumping Agreement 
is absent from Article  19. What is the criteria to perform the adjustments foreseen in Article  19? 
 
Question 9 
 
Article  36 "Selection of samples for investigation " under its paragraph  2, point a), seems to 
differentiate between volume and quantity. Could the authorities clarify the difference between the 
two? 
 
Question 10 
 
The section  4 "Application of anti -dumping measures or countervailing measures " does not contain 
any provision related to disclosure at provisional and definitive stage. The law on foreign trade 
management No. 05/2017/QH14 does not seem to contain any reference to a disclosure to parties 
before the adoption of measures.  
 
At which poi nt do the authorities see the possibility to disclose their findings to the parties (both at 
provisional and definitive stage)? Where this possibility is foreseen in the Vietnamese regulations? 
How the bilateral obligation for "full and meaningful disclosu re" created under Article  3.2 
"Transparency " (chapter  3 "Trade remedies " of the bilateral Free Trade Agreement) will be 
implemented?  
 
Question 11 
 
Article  45 "Application of retrospective anti -dumping and countervailing measures " does not reflect 
all the c onditions for retroactive application of anti -dumping duties and countervailing measures as 
foreseen in Article 10.6 of the Anti -Dumping Agreement and Article 20.6 of the Agreement on 
Subsidies and Countervailing Measures. These conditions are not reflecte d in Article 81 and 89 of 
the Law on Foreign Trade Management. What is the consequence of this omission? Does it means 
that it is easier to apply measures retrospectively under the Vietnamese law?  G/ADP/Q1/VNM/5 • G/SCM/Q1/VNM/5 • G/SG/Q1/VNM/5  
 
- 3 - 
 
  Questions related to the provisions of Law on Foreign Trade  Management 
No.°05/2017/QH14  
Question 12 
 
Article  75 "Provision and collection of information and documents and confidentiality in the 
investigation of trade remedy cases " states in its paragraph  4 that in case of non -cooperation by the 
party to be investigated the authority "may use information and documents provided by interested 
parties or collected by itself or available information … ". This provision seems to give a lot of room 
of manoeuvre to  the investigating authority. It seems to allow the investigating authority to base its 
decision only on the information and documents provided by the interested parties (as the different 
sources of information are separated by "or"). The concept of "facts available "3 is larger than 
"information and documents provided by interested parties ". Could the Vietnamese authorities clarify 
if as drafted paragraph  4 of Article  75 could potentially lead to the exclusive use of adverse facts 
supplied by the complainan t? 
 
Question 13 
 
Article  81 "Application of anti -dumping measures " in its paragraph  4 on retrospective application of 
duties seems to give the same weight to "determination of injury " and "determination of a threat of 
injury ". The condition of Article 10.2 of the Anti -Dumping Agreement "in the case of a final 
determination of a threat of injury, where the effect of the dumped imports would, in the absence 
of the provisional measures, have led to a determination of injury, anti -dumping duties may be 
levied retroactively " is not foreseen in this paragraph  4 of the Vietnamese law.  
 
The situation under Article  89.4 on imposition of retrospective countervailing duties is the same. 
This Article does not reflect the distinction between "material injury " and "threa t of material injury " 
described in Article  20.2 of the Agreement on Subsidies.  
 
Could we consider that it is easier to apply retrospective anti -dumping duties and countervailing 
measures under the Vietnamese law compared to the WTO rules?  
 
Question 14 
 
Article  85 "Subsidies likely to be subject to countervailing measures " states that subsidies based on 
export results and aiming to prioritize the use of homemade products "…are likely to be subject to 
countervailing measures, unless otherwise provided by t reaties to which the Socialist Republic of 
Viet Nam is a contracting party ". These subsidies are prohibited under Article 3 of the Agreement on 
Subsidies and Countervailing Measures. How could other treaties go against this provision?  
 
Question 15 
 
Article  86 "Conditions for application of countervailing measures " seems to be more restrictive in its 
paragraph  3 than Article 27.10 b of the Agreement on Subsidies and Countervailing Measures. 
Article  27.10 b states that any countervailing investigation shall b e terminated as soon as the 
authorities determine that "the volume of the subsidized imports represents less than 4 % of the 
total imports of the like product in the importing Member… ". Article  86, paragraph  3 states that "In 
the case the volume or quantity  of imports originating from a developing country does not exceed 
4% of the total volume or quantity of similar imports into Viet  Nam… ". Could the authorities confirm 
that our understanding is correct?  
 
 
__________  
                                                
3 The notion of "facts available " is foreseen in Article  6.8 of the  Anti-Dumping Agreement and Article  12.7 
of the Agreement on subsidies and countervailing measures.