Decree no. 89/2005/ND-CP of July 11, 2005 detailing the implementation of a number of articles of the ordinance on anti-subsidy for imports into Vietnam

THE GOVERNMENT
——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 89/2005/ND-CP

Hanoi, July 11, 2005

DECREE
DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE ORDINANCE ON ANTI-SUBSIDY FOR IMPORTS INTO VIETNAM

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to Ordinance No. 22/2004/PL-UBTVQH11 of August 20, 2004, on Anti-Subsidy for Imports into Vietnam;

At the proposal of the Minister of Trade,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Regulation scope

This Decree details the implementation of a number of articles of the Ordinance on Anti-Subsidy for Imports into Vietnam (hereinafter called Anti-Subsidy Ordinance) regarding the anti-subsidy investigation agency and the council for handling of anti-subsidy cases; the procedures and contents of investigation for the application as well as the application of measures against subsidy for imports into Vietnam.

Article 2.- Language and script used in the course of handling anti-subsidy cases

1. The language and script used in the course of handling anti-subsidy cases is Vietnamese. Parties involved in the investigation process stipulated in Article 11 of the Anti-Subsidy Ordinance (hereinafter called involved parties) have the right to use their own languages and scripts but in such cases interpreters are required.

2. Information and documents in languages other than Vietnamese supplied by the involved parties must be translated into Vietnamese. The involved parties must ensure the truthfulness and accuracy of translations and take responsibility before law for their contents.

Article 3.- Evidence

Evidence in the course of handling anti-subsidy cases means things which truly exist and are used by the anti-subsidy investigation agency or the council for handling of anti-subsidy cases as a basis for determination of the situation of subsidy for imports into Vietnam, the material injury or threat to cause material injury to domestic manufacturing industries, the relationship between the subsidy for imports into Vietnam and the material injury or threat to cause material injury to domestic manufacturing industries as well as other factors necessary for the proper handling of anti-subsidy cases.

Article 4.- Determination of immaterial volume, quantity or value of subsidized imports into Vietnam

The volume, quantity or value of subsidized imports into Vietnam shall be considered immaterial when:

1. The volume, quantity or value of subsidized imports from a country does not exceed 3 of the total volumes, quantities or values of the like imports into Vietnam.

2. The total volumes, quantities or values of the like imports from many countries meeting the conditions specified in Clause 1 of this Article does not exceed 7 the total volumes, quantities or values of the like imports into Vietnam.

Article 5.- Determination of the major proportion in the total volumes, quantities or values of the like home-made goods

If the volume, quantity or value of imports accounts for 50 or more of the total volumes, quantities or values of the like home-made goods, such imports shall be considered representing a major proportion in the total volumes, quantities or values of the like home-made goods.

Article 6.- Determination of the direct association between producers of the like home-made goods and organizations or individuals exporting and/or importing goods requested to be subject to the application of anti-subsidy measures

1. Producers of the like goods shall be considered having a direct association with organizations or individuals exporting and/or importing goods requested to be subject to the application of anti-subsidy measures in the following cases:

a/ One party directly or indirectly controls the other party;

b/ Both parties are directly or indirectly controlled by a third party;

c/ Both parties directly or indirectly control a third party.

2. One party shall be considered controlling another party when it has the right to control financial policies and operations of the latter in order to gain economic benefits from the latter’s business activities.

Chapter II

ANTI-SUBSIDY AGENCIES, PERSONS HANDLING ANTI-SUBSIDY CASES, PERSONS INVOLVED IN THE COURSE OF HANDLING ANTI-SUBSIDY CASES

Section 1. ANTI-SUBSIDY AGENCIES, PERSONS HANDLING ANTI-SUBSIDY CASES

Article 7.- Anti-subsidy agencies, persons handling anti-subsidy cases

1. Anti-subsidy agencies include the anti-subsidy investigation agency (hereinafter called Investigation Agency) and the council for handling of anti-subsidy cases (hereinafter called Handling Council).

2. Persons handling anti-subsidy cases include:

a/ Head of the Investigation Agency;

b/ Investigators of anti-subsidy cases (hereinafter called investigators);

c/ Members of the Handling Council.

Article 8.- Tasks and powers of the Investigation Agency

When handling anti-subsidy cases, the Investigation Agency has the following tasks and powers:

1. To promulgate the form of dossier of request for the application of anti-subsidy measures, and investigation questionnaires.

2. To perform investigation tasks for the application of anti-subsidy measures in the order and according to the procedures stipulated in the Anti-Subsidy Ordinance and this Decree.

3. To request the involved parties to supply necessary information and documents relating to anti-subsidy cases.

4. To organize consultations with the involved parties.

5. To announce preliminary conclusions on the contents relating to the investigation process.

6. To propose the Trade Minister to consider and decide on the temporary imposition of anti-subsidy tax, when necessary.

7. To propose the Trade Minister to consider the acceptance or non-acceptance or request adjustment of the contents of commitments voluntarily made by the concerned producers or exporters according to the provisions of Article 23 of the Anti-Subsidy Ordinance.

8. To announce final conclusions on the contents relating to the investigation process.

9. To review the application of anti-subsidy measures under decision of the Trade Minister;

10. To perform other tasks in accordance with the provisions of law.

Article 9.- Head of the Investigation Agency

1. The head of the Investigation Agency shall be appointed and dismissed by the Trade Minister.

2. The head of the Investigation Agency has the following tasks and powers:

a/ To organize and direct the Investigation Agency to perform its tasks and powers as provided for in Article 8 of this Decree;

b/ To assign investigators to investigate specific anti-subsidy cases;

c/ To assign investigators to run consultation meetings;

d/ To supervise investigative activities of investigators;

e/ To decide on the organization of consultation meetings;

f/ To keep secret classified information according to the provisions of Article 28 of this Decree;

g/ To request expertise.

Article 10.- Investigators

1. Criteria for investigators

Persons meeting the following criteria may be appointed investigators:

a/ Having good moral qualities, being honest and objective;

b/ Having a bachelor or higher degree in law, economics or finance;

c/ Having worked for at least five years in one of the domains specified at Point b of this Clause;

d/ Having been trained and fostered in investigation.

2. Investigators shall be appointed and dismissed by the Trade Minister at the proposal of the head of the Investigation Agency.

Article 11.- Tasks and powers of investigators

When handling anti-subsidy cases, investigators have the following tasks and powers:

1. To perform investigation tasks assigned by the head of the Investigation Agency.

2. To request the involved parties to supply necessary information and documents relating to anti-subsidy cases according to the provisions of the Anti-Subsidy Ordinance.

3. To keep secret classified information according to the provisions of Article 28 of this Decree.

4. To preserve the supplied documents.

5. To make investigation reports upon the end of investigation of anti-subsidy cases and submit to the head of the Investigation Agency preliminary conclusions and final conclusions relating to the investigation process.

Article 12.- Tasks and powers of the Handling Council

The Handling Council has the following tasks and powers:

1. To examine final conclusions of the Investigation Agency according to the provisions of Article 37 of this Decree.

2. To discuss and decide by majority whether or not the imports into Vietnam are subsidized, causing or threatening to cause material injury to domestic manufacturing industries.

3. To propose the Trade Minister to make decision on the imposition of anti-subsidy tax in accordance with the provisions of Article 37 of this Decree.

Article 13.- Members of the Handling Council

1. Criteria for members of the Handling Council

The Trade Minister shall draw up and submit a list of members of the Handling Council to the Prime Minister for approval according to the following criteria:

a/ Having good moral qualities, being honest and objective;

b/ Having a bachelor or higher degree in law, economics or finance;

c/ Having an actual working duration of at least nine years in one of the domains specified at Point b of this Clause.

2. Based on the list of the Handling Council members already approved by the Prime Minister, the Trade Minister shall consider and issue specific decisions on the number of the Handling Council members to participate in handling an anti-subsidy case, appointing one member to chair meetings and sign decisions or proposals mentioned in Clauses 2 and 3, Article 12 of this Decree.

3. A Handling Council member works for a five-year term and may be re-appointed.

Article 14.- Tasks and powers of the Handling Council members

When handling anti-subsidy cases, the Handling Council members have the following tasks and powers:

1. To study, examine dossiers and conclusions of the Investigation Agency and other documents in the dossier sets of anti-subsidy cases transferred from the Investigation Agency.

2. To participate in the Handling Council’s meetings to discuss and vote on whether or not exists the subsidy for imports into Vietnam, causing or threatening to cause material injury to domestic manufacturing industries.

3. To keep secret classified information according to the provisions of Article 28 of this Decree.

Section 2. PERSONS INVOLVED IN THE PROCESS OF HANDLING ANTI-SUBSIDY CASES

Article 15.- Persons involved in the process of handling anti-subsidy cases

Persons involved in the process of handling anti-subsidy cases include:

1. Organizations or individuals lawfully representing domestic manufacturing industries as defined in Clause 1, Article 8 of the Anti-Subsidy Ordinance that file dossiers requesting the application of anti-subsidy measures with the Investigation Agency (hereinafter called requesters).

2. Foreign organizations or individuals producing and/or exporting goods requested to be subject to the application of anti-subsidy measures according to the requesters’ dossiers or subject to investigation by the Investigation Agency under decisions of the Trade Minister as stipulated in Article 8 of the Anti-Subsidy Ordinance (hereinafter called requested persons).

3. Lawyers of requesters and requested persons.

4. Other involved parties.

Article 16.- Rights and obligations of requesters and requested persons

1. When participating in the process of handling anti-subsidy cases, requesters have the following rights:

a/ To access information supplied by other involved parties to the Investigation Agency, except for classified information defined in Article 28 of this Decree;

b/ To request the Investigation Agency and investigators to keep secret classified information according to the provisions of Article 28 of this Decree;

c/ To participate in consultation meetings;

d/ To authorize their lawyers to participate in the process of handling anti-subsidy cases;

e/ To request the Investigation Agency to organize closed-door consultation meetings according to the provisions of Clause 6, Article 27 of this Decree.

f/ To make complaints or initiate lawsuits against the Trade Minister’s decisions according to the provisions of Article 28 of the Anti-Subsidy Ordinance.

2. When participating in the process of handling anti-subsidy cases, the requested persons have the following rights:

a/ The rights provided for in Clause 1 if this Article;

b/ To propose the Investigation Agency to extend the time limit for information supply and/or the time limit for reply to investigation questionnaire according to the provisions of Clause 2, Article 24 of this Decree.

3. Requesters and requested persons have the following obligations:

a/ To timely supply all truthful and accurate information and documents which are necessary and relevant to their requests;

b/ To timely supply all truthful and accurate information and documents at the request of the Investigation Agency and investigators;

c/ To execute decisions of the Trade Minister.

Article 17.- Lawyers of requesters and requested persons

1. Lawyers who fully meet conditions for participation in legal proceedings at court under law provisions and are authorized by requesters or requested persons may participate in the process of handling anti-subsidy cases in order to protect legitimate rights and interests of the parties they represent.

2. When participating in the process of handling anti-subsidy cases, lawyers have the following rights and obligations:

a/ To take part in all stages of the process of handling anti-subsidy cases;

b/ To verify, gather and supply documents in order to protect the legitimate rights and interests of the parties they represent;

c/ To study documents in the dossiers of anti-subsidy cases;

d/ To record and duplicate necessary documents in the dossiers of anti-subsidy cases, except for the classified information defined in Article 28 of this Decree so as to protect legitimate rights and interests of the parties they represent;

e/ To assist the parties they represent in legal affairs related to the protection of their legitimate rights and interests;

f/ To respect the truth and law; not to buy off, force or incite others to make false declarations or supply untruthful documents;

g/ Not to disclose secrets of investigation they know when participating in the process of handling anti-subsidy cases;

h/ Not to use records or copies of documents in the dossiers of anti-subsidy cases for the purpose of infringing upon the State’s interests or legitimate rights and interests of organizations and individuals.

Article 18.- Rights and obligations of other involved parties

When participating in the process of handling anti-subsidy cases, involved parties other than requesters or requested persons have the following rights and obligations:

1. To supply truthful information and necessary documents relating to anti-subsidy cases according to their own viewpoints or at the request of the Investigation Agency or investigators.

2. To request the Investigation Agency and investigators to keep secret classified information according to the provisions of Article 28 of this Decree.

3. To access the Investigation Agency’s information on anti-subsidy cases, except for classified information defined in Article 28 of this Decree.

4. To take part in consultation meetings and present their viewpoints on anti-subsidy cases, except for the case stipulated in Clause 6, Article 27 of this Decree.

Chapter III

INVESTIGATION FOR THE APPLICATION OF ANTI-SUBSIDY MEASURES

Article 19.- Dossiers of request for the application of anti-subsidy measures

Dossiers of request for the application of anti-subsidy measures shall be sent to the Investigation Agency, each comprising:

1. A written request for the application of anti-subsidy measures, including the following contents:

a/ The name, address and other necessary information of the requester or representative of a domestic manufacturing industry in case the dossier is compiled by the Investigation Agency under decision of the Trade Minister;

b/ Description of the imports requested to be subject to the application of anti-subsidy measures, stating their appellations, basic characteristics and major use purposes, codes under current import tariffs and currently applicable import tax rate, and origin;

c/ Description of the volumes, quantities and values of the imports defined at Point b of this Clause within 12 months before the requester submits the dossier or before the Investigation Agency compiles the dossier under decision of the Trade Minister;

d/ Description of the volumes, quantities and values of the like home-made goods within 12 months before the requester submits the dossier or before the Investigation Agency compiles the dossier under decision of the Trade Minister;

e/ Information on the foreign government’s subsidy policies, situation and forms of subsidy;

f/ Information, data and evidence on material injury to a domestic manufacturing industry, which the subsidized imports into Vietnam have caused or threaten to cause;

g/ The name, address and other necessary information of the requested person;

h/ Specific requests for the application of anti-subsidy measures, application duration and extent.

2. Other documents and information which are deemed necessary by the requester or the Investigation Agency (in case the Investigation Agency compiles the dossier of request for the application of anti-subsidy measures).

Article 20.- Appraisal of dossiers of request for the application of anti-subsidy measures in cases where requesters exist

1. Within 45 days after receiving complete and valid dossiers stipulated in Article 19 of this Decree, the Investigation Agency shall have to appraise them for submission to the Trade Minister for consideration and issuance of investigation decisions.

2. The appraisal of dossiers covers the following contents:

a/ Determining the lawful capacity of the dossier-submitting organizations or individuals to represent domestic manufacturing industries according to the provisions of Clause 1, Article 8 of the Anti-Subsidy Ordinance.

b/ Determining evidence of material injury caused or threatening to be caused by the subsidy for imports into Vietnam to domestic manufacturing industries.

Article 21.- Compilation of dossiers of request for the application of anti-subsidy measures in cases where no requesters exist

1. In cases where no requesters exist but there are signs that the subsidy for imports into Vietnam has caused or threatened to cause material injury to domestic manufacturing industries, the Trade Minister shall issue a decision to assign the Investigation Agency to compile a dossier requesting the application of anti-subsidy measures and submit it to him/her for consideration and issuance of the investigation decision.

2. The time limit for compilation of the dossier mentioned in Clause 1 of this Article shall be six months, counting from the date the Trade Minister signs the decision assigning the Investigation Agency to compile such dossier.

Article 22.- Contents of investigation decisions

1. An investigation decision covers the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ The name, address and other necessary information of the representative of a domestic manufacturing industry in cases where no requester exists;

c/ Description of the imports requested to be subject to the application of anti-subsidy measures, stating their appellations, basic characteristics and major use purposes, codes under current import tariffs and currently applicable import tax rate;

d/ The name, address and other necessary information of the requested person;

e/ The name of the exporting country or territory and the origin of goods requested to be subject to the application of anti-subsidy measures;

f/ Brief information on the subsidy for the imports described at Point c of this Clause, causing or threatening to cause material injury to the domestic manufacturing industry;

g/ The effective date for the investigation to start;

h/ The investigation period;

i/ The schedule for handling of the anti-subsidy case;

j/ Other information which the Trade Minister deems necessary.

2. The notification and announcement of investigation decisions shall comply with the provisions of Clause 5, Article 10 of the Anti-Subsidy Ordinance.

Article 23.- Supply of information and documents in the investigation process

1. The involved parties shall have to supply truthful information and necessary documents at the request of the Investigation Agency.

2. In case of necessity, the Investigation Agency shall request expertise or check and verify the truthfulness of information and documents supplied by the involved parties or collect more information and documents necessary for the proper handling of anti-subsidy cases.

3. In case of checking and verifying the truthfulness of information and documents or collecting more information from countries or territories outside Vietnam, the Investigation Agency shall have to abide by the following provisions:

a/ Notifying such to relevant organizations and/or individuals and competent agencies of such countries or territories before conducting the verification or collection of information;

b/ The verification or collection of information must be consented by concerned organizations and/or individuals and not protested by competent agencies of the countries or territories mentioned at Point a of this Clause, except otherwise provided for by treaties to which Vietnam and the concerned countries or territories are parties.

4. Except for the classified information defined in Article 28 of this Decree, the Investigation Agency must publicize the results of expertise and verification or collection of information to the involved parties.

5. The Investigation Agency shall make decisions on the basis of available necessary information and documents the following cases:

a/ The involved parties fail to supply necessary information and documents already requested according to the provisions of Clause 1 of this Article;

b/ The results of expertise, inspection or verification show that information and documents supplied by the involved parties are untrue;

c/ The involved parties do not let the Investigation Agency check and verify information;

d/ The involved parties obstruct the investigation process.

6. In case of rejecting to use part of information or documents supplied by the involved parties, the Investigation Agency must explain the reasons therefor.

Article 24.- Investigation questionnaires

1. Within 15 days after an investigation decision is issued, the Investigation Agency shall have to send investigation questionnaires to the addresses of the following subjects:

a/ Requested persons or their lawful representatives;

b/ Vietnam-based representatives of the countries or territories producing and/or exporting goods requested to be subject to the application of anti-subsidy measures;

c/ Competent agencies of the countries or territories producing and/or exporting goods requested to be subject to the application of anti-subsidy measures;

d/ Other involved parties.

2. Within 30 days after receiving the investigation questionnaires, the requested persons must give written replies to all questions in the questionnaire to the Investigation Agency. In case of necessity and if there are written requests from the requested persons, the Investigation Agency shall consider and extend this time limit once, for not more than 30 days.

3. Investigation questionnaires shall be considered having reached the recipients after seven working days, counting from the date they were sent by the Investigation Agency. The sending date shall be determined according to the postmark.

Article 25.- Determination of separate subsidy levels

1. The Investigation Agency must determine separate subsidy levels for each requested person in an anti-subsidy case, except for the cases stipulated in Clause 2 of this Article.

2. In cases where the number of requested persons or the number of types of the imports requested to be subject to the application of anti-subsidy measures is too large, which makes the determination of separate subsidy levels impossible, the Investigation Agency may limit the scope of investigation in order to determine separate subsidy levels for only a certain number of requested persons or imports requested to be subject to the application of anti-subsidy measures.

The limitation of the investigation scope shall comply with the following provisions:

a/ It shall be carried out by employing the statistic method for selecting suitable samples based on the volume, quantity or value of the imports requested to be subject to the application of anti-subsidy measures which have been produced and/or exported to Vietnam by the requested persons, or on the information obtained by the Investigation Agency at the time of selecting those samples;

b/ When selecting samples for investigation, the Investigation Agency may hold necessary consultation meetings with the requested persons and importers related to the selection of samples and must get consent of such requested persons on the selection of samples.

3. Subsidy levels shall be determined according to the provisions of Article 14 of the Anti-Subsidy Ordinance.

4. The subsidy level applicable to requested persons not subject to investigation is the weighted average subsidy level applicable to requested persons selected for determination of separate subsidy levels under the provisions of Clause 2 of this Article.

Article 26.- Determination of the relationship between the subsidy for imports into Vietnam and material injury or threat to cause material injury to domestic manufacturing industries

1. When determining the relationship between the subsidy for imports into Vietnam and material injury or threat to cause material injury to a domestic manufacturing industry, the Investigation Agency may comprehensively consider the following factors:

a/ The relationship between the subsidy for imports into Vietnam and the evidence on material injury or threat to cause material injury to a domestic manufacturing industry;

b/ The quantities and prices of the like import goods which are imported into Vietnam without subsidy;

c/ The decline in the demand for, or change in the pattern of consumption of, the like home-made goods;

d/ The export capacity and productivity of the domestic manufacturing industry;

e/ Other factors as decided by the Investigation Agency.

2. When necessary, the Investigation Agency may also consider other factors, apart from the subsidy for imports into Vietnam, which cause or threat to cause material injury to a domestic manufacturing industry.

Article 27.- Consultations during investigation

1. Before conducting the investigation and in the investigation process, the Investigation Agency may organize a public consultation meeting with the involved parties and assign at least three investigators, including one investigator as chairman, to run such meeting.

2. Within 30 days before the consultation meeting, the involved parties must send written registrations of their participation in the meeting to the Investigation Agency, clearly stating issues to be consulted and their arguments.

3. Consultation order:

a/ The chairman opens the consultation meeting;

b/ The requester and the requested person personally or through their authorized representatives make oral presentation of evidence to defend their viewpoints on the anti-subsidy case. The time for each party to make presentation shall not exceed 90 minutes;

c/ The requester and the requested person hand over their presentations mentioned at Point b of this Clause to the chairman;

d/ The involved parties other than those mentioned at Point b of this Clause have the right to hand over written presentations on their viewpoints on the anti-subsidy case to the chairman;

e/ The chairman and investigators put questions and listen to answers of the requester, the requested person or their lawful representatives. The question- and answer-time for each party shall not exceed 60 minutes. The whole contents of questions and answers shall be written in the records of the consultation meeting;

f/ The chairman summarizes the contents of the consultation meeting and closes the meeting.

4. Within seven working days after the consultation meeting, the involved parties have the right to send documents further explaining their viewpoints on the anti-subsidy case to the Investigation Agency.

5. All contents of the consultation meeting, including written presentations of the involved parties and records of the consultation, shall be publicized by the Investigation Agency.

6. When necessary, the Investigation Agency may organize a closed-door consultation meeting if so requested by the requester or requested person. Participants in such consultation meeting shall be considered and decided by the Investigation Agency, based on the request of the persons requesting such meeting.

Article 28.- Confidentiality of information

1. The Investigation Agency and investigators shall only be responsible for confidentiality of the following information supplied by the involved parties:

a/ National secrets and other secrets as provided for by law;

b/ Information classified by the supplying party and accepted by the Investigation Agency.

2. When supplying the classified information defined at Point b, Clause 1 of this Article, information suppliers must enclose therewith detailed explanations about the reasons for classification of such information and brief contents of the classified information, which may be publicized to the other involved parties.

3. In cases where it refuses the information suppliers’ request for confidentiality of information or where the information suppliers refuse to publicize the information, which they request to keep secret, the Investigation Agency shall not use such information and return it to the suppliers.

Article 29.- Preliminary conclusions

1. Within 90 days after a decision on investigation for the application of anti-subsidy measures is issued, the Investigation Agency shall announce preliminary conclusions on the contents relating to the investigation process under the provisions of Articles 13, 14 and 15 of the Anti-Subsidy Ordinance; in special cases, this time limit may be extended but for not more than 60 days.

2. Preliminary conclusions must be announced publicly in appropriate manner to the parties involved in the investigation process and include the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ Description of the imports requested to be subject to the application of anti-subsidy measures, stating their appellations, basic characteristics and major use purposes, codes under current import tariffs and currently applicable import tax rate, and origin;

c/ The name, address and other necessary information of the requested person;

d/ Description of the volumes, quantities and values of imports into Vietnam according to the provisions of Point b of this Clause within 12 months before the requester submits the dossier requesting the application of anti-subsidy measures or before the Investigation Agency compiles such dossier under decision of the Trade Minister;

e/ The subsidy level;

f/ The information and evidence proving that the subsidy for the imports described at Point b of this Clause causes or threatens to cause material injury to a domestic manufacturing industry; or information, evidence proving that the delayed temporary imposition of anti-subsidy tax threatens to cause material injury to a domestic manufacturing industry, which is hardly overcome;

g/ The schedule for the handling of the anti-subsidy case;

h/ Other information which is deemed necessary by the Investigation Agency.

3. Seven working days after announcing the preliminary conclusions on the investigation, the Investigation Agency must send investigation reports and preliminary investigation conclusions to the Trade Minister and in case of necessity, propose the Trade Minister to issue decisions on the temporary imposition of anti-subsidy tax.

Article 30.- Termination of investigation

1. The Trade Minister shall decide to terminate investigation under the provisions of Article 21 of the Anti-Subsidy Ordinance.

2. After a decision to terminate the investigation is issued, within seven working days, the Investigation Agency shall have to notify such decision, clearly stating the reasons for investigation termination in writing or an appropriate manner to the involved parties,.

Article 31.- Final conclusions

1. Within 30 days after the end of the investigation process, the Investigation Agency must announce final conclusions on the contents relating to the investigation process according to the provisions of Articles 13, 14 and 15 of the Anti-Subsidy Ordinance and Article 26 of this Decree.

2. Final conclusions on the investigated case and their main bases must be announced publicly in appropriate manners and cover the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ Description of the imports requested to be subject to the application of anti-subsidy measures, stating their appellations, basic characteristics and major use purposes, codes under current import tariffs and currently applicable import tax rate, and origin;

c/ The name, address and other necessary information of the requested person;

d/ Description of the volumes, quantities and values of the imports into Vietnam according to the provisions of Point b of this Clause within 12 months before the requester submits the dossier requesting the application of anti-subsidy measures or before the Investigation Agency compiles such dossier under decision of the Trade Minister;

e/ The subsidy level;

f/ The information and evidence proving that the subsidy for the imports described at Point b of this Clause causes or threatens to cause material injury to a domestic manufacturing industry;

g/ The schedule for the handling of the anti-subsidy case;

h/ Other information which is deemed necessary by the Investigation Agency.

3. Within seven working days after announcing the final conclusions, the Investigation Agency must send the Handling Council the anti-subsidy case’s dossier set, which comprises the following documents:

a/ The dossier of request for the application of anti-subsidy measures;

b/ The investigation report;

c/ The preliminary conclusions;

d/ The final conclusions and their major bases;

e/ The proposals of the Investigation Agency.

Chapter IV

APPLICATION OF ANTI-SUBSIDY MEASURES

Section 1. APPLICATION OF THE COMMITMENT MEASURE

Article 32.- Sending of written commitments

After preliminary conclusions are made available and within 30 days before the end of the investigation process, lawful representatives or governments of the countries or territories of the requested persons may send written commitments regarding one or all of the contents defined in Clause 1, Article 23 of the Anti-Subsidy Ordinance (hereinafter called commitments to elimination of subsidy) to the Trade Ministry through the Investigation Agency or to domestic producers for consideration before submission to the Investigation Agency.

Article 33.- Consideration of commitments to elimination of subsidy

1. Within 30 days after receiving written commitments to elimination of subsidy, the Investigation Agency shall have to consider them and make proposals to the Trade Minister for consideration and decision.

2. Commitments to elimination of subsidy must be considered on the following basis:

a/ The application of such commitments may help overcome material injury or threat to cause material injury to a domestic manufacturing industry;

b/ The application of such commitments does not entail negative impacts on the implementation of national socio-economic policies.

Article 34.- Decisions on commitments to elimination of subsidy

1. Based on the Investigation Agency’s proposal on commitments to elimination of subsidy, the Trade Minister may issue one of the following decisions:

a/ The decision to terminate investigation and accept the commitments of the involved parties;

b/ The written request for the commitment makers to adjust the contents of commitments, which, however, must not force them to do so;

c/ The decision not to accept the commitments, clearly stating the reasons therefor.

2. The decisions defined in Clause 1 of this Article must be announced publicly to the involved parties in appropriate manners.

3. In cases where the commitment makers agree to adjust the contents of the commitments defined at Point b, Clause 1 of this Article, they must send new commitments to the Investigation Agency.

Article 35.- Supervision of implementation of commitments to elimination of subsidy

1. Commitment makers shall be subject to supervision by the Investigation Agency in the realization of their commitments.

2. Commitment makers must periodically supply the Investigation Agency with information and documents related to the realization of their commitments and prove the accuracy of such information and documents under decision of the Trade Minister.

3. In cases where the commitment makers fail to realize their commitments, causing or threatening to cause material injury to a domestic manufacturing industry, the Investigation Agency must propose the Trade Minister to issue a decision on further investigation for the application of anti-subsidy measures or on the application of anti-subsidy measures according to the provisions of Clause 6, Article 23 of the Anti-Subsidy Ordinance.

Section 2. IMPOSITION OF ANTI-SUBSIDY TAX

Article 36.- Temporary imposition of anti-subsidy tax

1. After 60 days, from the date of issuance of an investigation decision, based on the preliminary conclusions and proposals of the Investigation Agency, the Trade Minister shall make decision on the temporary imposition of anti-subsidy tax.

2. Decisions on the temporary imposition of anti-subsidy tax must comply with the provisions of Clauses 2, 3, 4 and 5, Article 22 of the Anti-Subsidy Ordinance.

3. Decisions on the temporary imposition of anti-subsidy tax shall be made public, each comprising the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ Description of the imports subject to the temporary imposition of anti-subsidy tax, stating their appellations, basic characteristics and major use purposes, codes under current import tariffs, currently applicable import tax rate, and origin;

c/ The names, addresses and other necessary information of producers and/or exporters of goods subject to the temporary imposition of anti-subsidy tax;

d/ The anti-subsidy tax rate;

e/ The effective date and duration for the temporary imposition of anti-subsidy tax.

Article 37.- Decisions of the Handling Council

1. Based on the dossier sets of anti-subsidy cases stipulated in Clause 3, Article 31 of this Decree, within 30 days after receiving such dossier sets, the Handling Council shall have to discuss and decide by majority on the following issues:

a/ Whether or not exists the subsidy for imports into Vietnam;

b/ Whether or not exists the material injury or threat to cause material injury to a domestic manufacturing industry;

c/ Whether or not exists the relationship between the subsidy for imports into Vietnam and the material injury or threat to cause material injury to a domestic manufacturing industry;

2. In cases where the votes for and against the issues mentioned in Clause 1 of this Article are equal, the Handling Council shall make decision based on the meeting chairman’s opinions.

3. In cases where decisions of the Handling Council defined in Clauses 1 and 2 of this Article affirm that there is the subsidy for imports into Vietnam, causing or threatening to cause material injury to a domestic manufacturing industry, the Handling Council must propose the Trade Minister to issue decisions on the imposition of anti-subsidy tax.

Article 38.- Imposition of anti-subsidy tax

1. In case of achieving no commitments as mentioned in Article 23 of the Anti-Subsidy Ordinance, based on final conclusions of the Investigation Agency and proposals of the Handling Council stipulated in Clause 3, Article 37 of this Decree, the Trade Minister shall issue decisions on the imposition of anti-subsidy tax.

In cases where the imposition of anti-subsidy tax damages national socio-economic interests, the Trade Minister may issue decisions on the non- imposition of this tax.

2. Decisions on the imposition of anti-subsidy tax must comply with the provisions of Clauses 2, 3, 4 and 5, Article 24 of the Anti-Subsidy Ordinance.

3. Decisions on the imposition of anti-subsidy tax shall be made public, each comprising the following contents:

a/ The name, address and other necessary information of the requester (if any);

b/ Description of the imports subject to anti-subsidy tax, stating their appellations, basic characteristics and major use purposes, codes under current import tariffs and currently applicable import tax rate;

c/ The names, addresses and other necessary information of producers and/or exporters of goods subject to anti-subsidy tax;

d/ The name of the country or territory that produces or exports goods subject to anti-subsidy tax;

e/ The summary of the investigation results, which shows the necessity of the imposition of anti-subsidy tax;

f/ The anti-subsidy tax rate;

g/ The effective date and duration for the imposition of anti-subsidy tax;

h/ The to be-refunded tax difference (if any) according to the provisions of Article 39 of this Decree.

Article 39.- Refund of anti-subsidy tax difference or amounts to guarantee the payment of provisional anti-subsidy tax

The refund of anti-subsidy tax difference or amounts to guarantee the payment of anti-subsidy tax to payers under the provisions of Clause 3, Article 22 of the Anti-Subsidy Ordinance shall be carried out at the agencies and places where import tax is paid according to the following provisions:

1. To refund the entire tax difference amount in cases where the anti-subsidy tax rate stated in the Trade Minister’s decision is lower than the already applied one.

2. To refund the entire anti-subsidy tax amount or payment guarantee amount which has already been paid in cases where the Trade Minister issues decisions on non-imposition of anti-subsidy tax.

3. Tax differences shall be refunded according to the provisions of Clauses 1 and 2 of this Article and interest free.

Chapter V

IMPLEMENTATION PROVISIONS

Article 40.- This Decree takes effect 15 days after its publication in “CONG BAO.”

Article 44.- Implementation responsibilities

1. The Trade Minister shall take responsibility for organizing the implementation of this Decree.

2. The Finance Ministry shall guide the procedures for collection and remittance into the State budget of anti-subsidy tax on imports into Vietnam; procedures for refund of anti-subsidy tax differences or amounts to guarantee the payment of anti-subsidy tax.

3. The ministers, the heads of ministerial-level agencies, the heads of Government-attached agencies, and the presidents of People’s Committees of provinces or centrally-run cities shall have to implement this Decree.

 

 

GOVERMENT

Phan Van Khai

 

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