SETTLEMENT OF ANTI DUMPING DISPUTES WITHIN THE WTO FRAMEWORK AND THE PARTICIPATION OF DEVELOPING COUNTRIES AND VIETNAM – THEORETICAL AND PRACTICAL ISSUES

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE
HANOI UNIVERSITY OF LAW

NGUYEN THI THU HIEN

SETTLEMENT OF ANTI-DUMPING
DISPUTES WITHIN THE WTO FRAMEWORK
AND THE PARTICIPATION OF DEVELOPING
COUNTRIES AND VIETNAM –
THEORETICAL AND PRACTICAL ISSUES
Speciality: International Law
Ref. Code No.: 62 38 01 08

SUMMARY OF THE DOCTORAL DISSERTATION

HÀ NỘI - 2014


THE AUTHOR’S PUBLICATION LIST REGARDING TO THE
DOCTORAL THESIS

The thesis was completed at:
HANOI UNIVERSITY OF LAW

1. Nguyen Thi Thu Hien, (2011), Identifying principal legal
Supervisor: Assoc. Prof., Dr. Hoang Phuoc Hiep

features of anti-dumping disputes within the WTO, Jurisprudence
Journal, No.8/2011, p. 38-43 & p. 24.

Reviewer 1: Prof., Dr. Le Hong Hanh

Reviewer 2: Assoc. Prof., Dr. Tang Van Nghia
Reviewer 3: Assoc. Prof., Dr. Dinh Ngoc Vuong

2. Nguyen Thi Thu Hien, (2012), Historical development of the
Rules on the Resolution of Anti-dumping disputes within the WTO,
Jurisprudence Journal, No.10/2012, p. 24-30
3.

Nguyen Thi Thu Hien, (2013), Anti-dumping disputes settlement

within the WTO – a comparison with dumping disputes settlement at
national level, State and Law Review , No.6(302)/2013, p. 61-67.

The thesis is upholding at the University Doctoral thesis

Examination Board, meeting at Hanoi University of Law.
The last (hour) on (date/month), 2014

The thesis can be found at:
1) The National Library
2) The Library of Hanoi University of Law


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INTRODUCTION

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Following the guidelines set forth by the Political Party,
considering Vietnam’s recent participation in anti-dumping

1. Rationale of the research paper

cases as well as the exigent requirements of Vietnam, etc., there

In current international trade practice, anti-dumping

is clearly a highly urgent need for the doctoral research

disputes have become increasingly popular and complex.

"Settlement of anti-dumping disputes within the WTO

Facing this phenomenon, in addition to finding ways to deal

framework and the participation of developing countries and

with anti-dumping investigation and imposition of anti-

Vietnam – Theoretical and practical issues”, which is both

dumping duties overseas, Members of the World Trade

theoretically and practically valuable.

Organization (WTO) actively resort to appropriate mechanisms

2. The subjects and scope of research

to protect their legitimate rights and interests. The Dispute

Subjects of the thesis include: the formation and

Settlement Mechanism (DSM) of the WTO is thought to be one

development history and the application of international law in

of the most effective mechanisms at present.

anti-dumping dispute settlement at the WTO; the WTO's

On 11/01/2007, Vietnam officially became the 150th

current conceptions on anti-dumping issue, anti-dumping

Member of the WTO. Studying the WTO law and actively

disputes and international law applicable to the anti-dumping

participating in international economic integration as well as in

dispute settlement; the content of general and specific legal

resolving international disputes become a key task set out by

issues of the international law applicable to anti-dumping

the Political Party and the State in various documents. In fact,

dispute settlement at the WTO; the practices of the WTO anti-

by the end of 12/2013, Vietnam has participated in nine out of

dumping dispute settlement; the practices of participation of a

nineteen anti-dumping lawsuits involving Vietnam at the WTO.

number of developing countries, and Vietnam, in anti-dumping

In each dispute, Vietnam, at a certain level, actively

dispute settlement at the WTO.

participated in the DSM of the WTO. However, Vietnam’s

Issues on anti-dumping disputes and the settlement

participation has been limited due to the complexity of the

mechanism within the WTO framework are complex, therefore,

disputes as well as its ineffective coordination mechanism. This

require a wide scope of research. Within the limited length for a

reality puts out an urgent request on the need for a

thesis, the author may only focus on some issues such as: (1)

comprehensive study on the practice of law applicable to anti-

the formation and development history and the application of

dumping dispute settlement within the WTO framework as well

international law in anti-dumping dispute settlement at the

as the coordination mechanism among Vietnam’s agencies at

WTO; (2) current conceptions of the WTO on anti-dumping,

home and overseas in this field.

anti-dumping disputes and international law applicable to antidumping dispute settlement; (3) general and specific legal


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issues of international law applicable to anti-dumping dispute

developing countries as well as their practices of participation

settlement, focusing on distinctive characteristics of anti-

in anti-dumping dispute settlement, and of Vietnam in

dumping dispute settlement and the scope of anti-dumping

particular; on that basis, suggests solutions that can help

dispute issues referred to the Dispute Settlement Body (DSB).

improve the effectiveness of participation of Vietnam in the

Although all dispute settlement methods within the WTO

WTO anti-dumping dispute settlement.

framework will be mentioned, the author will focus on
discussing anti-dumping dispute settlement at the DSB/WTO;

To accomplish such objectives, the thesis proposes the
following tasks of research:

(4) the WTO’s practices of anti-dumping dispute settlement in

- Analysing various views on anti-dumping issue and

general and the in-practice participation of India, China,

anti-dumping dispute settlement, and fundamental theoretical

Thailand and Vietnam in this field.

issues of international law applicable to anti-dumping dispute

3. Methodology and research methods

settlement within the WTO framework;

To further clarify the above-mentioned issues, the thesis

- Synthesising, analysing and evaluating practices of anti-

is done on the basic of using scientific research methods such

dumping dispute settlement at the WTO; focusing on the

as: the method of dialectical materialism, historical materialism

analysis of a number of cases and identifying shortcomings of

combined with systematic approach, synthesis methods,

the current regime; analysing and assessing the participation of

analytical methods, statistical methods, methods of comparison

India, China, Thailand and Vietnam in anti-dumping dispute

and contrast, combining theoretical with practical studies to

settlement at the WTO to present the experience lessons;

provide specific and feasible solutions. In this thesis, the

- Analysing fundamental views and guidlines to suggest

comparative method is utilized in most of the chapters,

solutions that can help improve the effectiveness of

especially in Chapter 2 whenever related legal terms are

participation of Vietnam in anti-dumping dispute settlement at

compared . Similarly, the method of combining theoretical with

the WTO.

practical research is used throughout the entire content of the

5. New research findings of the doctoral dissertation

thesis. Methods of synthesis and analysis are used to

- The thesis further clarifies the WTO’s current conception

complement comparative method.

on anti-dumping disputes by distinguishing these disputes

4. The objectives and tasks of research

within the WTO framework with: (i) "dumping disputes" and

The objectives of the thesis is to further clarify the

"anti-dumping disputes" under the national law of a Member

theoretical and practical issues through a comprehensive and

country, and; (ii) "anti-subsidy disputes" and "safeguard

systematic research into issues relating to anti-dumping dispute

disputes". These terms are often easily confused, therefore, the

settlement within the WTO framework, the position of

thesis helps to clarify and distinguish them;


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- The thesis contributes to clarifying the content and

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recommendations for Vietnam as either a plaintiff, defendant or

distinctive characteristics of the international law applicable to

third party in WTO anti-dumping cases.

anti-dumping dispute settlement in comparison with the law

6. The structure of the thesis

applicable to the settlement of international trade disputes at the
WTO;

- The thesis contributes to clarifying the interactive
relationship between anti-dumping dispute settlement under the
WTO law and dumping dispute settlement under the national
law of a Member country;

The thesis consists of an introduction, main content,
conclusion, bibliography and appendices. The main content of
the thesis is organized into four chapters, each ends with a subconclusion, namely:
Chapter 1: Overview on researches abroad and in
Vietnam regarding to the doctoral dissertation topic.

- The thesis further clarifies the scope and characteristics

Chapter 2: Theoretical issues of anti-dumping disputes

of the four anti-dumping dispute issues referred to the DSB,

and of international law applicable to anti-dumping dispute

including disputes over definitive anti-dumping duties, disputes

settlement at the WTO.

over the acceptance of a price undertaking, disputes over

Chapter 3: The WTO’s practices of anti-dumping dispute

provisional measures, and disputes over the inconsistency of the

settlement and the participation of developing countries and

national law of a Member country with the WTO Anti-dumping

Vietnam.

Agreement (ADA);
- The thesis speculates trends in the development of
international law applicable to anti-dumping dispute settlement

Chapter 4: Direction and solutions for improving the
effectiveness of Vietnam's participation in anti-dumping dispute
settlement at the WTO.

at the WTO;
- The thesis analyses the practices of anti-dumping dispute
settlement at the WTO; draws participating experiences of
India, China and Thailand; and points out the current reality and

MAIN CONTENT OF THE THESIS

reasons for the limited participation in resolving these disputes
of developing countries in general and that of Vietnam in
particular;
- Based on theoretical and practical analyses, the thesis
presents lessons and suggests new feasible solutions that can
help improve the effectiveness of participation of Vietnam in
WTO anti-dumping dispute settlement, especially specific

CHAPTER I
OVERVIEW ON RESEARCHES ABROAD AND IN

VIETNAM REGARDING TO THE DOCTORAL
DISSERTATION TOPIC
1.1. Researches in other countries


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In other countries, there have been many studies on the

can help improve the effectiveness of participation of Vietnam

issue of anti-dumping dispute settlement within the WTO

in the WTO anti-dumping dispute settlement.

framework and the participation of developing countries. Some

1.2. Researches in Vietnam

authors and publications are: (i) J.G. Merrills (2011),

Before, at the time and after Vietnam joined the WTO, in

International Dispute Settlement, 5th ed., Cambridge University

Vietnam, there have been many studies related to the issue of

Press; (ii) James P. Durling (2002), Matthew R. Nicely,

anti-dumping dispute settlement within the WTO framework

Understanding

Agreement:

and the participation of developing countries and of Vietnam

Negotiating History and Subsequent Interpretation, Cameron

taking both theoretical and practical approaches, which includes

May Ltd.,; (iii) David Palmeter, Petros C. Mavroidis (2004),

Bui Anh Thuy’s Ph.D. thesis "International trade dispute

Dispute settlement in the World Trade Organization: Practice

settlement mechanism of the WTO " and Vu Thi Phuong Lan’s

and procedure, 2nd ed., Cambridge: Cambridge Univ.,; (iv)

Ph.D. thesis "Law on anti-dumping in international trade and

Peter Van den Bossche (2008), The Law and Policy of the

the problems posed for Vietnam". Additionally, there have been

the

WTO

Anti-Dumping

nd

ed.,

a number of master theses and researches that addressed this

Cambridge University Press; (v) Terence P. Stewart (1993),

issue. Moreover, in terms of reference books, there are: (i) Dr.

The GATT Uruguay Round: A negotiating history (1986-1992),

Nguyen Vinh Thanh and MSc. Le Thi Ha (2006), Developing

Volume II: Commentary, Deventer: Kluwer Law and Taxation

countries and the dispute settlement mechanism of the WTO,

Publishers, etc. In addition, there are other materials posted on

Social Labor Publishing House; (ii) The Multilateral Trade

various websites and some have been translated into

Assistance Project Period II (EU-VIETNAM MUTRAP II)

Vietnamese such as the book "Handbook of WTO Dispute

(2007), The position, role and mechanism of the WTO in the

Settlement", a translation of the National Committee for

multilateral trading system; (iii) VCCI (2010), Anti-dumping

International Economic Cooperation (2006), etc.

disputes in the WTO; (iv) Faculty of Law, Can Tho University

World Trade Organization: Text, Cases and Materials, 2

Although the issue of international trade dispute

(2010), Summary of typical WTO disputes - Report of the

settlement in general and anti-dumping dispute settlment within

Panel and the Appellate Body from 1995 to 2010 year, etc.

the WTO framework in particular have been mentioned in

Among studies in smaller scale, there are (i) Article "WTO’s

many studies abroad, so far there is yet an academic research

dispute settlement mechanism: from the perspective of

that looks into both the theoretical and practical aspects of the

developing countries" by Ly Van Anh on the Journal of

issue of anti-dumping dispute settlement under the WTO and

International Studies, issue 2 (61), 2005; (ii) Article "WTO’s

the participation of developing countries, and that addresses the

dispute settlement mechanism and some suggestions for

specific case of Vietnam to propose new feasible solutions that

Vietnam" by Nguyen Vinh Thanh and Pham Thanh Ha on the


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Journal of Africa & Middle East Research, Issue 8, 2006; (iii)

countries and Vietnam; combined and analysed the experiences

Article "Anti-dumping cases and WTO’s dispute settlement

of some developing countries participating in anti-dumping

mechanism " by Bui Anh Thuy on the Journal of State and

dispute settlement to identify the causes and propose specific

Law, Issue 2, 2007; (iv) Article "Anti-dumping dispute

solutions

settlement within the WTO framework" by Nguyen Linh Giang

participation in anti-dumping dispute settlement at the WTO.

on the Journal of State and Law, Issue 3, 2008; (v) Article

Especially, there is not yet any research at the doctorate level

"Preferences for developing countries on the WTO trade

that analyses both theoretical and practical aspects of the issue

disputes settlement mechanism to that lawyers should pay

of anti-dumping dispute settlement within the WTO framework

attention" by Nguyen Thi Thu Hien on the Legal Professions

and the participation of developing countries in which the case

Review, Issue 3/2009; (vi) Article "Agency in charge and the

of Vietnam is specifically focused.

coordination

1.3. Issues that require further research and tackling

mechanism

in

WTO

dispute

settlement:

experiences for Vietnam" by Nguyen Thanh Tu on the Journal

to

improve

the

effectiveness

of

Vietnam's

methods

of State and Law, Issue 10/2012, etc. Also, there are numerous

Firsly, regarding the theoretical aspects:

postings on various websites, etc.

- Analysing and assessing of development trends of

Overall, the studies in Vietnam, either focus mainly on
analyzing anti-dumping issue or anti-dumping law in general;
or focus on the general dispute settlement mechanism of the
WTO, taking into consideration cases of other developing

international law applicable to anti-dumping dispute settlement
within the WTO framework;
- Clarifying the WTO’s current conception of antidumping disputes;

assessed

- Clarifying the content and distinctive characteristics of

comprehensively anti-dumping disputes; concepts, content and

international law applicable to anti-dumping dispute settlement

development trends of international law applicable to anti-

within the WTO framework;

countries

and

Vietnam.

They

have

yet

dumping dispute settlement within the WTO framework;

- Clarifying the interactive relationship between anti-

attitudes of different groups of countries towards anti-dumping

dumping dispute settlement under the WTO law and under the

disputes; the interactive relationship between anti-dumping

national law of a Member country;

dispute settlement under the WTO law and under the national
law of a Member country; concepts, nature and characteristics

- Clarifying the concept and characteristics of the four
types of anti-dumping dispute issues referred to the DSB.

of the four specific types of disputes that can be resolved at the

Secondly, regarding the practical aspects:

DSB; updated on the practices of anti-dumping dispute

- Analysing and evaluating comprehensively the practices

settlement at the WTO, the participation of developing

of anti-dumping dispute settlement at the WTO;


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- Clarifying how developing countries are participating in
anti-dumping dispute settlement at the WTO in reality;
- Specifically studying the participation of India, China
and Thailand;

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Anti-dumping means that the competent authorities of the
importing country impose appropriate measures that directly
impact imported dumping products in order to remove the harm
that such products cause for the domestic industry producing

- Studying the participation of Vietnam.
Thirdly, making proposals and suggesting solutions:

like products.

According to the national law of a Member on anti-

- Clarifying the basic views and directions to improve the

dumping, there are two different types of disputes related to

effectiveness of Vietnam's participation in anti-dumping dispute

anti-dumping: (1) "dumping disputes" are disputes between

settlement at the WTO;

businesses exporting dumping products and domestic producers

- Suggesting new feasible solutions that can help improve

of the importing country producing products that are similar to

the effectiveness of participation of Vietnam in the WTO anti-

the imported dumping products; and (2) "anti-dumping

dumping dispute settlement.

disputes" are disputes between private businesses (foreign
exporters) with the government (the importing country that

CHAPTER 2
THEORETICAL ISSUES OF ANTI-DUMPING

imposes anti-dumping measures) on the application of antidumping measures.

DISPUTES AND OF INTERNATIONAL LAW

Within the WTO framework, an anti-dumping dispute is

APPLICABLE TO ANTI-DUMPING DISPUTE

a disagreement among WTO Members on issues relating to the

SETTLEMENT AT THE WTO

legal rights and obligations in the field of anti-dumping under

2.1. The history of formation and development and the
application of international law appicable to anti-dumping

the WTO agreements.
Anti-dumping disputes that are resolved at the WTO have

dispute settlement at the WTO

the following basic characteristics: (i) Being secondary

2.1.1. The period before 1947

disputes; (ii) Being disputes among WTO members; (iii) Being

2.1.2. The period from 1947 to 1995

limited in scope to four disputing issues related to either

2.1.3. The period from 1995 to date

definitive anti-dumping duties, the acceptance of a price

2.2. The WTO’s current conception of anti-dumping, anti-

undertaking, provisional measures, or the inconsistency of the

dumping disputes and international law applicable to anti-

national law of a Member country with the ADA; (iv) the legal

dumping dispute settlement

basis for anti-dumping dispute settlement, both substantive and

2.2.1. The WTO’s current conception of anti-dumping and

procedural, will comply with the international law applicable to

anti-dumping dispute

anti-dumping dispute settlement at the WTO.


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"Anti-dumping dispute" under WTO law has some

2.3.3. The interactive relationship between anti-dumping

fundamental distinctive features comparing with "dumping

dispute settlement under the WTO law and under the national

disputes" and "anti-dumping disputes" under the national law of

law of a Member country
In theory as well as in practice, the anti-dumping dispute

a Member country, as well as comparing with "anti-subsidy
disputes” and "safeguard disputes ".

settlement under the WTO law is the subsequent process of

2.2.2. The WTO’s current conception of international law

anti-dumping dispute settlement between businesses under the

applicable to anti-dumping dispute settlement

national law of a Member country, which subsequently

The

WTO

anti-dumping

dispute

settlement,

becomes a dispute between governments. This leads to overlaps

substantively, will be based primarily on WTO rules, in

and close link between the two types of dispute settlement.

particular Article VI of GATT 1994 and the ADA, along with

However, despite the existence of such a relationship, there are

other sources such as international practices; general principles

still fundamental differences between them.

of law; WTO practices and reports of Panels and the Appelate

2.4. The content of specific issues regarding international

Body on dispute settlement; practices of GATT 1947 and

law applicable to anti-dumping dispute settlement at the

Panel's reports; documents issued by the WTO bodies; other

WTO

international agreements; doctrines suggested by reputed

2.4.1. The scope of dispute referred to the DSB

scholars. Meanwhile, regarding the proceedings, dispute

Anti-dumping disputes referred to the DSB are limited to

settlement will comply with the DSU, and additionally, special

four types: disputes over definitive anti-dumping duties, the

rules and procedures stipulated in Article 17.4 to 17.7 of the

acceptance of a price undertaking, provisional measures, and

ADA as well as other relevant procedural provisions of the

the inconsistency of the national law of a Member with the

WTO.

ADA. The above mentioned disputes must be identified clearly

2.3. The content of general issues regarding international

in complainant’s request for establishment of a panel under

law applicable to anti-dumping dispute settlement at the

Article 17.4 of the ADA and Article 6.2 of the DSU.

WTO

2.4.2. The content of some other specific issues regarding

2.3.1. The DSM of the WTO –Fundamental applicable law for

anti-dumping dispute settlement at the WTO

anti-dumping dispute settlement at the WTO
2.3.2. Special and differential treatment in the DSM of the
WTO for developing countries

CHAPTER 3
THE WTO’S PRACTICES OF ANTI-DUMPING
DISPUTE SETTLEMENT AND THE PARTICIPATION
OF DEVELOPING COUNTRIES AND VIETNAM


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3.1. The WTO’s practices of anti-dumping dispute

3.2.3. Practices of Thailand’s participation in the WTO anti-

settlement

dumping dispute settlement
Thailand officially became a member of the WTO from

3.1.1. The WTO’s practices of anti-dumping dispute
settlement in general
Practices of anti-dumping dispute settlement shows that
anti-dumping dispute is the most common type of disputes

01/01/1995. In DSM under GATT, Thailand did not have much
experience. Only in the WTO, Thailand increasingly utilizes the
WTO’s DSM to protect its interests.

resolved within the WTO framework. While some developing

From the practices of participation of India, China and

Members participate very actively in resolving international

Thailand in the WTO anti-dumping dispute settlement, it shows

trade disputes as well as anti-dumping ones, many other

that:

developing Member do not participate or only participate very

- Participating as a third party is a clear demonstration of

limitedly.

the capacity building strategy and of the policy "learning by

3.1.2. Practices of anti-dumping dispute settlement in

doing";

different stages of DSM proceedings

- Being confident and well-prepared when participating

3.2. Practices of participation of some developing countries

in resolution of complex anti-dumping disputes is essential for

in anti-dumping dispute settlement at the WTO and

victory;

noteworthy lessons

- Forming linkages and support among developing

3.2.1. Practices of India’s participation in the WTO anti-

countries, while taking advantage of the support of other

dumping dispute settlement

countries will increase the leverage in the WTO anti-dumping

India is a founding member of both the GATT and the

dispute settlement;

WTO, therefore, while most developing countries take a rather

- Utilizing effectively a team of international experts in

reserved approach to the WTO’s DSM, India has participated

fields related to the anti-dumping disputes. However, in the

very actively in DSM under both GATT and the WTO.

long run, it is necessary to develop a team of national experts in

3.2.2. Practices of China's participation in the WTO anti-

order to maximize the advantages as well as protect nation’s

dumping dispute settlement

confidentiality while participating in the WTO anti-dumping

After officially joining the WTO, with a most rapidly

dispute settlement;

developing economy in the world, China quickly becomes a

- Increasing the capacity of the government’s and private

"main player" in the WTO’s "playing field". China also quickly

sector’s experts to participate general international trade

becomes a frequent participation in WTO anti-dumping cases

disputes, and anti-dumping disputes in particular; training and

both as plaintiff and defendant.

appointing qualified individuals to the relevant bodies in the


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WTO’s DSM; increasing the capacity and participation of trade

- Vietnam has also been developing domestic human

associations and chambers of commerce in resolving WTO

resources for future disputes although it still relies heavily on

disputes, including anti-dumping disputes.

foreign lawyers.

3.3. Practices of Vietnam’s participation in the WTO antidumping dispute settlement

CHAPTER 4

By the end of 12/2013, Vietnam has participated in nine

DIRECTION AND SOLUTIONS FOR IMPROVING THE

anti-dumping cases at the WTO, of which in seven cases

EFFECTIVENESS OF VIETNAM'S PARTICIPATION IN

Vietnam participated as a third party, in the two cases as a

ANTI-DUMPING DISPUTE SETTLEMENT AT THE

plaintiff and not yet involved in any disputes as a defendant.

WTO

From the practices of Vietnam's participation in the WTO

4.1. Fundamental views and direction for improving the

anti-dumping dispute settlement, following remarks can be

effectiveness of Vietnam's participation in the WTO anti-

drawn:

dumping dispute settlement

- Vietnam has participated gradually, proactively,

The solutions to improve the effectiveness of Vietnam's

positive in the WTO’s DSM. However, Vietnam has not yet

participation in the WTO anti-dumping dispute settlement are

fully taken advantage of WTO privileges for developing

proposed consistently with the views and guidelines of the

countries;

Party and the State on proactive participation in international

- Vietnam has rightly identified the scope and issues to

economic integration, and in resolving international disputes

sue on. However, timing selection was not effective in some

and also with specific conditions of Vietnam

situations, which was one of the reasons for Vietnam’s

4.2. Solutions and specific suggestions for improving the

incomplete victory in case DS404;

effectiveness of Vietnam's participation in the WTO anti-

- Vietnam has actively participated as a third party in
other WTO members’ cases to gain valuable experience;
- Vietnam has succeeded in seeking and taking advantage
of other members’ support;
- Vietnam has made active preparation, efforts came from

dumping dispute settlement
4.2.1. General solutions for improving the effectiveness of
Vietnam's participation in the WTO anti-dumping dispute
settlement
General solutions mainly focus on three important

both the private sectors, trade associations and from state

groups, include: taking

advantages of preferences

for

agencies in a number of recent disputes;

developing Member within the WTO; building and improving
the capacity on participation of dispute settlement; taking
advantages of other Members’s and the ACWL’s support.


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General solutions are ones that can be applied as Vietnam

development with the GATT 1947 and the WTO. It includes

participates in the DSM/WTO regardless of its role as a

both law on general WTO dispute settlement and specifically

plaintiff, defendant or third party, in which, besides improving

tailored provisions for anti-dumping disputes over definitive

the effectiveness of currentlyimplemented measures, it is

anti-dumping duties, the the acceptance of a price undertaking,

important to increase the effectiveness of coordination

provisional measures and the inconsistency of the national law

mechanism between domestic ministries and agencies with the

of a Member country with the ADA.

Vietnam’s delegation in Geneva in resolving international trade

Developing Members have been establishing their role

disputes in general and the WTO anti-dumping disputes in

and position in the WTO anti-dumping dispute settlement.

particular.

When they participate in the settlement process of the WTO

4.2.2. Some specific suggestions to Vietnam when participate

anti-dumping disputes, developing Members have many

in the WTO anti-dumping dispute settlement as a plaintiff,

opportunities but also face great challenges. Anti-dumping

defendant or third party

disputes

are

inherently

extremely

complex,

therefore,

In addition to the general solutions, Vietnam also needs

developing Member should study thoroughly the WTO’s

to develop specific solutions and strategies when participating

applicable law and practices as well as learn from the other

in WTO anti-dumping disputes settlement at the WTO as a

Members’ experience to develop an effective approach and to

plaintiff, defendant or third party.

participate proactively in the WTO anti-dumping dispute
settlement system.
Practices of the WTO anti-dumping dispute settlement

CONCLUSION

show an increase in both the quantity and the complexity of the

Anti-dumping dispute is one of the most common types

disputes. Additionally, it also shows the active participation

of disputes at the WTO. The settlement of such disputes must

some developing countries, namely India, China and Thailand.

comply with WTO applicable law, including both substantive

The experience of three countries is valuable for Vietnam when

and procedural rules. Sources of law applicable to the WTO

participating in the WTO anti-dumping dispute settlement.

anti-dumping dispute settlement correspond to the sources of

After more than seven years of joining the WTO,

the WTO law, which is basically based on traditional principles

Vietnam's participation in the DSM of the WTO is still limited.

set forth in Article 38 (1) of the Statue of the International

Obviously, Vietnam needs to put more effort, and actively learn

Court of Justice.

from the experience of other Members to set out feasible

International law applicable to anti-dumping dispute
settlement at the WTO has a parallel history of formation and

solutions to improve the effectiveness of its participation in the
WTO anti-dumping dispute settlement.


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Solutions to improve the effectiveness of Vietnam’s

- Participating more actively in the DSM of the WTO as

participation in the WTO anti-dumping dispute settlement must

well as take advantages of the WTO’s preferences for

be built consistently with the views and guidelines of the

developing countries;

Political Party and the State which encourage proactive

- Preparing by obtaining knowledge relevant to the WTO

participation in international economic integration, and in

anti-dumping dispute settlement, proactively learn from the

resolving international disputes, and also consistently with

experiences of other countries;

basic orientations as follow:
- Being based on results of objective and comprehensive
assessment and predictive studies of trends and development of
anti-dumping dispute settlement within the WTO framework;

- Encouraging the active role of enterprises and promote
collaboration between enterprises, associations and competent
state agencies;
- Establishing an effective mechanism of cooperation

- Responding to specific conditions of Vietnam;

between domestic agencies and the Vietnam’s delegation in

- Being comprehensive and systematic, including both

Geneva;

preventive and corrective solutions to deal with anti-dumping

- Establishing a training strategy to develop the

disputes once they arise settlement within the WTO framework,

workforce, allowing Vietnam nationals experts to participate

placing the focus on preventing such disputes from arising;

more comprehensively in WTO bodies as well as in panels and

- Being built on the foundation of an effective

the AB;

cooperation mechanism between the State, enterprises and

- Enlisting other members’ support;

business associations; between domestic agencies and the

- Utilizing more effectively the consultancy and

Vietnam’s delegation in Geneva;

assistance from the ACWL.

- Combining legal measures with other supportive

When participating in a WTO anti-dumping case as a

measures such as lobbying or forming alliance with same sided

plaintiff, Vietnam should adopt some specific solutions as the

parties, while at the same time taking induce the public to

following:

support Vietnam’s position;
- Combining utilizing internal human resources with
enlisting external supports, including the consultancy and
assistance of the ACWL.

- Identifying the scope and timing of petition and chose
the right issues;
- Paying attention to and utilizing consultation more
effectively;

When involved in a WTO anti-dumping case, either as a

- Preparing proactively and focus on the panel stage, from

plaintiff, defendant or third party, Vietnam should adopt the

preparing the request for the establishment of a panel to the

following solutions:

entire proceedings at the panel stage;


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- Preparing in advance for appealing the case as

- Taking advantage of defendant’s rights in resolving

necessary, as well as for the posibility that the case will be

dispute at the WTO; extending the deadlinesas far as allowed if

appealed, to pursue the lawsuit until last win;

necessary, while at the same time negotiating with or pressuring

- Proactively coming up with a scheme to oversee the
implementation the DSB's decisions by the losing party,
including the posibility of imposing retaliatory measures if
Vietnam is in the wining side;
- Actively preparing both the finance and human

the opponent or rapidly

completing

the anti-dumping

investigation being conducted at home;
- Preparing a plan for implementation of the DSB’s
decisions in a reasonable manner in the situation of Vietnam
loses the case.

resources for a long way pursuing a case; being active in

If Vietnam participates as a third party in a WTO anti-

presentation and debate at the meeting of the Panel; analysing

dumping dispute: it should engage with a serious and proactive

and identifying the situation and anticipate possible requests

attitude, considering it a real experience as the disputing parties,

and proposals of defendants to be able to respond effectively,

not just a game with no string attached. Vietnam should

thus maximizing Vietnam’s legitimate interests.

establish groups of experts and/or lawyers, including lawyers of

If Vietnam participates as a defendant in a WTO anti-

private law firms, to represent Vietnam and building strategy

dumping case, Vietnam should adopt some specific solutions as

plans to participate effectively. In addition, Vietnam should

the following:

establish an effective reporting mechanism, update information

(1) To prevent being sued:

of other partners, collect lessons and experiences after each

- Regularly conducting periodical and spontaneous

anti-dumping dispute in which Vietnam participates as a third

review of the implementation of the ADA and Vietnam’s antidumping legislation to ensure the conformity of Vietnamese
law with the ADA;
- Actively participating in the improving the WTO’s law
and DSM, including issues related to anti-dumping dispute
settlement;
- Confidently imposing anti-dumping measures on
imported dumping products.
(2) If being taken to the DSB:
- Willingly participating in the proceedings;

party ./.