Các biện pháp phòng vệ thương mại theo Hiệp định thương mại tự do (2)

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VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

NGUYEN THU HUONG

TRADE REMEDIES UNDER FREE TRADE AGREMENTS

Mayor: Economic Law
Major code: 62 38 01 07

SUMMARY OF PHD THESIS ON LAW

HA NOI, 2017

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The work is completed in:
VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

Supervisor: 1. LÊ MAI THANH (PhD)
2. PHẠM THỊ THÚY NGA (PhD)

Reviewer No.1: PHD. Dr. NGUYEN THI MO
Reviewer No.2: Dr. PHAM SY CHUNG
Reviewer No.3: Dr. DINH THI MY LOAN

The thesis is put before Academy level Thesis Assessment

Council

meeting at: Vietnam Graduate academy of social

sciences

No. 477 Nguyen Trai road, Thanh Xuan District, Hanoi City

At…Date…….. Month…… 2017

This thesis can be found at:
National Library
Library of Institute of Social Sciences

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Introduction
1. Necessity of the thesis
Free Trade Agreements (FTAs) have been becoming
increasingly popular given their economic benefits, particularly in the
context of limitations of global cooperation. Nations have switched to
bilateral cooperation and regional association in order to seek solutions
for trade development of goods and services within FTAs.
Vietnam is no exception to such trend. International economic
integration of Vietnam has been more in-depth, particularly with regard
to negotiations and signing of FTAs with numerous major trade partners.
Up to date, Vietnam is a member to 10 FTAs in effect, and negotiating a
number of FTAs.

Objective of free trade is not only to eliminate trade barriers,
tariffs, but also to protect fair competition, get rid of inappropriate tradesupporting policies of state members, protect market-oriented
development among countries. One of legal tools to such objectives is
trade remedies. Trade remedies are important and applied quite widely to
protect domestic manufacturing industries, as well as guard against
unfair competition from other countries.
Currently, Vietnam has built laws on trade remedies through
decrees on antidumping, subsidy and countervailing measures, and
safeguards. Such decrees have detailed legal grounds, applicable
methods of trade remedies within WTO framework.
However, as a member of FTAs, other than WTO standards,
there are new regulations on trade remedies that Vietnam is bound to
follow if resort to the application of such. In order to comply with
international commitments as well as to promote the practical efficiency
in the application of trade remedies, Vietnam needs to perfect its policies
and laws, implementation mechanisms, heighten awareness and
consciousness, as well as enhance capability to employ such legal tools.
In reality, in the past 10 years, Vietnam was faced with hundreds of

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cases relating to trade remedies applied in foreign markets. On the other
hand, the number of cases of investigation and application of trade
remedies remains sparse, and these legal tools are not employed to
protect domestic market and manufacturing industries.
Hence, there is a need to analyze the particularity of trade
remedies according to FTAs commitments. Thereby, orientation for

perfecting Vietnamese laws on trade remedies can be projected to ensure
compliance with FTAs and international standards. This will ensure
legal certainty, as well as enhance capability to apply trade remedies
with the purpose to protect domestic market and manufacturing
industries, guard against unfair competition from other countries. As a
result, study on “Trade remedies within Free Trade Agreements” shall
meet aforementioned demands.
2. Research objectives and tasks
2.1. Research objectives
Along with commitments on free liberalization, Free Trade
Agreements (FTAs) recognize rights of member states in the application
of trade remedies. To enforce their rights, member states shall abide by
their commitments on trade remedies in FTAs. Currently, Vietnamese
law on trade remedies and practical application thereof have not
demonstrated the rights of member states to FTAs, including Vietnam.
Given agreements on trade remedies under FTAs to which Vietnam has
been/will be a party, the Thesis proposes recommendations on laws, as
well as enhances capability and mechanisms to enforce laws on trade
remedies in Vietnam.
2.2. Trade tasks
To achieve aforementioned objectives, research tasks have been
set out:
To elucidate theoretical issues on trade remedies, such as:
concepts, particularities, role, and legal nature of trade remedies in
FTAs.

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Explain mechanisms to ensure the application of trade remedies
in compliance with FTAs commitments.
Analyze and assess the situation and practice of laws and its
application regarding trade remedies in Vietnam.
On the basis such assessments, the thesis makes proposals and
recommendations to perfect laws on trade remedies of Vietnam in order
to strengthen capability, enhance effectiveness of the application, and yet
still ensure the compliance with FTAs regulations on trade remedies.
3. Research objects and scope
3.1. Research objects
Research objects include: trade remedies within WTO and
FTAs to which Vietnam is a member.
3.2. Research scope
The thesis pays attention to laws on trade remedies, including 3
measures: antidumping (AD), anti-subsidy (AS), and safeguards (SG)
under FTAs to which Vietnam has been and will be a party. Studying
laws of other countries as well as model laws brings about referencing,
comparative implications with the purpose to draw out appropriate
experience compatible with Vietnam’s eco-social conditions.
Vietnamese businesses have been slapped trade remedies in
several FTAs countries, yet the thesis outlines its research scope only
within the application of trade remedies in Vietnam. The hypotheses and
practical application in other countries offer certain implications only.
The time frame of the research is since Vietnam enacted
decrees: Decree No. 42/2002/PL-UBTVQH10 of 25th May 2002 on
safeguards against foreign goods imported into Vietnam (SG decree);
Decree No. 20/2004/PL-UBTVQH of 29th April 2004 on antidumping
against goods imported into Vietnam (AD decree); Decree No.
22/2004/PL-UBTVQH11 of 20th August 2004 on anti-subsidy against

goods imported into Vietnam (AS Decree) by the Standing Committee
of the Congress (in other words, before Vietnam had become a member
to WTO) till now.

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4. Methodology and research methods
To elucidate research issues, the author employs methodology
in conventional scientific research. Particularly:
Meta-analysis is used to explain an hypothesis given research
presumption, assess the situation as a ground to perfect laws on trade
remedies in Vietnam to ensure objectivity and truthfulness. This method
will be used throughout the thesis.
Historical method is used to identify issues relating to the
formation and development of trade remedies in FTAs given Vietnam’s
commitments. This method is used mainly in Part 2.
Systemization method is used to systemize issues have been
studied relating to the topic of the thesis to identify sidelining issues in
need of elucidation. This method is used mainly in Part 1, 2, and 3.
Statistics is used to assess the situation and practice of the law
in the application of trade remedies in Vietnam, to form the basis to
analyze and provide findings and recommendations. This method is used
mainly in Part 3.
Legal comparative method is used to assess the compatibility of
the law on trade remedies in Vietnam with FTAs. This method entails
countries’ experience in the use of trade remedies to draw out
implications for Vietnam. This method is used mainly in Part 3 and

partly of Part 4.
Given research objects in each Chapter and section in the thesis,
the author will employ and focus on different research methods properly.
Hence, throughout the thesis, methods to be used intertwine, and multiand inter-disciplinary approaches offer analysis and assessment of all
issues set out within the scope of the thesis.
5. New points of the thesis
Firstly, the thesis has elucidated theoretical issues relating to
trade remedies under FTAs.
Secondly, it has analyzed and assessed outcomes of domestic
incorporation of regulations on trade remedies under FTAs, and practice

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of Vietnam’s application of trade remedies previously; pointed out
shortcomings in the law and limited capability of mechanisms in the
application of such remedies in Vietnam.
Thirdly, on the basis of analysis and assessment, it has made
specific proposals in order to perfect Vietnamese law to ensure the
compatibility with FTAs regulations on trade remedies, sidestep
potential risks, as well as enhance capability to apply laws on trade
remedies to protect domestic market in the context of that Vietnam has
been/ will be a member to FTAs.
6. Theoretical and practical significance of the thesis
Results of the research contribute greatly to the strengthening of
theory on trade remedies in general and trade remedies under FTAs
specifically.
The findings in the thesis can be devoted to the research for

supplementing and perfecting laws on trade remedies in the context of
that Vietnam is a member to FTAs.
The findings of the thesis can be used as reference for research,
teaching and studying, as well as practical application of the law on
trade remedies in Viet Nam.
7. Structure of the Thesis
Apart from the introduction and conclusion, bibliography, the
structure of the Thesis consists of 4 parts
Part 1: Overview of research situation and theoretical
grounds for the research
Part 2: Theoretical issues relating to trade remedies under
FTAs
Part 3: The situation of the application of trade remedies in
Vietnam
Part 4: Orientation and measures to perfect the law in order
to enhance Vietnam’s capability of application of trade remedies.

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PART 1
OVERVIEW OF RESEARCH SITUATION AND
THEORETICAL GROUNDS FOR THE RESEARCH
1.1. Overview of research situation of issues relating to the
topic of the Thesis
1.1.1. Research works on trade remedies
- Content of trade remedies under FTAs
- Concept and characterization of trade remedies

- Mechanisms for the implementation of law on trade remedies
in several countries in the world
- The situation of implementation of law on trade remedies in
several countries in the world, including Vietnam
1.1.2. Research works on antidumping measure
- AD measures under FTAs
- Assessment of the situation of Vietnam’s application of AD
measures
1.1.3. Materials on anti-subsidy measures
- AS measures under FTAs
- Assessment of the situation of Vietnam’s application of AS
measures
1.1.4. Materials on safeguards measures
- SG measures under FTAs
- Assessment of the situation of Vietnam’s application of SG
measures.
1.2. Assessment of research situation relating to the topic of
the Thesis
1.2.1. Research outcomes succeeded and developed
Theoretically, the research works have mentioned and analyzed
some theoretical issues relating to trade remedies under WTO.
Regarding the domestic incorporation of regulations on trade
remedies and the situation of the use of such tools by a number of

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countries, including Vietnam, the research works have assessed the

situation of domestic incorporation and practical application of law on
trade remedies under WTO by Vietnam, as well as other developed and
developing countries to draw out experience for Vietnam.
Regarding solutions, the published works have consolidated
orientations and measures to perfect Vietnam’s law on trade remedies, as
well as enhance Vietnam’s capability of applicability of trade remedies.
1.2.2. Issues in need of further research
Firstly, the Thesis analyzes and systemizes theoretical issues on
trade remedies under FTAs with a focus on giving characterization of
trade remedies under FTAs in comparison with WTO.
Secondly, it explains the need to protect markets of member
states to FTAs in the context of increasing free trade and risks of unfair
competition prompting the need of the application of trade remedies.
Thirdly, it analyzes mechanisms to ensure the application of
Vietnamese law regarding trade remedies.
Fourthly, it assesses comprehensively the situation of Vietnam’s
application of trade remedies in two respects: the situation of domestic
incorporation and practical application of law on trade remedies.
Fifthly, it offers orientation and measures to perfect law on trade
remedies in accordance with international law and FTAs to which
Vietnam has been and will be a party with the purpose to enhance
Vietnam’s capability of the application of trade remedies.
1.3. Theoretical grounds
a. Research questions
b. Research hypothesis
The first research hypothesis: there is a need to explain the
nature of trade remedies, thereby to show, albeit free trade oriented, that
FTAs give way to state members to apply trade remedies is requisite.
The second research hypothesis: trade remedies under FTAs
possess particularities from trade remedies under WTO, therefore put

forth requirements for further research on the comparative basis.

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The third research hypothesis: the application of trade remedies
under FTAs makes concurrently positive and negative impacts on
Vietnam’s economy in general and businesses in particular. Therefore,
there is a need to explain such impacts to identify whether the
requirement for the application of trade remedies in Vietnam.
The fourth research hypothesis: Vietnamese legal system
regarding trade remedies remains shortcomings and incompatible with
commitments on trade remedies under FTAs. Thus, it sets out the need
to research and assess: the situation of domestic incorporation, practical
application of trade remedies in Vietnam to explain why measures must
be sorted out to perfect law on trade remedies to enforce the right to
apply trade remedies under FTAs.
The fifth research hypothesis: mechanisms to ensure the
application of law on trade remedies to meet the requirements of FTAs,
moreover, awareness and consciousness of authorities in this respect are
short and limited, resulting in the inefficient and risky application of
trade remedies under WTO in general and under FTAs in particular. On
such basis, there is need to perfect law and collaborating mechanism
among related bodies in order to enhance capability of the mechanisms
in applying trade remedies in Vietnam.
c. Research theory
Research theory of inter-disciplinary social sciences, law, and
specialized law.

Conclusion of Part 1
The overview of research situation has shown that numerous
pieces of works both domestically and abroad on trade remedies have
surfaced quite early.
By assessing materials, it can be asserted that: contents that the
Thesis can succeed and develop are mainly general theory on trade
remedies. Therefore, there are a number of issues in need of elucidation,
such as:

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(1) The nature of trade remedies?
(2) Particularities of trade remedies under FTAs in comparison
with WTO?
(3) Impacts of the application of trade remedies under FTAs on
Vietnam?
(4) The situation and practical application of law on trade
remedies in Vietnam?
(5) Measures and recommendations to perfect law on trade
remedies under FTAs, and to enhance capability of effective application
of this tool in Vietnam currently?
It offers proposals and measures to perfect law on trade
remedies, and ensure the implementation in accordance with
international law and FTAs to which Vietnam has been/ will be a
member with purpose to enhance capability of effective use of trade
remedies in practice with objective for Vietnam’s economic/trade
development.

These are points left-out that the Thesis will pay attention to
study, explain, and clarify in theoretical and practical respects.
PART 2
THEORETICAL ISSUES ON TRADE REMEDIES
UNDER FTAS
2.1. Free Trade Agreements and agreements on trade
remedies
2.1.1. Concept, objectives and impacts of FTAs
2.1.2. Agreements on trade remedies under FTAs
2.2. Concept, characterization, role and impacts of trade
remedies
2.2.1. Concept of trade remedies

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Trade remedies under FTAs are measures which member states
are allowed to apply against unfair competition or in the context of
protecting domestic market.
2.2.2. Characterization of trade remedies
i. General characterization
Firstly, the application of trade remedies is a right, not an
obligation of a member state to FTA. Yet in case resorting to such
measures, states are required to abide by FTAs regulations on trade
remedies.
Secondly, trade remedies aims to recover damage or temporarily
limit competition for a period of time to support domestic manufacturing
industries healthy enough to compete fairly.

Thirdly, the use of trade remedies stems from the need of
domestic businesses, however, the investigation, application of trade
remedies are carried out by administrative authorities of the importing
states.
ii. Particularities
Antidumping and anti-subsidy measures
Basically, agreements on trade remedies under FTAs have
referred to WTO principles on trade remedies. However, FTAs have
been supplemented several new agreements on cooperation; recognition
of best practices on transparency, investigation process and application
of trade remedies.
Safeguard measures
Agreements on trade remedies under FTAs particularly pay
attention to the procedure to apply SG measures. Accordingly, FTAs
allow member states to maintain 2 categories of SG measures: (1) global
SG measures (under WTO); (2) bilateral SG measures (under FTAs
commitments or so-called SG measures at the time of transition, besides
specific agreements: (i) special SG measures on textile, (ii) temporary
SG measures on financial services (TPP Agreement), (iii) special SG
measures in agricultural sector. Specifically, this includes:

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Global SG measures: allow FTAs members to use global SG
measures, but exclude from applying against goods from FTAs partners.
Bilateral SG
FTAs allow a member state to conduct investigation, application

of SG measures against goods from one or many countries during the
period of transition, however, applying state shall compensate equivalent
free trade for the applied state. In case of disagreement in compensation,
applied state can withhold such equivalent compromises.
Special SG measures
A number of FTAs have agreements on special SG measures for
major manufacturing industries of member states. Because FTAs create
free market, damage of industries can pose a more significant risk than
participating in WTO. Therefore, the need to protect such industries is
requisite and important. In case of application of special SG measures,
importing country shall compensate for economic damage of the
exporting country. Specially, TPP allows the application of special SG
measures on textile.
A new supplementary is striking in the sense that previously
SG measures were applicable against goods, yet TPP has made a
provision for the applicability of such upon services if governments can
control capital flow to limit the cash transfer relating to investment at
time of crisis or at risk of crisis.
iii. Comparison of characterization of trade remedies under
FTAs
Trade remedies under FTAs are measures to protect domestic markets
concluded by FTAs members for use. Trade remedies possess
particularities in nature, objectives; requirements for, and scope of
application; length and consequences of each measure.
2.2.3. Role and impacts of trade remedies
Trade remedies have a significant role in creating a fair and
healthy international environment for competition. Trade remedies are
measures to ensure fair trade used as an effective tool to maintain fair

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competition in the climate of trade liberalization. Trade remedies are
legal tools concluded by FTAs members on the basis of WTO
agreements in order to protect domestic market. Trade remedies hold a
role in compensating for damage caused to domestic industries by unfair
competition or trade liberalization.
However, the abuse of such measures by countries may fail to
ensure the objectives of the application of trade remedies and trade
liberalization resulting in negative consequences.
2.3. Legal grounds for the application of trade remedies
2.3.1. Legal grounds for the application of antidumping
measures
To avoid abusing, FTAs members enforcing the right to apply
trade remedies shall follow rules and procedures in accordance with
Antidumping Agreements (ADA).
2.3.2. Legal grounds for the application of anti-subsidy
measures
Similarly to the AD measures, FTAs members enforcing the
right to apply anti-subsidy measures shall follow regulations in the
Agreement on Subsidy and Countervailing measures.
2.3.3. Legal grounds for the application of Safeguards
Having analyzed above, FTAs members are allowed to use global
safeguards (under WTO) and bilateral safeguards (under FTAs).
Hence, global SG must follow the Agreement on Safeguards,
meanwhile bilateral SG must be in line with FTAs.
2.4. Mechanisms for the application of Vietnam’s law on
trade remedies

2.4.1. Concept and characterization of mechanisms for the
application of law on trade remedies
Mechanisms to apply the law on trade remedies are all
institutions interact with each other, forming a system to ensure the
application thereof. Institutions to apply the law on trade remedies are
known as bodies, organs, and individuals related to the process.

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2.4.2. Criteria to assess effectiveness of mechanisms for the
application of law on trade remedies
Mechanisms to implement law on trade remedies have an
important role in ensuring effectiveness in trade remedies application.
- Capability to identify time point and length of the application
of trade remedies.
- Capability to identify object imposed trade remedies.
- Capability to identify scope of the application.
- Capability to monitor and change appropriate measure.
- Capability to face lawsuit in case of wrongful application.
2.4.3. Several models of mechanisms for the application of law
on trade remedies
Conclusion of Part 2
Trade remedies are one of tools for the maintenance of orderly
fair trade, reasonable for FTAs members. Such tool is recognized under
WTO and FTAs. Therefore, FTAs members have enacted law on trade
remedies on this common ground. However, the application of trade
remedies is a right, not obligation of FTAs members. In order to enforce

this right, state obligation is to ensure the compliance with trade
remedies corresponding to this right on the common criteria.
During
trade
liberalization
process
under
regional/bilateral/multilateral FTAs, countries conduct negotiations on
trade remedies under WTO++. Comparing with WTO, agreements on
trade remedies under FTAs (mainly new generation FTAs) possess new
points (mainly on SG measures). Accordingly, apart from global SG
measure under WTO, FTAs members are allowed to resort to: bilateral
SG measure; special SG measure in agricultural sector (TPP does not
permit the application of this measure against agricultural products with
origin from TPP countries); special SG measure on textile, agricultural
products; temporary SG measure relating to financial services (TPP).
Beside, stringent regulations on rules and procedures, conditions for the
application of trade remedies under FTAs play a role in promoting

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transparency in the application of trade remedies as well as limit the
abuse of such measures.
PART 3
SITUATION OF THE APPLICATION OF TRADE REMEDIES
IN VIETNAM
3.1. Situation of the application of antidumping measure

3.1.1. Situation of domestic incorporation of regulations on
antidumping measure
a. Identify antidumping conduct
b. Investigation procedures
c. Application of antidumping measure
In general, Vietnamese law on AD measure remains limited, such as: a
number of regulations are not detailed as in ADA.
3.1.2. Enforcing the right to apply antidumping measure in
Vietnam
According to VCA’s statistics, up to date Vietnam has carried
out 03 investigation cases of antidumping: (1) cool-rolled stainless steel;
(2) galvanized steel; (3) H-shaped steel, imported into Vietnam with
origin of China (including Hong Kong). Antidumping measure has been
imposed on cool-rolled stainless steel with origin of Malaysia,
Indonesia, China and Taiwan. The other two cases are under
investigation. Thus, this is the very first time Vietnam resorted to
antidumping measure.
However, during investigation stage, the application of AD
measure has shown bottlenecks, limitations, shortcomings in respect of
the law and practical issues, such as: Firstly, legal limitations; Secondly,
limitations of businesses.
3.2. Situation of Vietnam’s application of anti-subsidy
3.2.1. Situation of domestic incorporation of anti-subsidy
measure

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a. Identify subsidy conduct
b. Investigation procedures
c. Regulations on the application of anti-subsidy measure
Generally, Vietnamese law on AS measure is not at odds with
WTO/FTAs, yet still in need of amendment and supplementary in detail.
3.2.2. Enforcing the right to apply anti-subsidy measure in
Vietnam
Up to now, there have never been any investigation cases on
goods subsidy imported into Vietnam nor any AS measure applied, even
though there exist subsidized-likely goods imported into Vietnam
according to fieldwork survey by VCCI.
3.3. Situation of the application of safeguards in Vietnam
3.3.1. Situation of domestic incorporation of safeguards
FTAs give way to the application of global SG measure (under
WTO), bilateral SG measure, and special SG measures in several
sectors, such as textile, agriculture and wood stock (under FTAs).
Therefore, the situation of the incorporation of law on SG will be studied
and assessed under criteria: (i) global SG measure (compare with SA);
(ii) bilateral SG measure compare with FTAs; (iii) special SG measure
compare with FTAs. Specifically, Vietnamese law on SG measure
include 4 major groups:
a. Regulations on investigation procedures
b. Regulations on the application of SG measure
c. Regulations on compensation and concession
The decree on SG measure only provides general regulations on
compensation in case of SG measure applied upon foreign goods causing
difficulties for competent authorities.
Beside, there is an important point not specifically addressed in
the decree, that is regulation on countervailing measure of Vietnam in
case another country has applied SG measure on Vietnam but failed to

make compensation.

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FTAs supplement more stringent regulations on bilateral SG
measure, special SG measure in respect of rules and procedures for
investigation, as well as condition and length of the application.
Meanwhile, Vietnamese law has not provided regulations on these SG
measures.
3.3.2. Enforcing the right to apply SG measure in Vietnam
Vietnam has conducted 5 investigation SG cases. Investigating
bodies have concluded non-imposition of SG measure upon float glass
due to insufficient conditions under the law, and 3 cases concluded with
the application upon: (1) extracting vegetable oil; (2) seasoning powder;
(3) forged blank and long steel. Currently, VCA is carrying out
investigation on imported colored tole.
In total of cases regarding trade remedies, the majority of cases
(3/4) are that SG measure applied by Vietnam. This seems different from
the reality in other countries in comparison in this respect.
3.4. Situation of mechanisms for the application of law on
trade remedies
3.4.1. State mechanism responsible for the application of the
right to apply trade remedies
- Investigating bodies
In investigation cases relating to trade remedies, VCA is
competent to investigate dumping/subsidy conduct or sudden increase in
importing goods, as well as identify damage suffered by the domestic

industry and the causal relationship thereof. However, VCA does not
have power to render a judgment to impose AD, AS duty or SG
measures but final findings to refer to steering Commission to decide.
- Steering Commission
Legally speaking, Vietnamese law does not provide the status of
legal person and functioning rules of Steering Commission. The
Commission is not an enforcement body of the state but stands as
advisory commission for the minister of the Ministry of Trade and
Industry.

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- The minister of the Ministry of Trade and Industry
The minister is responsible before the Government for
undertaking state management on trade remedies. Based on the findings
by VCA and the Steering Commission, the minister is competent to
deliver decisions relating to investigations and application of trade
remedies.
Hence, theoretically and practically, enforcement bodies
relating to trade remedies of Vietnam remain limited regarding power,
specialized capability, practical experience, inactive function resulting in
failure to meet practical demands.
3.4.2. Mechanisms collaborating to ensure the implementation
of the right to apply trade remedies
Currently, there are 2 specialized agencies responsible for
supporting businesses with regard to trade remedies, including: Vietnam
Competition Agency (VCA) and Trade Remedies Commission (TRC) –

VCCI.
Conclusion of Part 3
Basically, the law on trade remedies of Vietnam is not at
variance with regulations under WTO and other FTAs.
However, three decrees on antidumping, anti-subsidy and
safeguards were enacted at the time when Vietnam was attempting to run
up to WTO admission, thus most of the regulations are limited and short.
Although Vietnam is drafting the Law on foreign trade management,
improvement remains to be seen.
The practice has shown that, although recent 2 years the bodies
to enforce the law have carried out investigations and applied trade
remedies in 7 cases, the regulations on trade remedies are still symbolic
have not established a hefty and consistent legal ground for the use of
such legal tools to protect domestic market.
The practice has also shown that Vietnam’s trade remedies applied cases
have shortcomings, limitations and bottlenecks in respect of regulations

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on trade remedies, and mechanisms to implement the law, as well as
businesses.
Therefore, there is a need to re-orient and offer suggestions to
perfect the law in order to enhance capability of mechanisms to
implement the law on trade remedies in the context of that Vietnam has
been/will be a member to FTAs.
PART 4
ORIENTATION AND SOLUTIONS TO IMPROVE LAWS FOR

ENHANCING VIETNAM’S CAPABILITY IN APPLYING
TRADE REMEDIES
4.1. Orientation to improve laws on trade remedies
4.1.1. Creating adequate and transparent legal grounds in
order protect domestic markets in compliant with FTAs commitments
Laws on trade remedies measures of each FTAs members must
sufficiently detail relevant provisions of FTAs in order to create legal
ground for such measures. To ensure the compliance of legal documents
on trade remedies with the content of signed international treaties,
competent authorities shall incorporate exactly and accurately contents
of incorporated regulations.
Therefore, to create adequate and transparent legal ground in
order to protect domestic markets in compliant with FTAs commitments,
Vietnam must improve laws on trade remedies pursuant to the principle
above.
4.1.2. Ensuring the objectives of applying trade remedies
In practice, because of weak compatibility, Vietnam needs to
apply trade remedies in order to protect its businesses and markets.
Lessons from other countries of the same circumstance has showed
significant success in applying laws on trade remedies in order to protect
domestic markets. The Vietnam’s legal framework is not of insufficient,
however, investigation authorities and business lack awareness,

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capability and determination in applying such measures. Thus, despite of
the available laws on trade remedies, Vietnam does not makes use of

such measures to protect markets. Therefore, improving laws must
ensure the application objectives as well as the compliance with
international commitments on trade remedies.
4.1.3. Enhancing capability of mechanism for the application
law on trade remedies
The objectives of applying trade remedies can be achieved only
if these measures are implemented effectively in practice. Thus, an
effective enforcement mechanism to ensure application objectives has an
important role in protecting business and domestic markets.
Therefore, enhancing capability of mechanism for applying
trade remedies is of urgent need. Enhancing mechanism for enforcing
trade remedies will ensure the reasonable and lawful objectives of
applying trade remedies.
4.2. Solutions for enhancing Vietnam’s capability of
applying law on trade remedies
At present, the Ministry of Trade and Industry is responsible for
drafting the Law on Foreign Trade Management, which includes
regulations on trade remedies under the Chapter IV. However, the
author’s opinion is that the incorporation of trade remedies in a
independent chapter under the Law on Foreign Trade Management is not
practical. As discussed above, there are 3 ordinances on this issue
available. Despite of some shortcomings, the codification these legal
documents into an act is of necessity in order to fostering the legal
effectiveness of such measure, and at the same time to amend, adjust,
update, detail and supplement incomplete or insufficient provisions in
these ordinance compared with WTO/FTA.
4.2.1. Amendment of and supplementary to Vietnam’s law for
incorporation of the right to apply trade remedies
a. Amendment of, supplementary to general regulations on
trade remedies

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- Amend to perfect regulations on the status, organization
structure, and competence of trade remedies bodies.
- Amend investigating content to identify damage of domestic
industry
+ Identify domestic industry
+ Amend the concept of “equivalent goods”
+ Supplement regulations regarding investigation on damage
assessment
- Improve regulations on competent bodies to authorize
investigations (plaintiff)
- Supplement subjects to file for lawsuit
- Improve regulations on length for preliminary decision
- Improve regulations on the termination of investigation
- Improve regulations on judicial review
b. Investigation length
- Prevent evasion of trade remedies
- Supplement regulations on measures applicable in between the
expired date of temporary duties until the point to impose official trade
remedies.
- Supplement regulations on the application of concurrent
antidumping and anti-subsidy measures (double lawsuit)
- Supplement mechanisms to address conflict between final
finding of investigating bodies and steering Commission.
- Amend regulations on mechanism to handle complaints and

initiate lawsuits for the imposition of AD/AS duties and SG measures
against goods imported in Vietnam.
c. Amendment of and supplementary to the law on antidumping
- Perfect the concept of antidumping
- Supplement regulation on “ordinary trade condition”
- Amend the regulation in the way to specify ordinary
calculation of goods price
- Supplement regulation on insignificant antidumping margin

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d. Amendment of and supplementary to the law on anti-subsidy
- Supplement regulation on subsidy types
- Supplement regulation on identifying particularity of
subsidized goods imported into Vietnam.
- Supplement regulation on subsidy margin
- Supplement regulation on consultation
e. Safeguards
- Supplement regulation on investigation to apply bilateral SG
measures
- Global SG measures applicable
- Length of the application of global SG measures
- Supplement regulation on most favored nation principle
- Supplement regulation on assessment criteria, identifying
absolute or relative increase of imported goods
- Supplement regulation on countervailing measures
- Supplement regulation on compensation for SG applied party.

4.2.2. Consolidation of mechanism and heightening of legal
awareness, consciousness relating to trade remedies
a. Competent state bodies
- Improve capability of mechanism to implement law on trade
remedies
- Collaborate among competent state bodies and businesses.
b. Businesses and association
Conclusion of Chapter 4
The regionalization trend and the introduction of a series of
large-scale FTAs with deep and wide commitments result in significant
changes in the legal and practical value of the trade remedies. Thus,
although laws on trade remedies of Vietnam is not contrary to the FTAs
commitments, the additional commitments on trade remedies demands
the improvement of Vietnam’s laws in order to ensure the effectiveness
and objective for applying trade remedies in practice. Therefore, the

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improvement of laws on trade remedies must ensure the consistency and
comprehensiveness of the legal system in general as well as the need to
develop a mechanism for the effective implementation trade remedies
commitments. . Accordingly, the provisions under the three Ordinances
on trade remedies should be codified into an act.
On the whole, regulations on trade remedies shall be amended
and supplemented in order to ensure the feasibility. Accordingly, it is
necessary to supplement new regulations such as: anti-circumvention;
bilateral safeguard measures, special safeguard measures, commercial

retaliation, dual complaint (initiating investigations of both anti-dumping
and anti-subsidy measures), normal commercial terms, subsidy forms;
detailing regulations on commitment measures; mechanism for conflict
settlement between the final conclusion of the investigation authority
and of the handling council. In addition, some provisions should be
amended and improved such as: assessment of damages; conditions of
the subject to have the right to initiate the investigation; grounds for the
Minister of the Ministry of Trade and Industry to make a decision to
initiate the investigation itself; consultation; mechanism for businesses
to access information...
The regulations on the procedure for the application of trade
remedies also need to be amended and supplemented in order to ensure
the compliance with the FTAs agreement. The scope of the subject who
has the right to request a trade remedies investigation needs to be
extended to the union on behalf of employees to initiate the action.
In addition, it is necessary to improve the capability of law
enforcement of main competent agencies, supporting organizations, as
well as businesses’ awareness on trade remedies.

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GENERAL CONCLUSION
The law on trade remedies is a lawful protection tool for every
nation's economy. In the context of liberalization and globalization,
countries are trying to gradually eliminate gaps in trade policies.
Vietnam is a member of the WTO and has entered into several
FTAs. Therefore, the requirement of the compatibility between domestic

law and WTO legal norms, as well as FTAs’ trade remedies
commitments, is of strictly compliance.
In fact, among the countries with the most trade remedies cases
in the world there are nine countries that are partners in the free trade
agreements with Vietnam. It can be assumed that goods subjected to
trade remedies in other countries are likely to compete unfairly in the
Vietnam’s markets. However, in fact Vietnam has overlooked this
applicability. Therefore, on the basis of the theoretical analysis and
assessment of the practical application of laws on trade remedies in
Vietnam, it can be concluded that improving the effectiveness of
applying trade remedies in Vietnam is of practical significance for the
development and future of many industries in Vietnam in the context of
deep and wide integration into the world economy with its increasing
openness for imported goods, both fair and unfair competition.
In practice, however, the effectiveness of the use of such tool is
not simple, because the reality shows that the capability and awareness
of Vietnamese business of the tool are limited in all aspects such as for
gathering forces, gathering evidences, human resources and material
resources. Therefore, in order to improve the effectiveness of the use of
trade remedies in Vietnam, the coordination of businesses, associations
and competent authorities is of necessity. These measures shall be taken
simultaneously in order to achieve optimal effectiveness. The
amendment and improvement of laws on trade remedies also require the
active consultation from businesses.

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