VIETNAM LEGAL DOCUMENTS

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Decree N.o 89/2005/ND-CP dated JULY 11, 2005 on detailing the implementation of a number of articles of the ordinance on anti-subsidy for imports into vietnam
Number sign: 89/2005/ND-CP
 
Name: Decree N.o 89/2005/ND-CP dated JULY 11, 2005 on detailing the implementation of a number of articles of the ordinance on anti-subsidy for imports into vietnam
 
Category:  
 
Promugation date: 11/07/2005
 
Promugation organ: THE GOVERNMENT
 
Signature man: PHAN VAN KHAI
 
Effective date:  


THE  GOVERNMENT                                                                             SOCIALIST REPUBLIC OF VIETNAM
N.o 89/2005/ND-CP                                                                          INDEPENDENCE – FREEDOM – HAPPINESS
                                                                                                                                               HANOI, JULY 11, 2005

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.

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