What are the Process of Investigation of Imposing Trade Remedies?

Trade remedies are trade policy tool that allow governments to take remedial action against imports which are causing or threatening to cause material injury to a domestic industry. This is considered as a tool for maintaning the international trade order in a way of fairness and sound for countries when participating in free trade agreements. As Vietnam has entered a number of important free trade agreements, especially recent EU Vietnam Free Trade Agreement, it is important to understand the process of investigation of imposing trade remedies and how an international trade law firm could help representing clients in taking part in the procedures including anti-dumping, countervailing duty and safeguarding investigation of state authorities.

How a trade remedy case is processed?

Firstly, an organizations or individual representing a domestic industry may submit a request for applying the measure if it is found that the domestic industry is injured caused by dumping on imports, import subsidies or a surge in imports.

Secondly, after having the notification of lawful dossiers from Investigating authority, Minister of Industry and Trade would base on the proposal of Investigating authority to make decision of whether to start the investigation or not.

Thirdly, in the event of Minister of Industry and Trade decides to proceed the case, Investigating authority will issue the Questionnaire within 15 days from the date of issuing the investigating decision. However, in some cases, before sending the Questionnaire to parties, Investigating authority may send the quantity and value Questionnaire to select the sample to limit the scope of investigation.

The investigation to impose the anti-dumping measure, countervailing measure is within 12 months from the date of having the investigating decision, this duration may be extended but the total of the case does not exceed 18 months. However, the investigation period of imposing safeguard measure must be completed within 9 months, this duration may be extended but the total of the case does not exceed 12 months.

During the investigation period, Investigating authority will give an opportunity to interested parties for the consultation, specifically: (i) when having the consultation request from interested parties (ii) Before the final determination of investigation is disclosed, the investigating authority can organize the public consultation in manner that interested parties can present information and opinion related to the case.

However, Minister of Industry and Trade shall decide to terminate the investigation in the following cases:

·        The applicant voluntarily withdraws the application;

·        The preliminary determination of the investigating authority shows that there is no injury or threat of injury to the domestic industry or material retardation of establishment of the domestic industry;

·        The final determination of the investigating authority obtains one of the following contents:

The product under consideration imported to Vietnam is not dumped, subsidized or imported excessively;

There is no injury to the domestic industry;

There is no objective evidence of the existence of a causal link between the dumping on imports, import subsidies and the surge of imports and the injury or threat of injury to domestic industry or the material retardation of the establishment of the domestic industry;

·        The investigating authority reaches an agreement with the competent authority of the country which is accused of granting subsidies to its products imported to Vietnam on removing the abovementioned subsidies.

If Client needs any more information or request for legal advice or potential dispute regarding trade remedies measures including, anti-dumping, countervailing duty and safeguard measures or international trade dispute matters, our international trade attorney at Hanoi Office and Ho Chi Minh City of ANT Lawyers could be of help.

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How Payment by Documentary Credit in International Commerce Works?

Documentary Credit (also known as letter of credit or bankers commercial credit, or letter of undertaking) is one of the payment instruments that institutions providing non-cash payment services (banks, foreign bank branches, etc.) deal with to make a valid payment transaction at the request of the account holder. Documentary credit is the most commonly used for payment of international sales of goods.

Banking and Finance Law Firm in Vietnam

The supply of international payment services by institutions providing non-cash payment services shall be conducted in accordance with regulations of the law on foreign exchange management, treaties to which Vietnam is a member and commercial practices (including international commercial practices provided by the International Chamber of Commerce; and other commercial practices which are not contrary to the Vietnamese laws) which agreed upon by the parties.

According to UCP 600, credit means any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the issuing bank to honour a complying presentation.  Documentary credit is an independent and separate transaction from the sales and other contracts on which it may be based. The Issuing Banks and Advising Banks are in no way concerned with or bound by contract between the Applicant (purchaser) and the Beneficiary (seller), even if any reference whatsoever to it is included in the credit. Banks deal with documents only. Goods, services or performance to which the documents may relate are not under scope of handling of the Banks. When the issuing bank determines that a presentation of documents is complying, payment shall be made.

The independence between the documentary credit and the sales contract ensures that the seller definitely receives payment if complying presentation, however, does not protect the interests of the purchaser when there is any dispute about the quality of the delivered goods or any other dispute after delivery. When the seller presents complying documents, the issuing bank is obliged to make payment without any doubt whetherf the goods have actually been delivered according to the specifications as specified in the contract. At the same time, the cancellation or termination of contract does not affect the effectiveness of documentary credit, payment still is made if presentation is complying.

International payment instruments play an important role in commercial transactions between parties residing in different countries. Each payment method reflects the way of receiving and paying for goods amount between the buyer and the seller. The parties participating in international commerce transaction need to understand the characteristics of each payment instrument to protect their rights and obligations, and avoid disputes in international sales of goods, or disputes infinancial service using letter of credit or other forms, disputes in performance of contract and should involve lawyers in early stage if possible to avoid mishap.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or serive request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

Let ANT Lawyers help your business in Vietnam.

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What Impact of Force Majeure and Basic Change of Circumstances for Contractual Relations During Covid 19 Pandemic?

Whether purpose contract has been achieved or not does not only depend on compliance with contract but also is controlled by conditions, objective circumstances. In the current pandemic situation, which regulations do participants in contract need to pay attention to?

According to Vietnam laws, event shall be regarded as force majeure if it meets three conditions: (i) objective factors; (ii) not able to be foreseen; (iii) not able to be remedied by all possible necessary and admissible measures being taken. It should be noted that epidemic is regarded as event of force majeure if there is factor of “not able to be remedied”. Covid-19 pandemic, in legal aspect, initially was not a force majeure event. Only when it broke out and the Government issued Directive on nationwide social dítancing, it appears that this pandemic become force majeure event. Specifically, according to request of Directive, all operation must stop, and this request seems to make Covid 19 epidemic meeting enough three mentioned conditions. Legal consequences of force majeure event is that if there is loss, and the obliger shall not take responsibility.

However, in the current pandemic situation, not all contractal relations will apply above principle. When force majeure event occurs, factor in performance of contract must be considered. This is fundamental difference between definition of “force majeure event” and “basic change of circumstances”. Specifically, the contract will not be performed in force majeure event and will be performed with many considerable changes compared to initial estimate in basic change of circumstances. According to the laws, the change of circumstances shall be deemed basic when it meets all following conditions: (i) The circumstances change due to objective reasons occurred after the conclusion of the contract; (ii) At the time of concluding the contract, the parties could not foresee a change in circumstances; (iii) The circumstances change such greatly that if the parties know in advance, the contract has not been concluded or are concluded, but with completely different content; (iv) The continuation of the contract without the change in the contract would cause serious damage to one party; (v) The party having interests adversely affected has adopted all the necessary measures in its ability, in accordance with the nature of the contract, can not prevent or minimize the extent of effect.

In the case of basic circumstances change, the affected party may request the other party to the re-negotiate the contract in a reasonable period of time. If the parties can not reach an agreement on amending the contract within a reasonable period of time, any of the parties may request a court or arbitration to terminate the contract at a specific time or amend the contract to balance the lawful rights and interests of the parties due to basic change of circumstances. The court may only decide to amend the contract in the event that the termination of the contract would cause greater damage than the cost to perform the contract if it is modified. In the process of negotiating on amendments and termination of the contract and the court or arbitration handling the case, the parties must continue to perform its obligations under the contract, unless otherwise agreed.

In the current pandemic situation, many places are still allowed to operate normally but there must be careful prevention measures. But these prevention measures are the cost that enterprise has to cover which is not small. Therefore, the contract can still be performed but one party has to suffer huge losses compared to initial estimate. In this case, the law allows parties to re-negotiate. If parties can not reach any agreement, such case shall be brought to the court or arbitration to be solved. There are two possibilities: firstly amending the contract to balance the parties’ rights, secondly terminating the contract at a specific time if the contract can not be amended.  And it is important to consult with dispute lawyers for possible options before taking the matters further to protect best interests in the transaction.

ANT Lawyers - a Lawfirm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or serive request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

Let ANT Lawyers help your business in Vietnam.

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What are Trade Remedies in Vietnam?

When participating in the process of international economic integration, every country voluntarily cut off the trade barriers for goods to easily circulate among each other. However, in the legal framework of World Trade Organization (WTO), the countries are allowed to impose trade remedies if satisfying certain conditions. Vietnam has officially become a member of WTO since July 11 2007 and the imposing of these trade remedies are regulated in Law on foreign trade management 2018.

 

According to Law on foreign trade management 2018, trade remedies includes anti-dumping measure, countervailing measure and safeguard measure. Specifically, (i) Anti-dumping measure imposed on imports into Vietnam is a measure imposed on products that are dumped when being imported to Vietnam, which causes material injury or threaten to cause material injury to domestic industry or retard the establishment of the domestic industry; (ii) Countervailing measure imposed on imports into Vietnam is a measure imposed on products that are subsidized when being imported to Vietnam, which causes the material injury or threat of material injury to the domestic industry or retards the establishment of the domestic industry; (iii) Safeguard measure imposed on foreign products imported into Vietnam is measure imposed on increased imports of particular products to Vietnam, which causes the serious injury or threat of serious injury to the domestic industry.

 

The domestic industry mentioned above refers to the producers as a whole of the like products within the territory of Vietnam or those whose collective output of the like products constitutes a major proportion of domestic production of those products. Besides, the injury to domestic industry shall be determined on each level: (i) Material injury to domestic industry; (ii) threat of material injury to domestic industry; (iii) material retardation of establishment of a domestic industry; (iv)serious injury to domestic industry; (v) threat of serious injury to domestic industry.

 

Due to the imposing of these remedies directly affecting to foreign producer/exporter as well as domestic industry, thus, it is required to comply to six following rules when imposing these remedies:

 

Firstly, impose measures within the reasonable scope and level for a certain period of time to protect domestic industry, prevent or limit the injury to it;

 

Secondly, only impose measures after the investigation is carried out transparently and fairly in accordance with regulations of law and based on determinations of the investigation;

 

Thirdly, decisions on the investigation and the imposition of trade remedies shall be published;

 

Fourthly, if the duty rate of an official trade remedy is higher than those of a provisional trade remedy, the difference of duty will not be collected;

 

Fifthly, if the duty rate of an official trade remedy is lower than those of the provisional trade remedy, the difference of duty will be returned;

 

Sixthly, if the Minister of Industry and Trade does not impose an official trade remedy, the duty of provisional trade remedy that has been collected or the amount for ensuring the payment of temporary trade remedy duties shall be returned.

 

If Client needs any more information or request for legal advice regarding trade remedies measures including: anti-dumping, counterveiling duty and safeguard measures or international trade dispute matters, our international trade lawyers at ANT Lawyers could be of help.

 

 

 

 

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Marriage and family in Vietnam

Marriage and family matters are of importance to each individual. Decision on such will impact their life for a long period of time. Marriage and family lawyers could help clients make right decisions and provide services required.  At ANT Lawyers, a law firm in Vietnam with offices in Hanoi and Ho Chi Minh City, we assist clients on:

-Consulting the general provisions of the Law on Marriage and Family in Vietnam;

-Reviewing and drafting prenuptial agreement;

-Advising on marriage with foreigners;

-Advising on divorce involving foreigners;

-Consulting on division of property, children in divorce;

-Consulting on lawsuit to protect interests;

-Lawyers representing and protecting the clients at competent authorities;

-Consulting on child adoption procedures.

Please contact us for inquiries through email ant@antlawyers.vn, call our office at +84 28 730 86 529 or talk to our partner directly at + 84 912 817 823

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What Are Rights and Obligations of Foreigners Owning Properties in Vietnam?

According to the current Vietnamese law, the ownership of houses in Vietnam by foreigners has changed significantly towards more openness. However, home ownership of foreigners and Vietnamese citizens are still different.

Foreign house ownership is allowed in commercial housing construction projects only (i.e., only in newly formed residential areas), not an area of national defense and security purpose. In case of house donation or inheritance of house not subject to this regulation, the foreigener only receives the value of that house.

The foreigners combined may not buy, rent and purchase, receive, inherit and own more than 30% of apartments in an apartment building; or not more than 250 houses of separate houses including villas, row houses in an area whose population is equivalent to a ward-administrative division

In an area whose population is equivalent to that of a ward, if there is a commercial housing construction project for sale or lease-purchase, the quantity of detached houses that may be owned by foreigner is specified below: where the quantity of detached houses of an project is fewer than 2,500, foreigner may own up to 10% of the houses of such project; where there is only one project whose quantity of detached houses is equivalent to 2,500 houses, foreigners may own up to 250 houses of them; where there are two or more projects where the total quantity of detached houses does not exceed 2,500 houses, foreigners may own up to 10% of the houses of each project. In case a house is donated or inherited in excess of the number of houses under this regulation, only the value of that house is entitled.

The foreigners are eligible for the homeownership as agreed in agreements on housing sale, lease purchase, gifting, or inheritance for not more than 50 years from the date of issuance of the Certificate and have can be extended further according to the Government’s regulations if the need arises; house ownership period must be specified in the Certificate.

In case a foreign individual marries a Vietnamese citizen or an overseas Vietnamese, he/she can own a stable, long-term house and has the same rights as a Vietnamese citizen.

The foreign organization are eligible for the homeownership as agreed in agreements on housing sale, lease purchase, gifting, or inheritance for not longer than duration stated in their Certificate of investment, including extension duration, the duration of the homeownership shall be determined from the day on which the organization is granted the Certificate and stated in such Certificate.

In addition, foreign organizations and foreign individuals permitted to enter Vietnam have the same obligations as Vietnamese citizens but must comply with the following provisions:

If the homeowner is a foreign individual, he/she is entitled to lease house for lawful purposes provided that he/she notifies the agency of district in charge of housing where the house is located of housing lease as prescribed in regulations of the Minister of Construction and pays taxes on housing lease as prescribed before leasing houses. If a foreign individual gets married to a Vietnamese citizen or an oversea Vietnamese, he/she qualifies for stable and long-term homeownership and has all rights of homeowner similarly to Vietnamese citizens.

If the homeowner is a foreign organization, its house is/are only provided for their employees but it is not allowed to use their house for lease, offices, or other purposes.

The above are provisions on rights and obligations of foreign organizations and individuals when owning properties in Vietnam.  For specific matters, please consult with property, real estate lawyers for legal advice for the property transaction from deposit agreement, house sales and purchase agreement, and registration of ownership with authorities for certificate of land use right, or house owernship certificate of to avoid property disputes in Vietnam, where the house ownership, land use rights are restricted for foreigners.

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Receiving the Exemption Dossier of Imposing Anti-Dumping Measure in AD07 Case

On August 25, 2020, Trade Remedies Authority of Vietnam (TRAV) – Ministry of Industry and Trade issued the notification on receiving exemption dossier of imposing anti-dumping measure to some plastic products and products from plastic made of polyme from propylen originated from republic People's ofChina, Kingdom of Thailand and Malaysia.

The products which subjected to impose anti-dumping measure with the following HS code: 3920.20.10, 3920.20.91.

According to Article 10 Circular 37/2019/TT-BCT, Minister of Ministry on Industry and Trade consider to exempt the imposing of temporary anti-dumping measure, official anti-dumping measure to some imported products which imposed trade remedies in the following cases:

1. Goods cannot be domestically produced;

2. The good has characteristics which are different from and cannot be substituted by the domestically produced products;

3. The goods are special products of the like or directly competitive products produced by domestic industry;

4. There are no sale of the like or directly competitive products produced by the domestic industry in the ordinary course of trade in the domestic market;

5. The like or directly competitive products produced by the domestic industry are not enough to satisfy the needs of the domestic market;

6. The imports within the total quantities of imports requesting for exclusion prescribed in above 5 cases are intended for serving research and development purposes as well as other non-commercial purposes.

Requesting exemption dossiers must be submitted online or at TRAV office before 5p.m on September 24^th, 2020.

Lawyers at ANT Lawyers, anti-dumping and countervailing duties practice, and international trade disputes always follow up with Vietnam government agencies on developments to update clients on related matters.

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Ministry of Industry and Trade initiates the Investigation of Imposing Anti-dumping Measure to some H shaped steel products (AD12)

On August 24^th 2020, Minister of Ministry of Industry and Trade signed the Decision No. 2251/QD-BCT regarding the Investigation of imposing Anti-dumping measure to some H shapedsteel products from Malaysia. Related parties may by themselves or authorize to experienced law firm in Vietnam on international trade to work with Trade Remedies Authority of Vietnam (TRAV) to cooperate.

Background

On November 06, 2020, Trade Remedies of authority of Vietnam (TRAV), Ministry of Industry and Trade received the dossiers on requesting the anti-dumping measure to some H shaped steel products from Malaysia. The requester is Posco Yamato Vina Steel Joint stock Company – the sole company which produced H shaped steel in Vietnam.

The requester provided the reasonable bases for calculation of dumping margin originated from Malaysia. The requester provided the reasonable information to prove the significant damage of domestic industry. The requester’s dossier proved the existence of causal relationship between imported products and the significant damage of domestic industry.

Hence, TRAV determined dossier of the requester satisfied the law of anti-dumping and petition of Minister of Ministry of Industry and Trade.

Investigation’s details

i) Products under investigation

Product’s name: H shaped steel

The H shaped steel product with the following HS code: 7216.33.11, 7216.33.19, 7216.33.90, 7228.70.10 and 7228.70.90

The products which are excluded from investigation scope includes:

The H shaped steel with the height more than 700 mm (± 4mm) or the width more than 300 mm (± 3mm);

H steel beam with the size of 100mm x 55mm or 120mm x 64mm (the description size is height x width).

The Ministry of Industry and Trade may amend and supplement the list of HS codes of the product under investigation to be in accordance with the description of the product under investigation and other changes (if any).

ii) Originated of products under investigation: Malaysia

iii) Period of investigation (POI)

-Period of investigation to determine the anti-dumping action: from April 1^st 2019 to March 31^st 2020

-Period of investigation to determine the damage of domestic industry:

The first year: from April 1^st 2017 to March 31^st 2018

The second year: from April 1^st 2018 to March 31^st 2019

The third year: from April 1st 2019 to March 31st 2020

iv) Duty Levels Proposed by Requester:

The anti-dumping duty which is requested by the requester is 10,2%.

Register as related parties:

Pursuant to Article 6 of Circular No. 37/2019/TT-BCT, organizations and individuals stipulated in Article 74 of Law on foreign trade management may register as related parties in this case with TRAV in order to access to publicly circulated information during the investigation process, send comments, information and evidence related to the investigation content within sixty (60) working days from the day on which the decision on investigation takes effect via post or email.

In order to ensure rights and interests, the investigating authority recommend that organizations and individuals which produce, import or use products under investigation register as related parties to carry out the right to access information, provide information and express opinions during the investigation process.

Investigation Questionnaire:

Within 15 days after the issuance of the investigation decision of the Minister of Industry and Trade, the Investigating Authority shall send the investigation questionnaire to the Related Parties, including:

-The applicant requests for application of Anti-dumping measures;

-Other domestic manufacturers which Investigating Authority knows;

-Parties requesting for application investigation of anti-dumping measures which Investigating Authority knows;

-Importers of products under investigation;

-Diplomatic authorities of the country where the origin of products under investigation;

-Other related

Cooperating in the investigation process

Any related party refuses to participate in the case or does not provide necessary evidences or significantly ​obstructs the completion of the investigation, the investigation conclusion regarding such relevant party shall be based on available information.

Any related party provides false or misleading evidences, such evidences shall not be reviewed and investigation conclusion regarding such relevant party shall be based on available information.

TRAV recommends that related party participate and cooperate fully in the process in order to ensure legitimate rights and interests and avoid potential disputes.

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How Licensing of Trademark Works?

Licensing of industrial property subject in general or of trademark in specific is regulated in Intellectual Property law.  Accordingly, in trademark licensing, the owner (licensor) grants permission to another (licensee) to use that trademark on mutually agreed terms and conditions. The licensing of trademark must be established in written form to avoid dispute intrademark licensing.

Accordingly, licensing of trademark includes the following types: exclusive contract, non-exclusive contract; sub-license contract.

Firstly, exclusive contract means a contract under which, within the licensing scope and term, the licensee shall have the exclusive right to use the licensed trademark while the licensor may neither enter into any trademark license contract with any third party nor, without permission from the licensee, use such trademark.

Secondly, non-exclusive contract means a contract under which, within the licensing scope and term, the licensor shall still have the right to use the trademark and to enter into a non-exclusive trademark license contract with others.

Thirdly, trademark sub-license contract means a contract under which the licensor is a licensee of the right to use such trademark pursuant to another contract.

In any type of the contracts, it is required to have the following contents: full names and addresses of the licensor and of the licensee; grounds for licensing; contract type; licensing scope including limitations on use right and territorial limitations; contract term; licensing price; rights and obligations of the licensor and of the licensee.

Besides the above contents, the parties also need to take note on the validity of this contract. Different from assignment contract of trademark when it is required to register at National office of Intellectual Property of Vietnam to take effect, the licensing contract of trademark does not required this kind of registration for taking effect. Licensing contract shall automatically be terminated upon the termination of the licensor's trademark right.

If Client needs any more information or request for legal advice regarding licensing of trademark or dispute in trademark licensing contract, our Intellectual Propertyattorney in Vietnam at ANT Lawyers will be of help.

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TRAV Receiving Review Application of Products of Chinese and Korean origins (case No. AD04)

TRAV Receiving Review Application of Anti-Dumping Measures for flat-rolledalloy/non-alloy steel products, varnish painted or scanned or coated withplastics or other covers from China and Korea (AD04).

On August 20^th, 2020, Trade Remedies Authority of Vietnam (TRAV) – Ministry of Industry and Trade notified on receiving the dossier for reviewing flat-rolled alloy/non-alloy steel products, varnish painted or scanned or coated with plastics or other covers from China and Korea imported into Vietnam.

Specifically, on November 24^th 2019, Minister of Industry and Trade issued the Decision 3198/QĐ-BCT on imposing the official decision to some of the flat-rolled alloy/non-alloy steel products, varnish painted or scanned or coated with plastics or other covers from China and Korea.

According to Article 82.1.a Law on foreign management 2017: “After 1 year from the day on which the decision on imposition of anti-dumping measures is issued, the Minister of Industry and Trade may decide to review anti-dumping measures at the request of one or multiple interested parties and evidence provided by them.”

Regarding the right to submit request dossiers regulated in Article 58.1 Decree 10/2018/NĐ-CP: “Within 60 days before the end of one year from the date of issuance of the decision on the imposition of official anti-dumping measures and countervailing measures or the latest decision on the results of the review of anti-dumping measures, countervailing measures, the concerned parties as prescribed in Article 59 hereof may submit the dossiers for review, except for cases where the submission deadline is less than 09 months before the time limit for the Minister of Industry and Trade to decide whether to carry out the final review of anti-dumping or countervailing measures”.

Accordingly, the scope of review request of the interested parties regulated in Article 74  includes but not limited to the following contents:

-The product scope subject to anti-dumping measures;

-The anti-dumping margin imposing to some specific foreign enterprises;

-The damage of domestic industry.

After finishing the reviewing period, based on the investigating result, TRAV will propose Minister of Industry and Trade one of the following options:

-Continue to impose the anti-dumping measure in accordance with the current law; and/or

-Adjust the anti-dumping measure in accordance with the reviewing result; or

-Bring the anti-dumping measure to an end.

The performing of the procedures related to the reviewing period will not affect to the effective anti-dumping measures imposed currently.

The reviewing dossiers must be filed sufficiently and timely to TRAV before 5 p.m on October 24^th 2020 (Hanoi time)

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