US Anti-Dumping and Countervailing Duty Petitions of Tire Products From Vietnam

On May 13, 2020, The United States Department of Commerce (“DOC”) has received an investigation request for anti-dumping and countervailing measures against passenger and light truck tires (“PVLT tires”) originating from Korea, Taiwan-China, Thailand and Vietnam. The mandatory respondents being US importers have also consulted with anti-dumping and countervailing duty lawyers in Vietnam and US to prepare for the investigation cooperation.

 

In this case, the plaintiff alleges that the tires under investigation were dumped and subsidized into the United States market, causing significant damage to the domestic manufacturing industry. In 2015, the same petitioner succeeded in securing anti-dumping and countervailing duties on PVLT tires from China.

The scope of these investigations is passenger vehicle and light truck tires. Passenger vehicle and light truck tires are new pneumatic tires, of rubber, with a passenger vehicle or light truck size designation. Tires covered by these orders may be tube-type, tubeless, radial, or nonradial, and they may be intended for sale to original equipment manufacturers or the replacement market. The products covered by the investigations are currently classified under the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.10.10.10, 4011.10.10.20, 4011.10.10.30, 4011.10.10.40, 4011.10.10.50, 4011.10.10.60, 4011.10.10.70, 4011.10.50.00, 4011.20.10.05, and 4011.20.50.10.  The scope could also include tires entering under HTSUS subheadings 4011.90.10.10, 4011.90.10.50, 4011.90.20.10, 4011.90.20.50, 4011.90.80.10, 4011.90.80.50, 8708.70.45.30, 8708.70.45.46, 8708.70.45.48, 8708.70.45.80, 8708.70.60.30, 8708.70.60.45, and 8708.70.60.60.

Petitioner alleges the following dumping margins: 45.95% to 195.20% for South Korea, 21% to 102% for Taiwan, 106.4% to 217.5% for Thailand, and 14.73% to 33.06% for Vietnam. The petitions also detail numerous government subsidies benefitting Vietnamese tire producers, including loans, tax breaks, and grants. PVLT tire imports from these four countries shot up nearly 20% from 2017 to 2019, reaching 85.3 million tires, valued at 4.4 billion dollars, last year.

According to data from the United States International Trade Commission (“USITC”), the export value of Vietnam’s investigated products to the United States market reached 12.1 million dollars in 2019, accounting for about 6.7% of total United States imports of this product.

In Vietnam, the product under investigation is a product that has been warned by the Ministry of Industry and Trade of risks of foreign investigation by applying trade remedies measures from July 2019 with a high level of warning. Therefore, in the past time, the Ministry of Industry and Trade has actively coordinated and worked with associations and exporters to the United States to actively capture information and respond in case of initiating an investigation. Under United States regulations, the DOC will consider initiating an investigation of the case within 20 days of receiving it. In the event that the DOC decides to initiate an investigation, the Ministry of Industry and Trade of Vietnam will closely coordinate with export associations and enterprises in investigating the case and have timely support and treatment measures to protect the legitimate rights and interests of Vietnamese enterprises.

Vietnam international trade lawyers in competition, and anti-dumping practice will need to be involved with the process including data collection and possibly initial drafting of questionnaire responses in cooperation with US anti-dumping and countervailing duty lawyers to defend the case.

 

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Vietnam to Investigate Anti- dumping Measures on Some Monosodium Glutamate (MSG)

On October 31st, 2019 Ministry of Industry and Trade issued the Decision no. 3267/QD-BCT on carrying out investigation anti-dumping measures on some monosodium glutamate (MSG) HS code no. 2922.42.20 originating from the People’s Republic of China and Republic of Indonesia.

 

Anti-dumping Law Firm in Vietnam

The case has been initiated based on request by representative of domestic manufacturing industry on August 19^th, 2019. The requesting party and supporting party are three companies representing domestic manufacturing industry, including: Vedan Vietnam Joint Stock Limited Company, Ajinomoto Vietnam, and Miwon Vietnam Limited Company. Products under investigation are Monosodium Glutamate products (MSG Products).

After having the investigation decision, within 15 days, investigating agency shall send the questionnaire to the relevant parties. The relevant parties shall submit written response to all questions in the questionnaire within 30 days from the date of receiving the investigation questionnaires. The date of receiving the investigation questionnaires shall be set at seventh days after the investigation questionnaires are sent by investigating authority.

Investigating agency has issued official dispatch no. 760/PVTM-P1 on September 04^th, 2019 which requires requesting party to supplement, adjust to clarify contents, methods and basis of determining dumping margins amplitude and damages of domestic manufacturing industry. 

The relevant parties shall register participation in investigation within 30 days from the date of issuance of Decision No.3267/QD-BCT. The Vietnam Ministry of Industry and Trade recommends that all organizations and individuals who are manufacturer of products under investigation should register as a relevant party and provide necessary information to the Ministry of Industry and Trade to ensure their rights and interests in accordance with the law of Vietnam.

ANT Lawyers in a law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

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Renew the validity of protection titles to subject matter of industrial property

According to the Law on Intellectual Property in Vietnam, the subject matter of industrial property rights shall comprise inventions, industrial designs, designs of semi-conducting closed circuits, trade secrets, marks, trade names and geographical indications.

Rights to an invention, industrial design, layout design, mark shall be established on the basis of a decision of Intellectual Property Office of Vietnam to grant a protection title in Vietnam or the recognition of international registration pursuant to an international treaty of which Vietnam is a member. The remaining being: (i) rights to trade name shall be established on the basis of lawful use thereof; (ii) rights to a trade secret shall be established on the basis of lawful acquirement of the trade secret and maintaining confidentiality thereof.

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How are term and scope of protection of the right to an arising object on the basis of granting of a protection title?

Firstly, protection titles shall be valid throughout the entire territory of Vietnam. This provision means the validity of title is only territorial. It means titiles granted by any country will only take effect within its territory and are not accepted in other countries or other titles granted by Intellectual Property Office of Vietnam will take effect throughout the entire territory of Vietnam.

Secondly, regarding each industrial property object, validity of protection titles are different. Such as validity of the invention patent is 20 years from the grant date but the timeline to calculate until the end of 20 protection years is filing date. Regarding utility solution patent, the validity shall be 10 years and the calculation until the end of 10 years is same as calculation of invention patent. It should be noted that validity of invention patent and utility solution patent may not be extended. However, industrial design patent, certificate of registered mark may be extended. In particular: (i) industrial design patent shall be shall be valid from the grant date until the end of five years after the filing date and may be extended consecutively with each time of 5 years. Therefore, industrial design patent may be extended up to 15 years; (ii) certificate of registered mark shall be valid from the grant date until the end of ten years after the filing date. However, this object has a special feature that it is able to extend repeatedly and consecutively the validity with each time of 10 years. Therefore, this object may be extended validity forever.

Regarding certificate of registered geographical indication, it shall have indefinite validity starting from the grant date because of its characteristic of sign used to identify a product as originating from a specific region, locality, territory or country. Reputation of products bearing a geographical indication shall be determined by graphical conditions, including natural factors (climatic, hydrological, geological, topographical and ecological factors and other natural conditions); Human factors (skills and expertise of producers, and traditional production processes of localities…).

In addition, one of objects having specific validity is certificate of registered design of semi-conducting closed circuits. Certificate shall be valid from the grant date until the earliest date among the following: (i) the end of ten years after the filing date; (ii) the end of ten years after the date the layout design was first commercially exploited anywhere in the world by a persons with the registration right or his or her licensee; (iii) the end of fifteen years after the date of creation of the layout design.

Having said that, when the owner of industrial property object is granted protection title, it should be noted at time of expiration of title to apply for the extension in order to guarantee interests as well as benefits that industrial property objects brings. The owner could contact IP department of ANT Lawyers and patent, trademark and other IP attorney will be assisting the client to review the matters and provide relevant advice.

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The changes of laws will be monitored by ANT Lawyers. For advice or service request, please contact us via email ant@antlawyers.vn or call +84 28 730 86 529

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Vietnam Ratifies the Comprehensive and Progressive Agreement for Trans-Pacific Partnership

Vietnam has recently ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership – CPTPP (before Trans-Pacific Strategic Economic Partnership Agreement – TPP. This Agreement was signed on 08 March 2018 in Santiago, Chile including 11 countries New Zealand, Canada, Japan, Mexico, Singapore, Brunei, Chile, Malaysia, Peru, Australia and Vietnam.

TPP was initially expected to form a largest free trade area in the world with the participation of the United States of America (USA). Nonetheless, the President of USA – Mr. Donald Trump – withdrew USA from TPP, and the remaining members have to re-negotiate and establish CPTPP as a result. Eleven countries participating in the CPTP have total GDP of USD 10,000 billion equivalent to 13.5% of global GDP.

CPTPP will contribute to boost the export of goods to major markets such as Japan, Australia, Canada and Mexico as well as attract foreign investment into the sectors that Vietnam needs to be developed. Further, this participation has established trade relations with the countries which have never signed a free trade agreement with Vietnam before such as Canada, Mexico or Peru. One of the commitments of CPTPP, the members of CPTPP agree to eliminate import duties on almost all products within 7 years, and Vietnam is flexible up to 10 years. Joining CPTPP, Vietnam not only commits to open up markets, remove tariff barriers, continue to open and facilitate trade, but also continues to show the transparency of the State management on market’s development. The business lines being benefited directly and strongly from CPTPP are garment, textile, footwear, food manufacturing, drink, confectionaries, tobacco, …which is expected to receive investment from oversea through setting up company, factory, and business joint venture in Vietnam.

Further, CPTPP regulates the new legal issues being labour, environment, government procurement, Intellectual Property, state enterprises, …The CPTPP essentially retains the provisions of the TPP Agreement, but with the USA withdrawal, it allows Member States to reserve a number of articles to ensure the balance in the new situation.

In conclusion, Vietnamese enterprises should firstly keep up the commitments of CPTPP in order to seek up the favorable policy trends and to prepare the plans to build competitiveness and enhance the prestige on brand and product quality.

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What International Laws in International Trade Vietnam is a Signing Party to?

International trade is important for each country to grow economically and influence through exchanging products and services, utilizing resources that create competitive advantage over others. In order to enable international trade, Vietnam has been a signing party to a number of international laws, international conventions, free trade agreements.

Up to present, Vietnam is a signing party to the:

UN Convention on Contracts for the International Sale of Goods 1980 (CISG);

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP);

The Association of Southeast Asian Nations (ASEAN) 1967;

Vietnam is also the signing party to a number of the Free Trade Agreements:

ASEAN Free Trade Area 1992;

ASEAN Trade in Goods Agreement (ATIGA);

ASEAN Framework Agreement on Services (AFAS);

ASEAN Protocol on Enhanced Dispute Settlement Mechanism;

ASEAN-China Free Trade Area 2002;

ASEAN-India Free Trade Area 2003;

ASEAN-Japan Free Trade Area 2003;

ASEAN-Korea Free Trade Area 2005;

Vietnam – Japan economic Partnership Agreement 2008;

ASEAN-Australia-New Zealand Free Trade Agreement 2009;

Vietnam – Chile Free Trade Area 2011;

Vietnam – Korea Free Trade Area 2015;

Eurasian Economic Union 2015

ASEAN – Hong Kong free Trade Area 2017 (signed on 12/11/2017, Scheduled to be effective from 1 January 2019)

Agreements in WTO accession:

Annex 1A Multilateral agreements on trade in goods

General Agreement on Tariffs and Trade 1994

Agreement on agriculture

Agreement on the application of sanitary and phytosanitary measures

Agreement on textiles and clothing

Agreement on technical barriers to trade

Agreement on trade-related investment measures

Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994

Agreement on implementation of Article VII of the General Agreement on Tariffs and Trade 1994

Agreement on pre-shipment inspection

Agreement on rules of origin

Agreement on import licensing procedures

Agreement on subsidies and countervailing measures

Agreement on safeguards

Trade Facilitation Agreement

Annex 1B General Agreement on Trade in Services

Annex 1C Agreement on trade-related aspects of intellectual property rights

Until Sep 2018, Vietnam has been accelerating preparations for meeting commitments in EU-Vietnam Free Trade Agreement (EVFTA). It has been expected the EVFTA to be passed in the year of 2019, promoting Vietnam’s sustainable development through removing 99% of tariffs on goods traded between the two economies, expanding Vietnam’s textile, apparel export to the EU market. In return, the EVFTA will open Vietnamese market for EU companies and strengthen the protection of its investment into Vietnam.

ANT Lawyers law firm is a member of legal secretary of EuroCham in Hanoi, Vietnam, and has been a contribution to the legal review that support the investment into Vietnam. ANT Lawyers will be sending Mr Tuan Nguyen, the Managing Partner to take part in the EuroCham delegation visit in Brussels Mission in October 2018, with the main goal is to promote the fast conclusion of the EU-Vietnam Free Trade Agreement process, raise awareness as to the potential of Vietnam as a strategic partner for Europe, and deliver the views of the European business community in the country.

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Contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at (+84) 24 730 86 529

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How Exemption for the Application of Trade Remedies Work in Vietnam?

Trade remedies measures, including anti-dumping measures, anti-subsidy measures and trade defense, are applied when conditions are satisfied that the act of damaging or threatening harm to the domestic production.

However, the Ministry of Industry and Commerce has also issued separate regulations for some goods exempted from the application of trade remedies. The circular No. 06/2018/TT-BCT providing detailed regulations on trade remedies as effective on June 15th, 2018 regulating the exemption for the application of trade remedies.

The Minister of Industry and Trade shall consider and decide on the exemption for goods in the following cases:

The imports have characteristics which are different from and not substituted by the like or directly competitive products produced by domestic industry;

The imports are special products of the like or directly competitive products produced by domestic industry;

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

The volume of the like or directly competitive products produced by the domestic industry is not enough satisfy the needs of the domestic market.

The duration of exemption for the trade remedies is calculated as follows: From the date of the decision on the application of a provisional or official remedy or the outcome of the decision on the results of the review of trade remedies effective until the end of December 31 of the year issuing the decision; The exemption period is one year from January 1 to December 31 of the following year or the exemption period from the date of receipt of valid dossiers to December 31 of the year when the exemption decision is issued.

Goods are exempted for the application of trade remedies measures, organizations and individuals are entitled to a refund of trade remedies tax paid on imported goods within the exemption period of the exemption decision. However, if the goods violate conditions such as misuse of goods; Commits fraudulent acts in the application for exemption; Failing to comply with the conditions and obligations in the exemption decision and the exemption conditions are no longer available, the organization or individual shall be subject to the revocation of the exemption decision which has been issued and at the same time shall have to pay tax according to provisions of law.

Exemption from trade remedies is a form of incentive in import and export activities, but this preference must be within certain limits and should not affect domestic production, domestic company.

As international trade law firm, we at ANT Lawyers always monitor changes in law and provide clients with recent update.

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China usurps US as Vietnam’s top export market: report

Vietnam’s exports to China surged about 15 times to $50.6 billion over the past decade.

China has overtaken the U.S. to become Vietnam's biggest export market, according to reports.

The shift happened last year after the U.S. started adopting several trade protectionist policies, and China started boosting trade and investment in Southeast Asia, Bloomberg reported on Wednesday.

The U.S. had been Vietnam’s top export market since 2002 before being taken down by China last year, Bloomberg said.

Vietnam’s exports to China surged about 15 times to $50.6 billion compared with a fourfold increase to the U.S. to $46.5 billion in the decade through 2017, according to statistics from the International Monetary Fund, as cited by Bloomberg. The trend has persisted this year with Vietnam’s shipments to China increasing by 33.5 percent in Q1 compared to the same period last year, as opposed to a 20 percent jump to the U.S., according to data from the General Statistics Office of Vietnam.

“The center of trade for Asia has clearly shifted to China from the U.S.,” said Eugenia Victorino, an economist from Australia & New Zealand Banking Group in Singapore, Bloomberg reported.

Victorino also said that Asian countries would soon realize that China is superior to the U.S. in terms of trade, especially with the U.S. taking a protectionist stance.

Le Dang Doanh, a Vietnamese economist and a member of the Committee for Development Policy of the United Nations, said Vietnam needs to stop being too dependent on China by diversifying to more markets, Bloomberg reported.

In fact, Vietnam is already on the move, having signed several international trade deals such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership last month, which will reduce trade tariffs between the 11 member countries. 

In 2015, the E.U.-Vietnam Free Trade Agreement was also signed, reducing tariffs between Vietnam and the 28 member countries of the E.U.

According to the General Statistics Office of Vietnam, the U.S. still reigns supreme as Vietnam's top export market, but exports to China are growing at a much faster rate compared to the U.S in recent years.

In the three years from 2015 to 2017, Vietnam's export turnovers to the U.S. were $33.5 billion, $38.4 billion and $41.6 billion respectively, while export turnovers to China were $16.5 billion, $21.9 billion and $35.4 billion respectively, said the office. 

Vietnam's total import-export turnover reached an estimated $107.32 billion in the first quarter, up 17.7 percent against the same period in 2017, with export value in the first three months hitting $54.31 billion, while imports registered $53.01 billion, resulting in a trade surplus of $1.3 billion, according to data from the General Statistics Office.

Source: evnexpress

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