Tóm tắt Luận án Settlement of anti-Dumping disputes within the WTO framework and the participation of developing countries and Vietnam – Theoretical and practical issues

If Vietnam participates as a third party in a WTO antidumping dispute: it should engage with a serious and proactive attitude, considering it a real experience as the disputing parties, not just a game with no string attached. Vietnam should establish groups of experts and/or lawyers, including lawyers of private law firms, to represent Vietnam and building strategy plans to participate effectively. In addition, Vietnam should establish an effective reporting mechanism, update information of other partners, collect lessons and experiences after each anti-dumping dispute in which Vietnam participates as a third party ./.

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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI UNIVERSITY OF LAW NGUYEN THI THU HIEN SETTLEMENT OF ANTI-DUMPING DISPUTES WITHIN THE WTO FRAMEWORK AND THE PARTICIPATION OF DEVELOPING COUNTRIES AND VIETNAM – THEORETICAL AND PRACTICAL ISSUES Speciality: International Law Ref. Code No.: 62 38 01 08 SUMMARY OF THE DOCTORAL DISSERTATION HÀ NỘI - 2014 The thesis was completed at: HANOI UNIVERSITY OF LAW Supervisor: Assoc. Prof., Dr. Hoang Phuoc Hiep Reviewer 1: Prof., Dr. Le Hong Hanh Reviewer 2: Assoc. Prof., Dr. Tang Van Nghia Reviewer 3: Assoc. Prof., Dr. Dinh Ngoc Vuong The thesis is upholding at the University Doctoral thesis Examination Board, meeting at Hanoi University of Law. The last (hour) on (date/month), 2014 The thesis can be found at: 1) The National Library 2) The Library of Hanoi University of Law THE AUTHOR’S PUBLICATION LIST REGARDING TO THE DOCTORAL THESIS 1. Nguyen Thi Thu Hien, (2011), Identifying principal legal features of anti-dumping disputes within the WTO, Jurisprudence Journal, No.8/2011, p. 38-43 & p. 24. 2. Nguyen Thi Thu Hien, (2012), Historical development of the Rules on the Resolution of Anti-dumping disputes within the WTO, Jurisprudence Journal, No.10/2012, p. 24-30 3. Nguyen Thi Thu Hien, (2013), Anti-dumping disputes settlement within the WTO – a comparison with dumping disputes settlement at national level, State and Law Review , No.6(302)/2013, p. 61-67. 1 INTRODUCTION 1. Rationale of the research paper In current international trade practice, anti-dumping disputes have become increasingly popular and complex. Facing this phenomenon, in addition to finding ways to deal with anti-dumping investigation and imposition of anti- dumping duties overseas, Members of the World Trade Organization (WTO) actively resort to appropriate mechanisms to protect their legitimate rights and interests. The Dispute Settlement Mechanism (DSM) of the WTO is thought to be one of the most effective mechanisms at present. On 11/01/2007, Vietnam officially became the 150th Member of the WTO. Studying the WTO law and actively participating in international economic integration as well as in resolving international disputes become a key task set out by the Political Party and the State in various documents. In fact, by the end of 12/2013, Vietnam has participated in nine out of nineteen anti-dumping lawsuits involving Vietnam at the WTO. In each dispute, Vietnam, at a certain level, actively participated in the DSM of the WTO. However, Vietnam’s participation has been limited due to the complexity of the disputes as well as its ineffective coordination mechanism. This reality puts out an urgent request on the need for a comprehensive study on the practice of law applicable to anti- dumping dispute settlement within the WTO framework as well as the coordination mechanism among Vietnam’s agencies at home and overseas in this field. 2 Following the guidelines set forth by the Political Party, considering Vietnam’s recent participation in anti-dumping cases as well as the exigent requirements of Vietnam, etc., there is clearly a highly urgent need for the doctoral research "Settlement of anti-dumping disputes within the WTO framework and the participation of developing countries and Vietnam – Theoretical and practical issues”, which is both theoretically and practically valuable. 2. The subjects and scope of research Subjects of the thesis include: the formation and development history and the application of international law in anti-dumping dispute settlement at the WTO; the WTO's current conceptions on anti-dumping issue, anti-dumping disputes and international law applicable to the anti-dumping dispute settlement; the content of general and specific legal issues of the international law applicable to anti-dumping dispute settlement at the WTO; the practices of the WTO anti- dumping dispute settlement; the practices of participation of a number of developing countries, and Vietnam, in anti-dumping dispute settlement at the WTO. Issues on anti-dumping disputes and the settlement mechanism within the WTO framework are complex, therefore, require a wide scope of research. Within the limited length for a thesis, the author may only focus on some issues such as: (1) the formation and development history and the application of international law in anti-dumping dispute settlement at the WTO; (2) current conceptions of the WTO on anti-dumping, anti-dumping disputes and international law applicable to anti- dumping dispute settlement; (3) general and specific legal 3 issues of international law applicable to anti-dumping dispute settlement, focusing on distinctive characteristics of anti- dumping dispute settlement and the scope of anti-dumping dispute issues referred to the Dispute Settlement Body (DSB). Although all dispute settlement methods within the WTO framework will be mentioned, the author will focus on discussing anti-dumping dispute settlement at the DSB/WTO; (4) the WTO’s practices of anti-dumping dispute settlement in general and the in-practice participation of India, China, Thailand and Vietnam in this field. 3. Methodology and research methods To further clarify the above-mentioned issues, the thesis is done on the basic of using scientific research methods such as: the method of dialectical materialism, historical materialism combined with systematic approach, synthesis methods, analytical methods, statistical methods, methods of comparison and contrast, combining theoretical with practical studies to provide specific and feasible solutions. In this thesis, the comparative method is utilized in most of the chapters, especially in Chapter 2 whenever related legal terms are compared . Similarly, the method of combining theoretical with practical research is used throughout the entire content of the thesis. Methods of synthesis and analysis are used to complement comparative method. 4. The objectives and tasks of research The objectives of the thesis is to further clarify the theoretical and practical issues through a comprehensive and systematic research into issues relating to anti-dumping dispute settlement within the WTO framework, the position of 4 developing countries as well as their practices of participation in anti-dumping dispute settlement, and of Vietnam in particular; on that basis, suggests solutions that can help improve the effectiveness of participation of Vietnam in the WTO anti-dumping dispute settlement. To accomplish such objectives, the thesis proposes the following tasks of research: - Analysing various views on anti-dumping issue and anti-dumping dispute settlement, and fundamental theoretical issues of international law applicable to anti-dumping dispute settlement within the WTO framework; - Synthesising, analysing and evaluating practices of anti- dumping dispute settlement at the WTO; focusing on the analysis of a number of cases and identifying shortcomings of the current regime; analysing and assessing the participation of India, China, Thailand and Vietnam in anti-dumping dispute settlement at the WTO to present the experience lessons; - Analysing fundamental views and guidlines to suggest solutions that can help improve the effectiveness of participation of Vietnam in anti-dumping dispute settlement at the WTO. 5. New research findings of the doctoral dissertation - The thesis further clarifies the WTO’s current conception on anti-dumping disputes by distinguishing these disputes within the WTO framework with: (i) "dumping disputes" and "anti-dumping disputes" under the national law of a Member country, and; (ii) "anti-subsidy disputes" and "safeguard disputes". These terms are often easily confused, therefore, the thesis helps to clarify and distinguish them; 5 - The thesis contributes to clarifying the content and distinctive characteristics of the international law applicable to anti-dumping dispute settlement in comparison with the law applicable to the settlement of international trade disputes at the WTO; - The thesis contributes to clarifying the interactive relationship between anti-dumping dispute settlement under the WTO law and dumping dispute settlement under the national law of a Member country; - The thesis further clarifies the scope and characteristics of the four anti-dumping dispute issues referred to the DSB, including disputes over definitive anti-dumping duties, disputes over the acceptance of a price undertaking, disputes over provisional measures, and disputes over the inconsistency of the national law of a Member country with the WTO Anti-dumping Agreement (ADA); - The thesis speculates trends in the development of international law applicable to anti-dumping dispute settlement at the WTO; - The thesis analyses the practices of anti-dumping dispute settlement at the WTO; draws participating experiences of India, China and Thailand; and points out the current reality and reasons for the limited participation in resolving these disputes of developing countries in general and that of Vietnam in particular; - Based on theoretical and practical analyses, the thesis presents lessons and suggests new feasible solutions that can help improve the effectiveness of participation of Vietnam in WTO anti-dumping dispute settlement, especially specific 6 recommendations for Vietnam as either a plaintiff, defendant or third party in WTO anti-dumping cases. 6. The structure of the thesis The thesis consists of an introduction, main content, conclusion, bibliography and appendices. The main content of the thesis is organized into four chapters, each ends with a sub- conclusion, namely: Chapter 1: Overview on researches abroad and in Vietnam regarding to the doctoral dissertation topic. Chapter 2: Theoretical issues of anti-dumping disputes and of international law applicable to anti-dumping dispute settlement at the WTO. Chapter 3: The WTO’s practices of anti-dumping dispute settlement and the participation of developing countries and Vietnam. Chapter 4: Direction and solutions for improving the effectiveness of Vietnam's participation in anti-dumping dispute settlement at the WTO. MAIN CONTENT OF THE THESIS CHAPTER I OVERVIEW ON RESEARCHES ABROAD AND IN VIETNAM REGARDING TO THE DOCTORAL DISSERTATION TOPIC 1.1. Researches in other countries 7 In other countries, there have been many studies on the issue of anti-dumping dispute settlement within the WTO framework and the participation of developing countries. Some authors and publications are: (i) J.G. Merrills (2011), International Dispute Settlement, 5th ed., Cambridge University Press; (ii) James P. Durling (2002), Matthew R. Nicely, Understanding the WTO Anti-Dumping Agreement: Negotiating History and Subsequent Interpretation, Cameron May Ltd.,; (iii) David Palmeter, Petros C. Mavroidis (2004), Dispute settlement in the World Trade Organization: Practice and procedure, 2nd ed., Cambridge: Cambridge Univ.,; (iv) Peter Van den Bossche (2008), The Law and Policy of the World Trade Organization: Text, Cases and Materials, 2nd ed., Cambridge University Press; (v) Terence P. Stewart (1993), The GATT Uruguay Round: A negotiating history (1986-1992), Volume II: Commentary, Deventer: Kluwer Law and Taxation Publishers, etc. In addition, there are other materials posted on various websites and some have been translated into Vietnamese such as the book "Handbook of WTO Dispute Settlement", a translation of the National Committee for International Economic Cooperation (2006), etc. Although the issue of international trade dispute settlement in general and anti-dumping dispute settlment within the WTO framework in particular have been mentioned in many studies abroad, so far there is yet an academic research that looks into both the theoretical and practical aspects of the issue of anti-dumping dispute settlement under the WTO and the participation of developing countries, and that addresses the specific case of Vietnam to propose new feasible solutions that 8 can help improve the effectiveness of participation of Vietnam in the WTO anti-dumping dispute settlement. 1.2. Researches in Vietnam Before, at the time and after Vietnam joined the WTO, in Vietnam, there have been many studies related to the issue of anti-dumping dispute settlement within the WTO framework and the participation of developing countries and of Vietnam taking both theoretical and practical approaches, which includes Bui Anh Thuy’s Ph.D. thesis "International trade dispute settlement mechanism of the WTO " and Vu Thi Phuong Lan’s Ph.D. thesis "Law on anti-dumping in international trade and the problems posed for Vietnam". Additionally, there have been a number of master theses and researches that addressed this issue. Moreover, in terms of reference books, there are: (i) Dr. Nguyen Vinh Thanh and MSc. Le Thi Ha (2006), Developing countries and the dispute settlement mechanism of the WTO, Social Labor Publishing House; (ii) The Multilateral Trade Assistance Project Period II (EU-VIETNAM MUTRAP II) (2007), The position, role and mechanism of the WTO in the multilateral trading system; (iii) VCCI (2010), Anti-dumping disputes in the WTO; (iv) Faculty of Law, Can Tho University (2010), Summary of typical WTO disputes - Report of the Panel and the Appellate Body from 1995 to 2010 year, etc. Among studies in smaller scale, there are (i) Article "WTO’s dispute settlement mechanism: from the perspective of developing countries" by Ly Van Anh on the Journal of International Studies, issue 2 (61), 2005; (ii) Article "WTO’s dispute settlement mechanism and some suggestions for Vietnam" by Nguyen Vinh Thanh and Pham Thanh Ha on the 9 Journal of Africa & Middle East Research, Issue 8, 2006; (iii) Article "Anti-dumping cases and WTO’s dispute settlement mechanism " by Bui Anh Thuy on the Journal of State and Law, Issue 2, 2007; (iv) Article "Anti-dumping dispute settlement within the WTO framework" by Nguyen Linh Giang on the Journal of State and Law, Issue 3, 2008; (v) Article "Preferences for developing countries on the WTO trade disputes settlement mechanism to that lawyers should pay attention" by Nguyen Thi Thu Hien on the Legal Professions Review, Issue 3/2009; (vi) Article "Agency in charge and the coordination mechanism in WTO dispute settlement: experiences for Vietnam" by Nguyen Thanh Tu on the Journal of State and Law, Issue 10/2012, etc. Also, there are numerous postings on various websites, etc. Overall, the studies in Vietnam, either focus mainly on analyzing anti-dumping issue or anti-dumping law in general; or focus on the general dispute settlement mechanism of the WTO, taking into consideration cases of other developing countries and Vietnam. They have yet assessed comprehensively anti-dumping disputes; concepts, content and development trends of international law applicable to anti- dumping dispute settlement within the WTO framework; attitudes of different groups of countries towards anti-dumping disputes; the interactive relationship between anti-dumping dispute settlement under the WTO law and under the national law of a Member country; concepts, nature and characteristics of the four specific types of disputes that can be resolved at the DSB; updated on the practices of anti-dumping dispute settlement at the WTO, the participation of developing 10 countries and Vietnam; combined and analysed the experiences of some developing countries participating in anti-dumping dispute settlement to identify the causes and propose specific solutions to improve the effectiveness of Vietnam's participation in anti-dumping dispute settlement at the WTO. Especially, there is not yet any research at the doctorate level that analyses both theoretical and practical aspects of the issue of anti-dumping dispute settlement within the WTO framework and the participation of developing countries in which the case of Vietnam is specifically focused. 1.3. Issues that require further research and tackling methods Firsly, regarding the theoretical aspects: - Analysing and assessing of development trends of international law applicable to anti-dumping dispute settlement within the WTO framework; - Clarifying the WTO’s current conception of anti- dumping disputes; - Clarifying the content and distinctive characteristics of international law applicable to anti-dumping dispute settlement within the WTO framework; - Clarifying the interactive relationship between anti- dumping dispute settlement under the WTO law and under the national law of a Member country; - Clarifying the concept and characteristics of the four types of anti-dumping dispute issues referred to the DSB. Secondly, regarding the practical aspects: - Analysing and evaluating comprehensively the practices of anti-dumping dispute settlement at the WTO; 11 - Clarifying how developing countries are participating in anti-dumping dispute settlement at the WTO in reality; - Specifically studying the participation of India, China and Thailand; - Studying the participation of Vietnam. Thirdly, making proposals and suggesting solutions: - Clarifying the basic views and directions to improve the effectiveness of Vietnam's participation in anti-dumping dispute settlement at the WTO; - Suggesting new feasible solutions that can help improve the effectiveness of participation of Vietnam in the WTO anti- dumping dispute settlement. CHAPTER 2 THEORETICAL ISSUES OF ANTI-DUMPING DISPUTES AND OF INTERNATIONAL LAW APPLICABLE TO ANTI-DUMPING DISPUTE SETTLEMENT AT THE WTO 2.1. The history of formation and development and the application of international law appicable to anti-dumping dispute settlement at the WTO 2.1.1. The period before 1947 2.1.2. The period from 1947 to 1995 2.1.3. The period from 1995 to date 2.2. The WTO’s current conception of anti-dumping, anti- dumping disputes and international law applicable to anti- dumping dispute settlement 2.2.1. The WTO’s current conception of anti-dumping and anti-dumping dispute 12 Anti-dumping means that the competent authorities of the importing country impose appropriate measures that directly impact imported dumping products in order to remove the harm that such products cause for the domestic industry producing like products. According to the national law of a Member on anti- dumping, there are two different types of disputes related to anti-dumping: (1) "dumping disputes" are disputes between businesses exporting dumping products and domestic producers of the importing country producing products that are similar to the imported dumping products; and (2) "anti-dumping disputes" are disputes between private businesses (foreign exporters) with the government (the importing country that imposes anti-dumping measures) on the application of anti- dumping measures. Within the WTO framework, an anti-dumping dispute is a disagreement among WTO Members on issues relating to the legal rights and obligations in the field of anti-dumping under the WTO agreements. Anti-dumping disputes that are resolved at the WTO have the following basic characteristics: (i) Being secondary disputes; (ii) Being disputes among WTO members; (iii) Being limited in scope to four disputing issues related to either definitive anti-dumping duties, the acceptance of a price undertaking, provisional measures, or the inconsistency of the national law of a Member country with the ADA; (iv) the legal basis for anti-dumping dispute settlement, both substantive and procedural, will comply with the international law applicable to anti-dumping dispute settlement at the WTO. 13 "Anti-dumping dispute" under WTO law has some fundamental distinctive features comparing with "dumping disputes" and "anti-dumping disputes" under the national law of a Member country, as well as comparing with "anti-subsidy disputes” and "safeguard disputes ". 2.2.2. The WTO’s current conception of international law applicable to anti-dumping dispute settlement The WTO anti-dumping dispute settlement, substantively, will be based primarily on WTO rules, in particular Article VI of GATT 1994 and the ADA, along with other sources such as international practices; general principles of law; WTO practices and reports of Panels and the Appelate Body on dispute settlement; practices of GATT 1947 and Panel's reports; documents issued by the WTO bodies; other international agreements; doctrines suggested by reputed scholars. Meanwhile, regarding the proceedings, dispute settlement will comply with the DSU, and additionally, special rules and procedures stipulated in Article 17.4 to 17.7 of the ADA as well as other relevant procedural provisions of the WTO. 2.3. The content of general issues regarding international law applicable to anti-dumping dispute settlement at the WTO 2.3.1. The DSM of the WTO –Fundamental applicable law for anti-dumping dispute settlement at the WTO 2.3.2. Special and differential treatment in the DSM of the WTO for developing countries 14 2.3.3. The interactive relationship between anti-dumping dispute settlement under the WTO law and under the national law of a Member country In theory as well as in practice, the anti-dumping dispute settlement under the WTO law is the subsequent process of anti-dumping dispute settlement between businesses under the national law of a Member country, which subsequently becomes a dispute between governments. This leads to overlaps and close link between the two types of dispute settlement. However, despite the existence of such a relationship, there are still fundamental differences between them. 2.4. The content of specific issues regarding international law applicable to anti-dumping dispute settlement at the WTO 2.4.1. The scope of dispute referred to the DSB Anti-dumping disputes referred to the DSB are limited to four types: disputes over definitive anti-dumping duties, the acceptance of a price undertaking, provisional measures, and the inconsistency of the national law of a Member with the ADA. The above mentioned disputes must be identified clearly in complainant’s request for establishment of a panel under Article 17.4 of the ADA and Article 6.2 of the DSU. 2.4.2. The content of some other specific issues regarding anti-dumping dispute settlement at the WTO CHAPTER 3 THE WTO’S PRACTICES OF ANTI-DUMPING DISPUTE SETTLEMENT AND THE PARTICIPATION OF DEVELOPING COUNTRIES AND VIETNAM 15 3.1. The WTO’s practices of anti-dumping dispute settlement 3.1.1. The WTO’s practices of anti-dumping dispute settlement in general Practices of anti-dumping dispute settlement shows that anti-dumping dispute is the most common type of disputes resolved within the WTO framework. While some developing Members participate very actively in resolving international trade disputes as well as anti-dumping ones, many other developing Member do not participate or only participate very limitedly. 3.1.2. Practices of anti-dumping dispute settlement in different stages of DSM proceedings 3.2. Practices of participation of some developing countries in anti-dumping dispute settlement at the WTO and noteworthy lessons 3.2.1. Practices of India’s participation in the WTO anti- dumping dispute settlement India is a founding member of both the GATT and the WTO, therefore, while most developing countries take a rather reserved approach to the WTO’s DSM, India has participated very actively in DSM under both GATT and the WTO. 3.2.2. Practices of China's participation in the WTO anti- dumping dispute settlement After officially joining the WTO, with a most rapidly developing economy in the world, China quickly becomes a "main player" in the WTO’s "playing field". China also quickly becomes a frequent participation in WTO anti-dumping cases both as plaintiff and defendant. 16 3.2.3. Practices of Thailand’s participation in the WTO anti- dumping dispute settlement Thailand officially became a member of the WTO from 01/01/1995. In DSM under GATT, Thailand did not have much experience. Only in the WTO, Thailand increasingly utilizes the WTO’s DSM to protect its interests. From the practices of participation of India, China and Thailand in the WTO anti-dumping dispute settlement, it shows that: - Participating as a third party is a clear demonstration of the capacity building strategy and of the policy "learning by doing"; - Being confident and well-prepared when participating in resolution of complex anti-dumping disputes is essential for victory; - Forming linkages and support among developing countries, while taking advantage of the support of other countries will increase the leverage in the WTO anti-dumping dispute settlement; - Utilizing effectively a team of international experts in fields related to the anti-dumping disputes. However, in the long run, it is necessary to develop a team of national experts in order to maximize the advantages as well as protect nation’s confidentiality while participating in the WTO anti-dumping dispute settlement; - Increasing the capacity of the government’s and private sector’s experts to participate general international trade disputes, and anti-dumping disputes in particular; training and appointing qualified individuals to the relevant bodies in the 17 WTO’s DSM; increasing the capacity and participation of trade associations and chambers of commerce in resolving WTO disputes, including anti-dumping disputes. 3.3. Practices of Vietnam’s participation in the WTO anti- dumping dispute settlement By the end of 12/2013, Vietnam has participated in nine anti-dumping cases at the WTO, of which in seven cases Vietnam participated as a third party, in the two cases as a plaintiff and not yet involved in any disputes as a defendant. From the practices of Vietnam's participation in the WTO anti-dumping dispute settlement, following remarks can be drawn: - Vietnam has participated gradually, proactively, positive in the WTO’s DSM. However, Vietnam has not yet fully taken advantage of WTO privileges for developing countries; - Vietnam has rightly identified the scope and issues to sue on. However, timing selection was not effective in some situations, which was one of the reasons for Vietnam’s incomplete victory in case DS404; - Vietnam has actively participated as a third party in other WTO members’ cases to gain valuable experience; - Vietnam has succeeded in seeking and taking advantage of other members’ support; - Vietnam has made active preparation, efforts came from both the private sectors, trade associations and from state agencies in a number of recent disputes; 18 - Vietnam has also been developing domestic human resources for future disputes although it still relies heavily on foreign lawyers. CHAPTER 4 DIRECTION AND SOLUTIONS FOR IMPROVING THE EFFECTIVENESS OF VIETNAM'S PARTICIPATION IN ANTI-DUMPING DISPUTE SETTLEMENT AT THE WTO 4.1. Fundamental views and direction for improving the effectiveness of Vietnam's participation in the WTO anti- dumping dispute settlement The solutions to improve the effectiveness of Vietnam's participation in the WTO anti-dumping dispute settlement are proposed consistently with the views and guidelines of the Party and the State on proactive participation in international economic integration, and in resolving international disputes and also with specific conditions of Vietnam 4.2. Solutions and specific suggestions for improving the effectiveness of Vietnam's participation in the WTO anti- dumping dispute settlement 4.2.1. General solutions for improving the effectiveness of Vietnam's participation in the WTO anti-dumping dispute settlement General solutions mainly focus on three important groups, include: taking advantages of preferences for developing Member within the WTO; building and improving the capacity on participation of dispute settlement; taking advantages of other Members’s and the ACWL’s support. 19 General solutions are ones that can be applied as Vietnam participates in the DSM/WTO regardless of its role as a plaintiff, defendant or third party, in which, besides improving the effectiveness of currentlyimplemented measures, it is important to increase the effectiveness of coordination mechanism between domestic ministries and agencies with the Vietnam’s delegation in Geneva in resolving international trade disputes in general and the WTO anti-dumping disputes in particular. 4.2.2. Some specific suggestions to Vietnam when participate in the WTO anti-dumping dispute settlement as a plaintiff, defendant or third party In addition to the general solutions, Vietnam also needs to develop specific solutions and strategies when participating in WTO anti-dumping disputes settlement at the WTO as a plaintiff, defendant or third party. CONCLUSION Anti-dumping dispute is one of the most common types of disputes at the WTO. The settlement of such disputes must comply with WTO applicable law, including both substantive and procedural rules. Sources of law applicable to the WTO anti-dumping dispute settlement correspond to the sources of the WTO law, which is basically based on traditional principles set forth in Article 38 (1) of the Statue of the International Court of Justice. International law applicable to anti-dumping dispute settlement at the WTO has a parallel history of formation and 20 development with the GATT 1947 and the WTO. It includes both law on general WTO dispute settlement and specifically tailored provisions for anti-dumping disputes over definitive anti-dumping duties, the the acceptance of a price undertaking, provisional measures and the inconsistency of the national law of a Member country with the ADA. Developing Members have been establishing their role and position in the WTO anti-dumping dispute settlement. When they participate in the settlement process of the WTO anti-dumping disputes, developing Members have many opportunities but also face great challenges. Anti-dumping disputes are inherently extremely complex, therefore, developing Member should study thoroughly the WTO’s applicable law and practices as well as learn from the other Members’ experience to develop an effective approach and to participate proactively in the WTO anti-dumping dispute settlement system. Practices of the WTO anti-dumping dispute settlement show an increase in both the quantity and the complexity of the disputes. Additionally, it also shows the active participation some developing countries, namely India, China and Thailand. The experience of three countries is valuable for Vietnam when participating in the WTO anti-dumping dispute settlement. After more than seven years of joining the WTO, Vietnam's participation in the DSM of the WTO is still limited. Obviously, Vietnam needs to put more effort, and actively learn from the experience of other Members to set out feasible solutions to improve the effectiveness of its participation in the WTO anti-dumping dispute settlement. 21 Solutions to improve the effectiveness of Vietnam’s participation in the WTO anti-dumping dispute settlement must be built consistently with the views and guidelines of the Political Party and the State which encourage proactive participation in international economic integration, and in resolving international disputes, and also consistently with basic orientations as follow: - Being based on results of objective and comprehensive assessment and predictive studies of trends and development of anti-dumping dispute settlement within the WTO framework; - Responding to specific conditions of Vietnam; - Being comprehensive and systematic, including both preventive and corrective solutions to deal with anti-dumping disputes once they arise settlement within the WTO framework, placing the focus on preventing such disputes from arising; - Being built on the foundation of an effective cooperation mechanism between the State, enterprises and business associations; between domestic agencies and the Vietnam’s delegation in Geneva; - Combining legal measures with other supportive measures such as lobbying or forming alliance with same sided parties, while at the same time taking induce the public to support Vietnam’s position; - Combining utilizing internal human resources with enlisting external supports, including the consultancy and assistance of the ACWL. When involved in a WTO anti-dumping case, either as a plaintiff, defendant or third party, Vietnam should adopt the following solutions: 22 - Participating more actively in the DSM of the WTO as well as take advantages of the WTO’s preferences for developing countries; - Preparing by obtaining knowledge relevant to the WTO anti-dumping dispute settlement, proactively learn from the experiences of other countries; - Encouraging the active role of enterprises and promote collaboration between enterprises, associations and competent state agencies; - Establishing an effective mechanism of cooperation between domestic agencies and the Vietnam’s delegation in Geneva; - Establishing a training strategy to develop the workforce, allowing Vietnam nationals experts to participate more comprehensively in WTO bodies as well as in panels and the AB; - Enlisting other members’ support; - Utilizing more effectively the consultancy and assistance from the ACWL. When participating in a WTO anti-dumping case as a plaintiff, Vietnam should adopt some specific solutions as the following: - Identifying the scope and timing of petition and chose the right issues; - Paying attention to and utilizing consultation more effectively; - Preparing proactively and focus on the panel stage, from preparing the request for the establishment of a panel to the entire proceedings at the panel stage; 23 - Preparing in advance for appealing the case as necessary, as well as for the posibility that the case will be appealed, to pursue the lawsuit until last win; - Proactively coming up with a scheme to oversee the implementation the DSB's decisions by the losing party, including the posibility of imposing retaliatory measures if Vietnam is in the wining side; - Actively preparing both the finance and human resources for a long way pursuing a case; being active in presentation and debate at the meeting of the Panel; analysing and identifying the situation and anticipate possible requests and proposals of defendants to be able to respond effectively, thus maximizing Vietnam’s legitimate interests. If Vietnam participates as a defendant in a WTO anti- dumping case, Vietnam should adopt some specific solutions as the following: (1) To prevent being sued: - Regularly conducting periodical and spontaneous review of the implementation of the ADA and Vietnam’s anti- dumping legislation to ensure the conformity of Vietnamese law with the ADA; - Actively participating in the improving the WTO’s law and DSM, including issues related to anti-dumping dispute settlement; - Confidently imposing anti-dumping measures on imported dumping products. (2) If being taken to the DSB: - Willingly participating in the proceedings; 24 - Taking advantage of defendant’s rights in resolving dispute at the WTO; extending the deadlinesas far as allowed if necessary, while at the same time negotiating with or pressuring the opponent or rapidly completing the anti-dumping investigation being conducted at home; - Preparing a plan for implementation of the DSB’s decisions in a reasonable manner in the situation of Vietnam loses the case. If Vietnam participates as a third party in a WTO anti- dumping dispute: it should engage with a serious and proactive attitude, considering it a real experience as the disputing parties, not just a game with no string attached. Vietnam should establish groups of experts and/or lawyers, including lawyers of private law firms, to represent Vietnam and building strategy plans to participate effectively. In addition, Vietnam should establish an effective reporting mechanism, update information of other partners, collect lessons and experiences after each anti-dumping dispute in which Vietnam participates as a third party ./.

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