Chương VII Nghị định 69/2018/NĐ-CP: Cơ chế phối hợp trong giải quyết tranh chấp về áp dụng biện pháp quản lý ngoại thương

Chapter VII

COORDINATION IN SETTLEMENT OF DISPUTE OVER FOREIGN TRADE POLICY MEASURES ADOPTED

Section 1. GENERAL PROVISIONS

Article 57. Coordination rules

1. The authority in charge and relevant entities shall coordinate in settling dispute over foreign trade policy measures adopted in an active, consistent, accurate, timely and effective manner in accordance with this Decree and Vietnam’s laws and regulations so as to protect Vietnam’s rights and legitimate interests to their best of competence.

2. The coordination between the authority in charge and relevant entities in settling dispute over foreign trade policy measures adopted shall be carried out in accordance with regulations on settlement of disputes in international treaties to which the Socialist Republic of Vietnam is a signatory which set forth dispute settlement rules for foreign trade policy measures adopted that are considered as subject matters in the dispute cases (hereinafter referred to as international treaty on dispute settlement).

3. The authority in charge and relevant entities shall take legal liability for any consequences following the non-coordination or unqualified coordination as prescribed in Clause 1 hereof.

4. The  authority in charge and relevant entities shall protect the state’s secrets as prescribed by law, protect information on the dispute settlement process as prescribed in relevant international treaties on dispute settlement.

Article 58. Matters to be coordinated

The matters to be coordinated between the authority in charge and relevant entities in dispute settlement over foreign trade policy measures adopted:

1. Dealing with claims, mediation, consultation against dispute or conflict between Vietnamese government and a foreign government over foreign trade policy measures adopted not in accordance with international treaty on foreign trade policy measures adopted.

2. Formulating and implementing plan for dispute settlement over foreign trade policy measures adopted

3. Furnishing information, documentation and evidence for the dispute settlement over foreign trade policy measures adopted.

4. Having qualified persons to participate in dispute settlement over foreign trade policy measures adopted upon request by the authority in charge.

5. Perform tasks for settling dispute over foreign trade policy measures adopted during the proceedings of the arbitral body or international jurisdiction agency).

6. Implement and deal with the ultimate conclusion or decision of the arbitral body or international jurisdiction agency, review the adherence to such ultimate conclusion or decision.

Article 59. Authority in charge

1. The authority in charge of dispute over foreign trade policy measures adopted is a regulatory agency empowered by the Government to manage and monitor such measures, unless otherwise prescribed by an international treaty on dispute settlement applicable to these foreign trade policy measures.

2. If at least 2 regulatory agencies are empowered to manage and monitor the foreign trade policy measures adopted, being subject matter of a specific dispute, these two shall agree to choose one agency to act as the authority in charge; and then send a report to the Prime Minister and notify the Ministry of Industry and Trade in writing.

3. If Vietnamese government has been complained against, within 3 working days from the date on which the consultation request is received but the authority in charge cannot be chosen, they must send a report to the Prime Minister and notify the Ministry of Industry and Trade in writing.

4. In necessary circumstances, at the request of the Minister of Industry and Trade, the Prime Minister shall designate or replace the authority in charge.

5. The authority in charge shall have responsibilities and power to:

a) Receive and process information and documentation in respect of the dispute settlement over foreign trade policy measures adopted.

b) Act as a contact point to facilitate communications with the foreign government which engages in the dispute and with the arbitral body or international jurisdiction agency.

c) Take charge and cooperate with the designated contact point and relevant entities during the dispute settlement over foreign trade policy measures adopted at the arbitral body or international jurisdiction agency.

d) Cooperate with the designated contact point and relevant entities in formulating plan for dispute settlement over foreign trade policy measures adopted.

dd) Take charge and cooperate with the designated contact point and relevant entities to choose arbitrators if a arbitral body is established to settle the dispute over foreign trade policy measures adopted.

e) Take charge and cooperate with the designated contact point to choose, engage and supervise the law-practicing organization (hereinafter referred to as lawyer) advising on the dispute settlement over foreign trade policy measures adopted.

g) Take charge and cooperate with relevant entities in dealing with matters relating to dispute over foreign trade policy measures adopted, including engaging technical experts and witnesses for the dispute settlement.

h) Attend hearings of the arbitral body or international jurisdiction agency.

i) Report to the Prime Minister, the designated contact point and competent regulatory authorities on matters in respect of dispute over foreign trade policy measures adopted as prescribed in this Decree and other law provisions.

Article 60. Designated contact point

1. The Ministry of Industry and Trade shall act as a designated contact point to assist the Government in dealing with disputes over foreign trade policy measures adopted.

2. The designated contact point in dispute settlement over foreign trade policy measures adopted shall have duties and power to:

a) Act as a focal point to assist the Government, the Prime Minister to give consistent direction to the dispute settlement over foreign trade policy measures adopted so as to protect Vietnam’s rights and legitimate interests.

b) Cooperate with relevant entities and the hired lawyer prescribed in this Decree in advising the designated contact point of legal matters in conjunction with dispute settlement over foreign trade policy measures adopted at the request of the designated contact point.

c) Cooperate with the authority in charge in engaging a lawyer to settle dispute specific foreign trade policy measures adopted.

d) Cooperate with the designated contact point in choosing arbitrators if a arbitral body is established to settle the dispute over foreign trade policy measures adopted.

dd) Cooperate with the designated contact point and relevant entities in formulating plan for dispute settlement over foreign trade policy measures adopted.

e) Attend the hearings against dispute settlement over foreign trade policy measures adopted on behalf of Vietnamese government in necessary case or at the request of the designated contact point.

g) Have representative attend hearings of the arbitral body or international jurisdiction agency.

h) Cooperate with the authority in charge and relevant agencies, organizations, and individuals in implementing the ultimate judgment or decision of the arbitral body or the international jurisdiction agency.

i) Formulate and update the list of experts qualified as arbitrators and the list of law-practicing organizations potentially defending Vietnamese government and Vietnam’s regulatory bodies in dispute settlement over foreign trade policy measures adopted.

Article 61. Relevant entities

1. Relevant entities are regulatory bodies, organizations and individuals associated with dispute settlement over foreign trade policy measures adopted, which are invited or requested by the authority in charge to join the dispute settlement over foreign trade policy measures adopted.

2. The relevant entities have duties and power to:

a) Cooperate with the authority in charge and designated contact point in settling dispute over foreign trade policy measures adopted at their requests in conformity with its professional competence or line management.

b) Provide information, documentation, evidence and representation at the request of the authority in charge and designated contact point.

c) Request the authority in charge to provide information or additional information about the dispute over foreign trade policy measures adopted.

Section 2. Procedures for settling disputes that the foreign government files a complaint

Article 62. Receive and process information and documentation in respect of the dispute settlement over foreign trade policy measures adopted

1. Entities empowered to adopt the foreign trade policy measures, upon receiving information about whether a foreign government may file a complaint or notice of complaint against dispute over foreign trade policy measures adopted sent by a arbitral body or international jurisdiction agency or a foreign government, shall forward it to its superior body and the designated contact point.

2. If an entity which is not empowered to adopt the foreign trade policy measure prescribed in Clause 1 of this Article, upon receiving information about whether a foreign government may file a complaint or notice of complaint against dispute over foreign trade policy measures adopted sent by a arbitral body or international jurisdiction agency or a foreign government, shall send a written notice and copies of all documentation received to one of the following agencies, within 3 working days from the receipt of aforesaid notice:

a) The entity empowered to adopt the foreign trade policy measure prescribed in Clause 1 hereof.

b) The superior body and the designated contact point if the entity empowered to adopt the foreign trade policy measure is not identifiable as prescribed in Clause 1 hereof.

3. Within 3 working days from the date on which the written notice prescribed in Clause 2 hereof or another written notice from other entity is received, the designated contact point shall forward it and copies of documentation received to one of the following agencies:

a) The authority in charge prescribed in Clause 1 Article 59 hereof.

b) Office of the Government, which requests the Prime Minister to choose the authority in charge as prescribed in Clause 2, Clause 3, Clause 4 Article 59 hereof.

4. Within 5 working days from the date on which the written notice of the designated contact point is received as prescribed in Point b Clause 3 hereof, Office of the Government shall request the Prime Minister to assign an authority in charge.

Within 3 working days after the Prime Minister assigned an authority in charge, Office of the Government shall notify the authority in charge such assignment.

Article 63. Formulating and implementing plan for dispute settlement over foreign trade policy measures

1. The designated contact point shall take charge and cooperate with the authority in charge, relevant entities and lawyers (if any) to formulate a plan for dispute settlement over foreign trade policy measures adopted, and then submit it to the Prime Minister for approval within 35 working days from the receipt of information about whether a foreign government may file a complaint as prescribed in Clause 1, Clause 2 Article 62 hereof.

2. The plan for dispute settlement over foreign trade policy measures adopted includes:

a) A summary of dispute.

b) Legal proceedings against the dispute over foreign trade policy measures adopted as prescribed in treaties on dispute settlement; tasks to be performed to settle the dispute and corresponding milestones in conformity with the legal proceedings.

c) Specific duties of the designated contact point, authority in charge, relevant entities and lawyers (if any).

d) Analysis of strong and weak points of Vietnamese government and the foreign government.

dd) Proposal of potential plan for settlement of dispute over foreign trade policy measures adopted, including mediation plan; matters need advisory opinion from the Prime Minister and other competent authorities.

e) Estimate of expenses and funding for dispute settlement over foreign trade policy measures adopted.

3. The designated contact point shall cooperate with the authority in charge, relevant entities and hired lawyers (if any) to implement the plan for dispute settlement over foreign trade policy measures adopted. In necessary cases and in conformity with reality, the designated contact point shall cooperate with the authority in charge, relevant entities and hired lawyers (if any) to implement the plan for dispute settlement over foreign trade policy measures adopted.

4. The designated contact point shall send the plan for dispute settlement over foreign trade policy measures adopted and amendments (if any) as prescribed in Clause 2 and Clause 3 of this Article to the Prime Minister and the authority in charge.

5. The authority in charge shall, monthly or quarterly depending on the complexity and progress of the dispute, notify the designated contact point of progress of the plan for dispute settlement over foreign trade policy measures adopted. The designated contact point shall monitor the plan for dispute settlement over foreign trade policy measures adopted of the authority in charge and deal with difficulties arising during the implementation of plan for dispute settlement over foreign trade policy measures adopted.

6. The plan for dispute settlement over foreign trade policy measures adopted shall be kept as a secret document.

Article 64. Responsibilities for receiving and processing request for consultation

1. The receipt and processing of request for consultation shall be done in accordance with treaties on dispute settlement.

2. The entities empowered to adopt the foreign trade policy measures shall receive and process requests for consultations against foreign trade policy measures adopted upon the request of foreign governments in accordance with treaties on adoption of foreign trade policy measures.

3. If a non-competent authority receives a request for consultation from a foreign government as prescribed in Clause 2 hereof, it shall guide the foreign government to send such a request to the competent authority and notify the competent authority of such request for consultation.

Article 65. Processing request for consultation in case of the measure in question showing sign of breach of undertaking in treaties on adoption of foreign trade policy measures

1. During the consultation with the foreign government, the entity empowered to adopt the foreign trade policy measure shall send a report on measure subject to consultation to its superior body and the designated contact point if:

a) The measure in question shows signs of breach of laws or regulations or treaties on adoption of foreign trade policy measures against foreign governments, with prejudice to rights and legitimate interests of Vietnam or foreign government; or

b) Cannot reach a satisfactory solution to the request for consultation of the foreign government; or

c) A dispute over foreign trade policy measures adopted appears likely to arise.

2. The entity empowered to adopt the foreign trade policy measure, during the consultation with the foreign government, shall notify the designated contact point and competent authorities of the consultation development for further actions.

3. During the consultation, if considered suitable, the entity empowered to adopt the foreign trade policy measure may enter into negotiation and mediation with the foreign government according to the plan approved by the superior body with reference to the designated contact point.

Article 66. Liability of entity which promulgated or adopted measure in breach of Vietnam’s international undertakings leading dispute over foreign trade policy measures adopted

Liability of entity which promulgated or adopted measure in breach of Vietnam’s international undertakings leading dispute over foreign trade policy measures adopted shall be identified in accordance with Vietnamese laws.

Section 3. PROCEDURES FOR SETTLING DISPUTES THAT VIETNAMESE GOVERNMENT FILES A COMPLAINT

Article 67. Responsibilities for proposing and processing consultation request

1. The proposal and processing of request for consultation shall be done in accordance with treaties on dispute settlement.

2. The entities empowered to adopt the foreign trade policy measures shall propose and process requests for consultations against foreign trade policy measures adopted upon detection or request of traders, industry unions in terms of foreign trade policy measures adopted by foreign governments likely prejudice to rights and interests of Vietnam in accordance with treaties on adoption of foreign trade policy measures.

Article 68. Processing request for consultation in case of the measure in question showing sign of breach of undertaking in treaties on adoption of foreign trade policy measures

1. During the consultation with the foreign government, the entity empowered to adopt the foreign trade policy measure shall send a report on consultation case to its superior body and the designated contact point if:

a) The measure in question adopted by foreign government shows signs of breach of laws or regulations or treaties on adoption of foreign trade policy measures against Vietnamese government, with prejudice to rights and legitimate interests of Vietnamese government; or

b) Cannot reach a satisfactory solution to the request for consultation of Vietnamese government; or

c) A dispute over foreign trade policy measures adopted appears likely to arise.

2. Within 3 working days from the date on which the written notice prescribed in Clause 1 hereof or another written notice from other entity is received, the designated contact point shall forward it and copies of documentation received to one of the following agencies:

a) The authority in charge prescribed in Clause 1 Article 59 hereof.

b) Office of the Government, which requests the Prime Minister to choose the authority in charge as prescribed in Clause 2, Clause 3, Clause 4 Article 59 hereof.

3. Within 5 working days from the date on which the written notice of the designated contact point is received as prescribed in Point b Clause 2 hereof, Office of the Government shall request the Prime Minister to assign an authority in charge.

Within 3 working days after the Prime Minister assigned an authority in charge, Office of the Government shall notify the authority in charge such assignment.

4. The entity empowered to adopt the foreign trade policy measure, during the consultation with the foreign government, shall notify the designated contact point and competent authorities of the consultation development for further actions.

5. During the consultation, if considered suitable, the entity empowered to adopt the foreign trade policy measure may enter into negotiation and mediation with the foreign government according to the plan approved by the superior body with reference to the designated contact point.

Article 69. Formulating and implementing plan for dispute settlement over foreign trade policy measures

1. The designated contact point shall take charge and cooperate with the authority in charge, relevant entities and lawyers (if any) to formulate a plan for dispute settlement over foreign trade policy measures adopted, and then submit it to the Prime Minister for approval within 20 working days from the end of consultation as prescribed in Article 67 hereof.

2. The formulation, amendment and implementation of plan for dispute settlement of foreign trade policy measures adopted shall be done in accordance with Clause 2, Clause 3, Clause 4, Clause 5 Article 63 hereof.

3. The plan for dispute settlement over foreign trade policy measures adopted shall be kept as a secret document.