The Parties shall apply global safeguard measures in accordance with the provisions of Article XIX of GATT 1994 and the Agreement on Safeguards, in Annex 1A to the WTO Agreement.
Article 3.4. Bilateral Safeguard Measures
1. Where, as a result of the reduction or elimination of a customs duty under this Agreement, any originating good of a Party is being imported into the territory of the other Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to constitute a substantial cause of serious injury or threat thereof to the domestic industry producing like or directly competitive goods in the territory of the importing Party, the importing Party may apply a bilateral safeguard measure during the transition period for that good to the extent necessary to remedy or prevent the serious injury or threat thereof, subject to the provisions of this Article.
2. A bilateral safeguard measure shall only be applied upon demonstrating clear evidence that increased imports constitute a substantial cause of or are threatening to cause serious injury.
3. The Party intending to apply a bilateral safeguard measure under this Article shall promptly, and in any case before applying a measure, notify the other Party and the Joint Committee. The notification shall contain all pertinent information, which shall include evidence of serious injury or threat thereof caused by increased imports, a precise description of the good concerned and the proposed measure, as well as the proposed date of introduction, expected duration and timetable for the progressive removal of the measure if relevant.
4. The Party that may be affected by the measure shall be offered compensation in the form of substantially equivalent trade liberalisation in relation to the imports from such Party. The Party shall, within 30 days from the date of notification referred to in paragraph 3 of this Article, examine the information provided in order to facilitate a mutually acceptable resolution of the matter. In the absence of such resolution, the importing Party may apply a bilateral safeguard measure to resolve the problem, and, in the absence of mutually agreed compensation, the Party against whose good the bilateral safeguard measure is applied may take compensatory action. The bilateral safeguard measure and the compensatory action shall be promptly notified to the other Party. The compensatory action shall normally consist of suspension of concessions having substantially equivalent trade effects and/or concessions substantially equivalent to the value of the additional duties expected to result from the bilateral safeguard measure. Compensatory action shall be taken only for the minimum period necessary to achieve the substantially equivalent trade effects and in any event, only while the bilateral safeguard measure under paragraph 5 of this Article is being applied.
5. If the conditions set out in paragraph 1 of this Article are met, the importing Party may apply a bilateral safeguard measure in the form of:
a) suspension of further reduction of any applicable rate of customs duty provided for in this Agreement for the good concerned; or
b) increase of the applicable rate of customs duty for the good concerned to a necessary level not exceeding the base rate indicated in Annex 1 to this Agreement.
6. The Parties may apply a bilateral safeguard measure for the following periods of time:
a) in the case of a good for which the customs duty reaches the final reduction rate within three years from the date of entry into force of this Agreement, a Party may apply a bilateral safeguard measure for a period of time not exceeding two years. A Party shall not apply a bilateral safeguard measure again on the same good during the one-year period after the expiration of the previous bilateral safeguard measure. Any bilateral safeguard measure shall not be applied more than twice to the same good.
b) in the case of a good for which the customs duty reaches the final reduction rate after three years from the date of entry into force of this Agreement, a Party may apply a bilateral safeguard measure for a period of time not exceeding two years. The period of application of a bilateral safeguard measure may be extended by up to one year if there is evidence that it is necessary to remedy or prevent serious injury or threat thereof and that the industry is adjusting. A Party shall not apply a bilateral safeguard measure again on the same good for the period of time equal to that during which such measure had been previously applied. Any bilateral safeguard measure shall not be applied more than twice to the same good.
7. Upon the termination of the bilateral safeguard measure, the rate of customs duty shall be the tate, which would have been in effect on the date of termination of the measure.
8. Neither Party may apply, with respect to the same good, at the same time:
a) a bilateral safeguard measure; and
b) a measure under Article XIX of GATT 1994 and the Agreement on Safeguards, in Annex 1A to the WTO Agreement.
9. Domestic industry referred to in paragraph 1 of this Article means the producers as a whole of the like or directly competitive goods operating within the territory of a Party or those producers whose collective production of the like or directly competitive goods constitutes a major proportion but not less than 25 percent of the total domestic production of such good.
10. Transition period referred to in paragraph 1 of this Article in relation to particular goods subject to a bilateral safeguard measure, means:
a) the period of time from the date of entry into force of this Agreement until seven years from the date of completion of the customs duty elimination or reduction in the case of a good for which the customs duty reaches the final reduction rate within three years from the date of entry into force of this Agreement;
b) the period of time from the date of entry into force of this Agreement until five years from the date of completion of the customs duty elimination or reduction in the case of a good for which the customs duty reaches the final reduction rate after three years, but only up to five years from the date of entry into force of this Agreement; and
c) the period of time from the date of entry into force of this Agreement until three years from the date of completion of the customs duty elimination or reduction in the case of a good for which the customs duty reaches the final reduction rate after five years from the date of entry into force of this Agreement.
Article 3.5. Notifications
1. All official communications and documentation exchanged between the Parties with respect to matters covered by this Chapter shall take place between the relevant authorities having the legal power to initiate and conduct investigations under this Chapter (hereinafter referred to as "the investigating authorities"). In case Viet Nam intends to apply a measure under this Chapter the other Party may designate a different responsible authority and shall notify Viet Nam of its designation.
2. The Parties shall exchange information on the names and contacts of the investigating authorities within 30 days from the date of entry into force of this Agreement. The Parties shall promptly notify each other of any change to the investigating authorities.
3. The Party intending to apply a global safeguard measure shall immediately provide to the other Party a written notification of all pertinent information on the initiation of an investigation, the provisional findings and the final findings of the investigation.
Chapter 4. RULES OF ORIGIN
Section I. GENERAL PROVISIONS
Article 4.1. Scope
The rules of origin provided for in this Chapter shall be applied only for the purposes of granting preferential tariff treatment in accordance with this Agreement.
Article 4.2. Definitions
For the purposes of this Chapter:
a) "aquaculture" means farming of aquatic organisms including fish, molluscs, crustaceans, other aquatic invertebrates and aquatic plants, from feedstock such as eggs, fry, fingerlings and larvae, by intervention in the rearing or growth processes to enhance production such as regular stocking, feeding, or protection from predators;
b) "authorised body" means the competent authority designated by a Party to issue a Certificate of Origin under this Agreement;
c) "CIF value" means the value of the goods imported and includes the cost of freight and insurance up to the port or place of entry into the country of importation;
d) "consignment" means goods that are sent simultaneously covered by one or more transport documents to the consignee from the exporter, as well as goods that are sent over a single post-invoice or transferred as a luggage of the person crossing the border;
e) "exporter" means a person registered in the territory of a Party where the goods are exported from by such person;
f) "FOB value" means the free-on-board value of the goods, inclusive of the cost of transport to the port or site of final shipment abroad;
g) "importer" means a person registered in the territory of a Party where the goods are imported into by such person;
h) "material" means any matter or substance including ingredient, raw material, component or part used or consumed in the production of goods or physically incorporated into goods or subjected to a process in the production of other goods;
i) "non-originating goods" or "non-originating materials" means goods or materials that do not fulfil the origin criteria of this Chapter;
j) "originating goods" or "originating materials" means goods or materials that fulfil the origin criteria of this Chapter;
k) "producer" means a person who carries out production in the territory of a Party;
l) "production" means methods of obtaining goods including growing, mining, harvesting, raising, breeding, extracting, gathering, capturing, fishing, hunting, manufacturing, processing or assembling such goods; and
m) "verification authority" means the competent governmental authority designated by a Party to conduct verification procedures.
Article 4.3. Origin Criteria
For the purposes of this Chapter, goods shall be considered as originating in a Party if they are:
a) wholly obtained or produced in such Party as provided for in Article 4.4 of this Agreement; or
b) produced entirely in one or both Parties, exclusively from originating materials from one or both Parties; or
c) produced in a Party using non-originating materials and satisfy the requirements of product specific rules specified in Annex 3 to this Agreement.
Article 4.4. Wholly Obtained or Produced Goods
For the purposes of Article 4.3 of this Agreement, the following goods shall be considered as wholly obtained or produced in a Party:
a) plants and plant goods, including fruit, berries, flowers, vegetables, trees, seaweed, fungi and live plants, grown, harvested, or gathered in the territory of a Party;
b) live animals born and raised in the territory of a Party; c) goods obtained from live animals in the territory of a Party;
d) goods obtained from gathering, hunting, capturing, fishing, growing, raising and aquaculture in the territory of a Party;
FOB value - Value of Non-Originating Materials / FOB value x 100%
where the value of non-originating materials shall be:
a) CIF value of the materials at the time of importation to a Party; or
b) the earliest ascertained price paid or payable for non-originating materials in the territory of the Party where the working or processing takes place.
When, in the territory of a Party, the producer of the goods acquires non-originating materials within such Party, the value of such materials shall not include freight, insurance, packing costs and any other costs incidental to the transport of those materials from the location of the supplier to the location of production.
Article 4.6. Insufficient Working or Processing
1. The following operations undertaken exclusively by themselves or in combination with each other are considered to be insufficient to meet the requirements of Article 4.3 of this Agreement:
a) preserving operations to ensure that a product retains its condition during transportation and storage;
b) freezing or thawing;
c) packaging and re-packaging;
d) washing, cleaning, removing dust, oxide, oil, paint or other coverings;
e) ironing or pressing of textiles;
f) colouring, polishing, varnishing, oiling;
g) husking, partial or total bleaching, polishing and glazing of cereals and rice;
h) operations to colour sugar or form sugar lumps;
i) peeling and removal of stones and shells from fruits, nuts and vegetables;
j) simple sharpening, grinding;
k) cutting;
l) sifting, screening, sorting, classifying;
m) placing in bottles, cans, flasks, bags, cases, boxes, fixing on surface and all other simple packaging operations;
n) affixing or printing marks, labels, logos and other like distinguishing signs on products or their packaging;
o) simple mixing of products (components) which does not lead to a sufficient difference of product from the original components;
p) simple assembly of a product or disassembly of products into parts; and
q) slaughter of animals, sorting of meat.
2. For the purposes of paragraph 1 of this Article, "simple" describes activities which do not require special skills or machines, apparatus or equipment especially designed for carrying out such activities.
Article 4.7. Accumulation of Origin
Without prejudice to Article 4.3 of this Agreement, the goods or materials originating in a Party, which are used as material in the manufacture of a product in the other Party, shall be considered as originating in such Party where the last operations other than those referred to in paragraph 1 of Article 4.6 of this Agreement have been carried out. The origin of such material shall be confirmed by a Certificate of Origin (Form EAV) issued by an authorised body.
Article 4.8. De Minimis
1. Goods that do not undergo a change in tariff classification pursuant to Annex 3 to this Agreement are nonetheless considered originating if:
a) the value of all non-originating materials that are used in the production of the goods and do not undergo the required change in tariff classification, does not exceed 10 percent of the FOB value of such goods; and b) the goods meet all other applicable requirements of this Chapter.
2. The value of materials referred to in subparagraph a) of paragraph 1 of this Article shall be included in the value of non-originating materials for any applicable VAC requirement.
Article 4.9. Direct Consignment
1. Preferential tariff treatment in accordance with this Chapter shall be granted to originating goods provided that such goods are transported directly from the territory of the exporting Party to the territory of the importing Party.
2. Notwithstanding paragraph 1 of this Article, originating goods may be transported through the territory of one or more third countries, provided that:
a) transit through the territory of a third country is justified for geographical reasons or related exclusively to transport requirements;
b) the goods have not entered into trade or consumption there; and
c) the goods have not undergone any operation there other than unloading, reloading, storing or any necessary operation designed to preserve their condition.
3. A declarant shall submit appropriate documentary evidence to the customs authorities of the importing Party confirming that the conditions set out in paragraph 2 of this Article have been fulfilled. Such evidence shall be provided to the customs authorities of the importing Party by submission of:
a) the transport documents covering the passage from the territory of a Party to the territory of the other Party containing:
i. an exact description of the goods;
ii. the dates of unloading and reloading of the goods (if the transport documents do not contain the dates of unloading and reloading of the goods, other supporting document containing such information shall be submitted in addition to transport documents); and
iii. where applicable:
- the names of the ships or other means of transport used;
- the containers' numbers;
- the conditions under which the goods remained in the country of transit in proper condition;
- the marks of the customs authorities of the country of transit; and b) the commercial invoice in respect of the goods.
4. A declarant may submit other supporting documents to prove that the requirements of paragraph 2 of this Article are fulfilled.
5. If the transport documents cannot be provided, a document issued by the customs authorities of the country of transit containing all the information referred to in subparagraph a) of paragraph 3 of this Article shall be submitted.
6. If a declarant fails to provide the customs authorities of the importing Party with documentary evidence of direct consignment, preferential tariff treatment shall not be granted.
Article 4.10. Direct Purchase
1. The importing Party shall grant preferential tariff treatment for originating goods in cases where the invoice is issued by a person registered in a third country, provided that such goods meet the requirements of this Chapter.
2. Notwithstanding paragraph 1 of this Article the importing Party shall not grant preferential tariff treatment in cases where the invoice is issued by a person registered in a third country included in the list of offshore countries to be established in a joint protocol. The respective competent authorities of the Parties shall be entitled to adopt such protocol by mutual consent and shall make it publicly available.
3. Without prejudice to paragraph 2 of this Article before the joint protocol referred to in paragraph 2 of this Article is adopted, the list of offshore countries or territories specified in Annex 4 to this Agreement shall apply.
Article 4.11. Packaging Materials for Retail Sale
1. Packaging materials and containers in which goods are packaged for retail sale, if classified with the goods, shall be disregarded in determining whether all the non-originating materials used in the production of those goods have undergone the applicable change in tariff classification set out in Annex 3 to this Agreement.
2. Notwithstanding paragraph 1 of this Article in determining whether the goods fulfil the VAC requirement, the value of the packaging used for retail sale will be counted as originating or non-originating materials, as the case may be, in calculating the VAC of the goods.
Article 4.12. Packing Materials for Shipment
Packing materials and containers in which goods are packed exclusively for transport shall not be taken into account for the purposes of establishing whether the goods are originating.
Article 4.13. Accessories, Spare Parts, Tools and Instructional or other Information Materials
1. In determining whether the goods fulfil the change in tariff classification requirements specified in Annex 3 to this Agreement, accessories, spare parts, tools and instructional or other information materials, which are part of the normal equipment and included in its FOB price, or which are not separately invoiced, shall be considered as part of the goods in question and shall not be taken into account in determining whether the goods qualify as originating.
2. Notwithstanding paragraph 1 of this Article in determining whether the goods fulfil the VAC requirement, the value of accessories, spare parts, tools and instructional or other information materials shall be taken into account as originating materials or non-originating materials, as the case may be, in calculating VAC of the goods.
3. This Article shall apply only where:
a) accessories, spare parts, tools and instructional or other information materials presented with the goods are not invoiced separately from such goods; and
b) the quantities and value of accessories, spare parts, tools and instructional or other information materials presented with the goods are customary for such goods.
Article 4.14. Sets
Sets, as defined in Rule 3 of the General Rules of the interpretation of the Harmonized System, shall be regarded as originating when all component products are originating. Nevertheless, when a set is composed of originating and non-originating products, the set as a whole shall be regarded as originating, provided that the value of the non-originating products does not exceed 15 percent of the FOB value of the set.
Article 4.15. Indirect Materials
In order to determine the origin of goods, the origin of the following indirect materials which might be used in the production of such goods and not be incorporated into such goods shall not be taken into account:
a) fuel and energy;
b) tools, dies and moulds;
c) spare parts and materials used in the maintenance of equipment and buildings;
d) lubricants, greases, compounding materials and other materials used in the production or used to operate equipment and buildings;
e) gloves, glasses, footwear, clothing, safety equipment;
f) equipment, devices used for testing or inspecting the goods;
g) catalyst and solvent; and
h) any other goods that are not incorporated into such goods but the use of which in the production of such goods can be demonstrated to be a part of that production.
Section II. DOCUMENTARY PROOF OF ORIGIN
Article 4.16. Claim for Preferential Tariff Treatment
1. For the purposes of obtaining preferential tariff treatment, the declarant shall submit a Certificate of Origin to the customs authorities of the importing Party in accordance with the requirements of this Section.
2. The Certificate of Origin submitted to the customs authorities of the importing Party shall be an original, valid and in conformity with the format as set out in Annex 5 to this Agreement and shall be duly completed in accordance with the requirements set out in Annex 5 to this Agreement.
3. The authorised body of the exporting Party shall ensure that Certificates of Origin are duly completed in accordance with the requirements set out in Annex 5 to this Agreement.
4. The Certificate of Origin shall be valid for a period of 12 months from the date of issuance and must be submitted to the customs authorities of the importing Party within that period but not later than the moment of the submission of the import customs declaration, except in circumstances stipulated in paragraph 2 of Article 4.20 of this Agreement.
5. Where the central customs authorities and the authorised bodies of the Parties have developed and implemented the Electronic Origin Certification and Verification System (hereinafter referred to as "EOCVS") referred to in Article 4.29 of this Agreement, the customs authorities of the importing Party in accordance with its respective domestic laws and regulations may not require the submission of the original Certificate of Origin if the customs declaration is submitted by electronic means. In this case, the date and number of such Certificate of Origin shall be specified in the customs declaration. Where the customs authorities of the importing Party have a reasonable doubt as to the origin of the goods for which preferential tariff treatment is claimed and/or there is a discrepancy with the information containing in the EOCVS, the customs authorities of the importing Party may require the submission of the original Certificate of Origin.
Article 4.17. Circumstances When Certificate of Origin Is Not Required
A Certificate of Origin is not required in order to obtain preferential tariff treatment for commercial or non-commercial importation of originating goods where the customs value does not exceed the amount of 200 US dollars or the equivalent amount in the importing Party's currency or such higher amount as such importing Party may establish, provided that the importation does not form part of one or more consignments that may reasonably be considered to have been undertaken or arranged for the purposes of avoiding the submission of the Certificate of Origin.
Article 4.18. Issuance of Certificate of Origin
1. The producer or exporter of the goods or its authorised representative shall apply to an authorised body of the exporting Party for a Certificate of Origin in writing or by electronic means if applicable.
2. The Certificate of Origin shall be issued by the authorised body of the exporting Party to the producer or exporter of the goods or its authorised representative prior to or at the time of exportation whenever the goods to be exported can be considered originating in a Party within the meaning of this Chapter.
3. The Certificate of Origin shall cover the goods under one consignment.
4. Each Certificate of Origin shall bear a unique reference number separately given by the authorised body.
5. If all goods covered by the Certificate of Origin cannot be listed on one page, additional sheets, as set out in Annex 5 to this Agreement, shall be used.
6. The Certificate of Origin shall be done in hard copy and shall comprise one original and two copies.
7. One copy shall be retained by the authorised body of the exporting Party. The other copy shall be retained by the exporter.
8. Without prejudice to paragraph 4 of Article 4.16 of this Agreement, in exceptional cases, where a Certificate of Origin has not been issued prior to or at the time of exportation it may be issued retroactively and shall be marked “ISSUED RETROACTIVELY”.
9. The submitted original Certificate of Origin shall be retained by the customs authorities of the importing Party except in circumstances stipulated in its respective domestic laws and regulations.