(a) import licensing conditioned on the fulfilment of a performance requirement; or
(b) voluntary export restraints.
3. Paragraphs 1 and 2 do not apply to the goods listed in Appendix 2-A-4 (Goods to Which Viet Nam May Apply Specific Measures). Any amendment of Viet Nam's laws and regulations that reduces the scope of the goods listed in Appendix 2-A-4 (Goods to Which Viet Nam May Apply Specific Measures) shall automatically apply under this Agreement. Any preference accorded by Viet Nam regarding the scope of the goods listed in Appendix 2-A-4 (Goods to Which Viet Nam May Apply Specific Measures) to any other trading partner shall automatically apply under this Agreement. Viet Nam shall notify the Union of any amendment or preference referred to in this paragraph.
4. In accordance with the WTO Agreement, a Party may implement any measure authorised by the Dispute Settlement Body of the WTO against the other Party.
5. When a Party adopts or maintains an import or export prohibition or restriction it shall ensure full transparency thereof.
Article 2.15. Trading Rights and Related Rights for Pharmaceuticals
1. Viet Nam shall adopt and maintain appropriate legal instruments allowing foreign pharmaceutical companies to establish foreign-invested enterprises for the purposes of importing pharmaceuticals which have obtained a marketing authorisation from Viet Nam's competent authorities. Without prejudice to Viet Nam's schedules included in Annex 8-B (Viet Nam's Schedule of Specific Commitments), such foreign-invested enterprises are allowed to sell pharmaceuticals which they have legally imported to distributors or wholesalers who have the right to distribute pharmaceuticals in Viet Nam.
2. The foreign-invested enterprises referred to in paragraph 1 are allowed to:
(a) build their own warehouses to store pharmaceuticals which they have legally imported into Viet Nam in accordance with the regulations issued by the Ministry of Health, or its successor;
(b) provide information relating to pharmaceuticals, which they have legally imported into Viet Nam, to health care professionals in accordance with the regulations issued by the Ministry of Health, or its successor, and Viet Nam's other competent authorities; and
(c) carry out clinical studies and testing pursuant to Article 3 (International Standards) of Annex 2-C (Pharmaceutical/ Medicinal Products and Medical Devices) and in accordance with the regulations issued by the Ministry of Health, or its successor, to ensure that the pharmaceuticals which they have legally imported into Viet Nam are suitable for domestic consumption.
Article 2.16. Import Licensing Procedures
1. The Parties affirm their rights and obligations under the Import Licensing Agreement.
2. Each Party shall notify the other Party of its existing import licensing procedures, including the legal basis and the relevant official website, within 30 days of the entry into force of this Agreement unless they were already notified or provided under Article 5 or paragraph 3 of Article 7 of the Import Licensing Agreement. The notification shall contain the same information as referred to in Article 5 or paragraph 3 of Article 7 of the Import Licensing Agreement.
3. Each Party shall notify the other Party of any introduction or modification of any import licensing procedure which it intends to adopt no later than 45 days before the new procedure or modification takes effect. In no case shall a Party provide such notification later than 60 days following the date of the publication of the introduction or modification unless this was already notified in accordance with Article 5 of the Import Licensing Agreement. The notification shall contain the same information as referred to in Article 5 of the Import Licensing Agreement.
4. Each Party shall publish on an official website any information that it is required to publish pursuant to subparagraph 4(a) of Article 1 of the Import Licensing Agreement.
5. Upon request of a Party, the other Party shall respond within 60 days to a reasonable enquiry regarding any import licensing procedure which it intends to adopt or has adopted or maintained, as well as the criteria for granting or for allocating import licences, including the eligibility of persons, firms, and institutions to make such an application, the administrative body or bodies to be approached and the list of products subject to the import licensing requirement.
6. The Parties shall introduce and administer import licensing procedures in accordance with:
(a) paragraphs 1 to 9 of Article 1 of the Import Licensing Agreement;
(b) Article 2 of the Import Licensing Agreement; and
(c) Article 3 of the Import Licensing Agreement.
To that end, the provisions referred to in subparagraphs (a), (b) and (c) are incorporated into and made part of this Agreement, mutatis mutandis.
7. A Party shall only adopt or maintain automatic import licensing procedures as a condition for importation into its territory in order to fulfil legitimate objectives after having conducted an appropriate impact assessment.
8. A Party shall grant import licences for an appropriate length of time which shall not be shorter than set out in the domestic legislation providing for the import licensing requirements and which shall not preclude imports.
9. Where a Party has denied an import licence application with respect to a good of the other Party, it shall, upon request of the applicant and promptly after receiving the request, provide the applicant with a written explanation of the reasons for the denial. The applicant shall have the right of appeal or review in accordance with the domestic legislation or procedures of the importing Party.
10. The Parties shall only adopt or maintain non-automatic import licensing procedures in order to implement a measure that is not inconsistent with this Agreement, including with Article 2.22 (General Exceptions). A Party adopting non-automatic import licensing procedures shall indicate clearly the purpose of such licensing procedures.
Article 2.17. Export Licensing Procedures
1. Each Party shall notify the other Party of its existing export licensing procedures, including the legal basis and the relevant official website, within 30 days of the entry into force of this Agreement.
2. Each Party shall notify the other Party of any introduction or modification of any export licensing procedure which it intends to adopt no later than 45 days before the new procedure or modification takes effect. In no case shall a Party provide such notification later than 60 days following the date of the publication of the introduction or modification.
3. The notification referred to in paragraphs 1 and 2 shall contain the following information:
(a) the texts of its export licensing procedures, including any modifications;
(b) the products subject to each export licensing procedure;
(c) for each export licensing procedure, a description of:
(i) the process for applying for an export licence; and
(ii) the criteria which an applicant must meet to be eligible to apply for an export licence;
(d) the contact point or points from which interested persons can obtain further information on the conditions for obtaining an export licence;
(e) the administrative body or bodies to which an application or other relevant documentation shall be submitted;
(f) the period during which each export licensing procedure will be in effect;
(g) if the Party intends to use an export licensing procedure to administer an export quota, the overall quantity and, where practicable, value of the quota and the opening and closing dates of the quota; and
(h) any exceptions or derogations from an export licensing requirement, how to request those exceptions or derogations, and the criteria for granting them.
4. Each Party shall publish any export licensing procedure, including the legal basis and a reference to the relevant official website. Each Party shall also publish any new export licensing procedure, or any modification to its export licensing procedures, as soon as possible but in any case no later than 45 days after its adoption and at least 25 working days before its entry into force.
5. Upon request of a Party, the other Party shall respond within 60 days to a reasonable enquiry regarding any export licensing procedures which it intends to adopt or which it has adopted or maintained as well as the criteria for granting or for allocating export licences, including the eligibility of persons, firms, and institutions to make such an application, the administrative body or bodies to be approached, and the list of products subject to the export licensing requirement.
6. The Parties shall introduce and administer any export licensing procedures in accordance with:
(a) paragraphs 1 to 9 of Article 1 of the Import Licensing Agreement;
(b) Article 2 of the Import Licensing Agreement;
(c) Article 3 of the Import Licensing Agreement with the exception of subparagraphs 5(a), (c), (j) and (k).
To that end, the provisions of the Import Licensing Agreement referred to in subparagraphs (a), (b) and (c) are incorporated into and made part of this Agreement, mutatis mutandis.
7. Each Party shall ensure that all export licensing procedures are neutral in application and administered in a fair, equitable, non-discriminatory and transparent manner.
8. A Party shall grant export licences for an appropriate length of time which shall not be shorter than set out in the domestic legislation providing for the export licensing requirement and which shall not preclude exports.
9. When a Party has denied an export licence application with respect to a good of the other Party, it shall, upon request of the applicant and promptly after receiving the request, provide the applicant with a written explanation of the reasons for the denial. The applicant shall have the right of appeal or review in accordance with the domestic legislation or procedures of the exporting Party.
10. A Party shall only adopt or maintain automatic export licensing procedures as a condition for exportation from its territory in order to fulfil legitimate objectives after having conducted an appropriate impact assessment.
11. The Parties shall only adopt or maintain non-automatic export licensing procedures in order to implement a measure that is not inconsistent with this Agreement, including with Article 2.22 (General Exceptions). A Party adopting non-automatic export licensing procedures shall indicate clearly the purpose of such licensing procedures.
Article 2.18. Administrative Fees, other Charges and Formalities on Imports and Exports
1. Each Party shall ensure that fees, charges, formalities and requirements, other than import and export customs duties and measures listed in subparagraphs (d)(i), (ii) and (iii) of Article 2.3 (Definitions), are consistent with the Parties' obligations under Article VIII of GATT 1994, including its Notes and Supplementary Provisions.
2. A Party shall only impose fees and charges for services provided in connection with importation and exportation of goods. Fees and charges shall not be levied on an ad valorem basis and shall not exceed the approximate cost of the service provided. Each Party shall publish information on fees and charges it imposes in connection with the importation and exportation of goods in accordance with Article 4.10 (Fees and Charges).
3. A Party shall not require consular transactions, including related fees and charges, in connection with the importation or exportation of goods. After three years from the date of entry into force of this Agreement, a Party shall not require consular authentication for the importation of goods covered by this Agreement.
Article 2.19. Origin Marking
Except as otherwise provided for in this Agreement, when Viet Nam applies mandatory country of origin marking requirements to non-agricultural products of the Union, Viet Nam shall accept the marking "Made in EU", or a similar marking in the local language, as fulfilling such requirements.
Article 2.20. State Trading Enterprises
1. The Parties affirm their existing rights and obligations under Article XVII of GATT 1994, including its Notes and Supplementary Provisions, and the WTO Understanding on the Interpretation of Article XVII of GATT 1994, which are incorporated into and made part of this Agreement, mutatis mutandis.
2. When a Party requests information from the other Party on individual cases of state trading enterprises and on their operations, including information on their bilateral trade, the requested Party shall ensure transparency subject to subparagraph 4(d) of Article XVII of GATT 1994.
Article 2.21. Elimination of Sector-Specific Non-Tariff Measures
1. The Parties shall implement their commitments on sector-specific non-tariff measures on goods as set out in Annexes 2-B (Motor Vehicles and Motor Vehicles Parts and Equipment) and 2-C (Pharmaceutical/Medicinal Products and Medical Devices).
2. Except as otherwise provided for in this Agreement, 10 years after the entry into force of this Agreement and upon request of either Party, the Parties shall, in accordance with their internal procedures, enter into negotiations with the aim of broadening the scope of their commitments on sector-specific non-tariff measures on goods.
Article 2.22. General Exceptions
1. Nothing in this Chapter prevents either Party from taking measures in accordance with Article XX of GATT 1994, including its Notes and Supplementary Provisions, which are incorporated into and made part of this Agreement, mutatis mutandis.
2. The Parties understand that before taking any measures provided for in subparagraphs (i) and (j) of Article XX of GATT 1994, the exporting Party intending to take such measures shall provide the other Party with all relevant information. Upon request of either Party, the Parties shall consult with a view to seeking an acceptable solution. The Parties may agree on any means needed to resolve the difficulties. If prior information or examination is impossible due to exceptional and critical circumstances requiring immediate action, the exporting Party may apply the necessary precautionary measures and shall immediately inform the other Party thereof.
Article 2.23. Committee on Trade In Goods
1. The Committee on Trade in Goods established pursuant to Article 17.2 (Specialised Committees) shall comprise representatives of the Parties.
2. The Committee on Trade in Goods shall consider any matter arising under this Chapter and Protocol 1 (Concerning the Definition of the Concept of "Originating Products" and Methods of Administrative Cooperation).
3. The Committee on Trade in Goods shall carry out the following tasks in accordance with Article 17.2 (Specialised Committees):
(a) reviewing and monitoring the implementation and operation of the provisions referred to in paragraph 2;
(b) identifying and recommending measures to resolve any difference that may arise, and to promote, facilitate and improve market access, including any acceleration of tariff commitments under Article 2.7 (Reduction or Elimination of Customs Duties);
(c) recommending the Trade Committee to establish working groups, as it deems necessary;
(d) undertaking any additional work that the Trade Committee may assign; and
(e) proposing decisions to be adopted by the Trade Committee for amending the list of fragrant rice varieties included in subparagraph 5(c) of Sub-Section 1 (Union Tariff Rate Quotas) of Section B (Tariff Rate Quotas) of Annex 2-A (Reduction or Elimination of Customs Duties).
Chapter 3. Trade Remedies
Section A. Anti-dumping and Countervailing Duties
Article 3.1. General Provisions
1. The Parties affirm their rights and obligations under Article VI of GATT 1994, the Anti-Dumping Agreement, and the SCM Agreement.
2. The Parties, recognising that anti-dumping and countervailing measures can be abused to obstruct trade, agree that:
(a) trade remedies should be used in full compliance with the relevant WTO requirements and should be based on a fair and transparent system; and
(b) careful consideration should be given to the interests of the other Party when a Party considers imposing such measures.
3. For the purposes of this Section, origin shall be determined in accordance with Article 1 of the Agreement on Rules of Origin.
Article 3.2. Transparency
1. Without prejudice to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement, the Parties shall ensure, immediately after any imposition of provisional measures and in any case before the final determination is made, full and meaningful disclosure to interested parties of all essential facts and considerations which form the basis for the decision to apply measures. Disclosures shall be made in writing and allow interested parties sufficient time to make their comments.
2. Provided it does not unnecessarily delay the conduct of the investigation, interested parties shall be granted the possibility to be heard in order to express their views during trade remedies investigations.
Article 3.3. Consideration of Public Interest
A Party shall not impose anti-dumping or countervailing measures where, on the basis of the information made available during the investigation, it can clearly be concluded that it is not in the public interest to apply such measures. In determining the public interest, the Party shall take into account the situation of the domestic industry, importers and their representative associations, representative users and representative consumer organisations, based on the relevant information provided to the investigating authorities.
Article 3.4. Lesser Duty Rule
An anti-dumping or countervailing duty imposed by a Party shall not exceed the margin of dumping or countervailable subsidy, and the Party shall endeavour to ensure that the amount of this duty is less than that margin if such lesser duty would be adequate to remove the injury to the domestic industry.
Article 3.5. Exclusion from Dispute Settlement
The provisions of this Section shall not be subject to Chapter 15 (Dispute Settlement).
Section B. Global Safeguard Measures
Article 3.6. General Provisions
1. The Parties affirm their rights and obligations under Article XIX of GATT 1994, the Safeguards Agreement and Article 5 of the Agreement on Agriculture.
2. A Party shall not apply with respect to the same good at the same time: (a) a bilateral safeguard measure under Section C (Bilateral Safeguard Clause) of this Chapter; and (b) a measure under Article XIX of GATT 1994 and the Safeguards Agreement.
3. For the purposes of this Section, origin shall be determined in accordance with Article 1 of the Agreement on Rules of Origin.
Article 3.7. Transparency
1. Notwithstanding Article 3.6 (General Provisions), the Party initiating a global safeguard investigation or intending to impose global safeguard measures shall immediately provide, at the request of the other Party and provided that it has a substantial interest, ad hoc written notification of all pertinent information leading to the initiation of a global safeguard investigation and, as the case may be, the proposal to impose the global safeguard measures, including on the provisional findings, where relevant. This is without prejudice to Article 3.2 of the Safeguards Agreement.
2. When imposing global safeguard measures, the Parties shall endeavour to impose them in a way that least affects bilateral trade.
3. For the purposes of paragraph 2, if a Party considers that the legal requirements for the imposition of definitive safeguard measures are met, it shall notify the other Party and give the possibility to hold bilateral consultations. If no satisfactory solution has been reached within 30 days of the notification, the Party may adopt the definitive global safeguard measures. The possibility to hold consultations should be offered to the other Party in order to exchange views on the information referred to in paragraph 1.
Article 3.8. Exclusion from Dispute Settlement
The provisions of this Section referring to WTO rights and obligations shall not be subject to Chapter 15 (Dispute Settlement).
Section C. Bilateral Safeguard Clause
Article 3.9. Definitions
For the purposes of this Section:
(a) "domestic industry" shall be understood in accordance with subparagraph 1(c) of Article 4 of the Safeguards Agreement; to that end, subparagraph 1(c) of Article 4 of the Safeguards Agreement is incorporated into and made part of this Agreement, mutatis mutandis;
(b) "serious injury" and "threat of serious injury" shall be understood in accordance with subparagraphs 1(a) and 1(b) of Article 4 of the Safeguards Agreement; to that end subparagraphs 1(a) and 1(b) of Article 4 of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis; and
(c) "transition period" means a period of 10 years from the entry into force of this Agreement.
Article 3.10. Application of a Bilateral Safeguard Measure
1. If, as a result of the reduction or elimination of a customs duty under this Agreement, any good originating in the territory 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 cause or threaten to cause serious injury to a domestic industry producing like or directly competitive goods, the importing Party may adopt measures provided for in paragraph 2 in accordance with the conditions and procedures laid down in this Section during the transition period only, except as otherwise provided for in subparagraph 6(c) of Article 3.11 (Conditions and Limitations).
2. The importing Party may impose a bilateral safeguard measure which:
(a) suspends the further reduction of the rate of customs duty on the good concerned as provided for in Annex 2-A (Elimination of Customs Duties); or
(b) increases the rate of customs duty on the good to a level which does not exceed the lesser of:
(i) the most-favoured-nation applied rate of customs duty on the good in effect at the time the measure is taken; or
(i) the base rate of customs duty specified in the schedules included in Annex 2-A (Reduction or Elimination of Customs Duties) pursuant to Article 2.7 (Reduction or Elimination of Customs Duties).
Article 3.11. Conditions and Limitations
1. A Party shall only apply a bilateral safeguard measure following an investigation by its competent authorities in accordance with Article 3 and subparagraph 2(c) of Article 4 of the Safeguards Agreement. To that end, Article 3 and subparagraph 2(c) of Article 4 of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.
2. A Party shall notify the other Party in writing of the initiation of the investigation referred to in paragraph 1 and consult with the other Party as far as practicable in advance of applying a bilateral safeguard measure, with a view to reviewing the information arising from the investigation and exchanging views on the measure.
3. In the investigation referred to in paragraph 1, the Party shall comply with the requirements of subparagraph 2(a) of Article 4 of the Safeguards Agreement. To that end, subparagraph 2(a) of Article 4 of the Safeguards Agreement is incorporated into and made part of this Agreement, mutatis mutandis.
4. The investigation shall also demonstrate, on the basis of objective evidence, the existence of a causal link between increased imports and the serious injury or threat thereof. The investigation shall also take into consideration the existence of any factor other than increased imports which may also cause injury at the same time.
5. Each Party shall ensure that its competent authorities complete the investigation referred to in paragraph 1 within one year of the date of its initiation.
6. A Party shall not apply a bilateral safeguard measure:
(a) except to the extent, and for such time, as it is necessary to prevent or remedy serious injury and to facilitate adjustment;
(b) for a period exceeding two years, except that the period may be extended by up to two years if the competent authorities of the importing Party determine, in conformity with the procedures set out in this Article, that the measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the industry is adjusting, provided that the total period of application of a safeguard measure, including the period of initial application and any extension thereof, does not exceed four years; or
(c) beyond the expiration of the transition period, except with the consent of the other Party.
7. In order to facilitate adjustment in a situation where the expected duration of a bilateral safeguard measure is more than two years, the Party applying the measure shall progressively liberalise the measure at regular intervals during the period of application.
8. When a Party terminates a bilateral safeguard measure, the rate of customs duty shall be the rate that, according to its schedule included in Annex 2-A (Reduction or Elimination of Customs Duties), would have been in effect but for the measure.
Article 3.12. Provisional Measures
In critical circumstances where delay would cause damage that would be difficult to repair, a Party may apply a bilateral safeguard measure on a provisional basis pursuant to a preliminary determination that there is clear evidence that imports of an originating good from the other Party have increased as the result of the reduction or elimination of a customs duty under this Agreement, and that such imports cause serious injury, or threat thereof, to the domestic industry. The duration of any provisional measure shall not exceed 200 days, during which time the Party shall comply with the requirements of paragraphs 1 and 3 of Article 3.11 (Conditions and Limitations). The Party shall promptly refund any tariff increases if the investigation referred to in paragraph 1 of Article 3.11 (Conditions and Limitations) does not result in a finding that the requirements of paragraph 1 of Article 3.10 (Application of a Bilateral Safeguard Measure) are met. The duration of any provisional measure shall be counted as part of the period set out in subparagraph 6(b) of Article 3.11 (Conditions and. Limitations).
Article 3.13. Compensation
1. A Party applying a bilateral safeguard measure shall consult with the other Party in order to mutually agree on appropriate trade-liberalising compensation in the form of concessions having trade effects substantially equivalent to the bilateral safeguard measure or in the form of concessions equivalent to the value of the additional duties expected to result from the safeguard measure. The Party applying a bilateral safeguard measure shall provide an opportunity for such consultations no later than 30 days after the application of the bilateral safeguard measure.
2. If the consultations under paragraph 1 do not result in an agreement on trade-liberalising compensation within 30 days of the beginning of the consultations, the Party whose goods are subject to the bilateral safeguard measure may suspend the application of concessions, with respect to originating goods of the Party applying the bilateral safeguard measure, which have trade effects substantially equivalent to the bilateral safeguard measure. The obligation to provide compensation, incumbent on the Party applying the bilateral safeguard measure, and the other Partyâs right to suspend concessions under this paragraph shall terminate on the same date as the bilateral safeguard measure terminates.
3. The right of suspension referred to in paragraph 2 shall not be exercised for the first 24 months during which a bilateral safeguard measure is in effect, provided that the safeguard measure conforms to the provisions of this Agreement.
Article 3.14. Use of the English Language
In order to ensure the maximum efficiency for the application of the trade remedy rules under this Chapter, the investigating authorities of the Parties shall use the English language as a basis for communications and documents exchanged in the context of trade remedy investigations between the Parties.
Chapter 4. Customs and Trade Facilitation
Article 4.1. Objectives
1. The Parties recognise the importance of customs and trade facilitation matters in the evolving global trading environment. The Parties shall reinforce cooperation in this area with a view to ensuring that their respective customs legislation and procedures fulfil the objectives of promoting trade facilitation while ensuring effective customs control.
2. The Parties agree that their legislation shall be non-discriminatory and that customs procedures shall be based on the use of modern methods and effective controls to combat fraud and to promote legitimate trade.
3. The Parties recognise that legitimate public policy objectives, including those in relation to security, safety and the fight against fraud, shall not be compromised.
Article 4.2. Customs Cooperation and Mutual Administrative Assistance
1. The respective authorities of the Parties shall cooperate on customs matters in order to ensure that the objectives set out in Article 4.1 (Objectives) are attained.
2. The Parties shall enhance customs cooperation, inter alia, by:
(a) exchanging information concerning customs legislation, its implementation, and customs procedures, in particular in the following areas:
(i) simplification and modernisation of customs procedures;
(ii) border enforcement of intellectual property rights by the customs authorities;
(iii) facilitation of transit movements and transhipment; and
(iv) relations with the business community;