LookAtVietnam – The US Department of Commerce’s upcoming decision on plastic bag imports will significantly impact Vietnam’s exports to the US. Miller & Chevalier law firm senior lawyers Jay Eizenstat and John Magnus talked about this case.
|Mr Jay Eizenstat & Mr John Magnus|
In late April, the
Eizenstat: This CVD case has enormous significance for
To give you an example, in 2007 DoC made a threshold judgment involving Chinese goods, the so-called Coated Free Sheet Paper case. Since that landmark 2007 case, the DoC has accepted more than 10 CVD petitions involving goods from
If the DoC makes affirmative findings with respect to the subsidies alleged in the petition, other highly competitive Vietnamese export industries, including wooden furniture, textiles and apparel, footwear, and aquaculture products, will be at risk in subsequent CVD cases.
In addition, it is noteworthy that
In addition, the Commerce Department will be making choices about how to measure (benchmark) the subsidies analysed in this first case. Those choices of measurment methodology are likely to be followed in future cases. Such decisions would include whether to use, and how to construct, out-of-country benchmarks, as the DoC has done for land and loan subsidy programmes in
How long will the investigation take? What has the DoC done so far?
Magnus: The Commerce Department’s investigation will take approximately one year, perhaps a little longer. Thus far, the DoC has reviewed the petition, found it to be satisfactorily pleaded, and opened a CVD investigation that includes all of the subsidy programmes identified in the petition. It has also developed questionnaires for the various respondents, including the Vietnamese government. These questionnaires are lengthy and complicated. Responding to them will require considerable government resources and input from ministries and a high level of inter-ministry coordination.
In parallel, the DoC has invited public comments on whether the
Is there any possibility that
Magnus: An outright win would entail a finding that Vietnam is not yet subject to the US countervailing duty law, or that Vietnam is subject to the law, but none of the subsidy allegations put forward by petitioners here is meritorious [i.e., the net countervailable subsidy in this case is zero or trivial].
The likelihood of one of these outcomes is low. [
What should the Vietnamese government and enterprises do now to prepare for the case?
Eizenstat: The Vietnamese government and the private sector respondents should develop the information in the areas identified in the DoC’s standard CVD questionnaires. For the Vietnamese government, since this is the first-ever CVD case, responding to the CVD questionnaires will require considerable allocation of resources and interagency coordination.
Among other things, this effort will involve identifying the decision-making process by which applications for subsidy benefits are approved or denied, and the actual distribution across industries and companies of benefits bestowed under each of the investigated subsidy programmes. Compiling and disclosing such data will be challenging, and perhaps uncomfortable, for the government.
*Jay Eizenstat served as a former director for Customs Affairs at the United States Trade Representative office in Washington.
*John Magnus is a high-profile trade litigator and policy practitioner who has served as the Chair of the American Bar Association’s International Trade Law Committee.