Questions

1. What sort of entities are eligible to join the WTO?

- The WTO membership is not exclusive to states. Seperate customs territories

possessing full autonomy with regard to their external commercial relations and
other matters covered by the WTO Agreement are also eligible to join the WTO.
For example, Hong Kong, Macau. The European Communities is also a member of
the WTO, but this is a special and the only case by virtue of Article XI(1) of the
WTO Argeement.

2. What are the basic principles of the WTO law?

- There are 5 basic principles of the WTO law, these are:

(A) trade without discrimination;

(B) freer trade (gradually, through negotiation);

(C) predictability (through binding and transparency);

(D) promoting fair competition;

(E) encouraging development and economic reform.

3. Are subsidies absolutely prohibited under the WTO law?

- No, they aren’t. In the WTO, subsidies are allowed, they are not prohibited
outright, although has certain limitations and conditions. (có những TH nào bị cấm
và không bị cấm)

- There are 2 types of prohibited subsidies are: export subsidies and import
substitution subsidies. These subsidies, often referred to as ‘red light’ subsidies, are
prohibited because they are specifically designed to distort international trade, and
are therefore likely to hurt other members' trade.
- Actionable subsidies mean the subsidy is permitted. The complaining member
has to show that the subsidy has an adverse effect on its interests as :

+ firstly, one member's subsidies may hurt a domestic industry in an importing

country;

+ secondly, they may hurt rival exporters from another member when the two
compete in third markets;

+ thirdly, domestic subsidies in one member may hurt exporters trying to compete
in the subsidizing member's domestic market.

4. Are Articles XX and XXI of the GATT necessary?

- Yes, they are necessary. Because:

+ In terms of Articles XX of the GATT, it contains general exceptions which are

key provisions of the GATT. It is necessary to:

. protect public morals;

. protect human, animal or plant life or health;

. protect patents, trademarks and copyrights, and prevent deceptive pratices;

. conserve exhaustible natural resources.

+ In terms of Article XXI of the GATT, it provides exceptions that members may
invoke to justify actions relating to their essential security interests.

=> Although the WTO allows the use of exceptions, it cannot be used as a means to
discriminate and create disguised restriction on international trade.

5. Why are tariff measures preferred over non-tariff measures in the trade in
goods, under the WTO?

- Tariff measures preferred over non-tariff measures in the trade in goods, under the
WTO, because the following points:
+ Be easy to control and more transparent than non-tariff

+ Tariffs may be levied on a per unit basis or on an ‘ad valorem’ (according to

value) basis

+ Avoid discrimination and eliminate the lack of transparency;

+ Tariffs concessions are recorded as ‘bound’ tariffs in the tariff schedules. For the
included products, countries are not to impose a tariff on WTO members higher
than the commitment or ‘binding’ indicated in the schedule.

+ Increase budget revenue

+ Be fairer

+ Taxes on imported goods must be reduced gradually, the tax must be clear and
transparent, not obstructing freedom of trade.

6. Why does the WTO need a separate Agreement on Agriculture?

- To establish a fair and market-oriented agricutural trading system. The reform

programme comprises specific commitments to reduce support and protection in the
areas of domestic support, export subsidies and market access, and through the
establishment of strengthened and more operationally effective GATT rules and
disciplines. The Agreement also takes into account non- trade concerns, including
food security and the need to protect the environment, and provides S&D for DCs.

The Agreement establishes a number of generally applicable rules with regard to

trade-related agricultural measures, primarily in the areas of MA, domestic support
and export competition. These rules relate to country-specific commitments to
improve MA and reduce trade-distorting subsidies contained in the individual
country’s schedules of the WTO members and constitute an integral part of the
GATT.

7. How may SPS measures and TBT measures be distinguished?

 SPS TPT
- It relates to food safety and animal
- It regulates technical regulations and
and plant health regulations. They standards, quality including
should be applied only to the extent
packaging, marking and labelling
necessary to protect: requirements, and procedures for
assessment of conformity with
+ Human or animal health from technical regulations and standards do
foodborne hazards. not create unnecessary obstacles to
international trade.
+Human health from diseases
transmitted by animals and plants.

+ Animals and plants from pests or

diseases.
- Key aspects:
- Key aspects:
· No-discrimination
· No-discrimination
· No unnecessary obstacles to
· Harmonization international trade
· Equivalence · Transparency
· Appropriate level of protection · Scientific justification
· Risk assessment · Harmonization
· Transparency · Equivalence

- Ex: Handling imported fruits and
fruits to prevent the spread of pests
and diseases, fertilizer residues in food
for humans and animals…
· Recognition
- Ex: Quality, classification, labeling
for imported fruits, technical standards
ensure that fertilizers are used
effectively…

Camp cấm nk nông sản thuốc trừ sâu cao hơn mức quy định: có quyềnko, có
bởi vì họ dựa trên SPS để cấm nhâ ̣p khẩu, phải non-dis, transparent và dựa
trên cơ sở khoa học
8. Why are anti-dumping, countervailing and safeguard measures needed? Are
they contrary to the WTO’s basic principles in terms of the trade
liberalization?

- Because the WTO agreements uphold the principles: “binding tariffs, and
applying them equally to all trading partners (under the MFN principle), while they
also allow exceptions in three circumstances as follows:

(A) actions taken against dumping (selling at an unfairly low price);

(B) subsidies and special ‘countervailing’ duties to offset the subsidies; and

(C) emergency measures to limit imports temporarily, designed to ‘safeguard’

domestic industries.

- No, they aren’t. Because WTO law does not prohibit dumping as such, but this
imposes obligations on and regulates the actions of WTO members.

- Apply AD measures to offset the margin of dumping, which is the injury from
imports sold at 'unfairly' low prices.

- Apply countervailing duty on subsidized imports that are found to be hurting

domestic producers.

- Apply safeguards to protect the domestic economy from competition when foreign
goods are imported massively. A WTO member may restrict imports of a product
temporarily (take 'safeguard actions') if its domestic industry is injured or
threatened with injury caused by a surge in these imports. Here, the injury has to be
serious.

(khi nào áp dụng các bp chống bán phá giá và khi nào áp dụng các bp tự vê ̣)

(bảo hô ̣ khẩn cấp khi hàng nước ngoài nhâ ̣p vào thị trường trong nước ồ ạt, để bảo
vê ̣ ngành kinh tế nô ̣i địa thì áp dụng bp tự vê ̣)
9. Why is the TRIPS Agreement regarded as one of the most important pillars
of WTO law?

- The TRIPS Agreement regarded as one of the most important pillars of WTO
law because in the context of international integration and globalization, IPRs play
a greater role than ever in international business transactions of all kinds. Most
products in international commercial transaction include intellectual property as
well as IPRs, which all countries want to protect.

+ It establishes minimum standards of protection with specified deadlines for

virtually all categories of IPRs.

+ Reduce distortions and impediments to international trade.

+ The purposes and objectives of the whole WTO is to promote free international
trade as well as the only main objective of the TRIPS Agreement, it facilitates and
promotes free international trade by protecting IPRs, while at the same time
preventing the use of IPRs protection by individual members as trade barriers.

10. Why is it assumed that the TRIPS Agreement is the most comprehensive
multilateral agreement on IPRs to date?

- là thỏa thuận đa phương toàn diện nhất về IPRs cho đến nay)

(PAGE 168-169E- 732V)

-The comprehensiveness of the TRIPS Agreement, as compared to other

international treaties on IPRs, stems from the following features:

(i) the result of the incorporation and consolidation of many earlier international
conventions on IPRs;

(ii) the establishment of minimum standards of protection with specified deadlines

for virtually all categories of IPRs, namely, copyright and related rights,
trademarks, geographical indications, industrial design, patents (including plant
varieties), layout designs of integrated circuits, and undisclosed information;

(iii) the grant of flexibilities in many areas, and

(iv) the establishment of general rules of IPRs enforcement.

11. What are the trade-related aspects of IPRs in the TRIPS Agreement?

- The TRIPS Agreement regarded as one of the most important pillars of WTO law
because TRIPS Agreement is based on 3 basic principle: NT, MFN, and
transparency. Besides that the TRIPS Agreement consists of the following main
contents:

(A) it is a set of standards concerning the availability, scope and use of IPRS with
respect to seven IP objects, namely, copyright and related rights, trademarks,
geographical d indications, industrial designs, patents (including plant varieties),
layout designs (topographies) of integrated circuits, and undisclosed information;

(B) the TRIPS Agreement includes the provisions on IPRS- related anti-competitive
practices;

(C) the TRIPS Agreement has the detailed provisions on enforcement of IPRS;

(D) the TRIPS Agreement makes disputes involving IP matters subject to the
Dispute Settlement Mechanism of the WTO.

12. What is tariff? Key aspects of tariff

- (page 121E-684V)

- - Under the WTO, ‘tariff’ means duty levied at the border-gates on goods going
from one customs territory to another (Article I of the GATT). It mainly means the
import tariff. Tariffs are not an ‘internal tax’ e.g. VAT (Article III(2) of the GATT),
and tariffs are not a ‘fee’ or ‘charge’ for an import service (Article VIII of the
GATT).

- Key aspects of tariff:

 A tariff is binding
 A tariff is subject to reductions

13. What are SPS measures? Key aspects of SPS Agreement?

- Pursuant to Annex A of the SPS Agreement, “SPS measures, stands for Sanitary
and Phytosanitary measures” means any measure applied to:

· Protect animal or plant life or health from risks arising from the entry,
establishment or spread of pests, diseases, disease-carrying organisms or disease-
causing organisms;

· Protect human or animal life or health from risks arising from additives,
contaminants, toxins or disease-causing organisms in foods, beverages or
feedstuffs;

· Protect human or animal life or health from risks arising from diseases carried by
animals, plants or products thereof, or from the entry, establishment or spread of
pests; or

· Prevent or limit other damage from the entry, establishment or spread of pests.

_ KEY ASPECTS OF THE AGREEMENT

The SPS Agreement provides that the use and application of SPS measures
should be pursuant to the following basic principles:

· No-discrimination

· Harmonization

· Equivalence

· Appropriate level of protection

· Risk assessment

· Transparency

14. What are TBT measures? Key aspects of TBT Agreement?

- Under the WTO, technical barriers to trade are provided for in the Agreement on
Technical Barriers to Trade ( hereinafter the ‘TBT Agreement’). It regulates
technical regulations and standards, including packaging, marking and labelling
requirements, and procedures for assessment of conformity with technical
regulations and standards do not create unnecessary obstacles to international
trade.

_(Key): the TBT Agreement sets out the principles with which a Member has to
comply as follows:

· No-discrimination

· No unnecessary obstacles to international trade

· Transparency

· Scientific justification

· Harmonization

· Equivalence

· Recognition

15. What are anti-dumping measures according to the AD Agreement?

- The problem causing concern here is that the injury from imports sold at 'unfairly'
low prices (dumping) must need a remedy - AD measure. The remedy is normally
the imposition of duty or the negotiation of a price aimed to offset the margin of
dumping. Duty remains in place as long as dumping margins persist.

- Countries have the right to impose anti-dumping duties on imported goods. If one
country's anti-dumping duties is unreasonable, other countries have the right to sue
it in an international court.

16. What are mode of service supply according to GATS?

- The modes of supply are one of the backbones of the GATS, and a similar service
could be scheduled and treated differently according to the manner in which it is
supplied. The GATS distinguished 4 modes of supply:

+ Cross Border Supply

+ Consumption Abroad

+ Commercial Presence

+ Temporary Movement of Natural Persons.

17. Principles of trade in services:

Principles of trade in services are:

- The Most Favoured Nation (‘MFN’)

- Transparency

- Domestic Regulations

- Recognition

18. Dispute settlement in the WTO: parties, proceedings

Parties:

Receipt of the first written submissions of the parties:

 Complaining party
 Party complained against
 Third parties

The WTO dispute settlement is a government-to-government procedure; thus, only

WTO members may have access to the WTO dispute settlement system either as
parties or as third parties. 

 The WTO dispute settlement proceedings may be described as a four - stage

procedure consisting of:

 Consultation (A);
 the panel process (B);
 the appellate process (C); 
  implementation and enforcement (D);

18. Please explain the decision making by consensus?

- Making decisions by consensus, which is defined by Footnote 1 to Article IX as

follows: ‘The body concerned shall be deemed to have decided by consensus on a
mater submitted for its consideration, if no member, present at the meeting when
the decision is taken, formally objects to the proposed decision.’

In other words, under consensus procedure, no voting takes place and a decision is
taken unless explicitly objected by a member.

19. What are advantages and disadvantages of the WTO’s decision - making
system?
- Pros: Diverse forms and the WTO Agreement provides for a number of
exceptions, which constitute “lex specialis”. By means and exceptions, it is easy for
the system to make rules for each form for each specific case. Especially, notable
exceptions include decision-making by the DSB, authoritative interpretations,
accessions, waivers, amendments and the annual budget and financial
regulations. Separate decision-making procedures are very different.

Cons: although the WTO Agreement provides for the possibility of adopting a
decision by voting, it is exceptional for WTO bodies to do so. The reason for the
preference of consensus over voting is not difficult to understand. It is generally
believed that decisions taken by the former, i.e., taken collectively, have 'more
democratic legitimacy' than those taken by the latter. Of course, sticking to the
consensus principle runs the risk of paralyzing the decision-making in the WTO.

20. Please distinguish between MFN and NT?

In essence, the MFN treatment obligation prohibits discrimination by a WTO
member among different foreign exporters and service suppliers, while the NT
obligation constrains a WTO Member from discriminating against foreign products
in favour of 'like' domestic products, services and service suppliers.

21. Law on Special Consumption Tax (Luật Thuế tiêu thụ đặc biệt) stipulates:
"1. For domestically-produced goods and imported goods, the taxable price (giá
tính thuế) is the price at which production establishment or importing
establishment sells [product].

Where goods subject to special consumption tax are sold to commercial

businesses the are establishments which have a relationship of parent company
and subsidiary or subsidiaries of the same parent company with production
establishments, importing establishments or commercial businesses that are
establishments, which have an association relationship, the special consumption
taxable price may not be less than the percentage (%) compared to the average
price at which commercial business establishments directly purchase [goods]
from production establishments and importing establishments selling [goods]
under the provisions of the Government;

2. For imported goods at import stage, it is the taxable import price plus import
duties. Where imported goods are entitled to exemption or reduction of import
duties, the taxable price does not include import duties as exempted or reduced.
Goods subject to special consumption tax at import stage are entitled to a
deduction of the special consumption tax amount already paid at import stage
when determining the special consumption tax amount payable upon those goods
being sold;"

"1. Đối với hàng hóa sản xuất trong nước và hàng nhập khẩu, giá chịu thuế
(giá sản phẩm) là giá mà cơ sở sản xuất hoặc cơ sở nhập khẩu bán [sản phẩm].

Trường hợp hàng hóa chịu thuế tiêu thụ đặc biệt được bán cho các doanh nghiệp
thương mại, đó là các cơ sở có mối quan hệ giữa công ty mẹ và công ty con hoặc
công ty con của cùng công ty mẹ với cơ sở sản xuất, cơ sở nhập khẩu hoặc doanh
nghiệp thương mại là cơ sở có mối quan hệ liên kết, giá chịu thuế tiêu thụ đặc biệt
không được thấp hơn tỷ lệ phần trăm (%) so với giá trung bình mà cơ sở kinh
doanh thương mại trực tiếp mua [hàng hóa] từ các cơ sở sản xuất và cơ sở nhập
khẩu bán [hàng hóa] theo quy định của Chính phủ;

2. Đối với hàng hóa nhập khẩu ở giai đoạn nhập khẩu, đó là giá nhập khẩu
chịu thuế cộng với thuế nhập khẩu. Trong trường hợp hàng hóa nhập khẩu được
miễn hoặc giảm thuế nhập khẩu, giá chịu thuế không bao gồm thuế nhập khẩu
như được miễn hoặc giảm. Hàng hóa chịu thuế tiêu thụ đặc biệt ở giai đoạn
nhập khẩu được khấu trừ số thuế tiêu thụ đặc biệt đã nộp ở giai đoạn nhập
khẩu khi xác định số thuế tiêu thụ đặc biệt phải trả khi hàng hóa được bán; "
Do these regulations violate the MFN or NT principles? Why?
- These regulations do not violate both the MFN and NT principles. Because:

+ In terms of the MFN principle, we can see that, there is no discrimination in it. It
mentions that, just need to be imported goods, it will be imposed the special
consumption tax as in the above regulations, regardless of whether it is imported
from any other country. It is applied commoly for imported goods from all
countries. => no discrimination.

+ In temrs of NT principle, in (1), there is also no discrimination in it. It mentions

that for domestically-produced goods and imported goods, the taxable price is the
same, is the price at which production establishment or importing establishment
sells products => no discrimination. In (2) Although imported goods at import
stage will be imposed the special consumption tax and still be imposed that tax
again at selling stage but the regulation also said that goods subject to special
consumption tax at import stage are entitled to a deduction of the special
consumption tax amount already paid at import stage when determining the special
consumption tax amount payable upon those goods being sold. => no
discrimination between domestic goods and imported goods.

23. What is the similarity between CIF and FOB (INCOTERMS 2020)?
- These are the two conditions commonly used for sea and inland seaway transport.
- The positions of responsibility transfer and risks are at the port of loading (port of
departure) when the seller takes the goods aboard the ship.
- The responsibility of carrying out export customs clearance belongs to the seller.
The procedure of importing goods belongs to the buyer.

24. Are INCOTERMS legally binding to the contract parties?

- No, it isn’t. The Incoterms do not have the force of law and therefore there is no
obligation to use these terms in international trade operations; their use will be
conditioned on the acceptance of the parties (seller and buyer) in the sale contract.

25. Are the old versions of INCOTERMS replaced by the new one?
- No, it isn’t. The new version shall not terminate the validity of the previous
versions. Therefore, parties who adopt the INCOTERMS should make sure they
express their desires clearly: they should state clearly in the contract which
commercial terms they prefer to use.
26. Comparing ‘force majeure’ under the CISG with that following Vietnamese
law. (đọc hiểu luâ ̣t dân sự VN và CISG về quy định TH bất khả kháng)

27. Anders, a company established in Germany, offers Egberts, a company

established in the Netherlands, a consignment of coffee. Anders informs
Egberts in writing that the time limit for Egberts to accept the offer is three
months. One month after his offer to Egberts, Anders sees an opportunity to
sell these goods to Christensen, a company from Denmark, at a much higher
price. Anders revokes the offer made to Egberts. Nevertheless, Egberts accepts
the offer after Anders has revoked it. Question: Whether an agreement has
been reached in this case?

- There is no agreement reached in this case because the company of Anders

revoked his offer before Egberts decided to accept this offer because under Article
15(2) of the CISG, the offeror may still revoke his offer after the offer has reached
the offeree, but before the acceptance has been dispatched.

28. Abels, a company established in the Netherlands, sells to Bartels, a

company established in Germany, a number of radios at a price of 150,000
Euros. The moment they are delivered to Bartels it becomes clear that these
radios suffer from an electronic defect. Question: Has the seller fulfilled his
legal obligations?

- Abels (the seller) has fulfilled his legal obligations in terms of time and named
place of delivery as in the sale contract. However, in terms of transfer of risks, it
depends on the condition that the parties have negotiated and used in the contract to
determine which party will suffer from the risks because of a number of radios
which are defective.

Because each different term will has different obligations and responsibilities
required between the parties. Therefore, in this case, we assume that the parties
have negotiated and decided to use EXW in this sale contract, when a number of
radios have been delivered for Bartels at a named place of delivery at the disposal
of the buyer. Since when that time, the buyer must bear all risks of loss of or
damage to the goods from the time the buyer have been delivered. The sellers is
considered as he has fulfilled his legal obligations.