Accepting the rules of the non-market economy for maximum of 12 years since joining WTO, many of us who are accustomed to executive fact in the US think that misfortune has its sense. Being considered as a non-market economy is a misfortune because the investigation office of import country will choose the other country’s production cost (normally higher than Vietnam’s) to be the basis of dumping when levying anti-dumping duties on Vietnam’s goods. Fortunately, as a non-market economy, American manufacturers can not request for investigating to levy anti-subsidy duties on Vietnam’s goods. Of course, we do not know that between misfortune and fortune, which is the better?

The reason is that until recently, the US Department of Commerce did not levy anti-subsidy duties on imported goods from non-market economies like China and Vietnam. The US believes that calculating levels and benefits of subsidy can be considered as a mission impossible because the fact that governments intervene deeply non-market economies makes it infeasible to compare market price and the price distorted by governments’ intervention. Therefore, the US manufacturers can only sue non-market countries like China and Vietnam for dumping. If the US Department of Commerce decides to levy anti-subsidy duties on non-market economies, this decision must be approved by the US Congress through formal laws. Without this approval, the US Department of Commerce can face to be sued.

However, a very bad news is that on last March 1st, Members of the House Artur Davis (Democratic Party – Alabama State) and Phil English (Republic Party – Pennsylvania State) submitted to House of Representatives the bill H.R.1229 which allows levying anti-subsidy duties on imported goods from non-market economies. Senators Evan Bayh (Democratic Party – Indiana State) and Susans Collins (Republic Party – Maine State) are also about to submit a bill with similar content to the Senate of the 110th US Congress (2007-2008). In 2005, these members of Congress proposed the bills H.R. 1216 and S. 593 on an Act stopping subsidy of foreign countries in order to adjust the Duties Act 1930 allow to levy anti-subsidy duties on non-market economies, but finally, the 109th US Congress (2005/06) did not approve.

If these bills are approved, Vietnam exported goods to the US, since then, will face to be investigated to levy both anti-dumping duties and anti-subsidy duties. It means that the non-market mechanism is only meaningful in case of being sued on dumping is not true anymore. Moreover, not only some enterprises are influenced as by anti-dumping duties but also all enterprises in one industry will be heavily affected because the whole industry of the export country will be the subject to anti-subsidy duties, not any particular enterprise as anti-dumping duties.

The remarkable content of the bill includes: (i) to allow to levy anti-subsidy duties on imported goods from non-market economies; (ii) to use alternate methodologies when calculating the duty levels on imported goods from China, pursuant to conditions that China at will accepted when joining WTO (the similar commitment of China can be found in paragraph 255(b) at the Report of Affair Commission on Vietnam’s WTO access); (iii) that the US Department of Commerce decides to end the non-market mechanism in a country in the list of anti-dumping investigation must be approved by the US Congress as a bicameral and (iv) every year, the International Trade Commission (ITC) must hand in a report on Chinese Government’s intervention in investment and export promotion and job creation.

While it is just a bill, the US Department of Commerce is wondering if the US should turn round the policy that does not levy anti-subsidy duties on import goods from non-market economies as this office has applied since 1984. It is expected that on next April 2nd, the US Department of Commerce will decide the investigation result on paper sheet with free size and covered surface. This product is subsidized by Chinese Government and the subject to investigation of this Department.