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### Viewing cable 04HANOI3332, VIETNAM: SUGGESTED REVISIONS FOR 2005 NTE

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
04HANOI3332 | 2004-12-17 09:01 | 2011-08-25 00:00 | UNCLASSIFIED | Embassy Hanoi

`

    This record is a partial extract of the original cable. The full text of the original cable is not available.

` `

    UNCLAS SECTION 01 OF 11 HANOI 003332

    SIPDIS

    STATE FOR EAP/BCLTV
    STATE PASS USTR FOR GBLUE AND EBRYAN
    USDOC FOR ITA/IA
    USDOC FOR 4431/MAC/AP/OPB/VLC/HPPHO

    E.O. 12958: N/A
    TAGS: ETRD EFIS VM BTA IPROP SOE FINREF
    SUBJECT: VIETNAM: SUGGESTED REVISIONS FOR 2005 NTE

    REF:  STATE 240980

    ¶1.  This cable transmits post's suggested revisions to the
    text of the 2005 National Trade Estimate Report for Vietnam.
    As instructed reftel, text was sent via email attachment
    separately to USTR.

    ¶2. Begin text of draft NTE report:

    VIETNAM

    TRADE SUMMARY

    The U.S. trade deficit with Vietnam was 3.4 billion in the
    first 10 months of 2004, an increase of USD 640.6 million
    from the same period in 2003.  U.S. goods exports in the
    first 10 months of 2004 were 1.02 billion, down 16.2 percent
    from the previous year.  Corresponding U.S. imports from
    Vietnam in the first 10 months of 2004 were USD 4.4 billion,
    up 11.1 percent.

    The stock of U.S. foreign direct investment (FDI) in Vietnam
    in 2003 was USD45 million, down from USD 139 million in
    ¶2002.

    IMPORT POLICIES

    Tariffs

    Vietnam's tariff schedule was rationalized in 1992 and
    simplified in 1999, following Vietnam's accession to the
    ASEAN Free Trade Area (AFTA).  Currently, there are three
    sets of tariff rates:  most favored nation (MFN) rates that
    apply to about 75 percent of total imports from about eighty
    countries that have bilateral trade agreements with Vietnam,
    including the United States; Common Effective Preferential
    Tariff  (CEPT) rates that apply to imports from ASEAN
    countries; and general tariff rates (50 percent higher than
    MFN) that apply to all other countries.   Under the terms of
    the U.S.-Vietnam Bilateral Trade Agreement (BTA), Vietnam is
    obligated to reduce significantly tariffs by an average of
    about one-third to one-half on a broad range of U.S. imports
    (approximately 244 lines) over a period of three years
    beginning in December 2004.  A Ministry of Finance Decision,
    effective December 10, 2004, reduced the MFN tariff rates on
    more than 1100 tariff lines to meet this BTA obligation.
    The tariff reductions apply to imported goods having
    certificates of origin from the United States as well as
    imports from other countries that have an MFN agreement with
    Vietnam.

    On September 1, 2003, a new tariff system took effect that
    is based on the eight digit Harmonized System and conforms
    to ASEAN's Harmonized Tariff Nomenclature (AHTN).  The new
    system consists of 10,689 lines (4200 more than the old
    one), of which 5,300 lines are at four and six digits and
    5,400 lines are at eight digits.  There are now fifteen
    tariff rates (down from twenty) and the simple average
    tariff rate increased from 16.8 percent to 18.2 percent.  In
    implementing the new tariff system, the Government of
    Vietnam raised tariff rates on 195 items and reduced them on
    ¶106.  Protection on 72 items, except for welding steel
    tubes, was converted from price differential surcharges to
    tariffs.  Tariff rates on petrol and oils (heading 2709 and
    2710) are not specified in the new schedule.

    The National Assembly retains authority over setting tariff
    bands for each product and the government is free to adjust
    applied tariffs within the bands.  There is no online
    published tariff schedule, and it is often difficult to
    determine when and how much tariffs have changed.

    Non-tariff barriers

    Non-tariff barriers (NTB's) were introduced in Vietnam when
    the country shifted from a centrally controlled economy
    toward market trade in the late 1980s to early 1990s and
    quickly became a key component of Vietnam's trade policy.
    In the past few years, Vietnam has made significant progress
    in reducing the use of NTBs and, under the terms of the BTA,
    Vietnam agreed to eliminate all non-tariff barriers,
    including import and export restrictions, quotas, licensing
    requirements, and controls for all product and service
    categories over a period of three to seven years, depending
    on the product.

    Import prohibitions:  Vietnam currently prohibits the
    commercial importation of the following products:  arms and
    ammunition, explosive materials (not including industrial
    explosives), military technical equipment and facilities,
    narcotics, toxic chemicals, "depraved and reactionary"
    cultural products, firecrackers, some children's toys,
    cigarettes, second-hand consumer goods, right-hand drive
    motor vehicles, used spare parts for vehicles, used internal
    combustion engines of less than 30 horsepower, asbestos
    materials under the amphibole group, various encryption
    devices, and encryption software.  Vietnam prohibits
    importation and registration of motorcycles with engine
    capacity exceeding 175 cubic centimeters for traffic safety
    purposes.  Importation of such motorcycles is allowed only
    for special purposes such as for the armed forces, security
    personnel, or for competitive sports.

    Quantitative restrictions and non-automatic licensing:
    Vietnam has been phasing out the use of quantitative
    restrictions on imports.  An April 2001 Decision of the
    Prime Minister phased-out quantitative restrictions on
    imports with the exception of sugar (until 2005).  A
    September 2003 Government Decision set up conditions for
    importing and re-exporting petroleum. The trading is subject
    to annual licensing and price regulation. Quantitative
    limitations on exports in most sectors have been eliminated,
    with the exception of textiles, garments, and a list of
    sensitive items.

    In May 2003, the Prime Minister issued a decision to
    implement tariff-rate quotas (TRQs) on certain agricultural
    products that were not previously under quotas. A May 2003
    Government decision applied the TRQs to seven items starting
    January 2004:  cotton, raw tobacco, salt, milk, condensed
    milk, corn, and chicken eggs.  A Ministry of Trade Circular
    issued in December 2003 provided details on management of
    these TRQs, established the in-quota volumes for tobacco and
    salt and set the quota volumes for cotton, milk, condensed
    milk, corn and eggs equal to demand.  In practice, only salt
    and raw tobacco exporters are currently restricted by
    quotas.  The Ministry of Trade has primary responsibility
    for establishing quota volumes and allocation of quota,
    while Ministry of Finance determines the in- and out-of
    quota tariff rates.

    Currently all state companies are required to apply for
    annual quotas in order to import foreign pharmaceutical
    products.

    Special authority regulation:  Previously, importers
    required approval from the relevant ministry(ies) to import
    many goods.  This system was changed in 2001.  Now, seven
    ministries and agencies are responsible for overseeing a
    system of minimum quality/performance standards for animal
    and plant protection, health safety, local network
    compatibility (in the case of telecommunications), money
    security, and cultural sensitivity.  Goods that meet the
    minimum standards can be imported upon demand and in
    unlimited quantity and value.

    Foreign Exchange system:  In 1998, the State Bank of Vietnam
    (SBV) issued a foreign exchange surrender requirement for
    all exporters, including foreign invested enterprises.  A
    series of reductions decreased this requirement from 80
    percent of foreign exchange balances to 30 percent as of May
    ¶2002.  In April 2003, Government Decision 46 reduced the
    foreign exchange surrender requirement to zero percent.

    May 2000 amendments to the Law on Foreign Direct Investment
    (FDI) allowed FDI enterprises to purchase foreign currency
    at authorized banks to finance current and capital
    transactions and other permitted transactions.  Controls on
    current account transactions have been liberalized.  A 1998
    Decree allowed both residents and non-residents to open and
    maintain foreign exchange accounts with authorized banks in
    Vietnam.  A 2001 Circular permitted foreign investors to
    transfer abroad profits and other legal income upon
    presentation of relevant documents to the authorized banks.
    A 2003 Decree contains the government of Vietnam's guarantee
    to assist in the balancing of foreign currency for foreign
    invested enterprises and foreign business cooperation
    parties that invest in the construction of infrastructure
    and certain other important projects in the event that banks
    permitted to trade foreign currency are unable to fully
    satisfy their foreign currency demand.

    Customs:  Under the terms of the BTA, by December 2003
    Vietnam was obligated to apply transaction value for U.S.
    imports and to ensure that no administrative fee or charge
    imposed by customs authorities in connection with importing
    or exporting any good exceeds the actual cost of the service
    provided by Customs. In June 2002, the Government issued
    Decree 60 establishing rules for customs valuation based on
    transaction value, in accordance with WTO principles.
    Subsequently the Ministry of Finance issued Circular 118
    (December 2003) implementing the provisions of Decree 60 and
    Circular 87 (August 2004) abolishing the use of all minimum
    import prices.   Vietnam has also committed to apply
    transaction value to imports from ASEAN countries as well as
    56 other countries on the basis of reciprocity.  These
    changes have significantly improved customs valuation in
    Vietnam over the last year.  However, application of CVA is
    not entirely uniform and importers complain about the low
    level of automation of Vietnam's customs system.  The
    Government plans to amend the Customs Law of 2000 by May
    2005 in order to address remaining problems and facilitate
    implementation of a USD 70 million World Bank loan-supported
    customs modernization project in Vietnam.

    Trading rights:

    The Government of Vietnam currently maintains different
    regulations on trading rights for domestic and foreign-
    invested enterprises.  Domestic Vietnamese enterprises are
    entitled to import in accordance with the business line(s)
    prescribed in their business registration certificates.
    They are not required to apply for an import license, except
    for goods for which MOT requires a non-automatic import
    license.  Foreign invested enterprises are not permitted to
    import goods freely in Vietnam.  Foreign invested
    enterprises are allowed only to import goods used as inputs
    in the manufacturing process, as well as machinery
    equipment, transportation means and materials used in the
    construction and installation of their project in accordance
    with their investment license.

    Under the terms of the BTA, beginning in December 2004,
    enterprises with capital directly invested by U.S. nationals
    and companies in production and manufacturing will be able
    to engage in trading activities in most products and will be
    able to enter into joint ventures with Vietnamese partners
    to engage in trading activities in all products, as long as
    the U.S. partner holds no more than a 49 percent share in
    the venture.  Beginning in December 2008, U.S. companies
    will be able to establish wholly owned trading companies in
    Vietnam.  The right to trade in certain goods is subject to
    a phase in period.

    Taxes

    In December 2002, the Government issued a strategy for the
    auto sector with a primary goal of significantly increasing
    the local content in domestically produced vehicles.  At the
    same time, the Ministry of Finance issued a decision to
    raise the import duty rates for automobiles produced from
    kits (CKDs).  A joint campaign waged by affected foreign
    auto companies and their representative Embassies resulted
    in postponement of the change.  However, in May 2003, the
    National Assembly passed a Ministry of Finance proposal to
    impose a 10% VAT on all cars and increase the special
    consumption tax (SCT) on cars manufactured from CKDs
    starting in 2004 and going up to 80% on some models by 2007.
    The SCT was increased from 5% to 24% in January 2004 and
    from 24% to 41% in January 2005.  Under a Ministry of
    Finance 2004-2010 roadmap for the harmonization of tariff
    rates applied to CKDs and completely built units (CBUs), MFN
    tariff rates applied to CKDs will rise 5-10% per year until
    ¶2008.  The changes to the tax and tariff policy were made
    years after foreign auto manufacturers had committed
    significant resources to Vietnam.  They have driven sales
    down and are endangering the profitability of foreign
    automakers in Vietnam.

    STANDARDS, TESTING, LABELING AND CERTIFICATION

    Sanitary and Phytosanitary Measures

    Vietnam is currently working on the establishment of an SPS
    regime based on international standards, guidelines and
    recommendations.  Its current regime is based on CODEX and
    FAO/WHO standards, the standards of regional or developed
    countries, or national standards.  Vietnam has an inter-
    ministerial Working Group that coordinates SPS activities
    and the Ministry of Agriculture and Rural Development (MARD)
    currently serves as a general enquiry point for information
    on sanitary and phytosanitary requirements.   Specific
    responsibility for sanitary and phytosanitary control, plant
    and animal quarantine, health quarantine and fisheries
    inspection is further assigned to other Ministries and
    agencies.

    In December 2003 the Government banned imports of U.S. beef
    because of a fear of BSE (Bovine Spongiform Encephalopathy),
    a degenerative neurological disease affecting the central
    nervous system in cattle.  On October 5, 2004 the Ministry
    of Agriculture and Rural Development issued a notice that it
    would allow imports of U.S.-origin boneless beef, with the
    conditions that the beef not originate from the state of
    Washington and only be consumed in hotels and restaurants.
    One month later, under pressure from USDA, MARD lifted these
    restrictions.  However, issues regarding the language used
    in meat export certificates still need to be resolved.

    Standards and Technical Barriers to Trade

    The main ministry involved in standardization and quality
    requirements is the Ministry of Science and Technology
    (MOST).  The Directorate for Standards and Quality (STAMEQ)
    under the MOST is generally responsible for advising the
    Government on issues related to standards, measurements, and
    quality.  There are currently three levels of standards:
    national standards, sectoral standards, and company
    standards. The system is complicated and not always
    transparent.  Some items are subject to voluntary
    application; some items are subject to regulation by the
    line ministries.  Exporters and importers must obtain a
    permit from the line ministries or a receipt showing an
    inspection is in process for the controlled items to be
    allowed through customs.

    On March 25, 2003 Vietnam's TBT enquiry and notification
    Point was formally established in the offices of STAMEQ.
    However, this enquiry point will not be fully functional
    until the end of 2005 or upon Vietnam's WTO accession.

    Pharmaceutical companies face significant barriers to trade.
    The Ministry of Health now prohibits the registration or re-
    registration for import of 11 pharmaceutical products
    (reduced from 23) that are produced domestically.  In
    addition, pharmaceutical companies complain that the
    registration process for pharmaceuticals lacks transparency.
    Guidelines and regulations are unclear and/or are not
    applied in a consistent manner.  The Ministry of Health
    issues product visas with validity periods as short as one
    year.  The Government requires that all pharmaceutical raw
    materials be imported into Vietnam within six months of the
    date of manufacture.  Additionally, foreign manufacturers of
    vaccines are required to conduct clinical trials in Vietnam
    before being permitted to register their vaccines for sale.

    GOVERNMENT PROCUREMENT

    Government procurement practices can be characterized as a
    multi-layered decision-making process, which often lacks
    transparency and efficiency.  Although the Ministry of
    Finance allocates funds, various departments within the
    ministry or agency involved determine government procurement
    needs.  Competition for government procurements may take any
    of several forms:  sole source direct negotiation, limited
    tender, open tender, appointed tender, or special purchase.
    Currently, ministries and agencies have different rules on
    minimum values for the purchase of material or equipment,
    which must be subject to competitive bidding.  High-value or
    important contracts such as infrastructure (except World
    Bank, Asian Development Bank, UNDP, or bilateral official
    development assistance projects) require bid evaluation and
    selection and are awarded by the Prime Minister's office or
    any other competent body.  No consolidated or regular
    official listing of government tenders exists; however, some
    solicitations are announced in the both Vietnamese and
    English language newspapers.

    EXPORT SUBSIDIES

    Export credit is very limited in Vietnam.  The Export
    Promotion Fund managed by the Ministry of Finance, provides
    subsidies in the form of interest rate support (full or
    partial refund of interest incurred on ordinary bank loans),
    direct financial support (to first-time exporters, for
    exports to new markets, or for goods subject to major price
    fluctuations) and export rewards and bonuses.  Since 1998,
    the average annual export reward provided to eligible
    enterprises has ranged from USD 2,900 to USD 4,710.
    Provision of export bonuses, originally targeted for exports
    of agricultural products, was expanded in 2002 to include
    non-agricultural products such as handicrafts, rattan and
    bamboo ware, plastic products and mechanical products.
    Since 2001, the Export Promotion Fund has also provided
    support to enterprises for expenditures on trade promotion
    activities.

    Since September 2001, the Development Assistance Fund has
    administered an export credit program that has provided
    short-term loan guarantees, medium and long-term investment
    loans, post-investment interest rate support and investment
    credit guarantees to domestic enterprises.
    INTELLECTUAL PROPERTY RIGHTS (IPR) PROTECTION
    Vietnam is a member of the World Intellectual Property
    Organization (WIPO) and is a signatory to the Paris
    Convention for Industrial Property.  It has acceded to the
    Patent Cooperation Treaty and the Madrid Agreement.  On
    October 26 2004, Vietnam officially joined the Berne
    Convention on Copyright Protection for Literary and Artistic
    Works.  Vietnam is also obliged, under the terms of the 1997
    U.S.-Vietnam Bilateral Copyright Agreement, to provide U.S.
    copyrights protection on a national treatment basis in
    accordance with the terms of the Berne Convention.  Under
    the terms of the BTA, Vietnam was obligated by December 2003
    to make its system for protecting IPR, including
    enforcement, consistent with the WTO TRIPS agreement.
    Considerable progress has been made over the past few years
    in establishing the legal framework for IPR protection.  New
    legislation in 2004 included more detailed regulations on
    plant varieties and administrative sanctions against
    counterfeiting.  However, the legal reform process is not
    yet complete.  The Government has instructed the Ministry of
    Science and Technology (MOST) and the Ministry of Culture
    and Information (MOCI) to draft a separate law on
    intellectual property rights.  The GVN plans to submit the
    law to the National Assembly for approval in 2005.

    Enforcement of IPR protection remains extremely weak.   The
    BTA requires the government of Vietnam to provide
    expeditious remedies to prevent and deter infringement of IP
    rights, including particular judicial and administrative
    procedures, prompt and effective provisional measures
    secured by sufficient evidence, and criminal procedures and
    penalties for willful trademark counterfeiting or
    infringement of copyrights or neighboring rights on a
    commercial scale.

    Patent and Trademarks

    Trademark registration in Vietnam is relatively
    straightforward, although infringement is widespread and
    enforcement of administrative orders and court decisions
    finding IPR infringement remains problematic.  Vietnam's
    laws offer some protection for foreign patent holders, but
    there are infringements.  The National Office of
    Intellectual Property (NOIP), under the Ministry of Science
    and Technology, administers Vietnam's patent and trademark
    registration systems.  NOIP has made significant progress in
    recent years to build adequate capacity to record and
    adjudicate patent and trademark claims, and is working with
    a number of foreign patent and trademark agencies to enhance
    its systems.  Obtaining expeditious adjudication and
    administrative enforcement of patent and trademark
    violations remains difficult.  Victims of infringement have
    encountered difficulties implementing NOIP enforcement
    decisions.

    The BTA guarantees national treatment for the acquisition of
    IPR.  However, currently the National Office of Intellectual
    Property (NOIP) charges higher amounts to foreigners than it
    does to Vietnamese nationals for fees associated with
    registering and maintaining industrial property.  Fees
    charged to foreigners range from 417 percent to 471 percent
    higher than fees charged to Vietnamese for the same service.
    In May 2004, the Ministry of Finance and the Ministry of
    Science and Technology drafted a joint circular that will
    harmonize the industrial property fees charged to Vietnamese
    and foreigners, but the circular is still pending approval.

    Copyrights

    The Vietnam Office of Literary and Artistic Copyright is
    under the control and supervision of the Ministry of Culture
    and Information.  Significant progress has been made in
    putting in place the legal framework required to protect
    copyrights, including those belonging to foreigners, but
    enforcement is almost non-existent.  This is particularly
    true for certain categories of products, such as PC
    software, music and video CDs, VCDs, and DVDs.  Industry
    estimates of piracy rates for software, music, and videos
    run as high as 92 percent.  Local police authorities often
    are slow to act on administrative orders fining infringement
    and enforcing court decisions. After Vietnam joined the
    Berne Convention, the Ministry of Culture and Information
    made an effort to tighten copyright regulations on foreign
    musical and theatrical works.  All organizers must now
    obtain permission in writing from the copyright holders
    before performing their works.

    SERVICES BARRIERS

    Under the terms of the BTA, Vietnam agreed for the first
    time to liberalize a broad array of services sectors,
    including telecommunications, accounting, banking, and
    distribution services, and to apply MFN treatment to U.S.
    services suppliers in all sectors and for all modes of
    supply (with itemized exceptions).  The BTA also
    incorporated the WTO Agreements on Trade in Services (GATS)
    (except Paragraphs 3 and 4), Annex on Movement of Natural
    Persons, Annex on Telecommunications (except Paragraphs 6
    and 7), and the Telecommunications Reference Paper.
    Vietnam's commitments to liberalize market access on
    services are phased in over specified time periods depending
    on the sector.  The commitments by sector are as follows:

    Accounting, Auditing, and Bookkeeping Services:  For the
    first three years under the BTA, licenses will be granted on
    a case-by-case basis.  The company must employ at least five
    persons with licenses to be a CPA in Vietnam who have
    practiced in Vietnam for more than one year.  For the first
    two years under the BTA, firms with U.S. equity will only be
    allowed to supply services to foreign-invested enterprises
    and foreign funded projects in Vietnam.  Two new decrees in
    2004 revised the regulations for the accounting and auditing
    sectors.  Government Decree 105 allows auditing firms to be
    established in the form of partnerships, private enterprises
    or foreign invested enterprises.  Decree 105 allows foreign
    invested auditing firms to set up branches in Vietnam.
    Government Decree 129 allows accounting firms to be
    established in the form of limited liability companies,
    partnerships or private enterprises.  Branching is not
    permitted.

    Taxation Services:  For the first five years under the BTA,
    licenses will be granted on a case-by-case basis, and firms
    with U.S. equity will only be allowed to supply services to
    foreign-invested enterprises and foreign funded projects in
    Vietnam.  Branching is not permitted.

    Architectural, Engineering, and Computer Services:  For a
    period of two years from the date of establishment and
    operation, U.S.-owned companies may only provide services
    with foreign-invested enterprises in Vietnam.  U.S.
    companies have to be legally registered in the United
    States.  Branching is not permitted.

    U.S. companies and companies with U.S. directly-invested
    capital are not permitted to carry out topographic,
    construction, geological, meteorological, and environmental
    investigations; or technical investigations for designing
    rural-urban construction plans, unless otherwise authorized
    by the Government of Vietnam.

    Legal Services:  Under the terms of the BTA, 100 percent
    equity ownership in companies, joint ventures, and branches
    is permitted.  U.S. lawyers may not appear before Vietnamese
    courts.  However, U.S. firms may advise on Vietnamese law if
    they hire persons with Vietnamese law degrees who satisfy
    the requirements applied to like Vietnamese practitioners.
    Branches of law firms may receive a five-year renewable
    license.  In July 2003, the government promulgated Decree 87
    significantly reforming the regulatory framework for the
    operations of foreign law practices and foreign law firms.
    The decree substantially broadened the scope of practice of
    foreign law firms in Vietnam. Foreign law practices are
    permitted to provide advice on foreign and international law
    in the areas of business, investment and commerce, which had
    been prohibited previously.  By virtue of these reforms,
    foreign law firms may now offer a full range of legal
    services and employ Vietnamese lawyers.

    Advertising Services and Market Research:  Vietnam has not
    agreed to provide market access for advertising services for
    wines and cigarettes or for the cross-border supply of
    market research services.  U.S. companies in these sectors
    may initially only establish a commercial presence through
    joint ventures or business cooperation contracts with
    Vietnamese partners.  U.S. investment is limited to 49
    percent of the legal capital for the first five years under
    the Bilateral Trade Agreement, 51 percent for years six and
    seven, and is unlimited after that.  Vietnam has not agreed
    to ensure national treatment for the cross-border supply of
    market research services.
    Management Consulting:  U.S. companies may only establish a
    commercial presence through joint ventures or business
    cooperation contracts.  After the BTA has been in effect for
    5 years, enterprises with 100 percent U.S. ownership will be
    permitted.

    Telecommunication Services:  Initially, the provision of
    basic telecommunications services, value-added
    telecommunications services, and voice telephone services
    are only permitted through business cooperation contracts
    with Vietnamese gateway operators.  According to the terms
    of the BTA, U.S. value-added telecommunications service
    providers may establish joint ventures with Vietnamese
    partners with up to 50 percent equity ownership.  These
    joint ventures may not, however, construct their own long-
    distance and international circuits.  However, Vietnamese
    law does not yet provide for joint ventures in the telecom
    sector, and the Government has not issued any regulations or
    other documents specifically authorizing joint ventures with
    U.S. companies or clarifying the procedures for such
    partnerships in the telecom sector.   Four years after entry-
    into-force of the BTA, U.S. basic telecommunications service
    suppliers can establish joint ventures with Vietnamese
    partners with up to 49 percent U.S. equity ownership.  These
    joint ventures may not, however, construct their own long-
    distance and international circuits.  Six years after entry-
    into-force of the Agreement, U.S. voice telephone service
    providers may establish joint ventures with Vietnamese
    partners with up to 49 percent U.S. equity ownership.

    Audiovisual Services:  Vietnam has not agreed to provide
    market access or national treatment for cross-border supply
    or consumption abroad of audiovisual services.  U.S. service
    suppliers may establish a commercial presence only through a
    business cooperation contract or joint venture with a
    Vietnamese partner.  For the first five years after entry-
    into-force of the BTA, U.S. ownership may not exceed 49
    percent.  After five years, U.S. ownership may not exceed 51
    percent.  The Government strictly limits the importation of
    foreign films, videos, television and books.  Numerous
    licensing, pricing and remittance restrictions exist.  IPR
    protection for audio-visual products is ineffective,
    censorship is restrictive and rules are often applied in an
    ad-hoc manner.

    Construction and Related Engineering Services:  Vietnam has
    not agreed to provide market access or national treatment
    for the cross-border supply of construction and related
    engineering services.  Branches are not permitted.  For the
    first three years after their establishment and operation,
    100 percent U.S.-owned enterprises may only provide services
    to foreign-invested enterprises in Vietnam.  U.S. companies
    must be legally registered for operation in the United
    States.

    Distribution Services:  Vietnam does not provide market
    access or national treatment for the cross-border supply of
    distribution services.  Three years after entry-into-force
    of the BTA, U.S. service providers may establish joint
    ventures with Vietnamese partners with up to 49 percent U.S.
    equity.  After six years, U.S. ownership in joint ventures
    will be unlimited.  After seven years, companies with 100
    percent equity will be allowed.  One retail outlet per firm
    may be established upon entry into force of the BTA, while
    additional outlets will be considered on a case-by-case
    basis.  For some agricultural and industrial products,
    market access in this sector is subject to additional
    limitations, which will be phased out over a period of three
    to five years.  There are a limited number of products for
    which Vietnam did not commit to allow distribution services.

    Educational Services:  Vietnam will not provide market
    access or national treatment for the cross-border supply of
    educational services.  For the first seven years after entry-
    into-force of the BTA, U.S. companies may only establish a
    commercial presence through a joint venture.  After that,
    schools with 100 percent U.S.-invested capital may be
    established.  Foreign teachers employed by educational units
    with U.S.-invested capital must have five years teaching
    experience and be recognized by the Ministry of Education.

    Insurance Services:  Vietnam has agreed to allow market
    access for the cross-border supply of insurance services to
    enterprises with foreign invested capital or foreigners
    working in Vietnam; reinvestment services; insurance
    services in international transportation; insurance
    brokering and reinsurance brokering services; and advisory,
    claim settlement, and risk assessment services.  Three years
    after entry-into-force of the BTA, U.S. companies can
    establish joint ventures with Vietnamese partners with up to
    50 percent U.S. equity participation.  After five years, 100
    percent U.S.-invested companies may be established.

    While the Government has allowed foreign investment in both
    the "life" and "non-life" insurance markets, access has been
    extremely limited for U.S. service providers (only one U.S.
    "life" insurer has been issued a 100 percent foreign-owned
    license to operate.)  Some joint ventures with Vietnamese
    companies have been allowed to convert to 100 percent
    foreign ownership, but the terms have been arbitrary and
    subject to the "ad hoc" approval of the Government.

    Companies with U.S.-invested capital cannot provide
    insurance for motor vehicle third party liability, insurance
    in construction and installation, insurance for oil and gas
    projects, or insurance for projects and construction of high
    danger to public security and environment.   Three years
    after entry-into-force of the BTA, this limitation is
    eliminated for joint ventures.  After six years, this
    limitation is eliminated for companies with 100 percent U.S.
    capital.

    For the first 5 years after entry-into-force of the BTA, any
    company with U.S. capital must reinsure part of the accepted
    liabilities (currently at a minimum rate of twenty percent)
    through the Reinsurance Company of Vietnam.

    Banking:  Vietnam has not agreed to provide market access or
    national treatment for the cross-border provision of banking
    services, except for financial information services and
    advisory, intermediation, and other auxiliary services.
    U.S. banks may establish branches, joint ventures with
    Vietnamese banks, wholly owned U.S. financial leasing
    companies or joint venture financial leasing companies with
    Vietnamese partners.  However, foreign branches cannot be
    opened in both Hanoi and Ho Chi Minh City (with full branch
    status) to operate as one entity.

    For the first three years after entry-into-force of the BTA,
    the only legal form apart from banks and leasing companies
    in which U.S. companies may provide financial services is
    through joint ventures with Vietnamese banks.  During the
    first nine years, U.S. equity in joint venture banks must be
    between 30 percent and 49 percent.  After nine years, 100
    percent equity participation in subsidiary banks will be
    allowed.  The Government recently amended the Law on Credit
    Institutions, laying the groundwork for the establishment of
    100 percent foreign owned banks ahead of Vietnam's BTA
    obligations.  A Decree on Foreign Banks (currently in draft)
    and an implementing circular need to be promulgated before
    this change will come into effect.  It is expected that
    these regulations will be completed late in 2005.

    The right of U.S. banks to accept Vietnamese currency
    deposits on the same basis as domestic banks is phased in
    over eight years for business clientele and ten years for
    retail depositors.  After this, U.S. bank branches will be
    entitled to full national treatment.  Vietnam is fulfilling
    this commitment by gradually allowing U.S. banks to increase
    the amount of deposits in Vietnamese Dong (i.e. the local
    currency) relative to the branch's legal paid-in capital
    with the ratio presently at 400 percent for legal persons
    and 350 percent for natural persons.  (Prior to entry-into-
    force of the BTA, this ratio was 25 percent.)   In addition,
    financial institutions with U.S. equity cannot issue credit
    cards on a national treatment basis until eight years after
    entry-into-force of the BTA.  U.S. banks are now allowed to
    place automatic teller machines outside their office on a
    national treatment basis.

    Vietnam reserved the right to limit, on a national treatment
    basis, equity investment by U.S. banks in privatized
    Vietnamese state-owned banks.

    U.S. bank branches, subsidiaries, or U.S.-Vietnam joint
    ventures must obtain a license to establish a commercial
    presence in Vietnam.  A U.S. parent bank must provide
    minimum capital of USD 15 million to establish a branch.
    Establishing a U.S.-Vietnam joint venture bank or a U.S.
    bank subsidiary requires minimum capital of USD 10 million.
    Authorized capital levels for state-owned commercial banks,
    joint-stock commercial banks, investment banks and joint
    venture banks are set at more advantageous levels

    For the first three years after the entry-into-force of the
    Agreement, financial institutions with 100 percent U.S.
    equity ownership may not take an initial mortgage interest
    in land use rights.  After three years, these institutions
    will be allowed to take an initial mortgage interest in land-
    use rights held by foreign-invested enterprises, and may use
    mortgages or land-use rights for the purpose of liquidation
    in case of default.
    Establishing a wholly owned subsidiary of a U.S. financial
    leasing company or a joint venture leasing company requires
    three consecutive profitable years, and USD 5 million in
    legal capital.

    For the first three years under the BTA, Vietnam is not
    obligated to provide national treatment with respect to
    access to central bank rediscounting, swap, and forward
    facilities.  However, in 2003, the State Bank of Vietnam
    allowed one U.S. bank with branches in Vietnam (and some
    local banks) to provide swap service on a pilot basis.  In
    May 2004, the State Bank of Vietnam issued Decision 648
    allowing commercial banks to provide forward and swap
    facilities to their clients.

    Licenses for foreign banks currently are limited in validity
    to only 20 to 30 years and extensions (if any) are subject
    to the approval of the State Bank of Vietnam.

    Non-banking Financial Services:  The BTA allows 100 percent
    U.S. equity in financial leasing and in other leasing after
    3 years.  Government Decree 79 issued in 2002 permits the
    establishment and operation of finance companies in Vietnam,
    including joint venture and wholly foreign owned finance
    companies.

    Securities-Related Services:  Vietnam has not agreed to
    provide market access or national treatment for the cross-
    border supply of securities-related services.  Non-bank U.S.
    securities service suppliers may only establish a commercial
    presence in Vietnam in the form of a representative office.
    In 2003 the Government issued Decree 144 on Securities and
    Securities Trading, allowing foreign investment in
    securities investment funds and fund management companies.
    Government Decision 146 issued in July 2003 limited foreign
    capital contribution in joint venture security companies or
    joint venture fund management companies to 49 percent.

    Health-Related Services:  U.S. operators may provide
    services through the establishment of 100 percent U.S.-owned
    operations, joint ventures with Vietnamese partners or
    through business cooperation contracts.  The minimum
    investment capital is USD 20 million for a hospital, USD 2
    million for a polyclinic, and USD 1 million for a specialty
    unit.

    Tourism and Travel-Related Services:  U.S. companies may
    establish a commercial presence to provide hotel and
    restaurant services, provided that this is done in
    conjunction with investment for the construction of a hotel.
    The commercial presence may take the form of a business
    cooperation contract, a joint venture with Vietnamese
    partners, or a company with 100 percent U.S. equity
    investment.

    There are limitations with respect to travel agencies and
    tour operators.  U.S. companies supplying these services may
    establish a commercial presence only through a joint venture
    with Vietnamese partners and can initially only contribute
    49 percent of the capital.  Three years after entry-into-
    force of the BTA, 51 percent participation will be allowed,
    and all limitations will be abolished after five years.
    Tourist guides in joint ventures must be Vietnamese
    citizens.  Service supplying companies with U.S.-invested
    capital may only supply inbound service.

    INVESTMENT BARRIERS

    At present, the government of Vietnam maintains an extensive
    investment licensing process, which is characterized by
    stringent and time consuming requirements that are
    frequently used to protect domestic interests, limit
    competition, and allocate foreign investment rights among
    various countries.  Foreign businesses are permitted to
    remit profits, share revenues from joint ventures, incomes
    from services and technology transfers, legally owned
    capital, and properties in hard currency.  Foreigners are
    also allowed to remit abroad royalties and fees paid for the
    supply of technologies and services, principal and interest
    on loans obtained for business operations, and investment
    capital and other money and assets under their legitimate
    ownership.

    The BTA provides a broad range of benefits to U.S. investors
    in Vietnam that should significantly enhance the investment
    environment for U.S. firms.  Vietnamese investment
    obligations under the BTA include:  providing national and
    most-favored-nation treatment, except where explicit
    exceptions have been made; ensuring treatment of
    expropriation consistent with international standards; and
    guaranteeing access to third-party investor-state dispute
    settlement.  In practice, however, recognition and
    enforcement of foreign arbitral awards in Vietnam currently
    remains questionable.
    In addition, Vietnam is obligated under the BTA gradually to
    discontinue application of any Trade-Related Investment
    Measures (TRIMS) or performance requirements inconsistent
    with the WTO TRIMS agreement.

    Under the terms of the BTA, Vietnam retained the right to
    require that an investment project export at least eighty
    percent of its production for seven years in the following
    sectors:  cement; paint; toiletry tiles and ceramics; PVC
    and other plastics; footwear; clothing; construction steel;
    detergent powder; tires and inner tubes for cars and
    motorbikes; NPK fertilizer; alcoholic products; tobacco; and
    paper.  In December 2001 (three days prior to entry-into-
    force of the BTA), Ministry of Planning and Investment
    Decision 718 revised the list of products subject to an
    export requirement.  However, many of the products
    identified in Decision 718 are not in the list agreed upon
    in the BTA.  According to Decision 718, Vietnam currently
    has an eighty percent export requirement for:  motorcycles;
    minibuses and trucks (less than 10 ton); some irrigating
    pumps; medium voltage, low voltage and normal electric
    transmission cables; cargo ships, audio-visual products;
    aluminum profiles products; construction glass; NPK
    fertilizer; PVC; bicycles and bicycle parts; transformers
    under 35 KV; and diesel motors under 15 CV.

    Vietnam is also obligated to refrain from imposing
    requirements to transfer technology as a condition for the
    establishment, expansion, acquisition, management, conduct,
    or operation of an investment.  Vietnam currently imposes a
    number of performance requirements with respect to the
    establishment of an investment and/or the receipt of a
    benefit or incentive.  Vietnam retains restrictions on
    foreign shareholding in Vietnamese companies, although the
    ratio has been raised from twenty to thirty percent.   In
    March 2003, the government issued Decree 27 amending the Law
    on Foreign Investment, removing trade balancing requirements
    and foreign exchange controls.  In April 2003, the
    government issued a decision to reduce the foreign exchange
    surrender requirement to 0 percent.

    Decree 27 also now allows foreign investors to recruit
    Vietnamese workers directly, without having to go through
    labor recruitment agencies.  However, in September 2003,
    Government Decree 105, drafted by the Ministry of Labor,
    Invalids and Social Affairs, established a regulation
    limiting all enterprises operating in Vietnam to employing
    foreign nationals at the lesser of 1) a maximum rate of 3
    percent of their total work force or 2) 50 persons.  Despite
    repeated complaints from the foreign business community, the
    government appears unwilling to lift the cap.  Proposed
    amendments to the Decree may provide exemptions for certain
    sectors and types of employment and eliminate the 50-person
    limit

    In the BTA, Vietnam committed to gradually shift to an
    investment registration regime for most sectors.
    According to Decree 27, the following types of investment
    are no longer subject to investment licensing:  investment
    projects that export eighty percent of products; investments
    in "encouraged" or "specially encouraged" projects located
    in industrial zones (with some exceptions); and investment
    in the manufacturing sector with a value of up to USD 5
    million in investment capital.

    Vietnam's technology transfer regime needs to be revised.
    According to Government Decree 45 (from 1998) the royalty
    rate for technology transfer cannot exceed 5 percent of the
    "net selling price" of the products produced with the
    technology.  Decree 45 also narrowly defines the "net sales
    price" to which the royalty is applied resulting in very
    small royalties.

    ELECTRONIC COMMERCE

    To date, electronic commerce has not made much progress in
    Vietnam. Obstacles to its development include:  the low
    number of Internet subscribers in-country, obtrusive
    firewalls, limited bandwidth and other problems with the
    Internet infrastructure, limitations of the financial system
    (including the low number of credit cards in use), and
    regulatory barriers.  However, recent developments to
    facilitate the growth of electronic commerce in Vietnam
    include legal acceptance of e-signatures and implementation
    of the electronic inter-bank transaction system.  The number
    of online transactions has been increasing. The National
    Assembly Committee for Science, Technology and Environment
    is will be drafting an e-transaction law, which will include
    electronic commerce issues.  The Committee expects to submit
    the draft to the National Assembly for approval late in
    ¶2005.

    The government of Vietnam continues to attempt to keep close
    control on all websites established in Vietnam.  In October
    2002, the government of Vietnam passed a new regulation on
    the establishment and modification of websites.  The
    regulation requires domestic and foreign agencies,
    organizations, and enterprises to obtain a license from the
    Ministry of Culture and Information before establishing new
    websites.  The Ministry then has 30 days to make a decision
    on granting the license.  The regulation also requires
    diplomatic and other foreign entities to obtain written
    approval from the Ministry of Foreign Affairs (MFA) before
    requesting a license from MOCI.  Vietnam may also require
    organizations to request permission from MOCI before making
    changes to the content of their existing websites based on
    licensing requirements in the regulation.

    OTHER BARRIERS

    U.S., other foreign, and domestic firms have identified
    corruption in Vietnam in all phases of business operations
    as an obstacle to their business activities.  Vietnam scored
    a 2.6 out of a possible high score of 10 points on
    Transparency International's Corruption Perception Index.
    In large part due to a lack of transparency, accountability,
    and media freedom, widespread official corruption and
    inefficient bureaucracy remain serious problems that even
    the Communist Party of Vietnam and the government of Vietnam
    admit they must address on an urgent basis.  Competition
    among government agencies for control over business and
    investments has created a confusion of overlapping
    jurisdictions and bureaucratic procedures and approvals,
    which in turn create opportunities for corruption.  Low pay
    for government officials and woefully inadequate systems for
    holding officials accountable for their actions compound the
    problems.  Implementation of the government of Vietnam's
    public administration reform program, developed with the
    assistance of the World Bank, as well as Vietnam's
    obligations under the transparency provisions of the BTA
    promise some improvement in the situation in the medium to
    long term, but it appears unlikely there will be much
    improvement in the near term.

    Vietnam maintains a policy of bias in favor of domestic-
    market oriented industries, particularly those dominated by
    state-owned enterprises.  Although all registered firms,
    regardless of ownership, can engage legally in foreign
    trade, barriers exist that discourage trading by non-state
    enterprises.  Monopolies in production result in monopolies
    in trading, as in the case of coal.  The tariff structure
    also favors domestic industries, particularly those
    dominated by state-owned enterprises.  Most lower tariffs
    are on items predominantly used by those enterprises as
    inputs.

    In April 2003, the United States and Vietnam concluded a
    textile trade agreement.  The textile agreement assists U.S.
    domestic manufacturers by including Vietnam within the
    global textile quota regime and helps our importers by
    providing certainty and avoiding the unpredictability of
    frequent, random, unilateral limits.  This agreement also
    contains a labor provision.  Both parties reaffirm their
    commitments as members of the ILO and also indicate their
    support for implementation of codes of corporate social
    responsibility as one way of improving working conditions in
    the textile sector.  The agreement also calls for a review
    of progress on the goal of improving working conditions in
    the textile sector through consultations between the U.S.
    Department of Labor and the Vietnamese Ministry of Labor,
    Invalids, and Social Affairs.

    End draft text.

    BOARDMAN

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