30 June 2023

Russia-Vietnam Trade Regulations: Legal Aspects of Import and Export

June 30, 2023

BRACE Law Firm ©

In recent years, Vietnam has achieved a high level of development, including in the economic sphere, manufacturing, and trade.

To create favorable conditions for trade and to develop economic and trade cooperation in areas of mutual interest — based on equality, mutual benefit, non-discrimination, and international law — the EAEU member states and Vietnam signed the Free Trade Agreement in 2015. This agreement aims to develop and simplify cooperation while expanding business opportunities. It is important to note that under current foreign policy conditions, Vietnam is not included in the list of unfriendly countries and does not impose sanctions against the Russian Federation.

The foreign trade cooperation between Russia and Vietnam covers various sectors. Specifically, Russia exports the following to Vietnam:

metals and metal products;
wood, pulp, and paper products;
food products and agricultural raw materials;
mineral products and chemical industry products;
machinery, equipment, and vehicles.

Vietnam exports a wide range of goods, such as:

electrical machinery, equipment, and parts thereof;
sound recording and reproducing apparatus;
footwear, clothing, and bedding;
furniture;
fish, crustaceans, and mollusks;
rice;
plastics and rubber;
toys;
boilers, equipment, and mechanical devices.

Given that the Vietnamese side attaches great importance to the creation of a free trade area, cooperation between the EAEU and Vietnam was formalized and is carried out based on the Free Trade Agreement dated May 29, 2015 (the "Free Trade Agreement"). The primary objectives of the Free Trade Agreement include:

liberalizing and facilitating trade in goods between the parties by, among other things, reducing tariff and non-tariff barriers and simplifying customs procedures;
liberalizing and facilitating trade in services between the parties;
facilitating, promoting, and expanding investment opportunities between the parties by further developing a favorable investment environment;
supporting economic and trade cooperation between the parties;
providing adequate and effective protection of intellectual property and promoting cooperation in this field;
creating a basis for further development of close cooperation in areas provided for by the Free Trade Agreement and facilitating interaction between the parties.

Regarding customs duties and charges of any kind imposed on or in connection with imports and exports, or imposed on the international transfer of payments for imports or exports, as well as the method of levying such duties and charges, and all rules and formalities in connection with imports and exports, and all matters referred to in paragraphs 2 and 4 of Article III of the GATT 1994, any advantage, favor, privilege, or immunity granted by a contracting party to any product originating in or destined for any other country must be immediately and unconditionally granted to the like product of the other party originating in or destined for the territory of such party. Furthermore, each party must phasedly reduce and/or eliminate customs duties on goods originating from the territory of the other party in accordance with its schedule of tariff commitments. Neither party shall increase any customs duty or establish any new customs duty that results in a rate exceeding the level determined in its schedule of tariff commitments.

At the same time, each party ensures the uniform, impartial, and reasonable application of all national laws, regulations, judicial decisions, and administrative rulings of general application regarding trade in goods in accordance with the provisions of Article X of the GATT 1994.

The rules for determining origin provided for in the Free Trade Agreement apply exclusively for the purposes of granting tariff preferences. For exported and imported goods, descriptions are used in accordance with the Eurasian Economic Commission Board Decision No. 55 dated April 17, 2018, On the Application of Annex 3 to the Free Trade Agreement between the Eurasian Economic Union and its Member States, of the One Part, and the Socialist Republic of Vietnam, of the Other Part, dated May 29, 2015. This decision ensures the application of a list of specific origin criteria, updated in accordance with the 6th edition of the Harmonized Commodity Description and Coding System of the World Customs Organization.

Due to Vietnam's geographic location, goods are delivered by either air or sea. Multimodal transport involving rail delivery may only be used within the country of delivery — for example, considering Russia's vast territory. The choice of a logistics chain depends on the type of cargo, the urgency of delivery, and the cost.

Foreign Trade Contracts with Vietnamese Companies

A foreign trade contract is a document prepared considering not only the norms of international law but also the legislative specifics of the partner's country. The primary international document regulating trade contracts is the United Nations Convention on Contracts for the International Sale of Goods (the "CISG"), which applies to contracts for the sale of goods between parties whose places of business are in different states. For Vietnam, the Convention entered into force on January 1, 2017, and for the Russian Federation, on September 1, 1991. Following the signing of the Free Trade Agreement, trade relations between Russian and Vietnamese partners have significantly simplified. Customs duties were abolished for some goods, reduced for others, and will be abolished for the remaining categories over the next few years. The creation of a free trade area has allowed the countries to increase trade turnover in several positions despite the global economic and political situation. In addition to the main international documents regulating foreign trade relations between Russia and Vietnam, when concluding an international contract, one must also consider the national legislation of the partners, including customs, tax, and civil law.

Furthermore, Vietnam is an Asian country with its own interaction specifics, including in the business sphere. Although Vietnamese businesspeople often speak English, it is advisable to involve a Vietnamese translator for fruitful interaction. Often, Vietnamese entrepreneurs prefer to hold several meetings before proceeding to conclude a contract. Meetings should take place in an official setting and adhere to unspoken rules:

determine the negotiation agenda in advance and send it to the future partners;
understand that hierarchy and seniority significantly influence the building of relationships;
Vietnamese partners generally do not give a direct refusal; therefore, it is necessary to clearly discuss and clarify all details of the future transaction and the foreign trade contract;
the guest side concludes the meeting.

These are only the main directions to consider when interacting with Vietnamese partners. To ensure a successful transaction, it is also important to study the mentality of the partner country's entrepreneurs.

Following negotiations, interaction between foreign partners is formalized by a foreign trade contract reflecting all material terms of the reached agreements. Typically, a foreign trade contract includes sections such as: the preamble, subject of the contract, contract value, payment terms and currency, delivery terms, customs clearance, insurance, acceptance of goods, force majeure, sanctions for breach of obligations, applicable law, miscellaneous provisions, and the parties' details.

To simplify the description of delivery terms, the contract uses the International Rules for the Interpretation of Trade Terms, or Incoterms. The parties also select the edition of Incoterms applicable to the specific delivery. The choice of delivery terms depends on the partners' capabilities and the transport companies available in the partner's country.

Understanding the business customs of foreign partners, while complying with international law and the laws of the partner country, allows for effective negotiations, determination of material terms, and the conclusion of a foreign trade contract on favorable and secure terms for both parties.

Taxation and Customs Payments under Foreign Trade Contracts with Vietnamese Partners

In the field of taxation, Vietnamese and Russian partners are subject to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting. This document applies to Russian agreements on the avoidance of double taxation (DTAs) to which it extends — no earlier than January 1, 2021, after notifications regarding the completion of internal state procedures are sent through the diplomatic channels of the OECD and to the partner states. The Ministry of Finance of Russia prepared an information message On the Commencement of the Application of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting dated November 24, 2016. Additionally, Federal Law No. 79-FZ dated May 1, 2019, On the Ratification of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, was adopted. Under this law, the Multilateral Convention's provisions also extend to the Agreement between the Government of the Russian Federation and the Government of the Socialist Republic of Vietnam On the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income. This Agreement was signed in 1993 to eliminate double taxation and prevent tax evasion and applies to persons who are residents of one or both contracting states. The Agreement applies to taxes on income regardless of the method of collection.

The Federal Tax Service, to develop uniform approaches, summarized answers regarding:

the taxation of foreign organizations that do not carry out activities through a permanent establishment in the Russian Federation and receive income from sources in Russia;
the application of the provisions of agreements on the avoidance of double taxation (the "DTAs") concluded by the Russian Federation with foreign states.

The existing taxes to which the Agreement on the Avoidance of Double Taxation applies are:

In Russia—taxes levied in accordance with the following Laws of the Russian Federation:

Law of the Russian Federation No. 2116-1 dated December 27, 1991, On the Profit Tax of Enterprises and Organizations;
On the tax on income of banks;
On the tax on income from insurance activities;
On the income tax on individuals.

In Vietnam:

personal income tax;
profit tax;
tax on transferred profits.

It is important to note that if a resident of one contracting state receives income from the other contracting state, the amount of tax on such income payable in that other state in accordance with the Agreement will be deducted from the tax levied on such person in the first-mentioned state.

Customs clearance and the payment of customs duties and charges are mandatory components of foreign trade contracts. Therefore, when concluding international agreements, it is crucial to consider not only the legislation of the partner countries but also international trade law and specific bilateral agreements regarding taxation, customs clearance, and the provision of benefits and preferences.

For Russia, the primary document regulating customs legislation is the EAEU Customs Code, whereas for Vietnamese partners, it is Law No. 54/2014/QH13 dated June 23, 2014, On Customs. This law provides for state customs management regarding goods permitted for import, export, or transit, and transport vehicles of domestic and foreign legal entities entering, exiting, or in transit within the customs territory, as well as the organization and functioning of the customs service.

Compliance with the customs laws of the partner countries is a mandatory condition of a foreign trade contract. The correct preparation of customs documents determines the customs duties and charges, the legality of their payment, and potential liability for violations of customs legislation.

Tariff Quotas for Specific Types of Goods in Russia and Vietnam

A tariff quota is a measure regulating the import into the Russian Federation of specific types of agricultural goods originating from third countries. It provides for the application, during a certain period, of a lower import customs duty rate for a specific quantity of goods (in physical or value terms) compared to the rate applied in accordance with the Unified Customs Tariff of the Customs Union.

Tariff quotas may be established for specific types of agricultural goods originating from third countries and imported into the Union's customs territory if similar goods are produced (extracted, grown) within the EAEU customs territory. The Commission on Customs and Tariff Regulation establishes tariff quotas, allocates the quota volume among member states, and determines the method and procedure for distributing the quota volume among foreign trade participants. When necessary, it also allocates the quota volume among third countries or adopts an act under which member states determine the distribution method.

Regarding interactions with Vietnamese partners, tariff quotas for specific types of long-grain rice were established by the Eurasian Economic Commission Board Decision No. 118 dated August 16, 2022, On Establishing for 2023 the Tariff Quota Volumes for Specific Types of Long-Grain Rice Originating from the Socialist Republic of Vietnam and Imported into the Territories of the Member States of the Eurasian Economic Union. The distribution of this volume is carried out in accordance with the Russian Government Decree No. 1970 dated November 2, 2022, On the Distribution of the Tariff Quota Volume for Specific Types of Long-Grain Rice Originating from the Socialist Republic of Vietnam in 2023.

The procedure for calculating the tariff quota volume for specific types of rice is defined by the Ministry of Economic Development of Russia Order No. 698 dated December 13, 2022, On the Procedure for Calculating the Volume of the Tariff Quota Established for Specific Types of Long-Grain Rice (TN VED EAEU codes 1006 30 670 1 and 1006 30 980 1) Originating from the Socialist Republic of Vietnam and Imported into the Territories of the Member States of the Eurasian Economic Union.

Product Origin Certification and Tariff Preferences in Russia and Vietnam

Product origin must be confirmed in all cases where the application of customs and tariff regulation measures, prohibitions, restrictions, or domestic market protection measures depends on the origin of the goods. For interactions with Vietnamese partners, confirmation of the country of origin for exports to Vietnam is carried out in accordance with the Russian Government Decree No. 1059 dated October 17, 2016, On the Authorities (Organizations) of the Russian Federation Authorized to Confirm the Country of Origin of Goods upon Their Export to the Socialist Republic of Vietnam (the "Decree No. 1059").

Under Decree No. 1059, the CCI of the Russian Federation is the authorized body for issuing certificates of origin (Form EAV) for exports to the Socialist Republic of Vietnam and for developing and implementing the Electronic System for Certification and Verification of Origin in accordance with the Agreement.

The issuance of Form EAV certificates of origin for goods exported from the Russian Federation to the Socialist Republic of Vietnam is carried out based on the CCI of Russia Order No. 131 dated October 27, 2016, On Approving the Regulation on the Procedure for Issuing Form EAV Certificates of Origin for Goods Exported from the Russian Federation to the Socialist Republic of Vietnam.

Form EAV certificates are issued by the CCI of the Russian Federation and the regional chambers of commerce and industry it authorizes. Annex 1 to the aforementioned Regulation provides a list of these authorized CCIs.

The Form EAV certificate is issued to the Applicant before or at the time of the actual export of a single batch of goods. In exceptional cases where the certificate was not issued before or at the time of export, it may be issued afterward with the mark "ISSUED RETROACTIVELY".

The validity period of a Form EAV certificate for the purpose of granting free trade treatment (preferential customs regime) is 12 months from the date of its issuance.

It is important to note that the certificate of origin must contain the signature of the person authorized to certify it, the official seal of the authorized body, and security elements. The signature must be handwritten; the use of a facsimile of the official seal is not permitted. If the signature on the certificate does not match the samples available to the customs authorities, the customs authority may determine that the certificate was issued in violation of the established procedure. This is considered a material violation that prevents the customs authority from authentically establishing the origin of the goods.

A tariff preference is defined as an exemption from import customs duties for goods originating from countries that, together with the Russian Federation, form a free trade area or have signed agreements aiming to create such an area. It also includes the reduction of import customs duty rates for goods originating from developing or least developed countries using the Unified System of Tariff Preferences of the Customs Union.

For the purpose of granting tariff preferences for goods imported into the EAEU customs territory from developing or least developed countries that are users of the Union's unified system, the rules for determining the origin of goods established by the Eurasian Economic Commission apply. The list of goods originating from developing or least developed countries entitled to tariff preferences upon import into the EAEU territory was approved by the Eurasian Economic Commission Council Decision.

Prohibitions and Restrictions in Interaction with Vietnamese Partners

In accordance with Article 7 of the EAEU Customs Code, goods are moved across the Union's customs border and/or placed under customs procedures subject to prohibitions and restrictions. Compliance is confirmed by submitting documents and/or information to the customs authorities.

Regarding various groups of goods, enhanced laboratory control may be introduced for safety indicators:

Rosselkhoznadzor Letter No. FS-ARv-7/4651-3 dated August 10, 2022, On the Introduction of an Enhanced Laboratory Control Regime for Products Entering the Russian Federation from Vietnam;
Rosselkhoznadzor Letter No. FS-ARv-7/4790-3 dated October 28, 2022, On the Introduction of an Enhanced Laboratory Control Regime for Products of an Enterprise Entering the Russian Federation from Vietnam;
Rosselkhoznadzor Letter No. FS-ARv-7/4622-3 dated July 29, 2022, On the Introduction of an Enhanced Laboratory Control Regime for Products of an Enterprise Entering the Russian Federation from Vietnam.

Note that veterinary control (surveillance) is conducted at the customs border for certain types of goods. Veterinary and sanitary measures in the EAEU are carried out in accordance with the Customs Union Commission Decision No. 317 dated June 18, 2010, On the Application of Veterinary and Sanitary Measures in the Eurasian Economic Union. To facilitate the supply of agricultural products from Russia to Vietnam, Rosselkhoznadzor has held extensive negotiations with the Department of Animal Health and the National Authority for Agro-Forestry-Fisheries Quality Assurance (NAFIQAD) of the Ministry of Agriculture and Rural Development of Vietnam. The goal was to ensure access for Russian enterprises to the Vietnamese market. A procedure was established for the documentary support of inspecting Russian enterprises for inclusion in the list of exporters to Vietnam, under which exported products must comply with the requirements and safety standards of the Socialist Republic of Vietnam, supported by relevant studies conducted in laboratories accredited in the Russian national system. This established procedure does not apply to processed dairy products.

Additionally, restrictions on the supply of certain types of products to the Russian Federation may be introduced:

Rosselkhoznadzor Letter No. FS-ARv-7/4563-3 dated June 24, 2022, On the Introduction of Restrictions on Supplies to the Russian Federation of Products from a Vietnamese Enterprise;
Rosselkhoznadzor Letter No. FS-ARv-7/4524-3 dated June 2, 2022, On the Introduction of Temporary Restrictions on the Export to the Russian Federation of Products from Vietnam.

Such restrictions are lifted by executive authorities once the reasons for their introduction are resolved:

Rosselkhoznadzor Letter No. FS-YuSh-7/18180 dated July 4, 2022, On the Cancellation of Restrictions on the Import into the Russian Federation of Products from Vietnam;
Rosselkhoznadzor Letter No. FS-KS-7/12340 dated May 4, 2022, On the Cancellation of Restrictions on the Import into the Russian Federation of Products from a Vietnamese Enterprise.

These prohibitions and restrictions help reduce the risk of importing goods that could negatively affect the life and health of Russian citizens.

Settlements under Foreign Trade Contracts between Russian and Vietnamese Partners

To develop and deepen mutual trade and economic cooperation, the Bank of Russia and the State Bank of Vietnam signed the Agreement On the Organization of Settlements for Foreign Economic Ties dated August 26, 1998. Under this Agreement, all settlements and payments for goods and services between the Russian Federation and the Socialist Republic of Vietnam under contracts concluded between foreign trade entities of the two states are carried out in freely convertible currencies, in rubles, and in dongs, in accordance with international practice and the laws in force in each state. The payment currency and the form of settlements are determined by agreement between the foreign trade entities.

Settlements and payments are carried out through correspondent accounts of authorized banks of the Russian Federation and the Socialist Republic of Vietnam, opened by them with each other based on mutual agreement. Russian and Vietnamese authorized banks open accounts for each other based on agreements establishing the technical procedure for payments.

Authorized banks of the Russian Federation are banks and other credit organizations that have received licenses from the Bank of Russia to establish correspondent relations with banks in foreign countries. Authorized banks of the Socialist Republic of Vietnam are banks licensed by the State Bank of Vietnam to conduct operations in foreign currencies.

Commercial Litigation with Vietnamese Companies

To resolve disagreements arising in the process of foreign trade, the parties to an international contract should provide for not only the applicable law but also the jurisdiction for arising disputes. This significantly simplifies the resolution of conflict situations. Notably, both Russia and Vietnam are parties to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), under which each contracting state recognizes arbitral awards as binding and enforces them in accordance with the procedural rules of the territory where recognition and enforcement are sought. To obtain recognition and enforcement, the requesting party must submit:

the duly authenticated original arbitral award or a duly certified copy thereof;
the original agreement containing the arbitration clause or the arbitration agreement signed by the parties, or contained in an exchange of letters or telegrams, or a duly certified copy thereof.

Recognition and enforcement of an arbitral award may be refused at the request of the party against whom it is invoked only if that party provides relevant evidence to the competent authority where recognition and enforcement are sought.

Meanwhile, under Article 1 of the Treaty between the Russian Federation and the Socialist Republic of Vietnam On Legal Assistance and Legal Relations in Civil and Criminal Matters (Moscow, August 25, 1998), citizens of one contracting party enjoy the same legal protection of their person and property in the territory of the other contracting party as the citizens of that party. Citizens of one contracting party have the right to freely approach judicial institutions of the other contracting party competent in civil and criminal matters, to appear before them, to file lawsuits, to make motions, and to perform other procedural actions under the same conditions as the citizens of that party. The provisions of this Treaty concerning citizens apply accordingly to legal entities created under the laws of one of the contracting parties. Under this Treaty, civil matters also include commercial, family, and labor cases.

The scope of legal assistance is provided in Article 5 of the Treaty. The contracting parties provide legal assistance to each other by performing specific procedural actions provided for by the laws of the requested party, including the preparation and delivery of documents, recognition and enforcement of court decisions in civil cases, searches, obtaining and transferring physical evidence, expert examinations, and the interrogation of parties, witnesses, and other persons.

Interaction with Vietnamese partners significantly affects the foreign trade of the Russian Federation, and in connection with the sanctions imposed on Russia, it generates additional demand for various groups of goods. Vietnamese suppliers meet consumer demand for a range of products manufactured in Vietnam, and established partnership relations contribute to this favorable trade interaction. Newly developed trade chains only expand trade relations with Vietnamese partners and positively influence the growth of trade between Russia and Vietnam.

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References

Free Trade Agreement between the Eurasian Economic Union and its Member States, of the One Part, and the Socialist Republic of Vietnam, of the Other Part, dated May 29, 2015.
Export and Import of Russia by Goods and Countries. Export and Import to Vietnam. Analytics for 2021. ru-stat portal.
Export and Import of Russia by Goods and Countries. Export and Import to Vietnam. Analytics for 2022. ru-stat portal.
The document expires in connection with the publication of the EAEU College Decision No. 10 dated January 24, 2023, entering into force 30 calendar days after official publication (published on the EAEU website on January 27, 2023), but no earlier than October 1, 2023.
International Convention on the Harmonized Commodity Description and Coding System. Concluded in Brussels on June 14, 1983.
United Nations Convention on Contracts for the International Sale of Goods. Concluded in Vienna on April 11, 1980.
Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting. Concluded in Paris on November 24, 2016. The document entered into force for Russia on October 1, 2019.
Information from the Ministry of Finance of Russia On the Application of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting dated November 24, 2016.
Agreement between the Government of the Russian Federation and the Government of the Socialist Republic of Vietnam dated May 27, 1993, On the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income.
Letter of the Federal Tax Service of Russia No. ShYu-4-13/2691@ dated March 9, 2023, On the Taxation of Foreign Organizations Receiving Income from Sources in the Russian Federation, and the Procedure for Applying the Provisions of DTAs.
Law of the Russian Federation No. 2116-1 dated December 27, 1991, On the Profit Tax of Enterprises and Organizations.
By Federal Law No. 118-FZ dated August 5, 2000, which entered into force on January 1, 2001, Law of the Russian Federation No. 1998-1 dated December 7, 1991, On the Income Tax on Individuals, was recognized as having lost force from the date the second part of the Tax Code of the Russian Federation was put into effect. Since January 1, 2001, issues concerning the collection of income tax on individuals have been regulated by Chapter 23 of the Tax Code of the Russian Federation.
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North Caucasus District Arbitration Court Resolution No. F08-4578/2016 dated August 15, 2016, in Case No. A32-32027/2015 On the Return of Excessively Paid Customs Payments.
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