DISPOSITIONS ON SANITARY AND PHYTOSANITARY (SPS) MEASURES IN THE NEW GENERATION OF FREE TRADE AGREEMENTS OF VIETNAM

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MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY
MASTER THESIS
DISPOSITIONS ON SANITARY AND
PHYTOSANITARY (SPS) MEASURES
IN THE NEW GENERATION OF
FREE TRADE AGREEMENTS OF VIETNAM
Specialization: International Trade Policy and Law
FULL NAME: LE NGOC TRAM

Hanoi – 2019
MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY
MASTER THESIS
DISPOSITIONS ON SANITARY AND
PHYTOSANITARY (SPS) MEASURES
IN THE NEW GENERATION OF
FREE TRADE AGREEMENTS OF VIETNAM
Major: International Economics
Specialization: International Trade Policy and Law
Code: 8310106
Full name: Le Ngoc Tram
Supervisor: Dr. Nguyen Ngoc Ha

Hanoi - 2019

STATEMENT OF ORIGINAL AUTHORSHIP
I hereby declare that this master thesis is my own scientific research which is
made under the guidance of my supervisor, Dr. Nguyen Ngoc Ha. The contents and
results of this research are completely honest. The information, data and documents
which are collected from various sources for analysis and evaluation have been
fully cited in the main content and in the references list of this master thesis as well.
Student,
Le Ngoc Tram

CONTENTS
ACKNOWLEDGEMENTS...................................................................................... i
LIST OF TABLES ................................................................................................... ii
LIST OF ABRREVIATIONS ................................................................................ iii
ABSTRACT...............................................................................................................v
INTRODUCTION.....................................................................................................1
1. Research rationale................................................................................................1
2. Literature review..................................................................................................2
2.1. Analysis of new generation free trade agreements and SPS measures within
the framework of WTO ........................................................................................2
2.2. SPS measures in the context of free trade agreements and dispositions of
SPS measures in the new generation free trade agreements of Vietnam .............4
2.3. Vietnam’s legislation in compliance with SPS commitments in NGFTAs ..7
3. Research objectives .............................................................................................8
4. Research questions...............................................................................................8
5. Scope of research.................................................................................................9
6. Research methodology.......................................................................................10
7. Structure of thesis ..............................................................................................10
CHAPTER 1: OVERVIEW OF SPS PROVISIONS IN THE NEW
GENERATION FREE TRADE AGREEMENTS ...............................................12
1.1. Overview of new generation free trade agreements .......................................12
1.1.1. Definition of new generation free trade agreements ................................12
1.1.2. Legal basis of new generation free trade agreements ..............................13
1.1.3. Characteristics of new generation free trade agreements.........................14
1.1.4. Roles of new generation free trade agreements .......................................17

1.1.5. New generation free trade agreements of Vietnam..................................21
1.2. Legal basis of SPS provisions in the new generation free trade agreements .25
1.2.1. SPS Agreement in WTO ..........................................................................25
1.2.2. Legal basis of SPS measures in the new generation free trade agreements
............................................................................................................................37
1.2.3. Criteria to assess Vietnam’s legislation on SPS measures.......................38
CHAPTER 2: DISPOSITIONS ON SPS MEASURES IN THE NEW
GENERATION FREE TRADE AGREEMENTS OF VIETNAM ....................39
2.1. A confirmation of WTO’s SPS obligations....................................................41
2.1.1. Definitions, rights and obligations ...........................................................41
2.1.2. Special and differential treatment ............................................................42
2.1.3. Dispute settlement in accordance with WTO’s provisions ......................42
2.2. Supplements beyond WTO’s SPS obligations ...............................................44
2.2.1. Equivalence ..............................................................................................44
2.2.2. Risk assessment........................................................................................46
2.2.3. Regionalized concept ...............................................................................47
2.2.4. Transparency, competent authorities and contact points .........................49
2.2.5. Dispute settlement beyond WTO’s obligations .......................................52
2.2.6. SPS Committee.........................................................................................53
2.2.7. Emergency measures................................................................................54
2.2.8. Cooperation ..............................................................................................55
2.2.9. Control, inspection and approval procedural specifics ............................58
2.2.10. Tobacco control measures and Halal requirements................................63

2.3. General evaluations on SPS measures in the new generation free trade
agreements .............................................................................................................64
2.3.1. Having broader scope...............................................................................64
2.3.2. Being more specific and comprehensive..................................................65
2.3.3. Containing more specific procedures.......................................................66
2.3.4. Enhancing the transparency......................................................................67
CHAPTER 3: VIETNAM’S SPS MEASURES LEGISLATION AND
RECOMMENDATIONS FOR VIETNAM IN THE IMPLEMENTATION OF
SPS PROVISIONS IN ITS NEW GENERATION FREE TRADE
AGREEMENTS ......................................................................................................69
3.1. SPS measures legal framework of Vietnam ...................................................69
3.1.1. Overview of Vietnam’s SPS measures legislation...................................69
3.1.2. Sources of SPS measures legislation in Vietnam.....................................73
3.2. The compatibility of Vietnam’s legal framework with its new generation free
trade agreements’ SPS commitments ....................................................................76
3.2.1. New generation free trade agreements’ commitments that Vietnam’s
legislation is compatible.....................................................................................76
3.2.2. New generation free trade agreements’ commitments that Vietnam’s
legislation has not been compatible with ...........................................................85
3.3. Effects of SPS measures in the new generation free trade agreements’ on
Vietnam’s legislation.............................................................................................90
3.4. Recommendations for Vietnam in the implementation of SPS dispositions in
the new generation free trade agreements .............................................................92
3.4.1. Improving provisions in Vietnam’s legislation in accordance with
regulations of new generation free trade agreements.........................................92

3.4.2. Raising awareness of SPS measures in the new generation free trade
agreements..........................................................................................................97
3.4.3. Taking advantage of cooperation and technical support in SPS measures
............................................................................................................................98
CONCLUSION......................................................................................................100
LIST OF REFERENCES .....................................................................................102

i
ACKNOWLEDGEMENTS
In order to complete this master thesis, I have been received enthusiastic
guidance and support from my lectures, family and friends. From the bottom of my
heart, I would like to express my thanks to them.
Firstly, I would like to express the sincerest thanks to my supervisor, Dr.
Nguyen Ngoc Ha who has supported, guided and encouraged me during the
completion of this master thesis from choosing the topic, outlining the main ideas,
turning those ideas into this thesis to editing this paper. Without his enthusiastic and
excellent guidance and support, I could not have completed this master thesis.
Also, I would like to express my special thanks to all lectures of the Master of
International Policy and Law program, Foreign Trade University as well as World
Trade Institute who gave me the chance to broaden my humble horizon in the field
of economics and laws.
Last but not least, I would like to express my warm thanks to my family, my
colleagues and my friends who never stop supporting, encouraging and giving me
the favorable conditions to complete this master thesis.

ii
LIST OF TABLES
Table 2.1: A confirmation of WTO's obligations .....................................................38
Table 2.2: Supplements beyond WTO’s SPS obligations ........................................39
Table 3.1: Vietnamese legal documents regulating SPS measures...........................71

iii
LIST OF ABRREVIATIONS
Abbreviation Full name
APEC Asia – Pacific Economic Cooperation
ASEAN Association of South East Asian Nations
CODEX Codex Alimentarius Commission
CPTPP Comprehensive and Progressive Trans – Pacific Partnership
Agreement
CSR Corporate social responsibility
CTC Cooperative Technical Consultation
DSU Dispute Settlement Understanding
EAEUFTA Vietnam – the Eurasian Economic Union FTA
EU European Union
EVFTA EU – Vietnam Free Trade Agreement
FAO Food and Agriculture Organization
FTA Free Trade Agreement
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
IICA Inter – American Institute for Cooperation on Agriculture
IPPC International Plant Protection Convention
MFN Most Favored Nation
NGFTA New generation Free Trade Agreement
NT National Treatment
OIE Organization for Animal health
PTA Preferential Trade Agreement

iv
SPS Sanitary and Phytosanitary
STDF Standards and Trade Development Facility
TPP Trans – Pacific Partnership Agreement
VKFTA Vietnam – Korea Free Trade Agreement
WTO World Trade Organization

v
ABSTRACT
New generation FTA is an inevitable tendency for members to deeply
cooperate in a variety of areas, including SPS measures. Joining NGFTAs, Vietnam
is not out of that tendency, therefore, Vietnam has to fully comply with
commitments regulated in NGFTAs. With topic “Dispositions on Sanitary and
Phytosanitary (SPS) measures in the new generation of Free Trade Agreements of
Vietnam”, the thesis focuses on similarities and differences on regulations between
SPS Agreement (WTO) and NGFTAs of Vietnam in order to point out the
dispositions on SPS measures. Not limited to this, the thesis analyzes Vietnam’s
legal documents on SPS measures compared to regulations stated in NGFTAs.
Following that, the thesis mainly focuses on several issues and gains some
achievements as below. Firstly, the thesis comprehensively analyzes regulations on
SPS measures in SPS Agreement (WTO) and NGFTAs of Vietnam. As a result, the
similarities and differences between them are stated. Based on that, the thesis
reveals that NGFTAs of Vietnam not only reconfirm regulations on SPS measures
of SPS Agreement, but also have supplementary regulations.
Secondly, the thesis details Vietnam’s legal documents on SPS measures in
order to state the compatibility and not compatibility of legal documents on SPS
measures compared to NGFTAs of Vietnam. Each provision on SPS measures is
analyzed so as to point out for which provisions Vietnam’s legislation fully
complies and for which provisions Vietnam’s legislation party and not complies.
Thirdly, based on analysis above, recommendations for Vietnam to fully
comply with regulations on SPS measures when joining NGFTAs are revealed.
Besides complying with regulations stated in NGFTAs, recommendations for
Vietnam to take advantage of NGFTAs are also pointed out.

1
INTRODUCTION
1. Research rationale
In the context of globalization, countries have a tendency to extensively and
comprehensively cooperate in a variety of areas, therefore, the number new
generation free trade agreements (NGFTAs) has increased significantly and
gradually replaced traditional free trade agreements (FTAs). NGFTAs focus on new
issues such as labor, sustainable development and the environment which are not
mentioned in traditional FTAs.
Vietnam has joined sixteen FTAs1
, including several typical NGFTAs, for
example, the Comprehensive and Progressive Trans – Pacific Partnership
Agreement (CPTPP), Vietnam – EU FTA (EVFTA), Vietnam – Korea FTA
(VKFTA) and Vietnam – the Eurasian Economic Union FTA (EAEUFTA)2
. Being
different from traditional FTAs, NGFTAs have broad scope of commitments and
strict requirements3
on areas such as environment, sustainable development and
human, animal or plant life or health besides economic growth.
As for area related to human, animal or plant life or health, compared to SPS
Agreement (WTO), NGFTAs contain strict requirements and requirements which
are beyond regulations of SPS Agreement, for example, import requirements and
procedures, verifications, audits and inspections, procedure for listing of
establishments, certification and documents confirming safety, and regulations on
tobacco control measures and halal products. Besides, Vietnam has potential on
production and exportation of agricultural and aquatic products which are
significantly affected by regulations on SPS measures when Vietnam ratified
NGFTAs. In order to increase exportation of agricultural and aquatic products to its
1
WTO Center, Tổng hợp các FTA của Việt Nam tính đến tháng 11/2018 (Summary of FTAs of Vietnam until
November, 2018), 2018b, at <http://www.trungtamwto.vn/chuyen-de/12065-tong-hop-cac-fta-cua-viet-nam-
tinh-den-thang-112018>, accessed on 29th Oct 2018.
2
Le Thi Thuy, “Hiệp định thương mại tự do thế hệ mới: Cơ hội và thách thức đối với Việt Nam” (New
generation FTAs: opportunities and challenges for Vietnam), Journal on science and society of Vietnam,
Vol.5 (114), 2016, p.19.
3
Ibid., p.19 – 20

2
partners’ market in NGFTAs, and take advantages of NGFTAs, Vietnam has to
comply with strict regulations on SPS measures in NGFTAs.
The number of NGFTAs which Vietnam has joined and ratified has increased
since the year 20154
, but most legal documents related to SPS measures were issued
before that point of time. As a result, there is a gap between regulations on SPS
measures in NGFTAs of Vietnam and Vietnam’s legislation of that area. In order to
effectively take advantage of opportunities brought by NGFTAs and comply with
commitments on SPS measures regulated in NGFTAs that Vietnam officially signed
and has implemented, Vietnam’s legal framework on SPS measures should be
amended and improved.
For the reasons mentioned above, the topic “Dispositions on Sanitary and
Phytosanitary (SPS) measures in the new generation of Free Trade
Agreements of Vietnam” is chosen to reveal the disposition of SPS measures in
NGFTAs of Vietnam compared to those of WTO. Also, the gap of regulations on
SPS measures between NGFTAs of Vietnam and Vietnam’s legislation is pointed
out. Based on that analysis, the paper will give some recommendations on
Vietnam’s legislation to fully implement regulations on SPS measures of NGFTAs.
2. Literature review
While there is a huge number of researches being conducted on NGFTAs and
SPS measures in the framework of WTO, not many researches have carried out SPS
measures in NGFTAs, especially, in NGFTAs of Vietnam. This part of the thesis
will analyze several typical researches on NGFTAs and SPS measures in WTO.
2.1. Analysis of new generation free trade agreements and SPS measures within
the framework of WTO
Firstly, concerning NGFTAs, paper “What scope for an EU – ASEAN Free
Trade Agreement”5
is a paper revealing potentials of EU – ASEAN FTA which is
considered a NGFTA through analysis of general characteristics, trade and
4
WTO Center (2018b), op. cit.
5
O’Callaghan and Nicolas, “What scope for an EU – ASEAN Free Trade Agreement”, Journal of World
Trade, Vol.42 (issue 1), 2008, p.105 – 128.

3
investment policies, trade restrictiveness and the correlative relation between two
partners (EU and ASEAN). Based on that, major features of potential EU – ASEAN
FTA which is a NGFTA are stated, for example, behind border measures and
requirements accommodating different capacity level. To conclude, this paper
emphasizes characteristics of NGFTAs such as addressing behind the border issues,
broad scope of commitments and different timelines for different members.
Paper “New generation FTAs: opportunities and challenges for Vietnam”6
reveals several typical NGFTAs of Vietnam, for instance, EVFTA, CPTPP,
VKFTA and EAEUFTA. Also, characteristics of NGFTAs are analyzed such as
broad scope of commitments, high level of liberalization, institutional commitments
and most participants being developed parties. Then opportunities and challenges to
Vietnam when joining NGFTAs are revealed in this paper.
Paper “Overview of new generation Free Trade Agreement” 7
points out
definition and characteristics of NGFTAs. In addition, legal basis of NGFTAs is
revealed in this paper with several typical NGFTAs of Vietnam such as CPTPP and
EVFTA.
Furthermore, in paper “Role of NGFTAs in international trade”8
, comparison
between NGFTAs and traditional FTAs is analyzed. This paper focuses on
characteristics of NGFTAs. Based on the main characteristics of NGFTAs, roles
and effects of NGFTAs are stated. In general, this paper mainly discusses the
difference of NGFTAs compared to traditional FTAs through particular
characteristics of NGFTAs and its roles on one member’s economic and
development.
6
Le Thi Thuy (2016), op. cit, p.19 – 29.
7
Nguyen Thanh Tam, “Tổng quan về các FTA thế hệ mới” (Overview of new generation Free Trade
Agreements), Education and Society Online Journal, 2016, at <http://giaoducvaxahoi.vn/tin-phap-luat/t-ng-
quan-v-cac-fta-th-h-m-i.html>, accessed on 15th Oct 2018.
8
Vu Van Ha, “Vai trò của các hiệp định thương mại tự do thế hệ mới trong thương mại quốc tế” (Roles of
NGFTAs in international trade), Financial Journal, 2017, at <http://tapchitaichinh.vn/nghien-cuu--trao-
doi/trao-doi-binh-luan/vai-tro-cua-cac-hiep-dinh-thuong-mai-tu-do-the-he-moi-trong-thuong-mai-quoc-te-
122913.html>, accessed on 20th Oct 2018.

4
To sum up, there are many researches on NGFTAs which clearly point out
definition, characteristics and roles of NGFTAs. Several papers also carry out
typical NGFTAs of Vietnam, for example, CPTPP and EVFTA in order to state
differences of those NGFTAs compared to traditional FTAs.
Secondly, regarding SPS measures in the framework of WTO, as SPS
Agreement (WTO) was issued in the year 2008, there are so many researches on
SPS measures in WTO. This part of the thesis will point out several typical papers
on this issue. Paper “Sanitary and Phytosanitary (SPS) issues”9
clearly focuses on
definition of SPS measures. Also, it carries out SPS Agreement (WTO) and its rules
when SPS measures are applied.
Furthermore, paper of Office of the US Trade Representatives in the year 2014
“2014 Report on Sanitary and Phytosanitary Measures”10
firstly provides overview
information of SPS measures, including definition of SPS measures, SPS
Agreement (WTO) with its scope and its main provisions, and the reports of
individual member on SPS measures. In detail, definition of SPS measures is laws,
decrees, requirements and regulations that governments apply to protect human,
animal or plant life or health from risks of pests, diseases or toxins. About SPS
Agreement (WTO), this paper points out scope of SPS Agreement and its provisions
which are appropriate level of protection, science – based measures, risk
assessment, harmonization, transparency and SPS Committee.
2.2. SPS measures in the context of free trade agreements and dispositions of SPS
measures in the new generation free trade agreements of Vietnam
FTAs are becoming a vital and important feature in the trading world in order
to further the economic integration, replacing multilateral trade negotiations at
WTO which has slow and unsatisfied process in multilateral trade liberalization.
FTAs regulate not only tariff issues but other non – tariff issues such as SPS
9
European Commission, Sanitary and Phytosanitary (SPS) issues.
10
Office of the US Trade Representatives, 2014 Report on Sanitary and Phytosanitary Measures,
Washington D.C, the USA, 2014.

5
measures. There are few papers which mention SPS measures in the context of
FTAs.
Paper “Role of Sanitary and Phytosanitary measures within the context of
Free Trade Agreement”11
mentions and analyzes definition of SPS measures, two
fundamental principles of WTO in relation to SPS Agreement which are recognition
of equivalent SPS measures to protect human, animal or plant life or health and not
creating discrimination between members with identical and similar conditions.
Based on that, the paper reveals that FTAs improve the concept of SPS national
sovereignty in order to protect human, animal or plant life or health in relation to
international trade between members. It means that SPS measures with higher level
of protections are acceptable if they are based on scientific evidence. Also, SPS
measures in FTAs must be based on the transparency. FTAs require to report other
relevant parties if SPS measures applied have effects on international trade.
Also, paper “Preferential Trade Agreement Policies for Development, Chapter
TBT and SPS measures, in practice”12
conducts SPS measures in the context of
preferential trade agreements (PTAs). In particular, the paper states that members
use PTAs to deal with issues which could not be solved through WTO. This paper
points out that PTAs include SPS provisions, incorporate cooperation on standards,
certification, and conformity assessment issues. Also, PTAs are designed to
contribute to economic integration through the removal of related barriers. Then this
paper carries out SPS chapter of several typical agreements of North – South PTA
and South – South PTA as examples.
In addition, paper “Comparing EU Free Trade Agreements: Sanitary and
Phytosanitary Standards” 13
reveals overview information of SPS Agreement,
11
Alfonso Torres, “Role of Sanitary and Phytosanitary measures within the context of Free Trade
Agreements”, Rev Colom Cienc Pecua, Vol.26 No.1, 3/2013, p.43 – 47.
12
Andrew L. Stoler, “Preferential Trade Agreement Policies for Development, Chapter TBT and SPS
measures, in practice”, in Jean – Pierre Chauffour and Jean – Christophe Maur, Preferential Trade
Agreement policies for development, World Bank Publication, Washington DC, 2011, p.217 – 233.
13
Bettina Rudloff and Johannes Simons, Comparing EU Free Trade Agreements: Sanitary and
Phytosanitary Standards, University of Bonn, 2004, at <https://ecdpm.org/wp-content/uploads/2013/11/IB-
6B-Comparing-EU-Free-Trade-Agreements-Sanitary-Phytosanitary-2004.pdf >, accessed on 03rd Dec 2018.

6
including principle provisions which are among the main provisions creating
content of SPS Agreement. Based on that analysis, this paper compares individual
provision of NGFTAs of EU (EU – Mexico Global Agreement, EU – Chile
Association Agreement and Euro – Mediterranean Association Agreements) with
SPS Agreement in order to state which provisions of NGFTAs of EU confirm WTO
provisions and which provisions of NGFTAs of EU are beyond WTO provisions.
Besides, there are some papers carrying out SPS measures in a few typical
NGFTAs of Vietnam (CPTPP and EVFTA). Concerning CPTPP, paper “Sanitary
and Phytosanitary measures in the context of the CPTPP Agreement”14
mainly
focuses on new points of SPS measures regulated in CPTPP compared to SPS
Agreement (WTO), for example, strengthening communication, consultation and
cooperation between the parties, SPS Committee, transparency, special and
differential treatment, equivalence, regionalization, auditing, and consultation
(Cooperative Technical Consultations).
Paper “SPS measures and the TPP – Removing barriers to agricultural
exports”15
analyzes similarities and differences between provisions in SPS Chapter
of TPP and provisions in SPS Agreement. This paper focuses on provisions
regulating import check, certification, regionalization, science and risk analysis,
audit, and transparency provisions. The main purpose of this paper is to point out
which provisions of TPP reconfirm regulations on SPS Agreement and which
provisions are beyond regulations of SPS Agreement.
Furthermore, there are several papers which generally points out the
similarities and differences on SPS measures between SPS chapter of only two
NGFTAs of Vietnam (CPTPP and EVFTA) and SPS Agreement (WTO). There is
no paper particularly focusing on analyzing SPS measures of four NGFTAs of
Vietnam compared to SPS Agreement (WTO).
14
Sofia Boza, “Sanitary and Phytosanitary measures in the context of the CPTPP Agreement”, Firenze
University Press, Vol.7 (1), 2018, p.87 – 98.
15
Sidley, SPS measures and the TPP – Removing barriers to agricultural exports, 2016.

7
2.3. Vietnam’s legislation in compliance with SPS commitments in NGFTAs
Turning into Vietnam’s legislation and its compliance with SPS commitments
of NGFTAs, in book “Vietnam: Seizing the opportunities of new – generation free
trade agreements”16
, chapter “Impact assessment of the TBT and SPS chapters of
TPP and EVFTA” generally points out SPS provisions in TPP and EVFTA different
from SPS Agreement. Then this chapter of the book gives some recommendations
such as consultations with industry associations, government agencies and partners
to promote understanding, and some focus points for reform and compliance efforts
(introducing risk – based import control, encouraging the development of electronic
certificate, laboratory upgrading, promoting international standards). However, this
part does not specifically point out drawbacks of current Vietnam’s legislation
compared to NGFTAs, and detailed recommendations when Vietnam has joined
NGFTAs.
To conclude, there are several points which are not mentioned in the previous
papers. Firstly, papers only focus on general differences between provisions on SPS
measures of several NGFTAs of Vietnam (CPTPP, EVFTA) and those of SPS
Agreement (WTO). It lacks papers which analyze and synthesize all similarities and
differences between provisions on SPS measures of NGFTAs of Vietnam and those
of SPS Agreement (WTO). Secondly, there are papers on SPS measures of two
NGFTAs of Vietnam (CPTPP and EVFTA) only, and there is not any paper
analyzing SPS measures of two other NGFTAs of Vietnam (VKFTA, EAEUFTA).
Thirdly, there is no paper deeply conducting the compliance of Vietnam’s
legislation with SPS provisions regulated by four NGFTAs of Vietnam (CPTPP,
EVFTA, VKFTA and EAEUFTA). Fourthly, it lacks paper on detailed
recommendations for Vietnam in the implementation of SPS dispositions in
NGFTAs.
16
Ministry of Industry and Trade of Vietnam, World Bank Group, Vietnam: Seizing the opportunities of new
– generation free trade agreements, Proceedings of a joint event organized by Ministry of Industry and Trade
and the World Bank, 2016, p.99 – 135.

8
As a result, surplus above mentioned reasons, this paper will solve those
issues. For the first and second issue, all provisions of SPS chapter of four
NGFTAs of Vietnam (CPTPP, EVFTA, VKFTA and EAEUFTA) will be
comprehensively analyzed and compared with not only provisions of SPS
Agreement (WTO) but also with each other in order to point out which provisions
are similar to those of WTO and which provisions are beyond regulations of WTO.
For the third issue, current Vietnam’s legislation will be carried out so as to
synthesize the level of compliance of Vietnam’s legislation with SPS commitments
in those four NGFTAs. Based on all analysis above, the fourth issue will be
addressed with the detailed recommendations for Vietnam in the implementation of
SPS dispositions in NGFTAs, including but not limited to recommendations on
improving Vietnam’s legislation in accordance with regulations of NGFTAs.
3. Research objectives
The main objective of this reasearch is to carry out characteristics and roles of
NGFTAs, new regulations on SPS measures of four NGFTAs of Vietnam (CPTPP,
EVFTA, VKFTA and EAEUFTA) by comparing and pointing out similarities and
differences between SPS regulations in those NGFTAs and SPS Agreement (WTO).
Also, Vietnam’s legislation on SPS measures in three areas (human health,
animal health and plant protection and quarantine) is analyzed as a basis to provide
recommendations for amending and improving Vietnam’s legislation related to SPS
measures in order to fully implement commiments on SPS measures in NGFTAs.
4. Research questions
In order to clarify the research objectives above, this research reveals several
research questions:
 What are the characteristics of NGFTAs?
 What are the roles of NGFTAs?
 What is the legal basis of SPS provisions in NGFTAs?

9
 What are the similarities and differencies between SPS regulations of SPS
Agreement (WTO) and four typical NGFTAs of Vietnam (CPTPP, EVFTA,
VKFTA and EAEUFTA)?
 How do new regulations on SPS measures in those four NGFTAs of Vietnam
affect Vietnam’s legislation?
 How has Vietnam’s legislation of SPS measures been implemented?
 How could Vietnam’s legislation of SPS measures been improved in
accordance with commitments in those four NGFTAs?
5. Scope of research
This thesis will analyze overview information of NGFTAs, but it will analyzed
more detailed about four typical NGFTAs of Vietnam only, they are EU – Vietnam
FTA (EVFTA), Comprehensive and Progressive Agreement for Trans – Pacific
Partnership (CPTPP), Vietnam – Korea FTA (VKFTA) and Vietnam – the Eurasian
Economic Union FTA (EAEUFTA).
In those four NGFTAs of Vietnam, this thesis focuses on SPS measures which
are regulated in SPS chapter of each NGFTA. In particular, it makes a comparison
between regulations on SPS measures in SPS chapter of those four NGFTAs of
Vietnam and regulations on SPS measures of SPS Agreement (WTO) in order to
point out similarities and differences between them.
Furthermore, Vietnam’s legal documents on SPS measures will be carried out
in three fields like human health, animal health, and plant protection and quarantine.
The thesis will point out which provisions on SPS measures of those four NGFTAs
of Vietnam are regulated and which provisions on SPS measures are beyond
regulations of Vietnam’s legislation.
After analyzing all parts above, the thesis will give several recommendations
for Vietnam in the implementation of SPS measures in those NGFTAs of Vietnam.

10
6. Research methodology
During the research of this thesis, different research methods are applied.
Firstly, method to collect information and data from reference is used. Relevant
textbooks, researches, articles, journals, reports and legal documents (NGFTAs of
Vietnam, SPS Agreement and Vietnamese legal documents on SPS measures) are
analyzed in order to reveal overview of NGFTAs and SPS measures.
Secondly, about methods for analyzing data, analysis and synthesis of theory
method is applied. In detail, each provision of SPS Agreement (WTO) and SPS
Chapter in NGFTAs is analyzed in order to reveal their regulations on SPS
measures. Also, regulations on SPS measures of Vietnam’s legal documents are
analyzed to give a deep insight about the regulations of Vietnam’s legislation on
SPS measures. Then, comparison method is applied to clarify the similarities and
differencecs between regulations on SPS measures of SPS Agreement (WTO) and
NGFTAs of Vietnam, and between NGFTAs of Vietnam and Vietnam’s legal
documents. In addition, synthesis method is utilized to point out the dispositions on
SPS measures in NGFTAs of Vietnam and the gap between Vietnam’s legislation
on SPS measures.
Thirdly, synthesis method is also used to carry out the compatiblity and not
compatibility between regulations on SPS measures of NGFTAs of Vietnam and
Vietnam’s legal documents and give several recommendations for Vietnam to fully
comply with commitments in NGFTAs of Vietnam.
7. Structure of thesis
Besides introduction, conclusion and list of references, the thesis consists of
three chapters as follow:
Chapter 1: Overview of SPS measures in the new generation free trade agreements
Chapter 2: Dispositions on SPS measures in the new generation of free trade
agreements of Vietnam

11
Chapter 3: Vietnam’s SPS measures legislation and recommendations for Vietnam
in the implementation of SPS provisions in its new generation free trade agreements

12
CHAPTER 1: OVERVIEW OF SPS PROVISIONS IN THE NEW
GENERATION FREE TRADE AGREEMENTS
1.1. Overview of new generation free trade agreements
1.1.1. Definition of new generation free trade agreements
About concept of traditional FTAs, the term FTA is firstly shown in General
Agreement on Tariffs and Trade (GATT 1947). In detail, the definition of free trade
area has been revealed that “A free – trade area shall be understood to mean a
group of two or more customs territories in which the duties and other restrictive
regulations of commerce […] are eliminated on substantially all the trade between
the constituent territories in products originating in such territories”17
. Also,
GATT 1947 states that “the provisions of this agreement shall not prevent the
formation of a customs union or of a free – trade area or the adoption of an interim
agreement necessary for the formation of a customs union or of a free trade
area”18
. In general, Article XXIV of GATT 1947 only shows the definition of free
trade area, but through that definition, the GATT 1947’s concept about FTAs could
be seen as follows.
Firstly, contracting parties join FTAs to reduce tariff and other trade
regulations. Secondly, the goods originated from contracting parties receive benefits
from tariff and trade regulation reduction. Thirdly, the concept of traditional FTAs
is suitable with the time of GATT 1947 when contracting parties mainly traded with
each other in tangible goods, so that GATT 1947 focuses on trade in goods. To
conclude, the concept of traditional FTAs is mainly about trade in goods. The level
of commitment between parties is about reduction of duty and trade regulations.
Regarding the concept of new generation free trade agreements (NGFTAs),
since 1990s, the concept of traditional FTAs is not suitable with the development of
economic integration. NGFTAs with broad scope of commitments and high level of
liberalization with commitments being beyond the trade in tangible goods gradually
17
See more in GATT 1947, Article XXIV, subparagraph 8b
18
Ibid., paragraph 5

13
replace traditional FTAs19
. NGFTAs include not only tariff reduction but also other
issues under GATT/WTO (World Trade Organization) and new issues which are
beyond the WTO’s regulation. Compared to traditional FTAs, NGFTAs cover new
issues like labor, sustainable development and the environment. It also covers some
other issues such as human rights, counter – terrorism and democracy20
.
To sum up, NGFTAs are treaties between contracting parties that agree on not
only tariff reduction but also other issues such as labor, the environment, human
rights and democracy. NGFTAs have broader scope of commitments and higher
level of liberalization than traditional FTAs21
.
1.1.2. Legal basis of new generation free trade agreements
In WTO, one of the most important principles is Most Favored Nation (MFN).
It means that WTO members must apply the same condition on all trade with other
WTO members. However, there are some exceptions for this principle and it is the
legal basis of FTAs. According to Article XXIV of GATT, contracting parties are
allowed to create free trade areas or customs unions22
. Following that, contracting
parties could give more trade preferences to other parties in the free trade area or
customs union than other parties. This does not violate MFN principle. Article
XXIV of GATT lets contracting parties not apply MFN rules in some situations.
Firstly, “a customs union shall be understood to mean the substitution of a single
customs territory for two or more customs territories, so that duties and other
restrictive regulations of commerce are eliminated” 23
. It can be seen that
contracting parties could establish customs union and give preferences on duties and
other regulations for their partners. Secondly, “a free – trade area shall be
understood to mean a group of two or more customs territories in which the duties
and other restrictive regulations of commerce are eliminated […]”24
. Thirdly, “any
interim agreement shall include a plan and schedule for the formation of such a
19
Nguyen Thanh Tam (2016), op. cit.
20
Vu Van Ha (2017), op. cit.
21
Le Thi Thuy (2016), op. cit., p19 – 20.
22
23
See more in GATT 1947, Article XXIV, subparagraph 8a
24
Ibid., subparagraph 8b

14
customs union or of such a free – trade area within a reasonable length of time”25
.
It can be revealed that contracting parties could establish temporary customs union
or free trade area within a reasonable length of time.
Article XXIV of GATT establishes legal basis of free trade area. Contracting
parties could give others in the free trade area more preferences. Although free trade
area is an exception, it has to comply with the following conditions. Firstly, the
duties and other regulations in free trade area do not create more barriers to trade
with the third parties. It means that the establishment of free trade area does not
create more restriction regulations on the third parties than before. Secondly, there
must be regulations on “substantially all the trade between the territories” 26
.
Thirdly, free trade area must be established within a reasonable length of time27
. In
addition, for trade in services, General Agreement on Trade in Services (GATS)
also states that “this Agreement shall not prevent any of its Members from being a
party or entering into an agreement liberalizing trade in services […]”28
. It can be
seen that GATS allows members to create FTA on trade in services.
To sum up, firstly, WTO Agreements and FTAs have legal mutual relation.
The regulations in WTO are legal basis to create FTAs. In order words, the content
and main provisions of FTAs are established based on provisions and agreements of
WTO. For example, the chapter “Sanitary and Phytosanitary Measures” in FTAs is
established based on Sanitary and Phytosanitary Agreement of WTO. Secondly, it is
stated that WTO regulations seem not to be sufficient to regulate the growing
international trade and not cover all issues between members, therefore, NGFTAs
are established to cover issues which are beyond WTO.
1.1.3. Characteristics of new generation free trade agreements
With development of international trade, scope of commitments and level of
liberalization of traditional FTAs seem not to be suitable. Therefore, traditional
25
Ibid., subparagraph 5c
26
Ibid., subparagraph 8b
27
Ibid., subparagraph 5
28
See more in GATS, Article V

15
FTAs are gradually replaced by NGFTAs which differ from traditional FTAs in
some characteristics.
1.1.3.1. High level of liberalization
NGFTAs have higher level of liberalization than traditional FTAs. The main
purpose of traditional FTAs is tariff and trade regulations reduction on goods
traded, but tariff and trade regulations reduction is applied for some lines of
products only, while NGFTAs, which have higher level of liberalization, have tariff
reduction on most lines of goods. According to NGFTAs, tariff on about 95 percent
of lines of products is eliminated immediately after FTAs come into force29
. As a
result, goods are more freely and easily traded between members in free trade area.
Also, NGFTAs include trade not only in goods but also in services. Most types
of services in NGFTAs are under commitments between members. It means that
based on NGFTAs, members open up most types of services. In summary, NGFTAs
have higher level of liberalization than traditional FTAs because NGFTAs allow
members to cut down tariff for most lines of goods and open up most types of
services.
1.1.3.2. Broad scope of commitments with strict requirements
The main difference between traditional FTAs and NGFTAs is that NGFTAs
have broad scope of commitments which are not limited by trade in goods.
Compared to traditional FTAs which cover trade in goods and mainly focus on tariff
reduction, NGFTAs mention not only trade in goods but also other areas such as
labor, sustainable development and environment30
. Also, NGFTAs cover some
other issues such as human rights, counter – terrorism and democracy31
.
In the context of globalization, requirements of members about all areas are
higher, especially in subjects like the environment, human health and life and
sustainable development. Therefore, most members pay attention to those areas
29
Vietnamese Logistics Association, Việt Nam trong xu hướng FTA thế hệ mới (Kỳ 1) (Vietnam in the
tendency of new generation FTAs), Vietnam Logistics Review, 2015, at <http://vlr.vn/logistics/news-
2185.vlr>, accessed on 10th Nov 2018.
30
31

16
because besides economic growth, members, especially developed ones mainly
focus on sustainable development. Although NGFTAs have broad scope of
commitments than traditional FTAs, they have strict technical requirements and
high standards in implementing the commitments32
.
1.1.3.3. Flexible schedule to comply with commitments
Although NGFTAs have broad scope of commitments and depth of
liberalization, this is not a barrier for developing or least developed members.
Compared to traditional FTAs, timeline to apply commitments in NGFTAs is
flexible but within the limits provided by WTO. It means that NGFTAs create
opportunities for developing members and least developed ones to adapt the
commitments in NGFTAs. The timeline depends on the level of development and
regulatory capacity of each member33
, but it is within the limits provided by WTO.
1.1.3.4. More impacts on domestic law
Traditional FTAs mainly focus on trade in goods, therefore, they have effects
on the border issues like tariff polices. Unlike traditional FTAs, NGFTAs have
commitments on other issues such as labor and the environment which are issues
after border. So NGFTAs have more impacts on domestic law and policies of
members34
.
NGFTAs require each member to review its legal system, not only tariff
policy, but also policy in other areas like trade facilitation, government
procurement, competition policy, non – tariff measures, investment, dispute
settlement mechanism, intellectual property rights, services, labor and the
environment. Therefore, for example, in investment aspect, foreign and domestic
investors are protected from unlawful interferences because of the transparent
investment environment.
32
Le Thi Thuy (2016), op. cit., p. 19 – 20.
33
O’Callaghan and Nicolas (2008), op. cit., p.127
34

17
1.1.3.5. Contracting parties of new generation free trade agreements with high level
of economic development
Compared to traditional FTAs, NGFTAs have the participation of contracting
parties with high level of economic development35
. For example, the ASEAN Free
Trade Area (AFTA), which is a traditional FTA, includes developing parties, while
in some NGFTAs which Vietnam has recently signed, the partner is developed
parties such as Korea (Vietnam – Korea FTA); EU members (Vietnam – EU FTA)
or Australia, Canada, Japan, Mexico, New Zealand, Peru, Singapore (CPTPP). The
participation of developed members in NGFTAs is a driving force for cooperation
and extensive commitments within NGFTAs.
1.1.4. Roles of new generation free trade agreements
1.1.4.1. Boosting trade liberalization
NGFTAs are an alternative strategy for members if they want to cooperate in
trade and other areas. WTO has so many members and each member has its own
strategy, therefore, WTO negotiation rounds are difficult to come to final
agreement. As analyzed, the characteristics of NGFTAs are depth of liberalization
and broad scope of commitments, so NGFTAs boost trade liberalization and
contribute to the economic growth of members36
.
NGFTAs significantly affect each member’s economy. Firstly, when members
sign NGFTAs, they take advantages from tariff reduction and elimination. It boosts
regional trade among them. Compared to traditional FTAs, NGFTAs have tariff
elimination in most lines of products. When tariff on goods dramatically decreases,
price of imported products is lower than before because it not include import tax in
the final price. As a result, trade grows significantly and trade turnover among
members also increases.
Secondly, each member in free trade area could specialize in the production of
goods which it has a comparative advantage due to tariff reduction and the free
35
Ibid.
36
Ibid.

18
movement of goods among members. Thus, each member can take advantage of
efficiencies created from economic scales and increased output 37
. Also, each
member’s specialization in one area, which it has comparative advantage, results in
lower average cost and increase in productivity. In other words, NGFTAs could
lead to each member’s increased production.
Thirdly, NGFTAs with high level of liberalization and broad scope of
commitments bring about production efficiencies. On the one hand, high level of
liberalization improves the efficiency of resource allocation between members,
which leads to higher productivity and the increase in the total domestic output of
goods and services. On the other hand, NGFTAs with liberalization increase the
competition among producers, not only within one member, but also within the free
trade area. Competition could encourage domestic producers use innovative
methods and new technology to increase productivity. This could improve the
quality of goods and bring advantages to customers. Customers have a greater
variety of goods, services with high standard and lower price. In other words,
NGFTAs lead to the rising living standard, rising real income and higher rates of
economic growth for each member.
1.1.4.2. Role of new generation free trade agreements in increasing joining
standards
Although NGFTAs have high level of liberalization and broad scope of
commitments, they have high standards for members when those members join
NGFTAs38
. When discussing NGFTAs, members not only mainly focus on tariff
reduction on trade in goods, but they also pay attention to other issues such as labor,
environment, sustainable development and SPS measures to protect human, animal
or plant life or health.
In traditional FTAs, those areas were rarely mentioned or even were not
discussed because at that time, members mainly aimed at increase trade in goods
with others. However, in recent years, the environment, sustainable development
37
Ibid.
38
Ibid.

19
and SPS measures to protect human, animal or plant life and health and sustainable
development are important issues to each member, especially developed ones. As a
result, standards for joining new generation free trade area are strict for members. In
order to become member in NGFTAs, each member has to accept those high
standards.
High joining standards for each member such as the requirements in
environment and SPS measures to protect human, animal or plant life or health
force each member to improve the product quality, productivity, increase the living
standard and protect the environment39
.
1.1.4.3. Creating new development opportunities for contracting parties
NGFTAs have broader scope of commitments than traditional FTAs. NGFTAs
cover new areas such as labor, sustainable development and the environment. Also,
some other issues which are revealed in traditional FTAs and agreements of WTO
such as trade in goods, trade in services and dispute settlement are more specific
and detailed in NGFTAs40
. For example, in trade in goods, NGFTAs have tariff
elimination in most lines of products. Also, commitments in other areas such as
investment, SPS measures and intellectual property rights have stricter requirements
for parties joining NGFTAs. Those commitments are called “WTO plus”, because
they are not only limited with regulations in WTO, but also extended and regulated
specifically in NGFTAs41
. Therefore, NGFTAs bring opportunity for parties to
deeply cooperate in more fields than traditional FTAs. Members not only have the
chance to cooperate in areas like goods, services, but also in other new areas such as
labor, the environment and sustainable development.
In addition, with broad scope of commitments and depth of liberalization,
NGFTAs allow members to deeply involve in regional and global supply chain. As
a result, members could not only focus on their national demands, but also pay
39
Ibid.
40
41
Ibid.

20
attention to the regional and global demands42
. In summary, NGFTAs create the
chance for members, especially developing and least developed ones, to deeply
cooperate in variety of areas.
1.1.4.4. Important tool to ensure economic security
In the context of globalization, besides economic issue, members pay attention
to other areas such as economic security and political aspect. Members could not
develop without the cooperation with others, therefore, regional and global
cooperation is inevitable trend. NGFTAs which have broad scope of commitments
are an important tool for members to achieve political and economic security43
.
Also, when small members join NGFTAs, their position in the international
arena could be improved, because cooperation with other members in NGFTAs
could raise the ranking of small members through the regional position.
Additionally, one characteristic of NGFTAs is that NGFTAs usually have members
with high level of economic development (developed members). Therefore,
NGFTAs have high standards and strict requirements for members which they join
NGFTAs. Compliance with those standards and cooperation with big members in
NGFTAs is a motivation for small members to improve all aspects and their
positions in the international arena.
1.1.4.5. Driving force for contracting parties to improve their legal system
NGFTAs have broad scope of commitments and depth of liberalization, so
apart from tariff aspect, NGFTAs mention behind border issues such as trade
facilitation, government procurement, competition policy, non – tariff measures,
investment, dispute settlement mechanism, intellectual property rights, services,
labor and the environment. In order to implement the commitments of NGFTAs,
each party has to review its legal system and documents44
.
They have to review not only legal aspects related to trade in goods, trade in
services, investment, intellectual property rights and competition policy, but also
42
43
Ibid.
44

21
legal issues related to aspects like labor, environment, SPS measures and
sustainable development, because those areas are new, especially with developing
ones. Therefore, they need more time to improve legal system. To sum up, NGFTAs
are a driving force for parties to improve institutional and legal systems.
1.1.5. New generation free trade agreements of Vietnam
Vietnam has officially signed and implemented ten FTAs, finished negotiating
two FTAs and has four FTAs under negotiation45
. In general, in recent years,
Vietnam tends to join NGFTAs which have broader scope of commitments and
higher level of liberalization, for example, EU – Vietnam FTA (EVFTA),
Comprehensive and Progressive Agreement for Trans – Pacific Partnership
(CPTPP), Vietnam – Korea FTA (VKFTA) and Vietnam – the Eurasian Economic
Union FTA (EAEUFTA)46
.
1.1.5.1. EU – Vietnam Free Trade Agreement (EVFTA)
EU – Vietnam FTA (EVFTA) is a NGFTA which is signed between Vietnam
and twenty – eight European members. EVFTA, which is announced to end the
negotiation on 2 December 2015, has not been signed and come into force47
.
EVFTA has all characteristics of a NGFTA. Firstly, EVFTA has higher level
of liberalization compared to traditional FTAs. Vietnam and EU agree to eliminate
tariffs on more than 99 percent of tariff lines on goods traded between them.
Vietnam and EU remove almost all tariff lines on goods traded between two
markets. For very few remaining tariff lines, Vietnam and EU agree to apply tariff
quota or tariff reduction48
. The reduction of most tariff lines will boost the trade of
goods between two economies. Secondly, EVFTA is a NGFTA which balances the
45
WTO Center (2018b), op. cit.
46
Le Thi Thuy (2016), op. cit., p.19
47
Thua Thien Hue Industry and Trade Department, Quá trình đàm phán Hiệp định thương mại tự do Việt
Nam – Liên minh kinh tế châu Âu (Negotiation process of EVFTA), 2016, at <http://itradetthue.gov.vn/Tin-
tuc/tid/Qua-trinh-dam-phan-Hiep-dinh-Thuong-mai-tu-do-Viet-Nam-Lien-minh-Chau-
Au/newsid/4828FA50-A192-449A-A156-30BF6C1331BA/cid/1C5C9409-9C88-47A9-8AAE-
7F1AC9D93220>, accessed on 13th Dec 2018.
48
Cam An, Xóa bỏ 99% dòng thuế theo EVFTA (Removal of 99 percent of tariff lines in accordance with
EVFTA), Business Times Journal, 2015, at <http://tapchitaichinh.vn/nghien-cuu-trao-doi/xoa-bo-99-dong-
thue-theo-evfta-67440.html>, accessed on 10th Dec 2018.

22
interest of both economies and is suitable with regulations of WTO. The scope of
commitments of EVFTA is not limited to trade in goods and tariff reduction, it
expands to other areas such as sustainable development, and the environment49
. In
addition, issues related to environment and SPS measures are regulated with strict
requirements and high standards. Thirdly, due to broad scope of commitments,
especially behind the border issues, EVFTA significantly impacts on domestic law
of Vietnam. Vietnam has to review legal system and documents to comply with
commitments in EVFTA. Fourthly, EU is a customs union with 28 members which
are industrialized ones. Therefore, cooperation with EU members could help
Vietnam develop economy and improve other aspects with the assistance of
developed members in EU.
1.1.5.2. Comprehensive and Progressive Agreement for Trans – Pacific Partnership
(CPTPP)
CPTPP, which is announced to finish negotiation on 25 January 2018, is
signed on 8 March 2018, being expected to come into force in 2019 with the
participation of eleven members (excluded the USA) 50
. CPTPP has all
characteristics of a NGFTA. Firstly, CPTPP has comprehensive market access and
high level of liberalization. The CPTPP reduces almost all tariffs and non – tariff
barriers on trade in goods and trade in services. Members cut most tariff lines
immediately or after a very short time at which CPTPP comes into force. In detail,
members eliminate nearly 95 percent of tariff lines once the CPTPP comes into
effect. Also, those members will remove tariffs on the remaining goods in 5 to 10
years. Vietnam commits to remove almost all tariff lines on goods in the
agreement51
. Due to the tariff removal and reduction, CPTPP brings comprehensive
49
Ministry of Industry and Trade of Vietnam, Kết quả đàm phán Hiệp định Thương mại tự do giữa Việt Nam
và EU (Hiệp định EVFTA) (Results of negotiation on EVFTA), 2015a, at <http://moit.gov.vn/web/guest/tin-
chi-tiet/-/chi-tiet/ket-qua-%C4%91am-phan-hiep-%C4%91inh-thuong-mai-tu-do-giua-viet-nam-va-eu-hiep-
%C4%91inh-evfta--105649-22.html>, accessed on 15th Jan 2019.
50
Ministry of Industry and Trade of Vietnam, Giới thiệu chung về Hiệp định CPTPP (Overview of CPTPP),
2019, at <http://www.moit.gov.vn/tin-chi-tiet/-/chi-tiet/gioi-thieu-chung-ve-hiep-%C4%91inh-cptpp-13573-
22.html>, accessed on 30th Jan 2019.
51
Financial Journal, TPP và cam kết xóa bỏ thuế xuất, nhập khẩu của Việt Nam (TPP and commitments to
remove tariffs), 2015, at <http://tapchitaichinh.vn/nghien-cuu--trao-doi/trao-doi-binh-luan/tpp-va-cam-ket-
xoa-bo-thue-xuat-nhap-khau-cua-viet-nam-71925.html>, accessed on 01st Dec 2018.

23
market access for both Vietnam and EU. They not only freely trade goods, but they
also focus on the goods which they have comparative advantage. Regarding
services, CPTPP gives the opportunity to increase the openness of services sectors
between Vietnam and EU.
Secondly, CPTPP has broad scope of commitments. Apart from tariff
reduction on almost all goods traded between two markets, CPTPP which has 30
chapters and 4 annexes covers trade and other issues such as services, investment,
intellectual property rights, SPS measures, competition policy, labor issues and
environment52
.
Thirdly, as CPTPP’s scope is not limited to issues in the border like tariff, it
expands to other areas behind the border, so that CPTPP significantly impacts
domestic laws of each member. This requires each member to review its legal
system and amend laws and policies in accordance with commitments in CPTPP.
Fourthly, CPTPP has eleven members and the majority of them participating in
CPTPP are developed ones such as Canada, Mexico, New Zealand, Australia and
Japan. Therefore, developing member like Vietnam could receive technical supports
and driving force to improve legal system when becoming a member of CPTPP.
1.1.5.3. Vietnam – Korea Free Trade Agreement (VKFTA)
Vietnam – Korea Free Trade Agreement (VKFTA) is a NGFTA which is
announced to end the negotiation on 10 December 2014, is signed on 5 May 2015,
coming into force on 20 December 201553
. VKFTA has all characteristics of a
NGFTA. Firstly, VKFTA has high level of liberalization. South Korea liberalizes
95.4 percent of the tariff lines, especially tariffs on key commodities of Vietnam’s
export such as agro – products and aqua – products which Vietnam has comparative
advantage. Also, South Korea, for the first time, commits to open market for
52
WTO Center, Tóm tắt văn kiện CPTPP (Summary of CPTPP), at
<http://www.trungtamwto.vn/upload/files/fta/174-da-ky-ket/175-cptpp-tpp11/177-noi-dung-hiep-
dinh/Tom%20luoc%20CPTPP%20-%20Van%20kien.pdf>, accessed on 15th Dec 2018.
53
Ministry of Industry and Trade of Vietnam, Ngày có hiệu lực của hiệp định thương mại tự do Việt Nam –
Hàn Quốc (VKFTA) (The effective date of VKFTA), 2015c, at <http://www.moit.gov.vn/tin-chi-tiet/-/chi-
tiet/ngay-co-hieu-luc-cua-hiep-%C4%91inh-thuong-mai-tu-do-viet-nam-han-quoc-vkfta--106377-22.html>,
accessed on 26th Oct 2018.

24
products with high sensitivity such as shrimp, honey and ginger. This gives
Vietnam the opportunity to compete with other suppliers who aim at South Korea’s
market. In addition, South Korea commits to market access in services, investment
and technical support so as to promote the economic relation between two
members54
. About Vietnam, Vietnam commits to reduce tariff by 92.7 percent
which accounts for 89.2 percent of tariff lines, especially for industrial products55
. It
is a good opportunity for South Korea when it accesses Vietnam’s market because
the comparative advantage of South Korea to Vietnam is industrial products.
Secondly, VKFTA has seventeen chapters which cover from trade in goods to other
areas such as trade in services, investment, intellectual property rights, SPS
measures, rules of origin, customs facilitation, economic cooperation, trade
safeguard, e – commerce and competition56
. Being different from traditional FTAs,
VKFTA has broader scope of commitments. Thirdly, because of high level of
liberalization and broad scope of commitments, VKFTA has impacts on domestic
legal system and issues behind the border of each member. Furthermore, the partner
of Vietnam in VKFTA is South Korea which is a developed member in the world.
Thus, cooperation with South Korea is a good chance for Vietnam to take advantage
of technical support.
1.1.5.4. Vietnam – the Eurasian Economic Union FTA (EAEUFTA)
Vietnam – the Eurasian Economic Union FTA is an agreement between
Vietnam and five members of Eurasian Economic Union (Russia, Belarus,
Kazakhstan, Kyrgystan and Armenia). EAEUFTA, which is announced to end the
negotiation on 15 December 2014, is signed on 29 May 2015, coming into force on
54
Ministry of Industry and Trade of Vietnam, Lễ kí kết chính thức hiệp định thương mại tự do Việt Nam –
Hàn Quốc (VKFTA) (Ceremony on officially signing VKFTA), 2015b, at <http://www.moit.gov.vn/tin-chi-
tiet/-/chi-tiet/le-ky-chinh-thuc-hiep-%C4%91inh-thuong-mai-tu-do-viet-nam-han-quoc-vkfta--105109-
22.html>, accessed on 26th Oct, 2018.
55
VCCI Uniting Entrepreneurs, VKFTA Agreement: Which kind of goods are deducted tax?, 2017, at
<https://e.vcci.com.vn/details-4543-VKFTA-Agreement-Which-kind-of-goods-are-deducted-tax.html>,
accessed on 27th Oct 2018.
56
Ministry of Information and Communication of Vietnam, Một số nội dung chính của hiệp định FTA Việt
Nam – Hàn Quốc (Several main contents of VKFTA), Journal of technology, information and
communication, 2015, at <http://ictvietnam.vn/mot-so-noi-dung-chinh-cua-hiep-dinh-fta-viet-nam-han-
quoc.htm>, accessed on 26th Oct 2018.

25
05 October 201657
. EAEUFTA is a comprehensive agreement which liberalizes
trade between two parties with the commitment on tariff reduction. In detail,
Eurasian Economic Union commits to eliminate tariffs on nearly 90 percent of tariff
lines, in which 59 percent of tariff lines are immediately eliminated once the
agreement comes into force. About Vietnam, Vietnam removes about 90 percent of
tariff lines in 10 years58
. It means that Vietnam and Eurasian Economic Union give
each other the preference to access the partner’s market through the tariff reduction
and removal on most tariff lines. Also, Vietnam which is a developing one could
remove tariff in the schedule of 10 years. Vietnam has sufficient time to gradually
open its market and implement the commitment on tariff. Furthermore, EAEUFTA
has broad scope of commitments. EAEUFTA covers not only trade in goods, but
also other areas including rules of origin, customs and trade facilitation, SPS
measures, TBT, investment, intellectual property rights, especially issues related
SPS measures to protect human, animal or plant life or health, environment and
sustainable development. Because of broad scope, EAEUFTA has an impact on
domestic law. As a result, when joining EAEUFTA, Vietnam has to review its
domestic law to comply with the commitments.
1.2. Legal basis of SPS provisions in the new generation free trade agreements
1.2.1. SPS Agreement in WTO
1.2.1.1. Scope of SPS Agreement in WTO
According to SPS Agreement (WTO), SPS measures are defined as “any
measure to protect animal or plant life or health within the territory of the Member
from risks arising from the entry, establishment or spread of pests, diseases, disease
– carrying organisms or disease – causing organisms” or “any measures to protect
57
Ministry of Finance of Vietnam, EAEU Free Trade Agreement, 2015, at
<http://www.mof.gov.vn/webcenter/portal/mof/r/lvtc/htqt/hnhttc/ftas/vcufta/vcuftagtc/vcuftagtc_chitiet?dDo
cName=BTC074537&showFooter=false&showHeader=false&_adf.ctrl-
state=ck11qb268_42&_afrLoop=55496515243544857#!%40%40%3F_afrLoop%3D55496515243544857%2
6dDocName%3DBTC074537%26showFooter%3Dfalse%26showHeader%3Dfalse%26_adf.ctrl-
state%3D9dentbmjj_4>, accessed 18th Nov 2018.
58
Ministry of Industry and Trade of Vietnam, Nhìn lại một năm Hiệp định thương mại tự do Việt Nam – Liên
minh kinh tế Á Âu có hiệu lực (One – year period after EAEUFTA came into force), 2017, at
<http://moit.gov.vn/tin-chi-tiet/-/chi-tiet/nhin-lai-mot-nam-hiep-%C4%91inh-thuong-mai-tu-do-viet-nam-
lien-minh-kinh-te-a-au-co-hieu-luc-7228-401.html>, accessed on 29th Oct 2018.

26
human or animal life or health within the territory of the Member from risks arising
from additives, contaminants, toxins or disease – causing organisms in foods,
beverages or feedstuffs” or “any measure to protect human life or health within the
territory of the Member from risks arising from diseases carried by animals, plants
or products thereof, or from the entry, establishment or spread of pests” or “any
measure to prevent or limit other damage within the territory of the Member from
the entry, establishment or spread of pests”59
.
Based on Annex A of SPS Agreement, SPS measures consist of all relevant
laws, decrees, regulations, requirements and procedures which include inter alia,
end product criteria; processes and production methods (PPMs); testing inspection,
certification and approval procedure; quarantine treatment; and packing and
labelling requirements directly related to food safety60
.
Also, SPS Agreement states that it desired “the establishment of a multilateral
framework of rules and disciplines to guide the development, adoption and
enforcement of SPS measures in order to minimize their negative effects on trade”
and furthers “the use of harmonized SPS measures between Members, on the basis
of international standards, guidelines and recommendations developed by the
relevant international organizations”61
. In general, the scope of SPS Agreement is
regulations on SPS measures.
1.2.1.2. Legal basis of SPS Agreement in WTO
Based on GATT, Article XX(b) allows contracting parties to apply necessary
trade measures to protect human, animal or plant life or health as long as those
measures do not make discrimination between contracting parties with the same
conditions and those measures are not used as disguised restriction to trade62
. Also,
Article XX(b) of GATT let governments to impose more requirements on imported
products than the requirements for the similar domestic products if the measures are
applied to protect human, animal or plant life or health. Although GATT has two
59
See more in SPS Agreement (WTO), Annex A, point 1
60
Ibid., Definition, point 1
61
See more in the first part of SPS Agreement (WTO)
62
Andrew L. Stoler (2011), op. cit., p.218

27
important principles: MFN63
which requires non – discriminatory treatment of
imported products from different suppliers and NT 64
which regulates that the
products are treated no less favorable than domestic products, Article XX(b) of
GATT points out the exceptional situation in which government could enact more
restrictive requirements to protect human, animal or plant life or health if those
measures do not create discrimination and disguised protection to trade.
Also, SPS Agreement states that “Sanitary or Phytosanitary measures which
conform to the relevant provisions of this Agreement shall be presumed to be in
accordance with the obligations of the Members under the provisions of GATT 1994
which relate to the use of Sanitary or Phytosanitary measures, in particular the
provisions of Article XX(b)”65
. To sum up, based on Article XX(b) of GATT, SPS
Agreement is an agreement with more specific regulations on SPS measures to
protect human, animal or plant life or health, but still in accordance with the
obligations of members under GATT.
1.2.1.3. Main provisions of SPS Agreement
a. Rights and obligations of members
SPS Agreement does not reveal any specific measures, but points out legal
framework to apply measures to protect life or health of human, animal or plant and
not to discriminate or disguise restrictions on trade. Article 2 of SPS Agreement
reveals rights and obligations of members and also states that when each member
applies SPS measures, that member has to follow those principles. Firstly, SPS
measures are used only to the extent necessary to protect human, animal or plant life
or health. They must be based on scientific principles and are not kept without
sufficient scientific evidence, except emergency situations. Secondly, SPS measures
do not discriminate between members which have identical or similar conditions .
Thirdly, SPS measures should be based on international standards, guidelines and
recommendations. Fourthly, SPS measures should encourage harmonization among
63
See more in GATT 1947, Article I
64
Ibid., Article II
65
See more in SPS Agreement (WTO), Article 2.4

28
members. Accordingly, if SPS measures do not comply with one of the above
principles, those measures may violate WTO rules and could be forced to cancel.
b. Harmonization
The SPS Agreement encourages members to base their SPS measures on
recommended international standards, guidelines, and recommendations. Those
measures must be necessary to protect human, animal or plant life or health.
SPS Agreement does not define international standards in specific, but calls
for the members to base their SPS measures on international standards. In order to
harmonize global standards and due to the complexity of issues related to human,
animal or plant life or health, three bodies appointed by WTO for implementing of
the SPS Agreement are organizations known as “three sisters”66
. They are the
Codex Alimentarius Commission (CODEX) under the aegis of FAO and WHO
which is responsible for food safety, the Secretariat of the International Plant
Protection Convention (IPPC) which takes care of plant health and the World
Organization for Animal Health (OIE) which is responsible for animal health.
In summary, in order to achieve global harmonization, national measures of
each member should be based on the international standards, guidelines, and
recommendations revealed by international standard setting organizations (CODEX,
IPPC and OIE). However, members could apply stricter SPS measures than
measures in accordance with international standards if they have sufficient scientific
evidence.
c. Equivalence
According to Article 4 of SPS Agreement, members accept that the SPS
measures of others are equivalent, even if those measures are different from the
measures of their own or from the measures by others trading in the same product.
Exporting members have to prove that its measures satisfy the importing members’
appropriate level of SPS protection. It means that importing members accept the
SPS measures of exporting members as equivalence, therefore, the goods are
66
Alfonso Torres (2013), op. cit., p.43

29
checked in the exporting members instead of being checked in the importing
members. This brings advantages for exporting members when they export the
products. Also, importing and exporting members are encouraged to consult in
order to achieve agreements on recognition of the equivalence of SPS measures.
Besides provision on “Equivalence” in SPS Agreement, in order to operate
this provision on the implementation of SPS measures, SPS Committee (WTO)
published guidance No. G/SPS/19/Rev.2 (WTO, 2004) 67
on the application of
Article 4 of SPS Agreement (WTO) in detail. However, the guideline of SPS
Committee in equivalence is not compulsory and not an integral part of SPS
Agreement (WTO), so members are not forced to follow that guidance. In
particular, based on the request of exporting members, importing members have to
clarify the objectives and rationales of the SPS measures, point out the risks related
to SPS measures and reveal the appropriate level of protection. The explanation
should be attached with a copy of the risk assessment or a technical justification
based on international standards, guidelines or recommendations, according to No.
G/SPS/19/Rev.2 (WTO, 2004)68
.
Regarding the time to respond, importing members should respond any
request of exporting members within a period of time (about six months)69
. In
addition, importing members quickly determine the equivalence if the products have
been ever imported from the exporting ones. In order to show that the products have
been historically imported from the exporting members, some information should
be referred: the historic knowledge and confidence, the existence of an evaluation
and recognition of the products in relation to a system of inspection and
certification, and the available scientific information70
. Moreover, consideration of
importing members by the request of exporting members is not a reason to interrupt
or delay the import procedure of exporting members to importing members.
Concerning the technical assistance for developing members, members shall
67
WTO, Decision on the implementation of Article 4 of the Agreement on the application of Sanitary and
Phytosanitary measures, 2004
68
Ibid., Point 2
69
Ibid., Point 3
70
Ibid., Point 5

30
support others, especially developing ones, for the technical assistance to identify
and implement the SPS measures which are recognized to be equivalent.
About exporting members, they have to provide scientific evidence and
technical information to prove that their measure satisfies the appropriate level of
protection which is identified by importing members. Also, they are encouraged to
inform SPS Committee about the equivalence agreement or arrangement.
d. Risk assessment and appropriate level of SPS protection
In order to apply SPS measures, members of WTO shall ensure that those
measures are based on risk assessment including scientific evidence; relevant
processes and production methods; inspection, sampling and testing methods;
prevalence of specific diseases or pests; existence of pests – or diseases – free areas;
ecological and environmental conditions; and quarantine or other treatment71
. In
other words, members shall apply the “appropriate level of SPS protection” which
requires basic obligations to make sure that the measures (1) are applied to the
extent necessary in order to protect human, animal or plant life or health, (2) are
based on scientific evidence and (3) do not make unjustifiable discrimination and
disguised restrictions on trade72
.
Firstly, SPS measures must be applied to protect human, animal or plant life or
health. Secondly, regarding the scientific evidence, in order to consider whether
SPS measures are based on scientific evidence, two tests must be applied. The first
one is risk assessment in which the scientific methods are used to determine the
existence of risks to human, animal or plant life or health. The second test is risk
control in which the policy is chosen to protect human, animal or plant life or health
from risks and the measures are applied based on the results of risk assessment. In
fact, SPS measures which are based on reliable scientific evidence are satisfied to
apply to protect human, animal or plant life or health.
71
72

31
However, in emergency situation, SPS measures could be provisionally
applied without sufficient scientific evidence within a reasonable period of time.
After that, members should find out additional information for risk assessment73
.
Thirdly, members must ensure that the SPS measures are not more trade –
restrictive on international trade than appropriate level of SPS protection. Also,
members should not apply arbitrary or unjustifiable distinctions, if the distinctions
cause discrimination or a restriction on international trade74
. In addition, when
applying appropriate level of protection, members should consider the relevant
economic factors and the objective of reduction of negative trade effects.
e. Regionalized concept
Article 6 of SPS Agreement (WTO) reveals that members have to ensure that
the applied SPS measures are suitable with the SPS characteristics of the area. That
area is a place from which the goods originate and to which the goods are destined.
Also, in order to evaluate the SPS characteristics of the area, the popularity of
specific pests or diseases, the control programs and the guidelines of international
organizations should be concerned75
.
Concerning recognition of area, members have recognition of the pest or
disease – free areas or areas of low pest or diseases prevalence based on
ecosystems, the effectiveness of SPS controls, geography and epidemiological
surveillance. Additionally, in order to prove that areas in the exporting members’
territories are pest – or disease – free areas or areas of low pest or disease
prevalence, exporting members have to supply the evidence to importing members.
Besides regulation of SPS Agreement (WTO), SPS Committee also reveals the
guidance on regionalized concept No. G/SPS/48 (2008)76
which is not a legal
interpretation or modification to SPS Agreement (WTO), therefore, it is not an
73
74
Ibid., Article 5.5
75
Ibid., Article 6.1
76
WTO, Guidelines to further the practical implementation of Article 6 of the Agreement on the application
of Sanitary and Phytosanitary measures, 2008

32
integral part of SPS Agreement (WTO) and members are not forced to implement it.
Firstly, the guidelines clarify the general considerations of pest – or disease – free
areas and areas of low pest or disease prevalence. Importing members should
publish the basis used to recognize the pest – or disease – free areas or areas of low
pest of disease prevalence, the general process which is applied to determine and
recognize those areas77
through the information normally used to evaluate those
areas and the contact point which is responsible for the recognition. Also,
concerning the responsibility of importing ones, they should take the recognition
process without any delay and discrimination between members. If importing
members resubmit a recognition request, they have to consider the previous
information. Besides, about exporting members’ responsibility, if they submit
multiple requests to importing ones, they have to clarify which request is priority.
Secondly, regarding the discussion between importing and exporting parties
on recognition of areas, both parties should discuss to clarify the process and
required information to proceed the recognition process78
. The discussion should be
taken within a period of time. If the discussion comes to the clarifications,
importing ones should record those clarification and transmit to exporting ones so
as to make exporting members avoid the general process misunderstandings. If the
process is delayed for a reasonable period of time, importing members have to base
on relevant reasons and explain to exporting ones in writing for the delay of
discussions79
.
Thirdly, although member members have the right to make a process to
determine the recognition of areas, they have to follow a number of steps in order to
improve the transparency in recognition process.
f. Transparency
77
Ibid., point 4
78
Ibid., point 13
79
Ibid., point 18

33
Concerning publication regulations80
, members shall promptly publish all SPS
regulations in order to enable interested members to adapt them before those SPS
measures come into force. Also, in some urgent circumstances, members should
leave a reasonable interval between the publication and the entry into force to let
exporting members have sufficient time to be acquaintance with new SPS
measures81
, especially developing ones. The guideline No. G/SPS/Rev.3 (2008)82
of
SPS Committee (WTO) on transparency which is not a legal integral part of SPS
Agreement mentions that a reasonable interval is normally a period of at least six
months. In addition, the publication of SPS regulations should be published on the
Internet so that parties could easily access and obtain relevant documents and the
amount of work related to processing documents is reduced.
Concerning enquiry points, members have to keep an enquiry point to provide
answers to the questions from other members, and relevant documents in relation to
any SPS regulations adopted or proposed, any control and inspection procedures,
risk assessment procedures, factors which are taken to consider and the
determination of the appropriate level of SPS protection83
. In addition, based on the
guideline of SPS Committee, according to G/SPS/7/Rev.3 (WTO, 2008), the
documents are encouraged to be on a website or send by electronic mail or fax.
About notification procedures, members have to provide information about
proposed SPS measures which do not exist or are not based on international
standards, guidelines or recommendations84
or all regulations which conform the
international standards, guidelines and recommendation in cases those measures
have significantly impacts on trade, according to G/SPS/7/Rev.3 (WTO, 2008). In
particular, importing members has to publish a notice to let interested parties to be
acquainted with the new SPS measures and inform other parties of the products
regulated by the regulations with a brief of the objective and rationale. Also,
80
See more in SPS Agreement (WTO), Annex B
81
Ibid., point 2
82
WTO, Recommended procedures for implementing the transparency obligations of the SPS Agreement
(Article 7), 2008
83
See more in SPS Agreement (WTO), Annex B, point 3
84
Office of the US Trade Representatives (2014), op. cit., p.7 – 8

34
importing members leave a reasonable period of time for others to comment in
writing and make a discussion about new SPS measures, normally a period of no
less than 60 days85
. In the urgent cases, importing members could skip some above
steps but still have to notify others without any delay and let them to make comment
and discussion86
.
g. Procedural provision
Members have to be certain with the fulfilment of SPS measure procedures
related to control, inspection and approval. According to Article 8 and Annex C of
SPS Agreement, the standard period of time to process each procedure is published.
Also, when receiving the application, the competent bodies should review and
examine the completeness of that documentation and announce the applicant about
the deficiencies of documentation in a precise and complete manner87
. Then, the
competent bodies have to provide the applicant with the results of procedure as soon
as possible.
In addition, in order to facilitate the procedure and the selection of samples of
imported products, the same factors should be used in imported products as for
domestic products. Besides, when product specifications are changes due to the
control and inspection of the application regulations, the procedure for modified
product is limited to which is essential to ensure that the products meets the relevant
regulations. It means that the change in control and inspection of specifications of a
product should be limited to what is necessary88
.
Regarding the standard of time, any procedure should be undertaken and
completed without any delay. About the information for control, inspection and
approval procedure, the information requirements are enough and limited to what is
essential for those procedures. The confidentiality of information of imported
85
WTO, Recommended procedures for implementing the transparency obligations of the SPS Agreement
(Article 7), 2008, point 13
86
Ibid., point 14
87
SPS Agreement (WTO), Annex C, point 1b
88
Ibid., point 1c

35
products is respected in the way no less favorable than that for domestic products89
.
About fees for the procedures, they are the same as those for domestic ones and no
higher than the actual cost of the service90
.
h. Special and Differential Treatment
Article 9 of SPS Agreement states that members agree to provide other
members technical assistance, especially developing ones through bilateral
assistance or the international organizations such as the Standards and Trade
Development Facility (STDF), Asia – Pacific Economic Cooperation (APEC) and
the Inter – American Institute for Cooperation on Agriculture (IICA)91
. STDF,
which is established to raise the awareness of the SPS measures importance,
promotes the cooperation in SPS measures assistance and supports developing ones
to meet the SPS standards. APEC is a forum which encourages the economic
growth, trade and cooperation among members in Asia – Pacific region. The IICA
is an agency to help members to achieve agricultural development. The assistance is
in the areas like technologies, research and infrastructure and in the form of advice,
credit, donations or grants to help other members to adapt and comply with the SPS
measures and achieve the appropriate level of SPS protection in the export markets.
Article 10 of SPS Agreement refers the special and differential treatment to
developing members and least – developed members in the preparation and
application of SPS measures. In detail, members allow other members to gradually
comply the SPS measures with longer time – frames in whole or in part of the
obligations under SPS Agreement with a period of not less than six months, taking
into account several issues such as needs in finance, trade and development.
Specifically, exporting members have to point out the specific difficulties with SPS
measures or reasons why those members are not able to comply with the SPS
measures, write them down and submit them to the notifying members and request
for the chance to discuss the issues. Besides, providing that the importing ones do
89
Ibid., point 1d
90
Ibid., point 1f
91
Office of the US Trade Representatives (2014), op. cit., p.91

36
not allow scope for the phased introduction of new SPS measures, members which
notify the SPS measures participate in the consultation with the exporting members
to achieve the mutually satisfactory solution while still achieving the appropriate
level of protection of importing members. The consultation should be held before
the new SPS measures enter into force.
i. Dispute Settlement
Based on Article 11 of SPS Agreement, regarding consultations under Article
XXII of GATT, each party shall take sympathetic consideration and afford adequate
opportunity to consult with any matter which has effects on the implementation of
SPS Agreement in order to come to a satisfactory solution. In general, each party is
encouraged to consult with any contracting parties in respect of any matter.
Concerning dispute settlement which is related to technical or scientific issues,
a penal may take advice from experts who are picked up by the panel and the parties
in the dispute, or the panel could establish an advisory technical experts group, or
take consultation of the relevant international organizations at the request of any
party in the dispute or on its own initiative (Article 11 of SPS Agreement).
j. SPS Committee
Based on Article 12 of SPS Agreement, Committee on SPS measures is
established to regularly regulate a forum for consultations on SPS measures and
supervise the implementation of provisions of this agreement92
. The Committee
makes the consultations and negotiations on SPS measures proceed smoothly and
encourages the application of international standards, guidelines and
recommendations. Also, the Committee keeps in touch with the relevant
international organizations related to SPS protection in order to provide the best
scientific and technical support to observes and administrate this agreement 93
.
Additionally, the Committee creates the procedure to manage the process of
international harmonization and the application of international standards,
92
See more in SPS Agreement (WTO), Article 12, point 1
93
Ibid., point 3

37
guidelines and recommendations by making the list of international standards,
guidelines and recommendations that have great impact on trade. Besides, SPS
committee regularly reviews the implementation of SPS Agreement. WTO
members make a discussion of matters related to SPS measures in schedule. The
procedures that the SPS Committee creates must be approved by consensus94
.
1.2.2. Legal basis of SPS measures in the new generation free trade agreements
WTO and FTAs have mutual legal relation. In detail, WTO has legal basis for
the establishment of FTAs, and provisions in FTAs are based on WTO provisions
and WTO Agreements. With the complexity of issues related to human, animal or
plant life or health and the difficulty in achieving the detailed mutual agreement by
all members on SPS measures within WTO, NGFTAs with SPS chapter are a
solution for members. In recent years, the higher living standards worldwide results
in the customers’ demand on high – quality and environmentally friendly products,
therefore, SPS measures become important to members to protect human, animal or
plant life or health95
.
Furthermore, according to the characteristics of NGFTAs, they have strict
requirements and high standards on SPS measures, and they have the participation
of members with high level of economic development which significantly focus on
protection of human, animal or plant health and life. And the Article 4 of SPS
Agreement (WTO) points out not only that a bilateral or multilateral agreement on
SPS measures should be achieved, but also that members can set their own
standards to protect human, animal or plant life and health which are based on
scientific principles, which apply to the extent necessary to protect the health and
which do not make discrimination between members with similar conditions96
.
Therefore, members in NGFTAs may apply SPS measures with higher level of
health protection satisfying the factors of an appropriate level of protection97
.
94
Office of the US Trade Representatives (2014), op. cit., p.8
95
Andrew L. Stoler (2011), op. cit., p.217
96
97
Ibid., p.44 – 45

38
In general, NGFTAs not only reconfirm principles of SPS Agreement
(WTO), but also expand them and regulate measures beyond SPS Agreement
through the mutual recognition provisions which deeply impact on behind the
border issues such as SPS measures. Therefore, in order to implement SPS
measures in NGFTAs, members have to review their legal systems and amend legal
documents in NGFTAs98
.
1.2.3. Criteria to assess Vietnam’s legislation on SPS measures
When joining NGFTAs of Vietnam, Vietnam has to review its legal
documents on SPS measures. Criteria assessing the legal aspects of provisions on
SPS measures between NGFTAs of Vietnam and Vietnam’s legislation are the
compatibility and not compatibility. In particular, firstly, about the compatibility, in
order to regard compatibility with regulations on SPS measures of NGFTAs,
Vietnam’s legal documents must fully reconfirm regulations stated in NGFTAs.
Secondly, concerning the not compatibility, that Vietnam’s legal documents
do not regulate one point or provision stated in NGFTAs means that Vietnam’s
legislation is not compatible with regulations on SPS measures of NGFTAs of
Vietnam. Each provision of NGFTAs of Vietnam is revealed and compared with
regulations of Vietnam’s legislation to point out whether Vietnam’s legislation on
SPS measures is compatible with NGFTAs or not. In detail, not compatibility
criterion means which regulations of NGFTAs are partly complied and which
regulations are not stated in Vietnam’s legal documents.
In general, criteria to evaluate the compatibility of Vietnam’s legislation on
SPS measures are the compatibility (fully compatible) and not compatibility with
detailed level of not compatibility (partly compatible or not stated in legal
documents). It is the basis to state the dispositions of SPS measures on Vietnam’s
legislation compared to NGFTAs of Vietnam.
98

39
CHAPTER 2: DISPOSITIONS ON SPS MEASURES IN THE NEW
GENERATION FREE TRADE AGREEMENTS OF VIETNAM
As analysis of legal basis of SPS measures in NGFTAs, SPS measures in
NGFTAs not only are based on provisions of SPS Agreement, but also meet the
mutual requirements and targets of members when they join FTAs. As a result,
NGFTAs reaffirm provisions of SPS Agreement and regulates measures which are
beyond the SPS Agreement through the mutual recognition provisions. Following
the same legal basis, four NGFTAs of Vietnam (EVFTA, CPTPP, VKFTA and
EAEUFTA) have SPS chapter which regulates SPS measures by fostering the
application of provisions in SPS Agreement and expanding SPS measures which are
beyond SPS Agreement.
The table below compares SPS measures in SPS chapter of four NGFTAs of
Vietnam to those measures in SPS Agreement in order to point out the similarities
and differences between them with “x” meaning that this NGFTA of Vietnam
mentions the article and “-” meaning that this NGFTA does not regulate the article.
Table 2.1: A confirmation of WTO's obligations
No Factors EVFTA CPTPP VKFTA EAEUFTA
1 Definition x x x x
2
Rights and
obligations
x x x x
3
Special and
differential
treatment
x - - -
4
Consultations in
accordance with
WTO
mechanism
x - - -
5
Dispute
settlement in
accordance with
WTO
mechanism
- - x -
(Source: Summarized by author based on four NGFTAs of Vietnam)

40
Table 2.2: Supplements beyond WTO’s SPS obligations
No Factors EVFTA CPTPP VKFTA EAEUFTA
1 Equivalence x x - x
2 Risk assessment - x - -
3 Regionalized concept x x - x
4
Transparency, competent
authorities and contact
points
x x - x
5
Consultations beyond
WTO’s obligations
- x - -
6
Dispute settlement in
accordance with private
mechanism
- x - x
7 SPS Committee x x x -
8 Emergency measures x x - x
9 Cooperation - x x x
10
Control, inspection and
approval procedural
specifics
x x - x
- Import requirements and
procedures
x x - -
- Verifications, audits and
inspections
x x - x
- Certification and
documents confirming
safety
- x - x
11
Tobacco control measures
and Halal requirements
- x - -
(Source: Summarized by author based on four NGFTAs of Vietnam)

41
2.1. A confirmation of WTO’s SPS obligations
2.1.1. Definitions, rights and obligations
According to Article 1 and 2 of SPS Agreement, the definitions in Annex A of
this agreement which is an integral part of SPS Agreement shall apply. Also, about
the rights and obligations of members, they have to ensure that the SPS measures,
which are used to the extent necessary to protect human, animal or plant life or
health, must be based on scientific principles, international standards, guidelines
and recommendations developed by CODEX, IOE and IPPC, not creating
discrimination among members which have identical and similar conditions.
EVFTA points out in Article 3 of SPS chapter that the definitions in Annex A
of SPS Agreement shall apply. Additionally, in accordance with Article 4, members
reaffirm the rights and obligations regulated in SPS Agreement and commit to apply
the principles of SPS Agreement in order to facilitate trade between Vietnam and
EU, and protect human, animal or plant life or health.
Likewise, CPTPP shows that the definitions in Annex A of the SPS
Agreement is an integral part of the SPS chapter. Besides, Article 3 and 4 of SPS
chapter reveal that the SPS chapter applies to all SPS measures which have direct or
indirect impacts on trade among members. In order to apply SPS measures,
members have to follow rights and obligations which are reaffirmed the rights and
obligations under the SPS Agreement. Nothing in CPTPP limits the members’
rights and obligations regulated under SPS Agreement.
Concerning VKFTA, Article 5.2 reveals that the definitions in Annex A of
SPS Agreement shall apply. Article 5.3 of SPS chapter in VKFTA states that
members reaffirm the existing rights and obligations under SPS Agreement in
applying SPS measures in accordance with international standards, guidelines and
recommendations of international organizations such as CODEX, IOE and IPPC.
Turning into SPS chapter of EAEUFTA, based on Article 7.3, the definition in
Annex A of SPS Agreement shall apply in this FTA. Also, Article 7.2 and 7.4 show
that the rights and obligations of members in EAEUFTA reconfirm SPS Agreement.

DISPOSITIONS ON SANITARY AND PHYTOSANITARY (SPS) MEASURES IN THE NEW GENERATION OF FREE TRADE AGREEMENTS OF VIETNAM

DISPOSITIONS ON SANITARY AND PHYTOSANITARY (SPS) MEASURES IN THE NEW GENERATION OF FREE TRADE AGREEMENTS OF VIETNAM

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