WT/DS429/12  
 
15 December 2015  
(15-6610)  Page: 1/25  
  Original: English  
 
 UNITED STATES – ANTI-DUMPING MEASURES ON  
CERTAIN SHRIMP FROM VIET NAM  
ARB-2015-2/29 
Arbitration 
under Article 21.3(c) of the 
Understanding on Rules and Procedures 
Governing the Settlement of Disputes 
Award of the Arbitrator 
Simon Farbenbloom WT/DS429/12 
 
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 TABLE OF CONTENTS  
1  INTRODUC TION ........................................................................................................... 6  
2  ARGUMENTS OF THE PARTIES ...................................................................................... 7  
3  REASONABLE PERI OD OF TIME .................................................................................... 7  
3.1  Mandate of the arbitrator und er Article 21.3(c) of the DSU ............................................... 7  
3.2  Measures to be brou ght into conf ormity ......................................................................... 9  
3.3  Factors affecting the determination of the reasonable period of time ................................. 12 
3.3.1  Overview of the chosen  means of impl ementation ....................................................... 12 
3.3.2  Analysis ............................................................................................................... . 14 
4  AWARD ......................................................................................................................  23 
ANNEX A  Executive summary of the United States' submission  ............................................. 24  
ANNEX B  Executive summary of Viet Nam's submission  ....................................................... 25  
 
 
 WT/DS429/12 
 
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  ABBREVIATIONS USED IN THIS AWARD 
Abbreviation Description 
Anti-Dumping Agreement Agreement on Implementa tion of Article VI of the General Agreement 
on Tariffs and Trade 1994 
Appellate Body Report Appellate Body Report, United States – Anti-Dumping Measures on 
Certain Shrimp from Viet Nam , WT/DS429/AB/R and Corr.1 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement 
of Disputes 
GATT 1994 General Agreement on Tariffs and Trade 1994 
NME non-market economy 
Panel Report Panel Report, United States – Anti-Dumping Measures on Certain 
Shrimp from Viet Nam , WT/DS429/R 
RPT reasonable period of time 
Shrimp  USDOC anti-dumping proceedings in Certain Frozen Warmwater 
Shrimp from the Socialist Republic of Vietnam , Case No. A-522-802 
URAA Uruguay Round Agreements Act, Public Law No. 103-465, 108 Stat. 
4838, codified under United States Code , Title 19, Section 3538  
US Case Calendar "DS429 – Approximat e 21-month Case Calendar", proposed 
timetable by the United States 
USDOC United States Department of Commerce 
USTR United States Trade Representative 
Viet Nam's proposed 
timetable "Vietnam's Proposed RPT with Sequencing" (Exhibit VNM-8) 
WTO World Trade Organization 
 WT/DS429/12 
 
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 CASES CITED IN THIS AWARD 
Short Title Full Case title and citation 
Brazil – Retreaded Tyres 
(Article 21.3(c)) Award of the Arbitrator, Brazil – Measures Affecting Imports of Retreaded 
Tyres – Arbitration under Article 21.3(c) of the DSU , WT/DS332/16, 
29 August 2008, DSR 2008:XX, p. 8581 
Canada – Pharmaceutical 
Patents  
(Article 21.3(c)) Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical 
Products – Arbitration under Article 21.3(c) of the DSU , WT/DS114/13, 
18 August 2000, DSR 2002:I, p. 3 
Chile – Price Band System 
(Article 21.3(c)) Award of the Arbitrator, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products  – Arbitration under Article 21.3(c) of 
the DSU , WT/DS207/13, 17 March 2003, DSR 2003:III, p. 1237 
China – GOES  
(Article 21.3(c)) Award of the Arbitrator, China – Countervailing and Anti-Dumping Duties on 
Grain Oriented Flat-Rolled Electrical Steel from the United States – Arbitration 
under Article 21.3(c) of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes , WT/DS414/12, 3 May 2013, DSR 2013:IV, 
p. 1495 
Colombia – Ports of Entry 
(Article 21.3(c)) Award of the Arbitrator, Colombia – Indicative Prices and Restrictions on 
Ports of Entry – Arbitration un der Article 21.3(c) of the DSU , WT/DS366/13, 
2 October 2009, DSR 2009:IX, p. 3819 
EC – Bananas III 
(Article 21.3(c)) Award of the Arbitrator, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Arbitration under 
Article 21.3(c) of the DSU , WT/DS27/15, 7 January 1998, DSR 1998:I, p. 3 
EC – Export Subsidies on Sugar  
(Article 21.3(c)) Award of the Arbitrator, European Communities – Ex port Subsidies on Sugar 
– Arbitration under Article 21.3(c) of the DSU , WT/DS265/33, WT/DS266/33, 
WT/DS283/14, 28 October 2005, DSR 2005:XXIII, p. 11581 
EC – Hormones 
(Article 21.3(c)) Award of the Arbitrator, EC Measures Concerning Meat and Meat Products 
(Hormones) – Arbitration under Article 21.3(c) of the DSU , WT/DS26/15, 
WT/DS48/13, 29 May 1998, DSR 1998:V, p. 1833 
EC – Tariff Preferences 
(Article 21.3(c)) Award of the Arbitrator, European Communities – Cond itions for the Granting 
of Tariff Preferences to  Developing Countries  – Arbitration under 
Article 21.3(c) of the DSU , WT/DS246/14, 20 September 2004, 
DSR 2004:IX, p. 4313 
Japan – DRAMs (Korea) 
(Article 21.3(c)) Award of the Arbitrator, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea – Arbitratio n under Article 21.3(c) of the DSU , 
WT/DS336/16, 5 May 2008, DSR 2008:XX, p. 8553 
US – 1916 Act  
(Article 21.3(c)) Award of the Arbitrator, United States – Anti-Dumping Act of 1916  
– Arbitration under Article 21.3(c) of the DSU , WT/DS136/11, WT/DS162/14, 
28 February 2001, DSR 2001:V, p. 2017 
US – COOL 
(Article 21.3(c)) Award of the Arbitrator, United States – Certain Country of Origin Labelling 
(COOL) Requirements  – Arbitration under Article 21.3(c) of the DSU , 
WT/DS384/24, WT/DS386/23, 4 Dece mber 2012, DSR 2012:XIII, p. 7173 
US – Countervailing Measures 
(China)  (Article 21.3(c)) Award of the Arbitrator, United States – Countervai ling Duty Measures on 
Certain Products from China – Arbitrat ion under Article 21.3(c) of the DSU , 
WT/DS437/16, 9 October 2015 
US – Offset Act 
(Byrd Amendment) 
(Article 21.3(c)) Award of the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000 – Arbitration under Article 21.3(c) of the DSU , 
WT/DS217/14, WT/DS234/22, 13 June 2003, DSR 2003:III, p. 1163 
US – Oil Country Tubular 
Goods Sunset Reviews (Article 21.3(c)) Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina – Arbitration under Article 21.3(c) of the DSU , WT/DS268/12, 7 June 2005, DSR 2005:XXIII, 
p. 11619 
US – Section 110(5)  
Copyright Act  
(Article 21.3(c)) Award of the Arbitrator, United States – Section 110(5) of the US Copyright 
Act – Arbitration under Article 21.3(c) of the DSU , WT/DS160/12, 15 January 
2001, DSR 2001:II, p. 657 
US – Shrimp II (Viet Nam) Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Shrimp from Viet Nam , WT/DS429/AB/R, adopted 22 April 2015, and Corr.1 WT/DS429/12 
 
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  US – Shrimp II (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp 
from Viet Nam , WT/DS429/R and Add.1, adopted 22 April 2 015, upheld by 
Appellate Body Report WT/DS429/AB/R 
US – Stainless Steel (Mexico)  
(Article 21.3(c)) Award of the Arbitrator, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico – Arbitration under Article 21.3(c) of the DSU , 
WT/DS344/15, 31 October 2008, DSR 2008:XX, p. 8619 WT/DS429/12 
 
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 WORLD TRADE ORGANIZATION  
AWARD OF THE ARBITRATOR  
  
United States – Anti-Dumping Measures on 
Certain Shrimp from Viet Nam  
Parties: 
 Viet Nam United States 
 ARB-2015-2/29 
 Arbitrator:  
 
Simon Farbenbloom 
 
  
1  INTRODUCTION 
1.1.  On 22 April 2015, the Dispute Settlement Body (DSB) adopted the Appellate Body Report
1 
and the Panel Report2, as upheld by the Appellate Body Report, in United States – Anti-Dumping 
Measures on Certain Shrimp from Viet Nam .3 This dispute concerns Viet Nam's challenge of certain 
anti-dumping measures imposed by the United St ates in the context of the US anti-dumping 
proceedings in Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam4 
(Shrimp ), and of certain US laws, methodologies, and practices with respect to the imposition of 
anti-dumping duties.5 The Panel found the measures at issue to be inconsistent with several 
provisions of the Agreement on Implementation of  Article VI of the General Agreement on Tariffs 
and Trade 1994 (Anti-Dumping Agreement), as well as with Article VI:2 of the General Agreement 
on Tariffs and Trade 1994 (GATT 1994).6 Most of the Panel's findings were not subject to appeal. 
Viet Nam's appeal was limited to the issue of whether the Panel acted inconsistently with Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) in 
finding that Viet Nam had not established that Section 129(c)(1) of the US Uruguay Round 
Agreements Act
7 (URAA) is inconsistent "as such" with several provisions of the Anti-Dumping 
Agreement.8 At the meeting of the DSB held on 20 May 2015, the United States indicated its 
intention to implement the DSB's recommendations and rulings in this dispute in a manner that 
respects its World Trade Organization (WTO) obligations, and stated that it would need a 
reasonable period of time in which to do so.9 
1.2.  By letter dated 17 September 2015, Viet Nam informed the DSB that consultations with the 
United States had not resulted in an agreement on the reasonable period of time for 
implementation pursuant to Article 21.3(b) of th e DSU. Viet Nam therefore requested that this 
period be determined through binding arbitration pursuant to Article 21.3(c).10 By joint letter 
dated 7 October 2015, Viet Nam and the United  States agreed on the undersigned as the 
Arbitrator for this matter. I informed the partie s of my acceptance of the appointment by letter 
dated 8 October 2015.11 
                                               
1 WT/DS429/AB/R and Corr. 1. 
2 WT/DS429/R. 
3 WT/DS429/8. 
4 USDOC Case No. A-552-802. 
5 Appellate Body Report, para. 1.1; Panel Report, para. 1.1. 
6 See infra,  para. 3.12. 
7 Public Law No. 103-465, 108 Stat. 4838, codified under United States Code , Title 19, Section 3538. 
8 More specifically, Viet Nam claimed that Section 129(c)(1) of the URAA is inconsistent "as such" with 
Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. The Appellate Body rejected Viet Nam's claim that the Panel acted inconsistently with Article 11 of the DSU and upheld the Panel's above finding. (See infra, para. 3.14; Appellate Body Re port, paras. 3.1 and 5.1) 
9 WT/DS429/9. 
10 WT/DS429/10. 
11 WT/DS429/11. WT/DS429/12 
 
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  1.3.  The United States and Viet Nam filed their written submissions, together with the executive 
summaries thereof, on 15 and 22 October 2015, respectively.12 A hearing was held on 
10 November 2015. 
2  ARGUMENTS OF THE PARTIES 
2.1.  Annexes A and B to this Award contain the executive summaries of the parties' submissions. 
Details of the parties' arguments are further describ ed, as appropriate, in my analysis set out in 
this Award. 
3  REASONABLE PERIOD OF TIME 
3.1.  This section begins by setting out the mand ate of the arbitrator under Article 21.3(c) of the 
DSU, as defined in the text of the DSU and outlin ed in past awards under Article 21.3(c). It then 
addresses the measures to be brought into conf ormity with the recommendations and rulings of 
the DSB, before considering the parties' arguments on what constitutes a reasonable period of 
time for implementation in this dispute. 
3.1  Mandate of the arbitrator und er Article 21.3(c) of the DSU  
3.2.  Article 21.3 of the DSU provides, in relevant part: 
If it is impracticable to comply immediately with the recommendations and rulings [of 
the DSB], the Member concerned shall have a reasonable period of time in which to 
do so. The reasonable period of time shall be: 
... (c) a period of time determined through binding arbitration within 90 days after the 
date of adoption of the recommendations and rulings. In such arbitration, a guideline 
for the arbitrator should be that the reasonable period of time to implement panel or 
Appellate Body recommendations should not exceed 15 months from the date of adoption of a panel or Appellate Body repo rt. However, that time may be shorter or 
longer, depending upon the particular circumstances. (fns omitted)  
3.3.  The mandate of an arbitrator under Article 21.3(c) is therefore to determine the time period 
within which the implementing Member must comply with the recommendations and rulings of the 
DSB in the dispute at issue.
13 In making this determination, the means of implementation chosen 
by the Member concerned is a relevant consideration. As noted in past awards, " when  a Member 
must comply cannot be determined in isolation from the means used for implementation."14 
Therefore, in order "to determine when a Member must comply, it may be necessary to consider 
how a Member proposes to do so."15 Consistent with previous awards of arbitrators under 
Article 21.3(c), the implementing Member has a measure of discretion in choosing the means of implementation that it deems most appropriate. This discretion, however, "is not an 'unfettered' 
right to choose any method of implementation".
16 Rather, it is relevant to consider, in particular, 
"whether the implementing action falls within the range of permissible actions that can be taken in order to implement the DSB recommendations and rulings".
17 Thus, the chosen method of 
                                               
12 By letter dated 9 November 2015, the United States raised procedural concerns regarding certain 
portions of Viet Nam's written submis sion, and requested that I ask Viet Nam to withdraw the relevant portions 
of its submission. Having considered the factors affect ing the reasonable period of time in this dispute 
(see section 3.3 of this Award), I do not find it necess ary to take into account these portions of Viet Nam's 
submission in my determination. I therefore do not address this matter further in this Award. 
13 The parties have agreed that this Award will be de emed an arbitration award under Article 21.3(c) of 
the DSU, notwithstanding the fact that more than 90 days have expired since the DSB adopted the Panel and Appellate Body Reports on 22 April 2015 (WT/DS429/9). I recall that this arbitration was initiated on 17 September 2015. 
14 Award of the Arbitrator, US – COOL (Article 21.3(c)) , para. 68. (emphasis original) 
15 Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),  para. 26. (empha sis original) See 
also Award of the Arbitrator, US – COOL (Article 21.3(c)) , para. 68. 
16 Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)) , para. 36. 
17 Awards of the Arbitrators,  US – Stainless Steel (Mexico) (Article 21.3(c)) , para. 42; Japan – DRAMs 
(Korea) (Article 21.3(c)), para. 27. WT/DS429/12 
 
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 implementation must be capable of bringing the Member into compliance with its WTO obligations 
within a reasonable period of time, in accordance with the guideline contained in Article 21.3(c) of the DSU.
18 At the same time, it is beyond the arbitrator's mandate to determine the consistency 
with the covered agreements of the measure taken to comply. This question, should it arise, is to 
be addressed in proceedings conducted pursuant to Article 21.5 of the DSU.19  
3.4.  As regards the length of the reasonable period of time, Article 21.3(c) provides a guideline 
for the arbitrator that the period for implementati on should not exceed 15 months from the date of 
adoption of the panel or Appellate Body report. It  should be recalled that Article 21.1 of the DSU 
provides that "prompt compliance" is essential for the effective resolution of WTO disputes. Furthermore, the first clause of Article 21.3 stipulates that a "reasonable period of time" for implementation shall be available only "[i]f it is impracticable to comply immediately" with the 
recommendations and rulings of the DSB. Accordin g to the last sentence of Article 21.3(c), the 
"particular circumstances" of a dispute may affect  the length of the reasonable period of time, 
making it "shorter or longer". In principle, therefore, the reasonable period of time for 
implementation should be the shortest period possi ble within the legal system of the implementing 
Member
20, in the light of the "particular circumstances" of a dispute.  
3.5.  In considering the "particular circumstan ces" under Article 21.3(c), arbitrators in past 
disputes have found that the complexity of the im plementation process and the nature of the steps 
to be taken for implementation are relevant to the determination of the reasonable period of time.
21 It has also been held in previous arbitrat ion awards that the implementing Member must 
utilize all of the flexibilities available within it s legal system in order to implement the relevant 
recommendations and rulings of the DSB in the shortest period of time possible.22 An 
implementing Member is not, however, expected to  utilize "extraordinary procedures" to bring its 
measures into compliance.23 Finally, Article 21.2 of the DSU directs an arbitrator to pay particular 
attention to matters affecting the interests of developing country Members. 
3.6.  With regard to the burden of proof, it is well established that the implementing Member bears 
the overall burden of proving that the time period requested for implementation constitutes the 
"shortest period possible" within its legal system  to implement the recommendations and rulings of 
the DSB, and thus a "reasonable period of time".24  
3.7.  In response to questioning at the hearin g in this arbitration, both Viet Nam and the 
United States agreed that the principles set out above are relevant for the determination of the 
reasonable period of time for implementation in this dispute.25 
                                               
18 See Awards of the Arbitrators, US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.3; US 
– COOL (Article 21.3(c)), para. 69; and EC – Export Subsidies on Sugar (Article 21.3(c)) , para. 69. 
19 Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 27. 
20 See Awards of the Arbitrators,  US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.5; 
China – GOES (Article 21.3(c)) , para. 3.3; and EC – Hormones (Article 21.3(c)) , para. 26. 
21 See Awards of the Arbitrators, US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.19; 
US – Oil Country Tubular Goods Sunset Reviews (Article 21.3(c)) , para. 26; EC – Tariff Preferences 
(Article 21.3(c)) , para. 53; and EC – Bananas III (Article 21.3(c)) , para. 19. 
22 See Awards of the Arbitrators, US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.5; 
China – GOES (Article 21.3(c)) , para. 3.4; US – Stainless Steel (Mexico) (Article 21.3(c)) , para. 42; Brazil – 
Retreaded Tyres (Article 21.3(c)) , para. 48; Japan – DRAMs (Korea) (Article 21.3(c)) , para. 25; and US – 
Offset Act (Byrd Amendm ent) (Article 21.3(c)) , para. 64. 
23 See Awards of the Arbitrators, US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.5; 
China – GOES (Article 21.3(c)) , para. 3.4; US – COOL (Article 21.3(c)) , para. 70; US – Stainless Steel (Mexico) 
(Article 21.3(c)) , para. 42; Brazil – Retreaded Tyres (Article 21.3(c)) , para. 48; Japan – DRAMs (Korea) 
(Article 21.3(c)) , para. 25; and US – Offset Act (Byrd Amendment) (Article 21.3(c)) , para. 74. 
24 See Awards of the Arbitrators, US – Offset Act (Byrd Amendment) (Article 21.3(c)) , para. 44; Brazil – 
Retreaded Tyres (Article 21.3(c)) , para. 51; US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.6; 
China – GOES (Article 21.3(c)) , para 3.5; Canada – Pharmaceutical Patents (Article 21.3(c)) , para. 47; US – 
1916 Act (Article 21.3(c)) , para. 33; and  EC – Tariff Preferences (Article 21.3(c)) , para. 27. 
25 I note that, in response to questioning at the hear ing, the parties agreed that Article 21.2 of the DSU 
was not invoked in the present dispute. WT/DS429/12 
 
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  3.2  Measures to be brought into conformity 
3.8.  The dispute underlying this arbitration concerns Viet Nam's challenge of certain US laws, 
methodologies, and practices with respect to the imposition of anti-dumping duties, and certain actions and determinations by the US Departme nt of Commerce (USDOC) in the anti-dumping 
proceedings on Shrimp . The USDOC initiated the Shrimp  investigation in January 2004 and issued 
an anti-dumping order in February 2005.
26 At the time of the Panel proceedings in the present 
dispute, the USDOC had completed seven administrati ve reviews and one sunset review in which it 
determined that the revocation of the anti-dumping duty order would likely lead to the 
continuation or recurrence of dumping.27  
3.9.  In the Shrimp  proceedings, the USDOC designated Viet Nam as a non-market economy 
(NME) and applied a rebuttable presumption that all producers/exporters in Viet Nam "are 
essentially operating units of a single government-wide entity"28 and, thus, should receive a single 
anti-dumping duty rate. In the light of the larg e number of respondents involved in the original 
investigation and in each of the administrative reviews, the USDOC limited its examination and 
determined individual margins for a limited number of companies (mandatory respondents). In 
order to receive a separate rate, Vietnamese producers/exporters that were not individually examined had to pass a "separate rate test", i.e. to demonstrate sufficient independence from the 
government-wide entity. Those producers/exporters th at did not establish that they were separate 
from the government-wide entity received the "Viet Nam-wide entity rate".
29  
3.10.  Before the Panel, Viet Nam made "as such" claims with respect to: (i) the USDOC's use of 
the "simple zeroing methodology" in administrative reviews30; (ii) the USDOC's practice with 
respect to the rate that is assigned to certain producers/exporters who did not demonstrate 
sufficient independence from government control in anti-dumping proceedings involving imports from NMEs; and (iii) Section 129(c)(1) of the URAA.
31  
3.11.  Viet Nam's "as applied" claims concerned certain aspects of the USDOC's determinations in 
the fourth, fifth, and sixth administrative reviews. In particular, Viet Nam challenged: (i) the USDOC's use of the simple zeroing methodology in the calculation of the dumping margins of 
mandatory respondents; (ii) the duty rate that was assigned by the USDOC to certain Vietnamese 
producers who did not demonstrate sufficient independence from government control and thus were deemed to be part of the Viet Nam-wide en tity; and (iii) the USDOC's failure to revoke the 
anti-dumping order with respect to certain respon dent Vietnamese producers/exporters. Viet Nam 
also made claims with respect to the USDOC's likelihood-of-dumping determination in the context 
of the sunset review.
32 
3.12.  The Panel made the following findings of inconsistency: 
a. the United States acted inconsistently with  Article 9.3 of the Anti-Dumping Agreement 
and Article VI:2 of the GATT 1994 as a result of the USDOC's application of the simple zeroing methodology to calculate the dumping margins of mandatory respondents in the 
fourth, fifth, and sixth administrative reviews under the Shrimp  anti-dumping order
33; 
                                               
26 See Appellate Body Report, para. 1.2 (referring to  USDOC, Notice of Amended Final Determination of 
Sales at Less Than Fair Value and Antidumping Duty  Order: Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam, United States Federal Register , Vol. 70, No. 20 (1 February 2005) (Panel Exhibit 
VNM-5)). See also Panel Report, para. 2.4. 
27 Panel Report, para. 2.4. 
28 Panel Report, para. 2.5. 
29 See Panel Report, paras. 2.5-2.6; an d Appellate Body Report, para. 1.2. 
30 Viet Nam described the "simple ze roing methodology" as the methodology by which the USDOC, when 
calculating dumping margins on the basis of a comparison  of a weighted-average normal value to individual 
export transactions, disregards negative comparison resu lts. (Panel Report, fn 19 to para. 2.10 (referring to 
Viet Nam's first written submis sion to the Panel, para. 54)) 
31 Panel Report, para. 2.10. 
32 Panel Report, para. 2.9. 
33 Panel Report, para. 8.1.b. WT/DS429/12 
 
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 b. the practice or policy whereby, in NME proceedings, the USDOC presumes that all 
producers/exporters in the NME country belong to a single, NME-wide entity and assigns a single rate to these producers/exporters is inconsistent "as such" with the United States' obligations under Articles 6.10 and 9.2 of the Anti-Dumping Agreement
34; 
c. the United States acted inconsistently with its obligations under Articles 6.10 and 9.2 of 
the Anti-Dumping Agreement as a result of th e application by the USDOC, in the fourth, 
fifth and sixth administrative reviews under the Shrimp  anti-dumping order, of a 
rebuttable presumption that all companies in Viet Nam belong to a single, Viet Nam-wide 
entity and assignment of a single rate to that entity35; 
d. the United States acted inconsistently with Article 9.4 of the Anti-Dumping Agreement as 
a result of the application to the Viet Nam-wide entity of a duty rate exceeding the 
ceiling applicable under that provision in the fourth, fifth, and sixth administrative 
reviews under the Shrimp  anti-dumping order36; 
e. the United States acted inconsistently with  Article 11.3 of the Anti-Dumping Agreement 
as a result of the USDOC's reliance on WTO-inconsistent margins of dumping or rates in 
its likelihood-of-dumping determination in the first sunset review37; 
f. the United States acted inconsistently with  Article 11.2 of the Anti-Dumping Agreement 
in the fourth and fifth administrative reviews as a result of its treatment of requests for 
revocation made by certain Vietnamese producers/exporters that were not being individually examined
38; and 
g. the United States acted inconsistently with  Article 11.2 of the Anti-Dumping Agreement 
as a result of the USDOC's reliance on WTO-inconsistent margins of dumping in its 
determination, in the fourth administrative review, not to revoke the Shrimp  
anti-dumping order with respect to Minh Phu, and with respect to its determination, in 
the fifth administrative review, not to revoke the Shrimp  anti-dumping order with 
respect to Camimex.39 
3.13.  With regard to the remainder of Viet Nam's claims, the Panel found that: 
a. Viet Nam had failed to establish that the simple zeroing methodology as used by the 
USDOC in administrative reviews is a measure of general and prospective application that can be challenged "as such". Therefore, the Panel found that Viet Nam had not established that the USDOC's simple zeroing methodology in administrative reviews is 
inconsistent "as such" with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of 
the GATT 1994
40; 
b. Viet Nam had failed to establish the existence of a measure with respect to the manner 
in which the USDOC determines the NME-wide entity rate, in particular concerning the 
use of facts available. Therefore, the Panel found that Viet Nam had not established that 
the alleged measure is inconsistent "as such" with Articles 6.8 and 9.4, and Annex II to 
the Anti-Dumping Agreement41; 
                                               
34 Panel Report, para. 8.1.c. For purp oses of this Award, and on the basis of the parties' submissions, 
I use the phrase "NME-wide entity practice" as shorthand for the presumption subject to the Panel's "as such" finding. 
35 Panel Report, para. 8.1.d. 
36 Panel Report, para. 8.1.f. 
37 Panel Report, para. 8.1.i. 
38 Panel Report, para. 8.1.j. 
39 Panel Report, para. 8.1.k. 
40 Panel Report, para. 8.1.a. 
41 Panel Report, para. 8.1.e. WT/DS429/12 
 
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  c. Viet Nam had failed to establish that the rate applied to the Viet Nam-wide entity in the 
fourth, fifth, and sixth administrative reviews is inconsistent with Article 6.8 and Annex II to the Anti-Dumping Agreement
42; and 
d. Viet Nam had failed to establish that Section 129(c)(1) of the URAA precludes 
implementation, with respect to prior unliquidated entries, of DSB recommendations and 
rulings. Therefore, the Panel found that Viet Nam had not established that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of 
the Anti-Dumping Agreement.
43 
3.14.  Viet Nam appealed the Panel's finding that Viet Nam had failed to establish that 
Section 129(c)(1) of the URAA precludes implementa tion of recommendations and rulings of the 
DSB with respect to prior unliquidated entries, and the consequential finding that Viet Nam had not 
established that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 
18.1 of the Anti-Dumping Agreement.44 Specifically, Viet Nam claimed that the Panel acted 
inconsistently with Article 11 of the DSU because its interpretation and analysis of 
Section 129(c)(1) was not based on an objective assessment of the provision and its broader 
statutory context.45 The Appellate Body rejected Viet Nam's claim that the Panel acted 
inconsistently with Article 11 of the DSU46, and upheld the Panel's finding that Viet Nam had not 
established that Section 129(c)(1) of the URAA is inco nsistent "as such" with Articles 1, 9.2, 9.3, 
11.1, and 18.1 of the Anti-Dumping Agreement.47 The Appellate Body, therefore, made no 
recommendation to the DSB pursuant to Article 19.1 of the DSU.48 As noted, the Panel and 
Appellate Body Reports were adopted at the DSB meeting on 22 April 2015. 
3.15.  By letter dated 24 June 2015, Viet Nam notified the United States that certain Vietnamese 
producers/exporters did not intend to pursue revocation of the anti-dumping duty order in the context of the implementation of the DSB's recommendations and rulings in this dispute.
49 At the 
hearing in this arbitration, the parties agreed th at the United States need not take any further 
steps to implement the Panel's findings that the United States acted inconsistently with Article 11.2 of the Anti-Dumping Agreement with re gard to the requests for revocation made by 
these producers/exporters. 
3.16.  In the light of the above, in these arbi tration proceedings, the parties agree that the 
reasonable period of time for implementation should be determined in relation to the following six findings of inconsistency by the Panel:  
a. the United States acted inconsistently with  Article 9.3 of the Anti-Dumping Agreement 
and Article VI:2 of the GATT 1994 as a result of the USDOC's application of the simple zeroing methodology to calculate the dumping margins of mandatory respondents in the 
fourth, fifth, and sixth administrative reviews under the Shrimp  anti-dumping order
50; 
b. the practice or policy whereby, in NME proceedings, the USDOC presumes that all 
producers/exporters in the NME country belong to a single, NME-wide entity and assigns 
a single rate to these producers/exporters is inconsistent "as such" with the 
United States' obligations under Articles 6.10 and 9.2 of the Anti-Dumping Agreement51; 
                                               
42 Panel Report, para. 8.1.g. 
43 Panel Report, para. 8.1.h. 
44 Appellate Body Report, para. 1.6. 
45 Appellate Body Report, para. 2.1. 
46 Appellate Body Report, para. 5.1.a. 
47 Appellate Body Report, para. 5.1.b. 
48 Appellate Body Report, para. 5.2. 
49 See United States' submission, fn 4 to para. 3 (referring to letter dated 24 June 2015 from Viet Nam 
to the United States, regarding "Imp lementation of the Panel Report in United States – Anti-Dumping Measures 
on Certain Shrimp from Vietnam " (Exhibit USA-1)). See also letters to the USDOC, regarding "Implementation 
of DS429: Certain Frozen Warmwater Shrimp from Vietnam (Case No. A-552-802)" (Exhibit VNM-2). These companies are: Viet Nam Fish One Co ., Ltd, Nha Trang Seafoods, Phuong  Nam Foodstuff Corp, Camau Frozen 
Seafood Processing Import Export Corporation (Camimex), and Viet I-Mei Frozen Foods Co., Ltd (former 
Grobest & I-Mei Industrial (Vietnam) Co., Ltd). 
50 Panel Report, paras. 7.81 and 8.1.b. 
51 Panel Report, paras. 7.193 and 8.1.c. WT/DS429/12 
 
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 c. the United States acted inconsistently with its obligations under Articles 6.10 and 9.2 of 
the Anti-Dumping Agreement as a result of th e application by the USDOC, in the fourth, 
fifth, and sixth administ rative reviews under the Shrimp  anti-dumping order, of a 
rebuttable presumption that all companies in Viet Nam belong to a single, Viet Nam-wide 
entity and assignment of a single rate to that entity52; 
d. the United States acted inconsistently with Article 9.4 of the Anti-Dumping Agreement as 
a result of the application to the Viet Nam-wide entity of a duty rate exceeding the 
ceiling applicable under that provision in the fourth, fifth, and sixth administrative 
reviews under the Shrimp  anti-dumping order53; 
e. the United States acted inconsistently with  Article 11.3 of the Anti-Dumping Agreement 
as a result of the USDOC's reliance on WTO-inconsistent margins of dumping or rates in 
its likelihood-of-dumping determination in the first sunset review54; and 
f. the United States acted inconsistently with  Article 11.2 of the Anti-Dumping Agreement 
as a result of the USDOC's reliance on WTO-inconsistent margins of dumping in its 
determination, in the fourth administrative review, not to revoke the Shrimp  
anti-dumping order with respect to Minh Phu.55 
3.3  Factors affecting the determinatio n of the reasonable period of time 
3.17.  The United States submits that the reason able period of time for implementing the DSB's 
recommendations and rulings in the present dispute should be "at least 21 months".56 The 
United States argues that this is the shortest period of time in which it would be possible to implement the recommendations and rulings of the DSB, "[g]iven the number of modifications to 
the challenged measures, including the procedural requirements under U.S. law, the complexity of 
the issues involved, and the current resource demands and constraints on the [USDOC]".
57 
Viet Nam contends that the time period requested by the United States is "extraordinarily long", 
and that there is no basis for a reasonable period of time longer than six months in this dispute. 58 
In Viet Nam's view, the United States has flexibilities under US law to implement the recommendations and rulings of the DSB in a manner  consistent with Articles 21.1 and 21.3(c) of 
the DSU. 
3.18.  This section begins by providing an over view of the means and steps of implementation 
chosen by the United States. Thereafter, I turn  to analyse the parties' specific arguments 
concerning the factors relevant for the determination of the reasonable period of time to 
implement the DSB's recommendations and rulings in this dispute. 
3.3.1  Overview of the chosen means of implementation  3.19.  The United States claims that "the most practical way under U.S. law" is to implement the 
Panel's findings
59 in three, sequential phases, utilizing both Section 123(g)60 and Section 129(b)61 
of the URAA.62 The United States submits that, under US law, Section 123(g) of the URAA is often 
used to amend or modify an agency regulation or  practice, while Section 129 of the URAA is often 
used to amend or modify an action taken in a particular proceeding.63 
                                               
52 Panel Report, paras. 7.208 and 8.1.d. 
53 Panel Report, paras. 7.223 and 8.1.f. 
54 Panel Report, paras. 7.320 and 8.1.i. 
55 Panel Report, paras. 7.396 and 8.1.k. 
56 United States' submission, para. 7. 
57 United States' submission, para. 8. 
58 Viet Nam's submission, paras. 12-14. 
59 The United States indicates that it is implementing the DSB's recommendations and rulings with 
respect to six matters. (United States' submission, para. 3. See also supra,  para. 3.16) 
60 Codified under United States Code , Title 19, Section 3533(g) (Exhibit USA-2). 
61 Codified under United States Code , Title 19, Section 3538(b) (Exhibit USA-3). 
62 United States' subm ission, paras. 4-5. 
63 United States' submission, fn 7 to para. 4. WT/DS429/12 
 
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  3.20.  The United States submits that, in Phase I64, the United States will employ Section 123(g) 
to address the Panel's finding that the presumption that all producers and exporters in Viet Nam belong to a single, Viet Nam-wide entity is inconsistent with the Anti-Dumping Agreement.
65 
Phase II66 and Phase III67 will both be conducted in accordance with Section 129(b) of the URAA. 
In Phase II, the United States will address the Panel's "as applied" findings regarding the 
NME-wide entity practice in the fourth, fifth, an d sixth administrative reviews and the use of the 
simple zeroing methodology to calculate the dumping margins of mandatory respondents in these 
reviews.68 In this phase, the United States will also address the Panel's finding regarding Minh 
Phu's revocation request in the fourth administrative review.69 Finally, in Phase III, the United 
States will implement the Panel's finding regarding the USDOC's reliance on WTO-inconsistent margins of dumping in the first sunset review.
70 As further explained below71, the United States 
emphasizes that Phase I must be completed before  Phase II, but anticipates a degree of overlap 
between these two phases. 
3.21.  With regard to the overall time frame, th e United States contends that both Section 123 and 
Section 129 provide for a multi-step implementation process, and it will take at least 21 months to 
complete the entire process. The United States  submits a proposed timetable of approximately 
21 months (US Case Calendar) to describe in detail the steps and relevant time frames in the 
implementation process.72 According to the US Case Calendar, the Section 123 process in Phase I 
will take 13 months, from April 2015 to May 2016. The Section 129 proceedings in Phase II will commence by January 2016 at the latest, and the final determinations will be issued by October 2016. The Section 129 proceeding regarding the sunset review in Phase III will begin in October 
2016, and the final determination will be issued in  December 2016. Finally, in January 2017, the 
US Trade Representative (USTR) will direct the USDOC to implement the final Section 129 determinations, and the USDOC will issue a Federal Register notice in which it will officially 
implement the final Section 129 determinations. 
3.22.  For its part, Viet Nam contends that the United States' chosen means of implementation has 
"shortcomings".
73 Viet Nam highlights that Section 129 determinations apply only "to unliquidated 
entries of the subject merchandise … that are ente red, or withdrawn from warehouse … on or after 
… the date on which the [USTR] directs the administering authority under subsection (b)(4) [of Section 129] to implement that determination".
74 In Viet Nam's view, the Panel's findings, to the 
extent they concern such unliquidated entrie s, cannot be implemented by the means of 
implementation proposed by the United States. Vi et Nam further submits that the United States 
has ignored the possibility of achieving "almost im mediate implementation" by negotiating a trade 
agreement with Viet Nam, as it did in the softw ood lumber dispute between the United States and 
Canada.75 At the hearing, the United States reiterated that the implementing Member has 
discretion in choosing the means of implementa tion, and expressed the view that the means 
proposed by the United States is appropriate for implementing the DSB's recommendations and 
rulings in this dispute. The United States further noted that the negotiations in the US-Canada 
softwood lumber dispute took well over 21 months. Viet Nam reiterated its position that full compliance in respect of unliquidated entries canno t be achieved by the means proposed by the 
United States. 
3.23.  Viet Nam further submits that, even if Sections 123 and 129 are the only mechanisms for 
implementation in this dispute, the time frame pr oposed by the United States is "extraordinarily 
long"
76, and that "there is no basis for a longer period than 6 months for implementation" of the 
                                               
64 Phase I – Implementation to Address As-Such Finding on Vietnam-wide Entity. (United States' 
submission, para. 5) 
65 United States' submission , paras. 4-5. See also Panel Report, para. 8.1.c. 
66 Phase II – Implementation to A ddress As-Applied Findings with re spect to Three Administrative 
Reviews and Consideration of Request for Company-Specif ic Revocation. (United States' submission, para. 5) 
67 Phase III – Reconsideration in the Five-Year Sunset Review. (United States' submission, para. 5) 
68 United States' submission, paras.  4-5. See also Panel Report, paras. 8.1.b, 8.1.d, and 8.1.f. 
69 United States' submission , paras. 4-5. See also Panel Report, para. 8.1.k. 
70 United States' submission , paras. 4-5. See also Panel Report, para. 8.1.i. 
71 See section 3.3.2.1 of this Award. 
72 See table entitled "DS429 – Approximate 21 Month Case Calendar" at United States' submission, 
para. 41. 
73 Viet Nam's submission, para. 26. 
74 Viet Nam's submission, para. 26 (quoting Section 129(c)(1) of the URAA). 
75 Viet Nam's submission, paras. 13 and 27. 
76 Viet Nam's submission, para. 15. WT/DS429/12 
 
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 DSB's findings and recommendations.77 Viet Nam maintains that neither Section 123 nor 
Section 129 prescribes minimum time periods for completing the overall process. According to Viet Nam, the Section 123 process can be completed in 60 days. At the hearing, Viet Nam further clarified that, in its view, the Section 129 determinations regarding both the administrative reviews 
and the sunset review at issue can be completed within a period of four to six months.
78 Moreover, 
although Viet Nam agreed in principle that the implementation of the Panel's "as such" and "as applied" findings will need to be conducted se quentially, it contended that the US legal system 
would allow for a greater degree of overlap be tween the different phases proposed by the 
United States.  
3.3.2  Analysis 3.24.  I recall that it is within my mandate to determine the reasonable period of time for the 
United States to implement the DSB's recommendations and rulings in this dispute. It has been 
well established that the implementing Member has a measure of discretion in choosing the means 
of implementation it deems most appropriat e. At the same time, the chosen means of 
implementation must be capable of bringing the Member into compliance with its WTO obligations 
within a reasonable period of time, in accordance with the guideline contained in Article 21.3(c) of the DSU. Moreover, the implementing Member is ex pected to use the flexibilities within its legal 
system to achieve the shortest period of time  possible for implementation. In determining the 
reasonable period of time, I should take into account the particular circumstances of the dispute, including the complexity of the implementation pr ocess and the nature of the steps to be taken. 
With these considerations in mind, I turn now to review the relevant factors for determining the 
reasonable period of time in this dispute in the light of the parties' arguments. 
3.3.2.1  Sequence of the implementation process 3.25.  The United States submits that the three phases of implementation are to be conducted 
sequentially, while noting a degree of overlap between the first two phases. According to the 
United States, while preparing a preliminary determination under Section 123(g) of the URAA, the USDOC will begin working on the implementation of the Panel's findings regarding the use of the 
simple zeroing methodology and Minh Phu's revoca tion request. Thus, with respect to these 
findings, there will be an overlap between the en d of Phase I and the beginning of Phase II. The 
United States emphasizes, however, that Phase II cannot be completed prior to the final determination under the Section 123 process in Phas e I. This is because the USDOC will need to 
incorporate any modification to the NME-wide entity practice into the Section 129 determinations 
on the administrative reviews. Specifically, the United States submits that the revised manner in 
which the United States treats the NME-wide enti ty may affect the USDOC's decisions as to which 
entities should receive individual margins in the administrative reviews at issue.
79 In Phase III, the 
United States will implement the Panel's finding regarding the sunset review, and will likely take 
into account the determinations made in Phase II on the administrative reviews.80 
3.26.  In response to questioning at the hearing, Viet Nam acknowledged that the United States' 
implementation of the Panel's "as such" finding regarding the NME-wide entity practice would in principle precede the implementation of the "as applied" findings. Nonetheless, Viet Nam considered that the flexibilities under US law would allow for a greater degree of overlap among 
the different phases of implementation proposed by the United States. Specifically, Section 129 
determinations regarding the recalculation of anti-dumping duty rates and the review of 
Minh Phu's revocation request can be completed concurrently with the Section 123 process. 
Moreover, the Section 129 proceeding regarding the Panel's finding on the sunset review can begin 
before the completion of the Section 129 proceedings on the other findings.
81 
3.27.  Overall, the sequence of the implementati on steps proposed by the United States appears 
reasonable in the context of the US legal system . Given that any modification to the NME-wide 
entity practice would need to be incorporated in the implementation of the Panel's "as applied" 
                                               
77 Viet Nam's submission, para. 12. 
78 See also Viet Nam's submission, paras. 19-31; and "Vietnam's Proposed RPT with Sequencing" 
(Viet Nam's proposed timetable) (Exhibit VNM-8). 
79 United States' submission, para. 19. 
80 United States' submission, para. 20. 
81 See also Viet Nam's submission, paras. 19-25; and Viet Nam's proposed timetable (Exhibit VNM-8). WT/DS429/12 
 
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  findings in the fourth, fifth, and sixth administrative reviews, it is logical that the implementation 
of the Panel's "as such" finding on the practice will need to be completed first. Furthermore, 
because the results of the Section 129 determinations on the administrative reviews may be considered for purposes of making a sunset re view determination, it also seems logical to 
complete the implementation of the finding concerning the first sunset review in the last phase.  
3.28.  In addition, I note that there will be a degree of overlap between  Phase I and Phase II of 
the implementation process proposed by the Unit ed States. As the United States confirms, the 
work on the implementation of the findings concerning the application of the simple zeroing 
methodology and Minh Phu's revocation request may take place concurrently with the work on the 
implementation of the "as such" finding concerning the NME-wide entity practice. Viet Nam's argument as to the degree of overlap that can be achieved will be further addressed in my analysis 
below.
82 
3.3.2.2  The process under Section 123(g) of the URAA 3.29.  In order to implement the Panel's "as such" finding regarding the NME-wide entity practice, 
the United States intends to utilize the process set out in Section 123(g) of the URAA. 
Section 123(g) of the URAA reads: 
(g) REQUIREMENTS FOR AGENCY ACTION.—  
(1) CHANGES IN AGENCY REGULATIONS OR PRACTICE.—In any case in which a 
dispute settlement panel or the Appellate Body finds in its report that a regulation or practice of a department or agency of the United States is inconsistent with any of the Uruguay Round Agreements, that regulation or practice may not be amended, 
rescinded, or otherwise modified in the implementation of such report unless and 
until—  
(A) the appropriate congressional committees have been consulted under subsection 
(f); 
(B) the Trade Representative has sought advice regarding the modification from 
relevant private sector advisory committees established under section 135 of the 
Trade Act of 1974 (19 U.S.C. 2155);  
(C) the head of the relevant department or agency has provided an opportunity for 
public comment by publishing in the Federa l Register the proposed modification and 
the explanation for the modification;  
(D) the Trade Representative has submitted to the appropriate congressional 
committees a report describing the proposed modification, the reasons for the modification, and a summary of the advice  obtained under subparagraph (B) with 
respect to the modification; 
(E) the Trade Representative and the head of  the relevant department or agency have 
consulted with the appropriate congressional committees on the proposed contents of 
the final rule or other modification; and  
(F) the final rule or other modification has been published in the Federal Register. 
3.30.  The United States estimates that the Section 123(g) process to implement the Panel's 
"as such" finding will take "no less than 12 months".
83 Viet Nam submits that "[t]here is no legal 
reason requiring significant time to adopt the change  in practice", and that this can be done in 60 
days.84 The parties' arguments focus on the time needed for the preparatory stage of the 
Section 123 process, the need for soliciting and analysing public comments before changing the 
                                               
82 See section 3.3.2.3 of this Award. 
83 United States' submission, para. 25. 
84 Viet Nam's submission, para. 20; Viet Na m's proposed timetable (Exhibit VNM-8). WT/DS429/12 
 
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 practice, and, as a result, the overall time fram e for completing the Section 123(g) process. The 
analysis below addresses each of these points of contention in turn.  
3.31.  At the outset, the United States emphasizes that this is the first time the USDOC's 
NME-wide entity practice was found to be inconsistent "as such" with the WTO covered 
agreements. As a result, implementation will involve considerations of "novel and multifaceted 
issues" about the relationship between an NME Member government and producers/exporters from that Member.
85 The United States submits that, as the first step in the Section 123(g) process, 
Sections 123(g)(1)(A) and (B) require the USTR to consult with appropriate congressional 
committees and seek advice from relevant private sector advisory committees regarding the implementation of the Panel's "as such" findin g. According to the US Case Calendar, the 
consultations and pre-commencement analysis stage takes two to three months. Thereafter, the 
United States estimates that the preparation for the preliminary determination proposing any 
modification to the NME-wide entity practice will take 7-8 months, until January 2016.
86 In 
response to questioning at the hearing, the Un ited States confirmed that the USTR had been 
engaged in consultations with the US Congress, and that the preparatory work with a view to 
implementing the Panel's "as such" finding was still under way.  
3.32.  Viet Nam contends that the United States  has "prolonged" implementation by failing to 
"promptly commence compliance … and continue concrete steps towards implementation".87 In 
response to questioning at the hearing, Viet Nam noted that the United States would have been aware of its potential obligation to implement the Panel's findings when it decided not to appeal the Panel's findings in January 2015. Thus, it would be reasonable to expect that the consultations 
required under Section 123(g) would have been completed upon, or shortly after, the adoption of 
the Panel and Appellate Body Reports in this dispute.  
3.33.  I recall that Article 21.3(c) of the DSU makes clear that formal implementation steps need 
to be taken as of the adoption of the panel or Appellate Body report. In determining the 
reasonable period of time, arbitrators in past disputes have taken into account whether the implementing Member had taken action since the adoption of the DSB's recommendations and 
rulings.
88 In this regard, arbitrators in past disput e s  h a v e  f o u n d  t h a t  p r e p a r a t o r y  w o r k  c a n  b e  
relevant in determining the reasonable period of time.89 At the same time, it is worth noting that, 
in the present dispute, the United States did not appeal any of the Panel's findings. I note that seven months have passed since the adoption of the Panel and Appellate Body Reports in this 
dispute and, as such, it would be reasonable  t o  a s s u m e  t h a t  p r e p a r a t o r y  w o r k  o f  t h e  
implementation process under Section 123(g) had already commenced. In this respect, I note that, pursuant to Section 123(f)(3) of the URAA, "promptly after the circulation" of a panel or 
Appellate Body report, the USTR shall consult with  the appropriate congressional committees as to 
the manner of implementation of the report.
90 At the hearing, the United States confirmed that 
consultations regarding the implementation of the Panel's "as such" finding had occurred and that 
other preparatory work relating to implementation had also been undertaken.  
3.34.  Turning to the next step in the process, the United States notes that Section 123(g)(1)(C) 
of the URAA requires the USDOC to provide an op portunity for public comment by publishing a 
proposed modification to an agency regulation or practice. The United States contends that 
implementing the Panel's "as such" finding will involve "novel and multifaceted issues".91 The 
United States considers it likely that, after issuing its preliminary determination, the USDOC will 
                                               
85 United States' submission, para. 15. 
86 US Case Calendar. 
87 Viet Nam's submission, para. 11. 
88 See Awards of the Arbitrators,  US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.44; 
and US – Section 110(5) Copyright Act (Article 21.3(c)) , para. 46. 
89 See e.g. Awards of the Arbitrators, US – COOL (Article 21.3(c)) , para. 83; and China – GOES 
(Article 21.3(c)) , para. 3.37. 
90 Subsection (f) of Section 123 of the URAA provides: 
Promptly after the circulation of a report of a pa nel or of the Appellate Body to WTO members in a 
proceeding described in subsection (d), the Trade Representative shall— (1) notify the appropriate congressional committees of the report; (2) in the case of a report of a panel, consult with the 
appropriate congressional committees  concerning the nature of any appeal that may be taken of the 
report; and (3) if the report is adverse to the Unit ed States, consult with the appropriate congressional 
committees concerning whether to implement the repo rt's recommendation and, if so, the manner of 
such implementation and the period of time needed for such implementation. 
91 United States' submission, para. 15. WT/DS429/12 
 
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  receive "hundreds of pages of comments from the pu blic and will have to prepare a lengthy final 
Section 123 determination addressing these comments".92 The United States estimates that it will 
take the USDOC around two months to solicit and analyse such comments.  
3.35.  Viet Nam takes issue with the alleged comp lexity of the implementation of the "as such" 
finding regarding the NME-wide entity practice. In particular, Viet Nam notes that the practice 
regarding the NME-wide entity "is not required" by US law, "and has arisen only out of a consistent practice".
93 For Viet Nam, "implementation is not complex since it only involves the adoption of a 
practice which does not assign anti-dumping duty rates to the so-called country-wide entity in 
excess of the weighted average margins of the individually examined respondents."94 Viet Nam 
adds that, "in a much more complicated situation" in a prior dispute, the United States concluded the process under Section 123(g) within a much sh orter time frame than that proposed in this 
dispute.
95 
3.36.  I recall that the Panel's "as such" finding concerns "[t]he practice or policy whereby, in NME 
proceedings, the USDOC presumes that all produc ers/exporters in the NME country belong to a 
single, NME-wide, entity and assigns a single rate to these producers/exporters".96 Thus, the 
implementation of the Panel's "as such" finding is not necessarily limited to the assignment of a single anti-dumping duty rate, but may encompass a change to the USDOC's presumption that 
producers/exporters from an NME country belong to a single, NME-wide entity. It cannot be 
excluded that any proposed modification of the NME-wide entity practice, once published, could 
trigger multiple views from the public that the USDOC will need to address in the final 
determination. At the same time, there must be  a proper balance between the transparency and 
due process rights of interested parties, on  the one hand, and the promptness required in 
implementing recommendations and rulings of the DSB, on the other hand.
97 
3.37.  As regards the overall time frame, I recall the United States' estimate that the completion of 
the entire Section 123(g) process will take "no less than 12 months".98 As described above, this 
process will start with the consultations an d pre-commencement stage, followed by the 
preparation and issuance of the preliminary dete rmination. Thereafter, as the United States 
explains, there are several remaining steps in th e process, the majority of which are mandated 
under Sections 123(g)(1)(D), (E) and (F).99 Viet Nam reiterates that Section 123(g)(1) does not 
prescribe any time-limit for the steps listed therein. At the oral hearing, the United States noted that, in the EC – Fasteners (China)  dispute, it took the European Union approximately 11 months 
to implement the findings that were similarly concerned with the treatment of producers/exporters 
from NME Members in anti-dumping proceedings. Therefore, the United States alleged that it 
would be reasonable to expect that the United States would need a similar amount of time for 
implementing the Panel's "as such" finding in the present dispute.  
3.38.  I note that the steps set out under Section 123(g)(1) are mandatory and must be complied 
with, although no specific time periods are prescribed for these steps. I also note that 
Section 123(g) has been utilized by the United States in a number of prior disputes for purposes of 
implementing the DSB's recommendations and ru lings, and that, on some occasions, the 
United States indicated that a period of seven to  nine months would be sufficient to complete the 
                                               
92 United States' submission, para. 24. 
93 Viet Nam's submission, para. 20. 
94 Viet Nam's submission, para. 20. 
95 Viet Nam's submission, fn 9 to para. 20. Viet Nam submitted the Section 123 determination in the 
dispute in US – Certain EC Products  and alleged that the Section 123 proceedings in that dispute were 
completed in 92 days. (USDOC, Notice of Final Modification of Agency Practice Under Section 123 of the Uruguay Round Agreements Act, Modification of  agency practice regarding privatization, United States Federal 
Register , Vol. 68, No. 120 (23 June 2003), pp. 37125-37138 (Exhibit VNM-4)) According to that determination, 
the Section 123 process took 166 days, from the adoption of the panel and Appellate Body reports to the publication of the final determination. 
96 Panel Report, para. 8.1.c. 
97 Award of the Arbitrator, Japan – DRAMS (Korea) (Article 21.3(c)) , para. 51. 
98 United States' submission, para. 25. 
99 These remaining steps are: (i) the USTR submits a report to the congressional committees on the 
proposed modification and a summary of advice rece ived from the private sector advisory committees, 
pursuant to Section 123(g)(1)(D); (ii) the USTR an d USDOC consult with the congressional committees 
regarding the content of the final rule, pursuant to Se ction 123(g)(1)(E); (iii) the USTR instructs the USDOC to 
implement the Section 123 final determination; and (iv) publication of the final determination pursuant to 
Section 123(g)(1)(F). (See United States' subm ission, para. 25; and US Case Calendar) WT/DS429/12 
 
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 Section 123(g) process.100 Finally, I note that the findings in the EC – Fasteners (China)  dispute 
concerned a different measure taken by another WTO Member, and the implementation of those findings was conducted in a different legal system. I therefore do not find the alleged implementation period in EC – Fasteners (China)  to be relevant to my determination of the 
reasonable period of time in the present dispute. 
3.3.2.3   The process under Section 129(b) of the URAA 3.39.  As noted above, the United States plans to utilize Section 129(b) of the URAA to conduct 
Phase II and Phase III of its implementation proce ss. In Phase II, The United States intends to 
implement the Panel's findings regarding the four th, fifth, and sixth ad ministrative reviews, 
including: (i) the use of the simple zeroing methodology to calculate the dumping margins of mandatory respondents in these reviews
101; (ii) the application of the NME-wide entity practice 
and the assignment of a duty rate exceeding th e ceiling applicable under Article 9.4 of the 
Anti-Dumping Agreement in these reviews102; and (iii) the treatment of Minh Phu's revocation 
request in the fourth administrative review.103 In Phase III, the United States plans to implement 
the Panel's finding concerning the first sunset review.104 
3.40.  Section 129(b) of the URAA provides: 
(b) ACTION BY ADMINISTERING AUTHORITY.—  
(1) CONSULTATIONS WITH ADMINISTERING AUTHORITY AND CONGRESSIONAL 
COMMITTEES.—Promptly after a report by a dispute settlement panel or the Appellate Body is issued that contains findings that an action by the administering authority in a proceeding under title VII of the Tariff Act of 1930 is not in conformity 
with the obligations of the United States under the Antidumping Agreement or the 
Agreement on Subsidies and Countervailing Measures, the Trade Representative shall 
consult with the administering authority and the congressional committees on the 
matter.  
(2) DETERMINATION BY ADMINISTERING AUTHORITY.—Notwithstanding any 
provision of the Tariff Act of 1930, the admi nistering authority shall, within 180 days 
after receipt of a written request from the Trade Representative, issue a determination 
in connection with the particular proceeding that would render the administering authority's action described in paragraph (1) not inconsistent with the findings of the panel or the Appellate Body.  
(3) CONSULTATIONS BEFORE IMPLEMENTATION.—Before the administering authority 
implements any determination under paragraph (2), the Trade Representative shall consult with the administering authority and the congressional committees with 
respect to such determination.  
(4) IMPLEMENTATION OF DETERMINATION.—The Trade Representative may, after 
consulting with the administering authority and the congressional committees under 
paragraph (3), direct the administering auth ority to implement, in whole or in part, 
the determination made under paragraph (2). 
                                               
100 See Awards of the Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)) , para. 56; and US – Oil 
Country Tubular Goods Sunset  Review (Article 21.3(c)) , para. 7. 
101 Panel Report, para. 8.1.b. 
102 Panel Report, paras. 8.1.d and 8.1.f. 
103 Panel Report, para. 8.1.k. 
104 Panel Report, para. 8.1.i. WT/DS429/12 
 
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  3.41.  In addition, the United States notes th at, pursuant to Section 129(d) of the URAA, the 
USDOC is required to provide interested parties with an opportunity to submit written comments before issuing a final determination.
105  
3.42.  Both parties agree that, under Sections 129(b) and (d) of the URAA, the following five steps 
are required to implement the Panel's relevant fi ndings: (i) the USTR consults with the USDOC and 
the relevant congressional committees; (ii) the USTR requests the USDOC to take implementation action; (iii) the USDOC issues preliminary dete rminations and provides an opportunity for 
interested parties to comment; (iv) the USTR consults with the USDOC and the relevant 
congressional committees with regard to the USDOC's determinations; and (v) the USTR directs the USDOC to implement the determinations, as we ll as the issuance of a US Federal Register 
notice in which the USDOC officially implements the determinations.
106 The parties' views diverge 
significantly, however, with respect to the time n eeded for these steps, and the need for additional 
information-gathering in the Section 129 proceedi ngs. The parties also disagree as to whether 
there could be a greater degree of overlap among certain steps in the implementation process, so 
that the overall time frame for the Section 129 proc eedings could be further reduced. Finally, the 
parties disagree as to whether the current workload of the USDOC should be a relevant consideration.
107 I turn now to review each of these points of contention. 
3.43.  First, with respect to the time needed for various steps in the Section 129 proceedings, the 
US Case Calendar indicates that, by January 2016 at the latest, the USDOC will begin its work to implement the Panel's findings on the use of the simple zeroing methodology and Minh Phu's revocation request in the administrative reviews at issue. The United States emphasizes that the 
Panel's findings regarding the application of the NME-wide entity practice in the administrative 
reviews cannot be implemented before the completion of the Section 123(g) process. Moreover, it will take at least three months to draft the preliminary Section 129 determinations to address the 
Panel's findings regarding the use of the simple zeroing methodology and to apply any change to 
the NME-wide entity practice in the three administrative reviews. It will also take at least three months to draft the preliminary Section 129 determination regarding Minh Phu's revocation 
request.
108 The United States anticipates that the preliminary Section 129 determinations covering 
the three administrative reviews will be issued by June 2016.109 
3.44.  The United States submits that, subsequently, it will take approximately three months for 
the USDOC to provide the interested parties an opportunity to comment, in accordance with 
Section 129(d) of the URAA110, and to hold hearings if requested. It will then take an additional 
two-month period for the USDOC to analyse the comments received, issue the final determinations, and correct any ministerial errors identified by interested parties. The 
United States estimates, therefore, that it will issue the final Section 129 determinations on the 
three administrative reviews by October 2016.
111 The United States further submits that the 
USDOC expects to issue a preliminary Section 129 determination regarding the sunset review close 
in time to its final Section 129 determinations on the administrative reviews. Thereafter, the 
USDOC will need approximately one month in which to receive comments from interested parties and conduct a hearing if requested, and an additional month to prepare and issue a final sunset review determination.
112 Finally, after conducting consultations with the USDOC and relevant 
congressional committees, in January 2017, the USTR will direct the USDOC to implement the final 
                                               
105 United States' submission, para. 29 and fn 25 thereto. Section 129(d) provides:  
Prior to issuing a determination under [Secti on 129], the administering authority or the 
Commission, as the case may be, shall provide inte rested parties with an opportunity to submit 
written comments and, in appropriate cases, may hold a hearing, with respect to the 
determination. 
106 United States' submission, paras. 27 and 29-40; Vi et Nam's submission, para. 29; parties' responses 
to questioning at the hearing. 
107 I note that the United States' arguments regardin g the USDOC's workload are also applicable to the 
Section 123 process. (United States' submission, paras. 42-45) I address the parties' arguments relating to the USDOC's workload in this section of the Award. 
108 United States' submis sion, paras. 30-31. 
109 US Case Calendar. 
110 See supra,  fn 105. 
111 United States' submission, para s. 32-34; US Case Calendar. 
112 United States' submis sion, paras. 37-38. WT/DS429/12 
 
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 Section 129 determinations, and the USDOC will issue a Federal Register notice in which it 
officially implements the final Section 129 determinations.113  
3.45.  Viet Nam maintain s that Section 129(b)(2) of the URAA requires that the determination by 
the USDOC to implement the Panel's findings be made "within 180 days" from the USTR's request 
to the USDOC to take implementing actions.114 At the hearing, Viet Nam acknowledged that there 
are other steps before and after this 180-day period, but characterized them as "ministerial" steps that should not take much time. In Viet Nam's view, the substantive work for Section 129 
proceedings should take place within the 180-day period. In this respect, Viet Nam takes issue 
with the time requested by the United States for correcting ministerial errors and for the USTR to conduct consultations regarding the final determinations. According to Viet Nam, in most cases, the effect of ministerial errors is very limited, and a period of several days would be sufficient to 
address them.
115 In the same vein, Viet Nam contends that the USTR consultations regarding the 
final determinations "in fact occur in a single day".116 Finally, Viet Nam argues that the time frame 
proposed by the United States is "extraordinary an d inappropriate", in the light of the duration of 
Section 129 proceedings in some other disputes.117  
3.46.  According to the text of Section 129(b)(2) of the URAA, the period of 180 days specified in 
that provision refers only to the period within wh ich, following the receipt of a written request from 
the USTR, the USDOC must issue a determination implementing the recommendations and rulings 
of the DSB. In addition to this step, Sections 129(b)(1), (3), and (4) set out other actions involving the USTR, the USDOC, and the US Congress that have to be completed both before and after the step contemplated in Section 129(b)(2). It is thus clear that the 180-day time period 
specified in Section 129(b)(2) is not the maximu m amount of time for the USDOC to issue a 
determination implementing the recommendations and rulings of the DSB in every case.
118 I 
further note that both parties have provided evidence regarding the time periods for implementing 
the DSB's recommendations and rulings in certain disputes pursuant to Section 129(b) of the 
URAA.119 Such evidence shows that the duration of Section 129 proceedings varies from case to 
case, and that the period from the adoption of  the panel or Appellate Body report to the 
publication of the final Section 129 determination ma y also be in practice longer than 180 days.  
3.47.  Second, the parties disagree as to whether, during the Section 129 proceedings, the USDOC 
may need to gather additional information for: (i) calculating the anti-dumping duty rates in the administrative reviews at issue; (ii) reviewing Minh Phu's revocation request; and (iii) the first 
sunset review. At the hearing, the United States emphasized that, because any modification of the 
USDOC's NME-wide entity practice could potentially affect the USDOC's decision as to which entities may receive individual dumping margins, it would be difficult to prejudge which 
information might be needed for calculating the duty rates. Furthermore, with respect to Minh 
Phu's revocation request, the United States maintains that the USDOC will need to review data covering three periods of review, and may need to collect additional information, conduct on-site 
verifications, and allow time for interested parties to file responses.
120  
3.48.  Viet Nam contends that it is "a matter of simple calculation" to implement the Panel's 
findings on the use of the simple zeroing methodology and the assignment of the Viet Nam-wide duty rate in the administrative reviews at issue.
121 Specifically, it involves "altering a few lines of 
computer code" in the program for calculating margins and recalculating margins using the altered 
                                               
113 United States' submission, paras. 35-36 and 39-40; US Case Calendar. 
114 Viet Nam's submission, para. 30. 
115 Viet Nam's response to qu estioning at the hearing. 
116 Viet Nam's submission, para. 31. 
117 Viet Nam's submission, para. 32. 
118 See also Award of the Arbitrator, US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.41. 
119 Viet Nam's submission, para. 32; Un ited States' oral statement at the hearing. I note that the parties 
submitted different figures for the dura tion of proceedings in the same disputes. Upon closer examination, it 
appears that, at least in  some cases, the differences arose ma inly from the fact that, whereas the 
United States counted the time peri ods from the adoption of the panel and Appellate Body reports to the 
publication of the final Section 129 determinations, Viet Nam focused on the time periods between the 
initiation of the Section 129 proceedings to the publication of the final determinations. 
120 United States' submission, para. 31. 
121 Viet Nam's submission, para. 22. WT/DS429/12 
 
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  program, and no additional information is required for this process.122 With regard to Minh Phu's 
revocation request, Viet Nam maintains that, according to the relevant practice, the USDOC should "automatically revoke" the anti-dumping duty because Minh Phu has demonstrated the absence of any margins of dumping in three consecutive reviews.
123 As regards the sunset review, Viet Nam 
argues that the need for any new information is also "minimal".124 
3.49.   As noted above, both parties agree that the United States will implement the Panel's 
"as such" finding regarding the NME-wide entity practice before implementing the Panel's 
"as applied" findings regarding this practice. I recall that the NME-wide entity practice concerns the 
USDOC's approach in addressing the relation ship between the NME Member government and 
producers/exporters from that Member. It cannot be excluded that, following implementation of 
the "as such" finding, the USDOC may need to gather more information regarding individual 
producers/exporters from Viet Nam in the administrative reviews. I also note the United States' 
argument at the hearing that, pursuant to the applicable regulation125, the USDOC must evaluate 
two other criteria in examining Minh Phu's revocation request in addition to the existence or 
absence of dumping in three consecutive reviews,  and the need for additional information cannot 
be excluded. At the same time, once relevant additional information is gathered, it appears that changing the computer program for recalculating dumping margins might not necessarily be 
time-consuming in itself . Finally, I recall that there must be a balance between the transparency 
and due process rights of interested parties, on the one hand, and the promptness required in 
implementing recommendations and rulings of the DSB, on the other hand.
126 
3.50.  Third, regarding the degree of overlap amon g certain steps, Viet Nam argued at the hearing 
that the USDOC's review of Minh Phu's revocation request would not depend on the 
implementation of the other findings made by the Panel. Thus, the USDOC could speed up the process by issuing a separate Section 129 determ ination on the revocation request while the 
Section 123(g) process is ongoing, thereby achiev ing compliance with regard to the revocation 
request earlier. In addition, Viet Nam contended th at certain aspects of the sunset review, such as 
                                               
122 Viet Nam's submission, para. 22. On the basis of  an affidavit from a specialist familiar with the 
USDOC computer programs for calculating dumping marg ins, Viet Nam claims that recalculation of the 
dumping margins for purposes of implementing the Panel' s above findings can be completed within five hours. 
(Viet Nam's submission, para. 22 (referring to A ffidavit of Paul M. Casas, dated 21 October 2015 
(Exhibit VNM-3), p. 3)) 
123 Viet Nam's submission, para. 23.  In support of its argument, Viet Nam su bmitted the Federal 
Register notice promulgating Section 351.222 of the USDOC Regulations that, according to Viet Nam, provided the authority to revoke anti-dumping duties for indi vidual companies based on the absence of dumping. 
(USDOC, Amended Regulation Concerni ng the Revocation of Antidumping and Countervailing Duty Orders, 
Final Rule, United States Federal Register , Vol. 64, No. 183 (22 September 1999), pp. 51236-51240 
(Exhibit VNM-6)) In addition, Viet Na m submitted a Federal Register notice revoking anti-dumping duties for a 
company in an administrative review conducted purs uant to Section 351.222 of the USDOC Regulations in 
2002. (USDOC, Notice of Final Results of Antidumping Duty  Administrative Review, Rescission of Administrative 
Review in Part, and Final Determination to Revoke Order in Part: Canned Pine apple Fruit from Thailand, 
United States Federal Register , Vol. 67, No. 240 (13 December 2002), pp. 76718-76720 (Exhibit VNM-7)) 
124 Viet Nam's submission, para. 24. 
125 The United States explained that, for purposes of implementing the Panel's finding concerning 
Minh Phu's revocation request, it wo uld apply the regulation effective at the time of Minh Phu's revocation 
request in the fourth administrative review. Acco rding to the Panel Report, this regulation was 
Section 351.222(b) of the USDOC Regulations. Section 351.222(b) provided, in relevant part: 
(2)(i) In determining whether to  revoke an antidumping duty or der in part, the Secretary will 
consider: (A) Whether one or more exporters or prod ucers covered by the order have sold the 
merchandise at not less than normal value for a period of at least three consecutive years; 
(B) Whether, for any exporter or producer that the Secretary previously has determined to have 
sold the subject merchandise at less than normal  value, the exporter or producer agrees in 
writing to its immediate reinstatement in the orde r, as long as any exporter or producer is 
subject to the order, if the Secretary concludes th at the exporter or producer, subsequent to the 
revocation, sold the subject merchandise at less than normal value; and (C) Whether the continued application of the anti dumping duty order is otherwise necessary to 
offset dumping. (ii) If the Secretary determines, based upon the cr iteria in paragraphs (b)(2)(i)(A) through (C) of 
this section, that the antidumping duty order as to those producers or exporters is no longer warranted, the Secretary will revoke the orde r as to those producers or exporters. 
(Panel Report, para. 7.323 (quoting Section 351.222(b), Title 19 of the United States Code of Federal 
Regulations  (Panel Exhibit VNM-58))) 
126 Award of the Arbitrator, Japan – DRAMS (Korea) (Article 21.3(c)) , para. 51. WT/DS429/12 
 
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 an examination of the import volumes, could already begin before the completion of the 
Section 129 proceedings regarding the administrative reviews.  
3.51.  In response, the United States recalled at the hearing its intention to begin working on 
implementing the Panel's finding regarding Minh Phu's revocation request as soon as possible, 
concurrently with the Section 123(g) process. The United States clarified that, in the light of the 
Panel's relevant findings and how reviews are conducted in the US legal system, the USDOC would issue final Section 129 determinations regarding the three administrative reviews and the sunset 
review at issue. These determinations would address the Panel's findings regarding various aspects 
of the reviews, including Minh Phu's revocation request in the fourth administrative review. In the United States' view, parsing out one element from an administrative review and making a separate final Section 129 determination on that element, as Viet Nam seemed to suggest, would not be 
conducive to the proper implementation of the Panel's relevant findings. 
3.52.  I recall that the implementing Member has a measure of discretion in choosing the means of 
implementation that it deems most appropriate, provided that the means chosen is capable of 
bringing it into compliance with its WTO obligations within a reasonable period of time. In this 
vein, the United States has a measure of discretion to decide how to structure its Section 129 determinations according to its normal practice, while at the same time utilizing all the flexibilities 
that are available under its legal system in orde r to achieve compliance in the shortest possible 
time. In this respect, I note that the USDOC's wo rk on implementing the Panel's findings regarding 
the use of the simple zeroing methodology and Minh Phu's revocation request will both be conducted concurrently with the Section 123 process.  
3.53.  Furthermore, I recall that the USDOC may need to take into account relevant 
determinations in the administrative reviews for purposes of making the sunset review determination. Indeed, under both the US Case Ca lendar and Viet Nam's proposed timetable, the 
issuance of the final Section 129 determination on th e sunset review would be the last step in the 
implementation process. I also note that, according to the US Case Calendar, the USDOC will issue the preliminary Section 129 sunset review determination in the same month as it issues the final 
Section 129 determinations on the administrative reviews.
127 Thus, regardless of whether, and the 
extent to which, the USDOC could begin its work on the sunset review before completing the administrative reviews, it appears that there shou ld not be a significant time-lag between the end 
of the Section 129 proceedings on the administrati ve reviews and the beginning of the Section 129 
sunset review proceeding. 
3.54.  Finally, the United States submits that, while working on the Section 123 and Section 129 
determinations to implement the findings in the present dispute, the USDOC must also continue 
working on numerous ongoing anti-dumping and countervailing duty proceedings. The 
United States alleges that the USDOC "is currently experiencing a 12-year record high for original investigations".
128 Therefore, the United States contends that the current workload of the USDOC 
"should be included as part of the 'particular circumstances' of this dispute".129 At the hearing, 
Viet Nam contended that the USDOC's current workload should not be taken into account, because the USDOC could have planned its workload in ad vance and prioritized the implementation of the 
relevant findings in this dispute. 
3.55.  I note that the United States raised the same argument in the recent arbitration in US – 
Countervailing Measures (China) . The arbitrator in that dispute found that, in the light of the 
fundamental obligations assumed by the Members of  the WTO, the current workload of the USDOC 
s hould  not b e  c ons id e re d as  re le vant to the  de te rminat ion of t he  re as onab le  p e riod  of time  for 
implementation.
130 That arbitrator also noted that the impl ementing Member is expected to use all 
available flexibilities within its legal system to ensure "prompt compliance" with the DSB's 
recommendations and rulings in accordance with Article 21 of the DSU.131 Prioritizing compliance 
action in respect of the DSB recommendations an d rulings at issue in these proceedings would 
                                               
127 See also United States' submission, para. 37. 
128 United States' submission, para. 43. 
129 United States' submission, para. 45. 
130 Award of the Arbitrator, US – Countervailing measure (China) (Article 21.3(c)) , para. 3.49 (referring 
to Award of the Arbitrator, US – 1916 Act (Article 21.3(c)) , para. 38). 
131 Award of the Arbitrator, US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.49. 
(referring to Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 73). WT/DS429/12 
 
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  constitute an exercise of flexibility available to the USDOC, which it would be expected to utilize.132 
Similarly, I therefore do not find the workload clai med by the United States to be relevant to my 
determination of the reasonable period of time in this dispute.  
4  AWARD 
4.1.  In the light of the foregoing considerat ions, the "reasonable period of time" for the 
United States to implement the recommendations and rulings of the DSB in this dispute is 
15 months, from 22 April 2015, that is, from the date on which the DSB adopted the Panel and 
Appellate Body Reports in this dispute. The reason able period of time will expire on 22 July 2016. 
Signed in the original at Geneva this 27th day of November 2015 by: 
  
 
 
 
 
 
________________________ 
Simon Farbenbloom 
Arbitrator 
 
                                               
132 Award of the Arbitrator, US – Countervailing Measures (China) (Article 21.3(c)) , para. 3.49. WT/DS429/12 
 
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 ANNEX A 
EXECUTIVE SUMMARY OF THE UN ITED STATES' SUBMISSION  
1. At its meeting on April 22, 2015, the DSB ad opted its recommendations and rulings in 
United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam  (DS429). Pursuant to 
Article 21.3 of the DSU, the United States inform ed the DSB on May 20, 2015, that it intends to 
comply with the DSB's recommendations and rulings and that it would need a reasonable period of 
time (RPT) to do so. The United States engaged in discussions with Vietnam in an effort to agree 
on the RPT, but the parties were unable to reach agreement. 
2. The amount of time a Member requires for implementation of DSB recommendations and 
rulings depends on the particular facts and circumst ances of the dispute, including the scope of the 
recommendations and rulings and the types of procedures required under the Member's laws to 
make the necessary changes in the measures at issue. Specific circumstances identified in 
previous awards as relevant to the arbitrator's determination of the RPT include: (1) the legal form of implementation; (2) the technical complexity of the measure the Member must draft, adopt, 
and implement; and (3) the period of time in which the implementing Member can achieve that 
proposed legal form of implementation in accordance with its system of government. 
3. In this dispute, the United States is impl ementing DSB recommendations and rulings with 
respect to six matters. The most practical way under U.S. law to implement these six matters is by 
conducting three sequential proceedings, utiliz ing Sections 123 and Section 129 of the Uruguay 
Round Agreements Act. First, the United States will employ Section 123 to address the Panel's finding that the presumption that all producers and exporters in Vietnam belong to a Vietnam-wide 
entity is inconsistent with the AD Agreement. The Section 123 process will need to be completed 
before any other determination regarding impl ementation can be finalized, because the 
United States will need to incorporate applicab le findings made pursuant to the Section 123 
process into certain subsequent determinations. Once all other determinations regarding 
implementation has been finalized, the United States  will be able to reevaluate the results of the 
first five-year sunset review as it will need to study whether these determinations should play a 
role in its reconsideration of that sunset review to address the Panel's finding that aspects of that 
review were inconsistent with the AD Agreement.  
4. Both parties have a strong interest in setting the RPT at a length that allows for an 
implementation process that takes account of all available information and uses a well-considered 
approach to implementing the findings in the Pane l report. The RPT determined by the arbitrator in 
this dispute thus should be of sufficient length to allow the United States to implement the DSB recommendations and rulings in a manner consiste nt with those recommendations and rulings. 
This would preserve the rights of the United States to have a reasonable time for compliance and 
ensure that antidumping duties are imposed only in  accordance with WTO rules. If the RPT is too 
short to allow for effective implementation, the likelihood of a "positive solution" to the dispute 
would be reduced.  
5. The United States is taking the necessary administrative actions to bring itself into 
compliance with the DSB's recommendations and ru lings. For the reasons outlined in the U.S. 
submission, an RPT of at least 21 months is a reason able period of time for implementation in this 
dispute. 
 
 
 
_______________ 
 WT/DS429/12 
 
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  ANNEX B 
EXECUTIVE SUMMARY OF VIET NAM'S SUBMISSION  
WTO JURISPRUDENCE 
1. Under Article 21.1 and 21.3(c) of the DS U implementation must be prompt. WTO 
jurisprudence has established that "prompt" mean the shortest time possible. 
2. Only circumstances resulting from the legal system of the implementing Member and the 
complexity of the implementation are relevant. 
3. There have been virtually no arbitral awards which exceed the 15 month guideline provided in 
Article 21.3(c). 
 
IMPLEMENTATION IN DS429 IS NOT COMPLEX 
1. Each of the steps required for implementation can be accomplished in a short period of time 
and none are complex. 
2. Revisions in margins in all of the underlying proceedings can be done in 5 hours. 
3. The existing record allows the U.S. to make new determinations with respect to both the 
individual respondent revocation and the sunset  review with minimal need to supplement the 
existing record and a short period comment s on the U.S. proposed determination. 
 
LEGAL, PROCEDURAL AND TIME LIMITS CO NSTRAINTS ON IMPLEMENTATION DO NOT 
EXIST UNDER U.S. LAW 
1. Neither of the proposed mechanisms for implementation, Sections 123 and 129, impose time 
constraints on implementation under these provisions of U.S. law. 
 PAST U.S. EXPERIENCE IN IMPLEMENTATION 
1. Based on prior U.S. implementation in trade remedy WTO disputes, there is no precedent for 
the time proposed by the U.S. for implementation. 
 
VIET NAM'S PROPOSAL FOR IMPLEMENTATION 
1. Viet Nam's proposal for a six month RPT is consistent with WTO jurisprudence, the 
requirements of U.S. law, and the complexity, or lack thereof, of the actions required for 
implementation. 
 
__________