WT/DS429/R  
 
17 November 2014  
(14-6644)  Page: 1/129  
  Original: English  
 
 UNITED STATES – ANTI-DUMPING MEASURES ON  
CERTAIN SHRIMP FROM VIET NAM 
 
REPORT OF THE PANEL WT/DS429/R 
 
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  TABLE OF CONTENTS 
1   INTROD UCTION  ........................................................................................................ 15  
1.1   Complaint by Viet Nam .............................................................................................. 15 
1.2   Panel establishm ent and comp osition .......................................................................... 15 
1.3   Panel proceedings ..................................................................................................... 15 
1.3.1   Genera l ............................................................................................................... . 15 
1.3.2   Preliminary ruling .................................................................................................. 16 
2   FACTUAL ASPECTS ..................................................................................................... 16  
3   PARTIES' REQUESTS FOR FI NDINGS AND RECO MMENDATIONS ................................ 19  
4   ARGUMENTS OF  THE PARTIES ................................................................................... 20  
5   ARGUMENTS OF TH E THIRD PA RTIES ........................................................................ 20  
6   INTERIM REVIEW ...................................................................................................... 20  
7   FIND INGS ................................................................................................................. 21 
7.1   Introduction ............................................................................................................. 21 
7.1.1   General principles of treaty interpretation, the applicable standard of review and 
burden of  proof ...............................................................................................................  21 
7.1.1.1   Standa rd of review .............................................................................................. 21 
7.1.1.2   Treaty interpreta tion ........................................................................................... 22 
7.1.1.3   Burden of proof .................................................................................................. 23 
7.2   Preliminary ruling ..................................................................................................... 23 
7.3   Viet Nam's claims with respect to zeroing ..................................................................... 24 
7.3.1   Intr oducti on ..........................................................................................................  24 
7.3.2   Zeroin g "as su ch" .................................................................................................. 25 
7.3.2.1   In troducti on ....................................................................................................... 25 
7.3.2.2   Whether Viet Nam has established the existence of the zeroing methodology as 
a measure which may be challenged as such ....................................................................... 25 
7.3.2.2.1   Main argu ments of th e part ies ............................................................................ 25 
7.3.2.2.1.1   Viet Nam ...................................................................................................... 25 
7.3.2.2.1.2   United States ................................................................................................ 25 
7.3.2.2.2   Main argument s of the thir d parties .................................................................... 26 
7.3.2.2.3   Evaluation by the Panel ..................................................................................... 26 
7.3.3   Zeroing "as applied" in th e administrative re views at issue .......................................... 34 
7.3.3.1   In troducti on ....................................................................................................... 34 
7.3.3.2   Whether Viet Nam has established that the zeroing methodology was applied in 
the fourth, fifth and sixth administrative  reviews .................................................................. 34 
7.3.3.2.1   Main argu ments of th e part ies ............................................................................ 34 
7.3.3.2.1.1   Viet Nam ...................................................................................................... 34 
7.3.3.2.1.2   United States ................................................................................................ 35 
7.3.3.2.2   Evaluation by the Panel ..................................................................................... 35 
7.3.3.3   Whether the application of zeroing in the fourth, fifth and sixth administrative 
reviews is inconsistent with Article 9.3 of th e Anti-Dumping Agreement and Article VI:2 of 
the GATT 1994 ................................................................................................................ 36 WT/DS429/R 
 
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  7.3.3.3.1   In troducti on .................................................................................................... 36 
7.3.3.3.2   Main argu ments of th e part ies ............................................................................ 36 
7.3.3.3.2.1   Viet Nam ...................................................................................................... 36 
7.3.3.3.2.2   United States ................................................................................................ 37 
7.3.3.3.3   Main argument s of the thir d parties .................................................................... 37 
7.3.3.3.4   Evaluation by the Panel ..................................................................................... 38 
7.4   Viet Nam's claims regarding th e "NME-wide entity" rate prac tice ..................................... 39 
7.4.1   Intr oducti on ..........................................................................................................  39 
7.4.2   Claims with respect to the NME- wide entity rate pr actice "a s such" ............................... 40 
7.4.2.1   In troducti on ....................................................................................................... 40 
7.4.2.2   Whether Viet Nam has established the existence of the NME-wide entity rate 
practice as a measure which ma y be challenged  "as su ch" ..................................................... 41 
7.4.2.2.1   Main argu ments of th e part ies ............................................................................ 41 
7.4.2.2.1.1   Viet Nam ...................................................................................................... 41 
7.4.2.2.1.2   United States ................................................................................................ 41 
7.4.2.2.2   Main argument s of the thir d parties .................................................................... 42 
7.4.2.2.3   Evaluation by the Panel ..................................................................................... 42 
7.4.2.3   Whether the NME-wide entity rate practice is inconsistent with Articles 6.10 
and 9.2 of the Anti-D umping Agreement ............................................................................. 50 
7.4.2.3.1   Main argu ments of th e part ies ............................................................................ 50 
7.4.2.3.1.1   Viet Nam ...................................................................................................... 50 
7.4.2.3.1.2   United States ................................................................................................ 51 
7.4.2.3.2   Main argument s of the thir d parties .................................................................... 53 
7.4.2.3.3   Evaluation by the Panel ..................................................................................... 53 
7.4.2.4   Whether the NME-wide entity rate practice is inconsistent with Articles 9.4, 6.8 
and Annex II of the Anti -Dumping Agreement ...................................................................... 66 
7.4.3   Claims with respect to the application of the NME-wide entity rate practice in the 
administrative re views at issue .......................................................................................... 67 
7.4.3.1   In troducti on ....................................................................................................... 67 
7.4.3.2   Factua l background ............................................................................................. 67 
7.4.3.3   Whether the Viet Nam-wide entity rate applied in the administrative reviews at 
issue is inconsistent with Articles 6.10 and 9.2 of the Anti-D umping Agreement ........................ 68 
7.4.3.3.1   Main argu ments of th e part ies ............................................................................ 68 
7.4.3.3.1.1   Viet Nam ...................................................................................................... 68 
7.4.3.3.1.2   United States ................................................................................................ 68 
7.4.3.3.2   Evaluation by the Panel ..................................................................................... 69 
7.4.3.4   Whether the Viet Nam-wide entity rate applied in the administrative reviews at 
issue is inconsistent with Article 9.4 of the Anti-Dumping Agreement ....................................... 69 
7.4.3.4.1   Main argu ments of th e part ies ............................................................................ 69 
7.4.3.4.1.1   Viet Nam ...................................................................................................... 69 
7.4.3.4.1.2   United States ................................................................................................ 70 
7.4.3.4.2   Main argument s of the thir d parties .................................................................... 71 WT/DS429/R 
 
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  7.4.3.4.3   Evaluation by the Panel ..................................................................................... 71 
7.4.3.5   Whether the Viet Nam-wide entity rate applied in the administrative reviews at 
issue is inconsistent with Article 6.8 an d Annex II of the Anti -Dumping Agreement .................... 74 
7.4.3.5.1   Main argu ments of th e part ies ............................................................................ 74 
7.4.3.5.1.1   Viet Nam ...................................................................................................... 74 
7.4.3.5.1.2   United States ................................................................................................ 75 
7.4.3.5.2   Main argument s of the thir d parties .................................................................... 75 
7.4.3.5.3   Evaluation by the Panel ..................................................................................... 75 
7.5   Claims regarding Section 129(c)(1) of  the US Uruguay Round  Agreemen ts Act .................. 77 
7.5.1   Intr oducti on ..........................................................................................................  77 
7.5.2   Factua l background ................................................................................................ 78 
7.5.3   Main argume nts of the parties ................................................................................. 82 
7.5.3.1   Viet Nam ........................................................................................................... 82 
7.5.3.2   United States ..................................................................................................... 83 
7.5.4   Main arguments of the thir d parties .......................................................................... 83 
7.5.5   Evaluation by the Panel .......................................................................................... 85 
7.6   Claims with respect to the sunset review ...................................................................... 91 
7.6.1   Intr oducti on ..........................................................................................................  91 
7.6.2   Factua l background ................................................................................................ 91 
7.6.3   Main argume nts of the parties ................................................................................. 94 
7.6.3.1   Viet Nam ........................................................................................................... 94 
7.6.3.2   United States ..................................................................................................... 95 
7.6.4   Main arguments of the thir d parties .......................................................................... 96 
7.6.5   Evaluation by the Panel .......................................................................................... 97 
7.7   Claims with respect to company-specific revocations.................................................... 102  
7.7.1   Intr oduction  ........................................................................................................ 1 02 
7.7.2   Factual background .............................................................................................. 102  
7.7.3   Main argument s of the pa rties ............................................................................... 111  
7.7.3.1   Viet Nam ......................................................................................................... 11 1 
7.7.3.2   United States ................................................................................................... 113  
7.7.4   Main arguments of the third parties ........................................................................ 114  
7.7.5   Evaluation by the Panel ........................................................................................ 116  
7.7.5.1   Intr oduction  ..................................................................................................... 11 6 
7.7.5.2   Whether the USDOC's treatment of Fish One's request for revocation in the 
third administrative review falls with in the Panel's term s of refe rence .................................... 116  
7.7.5.3   General considerations with respect to the interpretation of Articles 11.1 
and 11.2 ......................................................................................................................  119 
7.7.5.4   Whether the revocation requests submitted by Vietnamese producers/exporters 
in the administrative reviews at issue satisfied the requirements of Articles 11.2 ..................... 124  
7.7.5.5   Whether the USDOC's treatment of requests for revocation by Vietnamese 
producers/exporters not individually examined is  inconsistent with Articles 11.1 and 11.2 ........ 125  WT/DS429/R 
 
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  7.7.5.6   Whether the USDOC's determination not to revoke the order for certain 
Vietnamese producers/exporters on the basis that it had calculated a positive margin of dumping for these producers/exporters is in consistent with Arti cles 11.1 and 11.2 .................. 127
 
8   CONCLUSIONS AN D RECOMMEND ATION ................................................................. 128  
 
 WT/DS429/R 
 
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  LIST OF ANNEXES 
 
ANNEX A 
WORKING PROCEDURES OF THE PANEL 
Contents Page 
Annex A-1 Working Procedures for the Panel A-2 
Annex A-2 Additional Working Procedures on BCI A-7 
Annex A-3 Preliminary Ruling A-9 
ANNEX B 
ARGUMENTS OF VIET NAM 
Contents Page 
Annex B-1 Executive Summary of the First Written Submission of Viet Nam B-2 
Annex B-2 Executive Summary of the Oral Statements of Viet Nam at the First Panel 
Meeting B-9 
Annex B-3 Executive Summary of the Second Written Submission of Viet Nam B-14 
Annex B-4 Executive Summary of the Oral Statements of Viet Nam at the Second Panel 
Meeting B-24 
Annex B-5 Viet Nam's Response to the United States' Request for Preliminary Rulings  B-29 
Annex B-6 Viet Nam's Response to the United States' Reply for the Request for 
Preliminary Rulings  B-32 
ANNEX C 
ARGUMENTS OF THE UNITED STATES 
Contents Page 
Annex C-1 Executive Summary of the First Written Submission of the United States C-2 
Annex C-2 Executive Summary of the Oral Statements of the United States at the First 
Panel Meeting C-10 
Annex C-3 Executive Summary of the Second Written Submission of the United States C-13 
Annex C-4 Executive Summary of the Oral Statements of the United States at the Second 
Panel Meeting C-21 
Annex C-5 United States' Request for Preliminary Rulings C-26 
Annex C-6 United States' Reply to Viet Nam's Response to the United States' Request for 
Preliminary Rulings C-31 
ANNEX D 
ARGUMENTS OF THIRD PARTIES 
Contents Page 
Annex D-1 Executive Summary of the Third Party Arguments of China D-2 
Annex D-2 Executive Summary of the Third Part y Arguments of the European Union D-7 
Annex D-3 Executive Summary of the Third Party Arguments of Japan D-12 
Annex D-4 Executive Summary of the Third Party Arguments of Norway D-17 
Annex D-5 Thailand's Third Party Responses to Questions from the Panel D-20 
Annex D-6 China's Submission on the United St ates' Request for Preliminary Rulings D-23 
Annex D-7 European Union Comments on the US Request for a Preliminary Ruling D-26 
 
  WT/DS429/R 
 
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  CASES CITED IN THIS REPORT 
Short title Full case title and citation 
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R, adopted 5 November 2001, 
DSR 2001:XII, p. 6241 
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 Augu st 1999, DSR 1999: III, p. 1161 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or  Steel Fasteners from China , WT/DS397/AB/R, 
adopted 28 July 2011, DSR 2 011:VII, p. 3995 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-D umping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R, adopted 
18 August 2003, as modified by Appe llate Body Report WT/DS219/AB/R, 
DSR 2003:VII, p. 2701 
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping  Measures on Steel Rebar from 
Turkey , WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, p. 2667 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, p. 3767 
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on  Imports of Certain Paper from 
Indonesia , WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII, 
p. 10637 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 
20 December 2005, DSR 2005:XXII, p. 10853 
Mexico – Corn Syrup 
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article 21.5 of the DSU  by the United States , WT/DS132/AB/RW, adopted 
21 November 2001, DSR 2001:XIII, p. 6675 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, adopted 
28 November 2005, DSR 2005:XX, p. 10127 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil Country Tubular 
Goods (OCTG) from Mexico , WT/DS282/R, adopted 28 November 2005, as 
modified by Appellate Body Repo rt WT/DS282/AB/R, DSR 2005:XXI, 
p. 10225 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, 
DSR 2009:III, p. 1291 
US – Continued Zeroing Panel Report, United States – Continued Existe nce and Application of Zeroing 
Methodology , WT/DS350/R, adopted 19 February 2009, as modified as 
Appellate Body Report WT/D S350/AB/R, DSR 2009:III, p. 1481 
US – Corrosion-Resistant Steel 
Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carb on Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3  
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervaili ng Duty Investigation on 
Dynamic Random Access Memory Se miconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131 
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic Random 
Access Memory Semiconductors (DRA MS) of One Megabit or Above from 
Korea , WT/DS99/R, adopted 19 March 1999, DSR 1999:II, p. 521 
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August 2001, DSR 2001:X, p. 4697 WT/DS429/R 
 
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  Short title Full case title and citation 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257 
US – Oil Country Tubular 
Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina , WT/DS268/R and Corr.1, adopted 
17 December 2004, as modified by Appellate Body Report WT/DS268/AB/R, 
DSR 2004:VIII, p. 3421 
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Administrative Reviews and 
Other Measures Related to Imports of Certain Orange Juice from Brazil , 
WT/DS382/R, adopted 17 June 2011, DSR 2011:VII, p. 3753 
US – Poultry (China) Panel Report, United States – Certain Measures  Affecting Imports of Poultry 
from China , WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909 
US – Section 129(c)(1) URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round 
Agreements Act , WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, 
p. 2581 
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS404/R, adopted 2 September 2011, DSR 2011:X, p. 5301 
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004, 
DSR 2004:V, p. 1875 
US – Softwood Lumber V 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recour se to Article 21.5 of the DSU by 
Canada , WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII, 
p. 5087 
US – Softwood Lumber V 
(Article 21.5 – Canada) Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , 
WT/DS264/RW, adopted 1 September 2006, as reversed by Appellate Body Report WT/DS264/AB/RW, DSR 2006:XII, p. 5147 
US – Softwood Lumber VI 
(Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to 
Article 21.5 of the DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006, 
and Corr.1, DSR 2006:XI, p. 4865 
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Stee l from Mexico , WT/DS344/AB/R, adopted 20 May 2008, 
DSR 2008:II, p. 513 
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dum ping Measures on Stainless 
Steel from Mexico , WT/DS344/R, adopted 20 May 2008, as modified by 
Appellate Body Report WT/DS344/AB/R, DSR 2008:II, p. 599 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure A ffecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 
9 May 2006, and Corr.1, DSR 2006:II, p. 417 
US – Zeroing (EC) Panel Report, United States – Laws, Regu lations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 
9 May 2006, as modified by Appellate Body Report WT/DS294/AB/R, 
DSR 2006:II, p. 521 
US – Zeroing (EC)  
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of 
the DSU by the European Communities , WT/DS294/AB/RW and Corr.1, 
adopted 11 June 2009, DSR 2009:VII, p. 2911 
US – Zeroing (EC)  
(Article 21.5 – EC) Panel Report, United States – Laws, Regu lations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS294/RW, adopted 11 June 2009, 
as modified by Appellate Body Report WT/DS294/AB/RW, DSR 2009:VII, 
p. 3117 WT/DS429/R 
 
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  Short title Full case title and citation 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, 
p. 3 
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R, adopted 23 January 2007, as modified by 
Appellate Body Report WT/DS322/AB/R, DSR 2007:I, p. 97 
US – Zeroing (Japan) 
(Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 Augu st 2009, DSR 2009: VIII, p. 3441 
US – Zeroing (Japan) 
(Article 21.5 – Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to Article 21.5 of the DSU by Japan , WT/DS322/RW, 
adopted 31 August 2009, upheld by Appellate Body Report 
WT/DS322/AB/RW, DSR 2009:VIII, p. 3553 
 
 WT/DS429/R 
 
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  EXHIBITS REFERRED TO IN THIS REPORT 
Panel Exhibit Title 
VN-04 USDOC Final Determination and accompanying Issues and Decision 
Memorandum for Original Investigation (8 December 2004) ("final determination and Issues and Decision Memorandum in the original investigation") 
VN-06 USDOC Initiation Notice for Fourth Administrative Review (26 March 2009) 
("notice of initiation for the fourth administrative review") 
VN-07 USDOC Respondent Selection for Fourth Administrative Review (11 June 2009) 
("Respondent Selection Memorandum in the fourth administrative review") 
VN-08 USDOC Initiation of Five-Year Sunset Review (4 January 2010) ("notice of 
initiation for the sunset review") 
VN-09 USDOC Preliminary Results for Fourth Administrative Review (15 March 2010) 
("preliminary determination in the fourth administrative review") 
VN-10 USDOC Initiation Notice of Fifth Administrative Review (9 April 2010) ("notice of 
initiation for the fifth administrative review") 
VN-11 USDOC Respondent Selection for Fifth Administrative Review (30 July 2010) 
("Respondent Selection Memorandum in the fifth administrative review") 
VN-12 USDOC Preliminary Determination of Five-Year Sunset Review (6 August 2010) 
("preliminary likelihood-of-dumping dete rmination in the sunset review") 
VN-13 USDOC Final Results and accompanying  Issues and Decision Memorandum for 
Fourth Administrative Review (9 August 2010) ("final determination and Issues and Decision Memorandum in the fourth administrative review") 
VN-14 USDOC Final Results of Five-Year Sunset Review (7 December 2010) ("final 
likelihood-of-dumping determination and Issues and Decision Memorandum in 
the sunset review") 
VN-15 USDOC Preliminary Results for Fifth Administrative Review (4 March 2011) 
("preliminary determination in the fifth administrative review") 
VN-16 USDOC Initiation Notice for Sixth Ad ministrative Review (31 March 2011) 
("notice of initiation for the sixth administrative review") 
VN-17 USDOC Respondent Selection for Sixth Administrative Review (17 June 2011) 
("Respondent Selection Memorandum in the sixth administrative review") 
VN-18 USDOC Final Results and accompanying Issues and Decision Memorandum for 
Fifth Administrative Review (15 September 2009) ("final determination and 
Issues and Decision Memorandum in the fifth administrative review") 
VN-19 USDOC Preliminary Results for Sixth Administrative Review (7 March 2012) 
("preliminary determination in the sixth administrative review") 
VN-20 USDOC Final Results and accompanying Issues and Decision Memorandum for 
Sixth Administrative Review (11 September 2012) ("final determination and 
Issues and Decision Memorandum in the sixth administrative review") 
VN-22 USDOC Amended Final Results for Sixth Administrative Review 
(18 October 2012) ("amended final determ ination in the sixth administrative 
review") 
VN-24 Chapter 10, Non-Market Economies (NME), Department of Commerce 2009 
Antidumping Manual ("USDOC Antidumping Manual, Chapter 10") 
VN-25 Affidavit of Anya Naschak and suppo rting documentation ("Naschak affidavit") 
VN-31 Section 129, 19 U.S.C. §3538 
VN-32 "Approval and entry into force of Uruguay Round Agreements", 19 U.S.C. §3511 
("Section 101(a)(2) of the URAA, 19 U.S.C. § 3511(a)(2)") 
VN-33 "Relationship of agreements to United States law and State law", 19 U.S.C. 
§3512 ("Section 102(d) of the URAA, 19 U.S.C. § 3512(d)") 
VN-34 Relevant Section 129 Excerpts of Uruguay Round Agreements, Statement of 
Administrative Action, H.Doc 103-316(I), 103d Cong, 2d Sess. (27 September 1994) ("Statement of Administrative Action") 
VN-36 Corus Staal BV v. United States , Court No. 07-00270, Slip Op. 07-140 (Ct. Int'l 
Trade) (19 September 2007)  
VN-37 Tembec v. United States , 441 F. Supp. 2d 1302 (Ct. Int'l Trade, 2006)  
VN-42 USDOC Section 129 Compilation 
VN-47 "Administrative review of determinations", 19 U.S.C. §1675 ("Section 751 of the 
Tariff Act of 1930") 
VN-55 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin 
and Assessment Rate in Certain An tidumping Duty Proceedings; Final 
Modification , 77 Fed. Reg. 8101 (14 February 2012)  
VN-58 "Revocation of orders; termination of suspended investigations", 19 C.F.R. 
§351.222 ("19 C.F.R. 351.222(b)") WT/DS429/R 
 
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  Panel Exhibit Title 
VN-59 Modification to Regulation Concerning the Revocation of Antidumping and 
Countervailing Duty Orders , 77 Fed. Reg. 29875 (21 May 2012)  
VN-61 Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: 
Preliminary Results, Partial Rescission, and Request for Revocation, In Part, of the Third Administrative Review, 74 Fed. Reg. 10009 (9 March 2009)  
VN-62 USDOC Final Results and accompanying Issues and Decision Memorandum for 
First Administrative Review (12 September 2007) ("final determination and 
Issues and Decision Memorandum in the first administrative review") 
VN-63 USDOC Final Results and accompanying  Issues and Decision Memorandum for 
Second Administrative Review (9 September 2008) ("final determination and Issues and Decision Memorandum in the second administrative review") 
VN-64 USDOC Final Results and accompanying Issues and Decision Memorandum for 
Third Administrative Review (15 September 2009) ("final determination and 
Issues and Decision Memorandum in the third administ rative review") 
VN-66 Import Administration Policy Bulletin Number 05.1 (5 April 2005) ("Policy 
Bulletin 05.1") 
VN-72 Federal Register Notices and Decision Memoranda of the Original Investigation 
and First, Second, and Third Administrati ve Reviews ("final determinations and 
Issues and Decision Memoranda in the original investigation and the first, 
second and third administrative reviews") 
VN-79 Documentation on Individual Revocati on Procedures of Australia, Brazil, and 
India 
VN-81 Requests for Administrative Reviews Submitted by Domestic Interested 
Parties – Fourth, Fifth, and Sixth Administrative Reviews  
VN-82 Request for Revocation in the Third Ad ministrative Review ("Fish One's request 
for revocation in the thir d administrative review") 
VN-83 Requests for Revocation in the Fourth Administrative Review ("requests for 
revocation submitted in the fo urth administrative review") 
VN-84 Requests for Revocation in the Fift h Administrative Review ("requests for 
revocation submitted in the fi fth administrative review") 
US-04 Section 751 of the Tariff Act of 1930, as amended (19 U.S.C. 1675) 
("Section 751 of the Tariff Act of 1930") 
US-08 Certain Frozen and Canned Warmwater Sh rimp from the Socialist Republic of 
Vietnam: Amended Final Results of An tidumping Duty Administrative Review , 
75 Fed. Reg. 61,122 (4 October 2010) ("amended final determination in the fourth administrative review")  
US-09 Certain Frozen and Canned Warmwater Sh rimp from the Socialist Republic of 
Vietnam: Amended Final Results and Final Partial Rescission of Antidumping 
Duty Administrative Review , 76 Fed. Reg. 64,307 (18 October 2011) ("amended 
final determination in the fifth administrative review")  
US-10 Section 123 of the URAA, 19 U.S.C. § 3533 
US-11 Order, Grobest & I Mei Industrial (Vietn am) Co., Ltd., v. United States , Consol. 
Court No. 10-00238 (13 September 2012) 
US-12 Grobest & I Mei Industrial (Vietnam) Co., Ltd., v. United States , 853 F.Supp.2d 
1352 (Ct. Int'l Trade, 2012)  
US-13 Successor to Grobest & I-Mei In dustrial (Vietnam) Co., Ltd. , Withdrawal of 
Request for Voluntary Respondent Review and Revocation of Antidumping Duty 
Order in Part (12 December 2012)  
US-14 Response to 15 January 2013 Supplemen tal Questionnaire in Reexamination of 
Grobest & I-Mei Industrial (Vietnam) Co., Ltd. Voluntary Responses (29 January 2013) 
US-15 Response by Successor to Grobest & I-Me i Industrial (Vietnam) Co., Ltd., to 
Department's Supplemental Questionnaire and Petitioners' Objection to 
Rescission (13 February 2013) 
US-16 Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: 
Preliminary Results of Reconducted of Ad ministrative Review of Grobest & I-Mei 
Industrial (Vietnam) Co., Ltd. and Intent Not to Revoke; 2008-2009 , 78 Fed. 
Reg. 57,352 (18 September 2013)  
US-18 Purified Carboxymethylcellulose from th e Netherlands: Preliminary Results of 
Antidumping Duty Administrative Review and Preliminary Intent to Rescind , 
77 Fed. Reg. 46,024 (2 August 2012)  
US-19 Certain Pasta from Italy: Notice of Preliminary Results of Antidumping Duty 
Administrative Review, Preliminary No Shipment Determination and Preliminary Intent to Revoke Order, in Part , 77 Fed. Reg. 46,377 (3 August 2012), 
unchanged in 78 Fed. Reg. 9,364 (8 February 2013)  
US-20 Purified Carboxymethylcellulose from Finl and; Notice of Preliminary Results of 
Antidumping Duty Administrative Review , 77 Fed. Reg. 47,036 (7 August 2012)  
US-26 19 C.F.R. § 351.401 WT/DS429/R 
 
- 12 - 
 
  Panel Exhibit Title 
US-27 Antidumping Manual, Chapter 1, Department of Commerce, p. 1 
("USDOC Antidumping Manual, Chapter 1") 
US-29 Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam , 
Preliminary Results of Antidumping Duty Administrative Review, 2011-2012 , 
78 Fed. Reg. 15,699 (12 March 2013) ("preliminary determination in the seventh administ rative review)  
US-30 Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam , Final 
Results of Antidumping Duty Administrative Review, 2011-2012,  78 Fed. 
Reg. 56,211 (12 September 2013) ("final determination in the seventh 
administrative review")  
US-38 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin 
During an Antidumping Investigation; Final Modification , 71 Fed. Reg. 77,722 
(27 December 2006)  
US-39 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin 
and Assessment Rate in Certain An tidumping Duty Proceedings; Final 
Modification , 77 Fed. Reg. 8,101 (14 February 2012) ("Final Modification")  
US-40 Stainless Steel Bar From India: Final Results of Antidumping  Duty 
Administrative Review; 2011-2012 , 78 Fed. Reg. 34,337 (7 June 2013)  
US-41 Ball Bearings and Parts Thereof From Fr ance, Germany, and Italy: Final Results 
of Antidumping Duty Administrative Reviews; 2010-2011, 77 Fed. Reg. 73,415 
(10 December 2012)  
US-42 Low Enriched Uranium From France: Final Results of the Expedited Second 
Sunset Review of the Antidumping  Duty Order , 78 Fed. Reg. 21,100 
(9 April 2013)  
US-43 Certain Hot-Rolled Carbon Steel Flat Products From India, Indonesia, the 
People's Republic of China, Taiwan, Thailand, and Ukraine; Final Results of the 
Expedited Second Sunset Reviews of the Antidumping Duty Orders , 78 Fed. 
Reg. 15,703 (12 March 2013)  
US-44 Lemon Juice From Argentina: Final Results of the Expedited First Sunset Review 
of the Suspended Antidumping Duty Investigation , 77 Fed. Reg. 73,021 
(7 December 2012)  
US-45 Steel Concrete Reinforcing Bars From Belarus, Indonesia, Latvia, Moldova, 
Poland, People's Republic of China and Ukraine: Final Results of the Expedited 
Second Sunset Reviews of the Antidumping Duty Orders , 77 Fed. Reg. 70,140 
(23 November 2012)  
US-46 Honey From the People's Republic of China: Final Results of Expedited Sunset 
Review of the Antidumping  Duty Order , 77 Fed. Reg. 59,896 (1 October 2012)  
US-47 Certain Activated Carbon From  the People's Republic of China: Final Results of 
Expedited Sunset Review of the Antidumping  Duty Order , 77 Fed. Reg. 33,420 
(6 June 2012)  
US-64 Steel Wire Garment Hangers from the Pe ople's Republic of China: Final 
Determination of Sales at Less Than Fair Value, 73 Fed. Reg. 47,587 
(14 August 2008)  
US-65 Steel Wire Garment Hangers from the Pe ople's Republic of China: Amended 
Final Determination of Sales at Less Than Fair Value , 73 Fed. Reg. 53,188 
(15 September 2008)  
US-66 Notice of Final Determination of Sales at Less Than Fair Value: Carbon and 
Certain Alloy Steel Wire Rod from Ukraine , 67 Fed. Reg. 55,785 
(30 August 2002)  
US-67 Notice of Final Determination of Sales at Less Than Fair Value: Urea Ammonium 
Nitrate Solutions from Belarus , 68 Fed. Reg. 9,055 (27 February 2003)  
US-68 Notice of Final Determination of Sales at Less Than Fair Value: Structural Steel 
Beams from the Russian Federation , 67 Fed. Reg. 35,490 (20 May 2002)  
US-69 Notice of Final Determination of Sales at Less Than Fair Value: Certain Small 
Diameter Carbon and Allo y Seamless Standard, Line and Pressure Pipe from 
Romania , 65 Fed. Reg. 39,125 (23 June 2000)  
US-73 Separate Rate Certification for Firms Previously Awarded Separate Rate Status 
US-81 Vietnam Constitution, Chapt. II, Art. 15 (partial document) 
US-84 N. Gregory Mankiw,  Principles of Microeconomics (South-Western Centage 
Learning 2012) (partial document) 
US-85 Paul R. Gregory & Robert C. Stuart , Comparing Economic Systems in the 
Twenty-First Century (Houghton Mifflin Company 2004) (partial document) 
US-90 Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam; Final 
Results of Re-Conducted Administrative Review of Grobest & I-Mei Industrial 
(Vietnam) Co., Ltd and Intent Not To Revoke; 2008-2009 , 79 Fed. Reg. 15309 
(19 March 2014)  
US-91 19 C.F.R. § 351.216 
US-95 19 U.S.C. § 1677m WT/DS429/R 
 
- 13 - 
 
  Panel Exhibit Title 
US-96 Letter from Counsel for Seaprodex Mi nh Hai to Secretary of Commerce 
(31 July 1999) 
US-97 Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: 
Notice of Reopening of the First Five-Year "Sunset" Review of the Antidumping Duty Order , 79 Fed. Reg. 15310 (19 March 2014)  
 WT/DS429/R 
 
- 14 - 
 
  ABBREVIATIONS USED IN THIS REPORT 
Abbreviation Description 
Anti-Dumping Agreement Agreement on Impl ementation of Article VI of GATT 1994 
BCI Business Confiden tial Information 
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 
POI Period of investigation 
POR Period of review 
SCM Agreement Agreement on Subs idies and Countervailing Measures  
SPB Sunset Policy Bulletin 
URAA Uruguay Round Agreements Act 
United States United States of America 
USCBP United States Custom s and Border Protection 
USDOC United States Department of Commerce 
USITC United States International Trade Commission 
USTR United States Trade Representative 
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679 
Viet Nam Socialist Republic of Viet Nam 
Viet Nam's Protocol of Accession Protocol on the Accession of the Socialist Republic of Viet Nam, WT/L/662 
(15 November 2006) 
Viet Nam's Working Party 
Report Report of the Working Party on the Ac cession of Viet Nam, WT/ACC/VNM/48 
(27 October 2006) 
WTO World Trade Organization 
 WT/DS429/R 
 
- 15 - 
 
  1  INTRODUCTION 
1.1  Complaint by Viet Nam 1.1.  On 22 February 2012, Viet Nam requested consultations with the United States pursuant to 
Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes ("DSU"), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 
("GATT 1994"), and Articles 17.2 and 17.3 of the Ag reement on Implementation of Article VI of 
GATT 1994 ("Anti-Dumping Agreement") with respect to certain anti-dumping measures imposed 
by the United States in the context of the US anti-dumping proceedings on Certain Frozen 
Warmwater Shrimp from Vietnam  (hereinafter " Shrimp ") as well as with respect to certain US laws 
and US Department of Commerce ("USDOC") methodologies and practices.
1 
1.2.  Consultations were held on 28 March 2012 but failed to resolve the dispute. 
1.2  Panel establishment and composition 
1.3.  On 20 December 2012, Viet Nam requested the establishment of a panel pursuant to 
Article 6 of the DSU, with standard terms of reference.2 At its meeting on 27 February 2013, the 
Dispute Settlement Body ("DSB") established a panel pursuant to the request of Viet Nam in 
document WT/DS429/2/Rev.1 and Corrigenda 1 & 2, in accordance with Article 6 of the DSU.3 
1.4.  The Panel's terms of reference are the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the parties to the dispute, the matter refe rred to the DSB by Viet Nam in document 
WT/DS429/2/Rev.1 and Corrigenda 14 and 25 and to make such findings as will assist 
the DSB in making the recommendations or in giving the rulings provided for in those 
agreements. 
1.5.  On 12 July 2013, the parties agreed that the panel would be composed as follows: Chairperson: Mr Simon Farbenbloom 
 
Members:  Mr Adrian Makuc    Mr Abd El Rahman Ezz El Din Fawzy 
 
1.6.  China, Ecuador, the European Union, Japan,  Norway and Thailand notified their interest in 
participating in the Panel proceedings as third parties.
6 
1.3  Panel proceedings 
1.3.1  General 
1.7.  After consultation with the parties, the Panel adopted its Working Procedures7 on 
5 August 2013 and its timetable on 6 August 2013. On 9 August 2013, the Panel revised its 
Working Procedures and adopted Additional Workin g Procedures Concerning Business Confidential 
Information ("BCI").8 The Panel revised its timetable on 16 December 2013 and on 
31 March 2014. 
1.8.  The Panel held a first substantive meetin g with the parties on 10 and 11 December 2013. A 
session with the third parties took place on 11 December 2013. The Panel held a second 
                                               
1 WT/DS429/1 (hereafter "Viet Nam's consultations request"). 
2 WT/DS429/2, revised on 17 January 2014 in WT/DS429/2/Rev.1 and Corr. 1 & 2 (hereafter 
"Viet Nam's panel request"). 
3 See WT/DSB/M/329. 
4 In French only. 
5 In English and Spanish only. 
6 WT/DS429/3. 
7 See Annex A-1. 
8 See Annex A-2. WT/DS429/R 
 
- 16 - 
 
  substantive meeting with the parties on 25-26 March 2014. On 6 May 2014, the Panel issued the 
descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 16 July 2014. The Panel issued its Final Report to the parties on 4 September 2014. 
1.3.2  Preliminary ruling 
1.9.  On 31 July 2013, the United States submitted to the Panel a request for preliminary rulings in 
which it asked that the Panel find that certain me asures and claims referenced in Viet Nam's panel 
request were not properly within the Panel's terms of reference.
9 Viet Nam responded to the 
United States' request on 5 August 2013.10 The United States replied to Viet Nam's response on 
13 August 2013, and two third parties, the European  Union and China, filed observations regarding 
the United States' request on 14 August 2013.11 On 16 August 2013, Viet Nam provided comments 
on the United States' reply.12  
1.10.  On 26 September 2013, the Panel issued a Preliminary Ruling addressing the United States' 
request, and indicated that the Ruling would become an integral part of its Final Report, subject to any changes that may be necessary in light of co mments received from the parties at the interim 
review stage. The Preliminary Ruling was circulated  to the parties and to the third parties to the 
dispute and is included as Annex A-3 of this Report. 
2  FACTUAL ASPECTS  
2.1.  This dispute concerns certain US laws, methodologies and practices with respect to the 
imposition of anti-dumping duties as well as certain USDOC actions and determinations in the Shrimp proceedings.  
2.2.  The United States operates a "retrospec tive" duty assessment system. Under this system, 
the USDOC determines whether the imposition of anti-dumping measures is justified by conducting 
an original investigation. In the investigation, the USDOC determines whether dumping exists during the period of investigation. The United States International Trade Commission ("USITC") 
concurrently determines whether the relevant US industry is injured by reason of the dumped 
imports. When the USDOC finds dumping and the USITC finds that dumped imports caused injury to the domestic industry, the USDOC issues an anti-dumping "order" imposing final measures. The 
anti-dumping order provides the United States Government with the authority to require cash 
d e p o s i t s  a t  a  r a t e  e q u i v a l e n t  t o  t h e  m a r g i n  o f  d u m p i n g  c a l c u l a t e d  f o r  e a c h  k n o w n  producer/exporter at the time of importation and, as described below, to subsequently assess anti-dumping duties on imports of the subject merchandise and eventually collect such duties 
("liquidation").
13 
2.3.  The definitive amount of anti-dumping duty  liability is determined subsequently, after the 
importation of the merchandise, as a result of an annual "administrative review" which the USDOC 
initiates upon request from interested parties. In the administrative review, the USDOC calculates 
assessment rates with respect to the "entries" (imports) under review, and determines the cash deposit that will be required as a security on future entries, until subsequent administrative 
reviews are conducted with respect to those entries. At the conclusion of the administrative review 
process, the USDOC instructs US Customs and Border Protection (" USCBP") to liquidate the entries 
consistent with its determination; if the definitive duties owed are less than the level of the cash deposits, USCBP returns the excess with interest to the importer. If the definitive duty liability is 
greater than the cash deposits, the importer must pay the additional amount. In the event that no 
administrative review is requested, entries are liqui dated at the cash deposit rate applicable at the 
time of importation. Moreover, final assessment or collection ("liquidation") may be delayed by 
                                               
9 United States' request for pr eliminary rulings (Annex C-5). 
10 Viet Nam's response to the United States' request for preliminary rulings (Annex B-5). 
11 United States' reply to Viet Nam's response to the US request for prelimin ary rulings (Annex C-6); 
China's submission on the United States' request fo r preliminary rulings (Annex D-6); European Union's 
comments on the US request for a preliminary ruling (Annex D-7). 
12 Viet Nam's response to the United States' reply for the request for prelimin ary rulings (Annex B-6). 
13 Viet Nam's first written submission, paras. 30-33 and 215-216 (quoting from, and referring to, 
Panel Report, US – Section 129(c)(1) URAA , paras. 2.5-2.8 and footnotes 10 and 11); United States' 
first written submission, para s. 8-10. The US duty assessment system is also described in detail in Panel 
Report, US – Shrimp (Viet Nam) , paras. 7.12-7.13. WT/DS429/R 
 
- 17 - 
 
  challenges before US courts given that in such proceedings, parties may obtain an injunction 
against liquidation for the duration of the court proceeding.14 
2.4.  The USDOC initiated its Shrimp  investigation in January 2004 and issued an anti-dumping 
order in February 2005. At the time of these Panel proceedings, it had completed seven 
administrative reviews and conducted a first sunset review15 in which it determined that revocation 
of the anti-dumping duty order would be likely to lead to the continuation or recurrence of dumping.
16  
2.5.  In the Shrimp  proceedings, because Viet Nam has been designated by the USDOC as a non-
market economy ("NME"), the USDOC applied a rebu ttable presumption that all companies within 
Viet Nam are essentially operating units of a single government-wide entity and, thus, should receive a single anti-dumping duty rate (the  "Viet Nam-wide entity rate"). Vietnamese 
producers/exporters had to pass a "separate rate test" to receive a rate that was separate from 
the Viet Nam-wide entity rate. Those producers/ex porters that did not establish that they were 
separate from the Viet Nam-wide entity received the Viet Nam-wide entity rate.  
2.6.  In addition, in the original investigation and in each of the administrative reviews, in light of 
the large number of Vietnamese respondents involved, the USDOC limited its examination and determined individual dumping margins for a limited number of companies. The USDOC assigned 
the companies who were not selected for individual examination and who demonstrated sufficient 
independence from government control a "separate rate". In the original investigation, it assigned a single "Viet Nam-wide entity" rate to the Vietnamese respondents who did not demonstrate independence from government control. The Viet Nam-wide entity rate was determined on the 
basis of information contained in the petition. The USDOC continued to apply the same Viet Nam-
wide entity rate in each of the administrative reviews.  
2.7.  Without prejudice to which segments of the Shrimp  proceedings fall within the Panel's terms 
of reference, the following table summarizes the rates that were assigned by the USDOC to the 
Vietnamese producers/exporters involved: 
Proceeding, date of final 
determination, period of 
investigation or review Dumping margins17 
Mandatory and 
voluntary 
respondents Separate-rate respondents  Viet Nam-wide 
entity 
Original investigation 
 
8 December 2004 (amended 1 February 2005) 
POI: 1 April 2003 to 
30 September 2003 4 mandatory 
respondents, 
3 cooperated:  CAMIMEX: 5.24% 
 Minh Phu: 4.38% 
 Seaprodex Minh  
  Hai: 4.30% 4.57% 
 
(weighted-average of margins for mandatory 
respondents) 25.76% 
 
(calculated on the basis of facts available) 
First administrative review and first new shipper 
review 
 12 September 2007 
POR: 
16 July 2004 to 
31 January 2006 3 mandatory 
respondents, only 
one cooperated: 
Fish One: 0% 4.57%  
(the separate rate was based on the 
separate rate in the original investigation) 
Except:   Grobest: 0.00% (new shipper review rate)  25.76% 
                                               
14 Viet Nam's first written submission, paras. 30-33 and 215-216 (quoting from, and referring to, Panel 
Report, US – Section 129(c)(1) URAA , paras. 2.5-2.8 and footnotes 10 and 11; United States' written 
submission, paras. 8-10; response to Panel question No. 68. 
15 The United States refers to these as "segments" of the Shrimp  proceeding. 
16 Final likelihood-of-dumping determination and Issues and Decision Memorandum in the sunset 
review, Exhibit VN-14. Viet Nam's cl aims only pertain to the USDOC's likelihood-of-dumping determination. 
Although Viet Nam asserts that the order was continued, it only submit s to the Panel the USDOC's likelihood-
of-dumping determination, and does  not provide references to either the USITC's likelihood-of-injury 
determination or the continuation of the order by  the USDOC as a result of the USDOC and USITC 
determinations. 
17 The margins are those in the final determination or, where applicable, the amended final 
determination. WT/DS429/R 
 
- 18 - 
 
  Second administrative 
review 
 
9 September 2008  
POR: 
 
1 February 2006 to 
31 January 2007 2 mandatory 
respondents: 
 Minh Phu: 0.01% 
 CAMIMEX: 0.00%  4.57%  
Except:  
 Grobest: 0.00%  
 Fish One: 0.00% 
 Seaprodex Min Hai: 4.30% 
(USDOC applied the same separate rate as in the investigation, except for separate rate respondents which had previously received 
an individual margin)  25.76% 
Third administrative 
review 
 15 September 2009 
POR: 1 February 2007 to 
31 January 2008 3 mandatory 
respondents:  
 Minh Phu: 0.43% 
 CAMIMEX: 0.08% 
 Phuong Nam:  
  0.21% 4.57%  
Except: 
 Fish One: 0.00% 
 Grobest: 0.00% 
 Seaprodex Min Hai: 4.30% 
(USDOC applied the same separate rate as in the investigation, except for separate rate 
respondents which had previously received 
an individual margin). 25.76%  
Fourth administrative 
review  9 August 2010 (amended 
29 September 2010) 
 POR: 
1 February 2008 to 
31 January 2009 2 mandatory 
respondents:   Minh Phu: 2.95% 
 Nha Trang: 4.89% 3.92%
 
(simple average of margin for mandatory 
respondents) 25.76%  
Fifth administrative review  
 
12 September 2011 (amended 18 October 2011) 
POR: 
1 February 2009 to 
31 January 2010 3 mandatory 
respondents: 
 CAMIMEX: 0.80% 
 Minh Phu: 1.15% 
 Nha Trang: de 
minimis  1.03%  
(weighted-average of margins for mandatory 
respondents, excluding de minimis  margin) 25.76% 
Sixth administrative 
review  11 September 2012 (amended 18 October 2012) 
POR: 
1 February 2010 to 
31 January 2011 2 mandatory 
respondents:  Minh Phu: 0.53% 
 Nha Trang: 1.23% 0.88%
 
(simple average of margins for mandatory 
respondents) 25.76% 
Seventh administrative 
review  
12 September 2013 
POR: 
1 February 2011 to 
31 January 2012 2 mandatory 
respondents and one voluntary 
respondent: 
 Minh Phu: 0.00% 
  Nha Trang: 0.00%  Quoc Viet 
(voluntary respondent): 0.00% 0.00%
 
(weighted-average of margins for mandatory 
respondents) 25.76% 
 
2.8.  The relevant facts are described in more detail in our findings.  
2.9.  Viet Nam makes claims with respect to the USDOC's final determinations in the fourth, 
fifth and sixth administra tive reviews. Viet Nam's claims regarding these three administrative 
reviews concern: (i) the use of zeroing in the calculation of dumping margins; (ii) the rate that was assigned to certain Vietnamese producers who did not demonstrate sufficient independence 
from government control and thus were deemed by the USDOC to be part of the so-called 
"Viet Nam-wide entity"; and (iii) the USDOC's failure to revoke the anti-dumping order with respect to certain respondent Vietnamese producers/exporters.
18 Moreover, Viet Nam also makes 
claims with respect to the USDOC's likelihood-of-dumping determination in the context of the 
sunset review.  
2.10.  In addition, Viet Nam also makes "as such" claims with respect to the following measures: 
                                               
18 With respect to the latter, Viet Nam also ch allenges the USDOC's treatment of a request for 
revocation in the context of the third administrative review. (Viet Nam's response to Panel question No. 49). 
The United States argues that the third administrative review is not a measure at issue in this dispute 
(United States' second written submission, para. 34 and footnote 32.) The Panel addresses the United States' objection below, in paras. 7.356.  -7.361.   WT/DS429/R 
 
- 19 - 
 
  a. The USDOC's "simple zeroing methodology"19 as applied in administrative reviews; 
b. The USDOC's practice with respect to the rate that is assigned to certain 
producers/exporters who do not demonstrate sufficient independence from government control (the "NME-wide entity rate") in anti-dumping proceedings involving imports from 
NMEs;  
c. Section 129(c)(1) of the US Uruguay Round Agreements Act ("URAA"). 
3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS 
3.1.  Viet Nam requests that the Panel find as follows:
20 
a. The USDOC's simple zeroing methodology, as it applies in administrative reviews is, as 
such, inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994; 
b. The USDOC's application of the simple zeroing methodology in the calculation of 
dumping margins in the fourth, fifth and sixth administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994; 
c. The USDOC's practice, in anti-dumping proceedings involving imports from NMEs, with 
respect to the rate assigned to the "NME-w ide entity" comprised of producers/exporters 
who do not demonstrate sufficient independence from government control is, as such, 
inconsistent with Articles 6.10, 9.2, 9.4 and 6.8 of the Anti-Dumping Agreement; 
d. The rate assigned by the USDOC in the fourth , fifth and sixth admini strative reviews to 
the "Viet Nam-wide entity" comprised of Vietnamese producers/exporters who did not demonstrate sufficient independence from government control is inconsistent with 
Articles 6.10, 9.2, 9.4 and 6.8 of the Anti-Dumping Agreement; 
e. 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; 
f. The USDOC's reliance on margins of dumping calculated with zeroing and failure to 
properly establish the facts and conduct an objective evaluation in the first sunset review is inconsistent with Articles 11.3 and 17.6 of the Anti-Dumping Agreement; 
g. The USDOC's failure to revoke the anti-dumping duty order with respect to companies 
that have demonstrated the absence of dumping is inconsistent with Articles 11.1 and 11.2 of the Anti-Dumping Agreement.
21 
3.2.  Viet Nam requests that the Panel exercise its discretion under Article 19.1 of the DSU to 
suggest that the United States revoke the anti-dumping duty order: (i) in its totality, to comply 
with all the Panel's findings, and (ii) with respect to Minh Phu and Camimex, should the Panel find 
                                               
19 Viet Nam describes the "simple zeroing methodology" as the me thodology 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 re sults. (Viet Nam's first written submission, para. 54.) 
20 Viet Nam first written submission, para. 356; second written submission, para. 139. 
21 In addition, Viet Nam included a number of other cl aims in its request for the establishment of a panel 
which it did not pursue in its submissions to the Panel. In particular, Viet Nam's pa nel request included claims 
with respect to the USDOC's limitation of the number  of Vietnamese respondents selected for individual 
examination in the proceedings at issue (see Viet Nam's panel request, pp. 5-7), which Viet Nam did not pursue before the Panel. Moreover, wh ile with respect to certain claims Vi et Nam's panel request referred both 
to the USDOC's use of practices in the fourth, fifth an d sixth administrative reviews and to "the continued 
application" or the application on a "continued and ongoing basis" of thes e practices "throughout the full course 
of the shrimp anti-dumping proceeding", Viet Nam did not pursue any claims with resp ect to the latter in its 
submissions. See also the Panel's Preliminary Ruling, in which the Panel notes Viet Nam's indication that it would not pursue certain other claims  set forth in its panel request. WT/DS429/R 
 
- 20 - 
 
  that the USDOC acted inconsistently with Articles 11.1 and 11.2 in its treatment of these 
companies' requests for revocation.22 
3.3.  The United States requests that the Panel reject Viet Nam's claims that the United States has 
acted inconsistently with the covered agreements.23 
4  ARGUMENTS OF THE PARTIES 
4.1.  The arguments of the parties are reflecte d in their executive summaries, provided to the 
Panel in accordance with paragraph 18 of th e Working Procedures adopted by the Panel 
(see Annexes B-1, B-2, B-3 and B-4 and C-1, C-2, C-3 and C-4). 
5  ARGUMENTS OF THE THIRD PARTIES 5.1.  The arguments of China, the Euro pean Union, Japan, Norway and Thailand
24 are reflected in 
their executive summaries, provided in accordance with paragraph 19 of the Working Procedures 
adopted by the Panel (see Annexes D-1, D-2, D-3, D-4, and D-5). Ecuador did not submit written 
or oral arguments to the Panel. 
6  INTERIM REVIEW 
6.1.  On 16 July 2014, the Panel submitted its In terim Report to the parties. On 28 July, the 
United States submitted a written request for the review of precise aspects of the Interim Report. Viet Nam did not submit any request for review and did not submit comments on the 
United States' request for review. No meeting with the Panel was requested. 
6.2.  In accordance with Article 15.3 of the DSU,  this section of the Report sets out the Panel's 
response to the United States' request made at the interim review stage. The Panel modified aspects of its Report in the light of the United States' comments where it considered it appropriate, 
as explained below. As a result of the changes that we have made, the numbering of footnotes in 
the Final Report has changed from the Interim Report. References to footnotes in this section relate to this Report, except as otherwise noted.  
6.3.  The United States requested that the Panel revise the last sentence of paragraph 7.249 and 
the first sentence of footnote 399, and add language to paragraph 7.344 to more accurately reflect arguments it made before the Panel. The Panel amended the relevant paragraphs and footnote to 
more completely reflect the arguments made by the United States.  
6.4.  The United States noted that in footnote 334, the Panel briefly discusses the decision of the 
US Court of International Trade in Tembec v. United States . In light of the fact that the Panel 
addresses Viet Nam's arguments concerning this decision in more detail in two other footnotes and 
to avoid confusion, the United States requested that the Panel delete footnote 334 and rely on its 
more complete discussion of the case in these ot her footnotes. In light of the United States' 
comments, the Panel has moved footnote 334 and has reworded it to shorten it and to refer to the 
more complete discussion of the same issue in footnotes 373 and 398.  
6.5.  The United States requested that the Pa nel delete footnote 391 of the Interim Report 
because, it submits, this footnote appears to be based on an inaccurate characterization of its 
argument and, moreover, is superfluous to the Panel's reasoning and to the resolution of the 
dispute. Given that footnote 391 of the Interim Re port was not necessary to the Panel's resolution 
of Viet Nam's claim, the Panel has deleted it as requested by the United States. 
                                               
22 We note that Viet Nam included both requests under Article 19.1 of the DSU in its first written 
submission (Viet Nam's first written submission, para. 356). In its second written submission, Viet Nam only 
included the request that the Panel suggest the revocation of the order in its totality (Viet Nam's second written submission, para. 139), but did not indicate that it was abandoning its request with respect to Minh Phu and Camimex. Moreover, Viet Nam initially made the se cond request with  respect to Minh Phu, Camimex and 
Nha Trang Seafood. However, Viet Nam subsequently indicated that the inclusion of Nha Trang Seafood in the request was an error. (See Viet Nam's resp onse to Panel question No. 73(e), para. 51.) 
23 United States' first written submission, para. 275; second written submission, para. 119. 
24 Thailand did not submit written or oral arguments to the Panel but submitted responses to questions 
from the Panel.  WT/DS429/R 
 
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  6.6.  Finally, the Panel has made a number of change s of an editorial nature to improve the clarity 
and accuracy of the Report or to correct typographical errors, certain of which were suggested by the United States. 
7  FINDINGS 
7.1  Introduction 
7.1.1  General principles of treaty interpreta tion, the applicable standard of review and 
burden of proof  
7.1.1.1  Standard of review  
7.1.  Pursuant to Article 11 of the DSU, a panel has to "make an objective assessment of the 
matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist 
the DSB in making the recommendations or in giving the rulings provided for in the covered 
agreements". As to the establishment of the facts in a case, this "objective assessment" has been 
understood as mandating neither a de novo  review (i.e. the complete repetition of the fact-finding 
conducted by national authorities) nor "total deference" to domestic authorities (i.e. the simple 
acceptance of their determination).
25   
7.2.  Although Article 11 of the DSU sets forth a general standard of review for all covered 
agreements, Article 17.6 of the Anti-Dumping Agreem ent sets forth a specific standard of review 
applicable to anti-dumping disputes, namely: 
(i) in its assessment of the facts of the matter, the panel shall determine whether the 
authorities' establishment of the facts wa s proper and whether their evaluation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned; 
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance 
with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible 
interpretation, the panel shall find the authorities' measure to be in conformity with 
the Agreement if it rests upon one of those permissible interpretations. 
7.3.  Taken together, Article 11 of the DSU an d Article 17.6 of the Anti-Dumping Agreement 
establish the standard of review this Panel must apply with respect to both the factual and the 
legal aspects of the present dispute. 
7.4.  Several panels and the Appellate Body have addressed the use of this standard of review in 
cases where a panel is assessing whether competent authorities have complied with obligations in 
agreements that require governments to set forth their reasoning and determinations in written 
reports. 
7.5.  In US – Softwood Lumber VI (Article 21.5 – Canada) , the Appellate Body stressed that 
Article 11 requires panels to engage in a critical and searching analysis and that a panel must not 
limit itself to assessing whether the investigating authority's findings are not unreasonable.
26 In 
this regard the Appellate Body mentioned:  
The panel's scrutiny should test whether the reasoning of the authority is coherent 
and internally consistent. The panel must undertake an in-depth examination of 
whether the explanations given disclose how the investigating authority treated the facts and evidence in the record and whether there was positive evidence before it to 
support the inferences made and conclusion s reached by it. The panel must examine 
whether the explanations provided demonstrate that the investigating authority took 
                                               
25 Appellate Body Report, EC – Hormones , para. 117. 
26 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , paras. 113-140. WT/DS429/R 
 
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  proper account of the complexities of the da ta before it, and that it explained why it 
rejected or discounted alternative explanations and interpretations of the record evidence. A panel must be open to the possibility that the explanations given by the authority are not reasoned or adequate in the light of other plausible alternative 
explanations, and must take care not to assume itself the role of initial trier of facts, 
nor to be passive by "simply accept[ing]  the conclusions of the competent 
authorities".
27 
7.6.  The Appellate Body also recalled its indication in US – Countervailing Duty Investigation on 
DRAMS  that a panel must "consider, in the context of the totality  of the evidence, how the 
interaction  of certain pieces of evidence may justify certain inferences that could not have been 
justified by a review of the individual pieces of evidence in isolation".28  
7.7.  Moreover, Article 17.5(ii) of the Anti-Dumping Agreement makes clear that a panel is to 
examine the matter referred to it by the DSB "based upon … the facts made available in conformity with appropriate domestic procedures  to the authorities of the importing Member". 
Thus, the Panel must only consider evidence that was before the investigating authorities in 
reviewing the authorities' analysis and conclusions. The Appellate Body has explained that in doing such an analysis a panel should: 
bear in mind its role as a reviewer of agency action, rather than as initial trier of fact . 
Thus, a panel, examining the evidentiary basis for a subsidy determination should, on the basis of the record evidence before th e panel, inquire whether the evidence and 
explanation relied on by the investigating authority reasonably supports its 
conclusions.29  
7.8.  In sum, a panel reviewing the determination of the investigating authority must evaluate the 
determination being reviewed on the basis of what the investigating authorities knew at the time, 
and determine whether the investigating authority has provided a reasoned and adequate 
explanation of its conclusions, without conducting a de novo review or giving complete deference 
to the investigating authority. 
7.1.1.2  Treaty interpretation 
7.9.  Article 3.2 of the DSU provides that the dispute settlement system serves to clarify the 
provisions of the covered agreements "in accordan ce with customary rules of interpretation of 
public international law". It is generally accepted that the principles codified in Articles 31 and 32 
of the Vienna Convention on the Law of Treaties ("Vienna Convention"), in particular, are such 
customary rules.   
7.10.  As mentioned above, Article 17.6(ii) of the Anti-Dumping Agreement also provides that if a 
panel finds that a provision of the Anti-Dumping Agreement admits of more than one permissible 
interpretation, it shall uphold a measure that rest s upon one of those interpretations. According to 
the Appellate Body, Article 17.6(ii) contemplates a sequential analysis whereby the panel applies 
the customary rules of interpretation to the treaty and only after engaging in this exercise will a 
panel determine whether the second sentence of Article 17.6(ii) applies.30 The Appellate Body 
recognised that: 
                                               
27 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93. 
(emphasis original) 
28 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 157. 
(emphasis original) 
29 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 188. (italics original; 
underline added; footnotes omitted) 
30 Appellate Body Report, US – Continued Zeroing , para. 271. WT/DS429/R 
 
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  the application of the rules of the Vienna Convention  may give rise to an interpretative 
range and, if it does, an interpretation falling within that range is permissible and must be given effect by holding the measur e to be in conformity with the covered 
agreement. The function of the second sentence is thus to give effect to the 
interpretative range rather than to require the interpreter to pursue further the 
interpretative exercise to the point where only one interpretation within that range may prevail.
31 
7.11.  However, the Appellate Body has considered that the permissible range of interpretations 
cannot include mutually contradictory results. In the Appellate Body's view "[i]t would be a subversion of the interpretative disciplines of the Vienna Convention  if application of those 
disciplines yielded contradiction instead of coherence and harmony among, and effect to, all 
relevant treaty provisions".
32 
7.1.1.3  Burden of proof 7.12.  The general principles applicable to the a llocation of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO Agreement must assert 
and prove its claim.
33 Therefore, as the complaining party, Viet Nam bears the burden of 
demonstrating that the measures at issue taken by the United States are inconsistent with the 
provisions of the Anti-Dumping Agreement and of the GATT 1994 invoked by Viet Nam. The 
Appellate Body has stated that a complaining party will satisfy its burden when it establishes a prima facie  case, namely a case which, in the absenc e of effective refutation by the defending 
party, requires a panel, as a matter of law, to rule in favour of the complaining party.
34 Finally, it 
is generally for the party asserting a fact to provide proof for its assertions.35 
7.2  Preliminary ruling 7.13.  On 31 July 2013, the United States submitted to the Panel a request for preliminary rulings 
objecting to the inclusion of certain claims and measures in Viet Nam's panel request. Specifically, 
the United States requested that the Panel find that the following measures and claims were not 
within the Panel's terms of reference: (i) the sixth administrative review, as it was not listed as a 
measure at issue in Viet Nam's request for consultations;
36 (ii) the "use of zeroing in original 
investigations, new shipper reviews and changed circumstances reviews"37, as they were not listed 
in Viet Nam's request for consultations; (iii) the claim set forth in Viet Nam's panel request under Article 31 of the Vienna Convention, as the Vi enna Convention is not a covered agreement;
38 and 
(iv) the claim set forth in Viet Nam's panel request relating to the US Statement of Administrative 
Action ("SAA") accompanying the Uruguay Round Agreements Act, because the SAA does not have any legal effect independent of an applicable US statute or regulation and is thus not a measure 
susceptible to dispute resolution.
39 The United States requested that the Panel issue preliminary 
rulings before the filing of the first written submissions of the parties.40  
                                               
31 Appellate Body Report, US – Continued Zeroing , para. 272. 
32 Appellate Body Report, US – Continued Zeroing , para. 273. 
33 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
34 Appellate Body Report, EC – Hormones , para. 104. 
35 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
36 United States' request for pr eliminary rulings, para. 6. 
37 United States' request for pr eliminary rulings, para. 7. 
38 United States' request for prel iminary rulings, paras. 9-10. 
39 United States' request for prel iminary rulings, paras. 11-16. 
40 United States' request for pr eliminary rulings, para. 21. WT/DS429/R 
 
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  7.14.  Viet Nam responded to the United States' request for preliminary rulings on 5 August 2013, 
and each party submitted further written comments to respond to each other's comments on the US request.
41 The Panel also invited the third parties to submit any written comments they might 
have in response to the views expressed by the parties.42 
7.15.  In its response to the United States' request and in its comments, Viet Nam asked the Panel 
to find that the sixth administrative review was within its terms of reference.43 With respect to the 
other objections raised by the United States, Viet Nam indicated that it was not pursuing the 
remaining claims cited in the US request for preliminary rulings, namely those with respect to the 
USDOC's use of zeroing in original investigations, new shipper reviews and changed circumstances reviews;
44 the claim under Article 31 of the Vienna Convention;45 and the claim relating to 
the SAA.46 
7.16.  The Panel issued its Preliminary Ruling to the parties and third parties on 
26 September 2013 and indicated that, subject to  comments that parties may submit at the 
interim review stage, the ruling would form an integral part of its Final Report. In its Preliminary 
Ruling, the Panel dismissed the US request that it find that the sixth administrative review is 
outside its terms of reference.47 The Panel declined to make any findings with respect to the three 
remaining objections raised by the United States, in light of Viet Nam's indication that it was not 
pursuing the corresponding claims.48 While the Panel reserved its right to revisit the decisions 
contained in the preliminary ruling during the course of proceedings, the parties have not asked it to do so. Accordingly, the Panel maintains its resolution of the United States' objections as contained in the preliminary ruling, which is attached as Annex C of this Report. 
7.3  Viet Nam's claims with respect to zeroing 
7.3.1  Introduction 7.17.  Viet Nam's claims with respect to zeroing pertain to the "simple zeroing" methodology used 
by the USDOC in the context of administrative reviews. Viet Nam alleges that 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 results (those for which the 
individual export transaction price exceeds the weighted-average normal value).
49  
7.18.  Viet Nam requests the Panel to find that:50 
a. The USDOC's "simple zeroing" methodology in administrative reviews is "as such" 
inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the 
GATT 1994; and  
b. The application by the USDOC of the "simple zeroing" methodology in the fourth, fifth 
and sixth administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994.51 
                                               
41 United States' reply to Viet Nam's response  to the US request fo r preliminary rulings 
(13 August 2013); Viet Nam's response to the United States' reply for the request for preliminary rulings 
(16 August 2013). The Preliminary Ruling, at para. 1.2, in correctly states that Viet Nam submitted its response 
to the United States' reply on 19 August 2013. 
42 China and the European Union submitted comments on the United States' preliminary rulings request 
on 14 August 2013. 
43 Viet Nam's response to the United States' request for preliminary rulings, pa ras. 9-10; response to 
the United States' reply for the request for preliminary rulings, paras. 4-7. 
44 Viet Nam's response to the United States ' request for preliminary rulings, para. 3. 
45 Viet Nam's response to the United States ' request for preliminary rulings, para. 4. 
46 Viet Nam's response to the United States ' request for preliminary rulings, para. 5. 
47 Preliminary Ruling, Annex A-3, para. 6.1. 
48 Preliminary Ruling, Annex A-3, para. 6.2. 
49 Viet Nam's first written submission, para. 54. 
50 Viet Nam's panel request included a challenge against the zeroing methodology "as such and as 
applied in a continued and ongoing basis" (Viet Nam' s panel request, p. 3). Ho wever, Viet Nam has not 
developed or pursued a claim against the application of  the zeroing methodology on a "continued and ongoing 
basis" in its submissions to the Panel. We therefore limit our analysis to the "as such" and "as applied" claims developed by Viet Nam. WT/DS429/R 
 
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  7.19.  We examine each claim in turn, starting with Viet Nam's "as such" claim. 
7.3.2  Zeroing "as such" 7.3.2.1  Introduction 7.20.  We start with Viet Nam's claim that the zeroing methodology used by the USDOC in 
administrative reviews is, "as such", inconsistent with 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994.
52 
7.21.  In examining Viet Nam's claim, we shall first examine whether Viet Nam has established the 
existence of the zeroing methodology as a measure that may be challenged "as such". If we are 
satisfied that Viet Nam has properly established the existence of such a measure, we shall then evaluate the parties' arguments regarding the WTO-consistency of that measure. 
7.3.2.2  Whether Viet Nam has established th e existence of the zeroing methodology as 
a measure which may be challenged as such 
7.3.2.2.1  Main arguments of the parties 7.3.2.2.1.1  Viet Nam 
7.22.  Viet Nam submits that various panel and Ap pellate Body reports have  found that the zeroing 
methodology is an established norm which may be the subject of an "as such" claim and that the Appellate Body has concluded at least twice that the use of zeroing in administrative reviews is "as 
such" inconsistent with the Anti-Dumping Agreement.
53 Viet Nam further argues that a measure 
found by the Appellate Body to be "as such" incons istent with a covered agreement is not specific 
to the facts of any particular dispute; by their nature, "as such" claims are of general and prospective application and an Appellate Body finding of violation in respect of such a claim 
concerns the authority's on-going failure to bring the practice into conformity with clearly 
established obligations.
54  
7.23.  According to Viet Nam, the zeroing methodology still exists as a measure which may be 
challenged "as such" despite the fact that the USDOC modified its calculation methodology. 
Viet Nam contends that panels do make rulings on measures that have been modified or repealed and refers to the panel in US – Poultry (China)  as an example of a panel making such a ruling. 
Viet Nam also argues that the USDOC could easily re-start applying the zeroing methodology in 
administrative reviews because it has the authority to do so under US law. Finally, Viet Nam contends that the United States continued to use the zeroing methodology after Viet Nam requested consultations with the United States in this dispute, in the final results of the 
sixth administrative review, published on 11 September 2012.
55 
7.3.2.2.1.2  United States 7.24.  The United States replies that Viet Nam has failed to demonstrate as a matter of fact that 
the United States maintains a measure of general and prospective application that requires the use 
of zeroing. According to the United States, Appellate Body and panel findings in prior disputes regarding the existence, "as such", and precise content of the zeroing measure cannot constitute 
conclusive evidence for the purpose of this disput e. Moreover, the facts underlying this dispute are 
different from the facts in prior disputes because the USDOC has changed its calculation methodology for determining dumping margins and now grants offsets for non-dumped comparisons.
56 The United States submits that, by the time Viet Nam requested the establishment 
                                                                                                                                               
51 Viet Nam's first written submission, para. 356; second written submission, para. 139. 
52 Viet Nam's first written submission, para. 91; second written submission, para. 4. 
53 Viet Nam's first written submission, pa ras. 67-68 (referring to Panel Reports, US – Continued Zeroing , 
para. 7.175;  US – Zeroing (Japan) , para. 7.58; US – Stainless Steel (Mexico) , para. 7.97; Appellate Body 
Reports, US – Zeroing (Japan) , paras. 88, 166, and 169; US – Stainless Steel (Mexico) , paras. 133-136). 
54 Viet Nam's first written submission, para. 69. 
55 Viet Nam's response to Panel question No. 4, pa ras. 10-15; opening statement at the second meeting 
of the Panel, para. 19. 
56 United States' first written submission, paras. 205-209. WT/DS429/R 
 
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  of this Panel, there was no "zeroing" measure as  found in previous WTO reports and nothing that 
required the use of that methodology. According to the United States, the USDOC has, since April 2012, issued numerous determinations in which it has granted offsets equal to the amount by which normal value is less than export price on non-dumped sales, including in the most recent 
administrative review under the Shrimp  order.
57  
7.25.  The United States also contests Viet Nam's argument that the USDOC could easily re-
impose the zeroing methodology. It notes that the USDOC's changes in methodology were made 
after extensive consultations with appropriate congressional committees, private sector advisory 
committees, and public comment regarding the proposed modifications. The United States adds that Viet Nam has not provided a single example of a USDOC practice that was found to be WTO-inconsistent and changed pursuant to section 123(g) being subsequently "easily re-imposed". The 
United States also submits that the situation before this Panel is different from the situation in 
US – Poultry (China)  where the panel decided to rule on the repealed measure because it 
recognized that that measure could allow the repe tition of potentially WTO-inconsistent conduct.
58 
7.3.2.2.2  Main arguments of the third parties 
7.26.  The European Union  submits that its experience indicates that the United States no longer 
systematically resorts to zeroing in all cases since April 2012, but considers that the Panel's 
resolution of this question will ultimately depend on a close analysis of all the evidence before the 
Panel.59 
7.27.  Japan  submits that the Panel should examine whether the modified calculation 
methodology also applies to remaining unliquidated entries. Japan also notes that in the Federal 
Register notice announcing the modification of its calculation methodology, the USDOC indicated 
that it "retains the discretion on a case-by-case basis, to apply an alternative methodology, as appropriate".
60   
7.28.  Thailand  submits that even if the zeroing methodology used prior to 2012 has changed and 
thus can no longer be challenged "as such" in dispute settlement proceedings, it is possible that the old methodology has now been replaced by a ne w zeroing methodology that could, in itself, be 
challenged "as such" in dispute settlement proceedings. The Panel may also wish to consider 
whether, if it finds that the old practice or methodology no longer exists, there is a new practice or methodology that would separately meet the test for being susceptible to challenge on an "as such" basis.
61 
7.3.2.2.3  Evaluation by the Panel 
7.29.  Viet Nam's claim raises the issue of when, and under what conditions, an unwritten rule or 
norm may be challenged "as such". Neither the DSU nor the Anti-Dumping Agreement establishes 
criteria for determining when measures can be challenged "as such". However, we can find 
relevant guidance in previous WTO dispute settlement decisions where claims of this nature have been considered. Thus, we believe it is useful, before analysing whether the zeroing methodology 
can be challenged "as such" in the present dispute, to recall how "as such" challenges have been 
examined in previous WTO dispute settlement case s. The following summary will also be relevant 
for our subsequent consideration of Viet Nam's "as such" claims concerning the NME-wide entity rate practice and concerning Section 129(c)(1).  
7.30.  In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body concluded that, in 
principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement, and noted that, in  WTO dispute settlement, panels have examined 
not only particular acts applied in specific situations, but also "acts setting forth rules or norms 
                                               
57 United States' opening statement at the first meeting of the Panel, paras. 39-41. 
58 United States' second written submission, paras. 102-104. 
59 European Union's response to Panel question No. 2, para. 12. 
60 Japan's response to Panel question No. 2, paras. 2-3. Japan refers to requ ests for the establishment 
of a panel submitted by Korea in WT/DS464/4, dated 6 December 2013; and by China in WT/DS471/5, dated 
16 December 2013. 
61 Thailand's response to Panel question Nos. 1 and 2, p. 1. WT/DS429/R 
 
- 27 - 
 
  that are intended to have general and prospective application".62 The Appellate Body explained 
that, allowing claims against measures "as such" pr otects "the security and predictability needed 
to conduct future trade" and also "serves the purpose of preventing future disputes by allowing the root of WTO-inconsistent behaviour to be eliminated".
63 In the same dispute, the Appellate Body 
also considered whether there are any limitations as to the types of measures that may be the 
subject of an "as such" challenge under the DSU or the Anti-Dumping Agreement. Recalling its reasoning in US – 1916 Act  that panels have jurisdiction to consider legislation "as such" under 
both agreements, the Appellate Body found that, al though most of the measures subject "as such" 
to dispute settlement were legislation, a broad range of measures could be submitted "as such" to dispute settlement.
64 The Appellate Body considered that the language in Article 17.3 of the Anti-
Dumping Agreement contains "no threshold requirement … that the measure in question be of a 
certain type" and that the phrase "laws, regulations and administrative procedures" in Article 18.4 
of the Anti-Dumping Agreement encompasses "the entire body of generally applicable rules, norms and standards adopted by Members in connec tion with the conduct of anti-dumping 
proceedings".
65 Following this analysis, the Appellate Body concluded that there is "no reason for 
concluding that, in principle, non-mandatory measures cannot be challenged 'as such'".66 
7.31.  Subsequently, in US – Oil Country Tubular Goods Sunset Reviews , the Appellate Body 
further clarified that the relevant issue is not whether the measure subject to an "as such" 
challenge is a binding legal instrument within the domestic legal system of a Member, but, rather, whether it is "a measure that may be challenged within the WTO system".
67 In that dispute, the 
Appellate Body considered that the USDOC's Sunset Policy Bulletin (SPB) was a measure which 
could be challenged "as such" in spite of its non-binding character: 
In our view, the SPB has normative value, as it provides administrative guidance and 
creates expectations among the public and among private actors. It is intended to 
have general application, as it is to apply to all sunset reviews conducted in the 
United States. It is also intended to have prospective application, as it is intended to apply to sunset reviews taking place after its issuance. Thus, we confirm – once 
again – that the SPB, as such, is subject to dispute settlement.
68 
7.32.  The Appellate Body further observed that: 
By definition, an "as such" claim challenges laws, regulations, or other instruments of 
a Member that have general and prospective application, asserting that a Member's 
conduct – not only in a particular instance that has occurred, but in future situations 
as well – will necessarily be inconsistent with that Member's WTO obligations. In essence, complaining parties bringing "as such" challenges seek to prevent Members 
ex ante  from engaging in certain conduct. The implications of such challenges are 
obviously more far-reaching than "as applied" claims.
69 
7.33.  In US – Zeroing (EC) , the Appellate Body considered whether unwritten rules or norms 
could be challenged "as such". Recalling its findings in US – Corrosion-Resistant Steel Sunset 
Review  and US – Oil Country Tubular Goods Sunset Reviews  regarding the types of measures that 
could be challenged "as such", the Appellate Body found that there is no basis to conclude that rules or norms can be challenged "as such" only if they are expressed in the form of a written 
instrument.
70 The Appellate Body cautioned, however, that "a panel must not lightly assume the 
existence of a "rule or norm" constituting a measure of general and prospective application, 
                                               
62 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , paras. 81-82. 
63 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 82. 
64 The Appellate Body recalled, in this respect, its statement in Guatemala – Cement I  that, in the 
practice established under the GATT 1947, a "measure" may be " any act of a Member, whether or not legally 
binding, and it can include even non-binding administ rative guidance by a government". (Appellate Body 
Report, US – Corrosion-Resistant Steel Sunset Review , para. 85, referring to Appellate Body Report, 
Guatemala – Cement I , footnote 47 to para. 69.) 
65 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , paras. 86-87. 
66 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 88. 
67 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 187. 
68 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 187. (footnotes 
omitted) 
69 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 172. 
70 Appellate Body Report, US – Zeroing (EC) , para. 193. WT/DS429/R 
 
- 28 - 
 
  especially when it is not expressed in the form of a written document".71 The Appellate Body 
explained that, when a challenge is brought agains t a rule or norm that is not expressed in the 
form of a written document, "the very existence of the challenged 'rule or norm' may be uncertain".
72 The Appellate Body indicated that the complainant must establish the following to 
meet the particularly high burden  of establishing the existence of a rule or norm of general and 
prospective application that is not expressed in a written document: 
In our view, when bringing a challenge against such a "rule or norm" that constitutes 
a measure of general and prospective application, a complaining party must clearly 
establish, through arguments and supporting evidence, at least that the alleged "rule 
or norm" is attributable to the responding Member; its precise content; and indeed, that it does have general and prospective application. It is only if the complaining 
party meets this high threshold, and puts fo rward sufficient evidence with respect to 
each of these elements, that a panel would be in a position to find that the "rule or norm" may be challenged, as such. This evidence may include proof of the systematic 
application of the challenged "rule or norm". Particular rigour is required on the part of 
a panel to support a conclusion as to the existence of a "rule or norm" that is not 
expressed in the form of a written document. A panel must carefully examine the 
concrete instrumentalities that evidence the existence of the purported "rule or norm" 
in order to conclude that such "rule or norm" can be challenged, as such.
73 
7.34.  This reasoning has been subsequently applied by panels considering "as such" challenges in 
US – Zeroing (Japan) , US – Stainless Steel (Mexico)  and US – Shrimp (Viet Nam) .74 Those panels 
further observed that a measure may be found to have general and prospective application if it 
reflects a deliberate policy, going beyond the mere repetition of the application of that measure in specific instances.
75 
7.35.  In this dispute, following the guidance of  those prior decisions, we shall consider whether 
Viet Nam has met its burden of proof with respect to the existence of the unwritten zeroing methodology as a rule or norm which can be challe nged "as such". In particular, we shall consider 
whether Viet Nam has established: (i) that th e zeroing methodology is "attributable" to the 
United States, (ii) the "precise content" of th e zeroing methodology, and (iii) that the zeroing 
methodology does have "general and prospective application". 
7.36.  With respect to the precise content of the alleged norm or rule, and attribution to the 
United States, we recall that Viet Nam refers to the calculation of dumping margins in 
administrative reviews, whereby the USDOC, in aggregating intermediate comparison results to 
determine the numerator, "zeroes" or disregards a ll negative results where export price is higher 
than normal value.
76 Viet Nam also posits that the zeroing methodology is applied by the USDOC, 
which forms part of the United States Government. The United States does not contest that Viet Nam has established the content of the zero ing methodology, and that that methodology is 
attributable to the United States.  
7.37.  Turning to the issue of whether Viet Nam has demonstrated that the zeroing methodology 
has "general and prospective application", we note that Viet Nam refers to previous disputes in which panels or the Appellate Body found that the zeroing methodology in administrative reviews 
was a norm or practice that could be subject to an "as such" claim.
77 Viet Nam argues that "[a]n 
inconsistency found by the Appellate Body to be an as such violation relates to the authority's use of the practice itself and is not specific to the facts of any particular dispute".
78 Viet Nam also 
submits that the United States bears the burden of  demonstrating that the panel's factual findings 
                                               
71 Appellate Body Report, US – Zeroing (EC) , para. 196. 
72 Appellate Body Report, US – Zeroing (EC) , para. 197. 
73 Appellate Body Report, US – Zeroing (EC) , para. 198. (emphasis original) 
74 Panel Reports, US – Zeroing (Japan) , paras. 7.47-7.59; US – Stainless Steel (Mexico) , paras. 7.28-
7.42 and 7.84-7.97; and US – Shrimp (Viet Nam) , paras. 7.110-7.111. 
75 Panel Reports, US – Zeroing (Japan) , para. 7.52; US – Stainless Steel (Mexico) , paras. 7.40 
and 7.95; US – Shrimp (Viet Nam) , para. 7.112. 
76 Viet Nam's first written submission, para. 54. 
77 Viet Nam's first written submission, paras. 67-68 (referring to Appellate Body Reports, US – Zeroing 
(Japan) , paras. 88, 166 and 169; US – Stainless Steel (Mexico) , paras. 133-136; and Panel Reports, US – 
Zeroing (Japan) , para. 7.175; and US – Stainless Steel (Mexico) , para. 7.97). 
78 Viet Nam's first written submission, para. 69. WT/DS429/R 
 
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  and conclusions in US – Shrimp (Viet Nam)  with respect to the WTO-inconsistency of this 
methodology, which the United States did not appeal, are in error.79  
7.38.  As an initial matter, Viet Nam appears to be claiming that findings of panels and the 
Appellate Body in previous disputes are sufficient to establish, in the present dispute, the existence 
of the zeroing methodology as applied in administrative reviews as a norm of general and 
prospective application, and that the burden has now shifted to the United States, which should demonstrate that these previous factual findings are not applicable in the present dispute.  
7.39.  We are not persuaded by this argument. We recall that it is a well-established rule in WTO 
dispute settlement proceedings that "the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof".
80 Hence, in our view, the factual findings in 
previous decisions do not relieve a complainant of the burden of establishing the facts in a 
subsequent dispute it initiated. We note that the Appellate Body reached a similar conclusion in a 
prior zeroing dispute, when it found that a complaining party may not discharge its burden of proof with respect to the establishment of the facts simply by referring to past decisions. The 
Appellate Body observed: 
As an initial matter, we note the European Communities' reference to adopted panel 
and Appellate Body reports in which the existence of the United States' zeroing 
methodology, as an unwritten norm of general and prospective application, was found 
to exist in the context of both original investigations and periodic reviews. Factual 
findings made in prior disputes do not determine facts in another dispute. Evidence 
adduced in one proceeding, and admissions made in respect of the same factual 
question about the operation of an aspect of municipal law, may be submitted as 
evidence in another proceeding. The finders of  fact are of course obliged to make their 
own determination afresh and on the basis of  all the evidence before them. But if the 
critical evidence is the same and the factua l question about the operation of domestic 
law is the same, it is likely that the finder of facts would reach similar findings in the two proceedings. Nonetheless, the factual fi ndings adopted by the DSB in prior cases 
regarding the existence of the zeroing methodology, as a rule or norm, are not 
binding in another dispute.81 
7.40.  We further note that the panel in US – Shrimp (Viet Nam)  similarly considered that the 
factual findings of prior panels and the Appellate  Body did not "alleviate Viet Nam's burden of 
establishing, before us, that the U.S. zeroing methodology is a norm of general and prospective 
application".82  
7.41.  Viet Nam further argues that "the extent of  [the burden of proof] and the party bearing this 
burden will vary based on the particular circum stances of a proceeding" and that it does not 
"bear[] the burden of establishing for a second time the facts on which the findings and conclusions of the panel in [ US – Shrimp (Viet Nam) ] were based". According to Viet Nam, it is 
now up to the United States, which did not appeal the findings and conclusions of the panel in 
US – Shrimp (Viet Nam) , to demonstrate that those findings and conclusions "are not correct or 
are not applicable in the instant proceeding".
83  
7.42.  We disagree with Viet Nam. In our view, the fact that the panel in US – Shrimp (Viet Nam)  
found that Viet Nam had established the existence of the zeroing methodology as a measure of 
general and prospective application under the sa me anti-dumping order does not affect the 
fundamental rule regarding allocation of the burden of proof in the present dispute. Viet Nam is 
therefore bound to provide relevant evidence prov ing the facts it asserts in the present dispute 
and cannot rely on previous panel and Appellate Body decisions to establish, as a matter of fact, the existence of the zeroing methodology as a norm or rule of general and prospective application. 
                                               
79 Viet Nam's response to Panel question No. 2, para. 2. 
80 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. See also above, Section 7.1.3, "Burden 
of Proof". 
81 Appellate Body Report, US – Continued Zeroing , para. 190. (emphasis adde d, footnote omitted) 
82 Panel Report, US – Shrimp (Viet Nam) , footnote 163. 
83 Viet Nam's opening statement at the fi rst meeting of the Panel, paras. 2-3. WT/DS429/R 
 
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  7.43.  In addition to relying on findings in previous disputes, Viet Nam also submits factual 
evidence in support of its allegation that the zeroing methodology applied by the USDOC in administrative reviews is a rule or norm of general and prospective application. First, Viet Nam provides the Panel with evidence that the zeroin g methodology was used in administrative reviews 
one to six of the Shrimp  order.
84 The United States does not contest that zeroing was used in the 
three administrative reviews at issue in the present dispute, reviews four to six.85 Moreover, in 
response to a question by the Panel, the United States indicates that it "does not dispute that a 
number of the dumping margins derived in the original investigation and in the first 
three administrative reviews were calculated using the so-called 'zeroing' methodology".86 
7.44.  Second, Viet Nam provides the Panel with evidence indicating that the USDOC applies 
zeroing in anti-dumping proceedings more generally. Some of the Issues and Decision Memoranda 
submitted by Viet Nam contain statements pointing  to the general and prospective nature of the 
zeroing methodology.87 In addition, Viet Nam submits an affidavit from Ms Anya Naschak 
discussing the USDOC's use of zeroing in the three administrative reviews at issue. The affidavit 
also includes a general overview of the standard computer programme used by the USDOC in anti-
dumping cases, indicating that the structure and language of this computer programme implement 
zeroing in original investigations and administrative reviews.88 The United States has not contested 
the description provided in the Naschak affidavit. 
                                               
84 Viet Nam submits the final determinations and Issues and Decision Memoranda in the original 
investigation and the first, second and third administrative reviews (Exhibit VN-72). The Issues and Decision Memoranda accompanying the final determinations in these three reviews indicate that the USDOC used zeroing to calculate margins of dumping (see first ad ministrative review, Comment 3, pp. 14-15; second 
administrative review, Comment 5, pp. 12-13; and th ird administrative review, Comment 3, pp. 10-13). 
Finally, Viet Nam has put on the record the USDOC's final determinations in administrative reviews four to six, 
at issue in the present dispute, which confirm that th e USDOC did not allow non-du mped sales to offset the 
amount of dumping found with respect to other sales (see Issues and Decision Memorandum accompanying the final determination in the fourth administrative review, Exhibit VN-13, Comment 10, p. 33; Issues and 
Decision Memorandum accompanying the final determinatio n in the fifth administrative review, Exhibit VN-18, 
Comment 3, p. 29; and Issues and Decision Memorandum accompanying the final determination in the 
sixth administrative review, Exhibit VN-20, Comment 3, p. 26). Viet Nam also submits evidence demonstrating that the USDOC used model zeroing in the original investigation (Issues and Decision Memorandum accompanying the final determination in the original investigation, Exhibit VN-04, p. 12). 
85 United States' first written submission, paras. 210-211, and opening statement at the first meeting of 
the Panel, paras. 42-44. As discussed below, the United States submits, ho wever, that zeroing was not used in 
the seventh administrati ve review under the Shrimp  order. 
86 United States' response to Panel question No. 37, para. 123. 
87 For instance, in the Issues and Decision Memora ndum accompanying the final determination in the 
fourth administrative review, the USDOC observed that "c onsistent with the Department's interpretation of the 
Act described above, in the event that any of the export  transactions examined in this review are found to 
exceed normal value, the amount by which the price ex ceeds normal value will not o ffset the dumping found in 
respect of other transactions", Exhi bit VN-13, p. 35. In the Issues an d Decision Memorandum accompanying 
the final determination in the fifth administrative re view, the USDOC states that "[b]ecause no dumping 
margins exist with respect to sales where NV is equal to or less than EP or CEP, th e Department will not permit 
these non-dumped sales to offset the amount of dumping found with respect to other sales. The CAFC has held 
that this is a reasonable interpretation of Section 771(35)  of the Act" (Exhibit VN-18, p. 29). In the Issues and 
Decision Memorandum accompanying the final determin ation in the sixth administrative review, the USDOC 
states, inter alia , that "the CIT recently sustained the Depa rtment's explanation for using zeroing in 
administrative reviews while not using zeroing in certain types of investigations" (Exhibit VN-20, p. 26). 
88 Naschak affidavit, Exhibit VN-25, paras. 5-6. In her affidavit, Ms Naschak introduces herself as an 
International Trade Analyst employed at the law firm of Curtis, Mallet-Prevost, Colt, and Mosle LLP, and who was previously employed as an analyst in the USDOC. Under the heading "Overview of the Standard Computer 
Programming for Antidumping Cases", Ms Naschak notes:  
The USDOC requires foreign respondents to prov ide extensive sales and factors of production 
information for the specific period under examinat ion. Data must be provided for both the U.S. 
and the factors of production. The USDOC has in place standard computer programs that 
manipulate these databases to execute every as pect of the USDOC's margin calculation. The 
USDOC's computer programs are divided into spec ific 'sections' of programming code, each of 
which executes a specific aspect of the USDOC's dumping margin calculations. The USDOC computer programs are all written and executed using SAS, which is both a software application and a computer programming langua ge. The SAS programming language works only 
in the SAS software application, and it is the tool by which the prog rammer communicates the 
calculations and procedures that he or she want s the SAS application to execute. The structure 
and language of the computer programming the USDOC uses to derive the overall weighted-
average dumping margin are basically the sale in  an original investigat ion and administrative WT/DS429/R 
 
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  7.45.  The United States submits, however, that the facts in this dispute are different from the 
facts in the US – Shrimp (Viet Nam)  dispute because, effective April 2012, the USDOC changed its 
practice for calculating dumping margins in administrative reviews in response to Appellate Body findings, and now "grants offsets for non-dumped comparisons (i.e., does calculations without the 
'zeroing' methodology) in various types of proceedings", including administrative reviews.
89 As 
evidence in support of this assertion, the United States submits a Notice of Final Modification in which the USDOC announces that it is modifying its calculation methodology, which "was 
challenged as being inconsistent with the WTO … GATT 1994 and the … Anti-Dumping Agreement 
in several disputes".
90 The United States further submits that, consistent with the Final 
Modification, the USDOC granted offsets for non-dumped transactions in the 
seventh administrative review of the Shrimp  order91 and that, since April 2012, it has issued 
"numerous determinations" under other anti-dumping orders in which it has granted such offsets 
in various contexts, including original investigations, administrative reviews, and sunset reviews.92  
7.46.  Viet Nam does not dispute that the USDOC modified its calculation methodology in 
administrative reviews. Nor does Viet Nam contest that the USDOC did not apply the zeroing 
methodology when calculating dumping margins in the seventh administrative review under the Shrimp  order or in other administrative reviews under other orders.
93  
                                                                                                                                               
reviews, although minor differences  in language occur. These differe nces do not, however, affect 
the language and procedures used to implement what is commonly referred to as "zeroing". 
89 United States' first written submission, pa ras. 203, 206 and 208; opening statement at the 
first meeting of the Panel, paras. 39-41;  second written submission, para. 99. 
90 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and 
Assessment Rate in Certain Antidumping Duty Proceedings;  Final Modification (hereafter "Final Modification"), 
Exhibit US-39, p. 8101. 
91 United States' first written submission, para. 208; opening statement at the first meeting of the 
Panel, para. 41. In its preliminary and final determinat ions in the seventh administrative review, the USDOC 
indicated that it "applied the assessment rate calculation method adopted in Final Modification for Reviews, i.e. , 
on the basis of monthly average-to-average comparison s using only the transactions associated with that 
importer with offsets begin provided  for non-dumped comparisons". (Preli minary determination in the seventh 
administrative review, Exhibit US-29, p. 15703; final determination in the seventh administrative review, Exhibit US-30, p. 56216.) 
92 United States' first written submission, para. 208; opening statement at the first meeting of the 
Panel, para. 40; response to Panel question No. 54, pa ra. 4. The United States refers to a number of USDOC 
determinations in administrative re views and sunset reviews which, it argues show that the USDOC acted 
consistently with the Final Modification by not zeroing in administrati ve reviews and by not relying on margins 
of dumping calculated with zeroing in likelihood-of-du mping determinations in the context of sunset reviews 
(United States' first written submission, footnote 274, referring to Stainless Steel Bar From India: Final Results 
of Antidumping  Duty Administrative Review; 2011-2012 , 78 Fed. Reg. 34,337 (7 June 2013), Exhibit US-40, 
p. 34337; Ball Bearings and Parts Thereof From  France, Germany, and Italy: Final Results of Antidumping Duty 
Administrative Reviews; 2010-2011, 77 Fed. Reg. 73,415 (10 Dec. 2012); Exhibit US-41; and United States' 
first written submission, footnote 275, referring to Low Enriched Uranium From Fr ance: Final Results of the 
Expedited Second Sunset Re view of the Antidumping  Duty Order , 78 Fed. Reg. 21,100 (9 April 2013), 
Exhibit US-42; Certain Hot-Rolled Carbon Steel Fl at Products From India, Indone sia, the People's Republic of 
China, Taiwan, Thailand, and Ukraine; Final Results of the Expedited Second Sunset Reviews of the Antidumping Duty Orders , 78 Fed. Reg. 15,703 (12 March 2013) , Exhibit US-43; Lemon Juice From Argentina: 
Final Results of the Expedited First Sunset Review of the Suspended Antidumping Duty Investigation , 77 Fed. 
Reg. 73,021 (7 Dec. 2012), Exhibit US-44; Steel Concrete Reinforcing Bars Fr om Belarus, Indonesia, Latvia, 
Moldova, Poland, People's Republic of China and Ukraine: Final Results of the Expedited Second Sunset Reviews of the Antidumping Duty Orders , 77 Fed. Reg. 70,140 (23 Nov. 2012), Exhibit US-45; Honey From the 
People's Republic of China: Final Results of  Expedited Sunset Review of the Antidumping  Duty Order , 77 Fed. 
Reg. 59,896 (1 Oct. 2012), Exhibit US-46; and Certain Activated Carbon From th e People's Republic of China: 
Final Results of Expe dited Sunset Review of the Antidumping  Duty Order , 77 Fed. Reg. 33,420 (6 June 2012), 
Exhibit US-47. 
93 Viet Nam's response to Panel question No. 52, paras. 1-2. In its response, Viet Nam submits, 
however, that, in the preliminary determination in the ei ghth administrative review, the USDOC resorted to the 
alternative average-to-transaction methodology provided  for in Article 2.4.2 of the Anti-Dumping Agreement 
and used zeroing, and notes that the Appellate Body has not ruled specifically on the application of zeroing in 
such a context. We note, however, th at Viet Nam's claims are limited to the simple zeroing methodology and 
that Viet Nam does not challenge the use of zeroing in the context of the third meth odology provided for under 
Article 2.4.2. Hence, we do not address the question of the consistency of zeroing in this context, and consider 
that even if Viet Nam demonstrated that the USDOC di d use zeroing in applying the third methodology in the 
eight administrative review, this would be irrelevant  to our consideration of whether the simple zeroing 
methodology as used in administrative reviews is a measure of general and prospective application. WT/DS429/R 
 
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  7.47.  Viet Nam contends, however, that, despite the Final Modification and the fact that zeroing 
was not used in the seventh administrative review of the Shrimp  order, "the USDOC's zeroing 
methodology still exists as a measure that can be challenged 'as such'".94 Viet Nam also argues 
that panels routinely make rulings on measures that have been modified or repealed and submits 
that this dispute is similar to the US – Poultry (China) case where the panel decided to rule on a 
measure which expired two days before the complainant's first written submission, because it considered that the respondent Member had not conceded the WTO-incons istency of the measure 
and the repealed measure could be easily re-imposed.
95 Viet Nam finally submits that the USDOC 
continued to use the zeroing methodology after the implementation of the Final Modification, since the final results of the sixth administrative revi ew, published on 11 September 2012, utilized the 
zeroing methodology.
96  
7.48.  In our view, Viet Nam's arguments are somewhat self-contradictory. On the one hand, 
Viet Nam argues that the measure "still exists as a measure that can be challenged 'as such'", thereby conveying that, in Viet Nam's view, zeroin g in administrative reviews still exists as a 
measure of general and prospective application. On the other hand, Viet Nam contends that 
"[p]anels routinely make rulings on measures that have been modified or repealed", thus suggesting that the measure does not exist any longer, having been modified or repealed. 
7.49.  We note that in the Final Modification submitted as evidence by the United States, the 
USDOC indicates, inter alia , that: 
In reviews, except where the Department de termines that application of a different 
comparison method is more appropriate,  the Department will compare monthly 
weighted-average export prices with monthly weighted-average normal values, and 
will grant an offset for all such comparisons that show export price exceeds normal value in the calculation of the weighted-average margin of dumping and antidumping 
duty assessment rate.
97 
7.50.  In the Final Modification, the USDOC also observes that the methodology which it modifies 
was found inconsistent, both "as such" and "as applied", with Article VI:2 of the GATT 1994 and 
Article 9.3 of the Anti-Dumping Ag reement by the Appellate Body in US – Zeroing (EC) , US – 
Zeroing (Japan) , US – Stainless Steel (Mexico)  and US – Continued Zeroing (EC) . It indicates that, 
following these adverse rulings, the USTR info rmed the WTO Dispute Settlement Body that the 
United States intended to comply with its WTO obligations in these disputes. The USDOC also 
explains that "[i]n adopting this Final Modification for Reviews , the Department's intention is to 
apply a comparison methodology in reviews that parallels the WTO-consistent methodology the Department currently applies in original investigations".
98 
7.51.  In our view, Viet Nam's arguments fail to appreciate the significance of the Final 
Modification for its assertion that the zeroing methodology is a measure of general and prospective application. To us, the fact that the USDOC has modified its calculation methodology and ceased to 
apply the zeroing methodology in administrative reviews is a significant element to take into 
consideration because it speaks directly to the question of the very existence of this methodology as a measure of general and prospective application. The Final Modification indicates that the 
                                               
94 Viet Nam's response to Panel question No. 4, para. 10. 
95 Viet Nam's response to Panel question No. 4, para s. 11-14. Viet Nam refers to the Panel Report in 
US – Poultry (China) , para. 7.55. Viet Nam also recalls that, while the US – Poultry (China)  panel made 
findings concerning the WTO-inconsistency of the measure,  it considered that it would not be appropriate to 
make recommendations. 
96 Viet Nam's response to Panel question No. 4, pa ra. 15. In response to a question by the Panel, 
Viet Nam also indicates that the 2012 Final Modification  did not apply to entries which remained unliquidated 
as of the date of its entry into force (i.e. 16 April 2012), as illustrated by the fact that it did not apply to entries subject to the sixth administrative review. (Viet Nam's response to Panel question No. 53, para. 3; comments on the United States' response to Panel question No. 53, para. 1.) 
97 Final Modification, Exhibit US-39, p. 8102. The Fina l Modification also announces a modification of the 
USDOC practice in sunset reviews, indicating that in sunset review determinations, the USDOC will no longer rely on dumping margins that were calculated using zeroing. 
98 Final Modification, Exhibit US-39, p. 8102. The USDO C modified its calculation methodology in original 
investigations, to eliminate zeroing under the weighted-average to weighted-average methodology, in 2006; 
see Antidumping Proceedings: Calculation of the Weight ed-Average Dumping Margin During an Antidumping 
Investigation; Final Modification , 71 Fed. Reg. 77,722 (27 December 2006), Exhibit US-38, referred to in 
United States' first written submission, footnote 273). WT/DS429/R 
 
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  USDOC decided to apply a modified methodology, ex cept where it determines that application of a 
different comparison method is more appropriate.99 This decision took effect with respect to all 
reviews for which the preliminary determination is issued after 16 April 2012.100 Viet Nam 
requested the establishment of a panel on 20 December 2012 and the Panel was established on 
27 February 2013.101 Hence, in our view, as of the date of Viet Nam's panel request and as of now, 
the USDOC's simple zeroing methodology, as used by the USDOC in administrative reviews, does 
not exist as a measure of general and prospective application. 
7.52.  The United States does not contest that, as argued by Viet Nam, dumping margins in the 
sixth administrative review were calculated using the zeroing methodology. However, the fact that 
the USDOC used zeroing in the final results of the sixth administrative revi ew, i.e. after the Final 
Modification, does not in our view establish that the measure continues to exist as a measure of 
general and prospective application. We observe that, pursuant to the Final Modification, the 
modifications to USDOC practice took effect with respect to administrative reviews in which the preliminary determinations were issued after 16 April 2012.
102 Since the preliminary determination 
in the sixth administrative review was issued on 7 March 2012, the USDOC was still acting 
pursuant to its previous practice, consistent with the effective date established for its modified practice. We therefore remain of the view that, as  of 16 April 2012, and, in any event, as of the 
present date, the USDOC's simple zeroing methodol ogy, as used by the USDOC in administrative 
reviews, does not exist as a measure of general and prospective application.
103 
7.53.  Concerning Viet Nam's reference to US – Poultry (China) , we note that the question at issue 
in that dispute was whether the panel should rule on the consistency  with the covered agreements 
of the repealed measure. However, in that dispute, there was no controversy between the parties 
regarding the existence  of the measure itself before it was repealed.104 In the present dispute, the 
parties disagree as to whether the measure claimed by Viet Nam to be WTO-inconsistent is a rule 
or norm of general and prospective application which can be challenged "as such". This Panel is 
not, therefore, in the same situation as the panel in US – Poultry (China) : we are not trying to 
determine whether it would be appropriate for us to rule on the WTO-consistency of an expired 
measure, but rather, whether Viet Nam has established that this measure can be challenged "as 
such".  
                                               
99 See Final Modification, Exhibit US-39, pp. 8101-8102: 
Prior to this Final Rule and Final Modification fo r Reviews, the Department typically has compared 
normal value and export price using the average- to-transaction ("A–T") method, which involved 
a comparison of the weighted-average normal value to the export price of individual transactions 
for comparable merchandise. When aggregating the results of these comparisons to determine 
the weighted average margin of dumping in a review, the Department did not offset the results 
of the comparisons for which export price wa s less than normal value by the results of 
comparisons for which export price exceeded norm al value. When determ ining importer-specific 
assessment rates in a review, the Department similarly aggregated the results of importer-specific comparison results and did not offset th e comparison results for which export price was 
less than normal value by the comparison result s for which export price exceeded normal value. 
… After considering all of the comments submitted, the Department is adopting the proposed changes to its methodology for calculating weighted average margins of dumping and antidumping duty assessment rates to provide offsets for non-dumped comparisons when using 
monthly A–A comparisons in reviews, in a manner that parallels the WTO-consistent methodology the Department currently applies in original antidumping duty investigations. In reviews, except where the Department determines that application of a different comparison method is more appropriate, the Department will compare monthly weighted-average export 
prices with monthly weighted-average normal va lues, and will grant an offset for all such 
comparisons that show export price exceeds norm al value in the calculation of the weighted-
average margin of dumping and an tidumping duty assessment rate. 
(footnotes omitted) 
100 Final Modification, Exhibit US-39, pp. 8101 and 8113. 
101 See above, para. 1.3.   
102 Final Modification, Exhibit US-39, p. 8101. 
103 Moreover, we refer to our finding below that the USDOC's use of zeroing in the three administrative 
reviews at issue is inconsistent "as applied" with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. In our view, our findings of inconsistency with respect to the application of simple zeroing in 
the three administrative reviews at issue adequately address Viet Nam's concerns regarding the final results of 
the sixth administrative review. 
104 Panel Report, US – Poultry (China) , paras. 7.54-7.57. WT/DS429/R 
 
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  7.54.  In any event, we are not convinced that the zeroing methodology "can be easily re-
imposed" by the USDOC. Viet Nam provides no evidence indicating that the USDOC intends to revert to this methodology. Moreover, the Final Modification shows that, as argued by the United States, the USDOC's changes in methodolog y were made after extensive consultations with 
different stakeholders, and in order to implement prior DSB rulings and recommendations.
105 This 
indicates to us that, contrary to what is argued  by Viet Nam, such modifications are not easily 
made under the US system. In the absence of ev idence to the contrary, we cannot assume that 
the United States will "easily re-impose" the use of simple zeroing in administrative reviews. 
Moreover, having modified its practice to comply with its WTO obligations, we must assume that the United States will continue to comply with its WTO obligations in good faith.  
7.55.  We conclude, therefore, that Viet Nam ha s failed to establish the existence of the alleged 
measure (simple zeroing methodology used by the USDOC in administrative reviews) as a rule or 
norm of general and prospective application. Consequently, we do not consider the parties' arguments concerning the consistency of the allege d measure with Article 9.3 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994.  
7.56.  Therefore, we find that Viet Nam did not establish 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. 
7.3.3  Zeroing "as applied" in the administrative reviews at issue 7.3.3.1  Introduction 7.57.  Viet Nam requests the Panel to find that the application of the zeroing methodology to 
calculate dumping margins for the individually-examined respondents in the fourth, fifth and 
sixth administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
106 
7.58.  We shall first consider whether Viet Nam has demonstrated that the USDOC applied zeroing 
in the three administrative reviews at issue. If we find that Viet Nam has met its burden of proof in 
this respect, we shall then consider whether the application of the zeroing methodology in the 
fourth, fifth and sixth administrative reviews is inconsistent with the United States' obligations 
under Article 9.3 of the Anti-Dumping Agreement and VI:2 of the GATT 1994. 
7.3.3.2  Whether Viet Nam has established th at the zeroing methodology was applied in 
the fourth, fifth and sixth administrative reviews 
7.3.3.2.1  Main arguments of the parties 
7.3.3.2.1.1  Viet Nam 7.59.  Viet Nam submits that the USDOC applied the zeroing methodology when calculating the 
dumping margins of the mandator y respondents in the fourth, fifth and sixth administrative 
reviews of the Shrimp  order. Viet Nam indicates that the USDOC's final determinations in those 
reviews confirm that the zeroing methodology wa s applied. Viet Nam further argues that the 
affidavit prepared by Ms Naschak, provided by Viet  Nam to the Panel, confirms the application of 
the zeroing methodology in those administrative reviews.
107 Viet Nam notes that the United States 
does not appear to dispute that the USDOC used the zeroing methodology in the administrative reviews at issue.
108 
                                               
105 United States' second written submission, para. 102. See also Final Modification, Exhibit US-39, 
pp. 8103-8113. 
106 Viet Nam's first written submission, para. 356; second written submission, para. 139. 
107 Viet Nam's first written submission, paras. 59-60. 
108 Viet Nam's second written submission, para. 3. WT/DS429/R 
 
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  7.3.3.2.1.2  United States 
7.60.  The United States does not contest Viet Nam's allegation that the USDOC applied the 
zeroing methodology when calculating dumping margins at issue. The United States contends, however, that the application of zeroing is not inconsistent with the covered agreements.
109 
7.3.3.2.2  Evaluation by the Panel 
7.61.  We proceed to examine the evidence submitte d by Viet Nam in support of its allegation that 
the USDOC applied the zeroing methodology in the calculation of dumping margins for mandatory 
respondents in the fourth, fifth and sixth administrative reviews. 
7.62.  As noted in the preceding section of this Report, the Naschak affidavit submitted by 
Viet Nam discusses the USDOC's use of zeroing in the three administrative reviews at issue, when calculating the margins of dumping for the mandatory respondents in those reviews – Minh Phu, 
Nha Trang and Camimex.
110 The affidavit attaches relevant excerpts of the USDOC's computer 
"logs" (printouts of the computer programming instructions) and "outputs" (printouts of the 
dumping calculations and of the databases that were run through the programme) for two of these 
respondents, Nha Trang and Minh Phu in the fourth , fifth and sixth admini strative reviews. The 
affidavit explains, inter alia , that the programming language used in calculating the margins for 
both Minh Phu and Nha Trang shows that only positive comparison results were used to calculate 
the overall margins and directs the Panel's attention to certain lines of computer code in the "logs" 
that implement the instruction to disregard NV (normal value) – EP (export price) comparisons where the EP exceeds the NV, in the calculation of Nha Trang and Minh Phu's margins of dumping. The affidavit also directs the Panel to the relevant parts of the "logs" confirming that the negative 
comparison results were excluded in calculating the dumping margins, concluding in this respect 
that "no U.S. sales where the export price exceeded  normal value were included in the calculation 
of the overall margin [of dumping]".
111   
7.63.  Viet Nam has also provided the Panel with the Issues and Decision Memoranda that 
accompany each of the USDOC's final determinations in the three administrative reviews at issue. This evidence confirms that the UDSOC applied the zeroing methodology in these reviews. In the 
Issues and Decision Memorandum accompanying the final determination in the 
fourth administrative review, the USDOC states that "consistent with the Department's interpretation of the Act … in the event that any of  the export transactions examined in this review 
are found to exceed normal value, the amount by  which the price exceeds normal value will not 
offset the dumping found in respect of other transactions".
112 Likewise, in the Issues and Decision 
Memorandum accompanying the final determination in the fifth administrative review, the USDOC observes that "[b]ecause no dumping margins exist with respect to sales where NV is equal to or 
less than EP or CEP, the Department will not permit these non-dumped sales to offset the amount 
of dumping found with respect to other sales".
113 Finally, in the Issues and Decision Memorandum 
accompanying the final determination in the sixth administrative review, the USDOC refers to its 
"interpretations of section 771(35) of the Act to permit zeroing in average-to-transaction 
comparisons, as in the underlying administrative re view", and indicated that "in the event that any 
of the U.S. sales transactions examined in this  review are found to exceed NV, the amount by 
which the price exceeds NV will not offset the dumping found in respect of other transactions".114 
7.64.  The United States does not challenge the evidence submitted by Viet Nam. We recall that, 
when a party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party who must adduce sufficient evidence to rebut the 
presumption.
115 In the present dispute, Viet Nam has submitted sufficient evidence indicating that 
                                               
109 United States' first written submission, paras. 210 -211; opening statement at the first meeting of the 
Panel, paras. 42-44. 
110 Naschak affidavit, Exhibit VN-25, p. 1. 
111 Naschak affidavit, Exhibit VN -25, paras. 22, 34, and 46. 
112 Issues and Decision Memorandum accompanying the final determination in the fourth administrative 
review, Exhibit VN-13, p. 35. 
113 Issues and Decision Memorandum accompanying th e final determination in the fifth administrative 
review, Exhibit VN-18, p. 29. 
114 Issues and Decision Memorandum accompanying th e final determination in the sixth administrative 
review, Exhibit VN-20, pp. 26-27. 
115 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. WT/DS429/R 
 
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  the USDOC applied the zeroing methodology in the calculation of dumping margins of individually-
examined respondents in the administrative reviews at issue. As the United States did not provide arguments or evidence to rebut the presumption raised by Viet Nam, we conclude that Viet Nam has demonstrated that the USDOC applied simple zeroing in the calculation of margins of dumping 
of individually-investigated respondents in the fourth, fifth and sixth administrative reviews. 
7.3.3.3  Whether the applicatio n of zeroing in the fourth, fifth and sixth administrative 
reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 
of the GATT 1994 
7.3.3.3.1  Introduction 7.65.  We now examine whether the application by the USDOC of the zeroing methodology to 
calculate margins of dumping of individually-e xamined respondents in the fourth, fifth and 
sixth administrative review is inconsistent the United States' obligations under Article 9.3 of the 
Anti-Dumping Agreement and VI:2 of the GATT 1994. 
7.3.3.3.2  Main arguments of the parties 
7.3.3.3.2.1  Viet Nam 
7.66.  Viet Nam submits that the Appellate Body has consistently found that the USDOC's use of 
zeroing in administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement 
and Article VI:2 of the GATT 1994.
116 Viet Nam observes that the Appellate Body repeatedly 
rejected the same arguments that are again being made by the United States in this dispute and urges this Panel to follow the clear and consistent decisions by the Appellate Body.
117 Viet Nam 
argues that the GATT 1994 and the Anti-Dumping Agreement both define the concepts of 
"dumping" and "margin of dumping" with regard to  the product under investigation as a whole and 
do not allow for differentiation among sub-groups or categories. According to Viet Nam, Article VI:2 of the GATT 1994, which defines du mping as when "products of one country are 
introduced into the commerce of another country at less than the normal value of the products", 
refers to the product as a whole. Furthermore, Article 2.1 of the Anti-Dumping Agreement, which applies to the entire Agreement, defines dumping with clear reference to the "product" that is 
subject to the proceeding. Viet Nam recalls that , based on these provisions, the Appellate Body 
has repeatedly found that the concepts of "dumping" and "margin of dumping" are defined in relation to the product under investigation as a whole, and cannot be found to exist only for a type, model, or category of that product.
118  
7.67.  Viet Nam submits that Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the 
GATT 1994 explicitly provide that margins of dumping may not be greater than the margin of dumping for the product as a whole. This, according to Viet Nam, means that when the 
administering authority makes use of multiple comparisons at an intermediate stage, it must 
aggregate the results of all intermediate comparisons, including negative comparison results, for purposes of calculating the final dumping margin. Viet Nam argues that, by systematically 
disregarding negative comparison results, the US DOC's simple zeroing practice necessarily results 
in dumping margins that are greater than the margins for the product as a whole.
119   
                                               
116 Viet Nam's first written submission, paras. 79- 91 and 93 (referring to Appellate Body Reports, US – 
Zeroing (EC) , para. 133; US – Zeroing (Japan) , paras. 175-176; US – Stainless Steel (Mexico) , paras. 103, 
109, and 139; US – Continued Zeroing , paras. 312 and 316; US – Zeroing (Japan) (Article 21.5 – Japan) , 
paras. 195 and 197); second written submission, paras. 12-17. We note that, in its first written submission, Viet Nam discusses the consistency of the zeroing methodology with the covered agreements in the context of its argumentation with respect to its "as such" claim and refers to that discussion in its "as applied" claim (see Viet Nam's first written submission, para. 93). In its second written submission, Viet Nam jointly discusses the legal consistency "as such" and "as applied" of the zeroing methodology (see Viet Nam's second written submission, paras. 12-17). 
117 Viet Nam's opening statement at the first meeting of the Panel, para. 27. 
118 Viet Nam's first written submission , paras. 71-78. Viet Nam refers in particular to the Appellate Body 
Reports in US – Zeroing (Japan) , para. 115 and US – Softwood Lumber V , paras. 93 and 96. 
119 Viet Nam's first written submission, paras. 79- 84; opening statement at the first meeting of the 
Panel, paras. 24-27; second written submission, paras. 12-17. WT/DS429/R 
 
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  7.3.3.3.2.2  United States 
7.68.  The United States argues that the text an d context of the relevant provisions of the Anti-
Dumping Agreement, interpreted in accordance with  customary rules of interpretation, support its 
interpretation that the concepts of dumping and margins of dumping have meaning in relation to 
individual transactions and, therefore, there is no obligation to aggregate multiple comparison 
results in assessment proceedings to arrive at an aggregated margin of dumping for the product as a whole.
120 The United States contends that it is permissible to interpret the terms of "dumping" 
and "margin of dumping" as referring to specific export transactions, and not only to the "product 
as a whole".121 The United States submits that Members' rights and obligations stem from the 
texts of the covered agreements, and not from panel or Appellate Body reports and urges the 
Panel to remain faithful to the text of the Anti-Dumping Agreement and to find that the 
US interpretation rests on a permissible interpretation of that Agreement.122   
7.69.  The United States argues that Article 2.1 of the Anti-Dumping Agreement and Article VI of 
the GATT 1994 do not require the provision of offsets in assessment proceedings and do not 
provide textual support for the concepts of "product as a whole" and "negative dumping".123 The 
United States submits that the terms upon which Viet Nam's interpretation rests are absent from the text of Article 9.3 of the Anti-Dumping Ag reement and Article VI:2 of the GATT 1994. The 
United States is of the view that, as recognized by several panels, averaging of export prices is not 
required to calculate a margin of dumping under Ar ticle 9.3 and, therefore, an interpretation that 
permits the existence of transaction-specific margins of dumping is supported by the text of that provision. The United States is of the view that, as long as the margin of dumping is properly 
understood as applying at the level of individual transactions, there is no tension between the 
exporter-specific concept of dumping as a pricin g behaviour and the importer-specific remedy of 
payment of dumping duties.
124 
7.3.3.3.3  Main arguments of the third parties 
7.70.  China  submits that, in light of the consistent and well-founded decisions by the 
Appellate Body, to the extent that Viet Nam has established the use of the zeroing methodology in 
the three administrative reviews, the application of zeroing in those reviews is also inconsistent 
with the Anti-Dumping Agreement and the GATT 1994.125 
7.71.  The European Union  submits that the issue of zeroing has been extensively litigated in the 
WTO and does not warrant repeated scrutiny. The Pa nel should therefore deal with it in a summary 
manner and uphold Viet Nam's "as applied" claims.126 
7.72.  Recalling previous Appellate Body jurisprudence with respect to zeroing in administrative 
reviews, Japan  submits that the Panel should find that the zeroing methodology, as it relates to 
the use of simple zeroing in administrative reviews, is inconsistent with Article 9.3 of the Anti-
Dumping Agreement and Article VI:3 of the GATT 1994.127 
7.73.  While not taking a position on the facts of this case, Norway  agrees with Appellate Body 
rulings in previous cases that the use of all forms of zeroing in all forms of proceedings is 
inconsistent with the Anti-Dumping Agreement.128 
                                               
120 United States' first written submission, para. 210. 
121 United States' opening statement to the first meeting of the Panel, paras. 42-44. The United States 
refers in particular  to Panel Reports, US – Zeroing (EC) , US – Zeroing (Japan) , US – Softwood Lumber V 
(Article 21.5) , and US – Stainless Steel (Mexico) . See United States' first writ ten submission, paras. 210-241, 
notably at footnote 285. 
122 United States' opening statement at the first meeting of the Panel, para. 44. 
123 United States' first written submission, paras. 219-232. 
124 United States' first written submission, paras. 234-240. The United States refers to Panel Reports, 
US – Zeroing (EC) , paras. 7.201, 7.204-7.207, and 7.220-7.223; US – Zeroing (Japan) , paras. 7.196, 7.198-
7.199; and US – Stainless Steel (Mexico) , para. 7.124. 
125 China's third-party submission, para. 5. 
126 European Union's third-pa rty submission, para. 6. 
127 Japan's third-party submission, paras. 3-12. 
128 Norway's third-party su bmission, paras. 13-32. WT/DS429/R 
 
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  7.3.3.3.4  Evaluation by the Panel 
7.74.  Our analysis begins with the text of the relevant provisions relied upon by Viet Nam in its 
claims. Article 9.3 of the Anti-Dumping Agreement reads, in relevant parts: 
The amount of the anti-dumping duty shal l not exceed the margin of dumping as 
established under Article 2. 
7.75.  Article VI:2 of the GATT 1994 provides as follows: 
In order to offset or prevent dumping, a contracting party may levy on any dumped 
product an anti-dumping duty not greater in amount than the margin of dumping in 
respect of such product. For the purposes of this Article, the margin of dumping is the 
price difference determined in accordance with the provisions of paragraph 1. 
7.76.  Although formulated differently, Article 9. 3 of the Anti-Dumping Agreement and Article VI:2 
of the GATT 1994 impose similar obligations, as they both provide that the amount of the anti-
dumping duty shall not exceed the margin of dump ing. The main question that the Panel needs to 
address is whether the term "margin of dumping" re ferred to in both provisions must be calculated 
for the "product as a whole", as argued by Viet  N a m ,  o r  w h e t h e r  i t  m a y  b e  c a l c u l a t e d  o n  a  
transaction-specific basis, as submitted by the United States. As observed by parties and third parties, this controversy is not novel. 
7.77.  In prior disputes, the Appellate Body has cons istently held that the text of Article 2.1 of the 
Anti-Dumping Agreement, as well as the text of Article VI:1 of the GATT 1994, indicate clearly that the term "dumping" is used in relation to the product as a whole, and not in relation to individual export transactions. The Appellate Body has also found that the "margin of dumping" is used in 
relation to the dumped "product as a whole" and must be determined on the basis of all export 
transactions of a given exporter or foreign producer. The Appellate Body also stressed on various occasions that the terms "dumping" and "margin of dumping" are exporter-specific concepts.
129 
The Appellate Body has clarified that, while an investigating authority may choose to undertake 
multiple comparisons or multiple averaging at an intermediate stage to establish margins of dumping, it is only on the basis of aggregating all these intermediate values that the investigating 
authority can establish margins of dumping for the product as a whole.
130   
7.78.  We further note that, according to the Appe llate Body, these definitions of "dumping" and of 
the "margin of dumping" apply throughout the Ag reement, including under Article 9.3, and under 
Article VI:2 of the GATT 1994. It therefore follo ws that the amount of anti-dumping duties 
assessed pursuant to those provisions cannot exceed the margin of dumping as established for the 
"product as a whole". In other words, the margin of dumping established for an exporter or foreign producer operates as a ceiling on the total amount of anti-dumping duties that can be levied on 
the entries of the product from that exporter or producer.
131 Accordingly, the Appellate Body found 
that the zeroing methodology applied by the USDOC in administrative reviews is inconsistent with 
Article 9.3 of the Anti-Dumping Agreement and with Article VI:2 of the GATT 1994 because it 
results in the levy of an amount of anti-dumping  duty that exceeds an exporter's margin of 
dumping. The Appellate Body observed that: 
when applying "simple zeroing" in periodic reviews, the USDOC compares the prices of 
individual export transactions against monthly weighted average normal values, and 
disregards the amounts by which the expo rt prices exceed the monthly weighted 
average normal values, when aggregating the results of the comparisons to calculate the going-forward cash deposit rate for the exporter and the duty assessment rate for 
the importer concerned.  Simple zeroing thus results in the levy of an amount of anti-
dumping duty that exceeds an exporter's margin of dumping, which, as we have 
                                               
129 Appellate Body Reports, US – Zeroing (EC) , paras. 127-129; US – Zeroing (Japan) , paras. 111-112 
and 150; US – Stainless Steel (Mexico) , paras. 83-95; and US – Continued Zeroing , paras. 282-283. 
130 Appellate Body Reports, US – Softwood Lumber V , paras. 92-100; US – Zeroing (EC) , para. 126; 
US – Softwood Lumber V (Article 21.5 – Canada), para. 122; US – Zeroing (Japan) , paras. 108-110, 115, 
and 151; US – Stainless Steel (Mexico) , paras. 97-99; and US – Continued Zeroing , paras. 276-287. 
131 Appellate Body Reports, US – Zeroing (EC) , para. 130; US – Zeroing (Japan) , paras. 155-156; US – 
Stainless Steel (Mexico) , paras. 96 and 102; and US – Continued Zeroing , paras. 286-287 and 314. WT/DS429/R 
 
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  explained above, operates as the ceiling for the amount of anti-dumping duty that can 
be levied in respect of the sales made by an exporter.132 
7.79.  The Appellate Body has also held that Article 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994, when interpreted in accordance with customary rules of 
interpretation of public international law, as required by Article 17.6(ii) of the Anti-Dumping 
Agreement, do not admit of another interpretation as far as the issue of zeroing is concerned and therefore that zeroing does not rest upon a "permissible interpretation" of the text of the relevant 
provisions.
133  
7.80.  We have carefully considered and assessed the arguments made by the parties in the 
present dispute. We note that the very same arguments that the United States makes before us were rejected by the Appellate Body in prior disputes, in which it concluded that the very same 
measure which is now before us, namely the zeroing methodology as applied by the USDOC in 
administrative reviews, is inconsistent with Articles 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994.
134 We are also mindful of the Appellate Body's admonition that 
"following the Appellate Body's conclusions in earlier disputes is not only appropriate, but it is what 
would be expected from panels, especially where the issues are the same".135 In US – Stainless 
Steel (Mexico) , the Appellate Body explained: 
Dispute settlement practice demonstrates that WTO Members attach significance to 
reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in 
dispute settlement proceedings, and are relie d upon by panels and the Appellate Body 
in subsequent disputes. In addition, when enacting or modifying laws and national 
regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and 
Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and 
Appellate Body reports becomes part and parcel of the acquis of the WTO dispute 
settlement system. Ensuring "security and predictability" in the dispute settlement 
system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent 
reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.
136 
Following an objective assessment of the matter, and after a careful review of the findings 
discussed above, we see no reason not to rely on the interpretation of the relevant provisions and 
on the reasoning developed by the Appellate Body in  relation to the issue of zeroing in these prior 
disputes.  
 
7.81.  We find, therefore, that the application by the USDOC of the simple zeroing methodology to calculate the dumping margins of mandatory respondents in the fourth, fifth and sixth 
administrative reviews of the Shrimp  order is inconsistent with United States' obligations under 
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.  
7.4  Viet Nam's claims regarding the "NME-wide entity" rate practice 7.4.1  Introduction 
7.82.  Viet Nam makes claims with respect to what it terms the USDOC's "NME-wide entity rate 
practice". Viet Nam includes within this practice: (i) the USDOC's presumption, in anti-dumping proceedings – including original investigations and administrative reviews – involving imports from 
NMEs, that all companies within the designated NME country are essentially operating units of a 
                                               
132 Appellate Body Report, US – Stainless Steel (Mexico) , para. 133. See also Appellate Body Reports, 
US – Zeroing (EC) , paras. 132-133; and US – Continued Zeroing , paras. 315-316. 
133 Appellate Body Report, US – Zeroing (Japan) , para. 189. 
134 Appellate Body Reports, US – Zeroing (EC) , para. 133; US – Zeroing (Japan) , para. 176; US – 
Stainless Steel (Mexico) , para. 139. Moreover, in two of those disputes, the Appellate Body also ruled that the 
zeroing methodology applied by the USDOC in administrative reviews was "as such" inconsistent with Articles 9.3 of the Anti-Dumping Agreement and Articl e VI:2 of the GATT 1994. See Appellate Body Reports, 
US – Zeroing (Japan) , para. 166 and US – Stainless Steel (Mexico) , paras. 133-134. 
135 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 188. 
136 Appellate Body Report, US – Stainless Steel (Mexico) , para. 160. WT/DS429/R 
 
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  single, government-wide entity and the assignment of a single anti-dumping duty rate to that 
entity; and (ii) the manner in which this anti-dumping rate is determined, distinct from the separate rate, on the basis of facts available. Viet  Nam also challenges the application of this NME-
wide entity rate practice in the fourth, fifth, and sixth administrative reviews. Specifically, 
Viet Nam claims that:  
a. the USDOC's "NME-wide entity rate practice" is inconsistent "as such" with Articles 6.10, 
9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement; and  
b. the application by the USDOC of the "NME-wide entity rate practice" in the fourth, fifth 
and sixth administrative reviews is inconsistent with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement. 
7.83.  In its request for the establishment of a panel, Viet Nam also included a challenge to "the 
treatment of the Vietnam-wide entity in the original investigation and the first, second, third, 
fourth, fifth, and sixth administrative reviews, … to the extent that these determinations demonstrate the USDOC's continued and ongoing use of this practice throughout the full course of 
the shrimp anti-dumping proceeding".
137 In its first written submission, Viet Nam claimed that "the 
United States' application of the Vietnam-wide entity practice on a continued and ongoing basis through the course of the shrimp anti-dumping pr oceedings is inconsistent with the Anti-Dumping 
Agreement".
138 As Viet Nam has not further developed the claim regarding "continued and ongoing 
use" of the practice in question in its arguments to the Panel, we shall not consider it in this Report and make no findings in this respect. 
7.84.  The United States asks the Panel to reject all of Viet Nam's claims of inconsistency.
139 
7.85.  We shall start our analysis with Viet Nam's claims that the NME-wide entity rate practice is 
inconsistent "as such" with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement. We shall then turn to Viet Nam's clai ms that the application of the NME-wide entity 
rate practice in the fourth, fifth and sixth administrative reviews is inconsistent with those same 
provisions. 
7.4.2  Claims with respect to the NME-wide entity rate practice "as such" 
7.4.2.1  Introduction 
7.86.  Viet Nam claims that the "NME-wide entity rate practice" is a measure which may be 
challenged "as such" and which is inconsistent with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement.
140 The United States submits that Viet Nam has failed to establish the 
existence of the NME-wide entity rate practice as  a measure of general and prospective application 
that may be challenged "as such" under the Anti-Dumping Agreement.141 The United States also 
asks the Panel to reject Viet Nam's claims of inconsistency.142 
7.87.  In view of the parties' disagreement on this issue, we need to first determine whether 
Viet Nam has established that the "NME-wide entity rate practice" it has defined is a measure of general and prospective application which is susceptible to an "as such" challenge. If we are 
satisfied that Viet Nam has done so, we shall then turn to Viet Nam's claims that this rule or norm 
is, as such, inconsistent with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement. 
                                               
137 Viet Nam's panel request, p. 5. 
138 Viet Nam's first written submission, para. 42. 
139 United States' first written submission, para. 275; second written submission, para. 119. 
140 Viet Nam's first written submission, paras. 94 an d 356; opening statement at the first meeting of the 
Panel, paras. 8-9; second written submission, para. 19. 
141 United States' first written submission, para. 145; opening statement at the first meeting of the 
Panel, para. 22; second wr itten submission, para. 66. 
142 United States' first written submission, para. 145; second written submission, para. 68. WT/DS429/R 
 
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  7.4.2.2  Whether Viet Nam has established th e existence of the NME-wide entity rate 
practice as a measure which may be challenged "as such" 
7.4.2.2.1  Main arguments of the parties 7.4.2.2.1.1  Viet Nam 
7.88.  Viet Nam argues that the USDOC's standa rd practice is articulated in its Antidumping 
Manual, which demonstrates that, in anti-dumping proceedings involving NME countries, the USDOC starts with the rebuttable presumption that all companies within the country are 
essentially operating units of a single, government-wide entity and, thus, should receive a single 
anti-dumping duty rate, the NME-wide rate. A ccording to Viet Nam, the USDOC retains broad 
discretion on the method for calculating the NME-wide entity rate, but in most investigations and administrative reviews, the USDOC finds that the NME-wide entity did not cooperate, thus 
justifying the use of adverse facts available. Fi rms seeking a "separate" (or "all others") rate, 
based on the weighted-average of the rates for the individually-investigated respondents, must pass a "separate rate test" whereby they must establish an absence of government control, both in 
law and in fact, with respect to exports. Hence, unlike cases involving market economy countries 
where all non-investigated firms receive the "all others" rate, non-investigated firms in NME may 
receive the "all others" rate only if they satisf y established criteria. According to Viet Nam, the 
Antidumping Manual makes it clear that the USDOC's NME-wide practice is applied on a 
generalized and prospective basis.
143  
7.89.  Viet Nam further submits that Policy Bulletin 05.1, on Separate-Rates Practices and 
Application of Combination Rates in Antidumping Investigations involving Non-Market Economy 
Countries , articulates the same presumption for NME countries as the Antidumping Manual and 
also sets forth a requirement that exporters affirmatively demonstrate independence from government control in order to be eligible for a rate that is separate from the NME-wide entity. 
Viet Nam submits that Policy Bulletin 05.1, which sets forth the USDOC's policy, is of general and 
prospective effect, as its purpose is to provide ce rtainty and predictability to NME exporters on the 
requirements for a separate rate.
144 Viet Nam further argues that the determinations relevant to 
the Shrimp  order, from the original investigation to the sixth review, also constitute relevant 
evidence because they describe the "long-standing  policy" of presuming government ownership of 
all firms in NME investigations.145 In Viet Nam's view, the evidence regarding the NME-wide entity 
policy is more compelling than in the zeroing disputes, because the Panel has before it multiple 
written documents explaining the exact nature of the policy, as well as its general and prospective 
effect.146 Viet Nam clarifies that it is not challenging the Antidumping Manual and Policy 
Bulletin 05.1 as measures themselves, but consider s that both documents serve as evidence that 
the practice or policy in question amounts to a measure of general and prospective application.147 
7.4.2.2.1.2  United States 7.90.  The United States replies that Viet Nam has not established that the alleged NME-wide 
entity rate practice exists as a measure which can be challenged "as such". Viet Nam does not 
explain how a "practice" can set out a rule or norm  of general and prospective application, and has 
not demonstrated that the USDOC invariably applies the alleged practice. According to the United States, the Antidumping Manual stipulates, inter alia , that it is "for the internal training and 
guidance of Import Administration (IA) personnel only" and that it "cannot be cited to establish 
DOC practice", which means that it cannot serve as a basis to argue that the USDOC has adopted an approach that must be followed for any partic ular future proceeding. The United States argues 
that the use of the Manual is not required under domestic law or under the WTO Agreements and, 
thus, Viet Nam is attacking a non-required step undertaken by the United States to promote transparency. The United States contends that Viet Nam has not pointed to a principle of US law 
                                               
143 Viet Nam's first written submission, paras. 95-106; opening statement at the first meeting of the 
Panel, para. 9; response to Panel question No. 7( b), para. 22; second written submission, para. 19. 
144 Viet Nam's opening statement at the first meet ing of the Panel, para. 10; response to Panel 
question No. 7(b), para. 23. 
145 Viet Nam's opening statement at the first meet ing of the Panel, para. 11; response to Panel 
question No. 7(b), para. 24. 
146 Viet Nam's second written submission, para. 19; re sponse to Panel question No. 7(b), paras. 20-24. 
147 Viet Nam's response to Panel question No. 7(b), para. 19; opening statement at the second meeting 
of the Panel, para. 6. WT/DS429/R 
 
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  that supports the conclusion that the Antidumping Manual requires the USDOC to do something; in 
fact, Viet Nam itself acknowledges that the USDOC retains broad discretion on the method for calculating the NME-wide entity rate. According to the United States, the Antidumping Manual does not require calculating that rate on the basis of facts available. The United States concludes that 
Viet Nam has failed to make a prima facie  case that the so-called NME-wide entity rate is a 
measure that can be challenged "as such".
148 
7.91.  The United States further argues that, since Viet Nam has made clear that it is not alleging 
that either the Antidumping Manual or Policy Bullet in 05.1 are themselves measures that Viet Nam 
challenges "as such", the issue is solely whether Viet Nam has shown the existence of an unwritten  
measure that may be challenged "as such", based on an alleged practice adopted by the United States. According to the United States, Viet Nam has failed to establish the existence of 
such an unwritten norm.
149 The United States also notes that Policy Bulletin 05.1 applies only to 
original investigations initiated on or after the date of publication of the notice announcing this policy (5 April 2005). As a consequence, the Bulletin did not require the USDOC to follow the 
approaches set forth therein during the covered reviews or generally during administrative reviews 
of products from NME countries.
150 
7.4.2.2.2  Main arguments of the third parties 
7.92.  China  submits that the form of the measure is not decisive when considering whether a 
measure may be subject to an "as such" challenge. In this dispute, the NME-wide entity rate practice is expressed in written documents, in particular in Policy Bulletin 05.1, which leaves no uncertainty as to the content of the NME-wide entity rate practice. Moreover, this document is 
identical in its material effects to the Sunset Policy Bulletin that the Appellate Body found to be a 
norm of general and prospective application in prior disputes.
151  
7.93.  The European Union  submits that, in the light of the Appellate Body report in EC – 
Fasteners (China) , the Panel will have to consider, in particular, whether Viet Nam has 
demonstrated the existence and precise content of the "as such" measure at issue, as well as the existence of a presumption.
152 
7.4.2.2.3  Evaluation by the Panel 
7.94.  Neither party contests, and it is well-established in WTO dispute settlement practice, that it 
is possible to challenge certain measures "as such", i.e. independently of their application in specific instances. The United States argues, however, that Viet Nam has not established that the 
alleged NME-wide entity rate practice exists as a measure of general and prospective application.  
7.95.  In the present dispute, Viet Nam challenges a "practice" or "policy" of the USDOC, an 
agency of the United States Government. According to the United States, an administrative 
practice standing alone is not itself a measure for the purpose of the DSU, but it may be relevant 
evidence in a dispute settlement proceeding. The United States also submits that the Appellate 
Body has not, to date, pronounced upon the issue of whether a "practice" may be challenged, as 
such, as a measure in WTO dispute settlement.
153 
7.96.  We note that the USDOC itself uses alternatively the words "practice" and "policy" when 
referring to the existence of an NME-wide entity and to the single rate assigned to that entity.154 In 
our view, however, the particular terms used to describe the alleged measure are not 
determinative155 and it does not matter whether the alleged measure is a "practice" or a "policy". 
                                               
148 United States' first written submission, paras. 140 -145; opening statement at the first meeting of the 
Panel, paras. 24-27; second written submission, paras. 66 and 68. 
149 United States' second written submission, paras. 64-66. 
150 United States' second written submission, para. 67. 
151 China's third-party st atement, paras. 3-7. 
152 European Union's third-party written submission, para. 22. 
153 United States' response to Panel question No. 3, paras. 1 and 3. 
154 See, for instance, Issues and Decision Memorandum accompanying the final determination in the 
original investigation, Exhibit VN-04, pp. 29-30. The US DOC also refers to the NME-wide entity rate as a 
"methodology" (see also USDOC Antidump ing Manual, Chapter 10, Exhibit VN-24). 
155 The Appellate Body has observed that the scope of  "laws, regulations and administrative procedures" 
challenged in WTO dispute settlement "must be dete rmined for purposes of WTO law and not simply by WT/DS429/R 
 
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  Rather, what we need to assess is whether Viet Nam has demonstrated, in casu , that the alleged 
measure is a norm or rule of general and prospective application that can be challenged "as such" in the WTO dispute settlement system.  
7.97.  As we observed above
156, neither the DSU nor the Anti-Dumping Agreement establishes 
criteria for determining when measures can be challenged "as such". However, this issue was 
considered in previous WTO dispute settlement cases, which have outlined criteria to assess whether a rule or norm amounts to a rule or norm of general and prospective application which 
can be challenged "as such". Thus, we recall that , while there is no threshold requirement that the 
measure challenged "as such" be of a certain type
157, the burden of establishing the existence of a 
rule or norm of general application – which rests on the party alleging that such a measure exists – may be different depending on the type of measur e at issue. This burden will be more easily 
discharged when the measure at issue is set forth in a legislative act than in situations where the 
existence of the alleged measure is not expressed in a written document. The Appellate Body has explained that this burden is particularly high in the latter case.
158 
7.98.  Viet Nam challenges the NME-wide entity rate "practice" or "policy" as an unwritten rule or 
norm, rather than challenging a particular legislative or administrative act setting forth that practice or policy.
159 Written documents referred to by Viet Nam as describing the NME-wide entity 
rate practice – the Antidumping Manual and Policy Bulletin 05.1 – are to be used as relevant 
evidence in assessing the existence of the al leged measure, but are not themselves being 
challenged as measures. This being the case, consistent with the standard set out above160, we 
shall consider whether Viet Nam has established that: (i) this practice or policy is "attributable" to 
the United States, (ii) the "precise content" of this practice or policy, and (iii) that this practice or 
policy does have "general and prospective application".  
7.99.  With respect to the first criterion, i.e. attribution to the United States, we have already 
remarked above that the NME-wide entity rate is a practice or policy used by the USDOC, which is 
an agency of the United States Government. Th ere appears to be no controversy between the 
parties that the practice or policy is "attributable" to the United States.  
7.100.  Viet Nam's arguments regarding the precise content of the NME-wide entity rate practice 
or policy pertain to two elements. The first element concerns the application by the USDOC in anti-dumping proceedings (e.g. original investigations and administrative reviews) involving NME countries of a rebuttable presumption that, in such countries, all companies belong to a single, 
NME-wide entity, and the assignment of a single rate to that entity. The second element concerns 
the manner in which the rate assigned to the NME-wide entity is determined, in particular the use of facts available. We note that, in its arguments to the Panel, Viet Nam has put more emphasis on 
the former than on the latter. We shal l examine these two elements separately. 
7.101.  With respect to the first element, turning to the evidence submitted by Viet Nam, we first 
consider Chapter 10 of the Antidumping Manual, entitled "Non-Market Economies".
161 In 
Section III ("Separate Rates"), it provides that: 
                                                                                                                                               
reference to the label given to va rious instruments under the domestic  laws of each WTO Member. This 
determination must be based on the content and substanc e of the instrument, and no t merely on its form or 
nomenclature". Appe llate Body Report, US – Corrosion-Resistant  Steel Sunset Review , footnote 87. 
156 See paras. 7.29.  -7. 34.  of this Report. 
157 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 88. Moreover, the 
Appellate Body found, at para. 81 that, in principle, any act or omission at tributable to a WTO Member can be 
a measure of that Member for pu rposes of dispute settlement. 
158 Appellate Body Report, US – Zeroing (EC) , para. 198. 
159 We recall that Viet Nam clarified that it is no t advancing claims against the Antidumping Manual or 
Policy Bulletin 05.1 per se . Viet Nam also suggests that the Panel shou ld apply the legal standard used by the 
Appellate Body for determining when an  unwritten rule or norm can be ch allenged "as such". (See Viet Nam's 
response to Panel question No. 7(a)-(b), para. 19; op ening statement at the first meeting of the Panel, 
para. 8; and second written submission, para. 19.) We furt her note that the United States refers to the same 
standard in arguing that Viet Nam has failed to de monstrate the existence of a measure of general and 
prospective application. (United States' first written submission, paras. 141-145; opening statement at the 
first meeting of the Panel, para. 23; second written submission, para. 65.) 
160 See paras. 7.29.  -7. 34.  of this Report. 
161 USDOC Antidumping Manual, Chapter 10, Exhibit VN-24. WT/DS429/R 
 
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  Individual dumping margins are automatically assigned to exporters in market-
economy country cases. In NME cases, however, exporters must pass a separate rate test to receive a rate that is separate from the NME-wide rate. Those exporters that do not or cannot demonstrate that they are separate from the government-wide entity 
receive the NME-wide rate.
162 
7.102.  The Antidumping Manual further explains that "[i]n proceedings involving NME countries, 
the Department begins with a rebuttable presumpt ion that all companies within the country are 
essentially operating units of a single, government-wide entity and, thus, should receive a single 
antidumping duty rate (i.e., an NME-wide rate)".163 Pursuant to the "separate rate test", exporters 
in NMEs are accorded separate, company-specific margins "if they can provide sufficient proof of an absence of government control, both in law and in fact, with respect to export activities".
164 In 
Section IV ("The NME-Wide Rate"), the Antidumping Manual states again that:  
The Department begins with a rebuttable presumption that all companies within the 
NME country are essentially operating units of a single, government-wide entity and 
should receive a single anti-dumping rate.165 
7.103.  The description of the NME-wide entity rate and separate rates in Chapter 10 of the 
Antidumping Manual concerns anti-dumping "proceedin gs" or "cases". This su ggests to us that this 
practice or policy applies to any of the various segments leading to an anti-dumping measure and 
subsequent implementation. Section IV describes the application of the rate in original investigations and administrative reviews.
166 Hence, pursuant to the Antidumping Manual, the 
NME-wide entity rate practice or policy applies throughout an anti-dumping proceeding.  
7.104.  In our view, Chapter 10 of the Antidumping Manual is evidence of the first element of the 
alleged NME-wide entity rate practice or policy, i.e. that in anti-dumping proceedings involving NMEs, the USDOC applies a rebuttable presumption that all exporters in the NME country are part 
of a single NME-wide entity and assigns a single anti-dumping duty rate to all exporters who do 
not rebut this presumption by establishing that they operate, de jure  and de facto , independently 
from the government with respect to their export activities. 
7.105.  Turning to the question whether this el ement of the alleged measure has "general and 
prospective application", we first note that Chapter 10 of the Antidumping Manual uses the terms "practice" or "methodology" when referring to th e treatment of NMEs in anti-dumping proceedings. 
Moreover, on its face, the Antidumping Manual appears to describe a generally applicable practice. 
Nothing in Chapter 10 suggests that there may be circumstances or situations in which the USDOC 
would not "start with a rebuttable presumption that all companies within a NME country" belong to 
a single, NME-wide entity and would not assign a single rate to that entity. The United States does 
not contest that the "practice" described in Chapter 10 of the Antidumping Manual is applied in all proceedings involving NME countries. Nor has the United States provided the Panel with a single example of an anti-dumping proceeding involvin g an NME where the USDOC did not start with the 
rebuttable presumption regarding the existence of an NME-wide entity and go on to assign to that 
entity a single anti-dumping duty rate. Chapte r 10 of the Antidumping Manual suggests, in our 
view, that this "practice" or "methodology" has general and prospective application because it applies in all anti-dumping proceedings involving NMEs and makes it possible to anticipate the 
future conduct of the USDOC in such anti-dumping proceedings. 
                                               
162 USDOC Antidumping Manual, Chapter 10, Ex hibit VN-24, p. 3. (footnote omitted) 
163 USDOC Antidumping Manual, Chap ter 10, Exhibit VN-24, p. 3 . 
164 USDOC Antidumping Manual, Chapter 10, Exhibit VN- 24, p. 4. In Section III, the Manual stipulates 
that evidence supporting, though  not requiring, a finding of de jure absence of government control over export 
activities includes: (i) an absence of restrictive stipulat ions associated with an individual exporter's business 
and export licenses; (ii) any legislative enactments decentralizing control of companies; and (iii) any other formal measures by the central and/ or local government decentralizing control of companies. Furthermore, 
four factors are considered when evaluati ng whether a respondent is subject to de facto  government control 
over its export activities: (i) whether the export pr ices are set by, or subject to the approval of, a 
governmental authority; (ii)  whether the respondent has authority to negotiate and sign contracts and other 
agreements; (iii) whether the respondent has autonomy  from the government in making decisions regarding 
the selection of management; and (iv) whether the resp ondent retains the proceeds of its export sales and 
makes independent decisions regard disposition of profits or financing of losses. 
165 USDOC Antidumping Manual, Chap ter 10, Exhibit VN-24, p. 3. 
166 USDOC Antidumping Manual, Chap ter 10, Exhibit VN-24, p. 8. WT/DS429/R 
 
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  7.106.  Referring to Chapter I of the Antidumping Manual, the United States submits, however, 
that the Manual clearly states that it is "subject to change without notice" and "cannot be cited to establish DOC practice".
167 According to the United States, the USDOC has explicitly alerted 
petitioners and respondents that the Antidumping Manual cannot serve as a basis to argue that the 
USDOC has adopted an approach that must be followed for any particular, future proceeding. The 
United States also submits that neither domestic law nor the WTO Agreement require that the Antidumping Manual be used. The United States concludes on the basis of these considerations 
that the Antidumping Manual cannot therefore, be considered as having general and prospective 
application, adding that allowing an "as such" finding against the Manual would discourage the promotion of transparency.
168 
7.107.  We understand that, according to the United States, the Antidumping Manual is a non-
mandatory instrument and, for this reason, cannot be  challenged "as such". However, the status of 
the Antidumping Manual under domestic law is not determinative. Even assuming that the Antidumping Manual is not a mandatory instrument under US domestic law, this fact would not be 
dispositive of the issue of whether certain practices it describes, including the rebuttable 
presumption and assignment of a single rate, can be challenged "as such" in WTO dispute settlement proceedings.  
7.108.  We recall that, in US – Corrosion-Resistant Steel Sunset Review and US – Oil Country 
Tubular Goods Sunset Reviews , the Appellate Body rejected the US argument that a measure of a 
non-mandatory character, the Sunset Policy Bulletin (SPB), was not susceptible to "as such" challenge. In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body indicated that 
there was "no reason for concluding that, in principle, non-mandatory measures cannot be 
challenged 'as such'".
169 In US – Oil Country Tubular Goods Sunset Reviews , the Appellate Body 
observed that the relevant issue is not whether th e measure subject to an "as such" challenge is a 
binding legal instrument within the domestic legal system of a Member, but, rather, whether it is a 
measure that may be challenged in WTO dispute settlement proceedings, i.e. whether is an "act[] setting forth rules or norms that are intended to have general and prospective application". The 
Appellate Body answered this question in the affirm ative in that dispute, on the basis that the SPB: 
(i) had "normative value", as it provided admini strative guidance and created expectations among 
the public and among private actors; (ii) was intended to have general application, as it was to apply to all the sunset reviews conducted in the United States; and (iii) was intended to have 
prospective application, as it was intended to apply to sunset reviews taking place after its 
issuance.
170  
7.109.  In the present dispute, Viet Nam refers to the Antidumping Manual as evidence that the 
unwritten practice or policy in question amo unts to a measure of general and prospective 
application that can be challenged "as such".171 Hence, the issue facing us is not whether the 
Antidumping Manual itself can be challenged "as such" as a rule or norm of general and 
prospective application, but whether it constitutes relevant evidence to establish the existence of a 
rule of norm of general and prospective application. In our view, the reasoning of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review  and in US – Oil Country Tubular 
Goods Sunset Reviews  is relevant in this regard. We believe that if a non-mandatory instrument 
can be found to be a measure of general and prospective application it can a fortiori  constitute 
probative evidence of the existence of an unwritten measure of general and prospective 
application. Hence, we consider that the Antidumping Manual constitutes relevant and probative 
evidence of the existence of a norm of general and prospective application.  
7.110.  We turn now to the second piece of evidence submitted by Viet Nam, namely Policy 
Bulletin 05.1.
172 We observe that, in the "Statement of Issue", the Policy Bulletin explains that it 
"describes the Department's application process for separate rates status in non-market economy 
                                               
167 United States' first written submission, para. 143, citing USDOC Antidumping Manual, Chapter 1, 
Exhibit US-27, p. 1. We note in this  respect that the relevant paragraph reads as follows: "This manual is for 
the internal training and guidance of Import Administ ration (IA) personnel only, and the practise set out 
therein are subject to change without notice. This manual cannot be cited to establish DOC practice". 
168 United States' opening statement at the first meeting of the Panel, paras. 24-25. 
169 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 88. 
170 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 187. 
171 Viet Nam's response to Panel question No. 7(b), para. 19. 
172 Policy Bulletin 05.1, Exhibit VN-66. WT/DS429/R 
 
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  ("NME") investigations".173 It further states that "[i]n an NME antidumping investigation, the 
Department presumes that all companies within  the NME country are subject to government 
control and should be assigned a single antidump ing duty rate unless an exporter demonstrates 
the absence of both de jure  and de facto  governmental control over its export activities".174 
According to Policy Bulletin 05.1, the USDOC "assigns separate rate status in NME cases only if an 
exporter can demonstrate the absence of both de jure  and de facto  government control over its 
export activities".175 In our view, Policy Bulletin 05.1 is further evidence confirming the first 
element of the alleged measure. It clearly indicates that, in investigations involving NME countries, 
the USDOC will presume that all companies within the NME country are subject to government control and will receive a single anti-dumping duty rate and that exporters wishing to receive a separate rate must demonstrate the absence of de jure  and de facto  government control over their 
export activities. 
7.111.  Moreover, in the "Statement of Policy", Po licy Bulletin 05.1 "clarifies" the Department's 
practice with respect to the application for separate rates and indicates, inter alia , that "the 
separate rate application does not change the long-established standard for eligibility for receiving 
a separate rate … which remains whether a firm can demonstrate an absence of both de jure  and 
de facto  governmental control over its export activities".
176 The "Statement of Policy" section 
concludes by stating that "[the separate rate] practice will be effective for all NME antidumping 
investigations initiated on or after the date of publication in the Federal Register of the notice announcing this policy".
177 
7.112.  The language used in Policy Bulletin 05. 1 conveys that the "practice" or "policy" (both 
terms are used) whereby the USDOC presumes that all NME exporters belong to a single, NME-
wide entity and apply a single rate to that entity is applied in all anti-dumping investigations 
involving NMEs. There is no mention of instances in which the USDOC would not use that 
presumption and would not apply the single rate. Policy Bulletin 05.1 plainly states that it will 
apply to "all" NME anti-dumping investigations initiated "on or after the date of publication" in the Federal Register, thus evidencing that it has "gen eral" and "prospective" application. With respect 
to the nature of the instrument, we also note that this Policy Bulletin is similar to the SPB which 
was at issue in US – Corrosion-Resistant Steel Sunset Review  and in US – Oil Country Tubular 
Goods Sunset Reviews . In those two disputes, the Appellate Body concluded that the SPB could be 
challenged "as such" in WTO dispute settlement.
178 In the present dispute, Viet Nam does not 
challenge Policy Bulletin 05.1 itself "as such", but rather relies on it as evidence that the NME-wide 
entity rate practice amounts to a measure of general and prospective application that can be challenged "as such". Again, we consider that if the SPB could be found to constitute a measure of 
general and prospective application, Policy Bulletin 05.1 can a fortiori  be considered to provide 
relevant and probative evidence of the existe nce of an unwritten measure of general and 
prospective application. 
7.113.  The United States submits that Policy Bulletin 05.1 applies only to original investigations, 
and moreover, only applies to investigations initiated after 5 April 2005. Consequently, the United States argues, the USDOC was not required to follow the approaches set forth in the Policy Bulletin in the covered reviews or generally during administrative reviews of products from NME 
countries.
179  
7.114.  The notice of initiation of the anti-dumping investigation for the Shrimp  order is dated 
27 January 2004, i.e. before the entry into force of Policy Bulletin 05.1, and thus we agree with 
the United States that the Policy Bulletin did not apply to the original investigation underlying the 
Shrimp order. However, this does not undermine the relevance and probative value of Policy Bulletin 05.1 with respect to the general and prospective nature of the first element, i.e. the 
application by the USDOC in anti-dumping proceedings involving NME countries of a rebuttable 
presumption that, in such countries, all companies belong to a single, NME-wide, entity, and the 
                                               
173 Policy Bulletin 05.1, Exhibit VN-66, p. 1. 
174 Policy Bulletin 05.1, Exhibit VN-66, p. 1. 
175 Policy Bulletin 05.1, Exhibit VN-66, p. 2. Policy  Bulletin 05.1 also describes the test used to 
determine de facto  and de jure  absence of government cont rol over export activities. 
176 Policy Bulletin 05.1, Exhibit VN-66, pp. 3-4. 
177 Policy Bulletin 05.1, Exhibit VN-66, p. 6. 
178 See above, para. 7.108.   
179 United States' second written submission, para. 67 (r eferring to Policy Bulletin 05.1, Exhibit VN-66, 
pp. 6-7). WT/DS429/R 
 
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  assignment of a single rate to that entity. Moreov er, when it states that it "does not change the 
long-established standard for eligibility for receiving a separate rate", Policy Bulletin 05.1 supports the conclusion that essentially the same practice existed before its entry into force.
180 
7.115.  In our view, therefore, both the Anti dumping Manual and Policy Bulletin 05.1 provide 
relevant and probative evidence of the content of the first element of the alleged unwritten 
measure, i.e. that, in anti-dumping proceedings involving NME countries, the USDOC begins with a rebuttable presumption that all companies within the country belong to a single, NME-wide entity 
and assigns a single rate to that entity. Furtherm ore, these two instruments also provide relevant 
and probative evidence of the general and pr ospective character of the alleged measure. 
Notwithstanding their non-binding nature, these two instruments create expectations among the public and among private actors that the USDOC will  follow this practice and/or apply this policy. 
7.116.  In addition, evidence of the general and pr ospective nature of this element of the alleged 
unwritten measure can be found in a number of statements made by the USDOC in the Notices issued under the Shrimp  order. For example, in the Issues and Decision Memorandum 
accompanying the final determination in the original investigation, the USDOC explains that:  
The Department has a long-standing policy in antidumping proceedings of presuming 
that all firms within an NME country are subject to government control and thus 
should all be assigned a single, country-wide rate unless a Respondent can 
demonstrate an absence of both de jure  and de facto  control over its export activities. 
… In accordance with the separate-rates criteria, the Department assigns separate rates in NME cases only if respondents can demonstrate the absence of both de jure  
and de facto  government control over export activities.
181 
In the same Issues and Decision Memorandum, th e USDOC explains that the US Court of Appeals 
for the Federal Circuit had "agreed that it was within Commerce's authority to employ a 
presumption of state control for exporters in a nonmarket economy, and to place the burden on 
the exporters to demonstrate an absence of government control".182 The USDOC further observes 
that "[t]he Department's longstanding practice of assigning a country-wide rate to NME companies 
that do not qualify for a separate rate is reasonable and has been repeatedly affirmed by the 
courts".183 
 7.117.  In the final determination in the fourth administrative review, the USDOC explains: 
Because we begin with the presumption that all companies within a NME country are 
subject to government control, and because only the companies listed under the "Final Results of Review" section below have overcome that presumption, we are applying a 
single antidumping rate, i.e., the Vietnam-wide entity rate, to all other exporters of 
subject merchandise.
184 
7.118.  In the notice of initiation for the fi fth administrative review, the USDOC explains: 
In proceedings involving non-market economy ("NME") countries, the Department 
begins with a rebuttable presumption that all companies within the country are subject to government control and thus, shou ld be assigned a single antidumping duty 
deposit rate. It is the Department's policy to assign all exporters of merchandise 
                                               
180 We also recall that Viet Nam's claim pertains to a practice or policy applicable in both original 
investigations and administrative reviews. Moreover, ther e appears to be no material  difference in  the content 
of the norm as it is applied in either type of proceeding. 
181 Issues and Decision Memorandum accompanying the final determination in the original investigation, 
Exhibit VN-04, p. 30. 
182 Issues and Decision Memorandum accompanying the final determination in the original investigation, 
Exhibit VN-04, pp. 30-31. 
183 Issues and Decision Memorandum accompanying the final determination in the original investigation, 
Exhibit VN-04, p. 31. 
184 Final determination in the fourth administrative review, Exhibit VN-13, p. 47773. We further note 
that, in the preliminary determinatio n in the same review, the USDOC stated that: "[i]t is the Department's 
standard policy to assign all exporters … in NME countr ies a single rate unless an exporter can affirmatively 
demonstrate an absence of governme nt control". (Preliminary determination in the fourth administrative 
review, Exhibit VN-09, p. 12210.) WT/DS429/R 
 
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  subject to an administrative review in an NME country this single rate unless an 
exporter can demonstrate that it is sufficien tly independent so as to be entitled to a 
separate rate.185 
7.119.  In the preliminary determination in the sixth administrative review, the USDOC explains 
again: 
In NME countries, the Department begins with a rebuttable presumption that all 
companies within the country are subject to government control and thus should be 
assessed a single antidumping duty rate. However, a company in the NME applying for 
separate rate status may rebut that presumption by demonstrating an absence of both de jure  and de facto  government control over its export activities.
186, 187 
7.120.  Viet Nam also contends that similar language can be found in every anti-dumping 
determination involving an NME country188, but does not provide any evidence in other 
proceedings. We recall, however, that no example has been brought to our attention of an anti-dumping proceeding involving an NME in which the USDOC did not start with a rebuttable 
presumption that all companies belong to a single, government-wide entity.189 
7.121.  In our view, the significance of the ab ove statements by the USDOC goes beyond the 
proceedings under the Shrimp  order. These statements provide further confirmation that the 
application by the USDOC in anti-dumping proceedings on imports from NMEs of a rebuttable 
presumption that all companies belong to a single, NME-wide entity, and the assignment of a single rate to that entity amounts to a rule or norm of general and prospective application.  
7.122.  In light of the foregoing, we conclude that Viet Nam has established that, in anti-dumping 
proceedings involving NME countries, the USDOC starts with a rebuttable presumption that all 
companies within that NME country belong to a single, NME-wide entity and that a single rate is assigned to that entity, and, thus, to comp anies deemed to belong to that entity.  
7.123.  The second element of Viet Nam's challenge to the NME-wide entity rate practice relates to 
the determination of the rate assigned to the NM E-wide entity. Viet Nam submits that the USDOC 
applies a punitive rate based on adverse facts available to the producers/exporters deemed to be 
part of the NME-wide entity.
190 
7.124.  The United States replies that the only evid ence cited by Viet Nam to support its allegation 
that the USDOC has a practice of determining th e NME-wide rate based on facts available is 
two sentences from the Antidumping Manual, neither of which requires the USDOC to base the 
NME-wide rate on facts available. The United Stat es observes that Viet Nam itself concedes that 
the USDOC "retains broad discretion on the method for calculating the NME-wide entity rate". Thus, according to the United States, even Viet Nam does not argue that this alleged practice 
exists and is invariably applied by the USDOC.
191 
                                               
185 Notice of initiation for the fifth administrative review, Exhibit VN-10, p. 18154. 
186 Preliminary determination in the sixth administrative review, Exhibit VN-19, pp. 13550-13551. 
(footnotes omitted) 
187 Viet Nam has also provided relevant evidence for the first administrative re view (final determination 
and Issues and Decision Memorandum in  the first administrative review, Ex hibit VN-62), second administrative 
review (final determination and Issues and Decision  Memorandum in the second  administrative review, 
Exhibit VN-63) and third administrative review (final determination and Issues and Decision Memorandum in 
the third administrative review, Exhibit VN-64). Evidence submitted by the United States shows that the NME-wide rate was also applied in the seventh administ rative review (final determination in the seventh 
administrative review, Exhibit US-30). 
188 Viet Nam's response to Panel question No. 7(b), para. 24 (emphasis original). Nevertheless, we can 
glean from various documents related to the Shrimp  order that exporters from China are subject to the same 
practice. For example, the notice of initiation in the fi fth administrative review re quires that all firms from 
China and Viet Nam – the two NMEs subject to the Shrimp  order – demonstrate the absence of both de jure  
and de facto  government control. (Notice of  initiation for the fifth administrative review, Exhibit VN-10, 
pp. 18155-18156). 
189 See para. 7.105.  of this Report. 
190 Viet Nam's first written submission, para. 104 (referring to USDOC Antidumping Manual, Chapter 10, 
Exhibit VN-24, pp. 7-8. 
191 United States' first written submission, para. 144; second written submission, para. 68. WT/DS429/R 
 
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  7.125.  Viet Nam presents only limited evidence as to how the NME-wide entity rate is calculated, 
and the evidence that it relies upon is inconclusive. In particular, Chapter 10 of the Antidumping Manual, referred to by Viet Nam, explains that the NME-wide rate: 
may be based on adverse facts available if, fo r example, some exporters that are part 
of the NME-wide entity do not respond to the anti-dumping questionnaire. In many 
cases  the Department concludes that some part of the NME-wide entity has not 
cooperated in the proceedings because those that have responded do not account for 
all imports of subject merchandise.
192  
7.126.  In addition, Viet Nam does not refer to other NME investigations where NME-wide rates 
were determined using facts available, which could serve to establish the existence of a policy or practice in this respect. Moreover, as noted by the United States, Viet Nam itself casts some doubt 
on the consistency of USDOC's practice in determining a rate for an NME-wide entity when it 
asserts that "[t]he USDOC retains broad discretion on the method for calculating the NME-wide entity rate, but in most investigations and administrative reviews makes a finding that the 
generalized 'NME-wide entity' did not cooperate wi th the proceeding, justifying the use of facts 
available".
193  
7.127.  In response to a question from the Panel, the United States refers to cases where the 
NME-wide entity rate was based on the weighted-average margin calculated for the mandatory 
respondents and, thus, the NME-wide rate was not based on facts available.194 Viet Nam argues 
that, in those examples, the individually investig ated exporters represented the entire universe of 
imports of subject merchandise into the United St ates and, thus, the rate assigned to the NME-
wide entity was irrelevant because it had no practical use.195  
7.128.  In the first example cited by the United States, the USDOC applied a NME-wide rate 
corresponding to the "simple average" of (i) the weighted-average of the calculated rates for 
mandatory respondents, and (ii) "a simple aver age of petition rates based on US prices and 
normal values within the range of the U.S. pr ices and normal values calculated for [the 
two mandatory respondents]". It would thus appear that, contrary to the United States' 
representations, the NME-wide applied in that proceeding was largely based on facts available.196 
As noted by Viet Nam, in the other proceedings cited by the United States, there were no other exporters of the subject merchandise than the ma ndatory respondent(s), and in each of these 
proceedings, the USDOC applied a NME-wide rate based on the mandatory respondents' rate, 
apparently on the basis that the mandatory respondents accounted for the totality of exports of 
subject merchandise to the United States. Moreover, in three cases, the USDOC specified that the NME-wide rate "applies to all entries of the subject merchandise" except for entries from the 
mandatory respondents.
197 While it may have been that the NME-wide rate was actually not 
                                               
192 USDOC Antidumping Manual, Chapter 10, Exhibit VN -24, pp. 7-8 (emphasis added). We note that 
Policy Bulletin 05.1 is silent as to  the manner in which the USDOC determ ines the NME-wide entity rate in 
original investigations. 
193 Viet Nam's first written submission, para. 104. 
194 United States' response to Panel ques tion No. 15(a), para. 47 (referring to Steel Wire Garment 
Hangers from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 73 Fed. 
Reg. 47,587 (14 Aug. 2008),  Exhibit US-64; Steel Wire Garment Hangers from the People's Republic of China: 
Amended Final Determination of Sales at Less Than Fair Value , 73 Fed. Reg. 53,188 (15 Sept. 2008), 
Exhibit US-65; Notice of Final Determination of Sales at Less Than Fair Value: Carbon and Certain Alloy Steel 
Wire Rod from Ukraine , 67 Fed. Reg. 55,785 (30 Aug. 2002), Exhibit US-66; Notice of Final Determination of 
Sales at Less Than Fair Value: Urea Ammonium Nitrate Solutions from Belarus , 68 Fed. Reg. 9,055 
(27 Feb. 2003), Exhibit US-67; Notice of Final Determination of Sales at Less Than Fair Value: Structural Steel 
Beams from the Russian Federation , 67 Fed. Reg. 35,490 (20 May 2002), Exhibit US-68, p. 35490; and Notice 
of Final Determination of Sales at Less Than Fair Va lue: Certain Small Diameter Carbon and Alloy Seamless 
Standard, Line and Pressure Pipe from Romania , 65 Fed. Reg. 39,125 (23 June 2000), Exhibit US-69). 
195 Viet Nam's second written submission, para. 26. 
196 Information contained in the pe tition by definition constitutes facts available; moreover, the 
mandatory respondents' rates were pa rtly based on facts available. ( Steel Wire Garment Hangers from the 
People's Republic of China: Final Determination of Sales at Less Than Fair Value, 73 Fed. Reg. 47,587 
(14 Aug. 2008), Exhibit US-64; Steel Wire Garment Hangers from the Pe ople's Republic of China: Amended 
Final Determination of Sales at Less Than Fair Value , 73 Fed. Reg. 53,188 (15 Sept. 2008), Exhibit US-65). 
197 Notice of Final Determination of Sales at Less Than Fair Value: Urea Ammonium Nitrate Solutions 
from Belarus, 68 Fed. Reg. 9,055 (27 Feb. 2003), Exhibit US-67; Notice of Final Determination of Sales at Less 
Than Fair Value: Structural Steel Beams from the Russ ian Federation, 67 Fed. Reg. 35,490 (20 May 2002), 
Exhibit US-68; Notice of Final Determination of Sales at Less Than Fair Value: Certain Small Diameter Carbon WT/DS429/R 
 
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  applied with respect to any producer/exporter in these proceedings, we are not convinced that, for 
this reason, the NME-wide entity rate applied in these proceedings had "no practical use". In any event, the very nature of a rule or norm of general and prospective application is that it applies independently of the specific factual circumstances of a particular case. Hence, the fact that the 
USDOC may use a different method for determining a rate for the NME-wide entity depending on 
the circumstances suggests to us that the USDOC does not have a consistent practice of determining NME-wide rates using facts available. 
7.129.  We recall that a panel "must not lightly assume the existence of a rule or norm 
constituting a measure of general and prospective application, especially when it is not expressed in a written document".
198 The Appellate Body also indicated that the party bringing a challenge 
against a rule or norm that allegedly constitutes a measure of general and prospective application 
must meet a "high threshold".199  
7.130.  Overall, taking into account the evidence cited by the United States, and Viet Nam's 
admission that the USDOC retains broad discretion concerning the method used to determine the 
NME-wide rate, we conclude that, while the eviden ce on the record does suggest that the USDOC 
often determines the rate for the NME-wide entity based on facts available, it does not establish that the USDOC consistently uses a certain define d methodology to determine the NME-wide entity 
rate or systematically bases that rate on facts available. We therefore conclude that, in relation to 
the second element of the alleged measure, Viet Nam has failed to establish the existence of any 
practice amounting to a rule or norm of general and prospective application.  
7.131.  In sum, we conclude that Viet Nam has established that the USDOC's policy or practice 
whereby, in anti-dumping proceedings involving NMEs, it presumes that all companies belong to a 
single, NME-wide entity, and assigns a single rate to that entity amounts to a measure of general and prospective application which can be challenged "as such". However, we find that Viet Nam did 
not establish the existence of a USDOC practice with respect to the manner in which it determines 
the NME-wide entity rate, in particular concerning the use of facts available, amounting to a measure of general and prospective application, and which can therefore be challenged "as such".  
7.4.2.3  Whether the NME-wide entity rate pr actice is inconsistent with Articles 6.10 
and 9.2 of the Anti-Dumping Agreement 
7.4.2.3.1  Main arguments of the parties 7.4.2.3.1.1  Viet Nam 
7.132.  Viet Nam argues that the plain language of Articles 6.10 and 9.2, read in context, 
precludes application of a single anti-dumping margin to multiple entities where those companies have not been found by the authority to constitute a single entity. Viet Nam argues that the first 
sentence of Article 6.10 requires the authority to determine an individual dumping margin for each 
known exporter or producer. According to Viet Na m, the use of "sampling", provided for in the 
second sentence of Article 6.10, is the only exception to the rule contained in the first sentence. 
Viet Nam further argues that the requirement contained in the first sentence of Article 6.10 is 
further reinforced by Article 9.2, the first senten ce of which requires that the anti-dumping duty 
"shall be collected in the appropriate amounts". Viet Nam asks that the Panel take special note of the Appellate Body's ruling in EC – Fasteners (China)  because it  addressed a nearly identical legal 
and factual scenario to the measure at issue in the present dispute. Viet Nam argues that, in that 
dispute, the Appellate Body found that, under the Anti-Dumping Agreement, an investigating 
authority is not permitted to presume that in NME countries the state and exporters constitute a 
single entity, but is required to make an affirmative determination to that effect.
200 
7.133.  Viet Nam argues that the USDOC's presum ption of the existence of an NME-wide entity 
and application of an NME-wide entity rate does not comply with the requirement in Articles 6.10 
                                                                                                                                               
and Alloy Seamless Standard, Line and Pressure Pipe from Romania, 65 Fed. Reg. 39,125 (23 June 2000), 
Exhibit US-69. 
198 Appellate Body Report, US – Zeroing (EC) , para. 196. 
199 Appellate Body Report, US – Zeroing (EC) , para. 198. 
200 Viet Nam's first written submission, paras. 121-142 (referring to Appellate Body Report, EC – 
Fasteners (China) ); second written submission, paras. 29-31. WT/DS429/R 
 
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  and 9.2 that authorities determine individual dump ing margins and duties. According to Viet Nam, 
the NME-wide entity is not an individual exporter or producer, but a collection of exporters that the 
USDOC collapses into a single entity, without perf orming the required analysis to that effect. 
Instead, the USDOC presumes that all entities within the NME country are, in fact, a single entity 
under the control of the government, but does not establish, as a matter of fact, the existence of 
the single entity. Viet Nam is also of the view that the USDOC's practice does not fit within the single, limited exception provided for in Articles 6.10 and 9.2. Viet Nam requests, therefore, that 
the Panel find that the USDOC's practice is inco nsistent with Articles 6.10 and 9.2 of the Anti-
Dumping Agreement.
201 
7.134.  Viet Nam submits that the United States' reliance on Viet Nam's Protocol of Accession to 
the WTO and Working Party Report as a legal justification is unavailing. Viet Nam's Accession 
Protocol contains a single exception to the app lication of the disciplines of the Anti-Dumping 
Agreement, namely the use of an alternative me thodology for the calculation of normal value. 
According to Viet Nam, the Working Party Report describes the prevailing economic conditions in 
Viet Nam at the time of the Report, but nowhere in the Report or the Accession Protocol does 
Viet Nam agree to generalised concessions based on those economic conditions. Thus, except for the determination of normal value, there is no language in Viet Nam's Protocol of Accession to the 
WTO which provides an investigating authority with the legal basis to treat Viet Nam, as an NME, 
differently from a market economy country. Viet Nam contends that the Appellate Body's reasoning in EC – Fasteners (China)  with respect to China's Accession Protocol applies to the 
present dispute.
202 
7.135.  According to Viet Nam, the United States  attempts to turn the question of the legal 
justification for the USDOC's presumption into a question of facts; however, as observed by the Appellate Body, an authority cannot use a presumption to apply a single rate to multiple entities, 
regardless of the "evidence" cited by that authority. In Viet Nam's view, there is a significant 
difference between, on the one hand, an investigating authority making a determination on a case-by-case basis that several exporters belong to a single entity (as discussed in the panel report 
Korea – Certain Paper ) and, on the other hand, the investigating authority beginning with the 
presumption that all exporters in the NME country are under the control of the government and should be assigned a single rate. In the latter case, the presumption is not based on any analysis of the exporters actually under investigation, but on general information about the economy as a 
whole, and is, therefore, inconsistent with Arti cles 6.10 and 9.2 of the Anti-Dumping Agreement. 
Viet Nam submits that the Panel does not need to discuss the criteria used by the USDOC to determine whether entities are sufficiently independent from the government because the starting 
point of the test, i.e. the presumption that all companies belong to a single NME-wide entity, is 
wrong.
203 
7.4.2.3.1.2  United States 
7.136.  The United States204 submits that Viet Nam has no basis for asserting that related entities, 
simply because they may be organized as a formal matter as separate companies, must be treated as individual exporters for the purpose of Arti cle 6.10. To the contrary, context in the Anti-
Dumping Agreement, in particular footnote 11 to Article 4.1(i) and Article 9.5, indicates that 
whether producers are related to each other affects the investigating authority's analysis of those 
firms. According to the United States, Article 6.10 uses similar language and, where exporters or producers are sufficiently related, they are not economically independent and would not have 
individual margins. For the United States, depending on the facts of a given situation, an 
investigating authority may determine that legally distinct companies should be treated as a single "exporter" or "producer" based on their activities  and relationships. The United States concludes 
                                               
201 Viet Nam's first written submission, paras. 143-147. 
202 Viet Nam's second written submission, paras.  35-37 (referring to Appellate Body Report, EC – 
Fasteners (China) , para. 290). 
203 Viet Nam's second written submission, paras. 38- 41; opening statement at the second meeting of 
the Panel, paras. 7-11. 
204 The United States made arguments regarding the consistency of the measure at issue with 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement prim arily in respect of Viet Nam's "as applied" claims 
(United States' first written submission, paras. 146-155; second written submission, paras. 85-88). Because 
we understand the United States to have made the argume nts with respect to both Viet Nam's "as applied" and 
"as such" claims, we nevertheless refe r as appropriate to thos e arguments in assessing Viet Nam's claims that 
the measure at issue is inconsistent "as such" with the provisions cited by Viet Nam. WT/DS429/R 
 
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  on this basis that Article 6.10 does not preclude the USDOC from treating multiple companies as a 
single entity, including, where approp riate, a Viet Nam-government entity.205 The United States 
also argues that nothing in Article 9.2 prevents an authority from concluding that the relationship between multiple companies is sufficiently close to support treating them as a single entity and 
subject them to a single duty rate. According to the United States, an investigating authority must 
determine whether a group of companies are in a close enough relationship to support their 
treatment as a single entity before it can know how to calculate and apply duties to those 
companies' exports and Article 9.2 does not set out criteria for an investigating authority to 
examine before making that determination. The United States concludes that Article 9.2 does not preclude the USDOC from treating multiple companies as a single entity, including, where appropriate, a Viet Nam-government entity.
206 According to the United States, the question raised 
by Viet Nam's claim does not involve a pure question of legal interpretation, but is a mixed 
question of fact and law, and Viet Nam cannot point to any provision of the Anti-Dumping Agreement that specifies exactly how an authority is to decide whether different sets of exports 
are considered to be from one exporter or multiple exporters.
207 
7.137.  According to the United States, Viet Nam's Working Party Report and Accession Protocol 
indicate that all Members were not convinced that market-economy conditions might prevail in 
Viet Nam. Viet Nam's Accession Protocol does not impose on Members any non-market economy 
characterization of Viet Nam, but allows Members to decide unilaterally on their understanding of Viet Nam's economy and the appropriate treatment for Vietnamese respondents on a case-by-case basis. The United States is of the view that the Accession Protocol provides important context in 
terms of deciding which entities in Viet Nam should be considered as a single  entity for purposes of 
Article 6.10. The United States notes that paragraph 255 of Viet Nam's Working Party Report expressly provides importing Members the discretion to use an NME methodology when it is not 
clearly shown that market economy conditions prevail in Viet Nam. According to the United States, 
the understanding in Viet Nam's Accession Protocol that Viet Nam is not yet a market economy is in effect an understanding that prices for inputs and outputs are affected by the government 
which, in turn, is in effect an understanding that there remains government control over all firms. 
On the basis of this understanding, a single "gov ernment-controlled" rate is warranted, unless and 
until it is clearly demonstrated that market economy conditions prevail for the purpose of calculating dumping margins and assigning anti-d umping duty rates. For the United States, 
the 2002 USDOC determination that the Government of Viet Nam is legally or operationally in a 
position to control or materially influence the behaviour of firms is not in dispute; it is then logical for the USDOC to consider that the Government of Viet Nam simultaneously exerts control or 
material influence over these entities with respect to the pricing and output of identical or similar 
products destined for export. The United States submits that the presumption underlying the Working Party Report, as incorporated in the Accession Protocol, that NME conditions prevail in 
Viet Nam is an integral part of the WTO agreemen ts and justifies placing the burden of proof on 
Vietnamese respondents to demonstrate the appropriateness of a separate rate. For the United States, by not challenging the use by the USDOC of an NME methodology to calculate normal value, Viet Nam does not challenge the underlying presumption in paragraph 255 of its 
Accession Protocol that market economy conditions do not clearly prevail, which, in turn, has 
implications extending beyond the calculation of normal value.
208 
7.138.  According to the United States, Articles 6.10 and 9.2 of the Anti-Dumping Agreement must 
be read in a manner consistent with paragraph 255 of the Working Party Report. The United States 
argues that the Appellate Body's conclusions in EC – Fasteners (China)  that, underlying 
Article 6.10 is a presumption that every entity must first be recognized as an individual exporter or 
producer, lacks any support in the text of the An ti-Dumping Agreement and does not result in a 
reading of that provision that is consistent with paragraph 255 of Viet Nam's Working Party Report, especially where NME conditions preva il. According to the United States, where NME 
conditions do prevail, it is far more reasonable, as a starting point for an anti-dumping analysis, to 
                                               
205 United States' first written submission, paras. 147-151. 
206 United States' first written submission, paras. 152-155. 
207 United States' second written submission, para. 69. 
208 United States' first written submission, paras. 156-169; second written submission, paras. 71-84; 
opening statement at the second meeting of the Panel, paras. 14-30. WT/DS429/R 
 
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  think of entities as operating subject to governme nt control until otherwise demonstrated, than to 
think of them as operating independently from government control.209 
7.139.  The United States further argues that, even if this Panel were to follow the 
Appellate Body's reasoning in EC – Fasteners (China) , the USDOC's determination regarding the 
Viet Nam-wide entity is consistent with Articles 6.10 and 9.2. First, an important difference with 
EC – Fasteners (China)  is that neither Viet Nam nor any Vietnamese exporter requested, at any 
time during the proceedings, that the USDOC reconsider Viet Nam's non-market economy status. 
Hence, unlike in EC – Fasteners (China) , there is no question for the Panel to resolve as to 
whether Viet Nam is a non-market economy. The United States further argues that the USDOC's 
determination that a Viet Nam-government entity existed and that certain exporters, while legally separate, were in fact part of that entity, rested on adequate factual findings in the course of the 
relevant reviews. In EC – Fasteners (China) , the Appellate Body did not preclude an investigating 
authority from collecting and offering evidence to justify a presumption that a single government entity exists. The United States submits that, in  the challenged proceedings, the USDOC afforded 
companies the opportunity to submit information about their relationship with the Viet Nam-
government entity to demonstrate independence from the Government and the evidence sought 
by the USDOC is fully consistent with those factors that the Appellate Body in EC – Fasteners  
suggested should be probed to determine whether two or more exporters should be treated as a 
single entity. Finally, the United States argues that the USDOC's conclusion that multiple companies in Viet Nam are part of the Viet Nam-government entity is based on a permissible interpretation of Articles 6.10 and 9.2.
210  
7.4.2.3.2  Main arguments of the third parties 
7.140.  China  submits that the USDOC's separate rate test is materially identical to the 
European Union individual treatment test at issue in EC – Fasteners (China) , and requests that the 
Panel interpret Articles 6.10 and 9.2 in light of the Appellate Body's findings in that dispute. China 
observes that the question at stake is not whether authorities are allowed to treat two or more sufficiently related exporters as a single entity in certain situations, but whether authorities are 
allowed to presume that all the exporters in an NME country constitute a single entity.
211  
7.141.  The European Union  anticipates that the Panel will be guided by the clarifications 
provided by the Appellate Body in EC – Fasteners (China) . In particular, the Panel will have to 
consider whether or not the test applied by the United States is capable of establishing whether 
the exporting State and one or more exporters shou ld be deemed to be a single entity. In this 
respect, the European Union agrees with the United States that Members are entitled to make single entity determinations based on the type of criteria referred to by the United States.
212 
7.142.  Thailand  agrees with the Appellate Body's ruling that Articles 6.10 and 9.2 do not 
preclude treating several companies as a single entity provided that it is not presumed, but based on available evidence.
213 
7.4.2.3.3  Evaluation by the Panel 
7.143.  We recall our finding above that Viet Nam has successfully established that the USDOC's 
policy or practice whereby, in anti-dumping proceedings involving NMEs, it presumes that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity is a 
measure of general and prospective application wh ich may be challenged "as such". We will now 
examine whether, as alleged by Viet Nam, this measure is inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping Agreement. 
7.144.  We turn first to the text of the relevant legal provisions at issue. Article 6.10 provides that: 
                                               
209 United States' first written submission, paras. 172- 175; opening statement at the first meeting of the 
Panel, paras. 33-37; second written submission, paras. 86-87. 
210 United States' first written submission, paras. 176-183; 
211 China's third-party submission, paras. 13-20; third-party statement, paras. 12-16. 
212 European Union's third-pa rty submission, para. 22. 
213 Thailand's response to Panel question No. 7. WT/DS429/R 
 
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  The authorities shall, as a rule, determine an individual margin of dumping for each 
known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, im porters or types of products involved is 
so large as to make such a determination impracticable, the authorities may limit their 
examination either to a reasonable number of interested parties or products by using 
samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of 
the exports from the country in question which can reasonably be investigated. 
7.145.  In EC – Fasteners (China) , the Appellate Body found that the use of the term "shall" in the 
first sentence of Article 6.10 indicates that this provision contains a mandatory rule to determine individual dumping margins for each known export er or producer. In the Appellate Body's view, 
the term "as a rule" indicates that the obligation to determine individual dumping margins may be 
subject to derogations, such as the sampling except ion in the second sentence of Article 6.10. The 
Appellate Body did not consider, however, that the "f lexibility provided by the term 'as a rule' goes 
as far as providing Members with an open-ended possibility to create exceptions, which would 
erode the obligatory character of Article 6.10".
214 The Appellate Body concluded that: 
The general rule, that is, the obligation to determine individual margins of dumping 
for each known exporter or producer, applies, unless derogation from it is provided for 
in the covered agreements.215 
7.146.  The Appellate Body "[did] not find any provision in the covered agreements that would 
allow importing Members to depart from the obligation to determine individual dumping margins 
only in respect of NMEs".216 The Appellate Body concluded that Article 6.10 of the Anti-Dumping 
Agreement must be interpreted: 
as expressing an obligation, rather than a preference, for authorities to determine 
individual margins of dumping. This obligation is qualified and is subject not only to 
the exception specified for sampling in the second sentence of Article 6.10, but also to other exceptions to the rule to determine individual dumping margins that are 
provided for in the covered agreements.
217  
7.147.  Turning to Article 9.2, we note that it provides as follows: 
When an anti-dumping duty is imposed in respect of any product, such anti-dumping 
duty shall be collected in the appropriate amounts in each case, on a 
non-discriminatory basis on imports of such product from all sources found to be 
dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted.  The authorities 
shall name the supplier or suppliers of the product concerned. If, however, several 
suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned. If several 
suppliers from more than one country are involved, the authorities may name either 
all the suppliers involved, or, if this is impracticable, all the supplying countries involved. 
7.148.  In EC – Fasteners (China) , the Appellate Body observed that the first two sentences of 
Article 9.2 are of a mandatory nature.
218 It also considered that the term "sources", which appears 
twice in the first sentence of Article 9.2, "has  the same meaning and refers to the individual 
exporters or producers and not to the country as a whole".219 The Appellate Body noted the 
complementarity between Articles 6.10 and 9.2 and recalled that Article 6.10 contains an 
obligation to determine individual dumping margin s for each exporter or producer, except when 
sampling is used or if a derogation is otherwise provided for in the covered agreements. Hence:  
                                               
214 Appellate Body Report, EC – Fasteners (China) , para. 320. 
215 Appellate Body Report, EC – Fasteners (China) , para. 320. 
216 Appellate Body Report, EC – Fasteners (China),  para. 328. 
217 Appellate Body Report, EC – Fasteners (China),  para. 329. 
218 Appellate Body Report, EC – Fasteners (China) , para. 336. 
219 Appellate Body Report, EC – Fasteners (China),  para. 338. WT/DS429/R 
 
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  where an individual margin of dumping ha s been determined [in accordance with 
Article 6.10], it flows from the obligation contained in the first sentence of Article 9.2 that the appropriate  amount of anti-dumping duty that can be imposed also has to be 
an individual one. We do not see how an importing Member could comply with the 
obligation in the first sentence of Article 9.2 to collect duties in the appropriate  
amounts in each case if, having determined individual dumping margins, it lists suppliers by name, but imposes country-wide duties. In other words, unless sampling 
is used, the appropriate  amount of an anti-dumping duty in each case is one that is 
specified by supplier, as further clarified and confirmed by the obligation to name suppliers in the second sentence of Article 9.2.
220  
The Appellate Body considered that the obligat ion to "name" the supplier(s) of the product 
concerned, in the second sentence, when read in the light of the first sentence and in the overall 
context of Article 9 as a whole, "is closely relate d to the imposition of individual anti-dumping 
duties" and, thus, "should be interpreted as a re quirement to specify duties for each supplier".221 
The Appellate Body concluded that Article 9. 2 of the Anti-Dumping Agreement "requires 
investigating authorities to specify an individual duty for each supplier, except where this is impracticable, when several suppliers are involved".
222 The Appellate Body also observed that the 
third sentence of Article 9.2 provides for an exception to the obligations contained in the first and 
second sentences, which allows Members "to specify duties for the supplying country concerned, where specification of individual duties is 'impracticable'".
223 
 
7.149.  In our view, the reasoning of the Appellate Body highlighted above is highly persuasive as 
to the correct interpretation of these provisions and thus provides a proper legal standard for our examination of Viet Nam's claims of inconsistenc y under Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement. We therefore adopt it as the basis for our analysis in this dispute. 
7.150.  The issue we need to resolve is whether, under Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement, the United States is entitled to presume that all exporters within an NME belong to a 
single, NME-wide entity under the control of the government, and assign a single rate to that 
entity. 
7.151.  We recall that, pursuant to Article 6.10, investigating authorities have an obligation to 
determine individual margins of dumping for each known exporter or producer. This obligation 
flows from the first sentence of Article 6.10 whic h provides that the authorities "shall" determine 
an individual dumping margin for each known expo rter or producer concerned of the product under 
investigation. The term "as a rule" in this same sentence indicates that this obligation may be 
subject to certain exceptions. It is subject, in particular, to the exception contained in the second 
sentence of Article 6.10 which applies in situations where the investigating authority decides to limit its examination to a reasonable number of interested parties or products (so-called 
"sampling"). Moreover, as stated by the Appellate Body, the obligation contained in the 
first sentence of Article 6.10 may be subject to other exceptions, as long as these exceptions are provided for in the covered agreements.
224  
7.152.  We have found above that in proceedings  involving NME-countries, the USDOC starts "with 
a rebuttable presumption that all companies within  the NME country are essentially operating units 
of a single, government-wide entity and should receive a single anti-dumping rate".225 Exporters 
must pass a "separate rate test" in order to receive a rate that is "separate from the NME-wide 
rate", which can be either an individual rate (for exporters who were individually examined) or, in 
cases in which the USDOC resorted to "sampling", th e separate rate (for exporters not individually 
examined). Only exporters that have passed the separate rate test by demonstrating the absence 
of government control, both de facto  and de jure , over their export activities will receive an 
individual rate or a rate that is generally based on the weighted-average of the rates individually calculated for the mandatory respondents, excluding zero and de minimis  rates, as well as rates 
                                               
220 Appellate Body Report, EC – Fasteners (China),  para. 339. (emphasis original) 
221 Appellate Body Report, EC – Fasteners (China) , paras. 340-341. 
222 Appellate Body Report, EC – Fasteners (China) , para. 354. 
223 Appellate Body Report, EC – Fasteners (China) , para. 342. 
224 Appellate Body Report, EC – Fasteners (China) , para. 329. 
225 USDOC, Antidumping Manual, Chap ter 10, Exhibit VN-24, p. 7. WT/DS429/R 
 
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  based on facts available (i.e. a separate rate).226 The USDOC calculates a single NME-wide anti-
dumping margin and imposes a single NME-wide duty rate for all those exporters which are deemed to belong to the NME-wide entity because they failed – or did not attempt – to pass the separate rate test. In other words, the USDOC's practice at issue establishes a presumption that 
individual exporters in NME countries are not entitled to an individual rate, unless they successfully 
demonstrate independence from the government with respect to their export activities. Such a 
practice runs directly counter to the obligation contained in Article 6.10 of the Anti-Dumping 
Agreement whereby an investigating authority "shall, as a rule, determine an individual margin of 
dumping for each known exporter or producer concerned".  
7.153.  The United States argues that, depending on the facts of a given situation, an investigating 
authority may determine that legally distinct companies should be treated as a single exporter or 
producer based on their activities and relationships.227 We agree that, under the Anti-Dumping 
Agreement, an investigating authority may treat separate entities as a single exporter or producer for the purpose of calculating dumping margins. We recall that the panel in Korea – Certain Paper  
found that, pursuant to Article 6.10, separate legal entities that were in a sufficiently close 
structural and commercial relationship could justifiably be treated as a single exporter or producer.
228 That panel considered, however, that an investigating authority could not treat 
distinct legal entities as a single exporter or producer without justification, but had to "determine", 
on the basis of the record of the particular investigation, that entities are in such a close relationship.
229  
7.154.  In the EC – Fasteners (China) dispute, the Appellate Body also accepted that "in principle 
there may be situations where nominally distinct exporters may be considered as a single entity 
for the purpose of determining individual du mping margins and anti-dumping duties under 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement , due to [the] State's control or material 
influence in and coordination of these exporters' pricing and output".230 The Appellate Body 
explained that: 
In our view, Articles 6.10 and 9.2 of the Anti-Dumping Agreement  do not preclude an 
investigating authority from determining a single dumping margin and a single anti-
dumping duty for a number of exporters if it establishes that they constitute a single exporter for purposes of Articles 6.10 and 9.2 of the  Anti-Dumping Agreement . 
Whether determining a single dumping margin and a single anti-dumping duty for a 
number of exporters is inconsistent with Articles 6.10 and 9.2 will depend on the 
existence of a number of situations, which wo uld signal that, albeit legally distinct, 
two or more exporters are in such a relationship that they should be treated as a 
single entity. These situations may incl ude: (i) the existence of corporate and 
structural links between the exporters, such as common control, shareholding and management; (ii) the existence of corporate and structural links between the State 
and the exporters, such as common control,  shareholding and management; and (iii) 
control or material influence by the State in respect of pricing and output.
231 
                                               
226 The Antidumping Manual contrasts the situation of, respectively, market and non-market economy 
countries as follows: "Individual dumping margins are au tomatically assigned to ex porters in market-economy 
country cases. In NME cases, exporters must pass a separa te rate test to receive a rate that is separate from 
the NME-wide rate". (USDOC Antidumping Ma nual, Chapter 10, Exhibit VN-24, p. 3). 
227 United States' first written submission, para. 150. 
228 In Korea – Certain Paper , the panel found that Article 6.10 could be interpreted as allowing the 
treatment of separate legal entities as a single suppli er "in circumstances where the structural and commercial 
relationship between the companies in question is sufficiently close to be considered as a single exporter or 
producer". (Panel Report, Korea – Certain Paper , paras. 7.162 and 168). 
229 Panel Report, Korea – Certain Paper , para. 7.161: 
While Article 6.10 does not by its terms require th at each separate legal entity be treated as a 
single "exporter" or "producer", neither does it a llow a Member to treat distinct legal entities as a 
single exporter or producer without justificatio n. Whether or not the circumstances of a given 
investigation justify such treatment must be de termined on the basis of the record of that 
investigation. In our view, in order to properly treat multiple companies as a single exporter or producer in the context of its dumping determinations in an investigation, the IA has to determine that these companies are in a relationship close enough to support that treatment. 
230 Appellate Body Report, EC – Fasteners (China) , para. 382. The Appellate Body also described 
three different situations in which such a single entity might be found to exist (ibid., para. 376). 
231 Appellate Body Report, EC – Fasteners (China) , para. 376. WT/DS429/R 
 
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  7.155.  The Appellate Body stressed however that, under Articles 6.10 and 9.2 of the Anti-
Dumping Agreement:  
it is the investigating authority that is called upon to make an objective affirmative 
determination, on the basis of the evidence  that has been submitted or that it has 
gathered in the investigation, as to who is the known exporter or producer of the 
product concerned. It is, therefore, the investigating authority that will determine whether one or more exporters have a relationship with the State such that they can 
be considered a single entity and receive a single dumping margin and a single anti-
dumping duty.
232 
7.156.  The separate rate test used by the USDOC in anti-dumping proceedings involving NME 
countries operates differe ntly, however. The USDOC presumes  that all exporters and producers are 
not independent from the State and, therefore, be long to the NME-wide entity. Each exporter or 
producer must then rebut the presumption of affiliat ion with the State in order to be eligible for an 
individual dumping margin and an individual anti -dumping duty. In other words, in proceedings 
involving NME countries, the USDOC does not make an "objective affirmative determination" as to 
who is the known exporter or producer, but presumes  from the start the existence of this exporter 
or producer in the form of a NME-wide entity. Thus, pursuant to the separate rate test, not only 
does the USDOC place the burden on exporters to rebut the presumption that they are not 
independent from the State, but it then does not make a factual determination in that regard.  
7.157.  We also note that the USDOC makes "single entity determinations" (pursuant to a "single 
entity test") to determine whether legally distinct companies constitute a single entity for purposes 
of calculating a dumping margin in both market economy and NME investigations.233 Pursuant to 
the Antidumping Manual, a single entity determination "is specific to the facts presented in each review and is based on several considerations, incl uding the structure of the affiliated entities, the 
level of control between/among affiliates, and the level of participation by each affiliates in the 
proceeding"; moreover, the single entity wi ll obtain a single anti-dumping duty rate.
234 The single 
entity determination is distinct from the separate rate test and in fact, both may be applied in the 
same anti-dumping proceeding.235 In our view, the existence of the single entity test, as distinct 
from the separate rate test, shows that the USDOC's treatment of the NME-wide entity is a matter entirely separate from the question of determining whether different exporters are so closely related that they constitute a single entity. The fundamental difference between the two tests is 
that, under the single entity test, the USDOC pr esumes that all exporters are entitled to an 
individual rate and makes an affirmative finding, based on the facts of the case, that two or more 
legally distinct companies constitute a single entity, while under the separate rate test, the USDOC 
begins with the presumption that legally distinct companies (i.e. NME exporters) are part of a 
NME-wide entity, and, thus, should not be assigned an individual dumping margin and an 
individual anti-dumping rate.    
7.158.  We find, therefore, that the USDOC's policy or practice whereby it presumes, in anti-
dumping investigations involving NMEs, that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity is inconsistent with the obligations contained in Articles 6.10 and 9.2 of the Anti-Dumping Agreement. 
                                               
232 Appellate Body Report, EC – Fasteners (China) , para. 363. 
233 19 C.F.R. § 351.401(f), Exhibit US-26, and USDO C Antidumping Manual, Chapter 10, Section V, 
Exhibit VN-24, p. 8. 
234 USDOC Antidumping Manual, Chapter 10,  Section V, Exhibit VN-24, p. 10. 
235 For instance, the USDOC made single entity dete rminations in the fifth and sixth administrative 
reviews. In the fifth review, the USDOC determined that Nha Trang and certain affiliates should be treated as a 
single entity. Similarly, in the sixth review, the USDOC treated Minh Phu and Hau Giang as a single entity. See United States' response to Panel question No. 10(b), pa ras. 20-22. The United Stat es also argues that the 
two tests differ in focus, in the sense that the sing le entity determination examines possible relationships 
among private persons or ente rprises, while the separate rate test examines possible relationships between 
private persons or enterprises and the State. (United St ates' response to Panel question No. 10(a), para. 17.) 
We are of the view that, as a matter of principle, no thing would prevent the United States from establishing 
different tests for dete rmining relationships among private persons or enterprises vs. private 
persons/enterprises and the State.  However, any such test must be consistent with the Anti-
Dumping Agreement. WT/DS429/R 
 
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  7.159.  Our finding in this respect is consistent with the report of the Appellate Body in EC – 
Fasteners (China) , where it concluded that:  
placing the burden on NME exporters to rebu t a presumption that they are related to 
the State and to demonstrate that they ar e entitled to individual treatment runs 
counter to Article 6.10, which "as a rule" re quires that individual dumping margins be 
determined for each known exporter or producer , and is inconsistent with Article 9.2 
that requires that individual duties be specified by supplier . Even accepting in principle 
that there may be circumstances where exporters and producers from NMEs may be 
considered as a single entity for purposes of Articles 6.10 and 9.2, such singularity 
cannot be presumed; it has to be determined by the investigating authorities on the 
basis of facts and evidence submitted or gathered in the investigation.236 
7.160.  The United States contends that the Appellate Body's reasoning in  EC – Fasteners (China)  
is flawed. According to the United States, "[t]he presumption in EC – Fasteners  that Articles 6.10 
and 9.2 require Members to first recognize each enti ty as an individual exporter or producer … was 
based on an improper interpretation because the Appellate Body created obligations that are not 
grounded in the text of these articles".237 The United States argues, inter alia , that context in the 
Anti-Dumping Agreement, in particular footnote 11 to Article 4.1(i) and Article 9.5, indicates that 
whether producers are related to each other affects the investigating authority's analysis of those 
firms.238  
7.161.  Article 9.5 of the Anti-Dumping Agreement requires investigating authorities to determine 
individual dumping margins for exporters who have not exported the product during the period of 
investigation; those new exporters will receive an individual margin only if they can show that they 
are not related to any of the exporters that are su bject to the anti-dumping duties. We noted, in 
paragraph 7.146.  above that the obligation to determine individual dumping margins may be 
subject to certain exceptions, as long as these exceptions are provided for in the covered 
agreements. In our view, Article 9.5 sets out an exception to the general rule in Article 6.10 that individual dumping margins be specified for each known producer/exporter, and is, therefore, one 
of the possible departures from the general rule contained in Article 6.10.
239 Hence, Article 9.5 
does not undermine our understanding of Article 6.10. Second, Article 4.1 of the Anti-Dumping Agreement contains a definition of the term "dom estic industry" and footnote 11, referred by the 
United States, describes the circumstances when "producers shall be deemed to be related to 
exporters or importers". We note that this prov ision does not deal with the determination of 
dumping margins for producers/exporters, but with the definition of the domestic industry; the "producers" referred to are domestic producers. In any event, we agree with the United States 
that whether producers are related to each other may justify treating them as a single 
producer/exporter under Articles 6.10 and 9.2; the tenor of our findings, and of the Appellate Body's findings in EC – Fasteners (China)  is that such a "singularity" must be determined on the 
basis of positive evidence in the particular case, and cannot be presumed. 
7.162.  The United States also argues that this case is different from EC – Fasteners (China)  
because, according to the United States, the criteria underlying the "separate rate test" are different from those underlying the EU IT test at issue in that case. The United States submits that 
the USDOC's separate rate test "differs significantly from Article 9(5) of the EU's Basic 
                                               
236 Appellate Body Report, EC – Fasteners (China) , para. 364 (italics original; underlining added). The 
Basic AD Regulation at issue in EC – Fasteners (China)  provided that, where the normal value for NME 
suppliers was determined on the basis of market econom y third-country prices (or another method set forth in 
the Regulation), a single duty rate was specified for the supplying country concerned – the so-called "country-
wide" duty – which applied to all supp liers and imports from that country. NME suppliers could, however, avoid 
the country-wide rate and be granted an individual rate if they satisfied the criteria of the so-called "IT test". In 
such case, the NME supplier would receive an individual  rate which was determined by comparing the normal 
value from the market economy third country with the ex porter's actual export prices. (See Appellate Body 
Report, EC – Fasteners (China) , paras. 275-277). 
237 United States' first written submission, para. 175. 
238 United States' first written submission, paras. 147-151. 
239 We note that, in EC – Fasteners (China) , the Appellate Body reache d a similar conclusion. See 
Appellate Body Report, EC – Fasteners (China) , paras. 319 ("an exception permitting derogation from the rule 
requiring the determination of individual margins for new exporters is … expressly provided for in Article 9.5") and 326. WT/DS429/R 
 
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  AD Regulation", with respect to both the context in  which the test is used as well as the criteria 
considered. In the view of the United States:  
unlike the criteria that compose Article 9(5) … the criteria that compose the "separate 
rate test" are effectively waived (and a separate rate assigned) when the exporter 
under investigation or review is owned wholly by entities located in market-economy 
countries or has been previously assigned a separate rate. And when they do apply, they focus, unlike the criteria of Article 9(5), strictly on exporter-specific activities.
240 
7.163.  In the view of the United States, the evidence sought under the US test is consistent with 
the factors that, according to the Appellate Body, could signal that legally distinct entities are in such a relationship that they should be treated as a single entity.
241  
7.164.  According to Viet Nam, a discussion of the criteria used for the separate rate test is 
irrelevant for the Panel's analysis. Viet Nam submits that a practice whereby the USDOC would 
begin with the presumption that all exporters are assigned an individual rate and would apply the 
separate rate test to determine whether a single entity exists may be consistent with the Anti-
Dumping Agreement. However, the fact that the NM E-wide entity policy is based on a reversal of 
that presumption makes it inconsistent with the Agreement.242 
7.165.  We recall that, in order to be accorded a separate rate, exporters from NMEs must 
demonstrate absence of government control, both in law and in fact, with respect to export 
activities. Pursuant to Chapter 10 of the Anti dumping Manual, the USDOC considers three factors 
in evaluating whether there de jure  is absence of government control over export activities.243 The 
USDOC considers four factors in evaluating whether a respondent is subject to de facto  
governmental control over its export functions.244 
7.166.  We have carefully considered the criteria constituting the separate rate test, as well as the 
arguments of the United States. However, we are not persuaded that the alleged differences 
between the IT test at stake in EC – Fasteners (China)  and the separate rate test at issue in the 
present dispute are sufficient in themselves to make the US practice consistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement.  
7.167.  We observe, first, that exporters owned wholly by entities located in market economy 
countries are also required to fill out the separate rate application; although the certification process may be arguably "lighter", it still requires that the firm in question establish, although in a different way (i.e. through affiliation with a fo reign-owned company), independence from the NME 
government in order to receive an individual rate. The second category referred to by the 
United States, exporters located in the NME count ry and which have been previously assigned a 
separate rate, refers to those exporters that ha ve successfully rebutted the presumption (at least 
in the original investigation) that they are part of the NME-wide entity in order to be eligible for a 
                                               
240 United States' response to Pane l question No. 11, paras. 23-38 (the quoted extract is from para. 28). 
See also United States' first written submission, para. 181. 
241 United States' first written submission, para . 181 (referring to Appellate Body Report, EC – Fasteners 
(China) , para. 376). The criteria referred to by the United States are quoted above, in para. 7.154.  See also 
United States' response to Panel qu estion No. 11, paras. 28 and 32. 
242 Viet Nam's second written submission, para. 41. See also Viet Nam's response to Panel question 
No. 11, paras. 34-36. 
243 USDOC Antidumping Manual, Chapter 10, Exhibit VN -24, p. 4. See also Policy Bulletin 05.1, 
Exhibit VN-66, p. 2. These three factors are: (i) an ab sence of restrictive stipulat ions associated with an 
individual exporter's business and export licences; (ii) any legislative enactments decentralizing control of companies; and (iii) any other formal measures by the central and/or loca l government decentralizing control 
of companies. 
244 USDOC Antidumping Manual, Chapter 10, Exhibit VN -24, p. 4. See also Policy Bulletin 05.1, 
Exhibit VN-66, p. 2. The four factors are: (i) whether the export prices are set by, or subject to the approval 
of, a governmental authority;  (ii) whether the respondent has authority to negotiate and sign contracts and 
other agreements; (iii) whether the respondent has autonomy from the governme nt in making decisions 
regarding the selection of management ; and (iv) whether the respondent retains the proceeds of its export 
sales and makes independent decisions regarding the disposit ion of profits or financing of losses. We note that, 
in the latter document, the third factor is worded slig htly differently ("whether the respondent has autonomy 
from the central, provincial and local governments in  making decisions regarding the selection of its 
management"). WT/DS429/R 
 
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  separate rate.245 Hence, in our view, the two examples provided by the United States do not 
support its argument that certain categories of exporters are not subject to the presumption. 
7.168.  Second, we do not believe that we need to pronounce on the relevance and/or consistency 
with the covered agreements of the criteria used by the USDOC, in the context of the separate 
rate test, in evaluating de jure  and de facto  absence of government control. Nor do we need to 
pronounce on whether these criteria are consistent  with the factors identified by the Appellate 
Body in EC – Fasteners (China)  and referred to by the United States. First, we recall that Viet Nam 
does not challenge the criteria composing the separate rate test. More importantly, these criteria 
are not used to establish whether several exporters are sufficiently integrated  with each other or 
with the State so as to justify being treated as a single NME-wide entity. The purpose of this test is to determine whether exporters are sufficiently distinct  from the State so as to overcome the 
presumption that they are part of the NME-wide entity. Thus, even if we were to find, arguendo , 
that some or all of the criteria used by the USDOC in its separate test are relevant or appropriate to effectively determine that the State controls or  materially influences exporters such that they 
can be found to constitute a single entity, the ve ry starting point of the separate rate test, the 
rebuttable presumption that a NME-wide entity exists, and the evidentiary burden placed on 
exporters to overcome that presumption, gives rise to an inconsistency with Articles 6.10 and 9.2 
of the Anti-Dumping Agreement.
246 Therefore, the criteria used under the separate rate test 
cannot save the measure from being found inconsistent with Articles 6.10 and 9.2, even if, per se , 
they might be relevant or appropriate for determining that two or more exporters are sufficiently related among themselves or with the government so that they constitute a single entity.
247  
7.169.  In light of the above, we  maintain our conclusion that the policy or practice whereby in 
anti-dumping proceedings involving NME countries, the USDOC applies a rebuttable presumption that, in such countries, all companies belong to a single, NME-wide entity and assigns a single rate 
to that entity is inconsistent with the obligatio ns contained in Articles 6.10 and 9.2 of the Anti-
Dumping Agreement. 
7.170.  However, before concluding our analysis of the consistency of the measure at issue with 
Articles 6.10 and 9.2 of the Anti-Dumping Agreemen t, we turn to the question whether Viet Nam's 
Accession Protocol provides a legal basis for the rebuttable presumption that, in Viet Nam, all companies are part of a single, Viet Nam-wide entity and should be assigned a single rate. We discuss the role of Viet Nam's Protocol of Accession here for the sake of a complete discussion of 
Viet Nam's arguments in support of its "as such" claim. We note, however, that the role of 
Viet Nam's Protocol of Accession is equally, if not more, relevant in the context of Viet Nam's "as applied" claim. Therefore, any conclusions we reach with respect to Viet Nam's Protocol of 
Accession in this context will be applicable mutatis mutandis  t o  o u r  a n a l y s i s  o f  V i e t  N a m ' s  " a s  
applied" claims below. 
7.171.  The United States argues that Viet Nam's Working Party Report provides "legal (as well as 
factual) support" for treating multiple companies in Viet Nam as part of a Viet Nam-wide entity for 
the purpose of determining a margin of dumping.
248 Viet Nam submits that its Accession Protocol 
and Working Party Report provide that the prov isions of the GATT 1994 and the Anti-Dumping 
Agreement "shall apply" in anti-dumping proceedi ngs involving exports from Viet Nam, subject to 
                                               
245 Separate Rate Certification for Firms Previously Awarded Separate Rate St atus, Exhibit US-73. We 
also observe that the Separate Rate Certification indicates, inter alia , that "completion of this Certification does 
not guarantee separate rate status for this POR" an d "companies who had change s to corporate structure, 
ownership, or to the official company name may not file  a Separate Rate Certification but must instead file a 
Separate Rate Application" (Exhibit US-73, p. 2). We also note that, und er the Separate Rate Certification, 
firms must also certify absence of de jure  or de facto  government control. While wh olly foreign-owned entities 
are not requested to respond to most questions related to de jure  control, they are required to respond to 
certain questions related to de facto  government control. See Exhibit US-73, pp. 8-9. 
246 Viet Nam does not contest the crit eria relied upon by the USDOC. Viet Nam even concedes that "if … 
the USDOC began with the pr esumption that all exporters are assigned individual rates and then applied the 
'separate rate test', to exporters to determine if they ar e part of a single entity, the practice may be consistent 
with Articles 6.10 and 9.2". (Viet Nam's second written submission, para. 41.) 
247 We observe that, in EC – Fasteners (China) , the Appellate Body reached a similar conclusion with 
respect to the IT test under consideration in  that dispute. See Appellate Body Report, EC – Fasteners (China) , 
para. 377. 
248 United States' second written submission, para. 70. The United States' arguments with respect to 
this issue are summarized above, paragraphs 7.137.  - 7.138.   WT/DS429/R 
 
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  one special rule, namely the right for an investigating authority to use an alternate methodology 
when calculating normal value.249 
7.172.  China, as a third party, submits that pa ragraph 255 of Viet Nam's Working Party Report is 
similar in substance to Article 15 of China's Protocol of Accession. In China's view, the sole issue 
addressed by subparagraph (a) of each provision is the issue of whether to use domestic prices or 
costs in China/Viet Nam when determining price comparability in anti-dumping proceedings. According to China, it is clear that the Anti-Dum ping Agreement, including Articles 6.10, 9.2, 9.4 
and 6.8, applies in anti-dumping proceedings agai nst imports from China/Viet Nam with the only 
exceptions explicitly stated in the subparagraph (a) of each provision. Hence, other WTO Members 
are not allowed to discriminate against imports from China/Viet Nam in anti-dumping proceedings, for purposes other than the determination of normal value. China is of the view that this 
understanding has been confirmed by the Appellate Body in EC – Fasteners (China) .
250  
7.173.  Turning first to the relevant provisions of Viet Nam's Working Party Report, we observe 
that the Report indicates that, during Viet Nam's accession negotiations to the WTO, certain 
Members considered that the fact that Viet Nam ha d not yet transitioned to a full market economy 
might cause certain difficulties in anti-dumping proceedings involving imports from Viet Nam. This concern is reflected in paragraph 254 of the Working Party Report, which states that: 
Several Members noted that Viet Nam was continuing the process of transition 
towards a full market economy. Those Members noted that under those circumstances, in the case of imports of Vietnamese origin into a WTO Member, special difficulties could exist in determining cost and price comparability in the 
context of anti-dumping investigations and countervailing duty investigations. Those 
Members stated that in such cases, the importing WTO Member might find it necessary to take into account the possibility that a strict comparison with domestic 
costs and prices in Viet Nam might not always be appropriate.
251 
7.174.  In light of such difficulties, paragraph 255 of the Working Party Report provides in relevant 
part: 
The representative of Viet Nam confirmed that, upon accession, the following would 
apply − Article VI of the GATT 1994, the Agreemen t on Implementation of Article VI of 
the General Agreement on Tariffs and Trad e 1994 ("Anti-Dumping Agreement") and 
the SCM Agreement shall apply in proceedings involving exports from Viet Nam into a 
WTO Member consistent with the following: 
(a) In determining price comparability under Article VI of the 
GATT 1994 and the Anti-Dumping Agreement, the importing WTO 
Member shall use either Vietnamese prices or costs for the industry under 
investigation or a methodology that is not based on a strict comparison with domestic prices or costs in Viet Nam based on the following rules: 
(i) If the producers under investigation can clearly show that 
market economy conditions prevail in the industry producing the like product with regard to the manufacture, production and sale of that product, the importing WTO Member shall use Vietnamese 
prices or costs for the industry under investigation in determining 
price comparability; 
(ii) The importing WTO Member may use a methodology that is 
not based on a strict comparison with domestic prices or costs in 
Viet Nam if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing 
                                               
249 Viet Nam's second written submission, paras. 36-37.  Viet Nam's arguments with respect to this issue 
are summarized above, at paragraph 7.134.   
250 China's third-party written submission, paras.  36-36 (referring to Appellate Body Report, EC – 
Fasteners (China) , para. 290). 
251 Viet Nam's Working Party Report, para. 254. WT/DS429/R 
 
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  the like product with regard to manufacture, production and sale of 
that product.  
… (d) Once Viet Nam has established, under the national law of the 
importing WTO Member, that it is a market economy, the provisions of 
subparagraph (a) shall be terminated provided that the importing Member's national law contains market economy criteria as of the date of 
accession.  In any event, the provisions of subparagraph (a)(ii) shall 
expire on 31 December 2018. In addition, should Viet Nam establish, pursuant to the national law of the importing WTO Member, that market economy conditions prevail in a particular industry or sector, the non-
market economy provisions of subparagraph (a) shall no longer apply to 
that industry or sector. 
7.175.  Provisions contained in Accession Protocols are binding upon the parties and are therefore 
treaty text to be interpreted pursuant to customary rules of interpretation, in particular Articles 31 
and 32 of the Vienna Convention. By virtue of paragraph 2 of Viet Nam's Accession Protocol, the commitment contained in paragraph 255 of its Working Party Report is incorporated by reference 
into the Accession Protocol and is therefore treaty language. In contrast, paragraph 254 is not 
referred to in Viet Nam's Accession Protoc ol and, therefore, is not treaty text.
252  
7.176.  The introductory clause of paragraph 255 states, in relevant parts, that "Article VI of the 
GATT 1994, the Agreement on Implementation of Ar ticle VI of the General Agreement on Tariffs 
and Trade 1994 ("Anti-Dumping Agreement") … shall apply … consistent with the following". This 
introductory clause is then followed by four su b-paragraphs, two of which – paragraphs (a) and (d) 
– deal with the treatment of imports from  Viet Nam in anti-dumping proceedings.253 Hence, we 
understand that paragraph 255 of Viet Nam's Working Party Report confirms that Article VI of the 
GATT 1994 and the Anti-Dumping Agreement apply in  anti-dumping proceedings involving imports 
from Viet Nam, subject to the provisions contained in sub-paragraphs (a) and (d). 
7.177.  Pursuant to paragraph 255(a), other WTO Members may, if the producers under 
investigation cannot clearly show that market economy conditions prevail in the relevant industry, determine the normal value on a basis other than domestic prices or costs in Viet Nam.
254 Thus, 
the derogation provided for under paragraph 255(a) is a limited one, which only concerns the 
determination of normal value, and does not ex tend to the determination of export price.  
7.178.  We observe that the second Ad Note to Article VI:1 of the GATT 1994 contains a similar 
recognition of the difficulties which may exist in determining price comparability in the case of 
imports from a country which has a complete or substantially complete monopoly over its trade 
and where all domestic prices are fixed by the State.255 Like paragraph 255(a) of Viet Nam's 
                                               
252 Paragraph 2 of Viet Nam's Protocol of Accession stat es, in relevant parts, that "[t]his Protocol, which 
shall include the commitments referred to in paragraph 527 of the Working Party Report, shall be an integral 
part of the WTO Agreement". Paragraph 255 of the Working Party Report is listed in paragraph 527, unlike paragraph 254. See Viet Nam's Accession Protocol, para. 2 and Viet Nam's Working Party Report, para. 527. 
253 Subparagraph (b) deals with proceedings under the Agreement on Subsidies and Countervailing 
Measures and subparagraph (c) concerns notifications to  the Committee on Anti-Dumping Practices and to the 
Committee on Subsidies and Co untervailing Measures. These two provisions are not at stake in this dispute and 
we shall not address them further. 
254 Paragraph 255(a) provides that, in determining price comparability, the importing WTO Member may 
use either of two methods to establish normal value, i. e. "Vietnamese prices or costs for the industry under 
investigation" or "a methodology that is not based on a strict comparison with domestic prices or costs in 
Viet Nam". Paragraph 255(d) sets forth different instances in which the special rule for the determination of price comparability in paragraph (a) will cease to apply: paragraph (a) shall terminate with respect to Viet Nam or particular sectors or industries in Viet Nam, once Viet Nam has established, under the national law of the 
importing country, that, respectively, "it is a market economy" or that "market economy conditions prevail in a particular industry or sector". Paragraph 255(d) indicates, moreover, that "the provisions of subparagraph (a)(ii) shall expire on 31 December 2018". 
255 The second Ad Note to Article VI:1 of the GATT 1994 states: 
It is recognized that, in the ca se of imports from a country which has a complete or substantially 
complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparab ility for the purposes of paragraph 1, and in WT/DS429/R 
 
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  Working Party Report, the Ad Note allows investigating authorities to depart from a "strict 
comparison with domestic prices", thus suggesting that this provision provides flexibility with respect to the determination of normal value.
256 In EC – Fasteners (China) , the Appellate Body 
remarked that: 
The recognition of special difficulties in determining price comparability in the second 
Ad Note to Article VI:1 does not mean that importing Members may depart from the 
provisions regarding the determination of export prices and the calculation of dumping 
margins and anti-dumping duties set forth in the Anti-Dumping Agreement  and in the 
GATT 1994. While the second Ad Note to Article VI:1 refers to difficulties in 
determining price comparability in general, the text of this provision clarifies that 
these difficulties relate exclusively to the no rmal value side of the comparison. This is 
indicated by the operative part in the third sentence of this provision, which only 
allows importing Members to depart from a "strict comparison with domestic  
prices".257 
7.179.  In our view, neither the second Ad Note to Article VI:1 of the GATT 1994 nor 
paragraph 255 of Viet Nam's Working Party Report can be read as allowing WTO Members to treat Viet Nam differently for purposes other than the determination of normal value. 
7.180.  We further observe that, pursuant to subparagraph 255(a)(i), the importing WTO Member 
"shall use Vietnamese prices or costs" if the producers under investigation "clearly show" that market economy conditions prevail. If Vietname se producers succeed in showing that market 
economy conditions prevail, the importing Member shall then use Vietnamese prices or costs when 
determining price comparability, i.e. in the determination of normal value. Conversely, when 
Vietnamese producers do not succeed in showing that market economy conditions prevail, the importing Member "may use a methodology that is not based on a strict comparison with domestic 
prices and costs in Viet Nam", pursuant to paragraph 255(a)(ii). In our view, a failure by 
Vietnamese producers to show that market economy conditions prevail in the industry producing the product under investigation only allows the importing Member to treat those producers 
differently with respect to the determination of normal value because the scope of the derogation 
conceded by Viet Nam in its Protocol of Accession concerns exclusively the determination of normal value. Hence, paragraph 255(a) of Viet Nam's Working Party Report does not authorize importing Members to treat Viet Nam differently for purposes other than the determination of normal value.  
7.181.  We find therefore that, in anti-dumping proceedings involving imports from Viet Nam, 
paragraph 255 of Viet Nam's Working Party Report, as incorporated in Viet Nam's Accession Protocol, authorizes WTO Members to treat Viet Nam differently from other Members with respect 
to the determination of price comparability in respect of domestic prices and costs in Viet Nam, 
that is, the determination of normal value. However, this provision does not provide for a general exception permitting different treatment of Vietnamese exporters for other purposes, such as the 
application of a presumption that, in Viet Nam, all companies belong to a single, Viet Nam-wide 
entity, and should receive a single rate. 
7.182.  Our reading of paragraph 255 of Viet Nam's Working Party Report comports with the 
Appellate Body's reading of virtually identical provisions contained in Section 15 of China's Protocol 
of Accession.
258 In EC – Fasteners (China) , in assessing the European Union's arguments on appeal 
under Articles 6.10 and 9.2 of the Anti-Dumping  Agreement, the Appellate Body examined the 
extent to which China's Protocol of Accession allowed the European Union to apply different rules 
to China than to other Members in anti-dumping proceedings. The Appellate Body concluded: 
In our view, therefore, Section 15 of China's Accession Protocol does not authorize 
WTO Members to treat China differently from other Members except for the 
                                                                                                                                               
such cases importing Members may find it necessary  to take into account the possibility that a 
strict comparison with domestic prices in su ch a country may not always be appropriate. 
256 Article 2.7 of the Anti-Dumping Agreement provides that Article 2 "is without prejudice to the second 
Supplementary Provision in paragraph 1 to  Article VI in Annex I to GATT 1994". 
257 Appellate Body Report, EC – Fasteners (China) , footnote 460 to para. 285. (italics original, 
underlining added) 
258 The language of Section 15 of China's Accession Protocol is materially identical to that of 
paragraph 255. WT/DS429/R 
 
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  determination of price comparability in respect of domestic prices and costs in China, 
which relates to the determination of normal value.  We consider that, while Section 15 of China's Accession Protocol establishes special rules regarding the domestic price aspect of price comparability, it does not contain an open-ended 
exception that allows WTO Members to treat China differently for other purposes 
under the Anti-Dumping Agreement  and the GATT 1994, such as the determination of 
export prices or individual versus country-wide margins and duties.
259 
7.183.  The United States discusses in detail various provisions and Annexes of Viet Nam's 
Working Party Report, which, in its view, provide evidence that Viet Nam is an NME and, thus, justify USDOC's treatment of Vietnamese producers and exporters.
260 The United States describes 
the specificities of market vs. non-market economy conditions, and submits that, in the latter, the 
role of the government in controlling resource allocation justifies the concerns expressed in 
Viet Nam's Working Party Report and, in turn, the application of a single government-entity rate or of a presumption that all companies in Viet Na m are controlled by the Government. According to 
the United States, the issue presented in the disp ute is a "mixed question of fact and law" and 
"there is no clear dividing line between what amounts to 'factual' versus 'legal' support".
261 The 
United States also points to Viet Nam's Constitution262 and to "many other examples [in Viet Nam's 
Working Party Report] confirming that Vietnam had not yet shifted completely away from a 
centrally planned economy to a market-based economy".263 The United States concludes that, 
given the presumption that, in NME countries, the government effectively controls resource allocations, "it would make no sense to automatically assign individual dumping margins to 
different sets of exports that are all associated with Vietnamese companies under the 
government's control".
264 
7.184.  Viet Nam submits that, while the Working Party Report describes the prevailing economic 
conditions present in Viet Nam at the time of the Report, nowhere in the Report or the Accession 
Protocol does Viet Nam make generalized concessions based on those economic conditions. Viet Nam argues that there is no textual basis in the Protocol which would allow Members to 
presume the existence of an NME-wide entity and that no legal basis can be assumed; hence, the 
Panel should conclude, like the Appellate Body in EC – Fasteners (China) , that Viet Nam's Protocol 
does not contain an open-ended exception that al lows WTO Members to treat Viet Nam differently 
from a market economy country. Viet Nam also submits that the United States' attempt to turn the 
issue into a question of facts is a distraction from the fundamental issue which is, as in EC – 
Fasteners (China) , that an authority cannot use a presumption to apply a single rate to multiple 
entities because the covered agreements do not allow for the use of such a presumption.
265 
7.185.  We have examined the factual evidence submitted by the United States regarding the 
characteristics of NMEs' economic systems in general and Viet Nam's economy in particular, and the concerns that these characteristics may raise in the WTO system. We believe, however, that 
the factual evidence presented by the United States with the aim of showing that Viet Nam is an 
NME is not relevant to the resolution of the legal question we need to address, namely whether the 
                                               
259 Appellate Body Report, EC – Fasteners (China) , para. 290. 
260 United States' second written submission, para s. 71-74 (referring to Vi et Nam's Working Party 
Report, paras. 52, 56, 57, 60, and 253-255; Annex 2,  Table 4, para. 83; Annex 2, Tables 1 and 2). 
261 United States' second written submission, para. 70. 
262 Viet Nam Constitution, Chapt. II, Art. 15 (partial document), Exhibit US-81, Article 15. 
263 United States' second written submission, paras. 71-72. The United States re fers in particular to 
certain paragraphs contained in the section of the Wo rking Party Report discussi ng state-owned enterprises 
("SOEs") and which show, according to the United States, that "the open-ended list of such enterprises … is 
extensive and encompasses industries and sectors far be yond those normally considered national security-
related or natural monopolies". See United States' second  written submission, para. 72 (referring to Viet Nam's 
Working Party Report, paras. 52, 56, 57 and 60, and Annex 2, Table 4). The United States also points to "a 
long list of industries in which investment was prohibited, conditional or restricted" in Viet Nam. See United States' second written submis sion, para. 72, referring to Viet Nam's Working Party Report, Tables 1 
and 2 in Annex 2. These tables contai n a list of goods and services sectors where business is prohibited or 
subject to conditions. Viet Nam's Working Party Report, Annex 2, Tables 1 and 2. 
264 United States' second written submission , paras. 75-76 (referring to N. Gregory Mankiw,  Principles of 
Microeconomics (South-Western Centage Learning 2012) (partial document), Exhibit US-84, pp. 10-11 and 84; 
and Paul R. Gregory & Robert C. Stuart, Comparing Ec onomic Systems in the Twenty-First Century (Houghton 
Mifflin Company 2004) (partial document), Exhibit US-85, pp. 25-31). 
265 Viet Nam's second written submission, paras. 36-38. WT/DS429/R 
 
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  United States is entitled to presume that, in Viet Nam, all companies belong to a single, Viet Nam-
wide entity, and should be assigned a single rate.  
7.186.  We recall that our task is to assess the legal question of whether the treatment of NMEs by 
the USDOC in anti-dumping investigations under the challenged measure is consistent with the 
requirements of the Anti-Dumping Agreement. The factual  information provided by the 
United States concerning the economic specificities of NME countries in general and of Viet Nam in particular must be distinguished from the legal question as to how, under the Anti-Dumping 
Agreement, an investigating authority may use that information in an anti-dumping proceeding. 
Whether an investigating authority is allowed, in an anti-dumping proceeding involving an NME, to presume that all exporters belong to a single, government-wide entity is a legal question. In our view, the factual evidence tabled by the United States, cannot, in and of itself, justify a WTO 
Member treating Vietnamese exporters differently from any other Member's exporters in the 
absence of a clear textual basis in Viet Nam's Accession Protocol. Hence, we also disagree with the United States' proposition that Viet Nam's Working Party Report contains an "underlying" 
presumption that NME conditions prevail in Viet Nam, which, in turn, would, according to the 
United States, justify the application of a single "government-entity" rate.
266  
7.187.  We observe that, in EC – Fasteners (China) , the Appellate Body drew a similar distinction, 
finding that: 
the economic structure of a WTO Member may be used as evidence before an 
investigating authority to determine whethe r the State and a number of exporters or 
producers subject to an investigation are sufficiently related to constitute a single 
entity such that a single margin should be calculated and a single duty be imposed on 
them. It cannot, however, be used to imply a legal presumption that has not been 
written into the covered agreements. 
… the evidence submitted by the European  Union concerning NMEs in general and 
China in particular is not relevant to the legal question of whether the European Union 
is permitted to presume under Article 9(5) of the Basic AD Regulation that the State 
and the exporters are a single exporter for purposes of Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement . The review of this evidence reveals that it is possible that in 
specific circumstances an investigating authority may reach the conclusion that the State and certain exporters are so closely related that they constitute a single entity.  
However, the evidence submitted by the European Union cannot establish that the 
economic structure in China justifies a general presumption that the State and all the 
exporters in all industries that might be subject to an anti-dumping investigation 
constitute a single legal entity, where no legal basis for such a presumption is 
provided for in the covered agreements.267 
7.188.  We find that the evidence submitted by the United States regarding the economic 
characteristics of NMEs in general and Viet Nam in particular cannot justify a general presumption 
that, in NME countries (including in Viet Nam), all exporters belong to a single, government-wide entity, where no legal basis for such a presumptio n is provided for in the covered agreements. We 
conclude therefore, that the evidence submitted to the Panel regarding the operation of NMEs in 
general and Viet Nam in particular is not relevant to the legal question of whether the 
United States is entitled to presume the existence of an NME-wide entity and assign a single rate to that entity.
268 
7.189.  The United States also argues that "price comparability", referred to in paragraph 255, is a 
central tenet of a dumping analysis.269 The United States appears to derive two main inferences 
from the reference to "price comparability": (i) th e term "price comparability" must be understood 
as making reference to both normal value and export price because both are necessary to ensure 
                                               
266 United States' second written submission, paras. 74-76. See also United States' first written 
submission, para. 166. 
267 Appellate Body Report, EC – Fasteners (China) , paras. 367 and 369. (italics original, underline 
added) 
268 Appellate Body Report, EC – Fasteners (China) , para. 370. 
269 United States' second written submission, para. 80; opening statement at the second meeting of the 
Panel, para. 25. WT/DS429/R 
 
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  appropriate price comparability; and (ii) the ne ed to ensure appropriate comparability between 
normal value and export price, in turn, provides a reasonable basis for the USDOC to presume that 
Vietnamese companies belong to the Viet Nam-wide entity.270 The United States also argues that 
the presumption in paragraph 255 of the Working Pa rty Report makes it "legally permissible" for 
the USDOC to presume government influence, which, in turn, also makes it legally permissible and 
in fact "the most logical step for purposes of price comparability", to presume that all companies belong to the Viet Nam-wide entity for purposes of the calculation of export price.
271 
7.190.  Leaving aside the seemingly circular argume nts and inferences made by the United States, 
our reading of the term "price comparability" in paragraph 255 of Viet Nam's Working Party Report 
is narrower than the reading proposed by the Unit ed States. We agree that "price comparability" 
for the purpose of a dumping analysis involves a comparison between normal value and export 
price. However, while paragraph 255 of Viet Nam's Working Party Report acknowledges that there 
may be certain difficulties in determining price comparability in respect of imports from Viet Nam, we have already found that the text  of paragraph 255 clarifies that these difficulties can relate only 
to "Vietnamese prices or costs" (sub-paragraph 255(a)(i)) / "domestic prices or costs in Viet Nam" 
(sub-paragraph 255(a)(ii)). Hence, as we stated ab ove, these difficulties can relate only to the 
determination of normal value. Therefore, the reference to "price comparability" in paragraph 255 
cannot be interpreted to also include the right to resort to a different methodology with respect to 
the determination of export price. 
7.191.  The United States also submits that Viet Nam could have challenged, in the present 
dispute, the USDOC's decision to treat Viet Nam as an NME and/or the NME methodology used by 
the USDOC for calculating normal value, and the fa ct that it did not "supports the presumption" 
that each exporter is controlled by the government.
272 In our view, the fact that Viet Nam did not 
challenge before the Panel the 2002 USDOC decision to treat it as an NME for the purpose of anti-
dumping proceedings cannot imply any kind of acknowledgement, on the part of Viet Nam, 
regarding the existence of a "Viet Nam-wide entity" or regarding any right for the United States to presume the existence of such an entity under the covered agreements. Viet Nam had no reason 
to challenge before the Panel USDOC's decision to treat it as an NME and to use a different 
methodology to calculate normal value since this possibility is specifically provided for in paragraph 255(a) of its Working Party Report.  
7.192.  Therefore, we also disagree with the United States that paragraph 255 "modifies" the 
obligations contained in Articles 6.10 and 9.2 of the Anti-Dumping Agreement.
273 A s  w e  s t a t e d  
above, paragraph 255 of Viet Nam's Working Party Report only allows importing Members to derogate from the disciplines of the Anti-Dumpi ng Agreement with respect to the methodology 
used to calculate normal value. However, nothing in paragraph 255 indicates that this provision 
provides for a derogation from the obligations to assign an individual dumping margin pursuant to Article 6.10 and an individual anti-dumping duty ra te pursuant to Article 9.2 of the Anti-Dumping 
Agreement. 
7.193.  We conclude, therefore, that the USDOC's policy or practice whereby, in anti-dumping 
proceedings involving NMEs, it presumes that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity is incons istent "as such" with Article 6.10 and Article 9.2 of 
the Anti-Dumping Agreement. 
7.4.2.4  Whether the NME-wide entity rate prac tice is inconsistent with Articles 9.4, 6.8 
and Annex II of the Anti-Dumping Agreement 
7.194.  We recall our finding above that, while the evidence on the record indicates that the 
USDOC often calculates the rate for the NME-wide entity based on facts available, it does not establish that the USDOC consistently uses a defined methodology to calculate the NME-wide 
entity rate or systematically bases that rate on  facts available. Therefore, we concluded that 
Viet Nam had failed to establish that the USDOC's methodology used to calculate the NME-wide entity rate, in particular as it refers to the use of facts available, is a rule or norm that constitutes a measure of general and prospective application which can be challenged as such. This being the 
                                               
270 United States' opening statement at the second meeting of the Panel, para. 27. 
271 United States' opening statement at the second meeting of the Panel, para. 28. 
272 United States' first written submission, para. 162 ; response to Panel ques tion No. 14(a), para. 41. 
273 United States' second written submission, para. 86. WT/DS429/R 
 
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  case, we find that Viet Nam did not establish that the alleged measure is "as such" inconsistent 
with Articles 6.8 and 9.4, and Annex II of the Anti-Dumping Agreement. 
7.4.3  Claims with respect to the application of the NME-wide entity rate practice in the 
administrative reviews at issue 
7.4.3.1  Introduction 
7.195.  Viet Nam claims that the Viet Nam-wide rate applied in the fourth, fifth and 
sixth administrative reviews under the Shrimp  order is inconsistent with Articles 6.10, 9.2, 9.4, 6.8 
and Annex II of the Anti-Dumping Agreement. The United States requests that we reject 
Viet Nam's claims of inconsistency. 
7.196.  Before addressing Viet Nam's claims of inconsistency, we set out the relevant facts 
concerning the three administrative reviews at issue. We will then examine whether Viet Nam has 
demonstrated that one or more of the measures at issue is inconsistent with the provisions it cites. 
7.4.3.2  Factual background 7.197.  In the fourth administrative review, th e USDOC started with the rebuttable presumption 
that "all companies within the country are subject to government control and, thus, should be 
assigned a single antidumping duty deposit rate".
274 It selected two separate rate companies – 
Minh Phu and Nha Trang – for individual examination on the ground that they were "the largest 
exporters, by volume, of subject merchandise during the POR".275 The rate assigned to the 
separate rate companies was based on the simple average of the individual margins calculated for the two mandatory respondents and amounted to 3.92%.
276 The USDOC further stated "we are 
applying a single antidumping rate, i.e . the Vietnam-wide entity rate, to all other exporters of 
subject merchandise from Vietnam" and set that rate at 25.76%. The USDOC did not explain how 
this rate was determined, other than to say that the rate assigned to the Viet Nam-wide entity is "the entity's current rate and only rate ever determined for the entity in this proceeding".
277  
7.198.  In the fifth administrative review, the USDOC recalled that "[i]n proceedings involving non-
market economy ("NME") countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus, should be assigned a 
single antidumping duty deposit rate".
278 It selected the three largest exporters as mandatory 
respondents, namely Camimex, Minh Phu and Nha Trang.279 Twenty-seven companies successfully 
met the criteria for separate rate status and received a separate rate of 1.03%, calculated on the basis of the weighted-average margins determined for Camimex and Minh Phu.
280 With respect to 
non-separate rate companies, the USDOC observed  that "no party has submitted evidence of the 
proceeding to demonstrate that … government influence is no longer present or that our treatment of the NME entity is otherwise incorrect. Therefor e, we are assigning the entity's current rate of 
25.76%, the only rate ever determined for the Vietnam-wide entity in this proceeding".
281   
7.199.  In the sixth administrative review, the USDOC again recalled that "[i]n NME countries, the 
Department begins with a rebuttable presumption that all companies within the country are 
                                               
274 Notice of initiation for the fourth administrative review, Exhibit VN-06, p. 13178. 
275 Preliminary determination in the fourth administrative review, Exhibit VN-09, p. 12207. Minh Phu and 
Nha Trang received a final rate of, respectively, 2.95% and 4.89%. See amended final determination in the fourth administrative review, Exhibit US-08, p. 61123. 
276 Amended final determination in the fourth administrative review, Exhibit US-08, p. 61123. 
277 Final determination in the fourth administrative review, Exhibit VN-13, pp. 47773 and 47776; 
preliminary determination in the fourth administrative review, Exhibit VN-09, p. 12211. 
278 Notice of initiation for the fifth administrative review, Exhibit VN-10, p. 18154. 
279 Preliminary determination in the fifth administrative review, Exhibit VN-15; final determination in the 
fifth administrative review, Exhibit VN-18. 
280 Amended final determination in the fifth administrative review, Exhibit US-09, p. 64309. In the final 
determination, the USDOC explains that "[t]he separate  rate is determined based on the estimated weighted-
average anti-dumping margins established for exporter s and producers individually  investigated, excluding 
zeroing and de minimis  margins or margins based entirely on facts available". (Final determination in the 
fifth administrative review, Exhibit VN-18, p. 56160.) 
281 Preliminary determination in the fifth administrative review, Exhibit VN-15, p. 12059. See also final 
determination in the fifth admini strative review, Exhibit VN-18. WT/DS429/R 
 
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  subject to government control and thus should  be assessed a single antidumping duty rate".282 It 
selected the two largest exporters – Minh Phu and Nha Trang – as mandatory respondents.283 The 
USDOC calculated a separate rate of 0.88%, corresponding to the simple average of the margins for the two mandatory respondents.
284 With respect to some 30 companies that did not 
demonstrate eligibility for a separate rate, the USDOC noted that "no party has submitted 
evidence of the proceeding to demonstrate that su ch government influence is no longer present or 
that our treatment of the NME entity is otherwise incorrect. Therefore, we are assigning the entity 
rate of 25.76%, the only rate ever determined for the Vietnam-wide entity in this proceeding".285 
The Viet Nam-wide entity rate of 25.76% was confirmed in the final determination.286  
7.200.  To sum up, in each of the reviews at issue, the USDOC began with a rebuttable 
presumption that all shrimp exporters and producers in Viet Nam are operating units of a single, 
Viet Nam-wide entity. Exporters and producers that established sufficient independence from 
government control with respect to their export ac tivities qualified for "separate rate status". In 
each review, the USDOC decided to limit the number of respondents for individual examination and 
selected the largest producers/exporters as mandatory respondents on the basis of USCPB data. 
Mandatory respondents were assigned an individual  dumping margin calculated on the basis of a 
surrogate normal value that the USDOC determined for Viet Nam and each exporter's own export 
prices. Exporters with separate rate status wh ich were not selected as mandatory respondents 
received the "separate rate", a rate based on the simple or weighted-average of the rate of the mandatory respondents in each review. Vietnamese  companies which did not successfully establish 
independence from the Vietnamese Government, or which did not apply for separate rate status, 
were assigned the Viet Nam-wide rate of 25.76% in each review.  
7.4.3.3  Whether the Viet Nam- wide entity rate applied in the administrative reviews at 
issue is inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement 
7.4.3.3.1  Main arguments of the parties 
7.4.3.3.1.1  Viet Nam 7.201.  Viet Nam argues that the USDOC's presumpt ion of the existence of a Viet Nam-wide entity 
in the proceedings at issue does not comply with the plain language of Articles 6.10 and 9.2 of the 
Anti-Dumping Agreement. Viet Nam argues that, in  the three administrative reviews at issue, the 
USDOC did not establish, as a factual matter, the ex istence of a single entity but, instead, relied 
on a presumption that all entities within Viet Nam belong to a single entity under the control of the 
government. Viet Nam refers to its arguments made in connection with its claim that the USDOC's 
practice of presuming that all exporters belong to a single, government-wide entity is, as such, 
inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement. According to Viet Nam, the 
USDOC's practice of presuming a Viet Nam-wide enti ty and assigning a single rate to that entity, 
as applied in the proceedings at issue, resulted  in violation of the obligation, contained in 
Articles 6.10 and 9.2, that investigating authorities determine individual dumping margins and 
anti-dumping duties for exporters and producers.
287 
7.4.3.3.1.2  United States 7.202.  The United States argues that treating related companies in the covered reviews as a 
single exporter or producer for the purpose of determining a dumping margin is consistent with 
Articles 6.10 and 9.2 of the Anti-Dumping Agreement. According to the United States, the 
USDOC's conclusion that multiple companies in Viet Nam are part of a Viet Nam-government entity is based on a permissible interpretation of Arti cles 6.10 and 9.2 of the Anti-Dumping Agreement. 
                                               
282 Preliminary determination in the sixth administrative review, Exhibit VN-19, p. 13550. 
283 Amended final determination in the sixth administrative review, Exhibit VN-22, p. 64102. 
284 Amended final determination in the sixth administrative review, Exhibit VN-22, pp. 64102-64103. 
285 Preliminary determination in the sixth administrative review, Exhibit VN-19, p. 13552. 
286 Final determination in the sixth administrative review, Exhibit VN-20. 
287 Viet Nam's first written submission, paras. 148-153. Viet Nam's arguments with respect to the WTO-
consistency of the NME-wide entity rate with Articles 6.10 and 9.2 of the Anti-Dumping Agreement are set out in more details in Section 7.4.2.3.1  above. WT/DS429/R 
 
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  The United States requests, therefore, that the Panel find that the USDOC's conclusions in the 
three administrative reviews at issue are not inconsistent with the Anti-Dumping Agreement.288 
7.4.3.3.2  Evaluation by the Panel 7.203.  The present claims raise the issue of whether, in the fourth, fifth and sixth administrative 
reviews, the application by the USDOC of a rebuttable presumption that all shrimp 
producers/exporters in Viet Nam are operating units of a single, Viet Nam-wide entity, and the determination of a single dumping margin for, and application of, a single anti-dumping rate to 
that entity, is inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement. 
7.204.  We recall our finding above that, pursuant to Article 6.10, investigating authorities have an 
obligation to determine individual margins of du mping for each known producer/exporter. This 
obligation is subject to the exception contained in the second sentence of Article 6.10 and may be 
subject to other exceptions as well, as long as these exceptions are provided for in the covered 
agreements. We also found that, pursuant to Articl e 9.2, individual anti-dumping duties must be 
specified for each supplier, except where this is impracticable.
289  
7.205.  We further recall our factual finding that, in each administrative review at issue in the 
present dispute, the USDOC began with a rebuttable presumption that all shrimp exporters and producers in Viet Nam are part of a single, Viet Nam-wide entity, and determined a single dumping 
margin for and applied a single anti-dumping rate to that entity. We also found that, in order to be 
eligible for an individual rate, Vietnamese exporters and producers were required to pass the "separate rate test" by demonstrating independence from the Government of Viet Nam. 
7.206.  Having concluded that the USDOC's policy or practice whereby, in anti-dumping 
proceedings involving NMEs, it presumes that all companies belong to a single, NME-wide entity, 
and assigns a single rate to that entity is inconsistent "as such" with Articles 6.10 and 9.2
290, we 
do not see how the application of that practice in the three administrative reviews at issue could 
be found consistent with those same two provisions. 
7.207.  We also recall our finding above that nothing in paragraph 255 of Viet Nam's Working 
Party Report, as incorporated into Viet Nam's Protocol of Accession, indicates that this provision 
provides for a derogation from the obligations to assign an individual dumping margin pursuant to 
Article 6.10 and an individual anti-dumping duty ra te pursuant to Article 9.2 of the Anti-Dumping 
Agreement.291 These conclusions are applicable mutatis mutandis  to our consideration of 
Viet Nam's "as applied" claims. 
7.208.  Therefore, we conclude that the application by the USDOC, in the fourth, fifth and 
sixth administrative reviews, of  a presumption of the existence of a Viet Nam-wide entity and 
application of a single rate to that entity is in consistent Articles 6.10 and 9.2 of the Anti-Dumping 
Agreement. 
7.4.3.4  Whether the Viet Nam- wide entity rate applied in the administrative reviews at 
issue is inconsistent with Article 9.4 of the Anti-Dumping Agreement 
7.4.3.4.1  Main arguments of the parties 
7.4.3.4.1.1  Viet Nam 7.209.  Viet Nam argues that the USDOC's failure to assign the Viet Nam-entity a rate calculated 
pursuant to the methodology provided for in Article 9.4 of the Anti-Dumping Agreement amounts 
                                               
288 United States' first written submission, paras. 146 and 183. The United States' arguments with 
respect to the WTO-consistency of the NME-wide entity rate are set out in more details above in Section 7.4.2.3.1  . As noted above in footnote 204 of this Report, the United States argued more extensively with respect to the consistency with Articles 6.10 and 9.2 in its response to Viet Nam's "as applied" claims; however, because we first consider Viet Nam's "as such " claims, we considered it appropriate to provide a 
more complete summary of the United States' arguments in the section of the Report addressing those claims. 
289 See above paras. 7.148.  -7.149.   
290 See above para. 7.193.   
291 See above paras. 7.170.  -7.192.   WT/DS429/R 
 
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  to a violation of that provision. According to Viet  Nam, in each of the three administrative reviews 
at issue, the USDOC limited the number of investigated companies, and then assigned two different rates to the companies not selected for individual examination, i.e. one rate to the so-called Viet Nam-wide entity, and a different rate to companies that qualified for a separate rate. 
Viet Nam submits that the difference between the two rates is substantial since the separate rate 
is based on a simple (in the fourth and sixth administrative reviews) or weighted (in the fifth administrative review) average of the rates the USDOC calculated for the mandatory 
respondents, whereas the Viet Nam-wide entity ra te is based on facts available. According to 
Viet Nam, the text of Article 9.4 requires that, where an investigating authority has limited its examination, it must calculate an anti-dumping duty for all companies not individually investigated that is no greater than the weighted average margin of dumping of the selected companies, 
excluding rates that are zero, de minimis  or based on facts available. Viet Nam agrees with the 
conclusions of the panel in US – Shrimp (Viet Nam)  which found that "there is nothing in 
Article 9.4 suggesting that authorities are entitled to render application of an 'all others' rate 
conditional on the fulfilment of some additional requirement". Viet Nam submits that the Viet Nam-
wide entity should have received a rate calculated pursuant to Article 9.4.
292  
7.210.  According to Viet Nam, the record before the Panel clearly shows that, in each 
administrative review at issue, the USDOC conducted a limited examination within the meaning of 
Article 6.10 of the Anti-Dumping Agreement, and that the Viet Nam-wide entity was never selected for individual examination. Viet Nam contends that, since it was not individually examined, the V i e t  N a m - w i d e  e n t i t y  s h o u l d  h a v e  r e c e i v e d  a n  a n t i - d u m p i n g  d u t y  r a t e  c a l c u l a t e d  i n  a  m a n n e r  
consistent with Article 9.4. Viet Nam also submits that, contrary to what is asserted by the 
United States, requests for reviews were made in  the three administrative reviews at issue for 
companies presumed to be part of the Viet Nam-wide entity. According to Viet Nam, by arguing 
that Article 9.4 does not apply to the Viet Nam-wide entity because the entity was assigned a rate 
in previous segments of the proceedings, the United States attempts to read into Article 9.4 exceptions that do not exist. Viet Nam initially argued that a Member may not apply more than 
one rate to producers/exporters which were not individually examined. Viet Nam later 
acknowledged that it may be possible for an authority to assign multiple different rates to companies not individually examined, but mainta ined that all such rates must comply with 
Article 9.4.
293 Viet Nam concludes that the USDOC's failure to assign to the Viet Nam-wide entity a 
margin consistent with Article 9.4 constitutes a violation of Article 9.4 of the Anti-Dumping 
Agreement.294 
7.4.3.4.1.2  United States 
7.211.  The United States submits that the rate assi gned to the Viet Nam-wide entity is not an "all 
others" rate subject to the limit provided for in  Article 9.4. In the United States' view, the 
Viet Nam-wide entity was not assigned a country-wide rate, but was individually examined and 
received its own rate, i.e. a rate based on facts available, after being included in the examination 
in the anti-dumping duty proceeding and failing to cooperate. This rate was assigned to the 
companies that had not claimed or established that they were free from government control and were thus properly considered to be parts of the single government entity that the UDSOC 
identified as an "exporter" or "producer" consistent with Article 6.10 of the Agreement. According 
to the United States, Article 9.4 does not obligate Members to replace an existing WTO-consistent rate that was individually determined for an entity  that had failed to cooperate in the proceeding, 
with a different rate that is based on an average rate of producers/exporters that fully cooperated. 
The United States further submits that Article 9. 4 does not impose an obligation to calculate a 
"single" anti-dumping duty for pr oducers/exporters not individually examined, but, as explained by 
the Appellate Body in US – Hot Rolled Steel , this provision simply identifies a maximum limit, or 
ceiling, which authorities shall not exceed in establishing an "all others" rate. According to the United States, the Anti-Dumping Agreement does not require that a particular label be assigned to 
the rate in effect for the Viet Nam-wide entity. Th e rate applied to the Viet Nam-government entity 
is not inconsistent with the obligations in the Agreement because it was the rate in effect, and 
neither the Viet Nam-government entity nor any Vietnamese companies that were part of the 
                                               
292 Viet Nam's first written submission, paras. 158-174 (referring to Panel Report, US – Shrimp 
(Viet Nam) , para. 7.245). 
293 Viet Nam's first written submission, para. 159; second written submission, para. 51. 
294 Viet Nam's opening statement at the first meet ing of the Panel, paras. 19-20; second written 
submission, paras. 51-53; opening statement at th e second meeting of the Panel, paras. 15-17. WT/DS429/R 
 
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  entity requested that the rate be changed. Because neither the Viet Nam-wide entity nor any 
constituent parts of the entity requested a change to  the existing rate of the Viet Nam-wide entity, 
the USDOC's decision to apply that rate in the three administrative reviews at issue was not inconsistent with Article 9.4 of the Anti-Dumping Agreement.
295 
7.4.3.4.2  Main arguments of the third parties 
7.212.  China  concurs with the panel in US – Shrimp (Viet Nam)  that nothing in Article 9.4 entitles 
authorities to render application of an "all others" rate conditional upon the fulfilment of some 
additional requirements, such as a separate rate test.296 China opines that the Panel is not 
necessarily required to decide whether Article 9.4 requires a single "all others" rate, but will have to first determine whether the Viet Nam-wide entity was individually investigated. Should the answer be negative, the Panel could reach th e conclusion that the United States acted 
inconsistently with Article 9.4 by assigning a rate  based on facts available to the Viet Nam-wide 
entity. 
7.213.  The European Union  is of the view that Article 9.4 does not require that there be a single 
"all others" rate. According to the European Union,  Article 9.4 contains a ceiling on the amount of 
any rate applied, not on the number of different rates applied.
297 
7.214.  Thailand  submits that Article 9.4 does not require that there be a single "all others" rate 
provided that those rates are based on the differe nt levels of cooperation established throughout 
the proceedings.298 
7.4.3.4.3  Evaluation by the Panel 7.215.  Article 9.4 provides, in relevant part: 
When the authorities have limited their examination in accordance with the second 
sentence of paragraph 10 of Article 6, any anti-dumping duty applied to imports from 
exporters or producers not included in the examination shall not exceed: 
(i) the weighted average margin of dumping established with respect to the 
selected exporters or producers … 
provided that the authorities shall disregard for the purpose of this paragraph any 
zero and de minimis  margins and margins established under the circumstances 
referred to in paragraph 8 of Article 6. 
7.216.  We note the link between Articles 6.10 and 9.4. Under the general rule set forth in 
Article 6.10, the investigating authorities must normally calculate an individual margin for "each 
known exporter or producer" (hereafter "producer/exporter") of the product at issue pursuant to 
Article 2 of the Anti-Dumping Agreement.
299 If the number of producers/exporters is too large for 
individual examination of each producer/exporte r to be practicable, Article 6.10 allows the 
investigating authorities to "limit their examination" to a group of producers/exporters selected in 
accordance with the methods set out in Article 6.10 itself. In cases where the authority limits its examination under Article 6.10, an anti-dumpi ng duty may nonetheless be applied to the 
producers/exporters not individually examined. Articl e 9.4 specifies that the rate of any such duty 
(commonly referred to as an "all others" duty rate) may not exceed a ceiling calculated pursuant to Article 9.4, i.e. the weighted average margin of dumping established for the selected, individually-examined producers/exporters, excluding zero, de minimis  and facts available 
margins. It is noteworthy that, as the Appellate Body concluded in US – Hot Rolled Steel , 
                                               
295 United States' first written submission, paras. 189-200; second written submission, paras. 97-98; 
opening statement at the second meeting of the Panel, para. 34. 
296 China's third-party submission, paras. 21-24. 
297 European Union's response to Pane l question No. 3, paras. 15-18. 
298 Thailand's response to Panel question No. 3, p. 1. 
299 Appellate Body Report, EC – Fasteners (China) , para. 329. WT/DS429/R 
 
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  Article 9.4 does not provide for a method to calculate an "all others rate", but establishes a 
"ceiling" for any such rate that may be applied to unexamined producers/exporters.300 
7.217.  The text of Article 9.4 provides that, when an investigating authority conducts a "limited 
examination" pursuant to the second sentence of Article 6.10, "any" rate assigned to non-
investigated producers/exporters "shall not exceed" the ceiling calculated pursuant to Article 9.4. 
While we need not decide the issue, we observe that the word "any" may be understood to mean that there can be more than one rate assigned to non-investigated producers/exporters, and the 
parties do not disagree.
301 In addition, the use of the word "any" indicates that this limitation 
applies to all rates assigned to unexamined prod ucers/exporters. Thus, in our view, Article 9.4 
requires that the duty rate applied to all prod ucers/exporters for which a dumping margin is not 
individually determined shall, without exception, not exceed the ceiling calculated pursuant to 
Article 9.4.  
7.218.  The main question we must address in order to resolve Viet Nam's claims under Article 9.4 
of the Anti-Dumping Agreement is whether, in the three administrative reviews at issue, the 
United States was required by Article 9.4 to ensu re that the duty rate applied to the Viet Nam-
wide entity, and to any individual companies deemed  to be part of that entity, did not exceed the 
ceiling calculated pursuant to that provision.  
7.219.  In each of the requests underlying the administrative reviews at issue, domestic producers 
listed companies which had been found to be part  of the Viet Nam-wide entity in the previous 
administrative review.302 This shows, in our view, that, in the fourth, fifth and sixth administrative 
reviews, US domestic producers requested a review of the rates applied to producers/exporters 
under the Shrimp  order, including those applied to companies deemed to be part of the Viet Nam-
wide entity. In addition, the notices of initiations for the three administrative reviews at issue indicate that each review was initiated with respect to most, if not all, Vietnamese 
producers/exporters, including those deemed to be part of the Viet Nam-wide entity.
303 The 
preliminary and final determinations show that each review was conducted with respect to the companies for which the review had been initiated, i.e. including companies deemed to be part of 
                                               
300 Appellate Body Report, US – Hot Rolled Steel , para. 116. 
301 We note that Viet Nam's argumentation has evolved with respect to the number of rates that can 
potentially be assigned pursuant to Article 9.4. In it s first written submission, Viet Nam argued that Article 9.4 
"envisions the calculation of only a single  anti-dumping duty for all prod ucers/exporters not individually 
examined" (Viet Nam's first written submission, para. 159, emphasis original). The United States replied that Article 9.4 does not impose an obligation to calculate a "single" rate and that Viet Nam's interpretation would create a new obligation which is not present in that provision (United States' first written submission, 
para. 195). In its second written submission, Viet Nam conced es that "[i]t is possible for an authority to assign 
multiple duty rates to companies not individually investigated, but all rates must comply with the ceiling requirement of Article 9.4" (Viet Nam's second written su bmission, para. 51). We consider, therefore, that we 
do not need to rule on this issue. 
302 Requests for Administrative Revi ews Submitted by Domestic Intere sted Parties – Fourth, Fifth and 
Sixth Administrative Reviews, Exhibit VN-81. Each request attaches an annex listing the Vietnamese producers/exporters for which the domestic producers re quest a review. A number of companies listed in these 
annexes are identified as belonging to the Viet Nam-wide entity in the final determination of the respective previous administrative review. Compare the requests  for administrative review  submitted by domestic 
interested parties in the fo urth, fifth and sixth administrative review s (Exhibit VN-81) with, respectively, the 
final determination in the third, fourth and fifth admini strative reviews (Exhibits VN-72, footnote 19, p. 47197; 
VN-13, Appendix II, p. 47777; and VN-18, Issu es and Decision Memorandum, Appendix II). 
303 See notice of initiation for the fourth administrati ve review, Exhibit VN-06, footnote 6 ("[i]f one of 
the below named companies does not qualify for a separa te rate, all other exporter s of shrimp from Vietnam 
who have not qualified for a separate rate are deemed to  be covered by this review  as part of the single 
Vietnam-wide entity of which the named exporters are a pa rt"). A similar footnote is contained in the notice of 
initiation for the fifth administrative review (see Exhibit VN -10, footnote 4) and in the notice of initiation for the 
sixth administrative review, Exhibit VN -16, footnote 11. Note that there se ems to be an error in this latter 
footnote which refers to the "PRC" while it is attached to "Socialist Republic of Vietnam …" (p. 17831). Compare also the lists of Vietnamese companies cont ained in, respectively, (i) final determination in 
third administrative review (Exhibit VN-72, p. 47197, footnote 19) with notice of initiation for the fourth administrative review (Exhibit VN-06, pp. 13179-13182); (ii) final determination in the fourth administrative review (Exhibit VN-13, Appendix II) with notice of initiation for the fifth administrative review 
(Exhibit VN-10, pp. 18155-18158); and (iii) final determination in fifth administrative review (Exhibit VN-18, 
Issues and Decision Memorandum, Appendix II) with noti ce of initiation in the sixth administrative review 
(Exhibit VN-16, pp. 17381-17385). WT/DS429/R 
 
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  the Viet Nam-wide entity.304 We note that, in the preliminary determination in the 
fourth administrative review, the USDOC explicitly stated that "the Viet Nam-wide entity is now under review".
305 Finally, in each review, the USDOC assigned a cash deposit rate to the Viet Nam-
wide entity  and to the companies deemed to be part of that entity, i.e. the Viet Nam-wide entity 
rate of 25.76%.306 Hence, it is clear to us that the three administrative reviews at issue covered 
the Viet Nam-wide entity and the companies deemed to be part of that entity.307 
7.220.  The evidence before the Panel further sh ows that in each review, the USDOC limited the 
number of producers/exporters for which it determin ed an individual margin, and that neither the 
Viet Nam-wide entity nor the companies deemed to be part of that entity were selected as mandatory respondents or otherwise individually examined under Article 6.10. In particular, the USDOC did not request information from the Viet Nam-wide entity or any of the companies 
deemed to be part of that entity  in any of the reviews at issue.
308 Hence, the facts before us show 
that, in the fourth, fifth and sixth administrative reviews, the Viet Nam-wide entity and the companies deemed to constitute it were not individually examined and individual margins were not 
determined for them.  
7.221.  In light of the above, pursuant to Articl e 9.4, the Viet Nam-wide entity and the companies 
deemed to constitute that entity should have been assigned a rate not exceeding the ceiling 
calculated pursuant to this provision, namely a rate not exceeding the weighted-average margin of 
dumping established for the selected, individually-examined, exporters, excluding zero, de minimis  
and facts available margins.   
7.222.  We recall that, in each of the three administrative reviews at issue, 
unexamined Vietnamese exporters fell into two different categories. The first category, the 
"separate rate" companies, received a rate based on the simple or weighted average of the margins calculated for the mandatory respondents, excluding zero, de minimis  or margins 
calculated using facts available. The separate rate was 3.92% in the fourth review, 1.03% in the 
fifth review and 0.88% in the sixth review. The separate rate applied in the fifth administrative review was equivalent to the ceiling calculated following the methodology set forth in Article 9.4, 
                                               
304 The USDOC explains, in particul ar, that all companies for which the review was initiated were 
provided the opportunity to complete either the separa te rate application or certification. See Preliminary 
determinations in fourth administrative review (Exhibit VN-09, p. 12209), fifth administrative review (Exhibit VN-15, p. 12059) and sixth administrative review (Exhibit VN-19, p. 13552). 
305 Preliminary determination in the fourth administrative review, Exhibit VN-09, p. 12209. 
306 In each review, the final determination reports this  rate as the "Vietnam-wide Entity Rate". The final 
determination in the fourth administ rative review indicates that "for all Vietnamese exporters of subject 
merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the 
Vietnam-wide entity rate of 25.76 per cent" (Exhibit VN-1 3, p. 47777). A similar statement is found in the final 
determinations in the fifth and sixth administrative reviews (Exhibits VN-18, p. 56164 and VN-20, p. 55805, 
respectively). The final determinations in the fourth and fifth administrative reviews list the companies that 
constitute the Viet Nam-wide entity (Exhibits VN-13, Appendix II and VN-18, Issues and Decision Memorandum, Appendix II, respectively). The final determ ination in the sixth administrative review does not 
list the companies constituting the Viet Nam-wide entity, but indicates that 30 companies failed to demonstrate their eligibility for a separate rate and, therefore, we re assigned the Viet Nam-wi de entity rate of 25.76% 
(Exhibit VN-20, p. 55802). 
307 The United States seeks to draw a distinction between the Viet Nam-wide entity and its constituent 
parts. The United States suggests that  for the rate applicable to the entity to be under review, a request for 
review must refer to both the constituent parts and the entity itself. (United States' comments on Viet Nam's 
response to Panel Question No. 62, para. 4: "Vietnam's response to Question 62 fail s to demonstrate that the 
domestic interested party requested that Commerce change the amount of duty applicable to the Vietnam-
government entity.") We note that the United States' own arguments indicate that the Viet Nam-wide entity is under review when a constituent part of  that entity is under review, thus su ggesting that no dist inction is to be 
drawn between the entity and its constituent parts. S ee e.g. United States' response to Panel question 
No. 17(a) ("[b]ecause a part [i.e. Kim Anh Company Lt d] of the NME-government entity was selected for 
individual examination, the NME-government entity  as a whole was under individual examination"); 
United States' response to Panel question No. 17(d)(i) ("[a] mandatory respondent … may be either the Vietnam-government entity (i f, for example, a company that is part  of the Vietnam-government entity was 
selected for individual examination)  or a company that is separate from that entity"); and United States' 
response to Panel question No. 19(a), para. 69) ("[t]h e Vietnam-government entity was not selected as a 
mandatory respondent during any of the covered reviews.  Notably, neither the Vietnam-government entity nor 
any of its constituent parts requested a review of the rate applicable to the Vietnam-government entity during 
the fourth, fifth or sixth administ rative reviews"). The United St ates cannot have it both ways. 
308 Respondent selection memoranda in  the fourth, fifth and sixth admini strative reviews, Exhibits VN-
07, VN-11, and VN-17. WT/DS429/R 
 
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  given that it was calculated as the weighted average of the margins calculated for the mandatory 
respondents, excluding zero, de minimis  or margins calculated using facts available.309 The 
separate rates applied in the fourth and sixth admi nistrative reviews were calculated as the simple, 
and not weighted, average of the margin calculated for the mandatory respondents in each 
case.310 However, given that in each case the Viet Nam-wide entity rate exceeds by far the highest 
of the individual margins determined for mandatory respondents, it follows that it necessarily exceeds a weighted average of those rates, and thus  the ceiling calculated pursuant to Article 9.4. 
In each of the three administrative reviews at is sue, the Viet Nam-wide entity (and all of the 
companies deemed to be part of that entity in each review) was assigned a rate of 25.76%. Thus, in our view it is undisputable that, in the three reviews at issue, the rate applied to the Viet Nam-
wide entity and its constituent companies exceeds the ceiling applicable under Article 9.4. 
7.223.  We find, therefore, that the duty rate  applied to the Viet Nam-wide entity and the 
companies deemed to be part of that entity in th e fourth, fifth and sixth ad ministrative reviews is 
inconsistent with Article 9.4 of the Anti-Dumping Agreement. 
7.4.3.5  Whether the Viet Nam- wide entity rate applied in the administrative reviews at 
issue is inconsistent with Article 6.8 and Annex II of the Anti-Dumping Agreement 
7.4.3.5.1  Main arguments of the parties 
7.4.3.5.1.1  Viet Nam  
7.224.  Viet Nam argues that, pursuant to Ar ticle 6.8 of the Anti-Dumping Agreement, an 
investigating authority may make a determination on the basis of facts available only with respect to those interested parties from which necessa ry information was required. Viet Nam refers inter 
alia to the Appellate Body's statement that non-investigated exporters cannot, by definition, be 
"interested parties" pursuant to Article 6.8.
311 Viet Nam further submits that the necessary or 
essential information referred to in Article 6.8 is the information necessary to calculate an anti-
dumping margin pursuant to Article 2 and can only be requested from parties individually 
investigated or reviewed by the investigating authority.312 A c c o r d i n g  t o  V i e t  N a m ,  i n  t h e  
three administrative reviews at issue, the USDOC applied a rate based on facts available with an 
adverse inference to companies which were not individually investigated and from which no 
necessary information was requested, thus acting inconsistently with Article 6.8 and Annex II of the Anti-Dumping Agreement.
313 
7.225.  Viet Nam notes that the United States does not appear to dispute Viet Nam's legal 
interpretation of the obligations contained in Article 6.8, but reiterates the formalistic argument, 
rejected by the panel in US – Shrimp (Viet Nam) , that the rate applied to the Viet Nam-wide entity 
in subsequent reviews was not determined on the basis of facts available. Viet Nam asks the Panel 
to draw the same conclusion as the US – Shrimp (Viet Nam)  panel and reject this argument 
because the USDOC had no factual basis to conclude that the Viet Nam-wide entity did not cooperate, since, as acknowledged by the United States, no information was requested from that 
entity. Second, the rate applied in each administ rative review was the rate determined in the 
original investigation with adverse inference. Viet Nam also notes that the United States, while arguing that the Viet Nam-wide rate is not a facts available rate pursuant to Article 6.8, does not indicate pursuant to which provision that rate was calculated.
314  
                                               
309 Final determination in the fifth administrative review, Exhibit VN-18, p. 56160. 
310 Preliminary determination in the fourth administrative review, Exhibit VN-09, p. 12211; preliminary 
determination in the sixth administrative review, Exhibit VN-19, p. 13552. 
311 Viet Nam's first written submission, paras. 175-178 (citing Appellate Body Report, US – 
Zeroing (EC) , para. 459). 
312 Viet Nam's first written submission, paras. 178-182 (referring to Panel Reports, Argentina – Ceramic 
Tiles, footnote 96 and Egypt – Steel Rebar , paras. 7.146 and 7.151). 
313 Viet Nam's first written submission, paras. 192-196. 
314 Viet Nam's first written submission, para. 189; open ing statement at the first meeting of the Panel, 
paras. 21-23; second written submission, paras. 58-61; op ening statement at the second meeting of the Panel, 
paras. 12-13. WT/DS429/R 
 
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  7.4.3.5.1.2  United States 
7.226.  The United States submits that Viet Nam's analysis is based on faulty facts because in the 
fourth, fifth and sixth administrative reviews the Viet Nam-wide entity was assigned the only rate it has ever received under this order. In the original investigation, the USDOC determined a 
Viet Nam-wide entity rate of 25.76% based on ad verse facts available and continued to apply that 
rate to the entity in subsequent reviews. The United States argues that, as no party requested a review of the margin of dumping assigned to th e Viet Nam-wide entity, the exporters subject to 
the Viet Nam-wide entity rate in effect expre ssed the view that the duties were appropriate. 
Hence, according to the United States, the USDOC's final duty assessment rate for exports by companies that are part of the Viet Nam-wide entity cannot be a facts available rate because it is not based on the interested party's refusal to give access to, or otherwise provide, necessary 
information during the covered reviews. It was based, instead, on the fact that the Viet Nam-wide 
entity and those companies that would be subject to  the Viet Nam-wide entity rate did not seek a 
different rate, but accepted the existing rate of the Viet Nam-wide entity. Accordingly, the USDOC 
applied the existing rate of the Viet Nam-wide en tity during the administrative reviews at issue, 
and was under no obligation to change the existing rate for final assessment purposes. The United States further submits that the panel in US – Shrimp (Viet Nam) misinterpreted Article 6.8 
because this Article cannot apply when the USDOC did not make a finding based on facts available. 
According to the United States, the panel should have found that there was, in fact, no application of facts available. In the three reviews at  issue in the present dispute, as in the 
third administrative review at issue in US – Shrimp (Viet Nam) , the USDOC made no findings on 
the basis of facts available, but it only applied to the Viet Nam-wide entity the only rate the entity 
had ever received. The United States submits that , when examination has been properly limited to 
fewer than all exporters, it is not inconsistent with the Anti-Dumping Agreement to apply a rate to 
unexamined exporters that is the only rate ever determined for those exporters.
315 
7.227.  The United States also argues that Article 6.8 refers to "any interested party" and 
Article 6.11 defines "interested parties" as including, inter alia , "the government of exporting the 
exporting Member". Articles 6.8 and 6.11 thus expressly contemplate that an anti-dumping 
determination may be based on facts available wh enever the government of an exporting Member 
does not cooperate during an investigation. The United States further submits that information held by the Government of Viet Nam was necessary for the proceedings at issue and that nothing 
in the Anti-Dumping Agreement prevents a Me mber from sending questionnaires to the 
government of an exporting Member. It is ther efore fully consistent with the Anti-Dumping 
Agreement to use facts available if an NME government does not cooperate.
316 
7.4.3.5.2  Main arguments of the third parties 
7.228.  China  argues that, as in US – Shrimp (Viet Nam) , this Panel should reject the formalistic 
argument made by the United States that the Viet Nam-wide rate in the reviews at issue is not 
based on facts available, but is just the continuation of the rate assigned to the Viet Nam-wide 
entity in the original investigation.317 
7.229.  Referring to the Appellate Body report in Mexico – Anti-Dumping Measures on Rice , the 
European Union  argues that the Appellate Body did not find that facts available could never be 
used in the calculation of an "all others" rate. According to the European Union, this remains 
possible, provided that the investigating authorit y makes some additional effort to notify the 
producers/exporters to whom it applies this rate of the information required and the consequences 
of not providing it.318 
7.4.3.5.3  Evaluation by the Panel 7.230.  The parties disagree as to whether, in th e fourth, fifth and sixth administrative reviews, 
the USDOC made a determination on the basis of facts available within the meaning of Article 6.8 
of the Anti-Dumping Agreement. We therefor e address this question of fact first.  
                                               
315 United States' first written submission, paras. 184-188; second written submission, paras. 95-96; 
opening statement at the second meeting of the Panel, para. 33. 
316 United States' second written submission, paras. 91-94. 
317 China's third-party submission, paras. 25-33. 
318 European Union's third-part y submission, paras. 22-24. WT/DS429/R 
 
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  7.231.  We note, as recognized by both parties, that the Viet Nam-wide rate calculated during the 
original investigation was determined on the basis of facts available.319 In the original 
investigation, the USDOC indicated that "the use of adverse facts available for the Vietnam-wide rate is appropriate" and that "as adverse facts available, we have applied a rate of 25.76%, a rate 
calculated in the initiation stage of the investigation from information provided in the 
petition …".
320 Moreover, the rate calculated for the Viet Nam-wide entity during the 
second administrative review also appears to have been determined based on facts available.321 In 
contrast, the record from the subsequent reviews contains no indication that the USDOC 
considered whether to use facts available or made a finding to the effect that it would use facts available to determine the rate for the Viet Nam-wide entity. In the third administrative review, the USDOC did not find that it was appropriate to apply facts available, but decided that it would 
"continue to assign the entity's current rate of 25.76%, the only rate ever determined for the 
Vietnam-wide entity in this proceeding".
322 
7.232.  Similarly, the records of the fourth, fifth and sixth administrative reviews contain no 
reference to the USDOC having made a finding that the Viet Nam-wide entity or any of its 
constituent parts failed to provide information or to USDOC determining a rate based on facts available. In the fourth and fifth reviews, the final determinations indicate in essence that, since 
"no additional information" was placed on the record with respect to certain entities which "did not 
demonstrate that they operate free of government control", the USDOC is "applying a single antidumping rate, i.e., the Vietnam-wide entity rate to all … exporters of subject merchandise from Vietnam".
323 In the final determination in the sixth administrative review, the USDOC also notes, 
with respect to the Viet Nam-wide entity, that 30 companies "failed to demonstrate their eligibility 
for a separate rate" and explains: 
In NME proceedings, "'rates' may consist of a single dumping margin applicable to all 
exporters and producers". Therefore, we a ssigned the entity a rate of 25.76%, the 
only rate ever determined for the Vietnam-wide entity in this proceeding. We have not received any information since issuance of the Preliminary Results  that provides a 
basis for reconsidering this determination, and will therefore continue to apply the 
entity rate of 25.76% to these 30 companies.
324 
7.233.  Turning to the provision at issue in th is claim, we note that Article 6.8 provides: 
In cases in which any interested party refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the 
investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. Th e provisions of Annex II shall be observed 
in the application of this paragraph. 
It follows from the language of Article 6.8 that it imposes disciplines with respect to when, and 
under what conditions, "preliminary and final determinations, affirmative or negative may be made 
on the basis of facts available". The evidence on  the record shows that, in the fourth, fifth and 
sixth administrative review s, the USDOC did not resort to facts available, i.e. it did not make any 
                                               
319 Viet Nam's first written submission, para. 109 and United States' first written submission, para. 185. 
320 Final determination and Issues and Decision Memorandum in the original investigation, Exhibit VN-
04, p. 71008. 
321 In the notice from the second ad ministrative review, the USDOC in dicates that the Viet Nam-wide 
entity "did not cooperate to the best of its ability", an d, therefore, the USDOC "continue[d] to find that it is 
appropriate to apply facts available with an adverse infe rence with respect to the Vietnam-Wide entity". (Final 
determination in the second administrative review, Exhibit VN-72, p. 52275.) In response to a question by the Panel, the United States clarifies that  the rate in effect during the admini strative reviews at issue "was based 
on the rate applied by Commerce to th e Vietnam-government entity in the se cond review", i.e. the last review 
in which the USDOC made a finding of non-cooperation. (See United States' response to Panel question No. 56(a), para. 10.) The evidence on the record for th e first administrative review does not allow us to 
determine whether the rate was calculated on the basis of facts available during that review. We make no 
judgment as to whether the rate assigned to the Viet Nam-wide entity in the original investigation and second administrative review was calculated in a manner consis tent with Article 6.8 and Annex II of the Anti-Dumping 
Agreement. 
322 Final determination in the third administrative review, Exhibit VN-72, p. 47195. 
323 Final determination in the fourth administrative review, Exhibit VN-13, p. 47773; final determination 
in the fifth administrative review, Exhibit VN-18, p. 56160. 
324 Final determination in the sixth administrative review, Exhibit VN-20, p. 55802. (footnote omitted) WT/DS429/R 
 
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  "determination[], affirmative or negative … on the basis of the facts available". While the USDOC 
continued to apply to the Viet Nam-wide entity "the entity's current rate and only rate ever determined for the entity in this proceeding"
325, which rate was initially determined on the basis of 
facts available, we cannot conclude that the USDOC's actions in the three administrative reviews 
at issue constitute "preliminary and final determinations, affirmative or negative … made on the 
basis of facts available" within the meaning of Ar ticle 6.8 of the Anti-Dumping Agreement. In our 
view, continuing to apply a rate determined in an earlier proceeding is not the same as making a 
determination in the later proceeding, and, therefor e, does not give rise to a possible violation of 
Article 6.8.  7.234.  We note that the panel in US – Shrimp (Viet Nam)  was faced with a similar issue and 
reached a different conclusion. In that dispute, the panel acknowledged that, in the 
third administrative review under the Shrimp  order, the USDOC "did not explicitly apply a facts 
available rate".
326 Observing that the rate ultimately assigned to the Viet Nam-wide entity in the 
third review was exactly the same as the rates that  had previously been assigned in the original 
investigations and preceding administrative review, the panel considered, however, that "to fail to treat this rate as a facts available rate would elevate form over substance, and ignore the true 
factual circumstances surrounding the assignment of the rate".
327  
7.235.  We respectfully disagree with the reasoning of the panel in US – Shrimp (Viet Nam) . As 
explained above, in our view, the application of Article 6.8 is triggered by an investigating authority resorting to "facts available" in the making of a determination. Given our view that, in 
the administrative reviews at issue, the USDOC did not make a determination within the meaning 
of Article 6.8, we are unable to find that the USDOC made a determination on the basis of facts available in the three administrative reviews at issue. 
7.236.  For the reasons set out above, we find that Viet Nam has failed to establish that the rate 
applied to the Viet Nam-wide entity in the fourth, fifth and sixth administrative review is inconsistent with Article 6.8 and Annex II of the Anti-Dumping Agreement. 
7.5  Claims regarding Section 129(c)(1) of the US Uruguay Round Agreements Act 
7.5.1  Introduction 7.237.  Viet Nam claims that Section 129(c)(1) of the URAA is "as such" inconsistent with 
Articles 1, 9.2, 9.3, 11.1 and 18.1 of the Anti-Dumping Agreement.
328 Viet Nam argues that, by 
limiting the application of new, WTO-consistent, determinations made to implement adverse DSB 
recommendations and rulings to "entries" (imports ) of subject merchandise made on or after the 
"implementation date" of the ne w determination, Section 129 precludes US authorities from 
implementing DSB recommendations and rulings with respect to any entries made prior to that 
date and that remain "unliquidated", which Viet Nam refers to as "prior unliquidated entries".329 
Specifically, Viet Nam argues that Section 129(c)(1) is inconsistent with:  
a. Article 1 of the Anti-Dumping Agreement, to the extent that Section 129(c)(1) results in 
the application of an anti-dumping measur e despite the duty having been imposed 
pursuant to an investigation conducted in violation of the GATT 1994 and the Anti-Dumping Agreement. 
                                               
325 See, for instance, preliminary determination in the fourth administrative review, Exhibit VN-09, 
p. 12211. Similar language is found in the determinations for the fifth and sixth reviews. 
326 Panel Report, US – Shrimp (Viet Nam) , para. 7.277. 
327 Panel Report, US – Shrimp (Viet Nam) , para. 7.279. 
328 Viet Nam's first written submission, paras. 15, 42, 211-266, and 356. Although Viet Nam cites the 
GATT 1994 in respect of this claim in paras. 42 and 212 of  its first written submission, Viet Nam has presented 
no arguments with respect to any claim of violation, on an independent basis, under the GATT 1994. Moreover, 
although Section 129 applies to the United States' impl ementation of DSB recommendations and rulings under 
the Anti-Dumping, SCM and Safeguard Agreements, Viet  Nam only makes claims under the Anti-Dumping 
Agreement. 
329 Viet Nam defines "prior unliquidated entries" as imports made prior to the date on which the 
Section 129 determination takes effect (date of implementation) and for which there is no definitive 
assessment of anti-dumping duty liability (the final duty rate and duty have not yet been established) as of that date. WT/DS429/R 
 
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  b. Article 9.2 of the Anti-Dumping Agreement to  the extent that Section 129(c)(1) results 
in the continued collection of anti-dumping duties at a level in excess of the "appropriate amount" (i.e., an amount determined consistently with the terms of the Anti-Dumping Agreement) on prior unliquidated entries;
330 
c. Article 9.3 of the Anti-Dumping Agreement to  the extent that Section 129(c)(1) results 
in the continued collection of anti-dumping duties at a level exceeding the margin of dumping established consistently with Articl e 2 of the Anti-Dumping Agreement on prior 
unliquidated entries;
331 
d. Article 11.1 of the Anti-Dumping Agreement to  the extent that Section 129(c)(1) results 
in the continued collection of anti-dumping duties with respect to prior unliquidated entries pursuant to anti-dumping duty orders that were revoked;
332 
e. Article 18.1 of the Anti-Dumping Agreement, to the extent that Section 129(c)(1) results 
in the continued collection of duties amounts pursuant to an action that is performed without the authority provided in the GATT 1994.
333 
7.5.2  Factual background 
7.238.  Section 129 of the URAA (codified at 19 U.S.C. § 3538) sets forth a mechanism with 
respect to the implementation of DSB recommendat ions and rulings concerning anti-dumping and 
countervailing duty actions. Section 129(c)(1), the specific sub-paragraph challenged by Viet Nam, 
addresses the question of when revised determ inations made pursuant to that mechanism 
("Section 129 determinations") take effect. It provides that Section 129 determinations apply to entries made on or after  the date on which the USTR directs the USDOC to revoke the order in 
totality or in part (in the case of a USITC Section 129 determination) or the date on which the 
USTR directs the USDOC to implement a USDOC Section 129 determination.
334 For ease of 
reference, we hereafter refer to these dates as the "implementation date".  
7.239.  Section 129 (codified at 19 U.S.C. § 3538) provides, in relevant part: 
§ 3538 Administrative action following WTO panel reports (a)  Action by the United States  International Trade Commission  
(1) Advisory report 
If a dispute settlement panel finds in an interim report under Article 15 of 
the Dispute Settlement Understanding, or the Appellate Body finds in a report under Article 17 of that Understanding, that an action by the 
International Trade Commission in connection with a particular 
proceeding is not in conformity with the obligations of the United States under the Antidumping Agreement, the Safeguards Agreement, or the 
Agreement on Subsidies and Countervailing Measures, the Trade 
Representative may request the Commission to issue an advisory report on whether title VII of the Tariff Act of 1930 or title II of the Trade Act of 
1974, as the case may be, permits the Commission to take steps in 
connection with the particular proceeding that would render its action not inconsistent with the findings of the panel or the Appellate Body 
                                               
330 Viet Nam's first written submission, paras. 236-238. 
331 Viet Nam's first written submission, paras. 239-240. 
332 Viet Nam's first written submission, para. 241. 
333 Viet Nam's first written submission, paras. 212, 242-243; second written submission para. 85; 
response to Panel question No. 70. 
334 The USTR has authority to order implementation of all USDOC Section 129 determinations and to 
direct the USDOC to implement a revi sed USITC Section 129 determination by  revoking the order in whole or 
in part. However, the USTR does not have authority to order implementation of a USITC Section 129 
determination that does not result in at least partial re vocation of the order. On the latter, see the discussion 
of the decision of the US Court of International Trade in Tembec v. United States , below in footnotes 373 
and 398. WT/DS429/R 
 
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  concerning those obligations.  The Trade Representative shall notify the 
congressional committees of such request. 
… (3) Consultations on request for Commission determination 
If a majority of the Commissioners issues an affirmative report under 
paragraph (1), the Trade Representative shall consult with the congressional committees concerning the matter. 
(4) Commission determination 
Notwithstanding any provision of the Tariff Act of 1930 … or title II of the 
Trade Act of 1974… if a majority of the Commissioners issues an affirmative report under paragraph (1), the Commission, upon the written 
request of the Trade Representative, shall issue a determination in 
connection with the particular proceeding that would render the Commission's action described in paragraph (1) not inconsistent with the 
findings of the panel or Appellate Body. The Commission shall issue its 
determination not later than 120 days after the request from the Trade Representative is made.  
(5) Consultations on implementation of Commission 
determination 
The Trade Representative shall consult with the congressional committees 
before the Commission's determination under paragraph (4) is 
implemented. 
(6) Revocation of order If, by virtue of the Commission's determination under paragraph (4), an 
antidumping or countervailing duty order with respect to some or all of 
the imports that are subject to the action of the Commission described in paragraph (1) is no longer supported by an affirmative Commission 
determination under title VII of the Tariff Act of 1930 … or this 
subsection, the Trade Representative may, after consulting with the congressional committees under paragraph (5), direct the administering authority to revoke the antidumping or countervailing duty order in whole 
or in part.  
(b) Action by administering authority
335  
(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 
administering authority shall, within 180 days after receipt of a written 
                                               
335 The USDOC is the "administering authority". WT/DS429/R 
 
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  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 authority to implement, in whole or in part, the determination made under paragraph (2). 
(c) Effects of determinations ; notice of implementation 
(1) Effects of determinations  Determinations concerning title VII of the Tariff Act of 1930 [19 U.S.C. 
1671 et seq.]… that are implemented under this section shall apply with 
respect to unliquidated entries of the subject merchandise (as defined in section 771 of that Act [19 U.S.C. 1677]) that are entered, or withdrawn from warehouse, for consumption on or after— 
(A) in the case of a determination by the Commission under 
subsection (a)(4), the date on which the Trade Representative directs the administering authority under subsection (a)(6) to 
revoke an order pursuant to that determination, and 
(B) in the case of a determination by the administering authority 
under subsection (b)(2), the date on which the Trade 
Representative directs the administering authority under subsection 
(b)(4) to implement that determination. 
 (2) Notice of Implementation  
(A) The administering authority shall publish in the Federal Register 
notice of the implementation of any determination made under this 
section with respect to title VII of the Tariff Act of 1930…. 
(B) The Trade Representative shall publish in the Federal Register notice 
of the implementation of any determination made under this section with 
respect to title II of the Trade Act of 1974…. 
(d) Opportunity for comment by interested parties 
Prior to issuing a determination under this section, the administering 
authority or the Commission, as the case may be, shall provide interested parties with an opportunity to submit written comments and, in appropriate cases, may hold a hearing, with respect to the 
determination.
336 
7.240.  In practice, the "implementation" of a Section 129 determination may result in: (i) the 
revocation of the order; or (ii) a change in the dumping calculation resulting in the USDOC 
                                               
336 Section 129 of the URAA, 19 U.S.C. § 3538, Exhibit VN-31. WT/DS429/R 
 
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  modifying the cash deposit rates that apply to en tries of the subject product from the date of 
implementation going forward. Viet Nam refers to the cases in the first situation as "revocation" cases and to cases in the second as "modification" cases. 
7.241.  Although not challenged by Viet Nam, Section 123 of the URAA is also relevant to our 
consideration of Viet Nam's claims.
337 Section 123(g)(1) establishes a mechanism for 
US authorities to make changes in USDOC (or other agency) regulations or practice to render them 
consistent with DSB recommendations and rulings.338 Under that provision, the regulation or 
practice at issue may be amended, rescinded, or otherwise modified upon the fulfilment of a series 
of procedural steps, including consultations between the relevant agency, USTR, and the appropriate congressional committees. The changes go into effect no less than 60 days after the date on which the agency and USTR consult with the relevant congressional committees, unless 
the US President determines that an earlier date is in the national interest. 
7.242.  Also of relevance to Viet Nam's claims are the findings of the panel in an earlier dispute, 
US – Section 129(c)(1) URAA .
339 In that dispute, the panel considered and rejected claims by 
Canada that are similar to the claims of Viet Na m in the present dispute. Canada had claimed that 
Section 129(c)(1) was "as such" inconsistent with: (i) Articles VI:2, VI:3, and VI:6(a) of the GATT 1994; (ii) Articles 1, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement; (iii) Articles 10, 
19.4, 21.1 and 32.1 of the SCM Agreement; and (iv) as a consequence of these violations, 
Article 18.4 of the Anti-Dumping Agreement, Arti cle 32.5 of the SCM Agreement, and Article XVI:4 
of the WTO Agreement.
340 In its analysis, the panel considered the text of Section 129(c)(1), the 
Statement of Administrative Action that accompan ied the URAA ("SAA"), as well as the application 
of Section 129(c)(1) by the United States Government as of that date. The panel found that 
Section 129(c)(1), on its face, does not address prior unliquidated entries, and only speaks to entries that take place on or after the implementati on date. On this basis, it was clear to the panel 
that Section 129(c)(1) does not, by its express terms, require or preclude any particular action 
with respect to "prior unliquidated entries".
341 The panel further rejected Canada's arguments that 
Section 129(c)(1) had the effect  of requiring and/or precluding certain actions with respect to prior 
unliquidated entries. The panel considered, inter alia , that it could not be inferred from the mere 
fact that a Section 129 determination establishing a new dumping margin or a new countervailable subsidy rate was not applicable to prior unliquidated entries that the USDOC would be required to retain excessive cash deposits collected on such entries, would be precluded from refunding such 
cash deposits, would be required to make administrative review determinations and assess 
definitive duties with respect to prior unliquidated entries on the basis of the previous, WTO inconsistent methodology, or would be prec luded from making administrative review 
determinations and assessing definitive duties with respect to "prior unliquidated entries" on the 
basis of the new, WTO-consistent methodology.
342 The panel also reasoned that it could not be 
inferred from the mere fact that a revocation is not applicable to prior unliquidated entries that the 
                                               
337 Section 123 of the URAA, 19 U.S.C. § 3533, Exhibit US-10. 
338 The USITC is an independent agency of the United States Government; Section 123(g)(4) provides 
that Section 123(g) does not apply to any regulation or practice of the USITC. 
339 Panel Report, US – Section 129(c)(1) URAA . 
340 Canada alleged that Section 129(c)(1) "required", or had the effect of "requiring", the USDOC to: 
(a) conduct administrative reviews with respect to "prior unliquidated entries" after the implementation 
date pursuant to an anti-dumping or countervailing duty order found by the DSB to be WTO-inconsistent;  
(b) make administrative review determinations rega rding dumping or subsidization, with respect to 
"prior unliquidated entries" after the implementation date pursuant to an anti-dumping or countervailing duty order found by the DSB to be WTO-inconsistent;   
(c) assess definitive duties with respect to "prior unliquidated entries" after the implementation date 
pursuant to an antidumping or countervailing duty order found by the DSB to be WTO-inconsistent; and 
(d) retain cash deposits in  respect of "prior unliquidated entries" after the implementation date at a 
level found by the DSB to be WTO-inconsistent. Canada also alleged that section 129(c)(1) "precluded", or had the effect of "precluding", the USDOC from: 
(a) making administrative review determinations regarding dumping or  subsidization with respect to 
"prior unliquidated entries" after the implementation date in a manner that was consistent with an adverse DSB ruling; 
(b) assessing definitive antidumping or countervailing duties with respect to "pri or unliquidated entries" 
after the implementation date in a manner that was consistent with an adverse DSB ruling; and 
(c) refunding, after the implementation date, cash deposits collected on "prior unliquidated entries" 
pursuant to an antidumping or countervailing duty  order found by the DSB to be WTO inconsistent. 
(Panel Report, US – Section 129(c)(1) URAA , paras. 6.31-6.32). 
341 Panel Report, US – Section 129(c)(1) URAA , paras. 6.54-6.55 and footnote 101. 
342 Panel Report, US – Section 129(c)(1) URAA , paras. 6.68-6.69. WT/DS429/R 
 
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  USDOC would be required to retain cash deposits collected on such entries on the basis of the 
WTO-inconsistent order, would be precluded from refunding such cash deposits, would be required to conduct administrative reviews for such entries, would be required to make determinations with respect to such entries on the basis of the WTO- inconsistent order, or would be precluded from 
making such determinations and assessing definitive duties with respect to such entries in a 
manner consistent with WTO requirements. On this basis, the panel concluded that Canada had failed to establish that Section 129(c)(1) "mandated", as a matter of WTO law, the United States 
to take any of those actions or mandated it not to take any of those actions.
343 In light of these 
findings, the panel did not did not reach the issue of whether the actions alleged by Canada were inconsistent with the United States' obligations under the covered agreements.
344 
7.5.3  Main arguments of the parties 
7.5.3.1  Viet Nam 
7.243.  Viet Nam argues that Section 129 is the exclusive authority345, or the first point of 
inquiry346, under US law, for implementation of adverse DSB recommendations and rulings where 
implementation can be achieved by a new admi nistrative determination without the need for 
statutory or regulatory amendment. Viet Nam notes that the Appellate Body has found that the date of liquidation, and not the date of entry, is the relevant parameter for assessing 
implementation of DSB recommendations and rulings.
347 Viet Nam argues that by providing that 
the determination takes effect only with respect to unliquidated entries made on or after the implementation date, Section 129(c)(1) prohibits the refund of duties on prior unliquidated entries 
and thus prevents the United States from implementing DSB recommendations and rulings with 
respect to those prior unliquidated entries.
348 
7.244.  Viet Nam finds support for its interpretation of Section 129(c) as precluding 
implementation with respect to prior unliquidated entries in the SAA that accompanied the URAA349 
and in decisions of US courts – in particular the decision of the US Court of International Trade in 
Corus Staal BV v. United States .350 
7.245.  Viet Nam argues that the US – Section 129(c)(1) URAA  panel erred in its interpretation of 
Section 129 and that this Panel has the benefit of several years of application of Section 129 which 
the previous panel did not have.351 Viet Nam argues that the USDOC's application of Section 129 
over these years shows a systematic and constant refusal by the USDOC to issue liquidation instructions that would extend the result of Section 129 determinations to prior unliquidated 
entries every time that the opportunity to do so arose, for both "modification" and "revocation" 
cases.
352 
7.246.  Viet Nam submits that Sections 123 and 129 are distinct, and that Section 123 does not 
address and is not a remedy to the narrow legal effect of Section 129 determinations. Viet Nam 
argues that while it is possible for Section 123 and Section 129 to operate in sequence where a regulation or practice is first amended under Section 123 before it is applied to correct a specific 
action under Section 129, that is a "fact specific scenario that is neither automatic nor in any way 
                                               
343 Panel Report, US – Section 129(c)(1) URAA , paras. 6.124-6.126. 
344 Panel Report, US – Section 129(c)(1) URAA , paras. 6.127-6.128. 
345 Viet Nam's first written submission, paras. 211, 224-225; opening statement at the first meeting of 
the Panel, para. 28. 
346 Viet Nam's response to Panel question No. 26. 
347 Viet Nam's first written submission, para . 232 (citing to Appe llate Body Report, US – Zeroing (Japan) 
(Article 21.5 – Japan) , para. 261. 
348 Viet Nam's first written submission, paras. 211-252. In para. 213 of its first written submission, 
Viet Nam argues that Section 129(c)(1) "serves as an ab solute legal bar to any refund of duties as prior 
unliquidated entries". In para. 223 of its first written su bmission, Viet Nam characterizes Section 129(c)(1) as 
an "express prohibition against duty re funds for prior unliquidated entries" an d a "rule with no discretion at all" 
established by Congress. 
349 Viet Nam's first written submission, paras. 221-222 and 231 (referring to SAA, Exhibit VN-34). 
350 Viet Nam's first written submission, paras. 223-245; second written submission, paras. 62-67 
(referring to Corus Staal BV v. United States , Court No. 07-00270, Slip Op. 07-140 (Ct. Int'l Trade, 
19 Sept. 2007), Exhibit VN-36). 
351 Viet Nam's first written submission, para. 244. 
352 Viet Nam's first written submission, paras. 264-266; response to Panel question No. 50; 
second written submission, paras. 68-69. WT/DS429/R 
 
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  diminishes Viet Nam's claim regarding the legal effect given Section 129 determinations". In 
addition, Viet Nam takes issue with the fact that, even in cases where Section 123 may bring 
implementation with respect to prior unliquidated entries, the USDOC retains excessive cash deposits well after the expiration of the "reaso nable period of time" to comply with the DSB 
recommendations and rulings.
353 Likewise, Viet Nam considers that the fact that the United States 
might implement adverse DSB rulings and recommendations through future administrative reviews does not render Section 129 WTO-consistent.
354  
7.5.3.2  United States 
7.247.  The United States submits that Viet Nam's claims are without merit. The United States 
argues that Viet Nam fails to establish that Section 129(c)(1) mandates actions that are inconsistent with WTO obligations.
355  
7.248.  Moreover, the United States contends that Viet Nam improperly assumes that 
implementation would necessarily be effectuated through Section 129, to the exclusion of other means of implementation, i.e. Section 123 or the ad option by Congress of a law having an impact 
on prior unliquidated entries. The United States ar gues that the US authorities have in the past 
assessed and liquidated prior unliquidated entries in a manner that is consistent with DSB recommendations and rulings by using these other mechanisms.
356 In addition, the United States 
argues that implementation could be effectuated through determinations in subsequent segments 
of the proceeding.357 The United States explains that, for instance, the USDOC could change – and 
has in past instances changed – the methodology it applies in an administrative review conducted after the Section 129 implementation date (whether  following action pursuant to Section 123 or 
not).
358 The United States argues that applying the mandatory/discretionary analytical approach to 
the facts at issue in this dispute, it is clear that nothing in Section 129(c)(1) mandates a breach of the US obligations under the covered agreements.
359 The United States contends that the same 
arguments that Viet Nam makes in this proceeding – that Section 129 is the exclusive authority 
under US law for the United States to comply with adverse DSB rulings, and that Section 129 is a legal bar against refunds for any WTO-inconsistent duties applicable to entries made before the 
implementation date – were rejected by the US – Section 129(c)(1) URAA  panel.
360 
7.249.  Finally, the United States submits that th e provisions of the Anti -Dumping Agreement cited 
by Viet Nam do not impose any obligations with respect to the implementation of DSB recommendations and rulings. The United States  considers that, in the anti-dumping context, 
the DSU is the only WTO agreement that addresses the obligation to implement 
DSB recommendations and rulings.
361 
7.5.4  Main arguments of the third parties 
7.250.  China  agrees with Viet Nam that Section 129 is the only vehicle by which the 
United States implements adverse DSB recommendations and rulings regarding individual administrative reviews and that Section 129 is WTO-inconsistent for the reasons advanced by 
Viet Nam. China submits that the possibility that the US Congress may adopt new legislation 
cannot preclude other Members from establishing the WTO-inconsistency of existing US laws, practices, or particular measures. China further argues that, while the USDOC may change its regulations or practices pursuant to Section 123, this provision does not apply with respect to 
particular anti-dumping measures, and the United States cannot rely on broad policy changes 
                                               
353 Viet Nam's response to Panel question Nos. 26, 27, and 67. 
354 Viet Nam's response to Pane l question No. 26 (referring, inter alia , to Appellate Body Report, US – 
1916 Act , paras. 91 and 155). 
355 United States' first written submission, para. 104. 
356 United States' first written submission, paras. 96-97 and 109-112. 
357 United States' first written submission, para. 106. 
358 United States' first written submission, para. 120; second written submission, para. 39. 
359 United States' response to Panel question No. 30; second written submission, paras 47-52. 
360 United States' first written submission, paras.  94-95; second written submission, paras. 35-36. 
361 United States' first written submission, paras. 98-103; closing statement at the first meeting of the 
Panel, para. 3; second written submission, paras. 41-44. WT/DS429/R 
 
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  under Section 123 as a means of avoiding its obligation to comply with DSB rulings in individual 
reviews under Section 129.362 
7.251.  Concerning the provisions cited by Viet Nam, China argues that a Member simultaneously 
bears obligations: (i) to conform with the covered agreements; and (ii) under Articles 19.4 
and 21.1 and 21.3 of the DSU, when the DSB adopts a finding of inconsistency, to comply with the 
recommendations and rulings of the DSB. China ar gues that by failing to comply with the DSB 
rulings and recommendations, a Member not only violates the obligation under the provisions 
of DSU, but also remains in continued violation of the obligations under the relevant covered 
agreement.363 
7.252.  The European Union  argues that the possibility of  a municipal authority (e.g. the 
US Congress) revoking, modifying or countermanding the measure identified by the complaining 
Member exists in every case, and has no relevance to the WTO-consistency of the measure. The 
European Union considers that the possibility of US municipal authorities using another measure (Section 123) in order to ensure WTO-consistenc y may have some relevanc e to what the measure 
is. However, in the present dispute, the European Union is of the view that a consideration of 
Section 123 does not have any impact on the question of whether Section 129(c)(1) ensures compliance and is WTO-consistent.
364 The European Union also submits that "as such" claims 
require a higher threshold of evidence than "as applied" claims and recalls the Appellate Body's 
indication that the "mandatory/discretionary" distinction is not to be mechanistically applied.365 
The European Union argues that the more mandatory (or less discretionary) something is, the more likely it is that it will lead to the WTO-inconsistent behaviour complained of, and the more 
likely it is that the measure itself is WTO-inconsistent. Conversely, the less mandatory something 
is, the less likely it is that it will lead to the WTO inconsistent behaviour complained of, and the less likely it is that the measure itself is WTO-inconsistent.
366 
7.253.  Regarding the legal bases cited by Viet Nam for its claims, the European Union notes that 
the essence of Viet Nam's complaint is that Se ction 129(c)(1) does not ensure conformity with 
DSB recommendations and rulings. While Viet Nam might have been expected to make claims 
under Article XVI:4 of the WTO Agreement and Article 18.4 of the Anti-Dumping Agreement, or 
under Articles 3.7, 17.4, 21.1 or 21.3 of the DSU, the European Union considers that the type of claims made by Viet Nam can be framed differently, and the Panel has to consider whether or not the provisions cited by Viet Nam are adequate.
367  
7.254.  Japan  submits that Section 129 appears to be inconsistent "as such" with the Anti-
Dumping Agreement. Japan argues that the text of Section 129 as a whole suggests that a Section 129 proceeding is meant to be the exclusive avenue pursuant to which the USDOC and 
USITC may bring anti-dumping measures into compliance with adopted recommendations and 
rulings. Japan adds that this interpretation is supported by the SAA and by US Court of International Trade findings that Section 129 preclu des any relief with respect to prior unliquidated 
entries, even in revocation cases.
368 Japan argues that the United States' arguments regarding 
Section 123 and the possibility of Congressional action are unpersuasive. Japan argues that 
Section 123, by its terms, appears to apply only with respect to recommendations and rulings concerning a US regulation or practice and would not apply with respect to determinations in 
specific cases. Regarding the possibility that the US Congress could pass a new law that might 
have an impact on prior unliquidated entries, Japan submits that WTO Members always retain the ability to modify or abandon particular measures in the future. Japan contends, however, that that 
theoretical possibility does not preclude other Members from establishing that an existing law or 
practice is inconsistent with the covered agreements. 
7.255.   Japan argues that if, in certain specific circumstances, the statute pursuant to which a 
Member implements the recommendations and ruling s of the DSB necessarily leads to a failure to 
comply after the expiration of the reasonable period of time, that statute would itself be 
                                               
362 China's third-party submission, paras. 39- 46; response to Panel question No. 10. 
363 China's response to Panel question No. 12. 
364 European Union's response to Panel question No. 10. 
365 European Union's third-part y submission, paras. 25-36. 
366 European Union's third-party submission, paras. 25-36; response to Panel question No. 11. 
367 European Union's response to Panel question No. 12. 
368 Japan's third-party submission, paras. 13-19 (referring to, inter alia , Corus Staal BV v. United States , 
Court No. 07-00270, Slip Op. 07-140 (Ct. Int'l Trade, 19 Sept. 2007), Exhibit VN-36). WT/DS429/R 
 
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  inconsistent with the covered agreements. For this reason, Japan does not believe that Viet Nam 
must establish that Section 129(c)(1) necessarily leads to WTO-inconsistent action in all instances to succeed in its claim. Japan adds that the mandatory/discretionary distinction, which the Appellate Body cautioned should not be applied in a mechanistic fashion, does not come into play 
in the current dispute given that the United States only refers to the possibility that other, 
separate, measures (i.e. Section 123) may address prior unliquidated entries, rather than relying on the USDOC's possible discretion under Section 129 with respect to liquidation of prior 
unliquidated entries. Even if the Panel were to consider the "mandatory/discretionary" distinction 
relevant to Viet Nam's claim in this case, Japan believes that it would be sufficient for Viet Nam to demonstrate that the provision subject to challenge mandates, or leads to, WTO-inconsistent liquidation in certain specific circumstances.
369 
7.256.  Norway  recalls that the Appellate Body clarified in US – Zeroing (Japan) (Article 21.5 – 
Japan)  that Members must comply with DSB rulings and recommendations no later than by the 
end of the reasonable period of time. Thus, fo r Norway, WTO-inconsistent measures affecting 
imports that entered an implementing Member's terri tory prior to the expiration of the reasonable 
period of time must be rectified by the end of that reasonable period of time.370 
7.5.5  Evaluation by the Panel 
7.257.  We consider it appropriate to first examine whether Viet Nam has established, as a factual 
matter, that Section 129(c)(1) acts as a legal bar – or precludes – implementation of DSB recommendations and rulings with respect to prior unliquidated entries. If we find that Viet Nam has done so, we will consider whether this results in an inconsistency with Articles 1, 9.2, 9.3, 
11.1 and 18.1 of the Anti-Dumping Agreement. With  respect to the latter, we note that Viet Nam 
relies on the finding of the Appellate Body in US – Zeroing (Japan) (Article 21.5 – Japan)  that the 
relevant date to assess implementation of DSB recommendations and rulings is the date on which 
the duty is assessed or collected, and that any action for the assessment or collection of duties 
after the expiry of the reasonable period of ti me must conform to the DSB's recommendations and 
rulings, irrespective of the date of importation.
371 Viet Nam relies on this finding to argue that 
when a US anti-dumping determination is found to be WTO-inconsistent, the United States must 
implement the DSB recommendations and rulings with respect to any entries that remain unliquidated as of the expiration of the reasonable period of time. 
7.258.  Before we turn to our consideration of Viet Nam's factual allegations concerning the 
operation of Section 129, it is important to highlight the fact that Viet Nam's challenge is limited to 
Section 129(c)(1). Viet Nam does not challenge any other provision of US law. As a result, we are not asked to consider whether other provisions of US law, by themselves or in combination with 
Section 129(c)(1), preclude US authorities from taking actions to comply with DSB 
recommendations and rulings with respect to prior unliquidated entries; we are only tasked with considering Viet Nam's contention that Section 129(c)(1) itself precludes such actions. 
7.259.  We begin our analysis of Viet Nam's claim with the text of Section 129(c)(1). 
Section 129(c)(1) sets out when revised determ inations made pursuant to the Section 129 
mechanism take effect. It defines the application of those determinations in terms of which entries are affected, providing that a Section 129 determination "shall apply with respect to unliquidated 
entries of the subject merchandise … that are entered, or withdrawn from warehouse, for 
consumption on or after " the implementation date. As a result, Section 129 does not, on its face, 
have any effect with respect to prior unliquidated entries. Thus, it is clear to us, as it was to the 
US – Section 129(c)(1)  URAA  panel, that prior unliquidated entries are unaffected by a 
Section 129 determination. We agree with the conclusion reached by the US – Section 129(c)(1) 
URAA  panel that Section 129(c)(1) "does not, by its express terms, require or preclude any 
particular action with respect to prior unliquidated entries".
372 It necessarily follows that 
                                               
369 Japan's third-party submission, paras. 13-19; third- party statement, paras. 3-8; response to Panel 
question Nos. 10-13. 
370 Norway's third-party stat ement, paras. 11- 13 (citing Appellate Body Report, US – Zeroing (Japan) 
(Article 21.5 – Japan) , paras. 160-161). 
371 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , paras. 153-197. See also 
Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , paras. 286-355; and Panel Reports, US – 
Zeroing (EC) (Article 21.5 – EC) , paras. 8.164-8.218; and US – Zeroing (Japan) (Article 21.5 – Japan) , 
paras. 7.139-7.155. 
372 Panel Report, US – Section 129(c)(1) URAA , para. 6.55. WT/DS429/R 
 
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  Section 129(c)(1) cannot be found to preclude implementation of DSB recommendations and 
rulings with respect to such prior unliquidated en t r i e s .  T h e  f a c t  t h a t ,  a s  a l l e g e d  b y  V i e t  N a m ,  
Section 129 may be the only explicit statutory provision governing the effective date of US Government determinations to implement DSB recommendations and rulings in our view cannot 
justify an interpretation of the statute that is unsupported by its terms.
373 
7.260.  We note the US – Section 129(c)(1)  URAA  panel's view that it may well be the case that 
because Section 129(c)(1) limits the application of Section 129 determinations to entries that take 
place on or after the implementation date, prior un liquidated entries would remain subject to other 
provisions of US anti-dumping or countervailing duty laws which might, for instance, require the USDOC to assess definitive duties with respect to these prior unliquidated entries on the basis of an old, WTO-inconsistent methodology, or might preclude the USDOC from assessing duties with 
respect to such entries on the basis of the new,  WTO-consistent methodology, but that, in such 
instances, it would not be because of Section 129(c)(1) that the USDOC would be required to take, 
or be precluded from taking, such actions, bu t because of those other provisions of US law.374 We 
agree with this view, and recall once again that our mandate in this dispute is limited to examining 
the WTO-consistency of Section 129(c)(1).  
7.261.  Viet Nam also relies, in support of its interpretation of Section 129(c)(1), on the SAA, 
noting in particular the statement that "[u]nder  129(c)(1), if implementation of a WTO report 
should result in the revocation of an antidumpin g or countervailing duty order, entries made prior 
to the date of the USTR's direction would remain subject to potential duty liability".375 The SAA is 
an authoritative statement on the interpretation of the URAA, adopted by the US Congress at the 
time of the adoption of the latter.376 It indicates, in respect of Section 129(c)(1), inter alia , that: 
Consistent with the principle that GATT panel recommendations apply only 
prospectively, subsection 129(c)(1) provides that where determinations by the ITC or 
Commerce are implemented under subsections (a) or (b), such determinations have 
prospective effect only. That is, they apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date on which 
the Trade Representative directs implementation. Thus, relief available under 
subsection 129(c)(1) is distinguishable from relief available in an action brought before a court or a NAFTA binational panel,  where, depending on the circumstances of 
the case, retroactive relief may be availabl e. Under 129(c)(1), if implementation of a 
WTO report should result in the revocation of an antidumping or countervailing duty 
                                               
373 Viet Nam further argues that the US Congress' failure to provide the USTR with authority to 
implement modified USITC affirmative injury determ inations would be odd if Congress, in enacting 
Section 129, was truly leaving open the possibility under US law to extend the relief provided by adverse DSB 
recommendations and rulings. (Viet Nam's first written submission, paras. 252-254.) Viet Nam argues in this 
respect that where an affirmative USIT C determination is modified from a find ing of present material injury to 
a finding of threat of material injury, it creates a si tuation where unliquidated provisional measure deposits 
should be refunded pursuant to US law and to Articl e 10.4 of the Anti-Dumping Agreement. Viet Nam submits 
that in the absence of any legal authority to implement the modified USITC determination, there is no basis under US law for the USDOC to instruct USCBP to make su ch refunds. Viet Nam argues  that if Congress' intent 
was simply not to ensure compliance with respect to prior unliquidated entries, as opposed to precluding compliance, it would not have completely denied any authority to implement modified USITC injury determinations as it would otherwise be nonsensical to assume that Congress only created this limitation for 
USITC determinations and not USDOC determinations. (Viet Nam's first written submission, paras. 253-254).  In making this argument, Viet Nam relies on a finding of the Court in Tembec v. United States  that 
"section 129 cannot be read to imply authority for the USTR to order the implementation of a section 129(a) determination that does not result in at least partial revocation of a related AD, CVD, or safeguards order". 
However, as we discuss below in foot note 398, Viet Nam misreads this holding as implying that the USTR has 
no authority to order the refund of duties where a WTO-in consistent finding of present injury is replaced, in a 
Section 129 determination, by a finding of threat of injury; the Court explicitly refrains from deciding this question. Even if Viet Nam's interpretation of Section 129 is correct, there is nothing in this argument by Viet Nam that addresses the basic shortcoming in its posi tion identified above, namely that Section 129 has no 
effect with respect to prior unliquid ated entries. While it may be that the United States fails to implement 
adverse DSB recommendations and rulings with respect to  prior unliquidated entries, such an outcome would 
presumably result from the operation of  other provisions of US law; it do es not result from the operation of 
Section 129(c). 
374 Panel Report, US – Section 129(c)(1) URAA , footnotes 112, 123, and 126. 
375 Viet Nam's second written submission, pa ra. 66 (referring to SAA, Exhibit VN-34). 
376 Section 101(a)(2) of the URAA, 19 U.S.C. § 3511(a)(2), Exhibit VN-32; Section 102(d) of the URAA, 
19 U.S.C. § 3512(d), Exhibit VN-33. WT/DS429/R 
 
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  order, entries made prior to the date of Trade Representative's direction would remain 
subject to potential duty liability.377  
7.262.  The SAA does not contradict our reading of  Section 129(c)(1). Rather, it merely confirms 
that which is readily apparent from the text of Section 129(c)(1), i.e. that implementation through 
Section 129 determinations only has effects with respect to entries that are made after the 
implementation date. Nothing in the SAA suggests that Section 129(c)(1) concerns itself with in any way, or itself has any effect on, prior unliquidated entries.
378  
7.263.  Viet Nam also finds support for its interpretation of Section 129(c)(1) in USDOC practice 
since Section 129(c)(1) came into effect.379 Viet Nam argues that this USDOC practice 
demonstrates that the US – Section 129(c)(1) URAA  panel's interpretation of the provision was in 
error, as the US authorities' application of Section 129 to date "reveals a systematic and consistent 
refusal by the USDOC to issue liquidation instructions that would extend the results of its 
Section 129 determinations to prior unliquidated entries".380 Viet Nam adds that in every single 
instance, whether in revocation or modification cases, where an opportunity (according to the 
United States' interpretation) presents itself for the USDOC to extend the benefit of a DSB ruling 
to prior unliquidated entries, the United States Government foregoes that opportunity.381 
Specifically, Viet Nam argues that in every case in which a Section 129 determination resulted in a 
revocation, the USDOC continued to retain anti-dumping deposits after the implementation date 
and then conducted a subsequent administrative review covering prior unliquidated entries that resulted in the assessment of final duties on thos e entries, notwithstanding the revocation of the 
order as a result of the Section 129 determination.
382 Likewise, Viet Nam submits that, although in 
some instances one must "disentangle the normal operation of US trade remedy laws from the 
restrictions imposed by Section 129", in every modifi cation case it is possible to identify a course 
of conduct that is consistent with an interpretation that Section 129(c)(1) prohibits extending the 
benefits of DSB rulings to prior unliquidated entries. Viet Nam adds that this is most often seen in 
the refusal to refund excessive deposits on en tries prior to the implementation date, and in 
automatic liquidation instructions that call for assessments at the pre-Section 129 rate.383 
7.264.  The application of Section 129(c)(1) to date does suggests that the United States 
Government, following a Section 129 proceeding resulting in a determination to revoke or modify an anti-dumping order, typically has not extended th e effect of that decision to prior unliquidated 
entries. That said, we fail to see how the "pattern" alleged by Viet Nam would, in and of itself, 
demonstrate that the USDOC legally cannot  "extend the benefits of implementation" (to use 
Viet Nam's formulation) to prior unliquidated entries. More importantly, it does not establish that the United States Government is precluded from doing so by Section 129(c)(1) , which is the only 
provision of US law challenged by Viet Nam.
384 Hence, we cannot agree with Viet Nam's assertion 
that the "consistent pattern" of the US Government not extending the effect of Section 129 
                                               
377 SAA, Exhibit VN-34. 
378 Like the US – Section 129(c)(1) URAA  panel, we note that the SAA a ffirmatively states that "prior 
unliquidated entries" would remain subject to potential duty liability and that it is conceivable that administrative reviews would be conduc ted with respect to "prior unliquidated entries" and that administrative 
review determinations would be made with respect to such entries on the basis of a WTO-inconsistent determination. Also like that panel, we consider that such actions, if taken, would not be taken because they were required by section 129(c)(1), but because they were required or allowed under other provisions of 
US law. (Panel Report, US – Section 129(c)(1) URAA , para. 6.110.) 
379 Viet Nam alleges that the USDOC alone has issued 21 Section 129 determinations affecting more 
than 40 distinct anti-dumping or count ervailing duty orders. For the sake of clarity, we recall that Viet Nam 
challenges Section 129(c)(1) "as such", i.e. independently of any application of that provision in any particular 
case. Viet Nam relies on the USDOC practice as eviden ce supporting its interpretation of Section 129(c)(1), 
and that is how we consider this evidence. 
380 Viet Nam's first written submission, para. 257. 
381 Viet Nam's first written submission, para. 264; second written submission, para. 68. 
382 Viet Nam's first written submission, para. 265; second written submission, para. 68. 
383 Viet Nam's first written submission, para. 266. Viet Nam adds that "even in cases where the 
Section 129 margin is higher, the USDOC never issues instructions that change the deposits or assessments for prior unliquidated entries". In Exhibit VN-42, Viet Nam provides the Panel with extensive examples of how the 
United State has applied Section 129 since 2001. 
384 In fact, it would appear that the treatment of pr ior unliquidated entries is merely a result of other 
provisions of US law and of the prior determinations continuing to produce effects with respect to those entries. WT/DS429/R 
 
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  determinations to prior unliquidated entries suggests "more than just a practice, but a recognition 
that Section 129 demands such treatment as a matter of U.S. law".385  
7.265.  Moreover, we note that the United States asserts that the USDOC can "implement" DSB 
recommendations and rulings with respect to prior unliquidated entries. According the 
United States: 
a. The US Congress may adopt new legislation or amend existing legislation in a manner 
that will mean that prior unliquidated entries are liquidated pursuant to a WTO-
consistent methodology; 
b. The US Administration can use Section 123 to amend a WTO-inconsistent USDOC 
practice, and, in setting the effective date of the modification, can effectively implement with respect to prior unliquidated entries. 
c. The USDOC could adopt a WTO-consistent methodology in a subsequent administrative 
review, i.e. another segment of the proceeding, thus effectively "implementing" with respect to prior unliquidated entries.
386 
7.266.  In this regard, we note that the United States has identified instances in which the 
United States Government has used certain of these approaches.387 The evidence submitted by the 
United States satisfies us that the United States Government is not precluded from implementing 
DSB recommendations and rulings with respect to prior unliquidated entries. In particular, the 
United States effectively demonstrated that in a situation in which a Section 129 determination is implemented with respect to entries made after that determination, and an administrative review is conducted with respect to prior unliquidated en tries, the relevant authority (USDOC or USITC) 
may, in that subsequent administrative revi ew, act in accordance with the relevant DSB 
recommendations and rulings. This would be possible whenever a WTO-consistent approach 
suggested by the relevant DSB recommendations and rulings is permitted by the relevant 
applicable law or regulation, or where the United States Government modifies the regulation or 
practice pursuant to Section 123.
388 The United States identifies instances in which a modification 
to USDOC practice (with respect to the USDOC's use of the zeroing methodology) was effected 
through a Section 129 determination as well as a Section 123 rule modification, which itself was 
applied in subsequent administrative reviews with respect to some prior unliquidated entries.389 
                                               
385 Viet Nam's first written submission, para. 264; Viet Nam uses similar language in its opening 
statement at the first meeting of the Panel, para. 34. 
386 United States' response to Panel question No. 29, paras. 100-106. 
387 United States' first written submission, para. 120. 
388 Again, we agree with the US – Section 129(c)(1) URAA  panel when it stated that: 
we find convincing the argument of the United St ates that a distinction is to be drawn between 
the section 129 determination, which, e.g., establishes a particular dumping margin or countervailable subsidy rate, and the methodologies developed and applied in a section 129 determination.  As we understand the terms of section 129(c)(1), they limit the application of section 129 determinations to entries that take place on or after the implementation date.  We see nothing in section 129(c)(1) which would similarly limit the use of methodologies developed and applied in a section 129 determination to such entries. Thus, section 129(c)(1) does not have the effect of precluding the application of methodologies developed in a section 129 determination in administrative reviews of "prior unliquidated entries".  (Panel Report, US – Section 129(c)(1) URAA , para. 6.72). 
389 United States' first written submission, para. 120 (referring to USDOC Section 129 Compilation, 
Exhibit VN-42, Determination 19-1 ( Notice of Implementation of Determination Under Section 129 of the 
Uruguay Round Agreements Act: Stainless Steel Plate in Coils From Belgium, Steel Concrete Reinforcing Bars From Latvia, Purified Carboxymethylcellulose From Finland, Certain Past a From Italy, Purified 
Carboxymethylcellulose From the Netherlands, St ainless Steel Wire Rod From Spain, Granular 
Polytetrafluoroethylene Resin From Italy, Stainl ess Steel Sheet and Stri p in Coils From Japan , 77 Fed. 
Reg. 36,257 (18 June 2012)), p. 36260; Antidumping Proceedings: Calculation of the Weighted-Average 
Dumping Margin and Assessment Rate in Certain An tidumping Duty Proceedi ngs; Final Modification , 
77 Fed. Reg. 8101 (14 February 2012), Exhibit VN-55; Purified Carboxymethylcellulose from the Netherlands: 
Preliminary Results of Antidumping Duty Administra tive Review and Preliminary Intent to Rescind , 77 
Fed. Reg. 46,024 (2 Aug. 2012) (Exhibit US-18); Certain Pasta from Italy: Notice of Preliminary Results of 
Antidumping Duty Administrative Review, Preliminary No Shipment Determination and Preliminary Intent to 
Revoke Order, in Part , 77 Fed. Reg. 46,377 (3 Aug. 2012), unchanged in 78 Fed. Reg. 9,364 (8 Feb. 2013), 
Exhibit US-19; and Purified Carboxymethylcellulose from Finland; Notice of Preliminary Results of Antidumping 
Duty Administrative Review , 77 Fed. Reg. 47,036 (7 Aug. 2012), Exhibit US-20). WT/DS429/R 
 
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  Viet Nam does not dispute the accuracy of the ex amples cited by the United States, but merely 
contests their relevance.390 That the United States authorities proceeded in this fashion in our view 
d i s p r o v e s  V i e t  N a m ' s  a r g u m e n t  t h a t  t h e  U n i t e d  S t a t e s  G o v e r n m e n t  i s  i n  s o m e  g e n e r a l  w a y  precluded from "implementing" DSB recommendations and rulings with respect to prior 
unliquidated entries. Moreover, it further confirms our view that Section 129 does not itself 
preclude the United States from implementing adverse DSB recommendations and rulings with respect to prior unliquidated entries. 
7.267.  Viet Nam also argues that decisions of US courts support its argument that Section 129 
precludes implementation with respect to prior unliquidated entries. Although it suggests that there are a number of relevant US court decisions, Viet Nam only refers to the decisions of the US Court of International Trade in Corus Staal  BV v. United States  and – but only in passing – in 
Tembec v. United States . Viet Nam argues that the ruling of the Court in Corus Staal  BV v. 
United States  stands for the proposition that "the statutory language of Section 129 'explicitly' 
prevents any duty refunds prior to the USTR impl ementation date, and thus an importer who has 
any entries prior to the effective date 'cannot obtain relief under the current statutory scheme'".
391 
Viet Nam also asserts that:   
appeals before U.S. courts seeking to give le gal effect to revocations issued as a result 
of Section 129 determinations to address prior unliquidated entries have been 
consistently swept aside. U.S. courts have repeatedly explained that, given the limited 
effective date of Section 129 determinations, there is no basis under U.S. law for finding an order invalid with respect to prior unliquidated entries . The order remains 
valid as a matter of U.S. law and such entries are subject to potential liability 
regardless of the adverse DSB rulings and recommendations. This is true even though, as a matter of U.S. law, under normal circumstances where an order is found 
invalid all deposits would be refunded.
392 
7.268.  We find it noteworthy that in this description of the US court rulings it purports to rely on, 
Viet Nam does not actually assert that Section 129 precludes refunds of duties with respect to 
prior unliquidated entries. Rather, the description of the rulings by Viet Nam suggests that they 
are consistent with our reading of Section 129(c) as  having no effect on prior unliquidated entries. 
And indeed, in our view, they ar e. The gist of the US Court of International Trade's ruling in Corus 
Staal393 is that Section 129(c) does not mandate  the refund of duties on prior unliquidated entries. 
In other words, the Court affirms that the e ffect of a revocation effectuated through the 
Section 129 mechanism is limited to entries made  after the date of implementation. However 
nowhere does the Court suggest that Section 129 itself precludes  the refund of prior unliquidated 
duties. In its opening statement at our first meet ing, Viet Nam argued that the holding of the 
Court in Corus  Staal is that "[b]ut for the explicit effective date under Section 129, one might find 
relief for prior unliquidated entries under the normal operation of U.S. trade law".394 The statement 
of the Court of International Trade cited by Vi et Nam does recognize a difference between the 
general operation of US law, where revocation of  an order by a domestic court provides a legal 
basis to seek a refund with respect to prior unliq uidated entries, and the operation of Section 129, 
which provides no legal basis for such action.395 However, it does not follow from the fact that it 
                                               
390 Viet Nam submits that the examples cited by the United States were "WTO-consistent action by 
coincidence" and only were a consequence of the normal operation of US law in that the rule had been changed 
through Section 123 action, and the USDOC only followed the modified rule in administrative reviews subsequent to the date of implementation of the Section 129 determination, thereby affecting prior unliquidated entries. Viet Nam argues that all that the examples cited by the United States show is that in some instances where a new regulation or practice is brought about by Section 123, that modification can be 
applied in some subsequent administrative review de termination that may affect  certain prior unliquidated 
entries. Viet Nam also argues that the United Stat es' claims of WTO-consistent action in subsequent 
administrative reviews do not address the fact that th e United States continues to hold on to excessive 
deposits between the period of th e Section 129 determination and completion of the review. (Viet Nam's 
opening statement at the first meeting of the Panel, paras. 38-44; opening statement at the second meeting, para. 27.) 
391 Viet Nam's first written submission, para. 250. 
392 Viet Nam's first written submission, para. 232. (emphasis added) 
393 Corus Staal BV v. United States , Court No. 07-00270, Slip Op. 07-140 (Ct. Int'l Trade, 
19 Sept. 2007), Exhibit VN-36. 
394 Viet Nam's opening statement at  the first meeting, para. 35. 
395 In its findings, the Court indicates that: WT/DS429/R 
 
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  does not provide for such refunds that Section 129(c)(1) precludes them, as Viet Nam alleges. In 
the absence of Section 129(c)(1), Section 129 would simply be without any definition of the temporal scope of application of Section 129 determinations.
396 This would not, in our view, 
demonstrate that Section 129(c)(1) prohibits the refund of cash deposits on prior unliquidated 
entries. 
7.269.  The decision of the US Court of International Trade in Tembec v United States , which 
Viet Nam also refers to in passing397, also merely confirms that Section 129 has limited effects. It 
does not suggest that Section 129(c)(1) precludes the US authorities from "implementing" with 
respect to prior unliquidated entries.398 Hence in our view, this decision does not support 
Viet Nam's position. 
                                                                                                                                               
As a general rule, [the USDOC] cannot impose antidumping duties withou t a valid determination 
of dumping. See §§ 1673 & 1673d(c); see also 19 C.F.R. § 351.212. However, the statute that governs implementation of a WTO panel report explicitly states that revocation of an 
antidumping order applies prospectively on a date specified by the USTR. See § 3538(c); Section 129 Determination, 72 Fed.Reg. at 25,261. (Corus Staal BV v. United States , Court No. 07-00270, Slip Op. 07-140 (Ct. Int'l Trade 19 Sept. 2007), 
Exhibit VN-36, p. 5). 
396 The US – Section 129(c)(1) URAA panel rejected a similar argu ment by Canada as follows: 
if there were no section 129(c)(1), there would be no effective date for the application of section 129 determinations which the USTR directs to implement.  …  Even disregarding the issue of the effective date and accepting that, in the absence of section 129(c)(1), a revocation would apply to "prior unliquidated entries" as well, we fail to see how this would demonstrate that section 129(c)(1) has the effect of precluding the Department of Commerce from returning cash deposits on "prior unliquidated en tries", declining to hold administ rative reviews for such entries 
and declining to assess duties with respect to such entries.  (Panel Report, US – Section 129(c)(1) URAA , paras. 6.86-6.87). 
397 Tembec v. United States , 441 F. Supp. 2d 1302 (Ct. Int'l Trade, 2006), Exhibit VN-37. As we note 
above, footnote 373, in Viet Nam's view, Tembec  illustrates that:  
In situations where the USITC modified its affirmat ive injury determination, such as altering its 
theory from one of present material injury to thre at of material injury, USTR has no authority to 
direct any action under Section 129.  Congress' failure to provide authority to USTR to direct implementation of modified USITC 
affirmative injury determinations would be odd if Congress, in enacting Section 129, was truly leaving open the possibility under U.S. law to ex tend the relief provided by adverse DSB rulings 
to prior unliquidated entries.  Rather, this fail ure confirms the language "shall … on or after" 
means what it says. (Viet Nam's first written submission, paras. 252-253; see also Viet Nam's second written submission, 
para. 67). 
398 In its decision in Tembec v. United States , the Court of International Trade held that Section 129 
does not grant the USTR the authority to order the USDOC to "implement" revised affirmative USITC injury 
determinations made pursuant to Section 129(a) unless it results in the revocation of the order, in whole or in 
part. In that case, the USTR had ordered the implementation of a Section 129 affirmative threat of injury determination to replace a prior threat of injury de termination that had been found WTO-inconsistent. The 
Court found that the USTR's order to the USDOC to implement the Section 129 determination was ultra vires  
and void. In arriving at this conclusion, the Court distinguished between the narrower authority granted to the USTR under Section 129(a) with respect to USITC Sectio n 129 determinations, pursuant to which the USTR can 
only order the USDOC to "revoke" the underlying order in  whole or in part, and the broader authority granted 
to the USTR under Section 129(b), under which the USTR may order the USDOC to "implement" a revised determination. The Court considered that the United St ates Congress had used narrower "revocation" language 
in Section 129(a) to reflect the "yes-or-no" nature of USITC determinations, given that implementation of WTO recommendations and rulings with respect to a USITC dete rmination would necessarily result in revoking all or 
part of an existing order, if impl ementation were necessary at all. Ad option of WTO recommendations with 
respect to an affirmative USDOC determination, in cont rast, might lead to change s in the applicable anti-
dumping or countervailing duty margins, thereby ne cessitating the broader "i mplementation" language 
contained in Section 129(b). The Court expressly avoided deciding the issue of whether relief in the form of refunds of cash deposits would be available following issuance of a Section 129 determination containing a 
finding of threat of material injury replacing a prior, WTO-inco nsistent, finding of present injury. The reasoning 
of the Court however indicates that, assuming arguendo  that such a relief would be  permissible under US law 
(the Court posits that it might be construed as a fo rm of retrospective relief unavailable under Section 129), 
the USTR's power to direct the USDOC to revoke an order " in part " could allow it to order such refunds: the 
Court reasons that the USDOC "could implement the dete rmination by revoking the portion of the outstanding 
order requiring retention of cash deposi ts collected during the investigation period". Hence, th e Court's decision 
does not support – and could even be read as contradict ing – Viet Nam's argument that in situations where the 
USITC modified an affirmative injury determination, such  as altering its theory from one of present material 
injury to threat of material injury, the USTR has no authority to direct any action under Section 129. WT/DS429/R 
 
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  7.270.  In light of the foregoing, having taken into consideration the text of Section 129(c)(1), 
the SAA, the United States Government's application of Section 129(c)(1) in the years since it was adopted, and the US Court of International Trade decisions cited by Viet Nam, we conclude that 
Viet Nam has failed to establish that Section 129(c)(1) precludes, or acts as a legal bar to, 
"extending the benefits of implementation" to pr ior unliquidated entries. We note that we have 
undertaken an independent examination of Viet Nam's claims and of Section 129(c)(1), but we have arrived at conclusions similar to those of the US – Section 129(c)(1) URAA  panel.  
7.271.  Having concluded that Viet Nam has failed to establish its factual allegation that 
Section 129(c)(1) precludes implementation with respect to prior unliquidated entries, we need not, and do not, consider Viet Nam's arguments regarding the consistency of Section 129(c)(1) with the provisions of the Anti-Dumping Agreement cited by Viet Nam.
399 
7.272.  In light of the foregoing, we find that Viet Nam has not established that Section 129(c)(1) 
of the URAA is "as such" inconsistent with Articl es 1, 9.2, 9.3, 11.1 and 18.1 of the Anti-Dumping 
Agreement. 
7.6  Claims with respect to the sunset review 
7.6.1  Introduction 7.273.  Viet Nam claims that the USDOC's affirmative likelihood-of-dumping determination in the 
first sunset review is inconsistent with Articl es 11.3 and 17.6 of the Anti-Dumping Agreement. 
Viet Nam's challenges: 
a. the USDOC's reliance on WTO-inconsistent margins of dumping, which Viet Nam argues 
was inconsistent with Article 11.3 and constituted an improper establishment of facts 
and prevented an unbiased and objective evaluati on of the facts, inconsistent with that 
provision and Article 17.6; and 
b. the USDOC's reliance on a presumption with respect to the decline in import volumes, as 
opposed to other factors, in reaching its likelihood-of-dumping determination, which 
Viet Nam argues was not supported by the facts and is an improper evaluation of 
changes in volumes based on the facts of th e review, inconsistent with Articles 11.3 
and 17.6. 
7.274.  The United States asks the Panel to reject Viet Nam's claims. 7.6.2  Factual background 7.275.  Before addressing Viet Nam's claims, we start by setting out the relevant facts pertaining 
to the first sunset review under the Shrimp  order. 
7.276.  Under US law, five years after the publication of an anti-dumping duty order, the USDOC 
and the USITC conduct a "sunset review" to determ ine, respectively, whether revocation of the 
order would be likely to lead to a continuation or recurrence of dumping ("likelihood-of-dumping" 
determination) and the continuation or recurrence of material injury ("likelihood-of-injury" determination). The order is revoked unless both the USDOC and the USITC make affirmative 
"likelihood" determinations.
400  
7.277.  Viet Nam's claims concern the USDOC's likelihood-of-dumping determination in the 
first sunset review under the Shrimp  order. 
                                               
399 Because we do not examine Viet Nam's arguments on the WTO-consistency of Section 129(c)(1), we 
do not consider it necessary to address the United St ates' argument that Viet Nam's claims are outside the 
Panel's terms of reference, because Viet Nam compla ins of the United States' failure to implement DSB 
recommendations and rulings, but fail s to make claims under the DSU, where obligations with respect to the 
implementation of DSB recommendations and rulings in  the anti-dumping context are found. Moreover, we 
note that the parties have debated the issue of the continued relevance of the mandatory/discretionary 
distinction, but we do not find it  necessary to pronounce ourselves on  the continued relevance of this 
distinction or on its application to the facts before us. 
400 Sections 751 and 752 of the US Tariff Act of 1930, codified at 19 U.S.C. §1675, Exhibit US-04. WT/DS429/R 
 
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  7.278.  On 4 January 2010, the USDOC initiated a sunset review of the Shrimp  order.401 On 
6 August 2010, the USDOC preliminarily determined that revocation of the Shrimp order was 
"likely to lead to continuation or recurrence of dumping".402 In the Issues and Decision 
Memorandum accompanying the preliminary determination, the USDOC indicated that, when 
making a likelihood-of-dumping determination, it considers "the margins established in the 
investigations and/or reviews conducted during the sunset review period, as well as the volume of 
imports for the periods before and after the issuance of the order". It further stated that the 
USDOC "normally will determine" that revocation of the order is likely to lead to continuation or 
recurrence of dumping if one of three scenarios occurs: (i) dumping continued at any level above 
de minimis  after the issuance of the order; (ii) impo rts of the subject merchandise ceased after 
issuance of the order; or (iii) dumping was eliminated after the issuance of the order and import 
volumes for the subject merchandise declined significantly.403 The USDOC then noted, with respect 
to the extent of dumping during the period foll owing the issuance of the order (2005-2009) (the 
sunset review period), that it had "assigned positive rates for many Respondents during the four 
completed administrative reviews", adding that "[t]herefore, the Department has found dumping 
of the subject merchandise to exist after the issuan ce of the order, and that the revocation of the 
antidumping order is likely to lead to a continuation of dumping".404 
7.279.  With respect to import volumes, the US DOC reviewed public US import data for 2003-2009 
and found that imports of subject merchandise from Viet Nam during the relevant period, 2005 through 2009, were 42.1, 35.9, 37.9, 46.7, 40.1 million kilograms, respectively, while they totalled 56.3 million kilograms in 2003, the year preceding the year in which the original anti-
dumping investigation was initiated. While acknowledging certain recoveries in import volumes 
following the issuance of the order, the USDOC co ncluded nevertheless that "with the discipline of 
the order, imports fell after the initiation of the original investigation, and did not return to pre-
initiation levels in any of the individual years or as a whole (an average of 40.5 million kilograms 
during the sunset review period)".
405 
7.280.  The final determination, issued on 7 December 2010, confirmed the conclusions reached 
by the USDOC in its preliminary determination. In the final determination, after recalling its 
approach to determining likelihood-of-dumping, the USDOC found that:  
both the positive dumping margins found for numerous companies reviewed, and the 
decline in import volume during the sunset review period following the initiation of the 
original investigation, consistent with the language of the statute and reflective of our 
practice as discussed in the statute and the Statement of Administrative Action ("SAA"), are highly probative that dumping is likely to continue or recur".
406  
7.281.  The USDOC then addressed, and rejected, a number of arguments raised by Vietnamese 
interested parties concerning its assessment of dumping margins during the sunset review period. First, the USDOC indicated that contrary to th e assertion of Vietnamese respondents, it had 
considered the zero and de minimis  margins calculated for some of the mandatory respondents 
during the first three administrative reviews, adding however that because it determines likelihood-of-dumping on an order-wide basis, the existence of zero or de minimis  margins does 
not by itself require it to reach a negative likelihood determination. The USDOC further noted that 
while Vietnamese respondents repeatedly claimed that dumping did not continue following the 
issuance of the order, they also "carefully qual if[ied] that claim by stating that only the 'vast 
majority' of the imports were not dumped". Therefore, in the USDOC's view, "by their own 
admission, Vietnamese Respondents [did] not dispute there was some dumping that occurred". 
The USDOC also faulted the Vietnamese interested parties for failing to address the fact that the two mandatory respondents in the first administrative review chose not to participate in that 
                                               
401 Notice of initiation for the sunset review, Exhibit VN-08. 
402 Preliminary likelihood-of-dumping determination in the sunset review, Exhibit VN-12. 
403 Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination in the 
sunset review, Exhibit VN-14, p. 4. 
404 Issues and Decision Memorandum accompanying the preliminary likelihood-of-dumping 
determination in the sunset review, Exhibit VN-12, p. 5; Issues and Decision Memorandum accompanying the 
final likelihood-of-dumping determination in the sunset review, Exhibit VN-14, p. 4. 
405 Issues and Decision Memorandum accompanying the preliminary likelihood-of-dumping 
determination in the sunset review, Exhibit VN-12, p. 6. 
406 Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination in the 
sunset review, Exhibit VN-14, p. 4. WT/DS429/R 
 
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  review and received an adverse facts available margin of 25.76%, as part of the Viet Nam-wide 
entity, as a result. The USDOC added that it had also found positive dumping margins for the mandatory respondents in the fourth administ rative review, and that while Vietnamese 
respondents argued that the only reason these ma rgins were positive was the application of the 
zeroing methodology, they had failed to provide an y evidentiary support for this claim. The USDOC 
concluded by stating that zeroing is not contrary  to US law and by rejecting arguments by the 
Vietnamese interested parties concerning the separa te rates in the four administrative reviews, on 
the basis that these rates "are presumed to be correct".
407 
7.282.  The USDOC also reaffirmed its findings wi th respect to the evolution of import volumes 
during the 2003-2009 period. In its consideration of comments by interested parties, the USDOC first stated that the Vietnamese respondents had failed to articulate any rationale that would 
compel it to depart from its established practice to look at the full year prior to initiation of the 
investigation as the base year for comparison. It continued that while it acknowledged that there were certain recoveries in import volume foll owing the issuance of the order, the record 
demonstrated, and it continued to find, that imports had fallen after the initiation of the original 
investigation, and "did not return to pre-investigation levels in any of the individual years, or as a whole".
408 
7.283.  With respect to arguments made by Vietnamese respondents concerning "other factors", 
the USDOC recalled that under its Regulations, the burden is on an interested party to provide information or evidence that would warrant consideration of the other factors in question. In the instant proceeding, the USDOC did not consider such other factors on the ground that Vietnamese 
respondents did not demonstrate their relevance. The USDOC indicated that the Vietnamese 
Respondents "did not make a timely good caus e argument for other factors" and provided 
incomplete market share information as they failed to submit data for the last year of the sunset 
review period (2009). The USDOC stated that "[w]hile the Vietnamese Respondents speculate that 
import volume could have been higher, if not for the margins assigned to the separate rate companies or supply and demand issues, they have not demonstrated how these factors could 
have affected import volumes". Hence, it concluded, the "other factor arguments do not outweigh 
the likelihood analysis based on the existence of margins and decline of imports".
409 
7.284.  In light of its consideration of both dumping and import volumes, the USDOC:  
continue[d] to find that the evidence on the record indicates that dumping of shrimp 
from Vietnam is likely to continue, or recur, absent the discipline of the antidumping 
order because dumping occurred after the issu ance of the order, and import volumes 
fell and have not recovered to the levels prior to the initiation of the investigation. 
Moreover, we find that the other factors alleged by the Vietnamese Respondents do 
not affect this finding.410 
As in the preliminary determination, the USDOC concluded that, in the event the order were to be 
revoked, dumping was likely to continue or recur at the margins calculated during the original 
investigation.411 
 
                                               
407 Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination in the 
sunset review, Exhibit VN-14, pp. 4-5. 
408 Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination in the 
sunset review, Exhibit VN-14, p. 5. 
409 Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination in the 
sunset review, Exhibit VN-14, pp. 4-5. 
410 Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination in the 
sunset review, Exhibit VN-14, p. 6. 
411 The USDOC reports the margins likely to prevail to the USITC. The rates calculated during the 
original investigation were as follows: mandatory respondents: CAMIMEX (5.24%), Seaprodex Min Hai 
(4.30%), and Min Phu (4.38%); separate rate respon dents not individually examined: 4.57%; and Viet Nam-
wide rate: 25.76%. (Final likelihood-of-dumping dete rmination in the sunset review, Exhibit VN-14.) WT/DS429/R 
 
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  7.6.3  Main arguments of the parties 
7.6.3.1  Viet Nam 7.285.  With respect to the USDOC's reliance on WTO-inconsistent margins of dumping, Viet Nam 
refers to prior decisions in which the Appellate Body found that reliance in an Article 11.3 sunset 
review on margins of dumping determined using a methodology inconsistent with Article 2 of the 
Anti-Dumping Agreement results in the like lihood-of-dumping determination also being 
inconsistent with Article 11.3 of the Anti-Dumping Agreement.
412 V i e t  N a m  a d d s  t h a t  t h e  
United States misrepresents the findings of the Appellate Body when it claims that only exclusive 
reliance on WTO-inconsistent margins renders the results of a sunset review inconsistent with Article 11.3. In Viet Nam's view, the mere fact that the USDOC relied on WTO-inconsistent margins is sufficient to find that the sunset review determination is inconsistent with Article 11.3 of 
the Anti-Dumping Agreement.
413  
7.286.  Viet Nam argues that, in the sunset review determination at issue, the USDOC relied on 
margins of dumping which are inconsistent with the Anti-Dumping Agreement, in particular: 
(i) individual margins calculated with zeroing throughout the course of the Shrimp  proceeding, as 
found by the US – Shrimp (Viet Nam)  p ane l and  as  arg ued  by Vie t N am i n this  d is p ute ; (ii) a  
separate rate that was not supported by any facts relevant to the period of the review, was found 
contrary to US law by the US Court of International Trade in Amanda Foods , and is inconsistent 
with Article 9.4 for the reasons discussed by the US – Shrimp (Viet Nam)  panel; and (iii) a 
Viet Nam-wide entity rate based on adverse facts available and applied to unknown and unidentified companies, and which was also found to be WTO-inconsistent in US – Shrimp 
(Viet Nam) .
414  
7.287.  Viet Nam admits that the USDOC relied on two properly calculated facts available rates in 
the first administrative review, but considers that these two rates must be evaluated in light of the 
particular circumstances of the first administrative review. Viet Nam explains in this regard that 
virtually all of the potential respondents for wh ich petitioners had requested a review reached 
agreement with the petitioners for the petitioners to  withdraw the request for a review in exchange 
for cash payments by each of the respondent s. As a result, the USDOC was left to choose 
mandatory respondents from among marginal exporters which led to the selection of the two mandatory respondents which, because of their relative lack of interest in the proceeding or the US market, did not cooperate in the review.
415 Viet Nam contends that it demonstrated to the 
Panel that, except for these two respondents' positive margins, dumping ceased completely after 
the first review when dumping margins are calc ulated in a manner consistent with the Anti-
Dumping Agreement.416 
7.288.  In addition, Viet Nam argues that the United States misrepresents Viet Nam's position 
when it claims that the statement by Vietnamese respondents before the USDOC that the vast majority of sales were not dumped was an admission that some dumping continued to occur; one 
of the reasons Vietnamese respondents were not in a position to definitely claim that there were 
no dumped sales was that the USDOC limited the number of individually-examined respondents.
417  
7.289.  Viet Nam argues that the USDOC assumed that declining import volumes are an indication 
of the likelihood of continued dumping, and that this assumption is unsound for several reasons, 
related in particular to the inherent uncertainty affecting retrospective duty assessment systems, 
an uncertainty which is further compounded for NMEs.418 Viet Nam acknowledges that the volume 
of dumped imports is, together with dumping margins, an important factor for determining the 
likelihood of dumping continuing or recurring. Howe ver, import levels must be given context and a 
                                               
412 Viet Nam's first written submission, paras. 295-298 (referring to Appellate Body Report, US – 
Corrosion-Resistant Steel Sunset Review , para. 128) and 303-307. 
413 Viet Nam's second written submission, paras. 90 and 99-113; opening statement at the 
second meeting of the Panel, paras. 37-38. 
414 Viet Nam's first written submission, paras. 269-280; opening statement at the first meeting of the 
Panel, para. 46, 48-49. 
415 Viet Nam's first written submission, para. 276; op ening statement at the first meeting of the Panel, 
paras. 54-55; second written submission, para. 106. 
416 Viet Nam's opening statement at the second meeting of the Panel, para. 39. 
417 Viet Nam's opening statement at the fi rst meeting of the Panel, paras. 58-60. 
418 Viet Nam's first written submission, paras. 281-289; second written submission, para. 93. WT/DS429/R 
 
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  simple assumption that a decline in imports of virtually any magnitude can alone support a 
likelihood determination is neither objective nor unbiased; as stated by the Appellate Body, an authority cannot mechanically apply such an assumption, but must assess the role of other factors on a case-by-case basis.
419  
7.290.  Viet Nam submits that, in the Shrimp  sunset review, the decline in volumes before and 
after the imposition of anti-dumping duties becomes less relevant, and possibly irrelevant, when one considers that all of the cooperating individu ally-examined producers/exporter had substantial 
negative, or "safety" margins when their dumping margins are calculated in a WTO-consistent 
manner, a fact which supports a conclusion that the decline in overall volume was due to factors other than dumping duties.
420 According to Viet Nam, the USDOC would have reached the 
conclusion that dumping had ceased and that there had been a moderate decline in import levels if 
it had used WTO-consistent margins. In addition, reliance on WTO-inconsistent margins prevented 
Vietnamese exporters from making a critical argument, namely that throughout the sunset review period, the margin of sales above normal value was substantial for all individually-examined 
respondents. In Viet Nam's view, the real reason for any decline in exports is the chilling effect 
that the US retroactive duty assessment system has on imports subject to anti-dumping duties.
421  
7.6.3.2  United States 
7.291.  The United States argues that Article 11. 3 does not prescribe the exact methodologies that 
authorities must follow for purposes of the likelihood determination and that attempts to read into Article 11.3 substantive obligations contained in other provisions of the Anti-Dumping Agreement 
have been rejected in prior decisions.
422  
7.292.  The United States submits that Viet Nam contradicts itself when it claims that the USDOC 
relied "exclusively" on WTO-inconsistent margins, while claiming elsewhere that "almost all" of the margins were WTO-inconsistent. In addition, the United States argues that the USDOC noted in its 
determination that Vietnamese respondents themselves did not dispute that some dumping 
occurred.
423 In any event, the United States does not agree that the dumping margins the USDOC 
relied on in the sunset review are WTO-inconsistent. It submits that, in its determination, the 
USDOC relied on positive anti-dumping duty rate s applied to numerous exporters during the four 
completed reviews, including two companies list ed as among the largest exporters during the 
first administrative review who received facts av ailable rates because they failed to cooperate, 
which, in the United States' view, alone provides sufficient support for the USDOC's conclusion that 
dumping continued during the sunset review period.424 According to the United States, Viet Nam 
acknowledges that the margin applied to those two companies was calculated in a WTO-consistent manner and has provided no evidence supporting its assertions that these two companies were 
"small".
425 Moreover, the United States submits that other margins also were not calculated with 
zeroing, in particular the rate assigned to an uncooperative company during the original investigation, the separate rate calculated in the second and third review, and the Viet Nam-wide 
entity rate in the second, third and fourth reviews.
426 The United States also argues that so-called 
"safety margins" are not relevant under the Anti-Dumping Agreement.  
7.293.  The United States notes that the USDOC found that import volumes fell in the year 
preceding the final determination and did not return to pre-initiation levels, which suggests that 
the exporters were unable to sustain pre-investigation import levels without dumping. Moreover, 
contrary to what Viet Nam asserts, the change in import volumes was significant as it represented 
                                               
419 Viet Nam's first written submission, paras. 299-301 (referring to Appellate Body Report, US – 
Corrosion-Resistant Steel Sunset Review , paras. 177-178 and 208-209); opening statement at the 
first meeting of the Panel, para. 62; second written submission, para. 94. 
420 Viet Nam's second written submission, para. 111. By "safety margins", Viet Nam means the amount 
by which the export price exceeded the norm al value, expressed in percentage terms. 
421 Viet Nam's opening statement at the second meeting of the Panel, paras. 40-43. 
422 United States' first written submission, paras. 244-246; second written submission, para. 106. 
423 United States' first written submission, paras. 248- 250; opening statement at the first meeting of the 
Panel, paras. 46-47; second written submission, paras. 107-109. 
424 United States' first written submission, para. 251-261; second written submission, para. 110; 
opening statement at the second meeting of the Panel, para. 49. 
425 United States' second written submission, paras. 108-109 (referring to Viet Nam's response to Panel 
question No. 32, paras. 98 and 101, and No. 35, para. 114). 
426 United States' opening statement at the second meeting of the Panel, paras. 47-50. WT/DS429/R 
 
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  a decline of about 28% compared to the year preceding the investigation. In addition, the 
United States submits, declining import volumes were a part of the evidence relied upon by the USDOC, but not the exclusive basis for finding likelihood.
427 The United States submits that the 
arguments that Viet Nam presents to the Panel wi th a view to explaining the decline in import 
volume are speculative and post hoc  and in any case do not undermine the evidence relied on by 
the USDOC. Thus, in the United States' view, Viet Nam has failed to demonstrate that the decline in import volumes is due to factors other than the discipline of the anti-dumping duty order.
428 
7.294.  The United States finally contends that the Appellate Body report in US – Anti-Dumping 
Measures on Oil Country Tubular Goods  confirms that Article 11.3 allows for alternative ways of 
determining likelihood-of-dumping even where a WTO-inconsistent methodology has been used at some point in the calculation of a dumping margin. According to the United States, where an 
investigating authority has relied not only on WTO-inconsistent margins of dumping, but also on 
other, sufficient evidentiary bases, such that the likelihood determination can stand on its own 
after any factors based on a WTO-inconsistent methodology have been removed, the likelihood 
finding should be considered consistent with Article 11.3 of the Anti-Dumping Agreement.
429  
7.6.4  Main arguments of the third parties 7.295.  China  refers to previous Appellate Body reports which have held that when investigating 
authorities choose to rely on dumping margins in making their sunset review determinations, the 
calculation of these margins must be consistent with the Anti-Dumping Agreement. China notes that the United States itself admits that the USDOC "relied on" margins of dumping which were calculated in a WTO-inconsistent manner. In China's view, this fact necessarily invalidates the 
sunset determination.
430 
7.296.  The European Union  argues that, consistent with the findings in prior disputes, a sunset 
review determination that relies on dumping margins that are WTO-inconsistent, notably because 
of the use of zeroing, is itself WTO-inconsistent. The European Union submits that the question of 
what the sunset determination would be absent reliance on such margins is not a matter for an original panel. Hence, the appropriate way forward is for the panel to make a finding of 
inconsistency, and for the defending Member to consider how it wishes to implement the rulings 
and recommendations in a WTO-consistent manner.
431  
7.297.  Japan  recalls that the Appellate Body has determined that if an investigating authority 
relies on margins calculated with zeroing in its likelihood determination, that determination is 
inconsistent with Article 11.3. Regarding Viet Nam's claim that the USDOC's reliance on the decline 
in import volume was not unbiased and objective, Japan submits that the Panel should examine whether the USDOC engaged in a "case-specific analysis of the factors behind [the] decline in 
import volumes".
432 According to Japan, it would be inappropriate for the Panel to try to 
determine, based on a counterfactual analysis, whether the USDOC would have reached the same conclusion had it relied only on WTO-consistent factors; such an exercise would amount to an 
impermissible de novo  review of the evidence before the investigating authority.
433 
7.298.  Norway  argues that a margin calculated with zeroing can never be the foundation for an 
investigating authority's likelihood-of-dumping determination. Norway further submits that a panel's role is not to redo the investigation and make its own determination, but to assess whether 
the investigating authority relied upon WTO-inconsistent margins and not whether other factors 
may justify the determination.
434 
                                               
427 United States' first written submission, paras. 262-263; second written submission, paras. 113-114; 
opening statement at the second meeting of the Panel, para. 51. 
428 United States' first written submission, paras. 264-268; second written submission, paras. 115-118. 
429 United States' first written submission, paras. 269 -270; opening statement at the first meeting of the 
Panel, para. 50; opening statement at the second meeting of the Panel, para. 52. 
430 China's third-party submission, paras. 49-51; re sponse to Panel question No. 14, paras. 27-28. 
431 European Union's third-pa rty submission, para. 39. 
432 Japan's third-party submission, paras. 22-26 (quoting from Appe llate Body Report, US – Corrosion 
Resistant Steel Sunset Review , para. 177). 
433 Japan's response to Panel question No. 14, para. 12. 
434 Norway's response to Panel question No. 14, paras. 3-6. WT/DS429/R 
 
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  7.299.  Thailand  submits that a likelihood-of-dumping determination can be found to be WTO-
consistent when the investigating authority's consideration of relevant factors identified to support the determination is WTO-consistent.
435 
7.6.5  Evaluation by the Panel 
7.300.  In its requests for findings, Viet Nam claims that the USDOC's likelihood-of-dumping 
determination in the sunset review at issue is inconsistent with Articles 11.3 and 17.6 of the Anti-Dumping Agreement, suggesting that it is making an independent claim of violation under each 
provision.
436 Yet, at times, Viet Nam appears to only allege a violation of Article 11.3.437  
7.301.  Article 17.6 provides that: 
In examining the matter referred to in paragraph 5: 
(i) in its assessment of the facts of the matter, the panel shall determine 
whether the authorities' establishment of the facts was proper and 
whether their evaluation of those facts was unbiased and objective.  If the establishment of the facts was proper and the evaluation was 
unbiased and objective, even though the panel might have reached a 
different conclusion, the evaluation shall not be overturned; 
7.302.  Article 17.6 sets forth the relevant standard of review applicable to a panel's examination 
of the consistency with the Agreement of a Member 's anti-dumping measures. While it may inform 
the obligations set forth under other provisions of the Agreement, it does not, in itself, impose obligations upon investigating authorities. For this reason, insofar as Viet Nam may be making an independent claim of violation under that provision, we reject this claim. 
7.303.  Turning to Article 11.3, we note that this provision reads as follows: 
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping 
duty shall be terminated on a date not later than five years from its imposition (or 
from the date of the most recent review und er paragraph 2 if that review has covered 
both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry within a 
reasonable period of time prior to that date, that the expiry of the duty would be likely 
to lead to continuation or recurrence  of dumping and injury.
22  The duty may remain 
in force pending the outcome of such a review. 
__________________ 
22 When the amount of the anti-dumping duty is assessed on a retrospectiv e basis, a finding in 
the most recent assessment proceeding under subparagraph 3.1 of Article 9 that no duty is to be 
levied shall not by itself require the authorities to terminate the definitive duty.  
7.304.  In US – Corrosion-Resistant Steel Sunset Review, the Appellate Body concluded that 
Article 11.3 lays down a mandatory rule with an exception: 
Members are required to terminate an anti - d u m p i n g  d u t y  w i t h i n  f i v e  y e a r s  o f  i t s  
imposition " unless " the following conditions are satisfied: first, that a review be 
                                               
435 Thailand's response to Panel question No. 14. 
436 Viet Nam's first written submission, para. 356; second written submission, para. 139. 
437 For instance, Viet Nam's second written submission, para. 113:  
Based on the above, Viet Nam believes that the panel must find that the Sunset Review conducted by the USDOC of the antidumping duty  order on Certain Frozen Warmwater Shrimp 
from Viet Nam was inconsistent with U.S. obligations under Article 11.3 of the Anti-Dumping Agreement in that; (1) it relied on WTO-incons istent margins of dumping which constituted an 
improper establishment of the facts and prevented an unbiased and objective evaluation of the 
proper facts; and (2) it relied on a volume pres umption which itself is not supported by the facts 
and its improper evaluation of changes in volume based on the facts of the review. WT/DS429/R 
 
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  initiated before the expiry of five years fr om the date of the imposition of the duty; 
second, that in the review the authorities determine that the expiry of the duty would be likely to lead to continuation or recurrence of dumping ; and third, that in the 
review the authorities determine that the expi ry of the duty would be likely to lead to 
continuation or recurrence of injury . If any one of these conditions is not satisfied, the 
duty must be terminated.
438 
7.305.  In the same dispute, the Appellate Body noted that Article 11.3 does not prescribe any 
specific methodology to be applied in making a "likelihood" determination, and that this provision 
does not identify any particular factors that authorities must take into account in making such a determination.
439 However, the Appellate Body did provide some guidance to authorities. In 
particular, it indicated that when making a determination pursuant to Article 11.3, investigating 
authorities "must undertake a forward-looking analysis and seek to resolve the issue of what 
would be likely to occur if the duty were terminated".440 In addition, Article 11.3 assigns an active 
rather than a passive decision-making role to the authorities; according to the Appellate Body, the 
words "review" and "determine" in Article 11.3 suggest that authorities conducting a sunset review 
must act with an "appropriate degree of diligence" and arrive at a "reasoned conclusion on the basis of information gathered as part of a process of reconsideration and examination". Moreover, 
in view of the use of the word "likely" in Articl e 11.3, an affirmative likelihood determination may 
be made only if the evidence demonstrates that dumping would be probable  if the duty were 
terminated — and not simply if the evidence suggests that such a result might be possible  or 
plausible .
441 Finally, a firm evidentiary foundation is required in each case for a proper likelihood 
determination, and such a determination "cannot be based solely on the mechanistic application of 
presumptions".442 
7.306.  Of direct relevance to Viet Nam's claims in the present dispute is the conclusion of panels 
and the Appellate Body in prior disputes that, wh ile there is no obligation under Article 11.3 for 
investigating authorities to calculate or rely on dumping margins in considering likelihood-of-dumping, should an investigating authority choose to rely upon dumping margins in making a 
likelihood-of-dumping determination, the calculation of those margins must conform to the 
disciplines of the relevant provisions of the covered agreements. Reliance on margins calculated in a manner inconsistent with relevant provisions of the covered agreements results in a violation not only of those provisions, but also of Article 11.3.
443 We agree with this interpretation of 
Article 11.3.  
7.307.  It is undisputed in this case that the USDOC relied, in its likelihood-of-dumping 
determination, on certain margins that had been calculated with zeroing.444 In particular, it is not 
disputed between the parties that the USDOC relied on the margins of dumping calculated for the 
mandatory respondents in the fourth administrati ve review. We have found above that the USDOC 
used zeroing in calculating these dumping margins and that for this reason, these margins are 
inconsistent with Article 9.3 of the Anti-D umping Agreement and VI:2 of the GATT 1994. 
Moreover, we note that the final determinations in the second and third administrative reviews indicate that the USDOC used zeroing in calculating the margins of dumping for mandatory respondents in these reviews.
445 However, the USDOC does not seem to have relied on these 
                                               
438 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 104. (emphasis original) 
439 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 123. 
440 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 105. 
441 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 111. 
442 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 178 
443 Appellate Body Reports, US – Corrosion-Resistant Steel Sunset Review , para. 127, and US – 
Zeroing (Japan) , para. 185; Panel Report, US – Continued Zeroing , paras. 7.195–7.196 (upheld in 
Appellate Body Report, US – Continued Zeroing , paras. 394 and 395(v)). 
444 The preliminary and final determinations do not list each of the margins of dumping which the 
USDOC relied upon, but we read the USDOC's reference to  the "positive rates for many respondents during the 
four completed administrative reviews" (Issues and Decision Memorandum accompanying the preliminary 
likelihood-of-dumping determination in the sunset review, Exhibit VN-12, p. 5) as indicating that the USDOC 
relied on all the non-zero and/or non- de minimis  rates assigned in the first fo ur administrative reviews. See 
also the USDOC's reference in its final determinatio n to the "positive dumping margins found for many 
companies reviewed". (Issues and Decision Memorand um accompanying the final likelihood-of-dumping 
determination in the sunset review, Exhibit VN-14, p. 5.) 
445 See above, footnote 84, and fina l determinations in the second an d third administrative reviews, 
Exhibit VN-72; final determination in the four th administrative review, Exhibit VN-13). The US – Shrimp 
(Viet Nam)  panel reached a similar conclusion  and found that the margins were inconsistent with Article 2.4 of WT/DS429/R 
 
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  margins or on the margin calculated for Fish One in the first administrative review, as each of 
these margins was either zero or de minimis .446 
7.308.  The USDOC also relied on the separate rate applied by the USDOC in the various 
proceedings. Viet Nam asserts that the separate  rate applied in each of the proceedings is 
inconsistent with the United States' obligations. Viet Nam relies, in particular on the findings of the 
United States Court of International Trade in Amanda Foods  and on the findings of the US – 
Shrimp (Viet Nam)  panel, which found that the separate rates applied in the second and third 
administrative reviews were inconsistent with, respectively, US law and Article 9.4.447 However, a 
ruling by a domestic court of a Member, applying the domestic law of that Member, cannot establish an inconsistency with WTO obligations. Moreover, for reasons set out above
448, we are 
reluctant to incorporate, without more scrutiny of the facts and parties' arguments, the factual 
findings reached by a panel in a prior dispute.  
7.309.  Viet Nam does also attempt to establish the WTO-inconsistency of the separate rate 
applied in the first three administrative reviews independently. We note that the separate rate 
of 4.57% applied in the original investigation corresponded to the weighted average of the 
margins of dumping for the three mandatory respondents in the investigation, which themselves had been calculated with zeroing.
449 The same rate was then applied in the first, second and 
third administrative reviews.450 The separate rate of 3.92% applied in the fourth administrative 
review corresponded to the simple average of th e margins for mandatory respondents, which were 
calculated with zeroing. We have sympathy for Viet Nam's argument that a separate rate calculated on the basis of margins calculated with zeroing would be WTO-inconsistent.
451 We note 
however that all margins for mandatory respondents in the first, second and third administrative 
reviews were either zero, de minimis , or based on facts available. In such a situation, Article 9.4 
does not indicate how to calculate the relevant ceiling; the lacuna  in Article 9.4 identified in prior 
panels and the Appellate Body reports arises.452 In the absence of a more developed discussion by 
the parties as to the relevant disciplines applicable under Article 9.4 in such circumstances and as to whether the use of margins calculated with zeroing to derive a rate which is subject to the 
Article 9.4 ceiling results in an inconsistency with that provision, and because it is ultimately not 
necessary for us to determine the WTO-consistency of all the rates relied upon by the USDOC, we 
do not reach a final conclusion as to whether the separate rates applied in the four first administrative reviews were determined consistently with the provisions of the Agreement.
453  
                                                                                                                                               
the Anti-Dumping Agreement. (Panel Report, US – Shrimp (Viet Nam) , paras. 7.80, 7.97). The United States 
does not contest that the USDOC used zeroing in calc ulating the dumping margins for mandatory respondents 
in the original investigation and the first three admi nistrative reviews (United States' response to Panel 
question No. 37, para. 123). Viet Nam admits that the margins of dumping for the two mandatory respondents 
in the first administrative review were established consistently with the disciplines of the Agreement. 
446 Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination in the 
sunset review, Exhibit VN-14, p. 4. 
447 Viet Nam's first written submis sion, para. 272 (referring to Amanda Foods (Vietnam) Ltd. v. 
United States , Slip Op. 09-106 (Ct. In'tl Trade, 17 June 2010) and Amanda Foods (Vietnam) Ltd. v. 
United States , Slip Op. 10-69 (Ct. In'tl Trade, 29 September 2009); Amanda Foods (Vietnam) Ltd., et. al v. 
United States , Court No. 08-00301 Slip Op. 10-69 (Ct. In'tl Trade, 17 June 2010): Final Results of 
Redetermination Pursuant to Court Remand; Amanda Foods (Vietnam) Ltd. et. al v. United States , Consol. 
Court No. 09-00431, 807 F. Supp. 2d 1332 (Ct. In'tl Trade, 2011) Final Results of Redetermination Pursuant to Court Remand, Exhibits VN-52-54); Viet Nam' second written submission, para 106 (referring to Panel Report, US – Shrimp (Viet Nam) , paras. 7.218-7.227). 
448 See above, para. 7.39.   
449 Final determination in the original investigation, Exhibit VN-04, p. 71009. 
450 Final determination in the first administrative review, p. 52054, Exhibit VN-72; final determination in 
the second administrative review, p. 52275 and Issues  and Decision Memorandum accompanying the final 
determination in the second administrative review, Comment 6, Exhibit VN-72; and final determination in the third administrative review, p. 47195, Exhibit VN-72. 
451 Viet Nam's second written submission, para. 106. 
452 Appellate Body Reports, US – Hot Rolled Steel , para. 126; US – Zeroing (EC) (Article 21.5 – EC) , 
para. 452. The margins calculated by the USDOC with ze roing in the first, second and third administrative 
review were all zero, de minimis , or based on facts available. 
453 The panel in US – Shrimp (Viet Nam)  found that the separate rates applied in the second and 
third administrative reviews were inconsistent with Article 9.4 because in these reviews, the USDOC 
determined the maximum allowable "all others" rate, which it applied as "all others rate" (i.e. separate rate), 
on the basis of margins of dumping that themselves had been calculated with zeroing in the original 
investigation. (Panel Report, US – Shrimp (Viet Nam) , paras. 7.217 and 7.227.) WT/DS429/R 
 
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  7.310.  Finally the USDOC relied on the rate of 25.76% assigned to the Viet Nam-wide entity in 
the first four administrative reviews. We have found that the Viet Nam-wide rate of 25.76% applied in the fourth administrative review was inconsistent with Articles 6.10, 9.2, and 9.4. However, the parties have not engaged with the facts in the first, second and third administrative 
reviews and we are reluctant to conclude, without more, that the application of the same rate in 
those segments of the Shrimp  proceedings was WTO-inconsistent.  
7.311.  In sum, in its likelihood-of-dumping determination, the USDOC relied on certain WTO-
inconsistent margins of dumping or rates, in particular: (i) the margins of dumping for the 
mandatory respondents in the fourth administrative  review which were calculated with zeroing and 
therefore inconsistent with Article 9.3 of the An ti-Dumping Agreement and VI:2 of the GATT; and 
(ii) the Viet Nam-wide entity rate applied in the fourth administrative review, which is inconsistent 
with Articles 6.10, 9.2 and 9.4. 
7.312.  In light of our understanding of the oblig ations under Article 11.3 as described above, the 
USDOC's reliance on these WTO-inconsistent  margins renders its likelihood-of-dumping 
determination inconsistent with Article 11.3 of the Anti-Dumping Agreement. 
7.313.   In addition to arguing that the margins calculated with zeroing and the NME-wide entity 
rate are WTO-consistent, argument s which we have rejected above
454, the United States' response 
to Viet Nam's arguments focuses on the fact that the USDOC relied on certain margins – those for 
the two mandatory respondents in the first admini strative review – the WTO-consistency of which 
is not contested. Moreover, the United States relies on the alleged admission by Vietnamese producers/exporters before the USDOC that some dumping existed after the issuance of the 
order.
455 
7.314.  In making this argument, the United Stat es relies on the statement of the Appellate Body 
in US – Anti-Dumping Measures on Oil Country Tubular Goods  that its finding in US – Corrosion-
Resistant Steel Sunset Review : 
does not stand for the proposition that a WTO-inconsistent methodology used for the 
calculation of a dumping margin will, in and of itself, taint a sunset review 
determination under Article 11.3. The only way the use of such a methodology would 
render a sunset review determination inconsistent with Article 11.3 is if the investigating authority relied upon  that margin of dumping to support its likelihood-of-
dumping or likelihood-of injury determination.
456 
7.315.  On its face, this statement merely confir ms that it is the fact of relying on a WTO-
inconsistent margin in the sunset review, rather than the mere calculation of a WTO-inconsistent margin in one of the underlying administrative reviews, that gives rise to a violation of 
Article 11.3.
457 We agree with this view. 
7.316.  We understand the United States to be arguing that the USDOC's reliance on certain WTO-
inconsistent margins of dumping does not necessarily render its likelihood determination 
inconsistent with Article 11.3, and that we should uphold the determination if WTO-consistent 
factors relied upon by the USDOC in arriving at its determination "form an independent basis to demonstrate the continuing need for the discipline of the order".
458 The United States considers 
that irrespective of the USDOC's reliance on dumping margins that Viet Nam alleges are WTO-
inconsistent, the determination stands on the basi s of: (i) the alleged admission before the USDOC 
that some dumping continued after the imposition of the order; (ii) the presumably WTO-
                                               
454 See above paras. 7.81.  and 7.208.   
455 United States' first written submission, paras. 247-248; response to Panel question No. 35, 
para. 119. 
456 Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods,  para. 181 
(quoted in United States' first written submission, para. 270). (emphasis original) 
457 In US – Anti-Dumping Measures on Oil Country Tubular Goods , the panel found that, although the 
USDOC reported to the USITC the dumping margins at issue as "margins likely to prevail" in the event that the 
order were revoked, it did not rely  on those margins in its likelihood determ ination, but rather relied on import 
volumes. The panel's findings are de scribed in Appell ate Body Report, US – Anti-Dumping Measures on Oil 
Country Tubular Goods,  paras. 174-175. 
458 United States' first written submission, footnote 355; response to Panel question No. 34(a), 
para. 116. WT/DS429/R 
 
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  consistent margins for the two mandatory respon dents in the first administrative review; and 
(iii) the USDOC's finding that import volumes fell after the initiation of the original investigation and did not return to pre-investigation levels.  
7.317.  We agree with the United States that an investigating authority's reliance on WTO-
inconsistent factors may not always be fatal to the consistency of a likelihood-of-dumping 
determination with Article 11.3. This may be the case, for instance, if there are separate independent bases for a determination, at least one of which is not inconsistent with WTO 
obligations, and a reviewing panel can conclude that the challenged determination rested on each 
of those multiple independent bases. Here, however, the determination contains no indication that the USDOC considered that the rate applied to two uncooperative companies and the declining import volumes constituted an independent basis or bases for the USDOC's likelihood-of-dumping 
determination or that the determination rested on such basis or bases. To be sure, there is 
language (albeit qualified) in the USDOC's likelihood-of-dumping determination suggesting that, in general, the USDOC would reach an affirmative likelihood-of-dumping determination where any 
dumping continues after the imposition of the order, which suggests that the first two factors 
referred to by the United States in this regard could form the basis for an affirmative determination.
459 It is, however, clear from the determination itself that the USDOC's consideration 
of the existence of dumping in this instance rests upon all the different margins of dumping – 
margins for mandatory respondents, separate rate and Viet Nam-wide entity rate that – it had 
calculated in each of the reviews. The USDOC discusses these various dumping margins together, 
and does not consider the two margins for the uncooperative respondents separately, other than 
w h e n  r e b u t t i n g  a n  a r g u m e n t  o f  V i e t n a m e s e  i n t e r e s t e d  p a r t i e s .460 Hence, we are unable to 
conclude in the present instance that the USDOC's determination rested upon WTO-consistent bases that were separate and independent from the WTO-inconsistent margins and rates upon 
which it relied.
461  
7.318.  We arrive at a similar conclusion with respect to the United States' argument concerning 
the USDOC's evaluation of import volumes. The preliminary and final determinations indicate that 
the USDOC considered evolutions in import volumes together with dumping margins in an 
integrated manner.462 There is no indication that the USDOC examined whether the changes in 
                                               
459 The preliminary and final likelihood-of- dumping determinations indicate that: 
The Department normally will determine that revoca tion of an antidumping du ty order is likely to 
lead to continuation or recurrence of dumping where (a) dumping continued at any level above 
de minimis after the issuance of the order , (b) imports of the subject merchandise ceased after 
the issuance of the order, or (c) dumping was eliminated after the issuance of the order and 
import volumes for the subject merchandise declined significantly. However  the SAA at 889-90, 
the House Report at 63, and the Se nate Report at 52 state that, " declining (or no) dumping 
margins, accompanied by steady or increasing imports may indicate that foreign companies do 
not have to dump  to maintain market share in the United States and that dumping is less likely 
to continue or recur if the order were revoked".  
(Issues and Decision Memorandum accompanying th e preliminary likelihood-of-dumping determination 
in the sunset review, Exhibit VN-12, p. 5; Issues and Decision Memorandum  accompanying the final likelihood-
of-dumping determination in the sunset revi ew, Exhibit VN-14, p. 2.) (italics added) 
460 We note that Viet Nam submits a lengthy argumentation regarding, inter alia , the reasons why the 
two mandatory respondents did not cooperate in the first administrative review and the existence of "safety" 
margins for mandatory respondents showing, according to Viet Nam, that dumping was unlikely to recur. 
(Viet Nam's first written submission, paras. 276-277, and opening statement at first substantive meeting, paras. 54-55.) In light of our findings, we do not co nsider it necessary to consider these arguments. 
461 We recall that our task is to determine whethe r the challenged likelihood-of-dumping determination 
is consistent with the Agreement; we are not to engage in speculation as to whether the USDOC could, or would, have reached the same result for diffe rent reasons. 
462 See Issues and Decision Memorandum accompanying the final likelihood-of-dumping determination 
in the sunset review, Exhibit VN-14, p. 4: 
The Department determines that both the positive dumping margins found for numerous 
companies reviewed, and the decline in import volu me during the sunset review period following 
the initiation of the original investigation, consistent with the language of the statute and reflective of our practice as di scussed in the statute and the Statement of Administrative Action 
("SAA"), are highly probative that dumpin g is likely to continue or recur. 
See also p. 6 of Exhibit VN-14: 
For these reasons, the Department  continues to find that the ev idence on the record indicates 
that dumping of shrimp from Vietnam is likely to continue, or recur, absent the discipline of the 
antidumping duty order because dumping occurred after the issuance of the order, and import 
volumes fell and have not recovered to the levels prior to the initiation of the investigation.  WT/DS429/R 
 
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  import volumes alone justified a determination of likelihood-of-dumping. For the same reasons as 
set out above, we cannot conclude that the USDOC' s determination rested on its analysis of the 
evolution of import volumes independent of its consideration of dumping. 
7.319.  Given this conclusion, we do not consider it necessary or appropriate to address Viet Nam's 
argument that the USDOC's likelihood-of-dumping determination is inconsistent with Article 11.3 
due to the USDOC's failure to carry out an unbiased and objective evaluation of the facts pertaining to the volume of imports, and fo r disregarding other factors in its analysis.
463 
7.320.  In light of the foregoing, we find that the USDOC's likelihood-of-dumping determination in 
the first sunset review is inconsistent with the United States' obligations under Article 11.3 of the Anti-Dumping Agreement. 
7.7  Claims with respect to company-specific revocations 
7.7.1  Introduction 
7.321.  Viet Nam's claims concerns the denial, in the third, fourth, and fifth administrative reviews 
under the Shrimp  order, of requests for company-specific revocations submitted by Vietnamese 
respondents.
464 Viet Nam claims that the United States acted inconsistently with Articles 11.1 
and 11.2 of the Anti-Dumping Agreement due to the USDOC's refusal to revoke the Shrimp  anti-
dumping order with respect to the Vietnamese producers/exporters that submitted these 
requests.465 
7.7.2  Factual background 7.322.  Section 751(d) of the US Tariff Act of 1930, as amended (codified at 19 U.S.C. §1675 (d)), 
provides that the USDOC (which the statute refers to as the "administering authority") may 
"revoke, in whole or in part, a countervailing duty  order or an antidumping duty order or finding, 
or terminate a suspended investigation, after review  under subsection (a) or (b) of this section". 
19 U.S.C. §1675 subsection (a) governs the conduct of administrative reviews, whereas 
subsection (b) provides authority for the US DOC to conduct changed circumstances reviews.
466  
                                                                                                                                               
Moreover, we find that the other factors allege d by the Vietnamese Respondents do not affect 
this finding. 
463 We note that the United States asserted in a comment on Viet Nam's closing statement at the 
second panel meeting made in the context of its commen ts on Viet Nam's responses to Panel questions after 
the second meeting of the Panel, that the USDOC has reopened the record of the sunset review based on new 
information of fraud that was not available at the time  of the sunset review. (United States' comments on 
Viet Nam's responses to Panel questions after th e second meeting, para s. 91-96 (referring to Certain Frozen 
Warmwater Shrimp from the Socialist Republic of Vietnam:  Notice of Reopening of the First Five-Year "Sunset" 
Review of the Antidumping Duty Order , 79 Fed. Reg. 15310 (19 March 2014), Exhibit US-97). The 
United States asserted that it was introducing this new factual information before  the Panel "[g]iven that 
Viet Nam has chosen to make an issu e of the conduct of Vietnamese shrimp  exporters" (Viet Nam had asserted 
in the context of its closing statement at the second meeting of the Panel that Vietnamese shrimp exporters 
had "played by the rules"). Because we do not consider  that they are relevant to our examination of the 
consistency with Article 11.3 of the USDOC's first sunset review determination, we do  not consider it necessary 
to decide whether the United States properly introduced these new facts before the Panel, but nevertheless note that para. 8 of the Panel's Working Procedures prov ides that, with certain exce ptions – e.g. for purposes 
of rebuttal, answers to questions or comments the ot her party's answers – the parties were to submit all 
factual evidence to the Panel no later th an during the first substantive meeting. 
464 Below, in paras. 7.356.  -7.361.  , we examine an objection raised by the United States to Viet Nam's 
claims with respect to the USDOC's actions in the third administrative review. 
465 Viet Nam's first written submission, para. 356. In its first written submission, Viet Nam asserted that 
absent revocation, individually-examined producers/exporter s "are being denied their ri ghts under Articles 2.1, 
2.4.2, 9.3". However Viet Nam clarified that it is only pursuing claims of violation under Articles 11.1 and 11.2 (Viet Nam's response to Panel question No. 49, para. 168). 
466 Section 751 of the Act; 19 U.S.C. § 1675, Exhibit VN-47. 19 U.S.C. § 1675(b) provides, inter alia , 
that: 
(b) Reviews based on changed circumstances 
(1) In general 
Whenever the administering authority [i.e. the USDOC] or the Commission [i.e. the USITC] receives information concerning, or a reques t from an interested party for a review of— WT/DS429/R 
 
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  7.323.  19 C.F.R. §351.222 of the USDOC Regulations sets forth rules and procedures for the 
revocation of anti-dumping duty orders by the USDO C. At the time of the administrative reviews at 
issue467, an exporter or producer could request revocation of an order with regard to itself under 
Section 751(a) of the Act and Section 351.222(b) of the USDOC Regulations.468 Section 351.222, 
"Revocation of orders; termination of suspended investigations", at the time provided as follows: 
(a) Introduction. ''Revocation'' is a term of art that refers to the end of an 
antidumping or countervailing proceeding in which an order has been issued. 
''Termination'' is the companion term for the end of a proceeding in which the 
investigation was suspended due to the a cceptance of a suspension agreement. 
Generally, a revocation or termination may occur only after the Department or the Commission have conducted one or more reviews under section 751 of the Act. This 
section contains rules regarding requirements for a revocation or termination; and 
procedures that the Department will follow in determining whether to revoke an order or terminate a suspended investigation. 
(b) Revocation or termination based on absence of dumping.  
(1)(i) In determining whether to revoke an antidumping duty order or terminate a 
suspended antidumping investigation, the Secretary will consider: 
(A) Whether all exporters and producers cove red at the time of revocation by the 
order or the suspension agreement have sold the subject merchandise at not less than normal value for a period of at least three consecutive years; and 
(B) Whether the continued application of the antidumping duty order is otherwise 
necessary to offset dumping. 
(ii) If the Secretary determines, based upon the criteria in paragraphs (b)(1)(i)(A) and 
(B) of this section, that the antidumping du ty order or suspension of the antidumping 
duty investigation is no longer warranted, the Secretary will revoke the order or 
terminate the investigation. 
(2)(i) In determining whether to revoke an antidumping duty order in part, the 
Secretary will consider: 
(A) Whether one or more exporters or producers covered by the order have sold the 
merchandise at not less than normal value for a period of at least three consecutive years; 
                                                                                                                                               
(A) a final affirmative determinat ion that resulted in an anti dumping duty order under this 
subtitle or a finding under the Antidumping Act, 1921, or in a countervailing duty order under 
this subtitle or section 1303 of this title, (B) a suspension agreement accepted under section 1671c or 1673c of this title, or (C) a final affirmative determin ation resulting from an investigation continued pursuant to 
section 1671c(g) or 1673c(g) of this title, which shows changed circumstances sufficient to warrant a review of such determination or 
agreement, the administering authority or the Commission (as the case may be) shall conduct 
a review of the determination or agreement after publishing notice of the review in the Federal 
Register. … (4) Limitation on period for review In the absence of good cause shown— … (B) the administering authority may not review a determination made under section 1671d(a) or 1673d(a) of this title, or an investigation suspended under section 1671c or 1673c of this title, less than 24 months after the date  of publication of notice of th at determination or suspension. 
467 As noted below, the USDOC subsequently amende d its regulations. However, Viet Nam's claim 
pertains to the USDOC's application and interpretation of Section 351.222(b) as it existed prior to these modifications and we therefore consider the statutory and regulatory scheme as it ex isted at the time of the 
USDOC actions at issue. 
468 Section 751(a) of the Act; 19 U.S.C. § 1675(a) and (d), Exhibit VN-47, 19 C.F.R. 351.222(b), 
Exhibit VN-58. WT/DS429/R 
 
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  (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 order, as long as any exporter or producer is subject to the order, if the Secretary concludes 
that the exporter or producer, subseque nt to the revocation, sold the subject 
merchandise at less than normal value; and 
(C) Whether the continued application of the antidumping duty order is otherwise 
necessary to offset dumping. 
(ii) If the Secretary determines, based upon the criteria in paragraphs (b)(2)(i)(A) 
through (C) of this section, that the antidu mping duty order as to those producers or 
exporters is no longer warranted, the Secretary will revoke the order as to those 
producers or exporters. 
(3) Revocation of nonproducing exporter. I n  t h e  c a s e  o f  a n  e x p o r t e r  t h a t  i s  n o t  the producer of subject merchandise, the 
Secretary normally will revoke an order in part under paragraph (b)(2) of this section 
only with respect to subject merchandise produced or supplied by those companies that supplied the exporter during the time-period that formed the basis for the 
revocation. 
… 
(d) Treatment of unreviewed intervening years 
(1) In general. The Secretary will not revoke an order or terminate a suspended 
investigation under paragraphs (b) or (c) of this section unless the Secretary has 
conducted a review under this subpart of th e first and third (or fifth) years of the 
three-and five-year consecutive time periods referred to in those paragraphs. 
The Secretary need not have conducted a review of an intervening year ( see 
paragraph (d)(2) of this section).  However, except in the case of a revocation or 
termination under paragraph (c)(1) of this section (government abolition of countervailable subsidy programs), before revoking an order or terminating a 
suspended investigation, the Secretary must be satisfied that, during each of the 
three (or five) years, there were exports to the United States in commercial quantities of the subject merchandise to which a revocation or termination will apply. 
(2) Intervening year. ''Intervening year'' means any year between the first and final 
year of the consecutive period on which revocation or termination is conditioned. 
(e) Request for revocation or termination  
(1) Antidumping proceeding. 
During the third and subsequent annual anniversary months of the publication of an 
antidumping order or suspension of an an tidumping investigation, an exporter or 
producer may request in writing that the Secretary revoke an order or terminate a 
suspended investigation under paragraph (b) of this section with regard to that person 
if the person submits with the request: 
(i) The person's certification that the person sold the subject merchandise at not less 
than normal value during the period of review described in § 351.213(e)(1), and that 
in the future the person will not sell the merchandise at less than normal value; 
(ii) The person's certification that, during each of the consecutive years referred to in 
paragraph (b) of this section, the person sold the subject merchandise to the 
United States in commercial quantities; and  WT/DS429/R 
 
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  (iii) If applicable, the agreement regardin g reinstatement in the order or suspended 
investigation described in paragraph (b)(2)(iii) of this section. 
… (f) Procedures. (1) Upon receipt of a timely request for revocation or termination 
under paragraph (e) of this section, the Secretary will consider the request as 
including a request for an administrative review and will initiate and conduct a review under § 351.213. 
(2) In addition to the requirements of  § 351.221 regarding the conduct of an 
administrative review, the Secretary will: 
(i) Publish with the notice of initiation under § 351.221(b)(1), notice of ''Request for 
Revocation of Order (in part)'' or ''Request for Termination of Suspended 
Investigation'' (whichever is applicable); 
(ii) Conduct a verification under § 351.307; (iii) Include in the preliminary results of review under § 351.221(b)(4) the Secretary's 
decision whether there is a reasonable basis to believe that the requirements for 
revocation or termination are met; 
(iv) If the Secretary decides that there is a reasonable basis to believe that the 
requirements for revocation or termination are met, publish with the notice of 
preliminary results of review under § 351.221(b)(4) notice of ''Intent to Revoke Order (in Part)'' or ''Intent to Terminate Suspended Investigation'' (whichever is applicable); 
(v) Include in the final results of review under §351.221(b)(5) the Secretary's final 
decision whether the requirements for revocation or termination are met; and 
(vi) If the Secretary determines that the requirements for revocation or termination 
are met, publish with the notice of final results of review under § 351.221(b)(5) notice 
of ''Revocation of Order (in Part)'' or ''Termination of Suspended Investigation'' 
(whichever is applicable).
 
(3) If the Secretary revokes an order in whole or in part, the Secretary will order the 
suspension of liquidation terminated for the merchandise covered by the revocation on 
the first day after he period under review, and will instruct the Customs Service to release any cash deposit or bond. 
7.324.  In 2012, the USDOC amended its regulations to eliminate 351.222(b)(2).
469  
7.325.  Sections 351.216 and 351.222(g) of the USDOC Regulations, which were not affected by 
the 2012 modification, govern the conduct of changed circumstances reviews.470 
Section 351.222(g) provides as follows: 
(g) Revocation or termination based on changed circumstances. 
(1) The Secretary may revoke an order, in whole or in part, or terminate a suspended 
investigation if the Secretary concludes that: 
(i) Producers accounting for substantially all of the production of the domestic like 
product to which the order (or the part of the order to be revoked) or suspended investigation pertains have expressed a lack of interest in the order, in whole or in part, or suspended investigation ( see section 782(h) of the Act); or 
                                               
469 Modification to Regulation Concerning the Re vocation of Antidumping and Countervailing Duty 
Orders, 77 Fed. Reg. 29875 (21 May 2012), Exhibit VN-59. The amendment took effect on 20 June 2012. 
470 19 C.F.R. 351.216, Exhibit US-91; 19 C.F.R. 351.222(g), Exhibit VN-58. WT/DS429/R 
 
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  (ii) Other changed circumstances sufficient to warrant revocation or termination exist. 
(2) If at any time the Secretary concludes from the available information that changed 
circumstances sufficient to warrant revocation or termination may exist, the Secretary will conduct a changed circumstances review under § 351.216. … 
7.326.  Section 351.216 sets forth the procedures applicable in changed circumstances reviews.
471 
7.327.  For ease of reference, in our discussion below, we refer to revocation of the "duty" in its 
entirety (with respect to all foreign producers/exporters, including under Section 351.222(b)(1)) 
as an "order-wide" revocation and to revocation of a "duty" for an individual producer/exporter 
(including pursuant to Section 351.222(b)(2)) as a "company-specific" revocation.  
7.328.  In the third, fourth and fifth administrative reviews under the Shrimp  order, a number of 
Vietnamese producers/exporters requested company-specific revocations pursuant to 
Section 751(a) of the Act and Section 351.222(b) of the USDOC Regulations. No requests for 
revocation under these provisions were made in the sixth administrative review.472 
7.329.  Fish One requested revocation of the order,  as it concerned that company, in the context 
of the third administrative review473, based on its "likely" three consecutive years of sales "at not 
less than normal value". Fish One had received an individual margin of zero in the first administrative review, and was not selected as mandatory respondent but received a rate of 
zero as separate rate in the second administrative review.
474 Fish One's request stated that it was 
the USDOC's practice to treat companies that were not mandatory respondent in the interim period (here, the second review) the same as if th ey had obtained a zero margin for the period of 
review, and stated that it believed that it would again qualify for a zero margin in the 
third review.
475  
7.330.  In its preliminary determination in the third administrative review, the USDOC determined 
not to revoke the order in respect of Fish One because Fish One had not been selected for 
individual examination.476 The final determination confirmed the preliminary determination. In the 
Issues and Decision Memorandum accompanying it s final determination, the USDOC stated that:  
                                               
471 Order-wide revocation is also authorized under 19 U.S.C. § 1677m(h)(2) if producers accounting for 
substantially all of the production of the domestic like product express a lack of interest in the order 
(Exhibit US-95). Such revocation requests are examined in changed circumstances reviews. 
472 Notice of initiation for the sixth administrative review, Exhibit VN-16. 
473 Fish One's request for revocation in the third administrative review, Exhibit VN-82. 
474 This is because in the first, second and third administrative reviews, all mandatory respondents 
received a margin of zero, de minimis , or based on facts available. Since US law provided that the USDOC 
could not base the separate rate on these types of margins, but provided that the USDOC could resort to an alternative methodology, the USDOC deci ded to assign the most recent margin  calculated as separate rate. For 
most separate rate respondent s, this was the separate rate of 4.57% calculated in the original investigation. 
For Fish One, in the third administra tive review, this was a rate of zero that had been calculated for that 
company in the first administrative review.   
475 Fish One's request for revocation  in the third administrative review, Exhibit VN-82. Fish One's 
request, as well as each of the other requests submitted by Vietnamese producers/exporters, included a 
request to be included in the administrative review, and stated that they attached the certifications required by Section 351.222(e)(1) and, where relevant, the certifications required under the Certain Fresh Cut Flowers 
from Colombia  procedure discussed below. Viet Nam provided th e Panel with the text of the requests but only 
included in the documents submitted to the Panel the certifications provided by Camimex, Phuong Nam and Grobest/I-Mei in support of their requests for revocati on in the fifth administra tive review (requests for 
revocation submitted in the fifth administrative review, Exhibit VN-84). 
476 Preliminary determination in the third administrative review, Exhibit VN-61, p. 10011. The USDOC 
reasoned that: (i) the Act affo rds it broad discretion to limit the number  of respondents selected for individual 
review when individual examination of all companies under review is impracticable, and (ii) although the 
Regulations setting out rules and requir ements for revocation of an order we re silent on their applicability in 
situations in which the USDOC limited its examination, the USDOC did not interpret them as requiring it to conduct an individual examination of Fish One given th at it had limited its examination and Fish One was not 
one of the companies selected for individual examinatio n. The USDOC added that to interpret the Regulations 
as Fish One proposed would undermine its authority under the Act to limit its examination in cases involving a 
large number of producers/exporters, and would requir e it to conduct individual reviews for any company 
requesting revocation. WT/DS429/R 
 
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  For the final results of the instant review, we continue to find that our preliminary 
determination with respect to Fish One's revocation request is not contrary to the statute or Department policy. Because Fish One was not selected for individual review pursuant to 777A(c)(2)(B) of the Act, it was treated as a cooperative separate-rate 
respondent, and has received a separate rate pursuant to the statute and the 
Department's policy. The statute does not require the Department to select exporters for revocation purposes within the context of  section 777A(c)(2)(B) of the Act. Rather, 
pursuant to that statutory provision, because of the large number of companies with 
review requests, the Department selected respondents for individual examination that could reasonably be examined. That Fish One requested revocation pursuant to the Department's regulations does not require the Department to individually review Fish 
One for revocation purposes, when the Department, as it did here, limits the 
individually reviewed companies under the statute.
477 
7.331.  Seventeen Vietnamese respondents requested company-specific revocations in the context 
of the fourth administrative review: 
a. Fish One again requested a company-specific revocation of the order, based on its "likely 
four consecutive years of sales at not less than normal value". Fish One recalled that it 
had been selected for individual examination and had received a zero margin in the 
first administrative review, had not been selected for individual examination in the second and third administrative reviews, although it had received a margin of zero (as separate rate) in the second administrative review. In its request, Fish One stated that it 
was the USDOC's practice to treat companies that were not mandatory respondents in 
the interim period the same as if they had obtained a zero margin for the period of review, and indicated that it expected to receive again a zero margin in the 
third administrative review if selected for individual examination, and believed it would 
again qualify for a zero rate in the fourth administrative review.
478  
b. Camimex and Minh Phu requested that the USDOC revoke the order with respect to 
them based on their likely three consecutive years of sales at not less than normal 
value. Their joint request stated that they both had been selected as mandatory respondents in the second and third administrative reviews, had received zero or de 
minimis  margins in the second administrative review, and stated that they believed that 
they would again qualify to receive a zero or de minimis  margin in the 
third administrative review, and if selected for individual examination in the fourth review, could demonstrate that they did not engage in dumping for 
three consecutive years.
479  
c. In the same submission to the USDOC, 13 co mpanies that had never been selected as 
mandatory respondents but received the separate rate in both the second and 
third administrative reviews also requested revocation from the order. In their request, 
these companies referred to a procedure for addressing requests for revocation by companies not selected as mandatory resp ondents developed by the USDOC in its 
                                               
477 Issues and Decision Memorandum accompanying th e final determination in the third administrative 
review, Exhibit VN-72, p. 62.  
478 Requests for revocation submitted in the fourth  administrative review, Exhibit VN-83 (Fish One's 
request for revocation). Fish One's request stated that it attached certifications to the effect that it: (i) sold the 
subject merchandise in the United States at not less than normal value during the fourth review period; 
(ii) sold the subject merchandise in the United States  in commercial quantities ; and (iii) agreed to its 
immediate reinstatement in the anti-d umping order, should the USDOC co nclude that it sold the subject 
merchandise at less than normal value subsequent to revocation. 
479 Requests for revocation submitted in the fourth administrative review, Ex hibit VN-83 (request for 
revocation submitted by 15 re spondents, including Minh Phu and Camimex) . The request stated that it included 
certifications stating that Minh Phu an d Camimex: (i) sold the subject merchandise in the United States at not 
less than normal value during the fourth review period; (ii) sold the subject merchandise in the United States 
in commercial quantities during the se cond, third and fourth review periods;  and (iii) agreed to their immediate 
reinstatement in the anti-dumping order, should the USDOC conclude that they sold the subject merchandise at less than normal value subsequent to revocation. WT/DS429/R 
 
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  proceeding on Certain Fresh Cut Flowers from Colombia . The request asserted that 
these 13 companies met the criteria set forth by the USDOC in that proceeding.480  
d. Grobest also requested revocation from the order, stating that it had requested to be 
reviewed but was not selected as a mandatory respondent in the second and third 
administrative reviews. Grobest also referred to the approach proposed by the USDOC in 
Certain Fresh Cut Flowers from Colombia  for considering revocation of companies not 
selected for individual examination and stated that it met each criterion set forth by the 
USDOC in that proceeding.481 
                                               
480 The request cited the following language from the USDOC's final determination in Certain Fresh Cut 
Flowers from Colombia : 
we have decided to adopt the following procedure for addressing requests for revocation by small 
companies in this proceeding. We believe this pr ocedure addresses many of the concerns raised 
by the parties and, at the same time, meets the resource constraints faced by the Department.     Under this procedure, companies that were no t selected for examinat ion in prior reviews 
(because of the large number of companies fo r which a review was requested) will have a 
mechanism for obtaining revocation on the basis of three consecutive years of sales at not less 
than normal value. The first opportunity for such  a procedure will occur in the review of the 
period March 1, 1997 to February 28, 1998 (the eleventh review period). Companies that request a review for that period may also request revoca tion if they meet the following criteria: (1) a 
review was requested for the company in each of the two years immediately preceeding the period of review in which revocation is re quested, but the company was not selected for 
examination in either of those two preceding reviews; and 2) with the request for revocation the company (a) certifies that it sold subject mercha ndise at not less than normal value during the 
period described in 19 C.F.R. 351.213(e)(1) and for two consecutive years immediately preceeding that period; (b) provides the certifications required under 19 C.F.R. 351.222(e)(ii) and (iii); and (c) submit s a statement acknowledging that its entries are subject to assessment 
of AD duties at the non-selected respondent ra te in one or both of the two preceding review 
periods. If a company meets these criteria, Co mmerce will examine the company's sales during 
the current period of review for purposes of de termining a dumping margin in accordance with 
section 751(a) of the Act. In accordance with se ction 751(a)(2) of the Act, the results of that 
analysis will form the basis for any assessment of antidumping du ties on entries during that 
period and for cash deposits. In addition, for th e purposes of revocation only, Commerce will 
examine data for the two prior years to de termine whether the company sold subject 
merchandise at not less than normal value. If  Commerce determines that the company sold 
subject merchandise at not less than normal value in each of the three years examined and the other conditions of 19 CFR 351.222 are met, it will revoke the order with respect to that company. 
The request states that the 13 companies requested reviews in each of the two years immediately preceding 
the period of review in which the revocation was reques ted (i.e. in the periods covered by the second and third 
administrative reviews). It attaches certifications for all 13 companies stating that they: (i) sold the subject 
merchandise in the United States at not less than norm al value during the second , third and fourth review 
periods; (ii) sold the subject merchandise in the United States in commercial quantities during the second, third and fourth review periods; (iii) agreed to their im mediate reinstatement in the anti-dumping order, should 
the USDOC conclude that they sold the subject merchandise at less than normal value subsequent to revocation; and (iv) acknowle dged that their entries were subject to assessment of anti-dumping duties at the 
non-selected respondent rate set in the second and third administrative reviews. The request invited the USDOC to examine the companies' data for the two pr ior years to determine whether they companies sold 
subject merchandise at not less than the normal value. (Requests for revocation submitted in the fourth administrative review, Exhibit VN-83 (request fo r revocation submitted by 15 companies, including Minh 
Phu and Camimex)). 
481 Requests for revocation submitted in the fourth  administrative review, Exhibit VN-83 (Grobest's 
request for revocation). The request st ated that Grobest met each of the criteria set forth by the USDOC in 
Certain Fresh Cut Flowers from Colombia , that it attached the certification required under that procedure, and 
invited the USDOC to examine its data for the two prior years to determine whether it sold subject merchandise at not less than the normal value. Followin g litigation, Grobest obtained a court ruling that the 
USDOC individually examine it as volu ntary respondent in the fourth admi nistrative review. During the court-
ordered individual examination, Grobest's successor in in terest, I-Mei Frozen Foods,  withdrew its request for 
individual review, including its request for revocation of the order. (Order, Grobest & I Mei Industrial (Vietnam) 
Co., Ltd., v. United States , Consol. Court No. 10-00238 (13 Sept. 2012), Exhibit US-11; Grobest & I Mei 
Industrial (Vietnam) Co.,  Ltd., v. United States , 853 F.Supp.2d 1352 (Ct. Int'l Trade, 2012), Exhibit US-12; 
Successor to Grobest & I-Mei In dustrial (Vietnam) Co., Ltd. , Withdrawal of Request for Voluntary Respondent 
Review and Revocation of Antidumping Duty Order in Part (12 Dec. 2012), Exhibit US-13; Response to 
15 January 2013 Supplemental Questionnaire in Reexaminat ion of Grobest & I-Mei Industrial (Vietnam) Co., 
Ltd. Voluntary Responses (29 Jan. 2013), Exhibit US-14; Response by Successor to Grobest & I-Mei Industrial WT/DS429/R 
 
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  7.332.  The preliminary determination in the fourth administrative review indicated that of the 
Vietnamese respondents who initially requested revocation of the order, 13 subsequently withdrew their requests. The USDOC noted that of the companies that maintained their requests
482, only 
Minh Phu was selected for individual examination. The USDOC preliminarily determined not to 
revoke the order with respect to Minh Phu as it had calculated a non- de minimis  positive margin 
for the company in the review.483 The remaining three companies received the separate rate. The 
USDOC preliminarily determined not to revoke the order with respect to them, for the reason that 
they had not been selected for individual examination.484 The final determination maintained these 
decisions.485 The Issues and Decision Memorandum accompanying the final determination further 
discussed the USDOC's determination not to revoke the order with respect to these respondents who were not selected for individual examination.
486 The USDOC explained that the procedure 
devised in Certain Cut Flowers from Colombia , through which non-individually-examined 
producers/exporters could obtain revocation, was actually never implemented in practice and was limited to that one proceeding and therefore was not applicable in the administrative review at 
issue. The USDOC also reiterated its interpretation  of the Statute that its discretion to limit its 
examination was not limited by virtue of the prov isions of the Regulations addressing revocations 
in the context of administrative reviews, adding: 
That the non-selected revocation companies requested revocation pursuant to the 
Department's regulations does not require the Department to individually review these companies for revocation purposes, when th e Department, as it did here, limits the 
individually reviewed companies under the statute.
487 
7.333.  In the fifth administrative review, three companies requested company-specific 
revocations: 
                                                                                                                                               
(Vietnam) Co., Ltd., to Department's Supplemental Questionnaire and Petitioners' Objection to Rescission 
(13 Feb. 2013), Exhibit US-15). In its preliminary and final determinations in the re-conducted fourth 
administrative review, the USDOC re jected I-Mei's request for rescission of the in dividual examination, 
assigned a margin of 25.76% to I-Mei, found that the company did not meet the requirements of 
Section 351.222(b) and therefore determined not to revoke the order with respect to I-Mei. ( Certain Frozen 
Warmwater Shrimp From the Socialist Republic of Vietnam: Preliminary Results of Reconducted of 
Administrative Review of Grobest & I-Mei Industrial (Vietnam) Co., Ltd. and Intent Not to Revoke; 2008-2009 , 
78 Fed. Reg. 57,352 (19 Sept. 2013) (Exhibit US-16); Certain Frozen Warmwater Shrimp from the Socialist 
Republic of Vietnam; Final Results of Re-Condu cted Administrative Revi ew of Grobest & I-Mei 
Industrial (Vietnam) Co., Ltd and Intent Not To Revoke; 2008-2009 , 79 Fed. Reg. 15309 (19 March 2014), 
Exhibit US-90). The United States, citing I-Mei's requ est for rescission of the administrative review and 
withdrawal of the request for revocati on, argues that Grobest withdrew it s request. However,  we note that 
Viet Nam's challenge concerns the USDOC's initial reject ion of Grobest's request fo r revocation; as discussed 
below, the USDOC determined not to revoke the order with respect to Grobest on the basis that it was not individually examining Grobest. Moreover, the USDOC's determination in the court-ordered individual examination proceeding – which is not challenged by Viet  Nam and therefore does not fall within our terms of 
reference – shows that the USDOC did not accept I-Mei's withdrawal of the request for revocation. Instead, as 
indicated above, the USDOC preliminarily rejected the request on the basis that it calculated a positive, non de 
minimis , margin of dumping for the company. This is also  Viet Nam's reading of the evidence on record. 
(Viet Nam's response to Panel question No. 75.) 
482 In its determination, the USDOC indicated that five companies maintained their requests. However, 
only four companies actually maintained their request:  Minh Phu Group, Camimex,  Grobest, and Fish One. 
Seaprodex Minh Hai was listed as having maintained its revocation request in the preliminary and final 
determinations, but the Issues and Decision Memorandum accompanying the final determination (which preceded the final determination), footnote 86, indicates that Seaprodex Minh Hai shou ld not have been listed. 
The United States clarified, in response to a questi on from the Panel, that Seaprodex Minh Hai had withdrawn 
its request for revocation (United Stat es' response to Panel question No. 74, referring to Letter from Counsel 
for Seaprodex Minh Hai to Secretary of Commerce (31 July 1999), Exhibit US-96). 
483 Preliminary determination in the fourth administrative review, Exhibit VN-09, p. 12209. 
484 The USDOC's reasoning was essentially the same as in its decision rejecting Fish One's request in the 
third administrative review, namely that the USDOC is und er no obligation to conduct individual examination of 
non-selected companies, or verify  non-selected companies' data. (P reliminary determination in the 
fourth administrative review, Exhibit VN-09, p. 12209.) 
485 Final determination in the fourth administrative review, Exhibit VN-13, p. 47774. 
486 Issues and Decision Memorandum accompanying the final determination in the fourth administrative 
review, Exhibit VN-13, pp. 15-17. 
487 Issues and Decision Memorandum accompanying the final determination in the fourth administrative 
review, Exhibit VN-13, pp. 16-17. WT/DS429/R 
 
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  a. In its request, Camimex stated that it had received a de minimis  margin in the 
third administrative review but was not selected for individual examination in the fourth review. It referred to  the USDOC's "policy and regulations" under 19 C.F.R. 
§ 351.222(d) to treat companies that are not mandatory respondents in the interim 
period (in this case, the period of the fourth review) the same as if they had obtained a 
zero margin, and asserted its belief that it would obtain a zero or de minimis  margin in 
the fifth review, in which case it would have demonstrated that it had sold the subject 
merchandise without dumping for at least three consecutive years.
488 
b. In its request, Phuong Nam stated that it had been individually examined and received a 
de minimis  margin in the third administrative review but was not selected for individual 
examination in the fourth review. Phuong Nam stated that it was the USDOC's policy to 
treat companies not selected for individual examination in the interim period (here, the 
fourth administrative review) the same as if they had obtained a zero margin, and that Phuong Nam believed that it would again qualif y for a zero margin in the fifth review, in 
which case it would have demonstrated that it had sold the subject merchandise without 
dumping for at least three consecutive years.
489 
c. In its request, Grobest noted that it had requested to be reviewed and cooperated in the 
third and fourth administrative reviews, but was not selected for individual examination; 
it also recalled its request for revocation in the fourth review, which remained unanswered. Grobest again referred to the procedure proposed by the USDOC in Certain 
Fresh Cut Flowers from Colombia , and asserted that it met the condition set forth by the 
USDOC in that proceeding.
490  
7.334.  In its preliminary determination in the fift h administrative review, the USDOC noted that of 
the three companies requesting revocation, only Camimex was a mandatory respondent. The 
USDOC preliminarily determined not to revoke th e order with respect to that company on the 
ground that it had calculated a positive, non- de minimis , dumping margin for Camimex in the 
review.491 As in the third and fourth administrative reviews, the USDOC preliminarily determined 
not to revoke the order with respect to companies that it had not selected as mandatory 
respondents.492 The final determination maintains these decisions.493 
7.335.  On the basis of the record before us, we understand that the USDOC determined not to 
revoke the order with respect to: 
a. Minh Phu (fourth administrative review) and Camimex (fifth administrative review), on 
the basis that it calculated a positive, non de minimis  margin for these companies in the 
corresponding administrative review; and 
                                               
488 Requests for revocation submit ted in the fifth administrative review, Exhibit VN-84 (Camimex's 
request for revocation). Camimex's re quest included a certification stating that it: (i) sold the subject 
merchandise in the United States at not less than normal  value during the fifth revi ew period; (ii) sold the 
subject merchandise in the United States in commercial quantities during the third, fourth and fifth review 
periods; and (iii) agreed to its imme diate reinstatement in the anti-dumping  order, should the USDOC conclude 
that it sold the subject merchandise at less than normal value subsequent to revocation. 
489 Requests for revocation submitte d in the fifth administrative review, Exhibit VN-84 (Phuong Nam's 
request for revocation). Phuong Nam's request attached certifications stating that it: (i) sold the subject 
merchandise in the United States at not less than normal  value during the fifth revi ew period; (ii) sold the 
subject merchandise in the United States in commercial quantities during the third, fourth and fifth review 
periods; and (iii) agreed to its imme diate reinstatement in the anti-dumping  order, should the USDOC conclude 
that it sold the subject merchandise at less than normal value subsequent to revocation. 
490 Requests for revocation submit ted in the fifth administrative review, Exhibit VN-84 (Grobest's 
request for revocation). Grobest's re quest invited the USDOC to examine its data for the two prior years to 
determine whether it sold subject merchandise at not less than the normal value, consistent with the procedure developed by the USDOC in Certain Fresh Cut Flowers from Colombia . The request stated that 
Grobest met each criterion set forth by the USDOC in Certain Fresh Cut Flowers from Colombia  and attached a 
certification pursuant to that proced ure, which certification is included in the documentation provided by 
Viet Nam. 
491 Notice of initiation for the fifth administrative re view, Exhibit VN-10; preliminary determination in the 
fifth administrative review, Exhibit VN-15, pp. 12057-12058 ; final determination in the fifth administrative 
review, Exhibit VN-18. 
492 Preliminary determination in the fifth administrative review, Exhibit VN-15, p. 12057. 
493 Final determination in the fifth administrative review, Exhibit VN-18, pp. 56160-56161. WT/DS429/R 
 
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  b. Fish One (third administrative review); Camimex, Grobest, and Fish One 
(fourth administrative review); and Grobes t and Phuong Nam (fifth administrative 
review) on the basis that the requesting producer/exporter was not a mandatory respondent in the corresponding administrative review.
494  
7.7.3  Main arguments of the parties 
7.7.3.1  Viet Nam 7.336.  Viet Nam is challenging the USDOC's rejection of requests for company-specific 
revocations submitted by Vietnamese producers/exporters in the administrative reviews at issue. 
Specifically, with respect to some of these compan y-specific requests, Viet Nam challenges the use 
of WTO-inconsistent margins of dumping in determining whether the producer/exporter at issue had ceased dumping for at least three consecutive years. With respect to others, Viet Nam 
challenges the USDOC's refusal to revoke the order in respect producers/exporters which it was 
not individually examining in the review at issue.
495  
7.337.  Viet Nam indicates that with respect to  Minh Phu and Camimex, which were individually 
examined in at least three consecutive reviews and had their requests rejected on the basis of the 
margins calculated for them, its claims pertain to the USDOC's reliance on dumping margins calculated with zeroing in rejecting the requests for revocation. Viet Nam invites the Panel to adopt 
the reasoning of the Appellate Body in disputes in volving sunset review determinations, and to find 
that the USDOC's reliance on margins of dumping calculated with zeroing as a basis for rejecting requests for revocation was inconsistent with  Articles 11.1 and 11.2 of the Anti-Dumping 
Agreement.
496  
7.338.  Viet Nam's argumentation as it relates to the Vietnamese producers/exporters who were 
never individually examined or who were individu ally examined in fewer than three consecutive 
administrative reviews focuses on the fact that the USDOC refused to revoke the order in respect 
of these companies on the basis that they had not been selected for individual examination.497 
Viet Nam argues that the USDOC's failure to revoke the anti-dumping order with respect to companies that were denied the opportunity to demonstrate the absence of dumping because they 
were not individually examined violates Articles 11.1 and 11.2. Viet Nam further argues that the 
USDOC imposed a requirement that respondents be individually examined in three consecutive reviews to qualify for consideration for revocation, notwithstanding its determination that each such respondent was subject to a zero or de minimis  s e p a r a t e  r a t e  i n  e a c h  o f  t h e  r e v i e w s .  I n  
addition, Viet Nam argues that these companies would have been able to demonstrate the absence 
of dumping in three consecutive years if: (i) ze roing had not been used when calculating their 
individual margins (if and when they were indivi dually examined), and (ii) the USDOC had applied 
a WTO-consistent separate rate in the administrative reviews at issue, i.e. a separate rate of zero 
or de minimis .
498  
                                               
494 Viet Nam confirms this understanding in its response to Panel question No. 73(c). 
495 Viet Nam's first written submission, para. 347; response to Panel question No. 50, para. 169; 
second written submission, para. 125. 
496 Viet Nam's first written submission, paras. 348-349; response to Panel question No. 43; 
second written submission, paras. 114, 116. Viet Nam states  that it assumes, for the purpose of its claim, that 
the standard applied by the USDOC for company-sp ecific revocations (i.e. absence of dumping for 
three consecutive years) is the appropriate standard under Article 11.2 (Viet Nam's first written submission, 
para. 347). 
497 Viet Nam's second written submission, para. 117. Viet Nam initially presented a distinct 
argumentation for three categories of  exporters which requested revocation, namely: (i) exporters that were 
individually examined in three or more reviews, wh o would not have been found to have dumped in the 
reviews but for zeroing; (ii) exporter s that were individually examined in  less than three reviews and which 
believed they could demonstrate the absence of dumping for a period of three consecutive years; and (iii) exporters which were never individually examined but which believed they could demonstrate the absence 
of dumping for a period of at least three years. (Viet Nam's first written submission, paras. 325-327.) In its second submission, Viet Nam abandoned this categori zation and as indicated above instead distinguished 
between Vietnamese producers/exporters whose requests were rejected on the basis that the USDOC 
calculated WTO-inconsistent positive margins for them  and Vietnamese producers/exporters whose requests 
were rejected because they had not been individually examined. 
498 Viet Nam's response to Panel question No. 43. WT/DS429/R 
 
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  7.339.  In support of its claim, Viet Nam asserts that Article 11.2 imposes an obligation to revoke 
anti-dumping duties as to individual producers/ exporters once the criteria set forth in that 
provision are met by those individual producers/ex porters. Viet Nam argues in this respect that 
Article 11.1 seeks to limit the imposition of dumping duties both in terms of "time" ("only so long 
as") and scope ("to the extent necessary"), and notes that both Articles 11.2 and 11.3 address the 
time period during which anti-dumping duties  may remain in effect. Viet Nam notes that 
Article 11.3, however, only addresses the issue of the "expiry" of duties and not "the extent" to 
which duties are continued. Viet Nam submits that  "the extent" limitation not being addressed in 
Article 11.3, it must necessarily be addressed under Article 11.2. Viet Nam notes that this is contemplated by Article 11.2 in that it envisa ges duties not only being "removed" but also 
"varied". Viet Nam argues that, if they are to ha ve meaning, both the terms "extent" and "varied" 
must be read as permitting changes in both the exporters and products subject to anti-dumping 
duties.
499 Viet Nam also argues that the reference to "any interested parties" in Article 11.2 
supports its contention that Article 11.2 applies to individual producers/exporters.500 In Viet Nam's 
view, the terms "any" and "varied" must both in form Article 11.2, so that the removal of the 
application of the duty with respect to any indi vidual importers, exporters or foreign producers 
qualifies as "the duty" being varied.501  
7.340.  Viet Nam believes that footnote 21 further confirms its interpretation of Article 11.2. 
Viet Nam submits that the difference in the la nguage of footnotes 21 and 22 recognizes the 
authority to terminate duties in part under Article 11.2 in contrast to the requirement of termination of the anti-dumping duties as a whole under Article 11.3.
502 
7.341.  Viet Nam further argues that its interpretation of Article 11.2 is consistent with other 
provisions of the Anti-Dumping  Agreement that address individual producers/exporters, in 
particular Article 5.8, which requires the immediate termination of the investigation in respect of 
exporters for which an individual margin of dumping of zero or de minimis  is determined. Viet Nam 
argues that it would be nonsensical if a similar mechanism to avoid the application of anti-dumping duties did not exist for individual companies through revocation once the order is in place if they 
demonstrate that they are no longer dumping and that dumping is unlikely to recur.
503 
7.342.  Viet Nam submits that its interpretation of Article 11.2 is confirmed by the "subsequent 
practice" of certain Members, including the United States, in the sense of Article 31(3)(b) of the Vienna Convention.
504  
7.343.  Viet Nam argues that the "limited examination" exception under Articles 6.10 and 9.4 
applies only in the context of original investigations, and through Article 9.4, in administrative reviews, and consequently does not apply in the context of Article 11.2 reviews.
505 Alternatively, 
Viet Nam argues, Members must interpret and apply the provisions of the covered agreements in a 
manner which gives meaning to all provisions. Accordingly, even if the exception were applicable, it would have to be applied in a manner that reconciles the investigating authority's resource 
limitations with individual producers/exporters' right to obtain company-specific revocations.
506 
                                               
499 Viet Nam's second written submission, paras. 132-133. 
500 Viet Nam's response to Panel question No. 41; opening statement at the second meeting of the 
Panel, paras. 48-51. (referri ng to Appellate Body Report, US – Corrosion Resistant Steel Sunset Review , 
paras. 149-150, 152); response to Panel question No. 79, para. 59; comment on the United States' response to Panel question No. 79, para. 61. 
501 Viet Nam's opening statement at the second meeting of the Panel, para. 52. 
502 Viet Nam's response to Panel question No. 40. 
503 Viet Nam's second written submission, paras. 134-135; opening statement at the second meeting of 
the Panel, para. 54. 
504 Viet Nam's response to Panel question No. 38 (ref erring to Documentation on Individual Revocation 
Procedures of Australia, Brazi l, and India, Exhibit VN-79). 
505 Viet Nam's second written submission, para. 122. In its response to Panel question No. 44, 
para. 160, however, Viet Nam states that its "position is not that the USDOC cannot use sampling. Rather, if it does use sampling, it must do so in a manner which also allows it to take actions consistent with its obligations 
under Article 11". 
506 Viet Nam's first written submission, paras. 340, 350-355; second written submission, paras. 120-
125. Viet Nam argues that the USDOC has turned the "limited examination" exception under the 
second sentence of Article 6.10 into a rule, uses the exception to undermine Article 11.2 and that the 
application of the "limited examination" exception in ca ses where there is a large number of respondents would 
render Article 11.2 a nullity. Viet Nam suggests, inter alia , that the United States co uld rely on the separate WT/DS429/R 
 
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  Hence, Viet Nam submits, the determination of the existence of the conditions for the application 
of the Articles 6.10/9.4 exception would have to be determined separately for each type of review.
507  
7.7.3.2  United States 
7.344.  The United States argues that Article 11.2 imposes no obligation on investigating 
authorities to consider or to provide company-specific revocations. The United States notes in particular that the Appellate Body has interpreted the term "duty" as it is used in Article 11.3 as 
referring to duties imposed on a product from a country, and not to the specific anti-dumping 
duties imposed or collected with respect to imports from an individual company. The United States argues that the term is most logically interpreted as having the same meaning in both provisions since they both set forth mechanisms to ensure th at, as per Article 11.1, the duty remains in place 
only as long as necessary to counteract injurious dumping.
508 The United States further notes that 
Article 11.3 contains a cross-reference to Article 11.2, as it provides that an Article 11.2 review restarts the "five-year clock" for conducting a five-year sunset review, which strongly suggests 
that both types of review contemplate examination of the "duty" on a product (i.e. order-wide) 
basis. According to the United States, when viewed in light of this language, Viet Nam’s interpretation of Article 11.2 yields an absurd result. The United States submits that if an 
investigating authority considers a request for company-specific revocation covering both dumping 
and injury in the fourth year after the imposition of the duty, it would automatically extend the duration of the duty (as it applies to all producer s/exporters) by an additional five years without 
any obligation to conduct a sunset review under Article 11.3. If such company-specific reviews are 
requested by interested parties and conducted at least once every five years, "the duty" would 
continue indefinitely. In addition, the United States argues that the title of Article 11 and 
Article 11.5 confirm that Article 11 also applies to price undertakings under Article 8, mutatis 
mutandis . The United States submits that when the raising of export prices under a price 
undertaking eliminates dumping, pursuant to Viet Nam's interpretation of Article 11.2, this would lead to automatic termination of the duty. Thus, there would be no basis for review under 
Article 11.3 (after five years), which again is an ab surd result. The United States also relies on the 
fact that the text of Article 11.2 makes no distinction between the likelihood-of-dumping determination and the likelihood-of-injury determination, both of which can provide the basis for termination of "the duty", and that the likelihood-of-injury determination inherently relates to all of 
the imports subject to "the duty". For the United States, it therefore follows that the likelihood-of-
dumping determination under Article 11.2 is also product-wide.
509 
7.345.  The United States argues that footnote 21 further demonstrates that the reviews provided 
for in Article 11.2 are with respect to the "duty" imposed on an order-wide basis. The 
United States notes that the footnote clarifies that Article 9.3 assessment reviews, do not, on their own, constitute Article 11.2-type of reviews, and in so doing contrasts the two types of reviews. 
The United States admits that the "by itself" language in footnote 21 implies that company-specific 
assessment reviews may play a role in product-wide reviews under Article 11.2, but argues that this role is as limited as in Article 11.3 sunset reviews: Members may take into account company-specific dumping margins from assessment revi ews when conducting product-wide Article 11.3 
sunset reviews.
510 
7.346.  The United States takes issue with Viet Nam's argument concerning the "removed or 
varied" language in Article 11.2. The United States argues that this language pertains to injury, 
but not to dumping, and that in addition, the duty  could be "varied" by decreasing the scope of 
products covered by an antidumping duty order, which would be product (not company) 
                                                                                                                                               
rate in considering revocation for non-examined prod ucers/exporters (Viet Nam's second written submission, 
para. 137). 
507 Viet Nam's first written submission, para. 352. 
508 United States' second written submission, paras. 12-13; opening statement at the second meeting of 
the Panel, paras. 54-56 (referring to Appellate Body Report, US – Corrosion Resistant Steel Sunset Review , 
para. 150). 
509 United States' first written submission, pa ra. 77 (referring to A ppellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , paras. 140, 149, 150 and 154-155); opening statement at the first substantive 
meeting, paras. 53-55; response to Panel question 38; second written submission, paras. 8-11; comments on 
Viet Nam's response to Panel question No. 79. 
510 United States' response to Panel question No. 40. WT/DS429/R 
 
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  specific.511 Further, in the United States' view, the reference to "interested parties" in Article 11.2 
represents a procedural distinction from Article 11.3 that does not, contrary to Viet Nam assertion, inform the interpretation of "the duty"; rather, the term "interested parties" merely defines who can seek a review. The United States adds, in this regard, that neither Articles 11.2 nor 11.3 
contain the term "margins" which, for the United States, might implicitly refer to individual 
exporters or producers.
512 The United States argues that had Members agreed to an obligation to 
examine company-specific revocation requests in Article 11.2, they would have included explicit 
language to that effect as they did in Articles 5. 8 and 6.10. The United States also argues that to 
read "the duty" in the context of Article 11 as a company-specific reference would disregard the distinction between this term as used in Article 11 and the terms "individual duties" in Article 9.4 and "individual margin of dumping for each known exporter or producer" in Article 6.10.
513 
7.347.  The United States further submits that its interpretation of Article 11.2 is confirmed by the 
preparatory work of Article 11.2 of the Anti-Dumpi ng Agreement. The United States explains that 
during the negotiations, the Nordic countries proposed adding a company-specific reference to 
"dumping margins" in Article 11.2, but this proposed amendment was rejected.514 
7.348.  The United States also argues that even accepting, arguendo, that Article 11.2 imposes an 
obligation to consider company-specific revocations, Article 11.2 does not require Members to 
adopt tests based on the absence of dumping for th ree years. Hence, the United States submits, 
the provisions of US law and regulations providing for company-specific revocations on the basis of, inter alia , an absence of dumping for three consecutive years go beyond the requirements of 
Articles 11.1 and 11.2 by establishing a presumption that operates in favour of foreign 
producers/exporters. For this reason, even if the USDOC had found that some of the Vietnamese 
producers/exporters had zero margins for three years, it would not have been required under Articles 11.1 and 11.2 to revoke the order with respect to these companies.
515  
7.349.  Moreover, the United States argues that, by  virtue of Article 11.4, the limited examination 
exception under the second sentence of Article 6.10 would apply in the Article 11.2 context. The 
United States considers that the question of the individual examination of companies is governed 
by Article 6.10. It follows, argues the United States, that limiting the number of 
producers/exporters individually-examined consiste ntly with Article 6.10 cannot provide a basis for 
a breach of Article 11.2 in the event that no n-selected producers/exporters seek a company-
specific revocation.516 The United States notes that Viet Nam has not alleged that the USDOC's 
limitation of its examination in the fourth and fifth administrative reviews was inconsistent with 
Article 6.10.517 In addition, the United States rejects as without basis in the Anti-Dumping 
Agreement Viet Nam's suggestion that investigating authorities must apply different standards, or 
must seek to balance individual producers/expo rters' rights and the investigating authority's 
resource constraints if and when they limit their examination in a combined administrative review and Article 11.2 review proceeding.
518  
7.7.4  Main arguments of the third parties 
7.350.  China  considers that Article 11.2 provides indi vidual producers/exporters the right to 
request reviews for the purpose of obtaining company-specific revocations and leaves the authorities no discretion to refuse to initiate an  Article 11.2 review when an interested party has 
                                               
511 United States' second written submission, paras. 14-16. 
512 United States' response to Panel question No. 79, paras. 81-84 (ref erring to Appellate Body Report, 
US – Corrosion Resistan t Steel Sunset Review , paras. 149-150). 
513 United States' opening statement at the first meeting, para. 56; second written submission, 
para. 18. 
514 United States' response to Panel question 38, pa ras. 127-132 (quoting from Drafting Proposals of the 
Nordic Countries Regarding Amendments of the Anti-Dumping Code, MTN.GNG/NG8/W/76, p. 5). 
515 United States' second written submission, para. 23; and response to Panel question No. 45, 
para. 147 (all referring to Panel Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , 
paras. 7.153, 7.159, 7.165-7.166, 7.174). 
516 United States' first written submission, para s. 86-89; second written submission, para. 7; 
response to Panel question No. 44, paras. 142-145 (quoting from Panel Report, US – Shrimp  (Viet Nam ), 
paras. 7.151-7.168). 
517 United States' first written submission, para. 87. 
518 United States' first written submission, para. 90. WT/DS429/R 
 
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  met the conditions set out under that provision.519 China argues that the term "duty" has a 
broader meaning under Article 11.2 than under Arti cle 11.3 and refers to either the duty on a 
product-specific basis, or the duties on a company-specific basis, depending on the particular circumstances. China notes that the Appellate Body  has concluded that Article 11.3 does not oblige 
investigating authorities to make company-specific likelihood determinations in a sunset review, 
partly on the basis that, in contrast to Article 11.2, Article 11.3 contains no express reference to "interested parties".
520 China also notes that unlike Article 11.3, which requires the authorities to 
review the likelihood of continuation or recu rrence of both dumping and injury, Article 11.2 
provides that interested parties may request authorities to review either dumping or injury, or both. Thus, it envisages that a duty may be te rminated after a review only with respect to 
dumping, which is an exporter-specific concept.
521 Further, China submits that whereas 
Article 11.3 obliges the authorities to review only the likelihood of continuation or recurrence of 
dumping, Article 11.2 requires authorities to examine whether the continued imposition of the duty is necessary to offset dumping, which requires determining individual dumping margins.
522 China 
argues that the distinction between "duty" and "dutie s" is not absolute and that there is no "fixed 
collocation" between the terms concerned. In this sense, while China agrees with the United States that the term "duty" in Article 11.2 is different from the term "individual duties" in Article 9.4, 
China argues that this does not preclude that the former could refer to duties on exports by 
individual companies, depending on the particular circumstances.
523 China submits that even if the 
"limited examination" exception under Article 6.10 a pplies to Article 11.2 reviews, it should not be 
applied in a manner that deprives interested parties of the right to request a review and to 
demonstrate the absence of dumping, rendering Article 11.2 a nullity.524  
7.351.  The European Union  argues that a request under Article 11.2 may relate only to 
dumping, only to injury, or to both, and the review must consider whether the need for the 
continued imposition of the duty at the various duty rates is necessary to offset dumping at these 
rates. The review may or not be conducted on a company-specific basis, but if it is, it may also take into account factors that relate to the industry as a whole in the exporting Member. The 
European Union adds that the fact that a firm has not been dumping for a particular period of time 
does not in itself require the termination of the duty with respect to that firm.
525 In addition, the 
European Union considers that the second senten ce of Article 6.10 applies in the context of 
Article 11.2 reviews and therefore that limite d examination may be used in such reviews.526 The 
European Union considers that reliance on dumping margins calculated with zeroing in an 
Article 11.2 review violates Articles 11.1 and 11.2, and that the Panel could limit itself to finding 
that the determinations at issue are inconsistent with Articles 11.1 and 11.2 on that basis.527 
7.352.  Japan  argues that Article 11.2 affords a company-specific right to request a review, and 
eventually obtain revocation, of the order.  Japan notes that the Appellate Body in US – Corrosion 
Resistant Steel Sunset Review  gave interpretive significance to the presence of the terms "any 
interested party" in Article 11.2, which it contrasted with the absence of any reference to 
individual exporters, producers or interested parties in Article 11.3. Japan argues that the 
reference to interested parties in Article 11.2 suggests that the drafters intended to impose obligations regarding individual producers/exporters under Article 11.2. Consequently, Japan 
argues, the term "duty" should be given a broader meaning under Article 11.2 than under 
Article 11.3 and also encompasses duties imposed on a company-specific basis.
528 Japan also 
                                               
519 China's third-party submission, para. 60 (quoting from Appellate Body Reports, US – 
Zeroing (Japan),  paras. 108–112, 114; US – Stainless Steel (Mexico) , paras. 87 and 94; and Mexico – 
Anti-Dumping Measures on Rice,  paras. 308-316). 
520 China's response to Panel question No. 15, pa ras. 31-32 (quoting from Appellate Body Report, US – 
Corrosion Resistant Steel Sunset Review , para. 149). 
521 China's response to Panel question No. 15, paras. 33-34. 
522 China adds that the US – DRAMs  panel found that Article 11.2 does not require immediate and 
automatic revocation as soon as an exporter is found to have ceased dumping, which China reads as implying 
that exporters are entitled to compan y-specific revocations under that prov ision. (China's response to Panel 
question No. 15, para. 34, referring to Panel Report, US – DRAMS , paras. 6.32-6.34.) 
523 China's response to Panel question No. 15, para. 36. 
524 China's third-party-submission, paras. 54- 69; response to Panel question No. 15. 
525 European Union's third-party submission, paras. 43-47; response to Panel questions No. 15 and 17. 
526 European Union's third-party subm ission, paras. 46; European Union's response to Panel question 
No. 18, para. 56. 
527 European Union's third-part y submission, paras. 43-47. 
528 Japan's response to Panel question Nos. 15 and 16,  paras. 14-15 (referring to Appellate Body Report, 
US – Corrosion-Resistant Steel Sunset Review , paras. 149, 152). WT/DS429/R 
 
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  attaches significance to the fact that, unlike Arti cle 11.3, Article 11.2 envisions that a duty may be 
terminated after a review of only the need for the duty to offset dumping.529 Japan adds that it is 
relevant that Article 11 applies mutatis mutandis  to price undertakings, which are necessarily 
company-specific, and that it would be anomalous if  individual exporters could seek the removal of 
a price undertaking, but not of a duty.530 Moreover, Japan argues that the term "varied" in 
Article 11.2 presupposes that the investigating authority can recalculate individual dumping 
margins and impose "the duty" at a different rate, which assumes that the term "the duty" is used 
in a company-specific sense.531 Finally, Japan considers that, by virtue of Article 11.4, to the 
extent that it may be relevant in such a context, the limited examination exception in Article 6.10 applies in Article 11.2 reviews.
532 
7.353.  Norway  considers that Article 11.2 gives any interested party a right to a review where 
the conditions set forth under that provision are met. Norway relies in part of the Appellate Body's 
statement in US – Corrosion Resistant Steel Sunset Review  that when the drafters of the Anti-
Dumping Agreement intended to impose obligations regarding individual producers/exporters, they 
did so explicitly.533 With respect to the application of the limited examination exception in the 
context of an Article 11.2 review, Norway considers that there can be no automatic rejection of a request for review, even if the Article 6.10 except ion has been applied at a previous stage of the 
anti-dumping proceeding.
534 
7.354.  Thailand  argues that Article 11.2 refers to a specific interested party as it addresses the 
issue of "partial reviews" whereas Article 11. 3 governs the review of an overall proceeding 
covering both dumping and injuries involving all interested parties concerned.535 
7.7.5  Evaluation by the Panel 
7.7.5.1  Introduction 
7.355.  Viet Nam's claims are two-fold: First, Viet Nam challenges the USDOC's refusal to grant 
company-specific revocation to Vietnamese producers/exporters who were not individually 
examined. Second, Viet Nam challenges the USDOC's reliance on dumping margins that were calculated inconsistently with the Anti-Dumping Agreement in its consideration and eventual 
rejection of the requests for revocation of certain Vietnamese producers/exporters. We examine 
each in turn. But before we turn to the substance of Viet Nam's claims, we consider the jurisdictional question of whether the USDOC's treatment of Fish One's request for revocation in the third administrative review falls within the Panel's terms of reference. 
7.7.5.2  Whether the USDOC's treatment of Fish One's request for revocation in the 
third administrative review falls with in the Panel's terms of reference  
7.356.  In its first written submission, Viet Nam discussed the USDOC's treatment of requests for 
revocations in the third, fourth, and fifth admini strative reviews (no requests were made in the 
sixth review administrative review)
536, and requested findings of inconsistency with respect to the 
USDOC's actions in the fourth, fifth and sixth administrative reviews.537 Subsequently, however, in 
response to a question from the Panel, Viet Nam indicated that it is was making claims in respect 
of the USDOC's rejection of requests for revocation in the context of the fourth and fifth reviews as well as with respect to "the claim made in the third review".
538 Hence we understand Viet Nam to 
include in its claims the USDOC's treatment of Fish One's request for revocation in the 
third administrative review. The United States take s issue with Viet Nam's formulation of a claim in 
                                               
529 Japan's response to Panel question Nos. 15 and 16, para. 16 (referring to  Appellate Body Report, 
US – Zeroing (Japan) , para. 111). 
530 Japan's response to Panel question Nos. 15 and 16, para. 18. 
531 Japan's response to Panel question Nos. 15 and 16, para. 19. 
532 Japan's response to Panel question No. 18. 
533 Norway's response to Panel question Nos. 14 and 17, paras. 8-12 (quoting from Appellate Body 
Report, US – Corrosion Resistant Steel Sunset Review, para. 152). 
534 Norway's opening statement at th e first meeting, paras. 8-10; resp onse to Panel question Nos. 14 
and 17. 
535 Thailand's response to Panel question No. 17.   
536 See Viet Nam's first written submission, paras. 325 and 326. 
537 See, inter alia , Viet Nam's first written submission, paras. 13 and 42. 
538 Viet Nam's response to Panel question No. 48, para. 167. WT/DS429/R 
 
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  this respect, as it considers that the third administrative review was not included in either 
Viet Nam's request for consultations or its panel request.539 In light of the United States' objection, 
we examine whether the USDOC's actions taken in the context of the third administrative review 
constitute a "measure at issue" in the present di spute, such that it falls within our terms of 
reference.540  
7.357.  Viet Nam's panel request defines the outer limit of our terms of reference – our terms of 
reference require us to examine, in the light of the relevant provisions of the covered agreements, 
the matter referred to the DSB by Viet Nam in its panel request. Viet Nam's panel request 
indicates that it is made "in particular but not exclusively" with respect to: "the imposition of anti-dumping duties and cash deposit requirements pursua nt to the final results" of the fourth, fifth and 
sixth administrative review s; the fourth, fifth, and sixth administrative reviews themselves insofar 
as they did not revoke the anti-dumping duty orde r with respect to certain respondents requesting 
or eligible for such revocation; the "continued application of the practices and conduct" described in the panel request in any other on-going or future administrative reviews and preliminary and 
final results thereof as well as any assessment instructions, cash deposits requirements, and 
revocation determinations issued pursuant to such reviews; the USDOC's likelihood-of-dumping 
determination in the sunset review; and, finally, Section 129 of the URAA.
541 This language 
suggests that only the USDOC's treatment of requests for company-specific revocations in the 
fourth, fifth, and sixth admini strative reviews fall within the Panel's terms of reference.542 
7.358.  Moreover, as we discuss below, we are of the view that Viet Nam could in any event not 
have raised a claim with respect to the USDOC's treatment of requests for revocation in the 
third administrative review in its panel request. 
7.359.  As we noted in our 25 September 2013 preliminary ruling543, pursuant to the terms of 
Article 4544 and of Article 6.2 of the DSU545, the request for consultations constitutes a prerequisite 
for the panel request and as a result circum scribes the scope of the panel request and, 
consequently, the panel's terms of reference.546 As we also noted in our preliminary ruling: 
The Appellate Body has indicated that Articles 4 and 6 of the DSU "set forth a process 
by which a complaining party must request consultations, and consultations must be 
                                               
539 United States' second written su bmission, para. 34 and footnote 32. 
540 The Panel asked Viet Nam to react to the United States' objection, but in its response, Viet Nam did 
not address the question of the USDOC's treatment of Fish One's request in that determination. (Viet Nam's response to Panel question No. 81.) 
541 Viet Nam's panel request, WT/DS429/2/Rev.1, 18 January 2013, p. 2, point 2 ("Summary of facts 
and legal basis of complaint"). 
542 The panel request further develo ps the factual and legal bases of Viet Nam's various claims. 
Two sections of the panel request are of relevance to Vi et Nam's "revocation" claims, neither of which appear 
to place the USDOC's treatment of Fish One's request for revocation in the third administrative review within 
our terms of reference. Section (e) of the panel request, "Revocation in the absence of any evidence of 
dumping", states that "the anti-dumping duty order shou ld be revoked in part with respect to individually 
investigated respondents having zero  or de minimis margins of dumping in reviews two through five and 
two through six, when the sixth review is completed ". (emphasis added) Section (c) of the panel request 
concerns the USDOC's limitation of the number of resp ondents selected for individu al examination. Although 
Viet Nam has not pursued any claim in this respect, this section is of some relevance to Viet Nam's claims with 
respect to company-specific revocations. It states, in relevant part, that: 
Viet Nam challenges the use of limited respondent selection in the original investigation and the first, second, third, fourth, fifth, and sixth admi nistrative reviews, (1) to the extent that this 
practice impacted the USDOC’s revocation and five-year "sunset" review determinations  in the 
measures at issue  and (2) to the extent that these determinations demonstrate the USDOC’s 
continued and ongoing use of this practice throughout the full cour se of the shrimp anti-dumping 
proceeding. (emphasis added) 
543 Preliminary Ruling, Annex A-3, paras. 2.11-2.13. 
544 Article 4.4 provides, in particular, that: 
Any request for consultations shall be submitted in writing and shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for 
the complaint. 
545 Article 6.2 of the DSU provides, in relevant part: 
The request for establishment of the panel ... sh all indicate whether consultations were held, 
identify the specific measures at issue and pr ovide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly. 
546 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 58. WT/DS429/R 
 
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  held, before a matter may be referred to the DSB for the establishment of a panel"547, 
and that "consultations provide the parties an opportunity to define and delimit the scope of the dispute between them".
548 The Appellate Body has also held that 
Articles 4 and 6 do not "require a precise and exact identity  between the specific 
measures that were the subject of consulta tions and the specific measures identified 
in the request for the establishment of a panel".549 Thus, the Appellate Body has 
indicated that: 
As long as the complaining party does not expand the scope of the 
dispute, we hesitate to impose too rigid a standard for the "precise and exact identity" between the scope of consultations and the request for the establishment of a panel, as this would substitute the request for 
consultations for the panel request.
550, 551 
7.360.  Hence, with respect to the correspondence between the measures included in the panel 
request and those included in the request for consultations, the relevant question is whether the 
"s c op e  of the  d is p ute " is  e xp and ed  as  a re s ult of  the  inc l us io n of an ad d itiona l me as ure  in the  
panel request.552 In relevant part, Viet Nam's consultations request sought consultations with 
respect to essentially the same measures as it subsequently listed in its panel request, with the 
exception that the consultations request does not expressly refer to the sixth administrative 
review, instead referring to "[a]ny other ongoing or future anti-dumping administrative reviews, and the preliminary and final results thereof, … as well as any assessment instructions, cash deposit requirements, and revocation determinations issued pursuant to such reviews".
553 This 
language makes it clear that only the USDOC's treatment of requests for company-specific 
revocations in the context of the fourth, fifth, and ongoing future administrative reviews were included in the request for consultations.
554 More importantly, the consultations request concludes: 
                                               
547 Appellate Body Report, Brazil – Aircraft , para. 131. 
548 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 54. 
549 Appellate Body Report, Brazil – Aircraft , para. 132. (original emphasis) 
550 Appellate Body Report, US – Upland Cotton , para. 293 (citing Appellate Body Report, Brazil – 
Aircraft , para. 132). (footnote omitted) 
551 Preliminary Ruling, Annex A-3, para. 2.12 
552 Preliminary Ruling, Annex A-3, para. 2. 13 (referring to Appellate Body Report, US – Continued 
Zeroing , para. 224, referring in turn to Appellate Body Report, US – Upland Cotton , para. 293; and to Panel 
Report, US — Orange Juice (Brazil) , para. 7.18). 
553 Viet Nam's consultations request, p. 1. 
554 Moreover, nothing in the remainder of the consul tations request directly pertains to the USDOC's 
treatment of Fish One's request for revocation in the third administrati ve review. See, in particular, the 
following paragraphs of Viet Nam's consultations reques t, which are relevant to its claims with respect to 
company-specific revocations, and in which it indicates its intention to request consultations with respect to: 
(3) in the fourth and fifth administrative  reviews, the limited selectio n of respondents individually 
investigated, such that non-investigated compan ies are denied the opportunity to demonstrate 
the absence of dumping necessary to qualify for revocation of the anti-dumping duty order; 
… (6) in the fourth and fifth administrative  reviews, the USDOC's determination to not revoke the 
anti-dumping duty order with respect to thr ee respondents: Minh Phu Group, CAMIMEX, and 
Grobest, despite evidence demonstrating the abse nce of dumping in the fourth administrative 
review and the absence of any evidence of dump ing by these respondents in any of the prior 
reviews conducted by the USDOC; (7) the use of zeroing to calculate dumping margins and determine duty assessment in the final results of the original investigation and first, second, third, fourth, and fifth administrative reviews, to the extent that the USDOC's use of the zeroing methodology in those determinations impermissibly inflated assessed anti-dumping duties and conseq uentially impacted the USDOC's 
revocation and five-year "suns et" review determinations in the measures at issue ;  
… (9) the use of limited respondent selection in the original investigation and first, second, third, fourth, and fifth administrative reviews, to the ex tent that this practice denied respondents not 
selected for individual review the opportunity to obtain revocation of the anti-dumping duty order 
in the measures at issue  and impacted the USDOC's five-year "sunset" review determination;  
… (13) in all of the anti-dumping proceedings of Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam, the absence of any mechanism to provide individually investigated 
or non-individually investigated respondents the opportunity to establish the absence of dumping that is required for revocation of the antidumping duty order; WT/DS429/R 
 
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  To avoid the apparent confusion that our inclusion of the original investigation caused 
the US in Vietnam's previous request for consultations and a panel involving Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, we would like to 
clarify that while practices and determinations in the original investigation and the 
first, second, and third administrative reviews are referenced because they have had 
an effect on the fourth administrative review, the fifth administrative review, the five year "sunset review", an d ongoing or future reviews, the practices and 
determinations are included in this request for consultations only to the extent that 
they have had or will have an effect on the fourth administrative review, the fifth 
administrative review, the five year sunset review, and subsequent reviews . The 
underlying determinations, decision memoranda, and other memoranda and record 
evidence in the original investigation an d the three reviews are thus necessary and 
relevant to the proceeding for which these consultations are requested.
555 
7.361.  This last paragraph excludes, in our view, the possibility for Viet Nam to include within the 
panel request, and hence within our terms of reference, any claims regarding the USDOC's actions 
in the third administrative review. In light of this explicit exclusion, and notwithstanding the fact that the claims that Viet Nam seeks to make with respect to the USDOC's actions in the 
third administrative review pertain to USDOC actions that took place under the same overall anti-
dumping proceeding and are of the same nature  as actions challenged in the fourth and 
fifth administrative reviews, and that Viet Nam makes similar claims with respect to the USDOC's treatment of requests for revocation in each of th ese reviews, we conclude that a claim in its panel 
request in respect of such actions would have impermissibly expanded the scope of the dispute. 
This being the case, the USDOC's determination not to revoke the Shrimp  order with respect to 
Fish One in the third administrative review do es not fall within our terms of reference. 
7.7.5.3  General considerations with respect to the interpretation of Articles 11.1 
and 11.2 
7.362.  Article 11 of the Anti-Dumping Agreement concerns the "Duration and Review of Anti-
Dumping Duties and Price Undertakings". Articles 11.1 to 11.5, which are directly relevant to 
Viet Nam's claims, provide as follows: 
11.1 An anti-dumping duty shall remain in force only as long as and to the extent 
necessary to counteract dumping which is causing injury. 
11.2 The authorities shall review the need for the continued imposition of the duty, 
where warranted, on their own initiative or, pr ovided that a reasonable period of time 
has elapsed since the imposition of the defi nitive anti-dumping duty, upon request by 
any interested party which submits positive information substantiating the need for a 
review.
21 Interested parties shall have the right to request the authorities to examine 
whether the continued imposition of the duty  is necessary to offset dumping, whether 
the injury would be likely to continue or recur if the duty were removed or varied, or 
both.  If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately. 
11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive 
anti-dumping duty shall be terminated on a date not later than five years from its 
imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the 
authorities determine, in a review initiated before that date on their own initiative or 
upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would 
be likely to lead to continuation or recurrence of dumping and injury.
22 The duty may 
remain in force pending the outcome of such a review. 
11.4 The provisions of Article 6 regarding evidence and procedure shall apply to any 
review carried out under this Article.  Any such review shall be carried out 
                                                                                                                                               
(Viet Nam's consultations request, pp. 3-4, emphasis added) 
555 Viet Nam's consultations request, p. 5. (emphasis added) WT/DS429/R 
 
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  expeditiously and shall normally be conc luded within 12 months of the date of 
initiation of the review. 
11.5 The provisions of th is Article shall apply mutatis mutandis  to price undertakings 
accepted under Article 8. 
__________________ 
21 A determination of final liability for payment of anti-dumping duties, as provided for in 
paragraph 3 of Article 9, does not by itself constitute a review within the meaning of this Article. 
22 When the amount of the anti-dumping duty is assessed on a retrospective basis, a finding in 
the most recent assessment proceeding under subparagraph 3.1 of Article 9 that no duty is to be levied shall not by itself require the authorities to terminate the definitive duty. 
7.363.  Several prior panel decisions suggest that Article 11.1 does not impose independent 
obligations upon Members, but rather, establishes the general principle that duties may only 
continue to be imposed so long as they remain necessary, which principle is operationalized in 
Articles 11.2 and 11.3.556 In the present dispute, Viet Nam itself argues that Article 11.1 sets forth 
an obligation which is operationalized in Articles 11.2 and 11.3557, and we do not understand 
Viet Nam to be arguing that the challenged USDOC actions violate Article 11.1 independently of 
Article 11.2. This being the case, our evaluation of Viet Nam's claims focuses on the language of 
Article 11.2, drawing on the context provided by, inter alia , Article 11.1, where relevant.  
7.364.  As just noted, Articles 11.2 and 11.3 operationalize the general principle in Article 11.1 
that the duty only remain in force for as long as and to the extent necessary in order to counteract 
dumping which is causing injury. Article 11.2 and Article 11.3 provide for related, yet distinct, mechanisms to operationalize this general principle. Article 11.3 conditions the continuation of 
anti-dumping measures beyond a five year period  on a review of the continuing need for "the 
duty", based on a determination of likelihood of  continuation or recurrence of dumping and of 
injury. Article 11.2 imposes upon an investigating authority the obligation to conduct a review of the continuing need for "the duty" in the interv al between the imposition of the measure and the 
five-year, "sunset", review.
558 Thus, each paragraph provides for a review of the continuing need 
for the duty, one at a specified point in time, on the investigating authority's own initiative or on the basis of a substantiated request by the domestic industry, in order to justify continuing the 
duty at all; the other available at any time, on the investigating authority's own initiative or on the 
basis of a substantiated request by an interested party (provided in the latter case that a reasonable period of time has elapsed since the imposition of the definitive duty) to examine the 
continued need for the duty. 
7.365.  In Mexico – Anti Dumping Measures on Rice , the Appellate Body concluded that 
Article 11.2 requires investigating authorities to conduct a review under that provision where the conditions set forth therein are met and that the authorities may not impose additional conditions 
in this respect.
559 The Appellate Body explained that: 
Article 11.2 requires  an agency to conduct a review, inter alia , at the request of an 
interested party, and to terminate th e anti-dumping duty where the agency 
determines that the duty "is no longer warranted". The interested party has the right 
to request the authority to examine whether the continued imposition of the duty is 
                                               
556 Panel Reports, EC – Tube or Pipe Fittings , para. 7.113; and US – DRAMS , para. 6.41. 
557 For instance, in its first written subm ission, para. 329, Viet Nam writes that: 
The relevant provisions related to the revocati on of anti-dumping duties are provided in 
Article 11 of the Anti-Dumping Agreement. ... Arti cle 11 does not only provide for revocation of 
anti-dumping duties as a result of required five year reviews under Article 11.3, it also provides 
for reviews under Article 11.2 in order to give effect to the general pr inciple articulated in 
Article 11.1. 
558 As provided in Article 11.3, where the most re cent Article 11.2 review covered both dumping and 
injury, the five year period runs from the date of that review. 
559 Appellate Body Report, Mexico – Anti Dumping Measures on Rice , paras. 314-315. At issue in that 
dispute was a provision of Mexican law providing that in terested parties, e.g. an exporter, seeking a changed 
circumstances review had to satisfy the authorities that  the volume of their exports to Mexico during the 
review period were representative. WT/DS429/R 
 
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  necessary to offset dumping, whether the injury would be likely to continue or recur if 
the duty were removed or varied, or both. Article 11.2 conditions this obligation on (i) the passage of a reasonable period of ti me since imposition of the definitive duty; 
and (ii) the submission by the interested party of "positive information" substantiating 
the need for a review. ... Where the conditions in Article 11.2 have been met, the 
plain words of the provision make it clear that the agency has no discretion to refuse to complete a review, including consideration of whether the duty should be 
terminated in the light of the results of the review.
560 
7.366.   With respect to the corresponding provision of the SCM Agreement (Article 21.2), in US – 
Carbon Steel , the Appellate Body noted that: 
Article 21.2 differs from Article 21.3 in that the former identifies certain circumstances 
in which the authorities are under an obligation  to review ("shall review") whether the 
continued imposition of the countervailing duty is necessary.  In contrast, the principal obligation in Article 21.3 is not, per se , to conduct a review, but rather to terminate  a 
countervailing duty unless  a specific determination is made in a review.  We note that 
Article 21.2 sets down an explicit evidentiary standard for requests by interested parties for a review under that provision. In order to trigger the authorities' obligation 
to conduct a review, such requests must, inter alia , include "positive information 
substantiating the need for review.
561 
7.367.  Also of relevance, because Article 11.2 uses the same terms, in U S – Corrosion Resistant 
Steel Sunset Review , the Appellate Body interpreted the terms "review" and "determine" in 
Article 11.3 as follows:  
This language in Article 11.3 makes clear that it envisages a process combining both 
investigatory and adjudicatory aspects.  In other words, Article 11.3 assigns an active 
rather than a passive decision-making role to the authorities. The words "review" and 
"determine" in Article 11.3 suggest that authorities conducting a sunset review must act with an appropriate degree of diligence and arrive at a reasoned conclusion on the 
basis of information gathered as part of a process of reconsideration and examination.  
In view of the use of the word "likely" in Article 11.3, an affirmative likelihood 
determination may be made only if the evidence demonstrates that dumping would be probable if the duty were terminated—and not simply if the evidence suggests that 
such a result might be possible or plausible.
562  
7.368.  Having reviewed relevant findings by prior panels and the Appellate Body, we now 
examine the constitutive elements of Article 11.2 in  relation to requests made by an interested 
party.563 In broad terms, Article 11.2 provides that if  an investigating authority: (i) receives a 
request from an interested party; (ii) after a reason able period of time has elapsed; (iii) requesting 
it to examine one of the three matters specified in the second sentence of Article 11.2 (need for 
the continued imposition of the duty on th e basis of dumping, injury, or both); and 
(iv) accompanied by positive information substantiating the need for a review, then the authority must undertake a review of the need for the continued imposition of the duty. While the 
authorities must undertake the review where these conditions are met, Article 11.2 does not 
specify whether the review must be of the duty as a whole (i.e. on an order-wide basis) or of the 
duty as it applies to an individual producer/exporter (i.e. on a company-specific basis).   
7.369.  In our view the term "duty" as it is used in Article 11.2 can be interpreted to mean either a 
company-specific duty or an order-wide duty. Wh ile the Appellate Body has interpreted the term 
"duty", as it is used in Article 11.3, to refer to the duty as a whole, on an order-wide basis564, the 
term "duty" in Article 11.2 need not, in our view, be understood identically as it is in Article 11.3. 
                                               
560 Appellate Body Report, Mexico – Anti Dumping Measures on Rice , para. 314. (emphasis original, 
footnote omitted) 
561 Appellate Body Report, US – Carbon Steel , para. 108. (emphasis original) 
562 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 111. (emphasis original) 
See also above, para. 7.305.   
563 Given the circumstances of this dispute, we do no t need to consider the elements of Article 11.2 in 
relation to reviews undertaken by authorities on their own initiative. 
564 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , paras. 149-150. WT/DS429/R 
 
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  The reasons for this are, as discussed in more detail below, first, the different purposes of the 
provisions; second, the reference to "interested part ies" in Article 11.2, the fact that Article 11.2 
refers to the term "dumping" on its own (independently of the concept of injury) and the three different kinds of examinations that may be requested by an interested party under the 
second sentence of Article 11.2; and third, the reference to price undertakings in Article 11.5 and 
in the title of Article 11.  
7.370.  With respect to the first point, we note that although Articles 11.2 and 11.3 both 
implement the general "necessity" requirement cont ained in Article 11.1, the two provisions serve 
different purposes, and establish different mechanisms to implement that requirement. Thus, Article 11.1 refers not only to the duty's duration in time, but also to its "extent", providing that 
the duty "shall remain in force only as long as  and to the extent necessary  to counteract dumping 
which is causing injury". To us, this implies that Article 11.1 is concerned not only with the fact 
that an anti-dumping duty is in place with respect to imports from another Member generally, but also with the fact that duties are imposed on in dividual producers/exporters. Article 11.3 on the 
other hand, is concerned with the imposition of the measure with respect to imports from another 
Member as a whole and its duration in time. It makes no mention of the "extent" to which the measure is necessary to counteract dumping which is causing injury, as provided for in 
Article 11.1, suggesting that this aspect of Article 11.1 is operationalized in Article 11.2. This, in 
our view, finds confirmation in the term "or varied" in Article 11.2, which indicates that the outcome of an Article 11.2 review may be a modifi cation of the individual duty rates imposed on 
individual producers/exporters.
565 
7.371.  The reference to "interested parties" – which Article 6.11 makes clear includes foreign 
producers and exporters – and to "dumping" in Article 11.2 also in our view suggests that the drafters intended to impose obligations on the authorities with respect to individual 
producers/exporters. We note in this regard that in US – Corrosion-Resistant Steel Sunset Review , 
the Appellate Body contrasted the texts of Articles  11.2 and 11.3, specifically with respect to the 
fact that the former referred to "interested parties", and the latter did not. This was one of the 
considerations that led the Appellate Body to conclu de that the term "duty" in Article 11.3 refers to 
the duty as a whole, i.e. on an order-wide basis.
566 By the same reasoning, this difference 
suggests to us that the term "duty" in Article 11.2 can refer to the duty as applied to an individual 
producer/exporter. 
7.372.  With respect to the term "dumping", Article 11.2 gives an interested party the right to a 
review to examine "whether the continued imposition  of the duty is necessary to offset dumping, 
whether the injury would be likely to continue or recur if the duty were removed or varied, or 
                                               
565 It could also refer, for instance, to modification s in the scope of the duty, in terms of products 
covered, because some product types are no longer pr oduced in the importing country or in the exporting 
country, meaning that the duty is no longer necessary to  prevent injury to the dome stic industry with respect 
to these product types, or other partial modification of the duty. 
566 See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 149 and 152: 
Article 11.3 does not expressly state that investigating authorities must determine that the expiry of the duty would be likely to lead to dumping by each known exporter or producer 
concerned . In fact, Article 11.3 contains no express re ference to individual exporters, producers, 
or interested parties.  This cont rasts with Article 11.2, which does refer to "any interested party" 
and "[i]nterested parties" .  We also note that Article 11.3 does not contain the word "margins", 
which might implicitly refer to individual exporters or producers. On its face, Article 11.3 
therefore does not oblige investigating authorities in a sunset review to make "company-specific" likelihood determinations in the manner suggested by Japan. …  In contrast to Article 11.3, seve ral provisions of Article 6 refer expressly or by implication to 
individual exporters or producers. Article 6 re quires all interested parties to have a full 
opportunity to defend their intere sts. In particular, Article 6.1 requires authorities to give all 
interested parties notice of the information required and ample o pportunity to present in writing 
evidence that those parties consider relevant. Articles 6.2, 6.4, and 6.9 provide other examples of the kind of opportunities that investigating authorities must give each interested party. These references suggest that, when the drafters of the Anti-Dumping Agreement  intended to impose 
obligations on authorities regarding individual exporters or producers, they did so explicitly. These provisions of Article 6 apply to Article 11.3 by virtue of Article 11.4. They therefore 
confirm that investigating authorities have certain specific obligations towards each exporter or 
producer in a sunset review. However, these prov isions of Article 6 are silent on whether the 
authorities must make a separate likelihood de termination for each exporter or producer.  
(emphasis original) WT/DS429/R 
 
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  both". Hence Article 11.2 allows an interested party to request an examination limited to the 
question whether the continued imposition of the duty is necessary to offset dumping. Since dumping results from the pricing behaviour of private entities
567 and is determined with respect to 
individual producers/exporters, it seems logi cal to understand Article 11.2 as providing for 
termination of the duty with respect to an individu al producer/exporter if that duty is no longer 
necessary to offset dumping by that producer/expor ter. This is in contrast to the situation under 
Article 11.3, which envisions a review of the need  for the duty on the basis of both dumping and 
injury, and provides for termination unless both woul d continue or recur if the duty were removed. 
These considerations support the view that the term "duty" in Article 11.2 can be interpreted to refer either to the "duty" on an order-wide basis,  or "the duty" on a company-specific basis. The 
fact that the term "duty" is used, rather than th e more explicitly producer/exporter-specific term 
"dumping margins" used elsewhere in the Agreement is in our view not determinative; in 
numerous places – e.g. Articles 7.4, 9.1, 9.4, and 10.3 – the Agreement uses the term "duty" in 
the singular when referring to the duty in a company-specific sense. 
 
7.373.  Finally, we note that the title of Article 11 refers not only to anti-dumping duties, but also to price undertakings and that Article 11.5 states that Article 11.2 and the other paragraphs of Article 11 "shall apply mutatis mutandis  to price undertakings accepted under Article 8". Because 
price undertakings are necessarily company-specific, this reference to price undertakings in 
Article 11.5 further supports our view that the term "duty" in Article 11.2 can be understood in either of the two senses.
568  
7.374.  Our conclusion that the term "duty" in Article 11.2 can be read in either a company-
specific or an order-wide sense is based on the ordinary meaning of the terms of Article 11.2, read 
in their context. We note the United States' argument relying on the negotiating history of Article 11.2. We do not consider it either necessary or appropriate to resort to supplementary 
means of interpretation, as in our view there is no lack of clarity as to the meaning of the terms of 
Article 11.2. In any event, the information submitted by the United States concerning the negotiating history of Article 11.2 does not in our view conclusively establish an intention on the 
part of the drafters that the term "duty" under Article 11.2 can only be understood as a reference 
to the anti-dumping measures on an order-wide basis.  
7.375.  Turning to the nature and character of  the obligation imposed on the investigating 
authority, we note that like Article 11.3
569, Article 11.2 does not prescribe any specific 
methodology for or criteria to be considered by  the authority in determining whether there is a 
need for the "continued imposition of the duty". However, as noted above, the Appellate Body did 
indicate that Article 11.3 envisages a process combining both investigatory and adjudicatory 
aspects and assigns an active rather than a passive decision-making role to the authorities.570 The 
same considerations apply, in our view, to the re view provided for in Article 11.2, and when the 
conditions set therein are met, Article 11.2 imposes an obligation on the authority to undertake a 
review of the need for the continued imposition of the duty and to make a determination in that 
respect. 
7.376.  In light of our understanding of the term  "duty" in Article 11.2, we consider that an 
authority has some – but not unlimited – discretion in deciding whether to undertake a review on 
an order-wide or on a company-specific basis. This discretion is fettered by the right of an 
                                               
567 See, for instance, Appellate Body Report, US – Zeroing (Japan) , para. 111. 
568 As Japan notes (Japan's response to Panel qu estion Nos. 15 and 16, para. 19), the effect of 
Article 11.5 is to give the right to a producer/exporter party to a price undertaking to "request the authorities to examine whether the continued imposition of the [p rice undertaking] is necess ary to offset dumping, 
whether the injury would be likely to continue or recur if the [price undertaking] we re removed or varied, or 
both". We share Japan's view that it would be anomalou s if individual exporters could seek the removal of a 
price undertaking, but not of a company-specific duty. 
569 In US – Corrosion Resistant Steel Sunset Reviews , the Appellate Body agreed with the panel that: 
Article 11.3 does not expressly prescribe any specific methodology for investigating authorities to use in making a likelihood determination in a sunset review. Nor does Article 11.3 identify any particular factors that authorities must take into  account in making such a determination. Thus, 
Article 11.3 neither explicitly requires authoritie s in a sunset review to  calculate fresh dumping 
margins, nor explicitly prohibits them from relying on dumping margins calculated in the past. This silence in the text of Article 11.3 suggests that no obligation is imposed on investigating 
authorities to calculate or rely on dumping margins in a sunset review. 
(Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 123, footnotes omitted). 
570 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 111. WT/DS429/R 
 
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  interested party to request an examination of certain matters pursuant to the second sentence of 
Article 11.2. The situation will be different in ea ch case and will depend on both the specific 
request made by the interested party and the evid ence submitted by that party substantiating the 
need for a review. For example, an investigating au thority may decide, in response to a request to 
examine whether the continued imposition of the duty is necessary to offset dumping, that it only 
needs to undertake a review on a company-specific basis. Equally, the authority may decide to undertake a review of the duty on an order-wide basis. By contrast, if the request made by the 
interested party is for the examination of the need for the continued imposition of the duty with 
respect to both dumping and injury, then the authority in our view is required to undertake a review of the order as a whole, as the consider ation of all dumped imports would be a necessary 
element of determining whether injury is likely to continue or recur if the duty were removed or 
varied. In any event, while Article 11.2 does not sp ecify in what circumstances an authority should 
undertake a review on a company-specific basis and in what circumstances it should undertake a review on an order-wide basis, it does impose an obligation on the authority to undertake a review 
of the need for the continued imposition of th e duty and to make a determination when an 
interested party submits a request meeting the requirements set therein.   
7.377.   With these general considerations in mind, we examine the claims made by Viet Nam with 
respect to the revocation requests presented by Vietnamese producers/exporters in the fourth and 
fifth administrative reviews. We will first examin e whether the requests satisfy the requirements of 
Article 11.2 before examining the USDOC's treatment of those requests.  
7.7.5.4  Whether the revocation requests su bmitted by Vietnamese  producers/exporters 
in the administrative reviews at issue sa tisfied the requirements of Articles 11.2 
7.378.  As noted above, Article 11.2 imposes an obligation on an authority to conduct a review of 
the need for the continued imposition of the duty where the following conditions are met:
571 
a. a request is submitted by an interested party;  
b. after a reasonable period of time has elapsed; 
c. requesting that the investigating authority ex amine one of the three matters specified in 
the second sentence of Article 11.2; and 
d. the request is accompanied by positive information substantiating the need for a review. 
7.379.  As set out above in our description of the factual background to this claim, a number of 
Vietnamese producers/exporters submitted re quests for revocation in the fourth and 
fifth administrative reviews. Each Vietnamese producer/exporter that requested revocation of the 
Shrimp  order with respect to itself was, by virtue of the definition of that term in Article 6.11, an 
"interested party", satisfying the first element.  
7.380.  The requests were submitted with respect to  the fourth and fifth review periods. Given that 
this means the requests were submitted after the anti-dumping measure had been in place for several years, in our view, they satisfy the second  element, that is, a reasonable period of time 
had elapsed before they were submitted. 
7.381.  Moreover, each of these requests was su bmitted under Section 351.222(e) of the USDOC's 
Regulations and was a request for the revocation of the order with respect to the individual 
Vietnamese exporter that submitted the reques t, pursuant to Section 751(a) of the Act and 
Section 351.222(b) of the Regulations, which at the time of the proceedings at issue, established 
procedures for the "[r]evocation or termination based on absence of dumping". Each request argued that the exporter qualified for revocation  under these provisions, and requested that the 
USDOC terminate, pursuant to these provisions, th e order with respect to the requesting company 
on the ground that it had ceased dumping for the required number of years. Finally, we recall that, pursuant to Section 351.222(b)(2), in addition to considering whether the exporter requesting 
                                               
571 Article 11.2 also requires an auth ority to review the need for the continued imposition of the duty, 
where warranted, on their own initiative. As noted above at footnote 563, given the circumstances of this 
dispute, we do not need to consider the elements of Article 11.2 in relation  to reviews undertaken by 
authorities on their own initiative. WT/DS429/R 
 
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  revocation had ceased dumping for a period of three consecutive years and had made sales in 
commercial quantities, the USDOC was required to undertake a broader consideration of "whether the continued application of the antidumping duty order is otherwise necessary to offset dumping". This satisfies us that the requests that were submitted by Vietnamese producers/exporters in the 
fourth and fifth administrative reviews qualify as requests that the US authorities "examine 
whether the continued imposition of the duty is nece ssary to offset dumping" i.e., the first type of 
examination which may be requested by an interested party under Article 11.2.  
7.382.  Finally, as required under Section 351.222 of the USDOC Regulations, each request 
asserted, and attached certifications to the e ffect that, the company no longer engaged in 
dumping. This is in our view suffices to meet the requirement that the request be accompanied by 
positive information substantiating the need for a review. 
7.383.  On the basis of the foregoing, we find that each of the requests submitted by Vietnamese 
producers/exporters in the context of the fourth and fifth administrative reviews constituted a request to the USDOC for it to examine "whether th e continued imposition of the duty is necessary 
to offset dumping" within the meaning of Article 11.2.  
7.7.5.5  Whether the USDOC's treatment of requests for revocation by Vietnamese 
producers/exporters not individually examin ed is inconsistent with Articles 11.1 
and 11.2 
7.384.  We now consider the USDOC's treatment, in the fourth and fifth administrative reviews, of 
the requests for company-specific revocation submitted by Vietnamese producers/exporters who were not being individually examined in the review at issue.
572  
7.385.  We recall that in the two proceedings at issue, with respect to each of the 
producers/exporters that requested revocation, the USDOC made a determination not to revoke the order. In each case, the reason for the USDOC's decision was that the producer/exporter was 
not a mandatory respondent in the administrative review at issue, and was therefore not 
individually examined. It is clear from the preliminary and final determinations, as well as the Issues and Decision Memoranda accompanying the final determinations, that the USDOC did not 
undertake any consideration of the need for the continued imposition of the duty to offset dumping 
by any of the requesting companies. The evidence before us clearly indicates that the USDOC's decisions not to revoke the order with respect to any of the requesting companies was based 
solely on the fact that the producers/exporters at issue were not being individually examined. 
7.386.  The United States argues that the Articl e 6.10 "limited examination" exception applies in 
the context of Article 11.2 reviews, such that the USDOC was not obligated to conduct a review where it was requested to do so by a producer/exporter that was not being individually examined.  
7.387.  We recall that the first sentence of Articl e 6.10 sets forth the principle that the authorities 
shall, "as a rule", determine an individual margin of dumping for each known producer/exporter. The second sentence of Article 6.10 provides th at "[i]n cases where the number of exporters, 
producers, importers or types of products involved is so large" as to make such a determination of 
an individual margin of dumping for each known producer/exporter impracticable, the authorities may limit their examination pursuant to one of two methods. Hence, the "limited examination" 
exception in Article 6.10 concerns the possibility for a Member to limit the number of 
producers/exporters for which it calculates an individual margin.  
7.388.  Article 11.4 provides that the provisions  of Article 6 regarding evidence and procedure 
apply to reviews conducted under Article 11.2. However, the Appellate Body has indicated (in the 
context of interpreting Article 11.3) that Arti cle 11.4 does not import the requirements under 
                                               
572 In its submissions, Viet Nam has made referenc e to a number of Vietnamese producers/exporters 
that did not submit a request for company-specific revocation, or that submitted such a request and 
subsequently withdrew their request. However, we do not understand Vi et Nam to be pursuing any claim with 
respect to Vietnamese producers/exporters who did not submit and maintain a requ est for revocation. In any 
event, in the absence of a request for review, or in case such a request is withdrawn, there can in our view be 
no factual basis for a finding of inconsistency under Arti cle 11.2, unless it is argued that the authority should 
have self-initiated a review. Viet Nam does not make the latter argument.   WT/DS429/R 
 
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  Article 6 into Article 11 wholesale.573 As noted above, Article 11.2 provides little or no guidance for 
the authorities as to the methodology or criteria for the conduct of a review under that provision. 
We consider that, for the same reasons as led the Appellate Body to its conclusion regarding the interpretation of Article 11.3 in light of Article 11.4, nothing requires the authorities to calculate 
individual margins of dumping in the context of an Article 11.2 review. Moreover, in our view the 
reference in Article 11.4 to the "limited examination" exception in Article 6.10 does not allow an authority to refuse to conduct a review under Article 11.2 when the conditions set forth in that 
provision are otherwise fulfilled, on the basis that  the producer/exporter requesting revocation is 
not being individually examined or was not individually examined in prior reviews or proceedings.  
7.389.  Even assuming that Article 6.10 applies in Article 11.2 reviews in the same way as it does 
in original investigations, the USDOC's decision not to undertake the requested reviews in the 
proceedings at issue cannot be justified on the basis of that Article. There is no indication that the 
USDOC considered whether – or determined that – initiating the reviews sought by Vietnamese producers/exporters was impracticable; rather, it  preconditioned the review on the requesting 
producer/exporter having been selected for individual examination in the corresponding 
administrative review. Moreover, by requiring that only companies selected for individual examination were eligible to obtain a company-specific revocation, the USDOC imposed an 
additional condition, not foreseen under Article 11.2, on the initiation of reviews under that 
provision. 
7.390.  We note the United States' argument that Viet Nam's claims pertain to the USDOC's 
treatment of requests made under one of two alternative mechanisms available under US law to 
seek the revocation (in both cases, on a company-specific and/or order-wide basis) of anti-
dumping duty orders. As described above, at the time of the determinations at issue, US law and regulations provided for two distinct mechanisms through which the USDOC could consider 
revoking the order with respect to an individual producer, i.e. the changed circumstances review 
mechanism provided for under Section 751(b) of the Act and Section 351.222(g) of the Regulations, and the mechanism for revocation in the context of administrative reviews, set forth 
under Sections 751(a) of the Act and Section 351.222(b) of the Regulations. However, in our view, 
this argument of the United States is inapposite : the existence, under the Member's legal system, 
of an alternative mechanism is not determinative of the consistency with the WTO Agreement of the Member's treatment of requests for review under the first mechanism.
574 It is irrelevant that 
the domestic law of the importing Member provides for more than one provision or mechanism 
which could have been used by the interested party to submit its request; an authority cannot decline to conduct a review under one mechanism, and justify that refusal on the basis that the 
interested party requesting it could have used another mechanism but did not. What matters is 
whether the interested party made a request that satisfies the requirements of Article 11.2, and 
the actions taken by an authority in response to that request.
  
7.391.   On the basis of the above, we find that in its treatment of the requests for revocation 
submitted by Vietnamese producers/exporters th at were not being individually examined, the 
USDOC acted inconsistently with the United States' obligations under Article 11.2 of the Anti-Dumping Agreement.
575 This being the case, and in the light of Viet Nam's argument that 
                                               
573 In US – Corrosion Resistant Steel Sunset Review , the Appellate Body considered that Article 11.4 
does not import into Article 11.3 an obligation for inve stigating authorities to calculate dumping margins (on a 
company-specific basis or otherwise) in a sunset review. As a consequence, the Appellate Body agreed with the 
Panel's view that "[t]he provisions of Article 6.10 concer ning the calculation of individual margins of dumping in 
investigations do not require that the determination of likelihood  of continuation or recurrence of dumping 
under Article 11.3 be made on a company- specific basis". (Appellate Body Report, US – Corrosion Resistant 
Steel Sunset Review , paras. 154-155, emphasis original.) 
574 We note that our approach in this respec t differs from that of two prior panels. The US – DRAMS  and 
US – Anti Dumping Measures on Oil Country Tubular Goods  panels both considered, and rejected, claims under 
Article 11.2 challenging requirements under Section 351.222 of the USDOC Regulations and its predecessor. Both panels considered it relevant that US law prov ided a more general opportun ity to request revocation 
through the changed circumstances review, which was not al leged to be inconsistent with Article 11.2 (Panel 
Reports , US – Anti Dumping Measures on Oil Country Tubular Goods , paras. 7.162-7.169; and US – DRAMS , 
para. 6.53). 
575 We note that Viet Nam also argues that the Vi etnamese producers/exporters had demonstrated in 
repeated reviews that they were no longer dumping whil e maintaining a substantial level of exports, and thus 
had actually established that the cont inued imposition of the duty was no longer necessary to offset dumping 
by that producer/exporter (presumably independently of the requirement to demonstrate three years of no dumping under Section 351.222). (See, for instance, Viet Nam's opening statement at the first meeting of the WT/DS429/R 
 
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  Article 11.2 operationalizes the general principle set forth under Article 11.1, we do not consider it 
necessary to make separate findings under Ar ticle 11.1 of the Anti-Dumping Agreement.  
7.7.5.6  Whether the USDOC's determination not to revoke the order for certain 
Vietnamese producers/exporters on the basis that it had calculated a positive margin of 
dumping for these producers/exporters is inconsistent with Articles 11.1 and 11.2 
7.392.  We now address Viet Nam's claims with respect to the Vietnamese producers/exporters –
Minh Phu in the fourth administrative review and Camimex in the fifth administrative review – for 
which the USDOC determined not to revoke the order in part on the ground that they had positive 
dumping margins.576 With respect to these producers/exporters, the basis for Viet Nam's claim is 
that the USDOC's determination not to revoke the order was based on its reliance on WTO-inconsistent margins of dumping.  
7.393.  As discussed in more detail in the section of our findings addressing Viet Nam's claims 
concerning the sunset review
577, we share the view of other panels and the Appellate Body that if 
an authority decides to rely on margins of dumping in conducting its analysis in an Article 11.3 
sunset review, those margins of dumping must have been established consistently with the 
provisions of the Agreement. We see no reason to adopt a different approach with respect to a 
review conducted pursuant to Article 11.2. As we have noted above, Article 11.2 does not 
necessarily require an investigating authority to determine the continued need for the imposition 
of the duty on the basis of dumping margins calculated for respondents. However, if the 
investigating authority elects to rely on the existence of dumping margins in the determination foreseen under Article 11.2, then, the margins it relies upon must be margins determined 
consistently with the disciplines of the Agreement and with Article VI:2 of the GATT 1994. As a 
consequence, to the extent that the USDOC relied on margins of dumping calculated inconsistently with the Anti-Dumping Agreement in its consideration of requests for revocation of certain 
companies, the USDOC acted inconsistently with the United States' obligations under Article 11.2.  
7.394.  The evidence before us establishes that, in the fourth administrative review, the USDOC 
determined not to revoke the Shrimp  order with respect to Minh Phu on the basis that it had 
calculated a dumping margin for that producer/exp orter. We have already determined that this 
dumping margin was calculated with simple zeroing, and for this reason, is inconsistent with Article 9.3 of the Anti-Dumping Agreement, as well as with Article VI:2 of the GATT 1994. Consequently, the USDOC's determination not to re voke the order with respect to Minh Phu on the 
basis of the dumping margin in the fourth administrative review is inconsistent with Article 11.2.  
7.395.  The evidence before us also establishes that, in the fifth administrative review, the USDOC 
determined not to revoke the Shrimp  order with respect to Camimex on the basis that it had 
calculated a dumping margin for that producer/exporter. As was the situation regarding Minh Phu, 
this dumping margin was calculated with simple zeroing, and for this reason, contrary to Article 9.3 of the Anti-Dumping Agreement, as well as with Article VI:2 of the GATT 1994. 
Consequently, the USDOC's determination not to re voke the order with respect to Camimex in the 
fifth administrative review is inconsistent with Article 11.2 of the Anti-Dumping Agreement. 
7.396.  On the basis of the foregoing, we find that 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 in its determination, in the 
                                                                                                                                               
Panel, para. 64.) Viet Nam's argument invites us to engage in a de novo  review of the evidence before the 
USDOC, to determine whether the evidence justified the re vocation of the order. We recall that we are not to 
engage in any such de novo  review of the evidence before the USDO C, and that our consideration of the WTO-
consistency of the USDOC's determinations must proceed on the basis of the requests that were actually submitted to it, and of the reasons that it provided in its determinations. We also note that Viet Nam does not 
argue that the USDOC should have self-initiated a review (or reviews) under Article 11.2. 
576 Viet Nam argues that the issue of whether or not a WTO-inconsis tent margin of dumping can be 
relied upon in the context of an Article 11.2 review is also an issue with respect to other respondents, i.e. 
presumably those discussed in the preceding section. (See Viet Nam's second written submission, para. 117.) However, the record before us show s that the only two producers for which the USDOC determined not to 
revoke the order because it calculated positive du mping margins for them were Minh Phu in the fourth 
administrative review and Camimex in  the fifth administrative review. 
577 See above, para. 7.306.   WT/DS429/R 
 
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  fifth administrative review, not to revoke the Shrimp  anti-dumping order with respect to Camimex. 
In light of these findings, and in the light of Viet Nam's argument that Article 11.2 operationalizes the general principle set forth under Article 11.1, we do not consider it necessary to make findings under Article 11.1 of the Anti-Dumping Agreement. 
8  CONCLUSIONS AND RECOMMENDATION 
8.1.  For the reasons set forth in this Report, the Panel concludes as follows: 
a. Viet Nam has failed to establish that the simple zeroing methodology as used by the 
USDOC in administrative reviews is a measure of general and prospective application 
which can be challenged "as such". Therefore, we find that Viet Nam has 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; 
b. 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; 
c. 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 "as such" inconsistent with the United States' obligations under Articles 6.10 and 9.2 of the Anti-Dumping Agreement; 
d. 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 entity; 
e. Viet Nam has 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, we find that Viet Nam has not established that the 
alleged measure is "as such" inconsistent with Articles 6.8 and 9.4, and Annex II of the Anti-Dumping Agreement; 
f. The United States acted inconsistently with Article 9.4 of the Anti-Dumping Agreement 
as a result of the application to the Viet Na m-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 order; 
g. Viet Nam has 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 of the Anti-Dumping Agreement; 
h. Viet Nam has failed to establish that Section 129(c)(1) precludes implementation, with 
respect to prior unliquidated entries, of DSB recommendations and rulings. Therefore, 
we find that Viet Nam has not established that Section 129(c)(1) is "as such" inconsistent with Articles 1, 9.2, 9.3, 11.1 and 18.1 of the Anti-Dumping Agreement; 
i. 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 review; 
j. 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. We do not make any findings with respect to Viet Nam's 
corresponding claim under Article 11.1 of the Anti-Dumping Agreement; WT/DS429/R 
 
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  k. 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 revi ew, not to revoke the Shrimp  anti-dumping order with respect to 
Camimex. We do not make any findings with respect to Viet Nam's corresponding claim under Article 11.1 of the Anti-Dumping Agreement. 
8.2.  Under Article 3.8 of the DSU, in cases wh ere there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are inconsistent with the GATT 1994 and the Anti-Dumping Agreement, they have nullified or impaired 
benefits accruing to Viet Nam under those Agreements. 
8.3.  Pursuant to Article 19.1 of the DSU, we re commend that the United States bring the relevant 
measures into conformity with its obligations under the GATT 1994 and the Anti-
Dumping Agreement. 
8.4.  Viet Nam requests that we exercise the discretion granted to WTO dispute settlement panels 
under Article 19.1 of the DSU to suggest that th e United States implement this recommendation 
by revoking the anti-dumping duty order in its totality, and with respect to Minh Phu and 
Camimex, the latter as a consequence of eventual findings concerning the USDOC's treatment of these Vietnamese producers/exporters' requests for revocation.
578  
8.5.  Article 19.1 of the DSU provides as follows:  
Where a panel or the Appellate Body concludes that a measure is inconsistent with a 
covered agreement, it shall recommend that the Member concerned bring the 
measure into conformity with that agreement. In addition to its recommendations, the 
panel or Appellate Body may suggest ways in which the Member concerned could 
implement the recommendations. (footnotes omitted) 
8.6.  Thus, while a panel must ("shall") re commend that a Member found to have acted 
inconsistently with a provision of a covered agreement bring the relevant measure into conformity, 
it has discretion to ("may") suggest ways in which the responding Member could implement that recommendation. Previous panels have emphasized that Article 21.3 of the DSU gives the authority to decide the means of implementation, in the first instance, to the Member found to be 
in violation.
579 Although we have found that certain of the measures challenged by Viet Nam are 
inconsistent with the GATT 1994 and the Anti-D umping Agreement, and recommend that the 
United States bring the relevant measures into conformity with its obligations under these 
Agreements, we decline to exercise our discretion under the second sentence of Article 19.1 in the 
manner requested by Viet Nam. 
 
__________  
  
                                               
578 See above, para. 3.2.   
579 E.g. Panel Reports, EC – Fasteners (China) , para. 8.8; and US – Hot-Rolled Steel , para. 8.11.