WORLD TRADE  
ORGANIZATION  WT/DS335/R 
30 January 2007 
 (07-0346) 
 Original:  English 
  
 
     
 
    
 
 
UNITED STATES – ANTI-DUMPING MEASURE ON 
SHRIMP FROM ECUADOR 
 
 
Report of the Panel 
 
 
  WT/DS335/R 
Page i 
 
 
TABLE OF CONTENTS 
Page  
 
I. INTRODUCTION ................................................................................................................... .1 
A. COMPLAINT OF ECUADOR ...........................................................................................................1  
II. FACTUAL ASPECTS ..............................................................................................................1  
III. PROCEDURAL ASPECTS .....................................................................................................2  
IV. PARTIES' REQUESTS FOR FIND INGS AND RECOMMENDATIONS.........................3  
A. ECUADOR ............................................................................................................................... .....3 
B. UNITED STATES ...........................................................................................................................3  
V. ARGUMENTS OF THE PARTIES A ND OF THE THIRD PARTIES ..............................3  
VI. INTERIM REVIEW................................................................................................................. 3 
VII. FINDINGS....................................................................................................................... ..........4  
A. GENERAL ISSUES .........................................................................................................................4  
1. Role of the Panel under Article 11 in disputes where the responding party does 
not object to the compla ining party's claims ..........................................................................4  
2. Burden of proof................................................................................................................ .........6  
B. SUBSTANTIVE ISSUE - USE OF "ZEROING " BY THE USDOC  IN THE MEASURES AT ISSUE ...........8  
1. Ecuador's arguments............................................................................................................ ....8 
(a) Introduction................................................................................................................... ..............8  
(b) Similarities with the measures at issue in US – Softwood Lumber V ...........................................8  
(c) Legal arguments................................................................................................................ ........10  
2. The United States' arguments................................................................................................12  
3. Arguments of the third parties ..............................................................................................12  
4. Analysis by the Panel.......................................................................................................... ....13  
(a) Whether Ecuador has established that the US DOC "zeroed" in the three measures at 
issue .......................................................................................................................... ................13  
(b) Whether Ecuador has established that the me thodology used by the USDOC is similar 
to the methodology the USDOC used in Lumber V ..................................................................13  
(c) Ecuador's claim of inconsistenc y under Article 2.4.2 of the Anti-Dumping Agreement ...........14  
VIII.  CONCLUSIONS AND RECOMMENDATIONS................................................................17  
 
ATTACHMENT 1 – REQUEST FOR ESTABLISHMENT OF A PANEL (DS335/6) 
 ATTACHMENT 2 – PROCEDURAL AGREEMENT BETWEEN ECUADOR AND THE UNITED STATES (DS335/8)  
 WT/DS335/R          
Page ii  
 
LIST OF ANNEXES 
 
ANNEX A 
 
SUBMISSIONS OF ECUADOR 
 
Contents Page 
Annex A-1 Written Submission of Ecuador (19 October 2006)  A-2 
Annex A-2 Oral Statement of Ecuador (3 November 2006)  A-5 
Annex A-3 Answers of Ecuador to Questions from the Panel (6 November 2006)  A-6 
Annex A-4 Answers of Ecuador to Questions from the Panel (13 November 2006)  A-8 
 
 
ANNEX B 
 
SUBMISSIONS OF THE UNITED STATES 
 
Contents Page 
Annex B-1 Written Submission of the United States (23 October 2006)  B-2 
Annex B-2 Oral Statement of the United States (3 November 2006)  B-3 
Annex B-3 Answers of the United States to Questions from the Panel 
 (13 November 2006)  B-4 
 
 
ANNEX C 
 
SUBMISSIONS OF THE THIRD PARTIES 
 
Contents Page 
Annex C-1 Oral Statement of Brazil C-2 
Annex C-2 Answer of Brazil to Question Posed by the Panel C-4 
Annex C-3 Written Submission of Chile C-5 
Annex C-4 Oral Statement of Chile C-6 
Annex C-5 Answer of Chile to Question Posed by the Panel C-7 
Annex C-6 Oral Statement of China C-8 
Annex C-7 Written Submission of the European Communities C-9 
Annex C-8 Answer of the Europ ean Communities to Question Posed 
  by the Panel C-11 
Annex C-9 Oral Statement of India C-13 
Annex C-10 Answer of India to Question Posed by the Panel C-14 
Annex C-11 Oral Statement of Japan C-15 
Annex C-12 Answer of Korea to Question Posed by the Panel C-16 
Annex C-13 Written Submission of Mexico C-18 
Annex C-14 Oral Statement of Mexico C-23 
Annex C-15 Answer of Mexico to Question Posed by the Panel C-25 
Annex C-16 Oral Statement of Thailand C-26  WT/DS335/R 
Page iii 
 
 
TABLE OF CASES CITED IN THIS REPORT 
 
 
Short Title Full Case Title and Citation 
EC – Bed Linen  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, 2049.  
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, 135 . 
Japan – Agricultural 
Products II  Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Alcoholic 
Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97. 
US – Gambling  Appellate Body Report, United States – Measures Affecting Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 
20 April 2005.  
US – Oil Country Tubular Goods Sunset Reviews
 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubul ar Goods from Argentina , 
WT/DS268/AB/R, adopted 17 December 2004.  
US – Shrimp (Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain 
Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by 
Malaysia , WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 
6481. 
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,1875 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of 
Woven Wool Shirts and Blouses from India , WT/DS33/AB/R and Corr.1, 
adopted 23 May 1997, DSR 1997:I, 323. 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and 
Methodology for Calculating Dumping Margins 
("Zeroing") ,WT/DS294/AB/R, a dopted 9 May 2006. 
  WT/DS335/R 
 Page 1 
 
 
  I. INTRODUCTION 
A. COMPLAINT OF ECUADOR  
1.1 On 17 November 2005, the Government of Ec uador ("Ecuador") requested consultations 
pursuant to Article 4 of the Understanding on Ru les and Procedures Governing the Settlement of 
Disputes ("the DSU"), Article XXII of the Gene ral Agreement on Tariffs and Trade 1994 ("the 
GATT"), and Article 17 of the Agreement on Implemen tation of Article VI of the General Agreement 
on Tariffs and Trade 1994 ("the Anti-Dumping Ag reement") concerning certain anti-dumping 
measures on frozen warmwater shrimp from Ecuador and, in particular , the United States Department 
of Commerce ("USDOC")'s practice of "zeroing" when calculating dumping margins, as applied in 
these measures.1 Ecuador and the United States consulted on 31 January 2006 and on several 
occasions thereafter, but failed to resolve the dispute. 
1.2 On 8 June 2006, Ecuador requested the Dispute Settlement Body ("the DSB") to establish a 
panel pursuant to Articles 4 and 6 of the DSU, Article XXIII of the GATT, and Article 17 of the Anti-
Dumping Agreement .2 
1.3 At its meeting on 19 July 2006, the DSB establishe d a Panel in accordance with Article 6 of 
the DSU to examine the matter referred to the DSB by Ecuador in document WT/DS335/6.3 The 
Panel's terms of reference are the following: 
"To examine, in the light of the relevant provisions of the covered agreements cited 
by Ecuador in document WT/DS335/6, the ma tter referred to the DSB by Ecuador in 
that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements." 
1.4 On 26 September 2006, the parties agreed that  the Panel would be composed as follows: 
Chairman: Mr. Alberto Juan Dumont Members: Ms. Deborah Milstein 
   Ms. Stephanie Sin Far Man 
1.5 Brazil, Chile, China, the European Communities,  India, Japan, Korea, Mexico and Thailand 
reserved their third-party rights. 
1.6 The Panel’s meetings with the parties and th e third parties were held on 3 November 2006. 
II. FACTUAL ASPECTS 
2.1 At issue in this dispute is the use by the USDOC of zeroing as applied  in respect of three anti-
dumping measures on certain frozen warmwater shrimp  from Ecuador.  The measures as identified by 
Ecuador are the final determination of dumping, th e amended final determina tion of dumping, and the 
anti-dumping order. 
2.2 The USDOC, on 27 January 2004, initiated an an ti-dumping investigation on Certain Frozen 
and Canned Warmwater Shrimp fro m Ecuador.  On 4 August 2004, the USDOC published a notice of 
a preliminary determination of dumping  in this investigation.  In the notice, the USDOC indicated that 
                                                     
 
1 WT/DS335/1. 
2 WT/DS335/6, appended to this Report as Attachment 1. 
3 WT/DS335/7. WT/DS335/R          
Page 2  
 
  it had selected the three largest producers/exporters  of the subject merchandise, Exporklore S.A. 
("Exporklore"), Exportadora De Alimentos S.A. ("E xpalsa") and Promarisco S.A. ("Promarisco") as 
mandatory respondents and had calculated margins of  dumping for these three respondents, as well as 
an "all others" rate.
4 
2.3 On 23 December 2004, the USDOC's final dumping determination was published,5 reporting 
that the following margins of dumping had been calculated:  Expalsa, 2.62%, Exporklore, 2.35%, 
Promarisco, 4.48%, and "all others", 3.26%.  On 1 February 2005, in response to comments received 
from interested parties, the USDOC published an  amended final margin determination and anti-
dumping duty order.6 The amended final margins of dumping calculated by the USDOC were as 
follows: Exporklore 2.48%, Promarisco, 4.42%, "all ot hers", 3.58%.  The amended final margin of 
dumping calculated for Expalsa was de minimis .  Expalsa was therefore not made subject to the final 
anti-dumping duty order. 
2.4 Ecuador contends that the USDOC engaged in  "zeroing" in determining the respective 
margins of dumping for Exporklore, Promarisco and "all others"7 in the final dumping determination, 
the amended final determination, and the anti-dumpi ng order, and that as a consequence the measures 
at issue violate Article 2.4.2 of the Anti-Dumping Agreement . 
III. PROCEDURAL ASPECTS 
3.1 On 12 October 2006, at the organizational meeting of the Panel, Ecuador and the 
United States informed the Panel that they had r eached an agreement concerning certain procedural 
aspects of this dispute.8 The Agreement provides, inter alia , that the Parties would cooperate to enable 
the Panel to circulate its report as quickly as possible and that to that end, the parties would seek to 
reach agreement on expedited working procedures that  they would jointly ask the Panel to adopt, and 
that would allow for the adoption of the Panel Report by the DSB no later than 31 October, 2006.9  At 
the organizational meeting, the parties did jointl y present such proposed working procedures, as well 
as a proposed accelerated timetable, for the Panel' s consideration, emphasizing that they understood 
that it was up to the Panel to decide on the timetab le and working procedures after consulting with the 
parties. 
3.2 The Agreement also provides that the United Stat es would not contest Ecuador's claims that 
the measures identified in Ecuador's request for th e establishment of a panel are inconsistent with 
Article 2.4.2, first sentence, on the grounds stated in US – Softwood Lumber V .10 The Agreement 
                                                      
4 Exhibit Ecu-1 to answers of Ecuador to questions from the Panel (13 November 2006), Notice of 
Preliminary Determination of Sales at Less than Fair Value and Postponement of Fi nal Determination: Certain 
Frozen and Canned Warmwater Shrimp from Ecuador, 69 Fed. Reg. 47091. 
5 Notice of Final Determination of Sales at less Than Fair Value: Certain Frozen and Canned 
Warmwater Shrimp from Ecuador, 69 Fed. Reg. 79613 , Exhibit Ecu-2 to the written submission of Ecuador. 
6 Notice of Amended Final Determination of Sales at Less than Fair Value and Antidumping Duty 
Order: Certain Frozen Warmwater Shrimp from Ecuado r, 70 Fed. Reg. 5156, Exhibit Ecu-3 to the written 
submission of Ecuador. 
7 Ecuador describes the "all others" rate as "[t]he amended final weighted average of [Exporklore and 
Promarisco's] margins, which applies to all non-inv estigated Ecuadorian producers that export to the 
United States." See  answers of Ecuador to questions from the Panel (13 November 2006), Annex A-3 
(question 1). 
8 The "Agreement on Procedures", WT/DS335/8, also submitted to the Panel as Exhibit Ecu-1 to  the 
written submission of Ecuador, is appended as Attachment 2.   
9  The parties did not, in their jointly proposed timetable, ask the Panel to abide by that date. This 
would in any case not have been possible given that the organizational meeting was only held on 12 October 2006.  
10 Agreement on Procedures, para. 3.  WT/DS335/R 
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  further recognizes that the scope of Ecuador's request for the establishment of a panel does not include 
any claim regarding the margin of dumping calculate d for Expalsa, and that the parties would so 
inform the Panel.  The Agreement provides in this respect that if the Panel were to make findings 
consistent with the parties' understanding as to th e exclusion of Expalsa, implementation would not 
involve a recalculation of the margin for Expalsa.11 
3.3 The Agreement also provides that Ecuador woul d not request that the panel suggest, pursuant 
to the second sentence of Article 19.1 of the DSU, ways in which the United States could implement 
the Panel's recommendations.12 
3.4 On 17 October 2006 the Panel adopted its tim etable and working procedures, after 
considering the parties' joint proposal.  Given the special circumstances of this case, the Panel decided 
to adopt an expedited timetable, based on the parties' joint proposal. 
IV. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS 
A. ECUADOR  
4.1 Ecuador requests the Panel to find that th e United States acted inconsistently with 
Article 2.4.2, first sentence, of the Anti-Dumping Agreement  by using "zeroing" when calculating the 
dumping margins for Exporklore, Promarisco and "a ll others" in the anti-dumping investigation of 
certain shrimp from Ecuador.13  Ecuador relies, inter alia , on the reasoning in the Appellate Body 
Report in US – Softwood Lumber V , in this respect, arguing that in  that case, the DSB ruled that a 
similar measure was inconsistent with Article 2.4.2 of the Anti-Dumping Agreement . 
B. UNITED STATES  
4.2 The United States does not contest Ecuador's cl aims.  To the contrary, the United States 
"acknowledges" the accuracy of Ecuador’s description of the USDOC’s use of "zeroing" in the 
measures at issue and "recognizes" that a measure using a similar calculation, which was the subject 
of the US – Softwood Lumber V  Report, was ruled by the DSB to be  inconsistent with Article 2.4.2, 
first sentence.14 
V. ARGUMENTS OF THE PARTIES AND OF THE THIRD PARTIES 
5.1 The arguments of the parties and third parties are set out in their written submissions, oral 
statements to the Panel and answers to Panel questions that are set forth in the Annexes to this Report. 
(See list of annexes, at page ii, supra ). 
VI. INTERIM REVIEW 
6.1 The Panel's Interim Report was issued to  the parties on 4 December 2006. On 
11 December 2006, the United States submitted a wr itten request to review precise aspects of the 
Interim Report.  Ecuador submitted no request for revi ew and, in addition, indicated that it had no 
comments on the United States' request for review.  
6.2 The United States, in its request, suggested th at the Panel insert additional language into 
paragraph 7.38 of the Interim Report to more accurate ly reflect the reasoning of the Appellate Body in 
US – Softwood Lumber V .  The United States also suggested that paragraph 7.41 be amended in line 
                                                      
11 Ibid., para. 7 
12 Ibid., para. 4. 
13 Written submission of Ecuador, Annex A-1, para. 22. 
14 Written submission of the United States, Annex B-1, para. 5. WT/DS335/R          
Page 4  
 
  with its proposed amendments to paragraph 7.38 .  After carefully reviewing these suggestions, the 
Panel has modified aspects of paragraphs 7.38 and 7. 41 of the Interim Report, incorporating some of 
the language proposed by the United States and maki ng additional modifications where it considered 
that doing so would provide additional clarity to the Panel's discussion of the Appellate Body's reasoning in US – Softwood Lumber V .  
6.3 Finally, the Panel amended the last sentence of   paragraph 3.2 to remove ambiguity in its 
wording and to more clearly reflect the contents of  the parties' Agreement on Procedures.  The Panel 
also made some technical corr ections to other paragraphs. 
VII. FINDINGS 
A. G
ENERAL ISSUES  
1. Role of the Panel under Article 11 in di sputes where the responding party does not 
object to the complaining party's claims 
7.1 The dispute before us is unusual in that, as mentioned above, the responding party, the 
United States, does not contest any of the complaini ng party’s claims.  The parties have not, however, 
characterized their shared view of the substan tive aspects of the dispute as a "mutually agreed 
solution", and thus Article 12.7 does  not apply.15  We therefore start by considering whether the lack 
of substantive disagreement between the pa rties affects our responsibilities as a Panel. 
7.2 In this regard, we consider that  we must be guided in this dis pute, as we would be in any other 
dispute subject to the DSU, by the provisions in Article 11 of the DSU, "Function of Panels", which 
provides: 
The function of panels is to assist the DSB in discharging its responsibilities under 
this Understanding and the cove red agreements. Accordingly, a panel should 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. 
Panels should consult regularly with the par ties to the dispute and give them adequate 
opportunity to develop a mutually satisfactory solution. 16 (emphasis added) 
                                                      
15 We note that Article 12.7 of the DSU provides that, where the parties to the dispute have developed a 
"mutually satisfactory solution", the report of the panel "shall be confined to a brief description of the case and 
to reporting that a solution has been reached".  In contrast, where no such solution has been reached, "the panel 
shall submit its findings in the form of a written report to the DSB", which report "shall set out the findings of 
fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations 
that it makes." 
16 Article 11 DSU. We note that Article 17.6 Anti-Dumping Agreement  – setting forth the special 
standard of review applicable to disputes under the Anti-Dumping Agreement  – also applies to this dispute. 
Article 17.6  provides that: 
"17.6 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 pa nel might have reached a different conclusion, 
the evaluation shall not be overturned; 
 (ii) the panel shall interpret the relevant provisions of the Agr eement 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  WT/DS335/R 
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  7.3 Given that, notwithstanding their common view as  to how the dispute should be resolved, the 
parties have not reached a mutually agreed solution (which would require us only to "report[] that a 
solution has been reached"17), we understand that our responsibility is as set forth in Article 11 DSU, 
i.e., to make an "objective assessm ent of the facts of the case and th e applicability of and conformity 
with the relevant covered agreemen ts, 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". 
7.4 We note that the the parties and third parties sh are this view.   For instance, Ecuador and the 
United States, in their (identical) response to  a question from the Panel addressing this issue,18 
indicate that they: 
[consider] that the role of a Panel in a ca se like this one, where th ere is no substantive 
disagreement between the Parties as to the inconsistency of a measure with one or 
more cited provisions of a covered Agreement, is nevertheless to make an objective assessment of the matter, as required by Article 11 of the DSU, including an objective assessment of the facts of the case and the applicability of and c onformity with the 
relevant covered agreements.  The matter be fore this Panel is a narrow one – whether 
Commerce’s calculation of the weighted av erage to weighted average margins of 
dumping for the two separately investigated Ecuadoran exporters and for “all other” 
exporters breaches the first sentence of Artic le 2.4.2.  Therefore, the Parties are not 
asking the Panel to “sanction” their Agreem ent, but rather, to consider that the 
Agreement facilitates the Pa nel’s assessment of the facts of the case and the 
applicability and conf ormity of the measures with  the covered agreements.  
Nevertheless, it is correct to say that they  are seeking a decision that would allow the 
rest of the provisions of the Agreement to be implemented.
19 
7.5 A number of third parties formulate similar view s on the issue.  For instance, the European 
Communities submit that: 
Article 11 of the DSU does not expressly refe r to a panel "sanctioning the mutual 
understanding of the parties".  Rather it refers to a panel making an "objective 
assessment" and making "findings".  Such an "objective assessment" and such "findings" are always made by a panel "on its own", in the sense that the panel takes 
sole responsibility for them, and is not compelled  to follow the opinion of one or both 
Parties.
20 
7.6 India indicates that, in its view,  
                                                                                                                                                                     
panel shall find the authorities' measure to be in conformity with the Agreement if it rests 
upon one of those permissible interpretations." 
Given that the United States does not contest Ecuador's claims , it is not necessary for us to consider in detail the 
implications of the standard of review in this dispute.  
17 Article 12.7 DSU.   
18 The Panel asked the parties and third parties to  provide their views on the following question: 
"What does your delegation consider is the role of a Panel in a case like this one, where there 
is no substantive disagreement between the Partie s as to the inconsistency of a measure with 
one or more cited provisions of a covered Agreement?  Can the Panel limit itself to 
sanctioning the mutual understanding of the par ties, or must the Panel, on its own, determine 
whether the measure at issue is inconsistent with the cited provisions?" 
19 Answers of the United States to questions from the Panel (13 November 2006) (answer to question 
5), Annex B-3; answers of Ecuador to questions from the Panel (13 November 2006) (answer to question 5), Annex A-4. 
20 Answer of the European Communities to question posed by the Panel, Annex C-8, para. 4. WT/DS335/R          
Page 6  
 
  the panel's obligation under Article 11 of the DSU to examine and resolve the claim 
put forward by Ecuador is not affected by the fact that the United States has indicated that it will not contest Ecuador's claim.  Even though the United States is not 
contesting the claim, the panel must still examine whether Ecuador has made a prima 
facie  case that the use of zeroing in the measu re at issue was inconsistent with 
Article 2.4.2 and make a finding on that issue.
21 
2. Burden of proof 
7.7 Because of its singularity, this dispute raises in  a particularly acute fashion the issue of the 
burden of proof. 
7.8 The burden of proof lies, in WTO dispute settle ment proceedings, with the party that asserts 
the affirmative of a particular claim or defence.22 Ecuador, as the complaining party, must therefore 
make a prima facie  case of violation of the relevant provisions  of the relevant WTO agreements.  The 
burden would then shift to the responding party (h ere the United States), to adduce evidence to rebut 
the presumption that Ecuador's assertions are tr ue.  In this context, we recall that "a prima facie  case is 
one which, in the absence of effective refutation by the defending party, requires a panel, as a matter 
of law, to rule in favour of the complaining party presenting the prima facie  case."23 
                                                      
21 Answer of India to question posed by the Panel, Annex C-10 (footnote omitted).  The responses of 
other third parties are also consistent with our approach .  Korea provides detailed reasoning under the provisions 
of the DSU as to why the Panel could not limit itself to sanctioning the parties' Agreement.  It notes that such 
"understandings" do not have the legal effect of constraining the function of a panel until they have been converted into a mutually ag reed solution and notified to the DSB accordi ngly.  See answer of Korea to question 
posed by the Panel, Annex C-12.  Brazil submits that, unless the Panel were to consider that it constitutes a 
mutually agreed solution, the partie's Agreement has not, and could not have, revoked Article 11 of the DSU and that the Panel is therefore bound by its duty to make  an objective assessment of the matter before it.  See 
answer of Brazil to question posed by the Panel, Annex C- 2. Chile, on the basis of the obligation on panels in 
DSU Article 11 to perform an objective evaluation of the ma tter before them, argues that the role of this Panel, 
considering the agreement reach ed between the parties, is to perform an objective eval uation of the facts, of the 
applicability of the cited provisions, and of the conformity of the measures in question with those provisions, all 
on the bases presented by Ecuador and not contested by the United States.  See answer of Chile to question posed by the Panel, Annex C-5.  Mexico draws a di stinction between WTO dispute settlement and commercial 
arbitration, arguing that in the latter context an agreement between the partie s may be submitted to an arbitrator 
for approval.  In the WTO context, by contrast, Mexico argues that if a panel were simply to sanction an 
agreement between two parties as to the interpretation of a provision, this could not, via the negative consensus 
rule, substitute for an authoritative interpretation by Me mbers pursuant to Article IX  of the WTO Agreement.  
See answer of Mexico to question posed by the Panel, Annex C-15. 
22 Appellate Body Report, US – Wool Shirts and Blouses , p. 14; Appellate Body Report, EC – 
Hormones , para. 98.  In US – Wool Shirts and Blouses , the Appellate Body noted that a number of GATT Panels 
had adopted this approach; it also indicated that most jurisdictions adopt a similar rule: 
"In addressing [the issue of the burden of proof], we find it difficult, indeed, to see how any 
system of judicial settlement could work if it incorporated the proposition that the mere assertion of a claim might amount to proof.  It is, thus, hardly surprising that various 
international tribunals, including the Interna tional Court of Justice, have generally and 
consistently accepted and applie d the rule that the party wh o asserts a fact, whether the 
claimant or the respondent, is responsible for providing proof thereof.  Also, it is a generally-
accepted canon of evidence in civil law, common la w and, in fact, most jurisdictions, that the 
burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence.  If that party addu ces evidence sufficient to raise a 
presumption that what is claimed is true, the burden then shifts to the other party, who will fail 
unless it adduces sufficient eviden ce to rebut the presumption."  
US – Wool  Shirts and Blouses , p. 14 (footnotes omitted). 
23 EC – Hormones , para. 104, citing US – Wool  Shirts and Blouses , p. 14.  WT/DS335/R 
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  7.9 In our view, the issue of the burden of proof is of particular importance in this case.  This is 
because Ecuador has made factual and legal claims before the Panel which the United States does not 
contest. Yet, the fact that the United States does not contest Ecuador's claims is not a sufficient basis 
for us to summarily conclude that Ecuador's clai ms are well-founded.  Rather, we can only rule in 
favour of Ecuador if we are satisfied that Ecuador has made a prima facie  case.  We take note in this 
regard that the Appellate Body has cautioned panels  against ruling on a claim before the party bearing 
the burden of proof has made a prima facie  case.  In EC – Hormones , the Appellate Body ruled that 
the Panel erred in law when it absolved the comp laining parties from the necessity of establishing a 
prima facie  case and shifted the burden of proof to the responding party: 
In accordance with our ruling in United States - Shirts and Blouses , the Panel should 
have begun the analysis of each lega l provision by examining whether the 
United States and Canada had presented ev idence and legal arguments sufficient to 
demonstrate that the EC measures were inconsistent with the obligations assumed by the European Communities under each Article of the SPS Agreement addressed by 
the Panel ... Only after such a prima facie determination had been made by the Panel 
may the onus be shifted to the European Communities to bring forward evidence and 
arguments to disprove the complaining party's claim.
24 
7.10 More recently, in US – Gambling , the Appellate Body indicated that "[a] panel errs when it 
rules on a claim for which the complaining party has failed to make a prima facie  case",25 and noted 
that:  
A  prima facie   case must be based on "evidence and legal argument" put forward by 
the complaining party in relation to each  of the elements of the claim.  A complaining 
party may not simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency.  Nor may a compla ining party simply allege facts without 
relating them to its legal arguments. 
In the context of the sufficiency of panel requests under Article 6.2 of the DSU, the 
Appellate Body has found that a panel request:   
... must plainly connect the challenged measure(s) with the 
provision(s) of the covered agreements claimed to have been infringed, so that the respondent party is aware of the basis for the alleged nullification or impairme nt of the complaining party's 
benefits.  
Given that such a requirement applies to  panel requests at the outset of a panel 
proceeding, we are of the view that a  prima facie   case—made in the course of 
submissions to the panel—de mands no less of the complaining party.  The evidence 
and arguments underlying a  prima facie   case, therefore, must be sufficient to 
identify the challenged measure and its b asic import, identify the relevant WTO 
provision and obligation contained therein, and explain the basis for the claimed 
inconsistency of the measure with that provision.
26 
                                                      
24 EC – Hormones , para. 109 (footnotes omitted); see also, inter alia , the Appellate Body Report in 
Japan – Agricultural Products II , paras. 122, 130 
25 US – Gambling , para. 139. 
26 Ibid., paras. 140-141 (footnotes omitted, emphasis original).  See also the Appellate Body Report in 
US – Zeroing (EC) , para. 217. WT/DS335/R          
Page 8  
 
  7.11 Thus, notwithstanding the fact that the United St ates is not seeking to refute Ecuador's claims, 
we must satisfy ourselves that Ecuador has established a prima facie  case of violation, and notably 
that it has presented "evidence and argument... suffici ent to identify the challenged measure and its 
basic import, identify the relevant WTO provision a nd obligation contained therein, and explain the 
basis for the claimed inconsistency of the measure with that provision." 
7.12 We now proceed to examine whether Ecuador has met its burden to make a prima facie  case. 
B. S
UBSTANTIVE ISSUE - USE OF "ZEROING " BY THE USDOC  IN THE MEASURES AT ISSUE  
1. Ecuador's arguments 
(a) Introduction 
7.13 Ecuador contends that the USDOC's fina l determination of 23 December 200427 and its 
amended final margin determination a nd anti-dumping order of 1 February 200528 are inconsistent 
with the United States' obligations under th e first sentence of Article 2.4.2 of the Anti-Dumping 
Agreement as that provision applies to the weighted average-to-weighted average methodology.  
Ecuador's claims are limited to the calculation of  the dumping margins for two Ecuadorian exporters 
(Promarisco and Exporklore) and the "all others" rate .  Ecuador's challenge is limited to the USDOC's 
use of zeroing in an original investigation and does not address such use in the context of annual 
administrative review proceedings or  any other types of proceedings.29 
7.14 Ecuador describes the "zeroing" methodolog y at issue in this dispute as follows: 
(1) different "models," i.e. types, of pr oducts are identified using "control numbers" 
that specify the most relevant product char acteristics, (2) weighted average prices in 
the U.S. and weighted average normal values in the comparison market are calculated 
on a model-specific basis for the entire pe riod of investigation; (3) the weighted 
average normal value of each model is comp ared to the weighted average U.S. price 
for that same model; (4) in order to calcula te the dumping margin for an exporter, the 
amount of dumping for each model is summed and then divided by the aggregated U.S. price for all models; and (5) before summing the total amount of dumping for all 
models, all negative margins on individual models are set to zero
.30 
7.15 Ecuador claims that the USDOC's use of zeroing in the investigation at issue was "similar" or 
"identical" to the use of zeroing that was found to be inconsistent with Article 2.4.2. of the the Anti-
Dumping Agreement  in the Panel and Appe llate Body Reports in US – Softwood Lumber V  and US – 
Zeroing (EC) .31 
(b) Similarities with the measures at issue in US – Softwood Lumber V  
7.16 Concerning the similarities between its claims in the present dispute and the ruling of the 
Appellate Body in US – Softwood Lumber V , Ecuador indicates that the material facts applicable to 
the use of zeroing in the present dispute are the sa me or very similar to those examined by the 
Appellate Body in  US – Softwood Lumber V  and that it has raised a challenge identical to that which 
the Appellate Body considered in US – Softwood Lumber V , namely, that "the use of zeroing in 
                                                      
27 69 Fed. Reg. 76913, attached to the writte n submission of Ecuador as Exhibit Ecu-2. 
28 70 Fed. Reg. 5156, attached to the writte n submission of Ecuador as Exhibit Ecu-3. 
29 See answers of Ecuador to questions from the Panel (6 November 2006), Annex A-3 (answer to 
question 1). 
30 Written submission of Ecuador, Anne x A-1, para. 2; see also para. 20. 
31 Ibid. para. 11.  WT/DS335/R 
 Page 9 
 
 
  calculating margins in an original investigation using the weighted average to weighted average 
method of model specific comparisons is inconsistent  with the first sentence of Article 2.4.2 of the 
Antidumping Agreement".32 Ecuador notes, in this respect, that its own challenge in the present 
dispute is, like Canada's challenge in US – Softwood Lumber V,  limited to an "as applied" challenge to 
the consistency of zeroing when used in calculating margins of dumping on the basis of a comparison 
of a weighted average normal value with a weight ed average of prices of "all comparable export 
transactions".33  Ecuador also notes that its challenge is limited to the consistency of the USDOC's 
methodology under the first sentence of Article 2. 4.2, the same issue which the Appellate Body 
considered in US – Softwood Lumber V ,  and that the description of zeroing (as applied by the 
USDOC) provided by the Appellate Bo dy is substantially similar to that provided by Ecuador in its 
first submission.34  Ecuador finally notes that the United St ates has not contested its assertion that the 
USDOC's use of zeroing in the measures at issue "app ears to be similar or identical to the use of 
zeroing" in US – Softwood Lumber V . 35 
7.17 Ecuador has submitted a number of exhibits to the Panel in support of its claim that the 
methodology used by the USDOC in the calculation of the dumping margins at issue in this dispute is 
similar to the one the USDOC used in US – Softwood Lumber V .  According to Ecuador, these 
exhibits demonstrate that the USDOC expressly acknowledged that, in the calculation of the dumping margins for Exporklore and Promarisco, it (1) u sed the weighted average-to-weighted average 
comparison methodology under Article 2.4.2; (2) made multiple comparisons on a model specific 
basis; and (3) ignored negative margins when calcu lating the weighted average margin for the product 
under investigation as a whole.
36  Ecuador has, inter alia , referred us to the USDOC's final 
determination "Issues and Decision Memorandum"37 in which the USDOC comments on the 
methodology it used in calculating the margins of dumping for the Ecuadorian respondents. The 
USDOC indicates that it followed its "standard methodology of not using non-dumped sales comparisons to offset or reduce the dumping found on other sales comparisons".
38  Moreover, the 
USDOC notes that, in calculating the dumping margins, it had:  
made model-specific comparisons of weight ed-average EPs with weighted average 
NVs of comparable merchandise ... [It] then combined the dumping margins found based upon these comparisons, without permitting non-dumped comparisons to reduce the dumping margins found on distinct models of subject merchandise, in order to calculate the weighted-average dumping margin.
39 
7.18 In addition, Ecuador has provided the Pane l with exhibits documenting how the USDOC 
calculated the margins of dumping for Exporklore, Promarisco, and "all others", including a copy of 
the "margin calculation program" used by the USDOC. According to Ecuador, this "margin 
                                                      
32 See answers of Ecuador to questions from the Panel (6 November 2006) Annex A-3 (answer to 
question 2). 
33 Ibid. 
34 Ibid. 
35 Ibid. 
36 Ibid. (answer to question 1). 
37 "Issues and Decision Memorandum for the Final Determination of the Antidumping Duty 
Investigation of Certain Frozen and Canned Warmwate r Shrimp from Ecuador", 23 December 2004, Exhibit 
Ecu-4 to the written submission of Ecuador. 
38 Ibid., p. 8, quoted in the answers of Ecuador to questions from the Panel (6 November 2006) 
Annex A-3 (answer to question 1). 
39 Ibid. The Panel notes that the USDOC makes these comments in the section of its Memorandum 
addressing a request from respondents in the investigation that it change its methodology in light of the Appellate Body Report in Softwood Lumber V   (which the USDOC refuses to do).  See the Memorandum, ibid.,  
"Comment 1 - Offsets for Non-Dumped Sales",  p. 8 ff. WT/DS335/R          
Page 10  
 
  calculation program" includes the computer program ming instructions that the USDOC used to 
employ its zeroing methodology.
40 
7.19 Finally, Ecuador has provided the Panel with what it identifies as the USDOC's worksheets 
for the calculation of the "all others " rate for the final determination41 and for the amended final 
determination.42 These worksheets indicate that the USDOC calculated the "all others" rate on the 
basis of a weighted average of the respective du mping margins of Exporklore, Promarisco, and (for 
the original final determination) Expa lsa in the corresponding determinations.43 
(c) Legal arguments 
7.20 With respect to the alleged inconsistency of  the "zeroing" methodology used by the USDOC 
to calculate Exporklore, Promarisco, and the "a ll others" margins of dumping, Ecuador initially 
indicated (in its first written submission) that, given the fact that the United States agrees not to 
contest Ecuador's claims, Ecuador considered it "unn ecessary" to recite [in its submission] in detail 
the factual aspects of the DOC's application of zer oing in the challenged measures or the arguments as 
to why zeroing, as used in those measures, was in consistent with Article 2.4.2, first sentence."44  
Ecuador did, however, indicate that the calculati on performed by the USDOC was the same as the one 
described in US – Softwood Lumber V  and that it considered this calculation to be inconsistent with 
Article 2.4.2 of the Anti-Dumping Agreement on th e grounds set forth in paragraphs 62-117 of the 
Appellate Body Report in US – Softwood Lumber V .45   
7.21 At the meeting with the parties, the Panel ask ed Ecuador to further elaborate on the legal 
reasoning underlying its claim of inconsistency. Ec uador indicated that the basic rationale of the 
Appellate Body's conclusions in US – Softwood Lumber V  was that margins of dumping calculated 
                                                      
40 See answers of Ecuador to questions from the Panel (13 November 2006), Annex A-4 
(answer to question 2): 
"the DOC memoranda in Exhibits Ecu-2, Ecu-3, Ecu-7, Ecu-8, Ecu-11, and Ecu-12 contain 
the margin calculation programs for Exporklore and Promarisco.  In these exhibits, Ecuador 
has included only Part 10-E of each DOC ma rgin calculation program, which includes the 
following computer programming instructions that DOC used to employ its zeroing 
methodology: 
  PROC MEANS NOPRINT DATA=MARGIN; 
   WHERE EMARGIN GT 0; 
   VAR EMARGIN MUSQTY USVALUE; 
   OUTPUT OUT = ALLPUDD (DROP = _FREQ_ _TYPE_)  
    SUM = TOTPUDD MARGQTY MARGVAL; 
 Through these instructions, the DOC included only those weighted average to weighted 
average comparisons of EP to NV that had positive
 dumping margins, i.e., where the margin 
of dumping (or “EMARGIN”) was greater than  zero.  In doing so, the DOC’s computer 
language effectively set those margins that were less than zero to zero when calculating the 
weighted average dumping margins for the product." (emphasis original) 
41 Answers of Ecuador to questions from the Panel (13 November 2006), Annex A-4 (answer to 
question 3) and Exhibit Ecu-18 thereto,  USDOC Memo to the File, "Antidumping Duty Investigation of Certain 
Frozen and Canned Warmwater Shrimp from Ecuador" All Others' Rate Calculation for Ecuador", 
17 December 2004, Attachment 1. 
42 Ibid. 
43 The Panel notes that, as mentioned above, in the amended final determination, the USDOC 
calculated a de minimis  margin of dumping for Expalsa.  
44 Written submission of Ecuador, para. 19. 
45 Ibid., para. 20.  WT/DS335/R 
 Page 11 
 
 
  under the first methodology set out in the first senten ce of Article 2.4.2, must be calculated for the 
"product as a whole".46 
7.22 In its written response to the same Panel question,47 Ecuador indicates that the legal reasoning 
that underlies its claim that the thr ee measures at issue are inconsistent  with Article 2.4.2 is identical 
to the reasoning of the Appellate Body in US – Softwood Lumber V , and is essentially as follows:  The 
term “margins of dumping” in Article 2.4.2, when interpreted in an integrated manner with the term 
"all comparable export transactions," does not refer to margins of dumping that are determined for 
individual product types; rather, the calculation fo r an individual product type reflects only an 
intermediate calculation made by an  investigating authority in the context of establishing margins of 
dumping for the product under investigation; as a result, dumping cannot be found to exist only for a 
type, model or category of that product.  It is only  on the basis of aggregating all of the intermediate 
values for all product types that an investigating au thority can establish the margin of dumping for the 
product under investigation. 48 
                                                      
46 In response to a question from the Panel at th e meeting with the parties, the representative of 
Ecuador provided the following explanation of the Appellate Body's rationale in Softwood Lumber V :  
"...The essence [of the Appellate Body's rationale in Softwood Lumber V ] was the AB's 
analysis of Art. 2.4.2 from a textual standpoint as well as in context. The most essential 
element of the finding was that anti-dumping margins must be determined for the product as a 
whole, meaning the product under investigati on. Here, the product under investigation was 
certain frozen warmwater shrimp exported from  Ecuador, defined more specifically by the 
Commerce Department in its measures. The incons istency that arises in the methodology used 
in the Shrimp case was that margins were not determined, under the Appellate Body's analysis, for the product as a whole, rather margins were determined on a model-specific 
basis. And those margins which were negative margins were set to zero. And our position, as 
the Appellate Body found, is simply that it is inconsistent, that margins must be determined for the product as a whole." 
47 Question 1 from the Panel:  
"Bearing in mind that adopted Appellate Body reports, including the Appellate Body Report in Softwood Lumber V  are not, stricto sensu , binding (expect with respect to resolving the 
particular dispute between the parties to that dispute), could Ecuador please explain why, in its 
view, the US measures at issue are inconsistent with the US’ obligations under Article 2.4.2 of 
the Anti-Dumping Agreement (i.e. what is the legal reasoning underlying Ecuador’s claim of 
inconsistency)?" 
48 Answers of Ecuador to questions from the Panel (13 November 2006), Annex A-4 (answer to 
question 1).  The relevant parts of Ecuador's answer read as follows:  
"(1) The DOC used 'multiple averaging' in Softwood Lumber , just as it did in Frozen 
Warmwater Shrimp ;  
(2) The DOC set to zero any margin that it fo und to be less than zero after making each 
of its weighted average to weighted average co mparisons of export pri ce to normal value;  
(3) The DOC calculated the antidumping ma rgin for an exporter or producer by 
summing the results of each of the comparisons in which normal value exceeded the export 
price, and then divided by the aggr egated US price for all models;  
(4) The term 'margins of dumping' in Article 2.4.2, when interpreted in an integrated 
manner with the term 'all comparable export transactions,' does not refer to margins of 
dumping that are determined for individual product types;  (5) Rather, the calculation for an individual product type reflects only an intermediate 
calculation made by an investigating authority in the context of establishing margins of 
dumping for the product under investigation; (6) As a result, dumping cannot be found to exist only for a type, model or category of 
that product.  It is only on the basis of aggregating all of the intermediate values for all 
product types (including those in termediate values where normal  value exceeded export price) 
that an investigating authority can establish the margin of dumping for the product under 
investigation;  WT/DS335/R          
Page 12  
 
  7.23 Thus, Ecuador concludes, "dumpi ng could not be determined by only considering the positive 
intermediate values for certain types or models of frozen warmwater shrimp, which is how the DOC 
calculated the weighted-average dumping margin fo r Promarisco S.A. and Exporklore S.A. in the 
contested measures.  All intermediate values had to be included."
49 
7.24   Ecuador submits that, although the Appellate  Body’s decision is not binding on the Panel, 
the Appellate Body's analysis in US – Softwood Lumber V  is persuasive, especially in light of the fact 
that the zeroing used by the USDOC in the measures at  issue is identical to that which it used in its 
original investigation in US – Softwood Lumber V . Ecuador further notes that the United States has 
expressly agreed not to contest Ecuador’s claim that the three measures are inconsistent with 
Article 2.4.2 on the grounds stated by the Appellate Body in US – Softwood Lumber V . 
2. The United States' arguments 
7.25 As mentioned above, the United States has, befo re us, not sought to re fute Ecuador's claims. 
The United States has indicated that it "acknowle dges the accuracy of Ecuador’s description of 
Commerce’s use of 'zeroing' in calculating the du mping margins for Promarisco S.A., Exporklore 
S.A., and the 'all others' rate in this investigati on" and, moreover, that it "recognizes that a measure 
using a similar calculation was the subject of the US – Softwood Lumber V  report, and that the DSB 
ruled that the measure was inconsistent with Article  2.4.2, first sentence because of that calculation."50 
3. Arguments of the third parties 
7.26 Most of the third parties, either in their third party submissions or oral statements, have 
expressed support for Ecuador's claims and provide d general comments on the impermissibility of 
"zeroing", whether generally or in the context of the so-called weighted average-to-weighted average 
methodology, and have referred to various Panel or Appellate Body reports that have addressed the 
issue.51 
7.27 Some of the third parties also have indicated expressly their view that Ecuador has met its 
burden to make a prima facie  case before the Panel,52 or have stated that the model zeroing 
methodology at issue in this dispute was id entical to the measure that was found, in US – Softwood 
Lumber V , to be inconsistent with the United States' obligations under the Anti-Dumping Agreement .53 
                                                                                                                                                                     
(7) Here, the product was frozen warmwater shrimp from Ecuador;  
(8) Thus, dumping could not be determined by only considering the positive intermediate values for certain types or models of fro zen warmwater shrimp, which is how the DOC 
calculated the weighted-average dumping margin for Promarisco S.A. and Exporklore S.A. in 
the contested measures.  All intermediate values had to be included." 
49 Ibid. 
50 Written submission of the United States, Annex B-1, pa ra. 5.  The United States cites, in this context, 
Appellate Body Report, Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/AB/R , 
adopted 31 August 2004, paras. 62-117.   
51 See the oral statement of Brazil, Annex C-1; third party submission of Chile, Annex C-3; third party 
submission of the  European Communities, Annex C-7;  oral  statement of India, Annex C-9;  oral statement of 
Japan, Annex C-11; third party submission of Mexico (containing a detailed discussion of the panel and 
Appellate Body jurisprudence on the issue), Annex C-13 and Mexico's oral statement, Annex C-14; oral 
statement of  Thailand, Annex C-16. 
52 See the oral statement of Brazil, Annex C-1, para. 9. 
53 See the third party submission of Mexico, Annex C-13, para. 4.  WT/DS335/R 
 Page 13 
 
 
  4. Analysis by the Panel 
7.28 We must first determine whether Ecuador has est ablished that the USDOC did, in fact, "zero" 
in the three measures identified by Ecuador in  its panel request. Assuming that Ecuador has 
established this fact, we will then proceed to our  legal analysis of the measures challenged by 
Ecuador.  Because Ecuador relies on the Appellate Body Report in US – Softwood Lumber V  as the 
basis for its legal reasoning that the measures at issue are inconsistent with Article 2.4.2, the first step 
of this legal analysis will be to determine whet her Ecuador has demonstrated that the measures it 
challenges (and in particular the zeroing methodology  used by the USDOC to calculate the dumping 
margins challenged by Ecuador in the measures at issu e) are the same in all relevant respects to those 
which the Appellate Body, in US – Softwood Lumber V , ruled were inconsistent  with the first sentence 
of Article 2.4.2.  Should we find this to be the case, we will need to consid er whether to apply the 
same reasoning as appears in the Appellate Body Report,  i.e. whether to follow the precedent in that 
case. 
(a) Whether Ecuador has established that the USDOC  "zeroed" in the three measures at issue 
7.29 Concerning the facts of the case, we have re viewed the evidence and explanations provided 
by Ecuador.  We are satisfied that Ecuador has provided evidence that est ablishes that the USDOC 
"zeroed" in calculating the margins of dumping fo r Exporklore and for Promarisco, and that the 
dumping margin for "all others" was calculated as the weighted average of these two companies' 
individual margins.  In particular, Ecuador has, in our view, demonstrated that, for Exporklore and 
Promarisco, the USDOC performed a weighted average-to-weighted average comparison (first 
methodology under the first sentence of Article 2.4.2)  for each of the different product models or sub-
products, and that the USDOC "zeroed" negative margins of dumping when the results of the 
comparisons at these levels were aggregated to calculate each company's margin of dumping for the 
product as a whole; and that these results were then weight-averaged to arrive at the margin for "all 
others".  Indeed, the United States does not deny th e accuracy of Ecuador's description of the three 
measures at issue, including the fact that th e USDOC zeroed in the manner described above.  
(b) Whether Ecuador has established that the methodol ogy used by the USDOC is similar to the 
methodology the USDOC used in Lumber V  
7.30 Our next task is to determine whether the "zeroing" methodology used by the USDOC to 
calculate the dumping margins at issue here was, as alleged by Ecuador, similar or identical to the one 
the Appellate Body, in US – Softwood Lumber V , found to be inconsistent with Article 2.4.2 of the 
Anti-Dumping Agreement. 
7.31 We note in this respect that, in US – Softwood Lumber V ,  Canada's challenge was limited to 
an "as applied" challenge of the consistency of  "zeroing" when used in calculating margins of 
dumping on the basis of a comparison of a weighted average normal value with a weighted average of 
prices of all comparable export transactions (the so-called "weighted average-to-weighted average 
methodology") in the context of an original investigation under Article 2.4.2 of the Anti-Dumping 
Agreement.54 
7.32 The Appellate Body in US – Softwood Lumber V , described "zeroing" as applied by the 
USDOC in that investigation as follows: 
First, USDOC divided the product under i nvestigation (that is, softwood lumber from 
Canada) into sub-groups of identical, or br oadly similar, product types.  Within each 
sub-group, USDOC made certain adjustment s to ensure price comparability of the 
                                                      
54 Appellate Body Report, US – Softwood Lumber V , para. 63.  WT/DS335/R          
Page 14  
 
  transactions and, thereafter, calculated a weighted average normal value and a 
weighted average export price per unit of the product type.  When the weighted average normal value per unit exceeded the we ighted average export price per unit for 
a sub-group, the difference was regarded as the "dumping margin" for that comparison.  When the weighted average normal value per unit was equal to or less 
than the weighted average export price per unit for a sub-group, USDOC took the 
view that there was no "dumping margin" for that comparison.  USDOC aggregated the results of those sub-group comparisons in which the weighted average normal 
value exceeded the weighted average export price—those where the USDOC 
considered there was a "dumping margin"—after multiplying the difference per unit 
by the volume of export transactions in that sub-group.  The results for the sub-groups 
in which the weighted average normal value was equal to or less than the weighted 
average export price were treated as zero for purposes of this aggregation, because there was, according to USDOC, no "dumping ma rgin" for those sub-groups.  Finally, 
USDOC divided the result of this aggregati on by the value of all export transactions 
of the product under investigation ( including the value of export transactions in the 
sub-groups that were not in cluded in the aggregation ).  In this way, USDOC obtained 
an "overall margin of dumping", for each exporter or producer, for the product under 
investigation (that is, soft wood lumber from Canada).
55 
7.33 The Appellate Body also added that: 
Thus, as we understand it, by zeroing, the i nvestigating authority treats as zero the 
difference between the weighted average normal value and the weighted average 
export price in the case of those sub-groups  where the weighted average normal value 
is less than the weighted average export pr ice.  Zeroing occurs only at the stage of 
aggregation of the results of the sub-groups  in order to establish an overall margin of 
dumping for the product under investigation as a whole.56 
7.34 Having examined the description of the methodol ogy employed by the USDOC in the three 
measures challenged by Ecuador, as described in its submission to the Panel,57 and having considered 
the additional evidence submitted by Ecuador, we are satisfied that Ecuador has demonstrated – at 
least prima facie  – that the methodology applied by the USDOC in calculating the margins of 
dumping for Exporklore and Promarisco, which the "a ll others" rate necessarily incorporated, was the 
same methodology which was found by the Appellate Body in US – Softwood Lumber V  to be 
inconsistent with Article 2.4.2 of the Anti-Dumping Agreement .  Furthermore, we once again note that 
the United States has not sought to refute Ecuador's claims.58  In our view, the United States' 
"acknowledgement" and "recognition" lend further support to our conclu sion that Ecuador has met its 
burden to make a  prima facie  case. 
(c) Ecuador's claim of inconsistenc y under Article 2.4.2 of the Anti-Dumping Agreement  
7.35 We now turn to the legal analysis of Ecuador's  claims, i.e. whether the measures it challenges 
are inconsistent with Article 2.4.2 of the Anti-Dumping Agreement .  Article 2.4.2 provides as follows: 
                                                      
55 Ibid., para. 64 (emphasis original; footnote omitted). 
56 Ibid., para. 65. 
57 See para. 7.14, supra . 
58 See para. 7.25, supra.   WT/DS335/R 
 Page 15 
 
 
  Article 2 
Determination of Dumping 
... 
2.4.2 Subject to the provisions governing fair comparison in paragraph 4, the 
existence of margins of dumping during the investigation phase shall normally be 
established on the basis of a comparison of  a weighted average normal value with a 
weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to-transaction basis.  A normal value established on a weighted average basis may be compared to prices of 
individual export transactions if the author ities find a pattern of export prices which 
differ significantly among different purchasers, regions or time periods, and if an 
explanation is provided as to why such  differences cannot be taken into account 
appropriately by the use of a weight ed average-to-weighted average or 
transaction-to-transaction comparison. 
7.36 Ecuador has relied on the A ppellate Body Report in US – Softwood Lumber V
  in support of its 
claim of inconsistency with Article 2.4.2 and, in  particular, on the Appellate Body's finding that 
margins of dumping may only be calculated for a product as a whole under the weighted average-to-
weighted average methodology provided for in the first sentence of Article 2.4.2. 
7.37 While we are not, strictly speaking, bound by the Appellate Body's reasoning in US – 
Softwood Lumber V , we are reminded that adopted Appellate Body Reports create legitimate 
expectations among WTO Members,59  and that "following the Appellate Body's conclusions in 
earlier disputes is not only appropriate, but is what  would be expected from panels, especially where 
the issues are the same".60 
7.38 Our understanding of the Appe llate Body's reasoning in US – Softwood Lumber V  is as 
follows.  The Appellate Body began its analysis w ith the text of Article 2.4.2 and noted that the 
question before it was the proper interpretation of the terms "all comparable export transactions" and 
"margins of dumping" in Article 2.4.2.  In examin ing the arguments of the parties with respect to 
these phrases, the Appellate Body concluded that th e parties' disagreement centered on whether a 
Member could take into account "all" comparable e xport transactions only at the sub-group level, or 
whether such transactions also had to be take n into account when the results of the sub-group 
comparisons are aggregated.  To examine that i ssue, the Appellate Body noted the definition of 
dumping in Article 2.1 of the Anti-Dumping Agreement .  The Appellate Body found that "it [was] 
clear from the texts of [Article VI:1 of the GATT 1994 and Article 2.1 of the Anti-Dumping 
Agreement ] that dumping is defined in relation to a pr oduct as a whole as defined by the investigating 
authority".61  The Appellate Body further considered that  the definition of "dumping" contained in 
Article 2.1 applies to the entire Agreement , including Article 2.4.2, and that "'[d]umping', within the 
meaning of the  Anti-Dumping Agreement , can therefore be found to exist only for the product under 
investigation as a whole, and cannot be found to ex ist only for a type, model, or category of that 
product."62 Next, the Appellate Body relied on its Report in EC - Bed Linen ,  in which it stated that 
"[w]hatever the method used to calculate the margins of dumping ... these margins must be, and can 
                                                      
59 See Appellate Body Report , Japan Alcoholic Beverages II , p. 14; Appellate Body Report, US – 
Shrimp (Article 21.5 – Malaysia) , paras. 108-109; Appellate Body Report, US – Softwood Lumber V , paras. 109-112. 
60 Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews , paragraph 188. 
61 Appellate Body Report, US – Softwood Lumber V , para. 93. 
62 Ibid. WT/DS335/R          
Page 16  
 
  only be, established for the  product   under investigation as a whole."
63  Thus, the Appellate Body  
noted that  "[a]s with dumping, 'margins of  dumping' can be found only for the product under 
investigation as a whole, and cannot be found to exis t for a product type, model, or category of that 
product."  The Appellate Body therefore rejected the United States' argument s in that case that 
Article 2.4.2 does not apply to the aggregation of th e results of multiple comparisons at the sub-group 
level; for the Appellate Body, while an investiga ting authority may undertake multiple averaging to 
establish margins of dumping for a product unde r investigation, the results of the multiple 
comparisons at the sub-group levels are not margins of dumping within the meaning of Article 2.4.2; 
they merely reflect intermediate calculations made by an investigating authority in the context of 
establishing margins of dumping for the product under investigation. It is only on the basis of 
aggregating all  such intermediate values that an inves tigating authority can establish margins of 
dumping for the product under investigation as a whole.64  On this basis, the Appellate Body held that 
zeroing, as applied by the USDOC in US – Softwood Lumber V : 
mean[t], in effect , that at least in the case of  some  export transactions, the export 
prices are treated as if they were less than wh at they actually are.  Zeroing, therefore, 
does not take into account the  entirety  of the  prices  of  some  export transactions, 
namely, the prices of export transactions in those sub-groups in which the weighted average normal value is less than the weight ed average export price.  Zeroing thus 
inflates the margin of dumping for the product as a whole.
65 
7.39 The Appellate Body on this basi s concluded that the treatment of comparisons for which the 
weighted average normal value is less than the weighted average export price as "non-dumped" 
comparisons was not in accordance with th e requirements of Article 2.4.2 of the Anti-Dumping 
Agreement .66 As a result, the Appellate Body upheld the Panel's finding that the United States had 
acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement  in determining the existence of 
margins of dumping on the basis of a methodology incorporating the practice of zeroing.67 
7.40 We further note that the Appellate Body Report in US – Zeroing (EC)  also referred to its 
reasoning and findings in US – Softwood Lumber V . 68  Thus, in our view, there is now a consistent 
line of Appellate Body Reports, from EC – Bed Linen  to US – Zeroing (EC)  that holds that "zeroing" 
in the context of the weighted average-to-weighted  average methodology in original investigations 
(first methodology in the first sentence of Article 2. 4.2) is inconsistent with Article 2.4.2.   
7.41 We have, as is our duty, carefully cons idered the Appellate Body's reasoning in US – 
Softwood Lumber V  and taken into consideration the consis tent line of Appellate Body Reports as 
mentioned in the previous paragraph.  We find the Appellate Body's reasoning persuasive and adopt it 
as our own.  Given that the issues raised by Ecuador 's claims are identical in all material respects to 
those addressed by the Appellate Body in the Lumber V  case, we are satisfied that Ecuador has made a 
prima facie  case that the use of zeroing by the USDOC in the calculation of the margins of dumping 
for Exporklore and Promarisco, from which were cal culated the "all others" margins in the three 
                                                      
63Appellate Body Report, EC – Bed Linen , para. 53 (emphasis original), quoted in Appellate Body 
Report, US – Softwood Lumber V ,  para. 96. 
64 Appellate Body Report, US – Softwood Lumber V , paras. 97-98. 
65 Ibid., para. 101 (footnote omitted). 
66 Ibid, para. 102. 
67 Ibid., para. 117. 
68 Appellate Body Report, US – Zeroing (EC) ,  para. 126.  The Appellate Body in that case was not, 
however, considering the permissibility under Article 2.4.2 Anti-Dumping Agreement  of zeroing under the 
weighted average to weighted average methodology in original investigations, the only issue that is before us in 
this dispute.  Nevertheless, in our view, the Appellate Body's findings in US – Zeroing (EC) provide support to 
the conclusion that zeroing, as applied by the USDOC in US – Softwood Lumber V  and in the calculation of the 
margins of dumping that are challenged by Ecuador, is inconsistent with Article 2.4.2.  WT/DS335/R 
 Page 17 
 
 
  measures identified in its request for the establis hment of a panel, is inconsistent with the 
United States' obligations under Article 2.4.2 of the Anti-Dumping Agreement because the USDOC 
did not calculate these dumping margins on the basis of the "product as a whole" as it failed to take 
into account all comparable export transactions in calculating the margins of dumping. 
7.42 As a final point, we note that neither the Panel nor the Appellate Body Report in US – 
Softwood Lumber V  addressed explicitly the issue of the in consistency of the "all others" rate as 
calculated by the USDOC.  In this regard, we cons ider that our finding that Ecuador has established 
that the calculation of the margins of dumping for Exporklore and Promarisco was inconsistent with Article 2.4.2 means that the calculation of the "a ll others" rate as the weighted average of the 
individual rates necessarily incorpor ates this inconsistent methodology.
69  The parties agree.70  
7.43 Given that we have conclude d that Ecuador has made a prima facie  case of violation in 
respect of the final determination, the amended final determination and th e anti-dumping order, we 
are required, as a matter of law, and in the ab sence of arguments from the responding party to the 
contrary, to rule in favour of Ec uador. We therefore determine that the USDOC, by using "zeroing" as 
described above in calculating the margins of dumpi ng in the three measures challenged by Ecuador, 
has acted inconsistently with the United St ates' obligations under Article 2.4.2 of the Anti-Dumping 
Agreement . 
VIII.  CONCLUSIONS AND RECOMMENDATIONS 
8.1 In light of the above findings, we conclude that the USDOC acted inconsistently  with 
Article 2.4.2 in its final and amended final affirma tive determinations of sales at less than fair value 
(dumping) with respect to certain frozen warmwate r shrimp from Ecuador, and in its final anti- 
dumping duty order. 
8.2 Under Article 3.8 of the DSU, in cases where 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 of benefits under that ag reement.  Accordingly, we conclude that, to the 
extent the United States has acted incons istently with the provisions of the Anti-Dumping Agreement , 
it has nullified or impaired benefits accruing to Ecuador under that Agreement. We therefore 
recommend that the Dispute Settlement Body request  the United States to bring its measures into 
conformity with its obligations under the Anti-Dumping Agreement . 
 
_______________ 
                                                      
69 Although this has no bearing on our conclusion, we note that the dumping margin for "all others" in 
the (original) final determination was also calculated on the basis of Expalsa's dumping margin. 
70 See Ecuador's answers to questions from the Panel (13 November 2006), Annex A-4 (answer to 
question 3); United States' answers to questions from the Panel (13 November 2006), Annex B-3 (answer to 
question 4). WT/DS335/R          
Page 18  
 
   
ATTACHMENT 1 – REQUEST FOR ESTABLISHMENT OF A PANEL (DS335/6) 
  
 
WORLD TRADE  
ORGANIZATION  WT/DS335/6 
9 June 2006 
 
 (06-2790) 
 Original:   English 
 
 
 
UNITED STATES – ANTI-DUMPING MEASURE ON SHRIMP FROM ECUADOR 
 
Request for the Establishment of a Panel by Ecuador  
 
  The following communication, dated 8 June 2006, from the delegation of Ecuador to the 
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
_______________ 
 
  Upon the instruction of my authorities, I here by convey the request of the Government of 
Ecuador for the establishment of a panel under Article  XXIII of the General Agreement on Tariffs and 
Trade 1994 ("GATT 1994"), Articles 4 and 6 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU"), a nd Article 17 of the Agreement on Implementation 
of Article VI of the General Agreement on Ta riffs and Trade 1994 ("Anti-Dumping Agreement") 
regarding certain measures imposed by the United States, as further described below. 
 
A. Consultations
 
  On 17 November 2005, the Government of Ecuador requested cons ultations with the 
Government of the United States under Article 4 of  the DSU, Article XXII of the GATT 1994, and 
Article 17 of the Anti-Dumping Agreement concerning anti-dumping measures involving Certain Frozen Warmwater Shrimp from Ecuador, Inv. no. A- 331-802.  See Notice of Final Determination of 
Sales at Less Than Fair Value:  Certain Fr ozen and Canned Warmwater Shrimp from Ecuador, 
69 Fed. Reg. 76913, 23 December 2004, and Notice of  Amended Final Determination of Sales at Less 
Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Ecuador, 
70 Fed. Reg. 5156, 1 February 2005.    Consultations were held on 31 January 2006 and on several occasions thereafter.  These 
consultations provided helpful clarifications, but  have not completely resolved the dispute. 
 
B. Summary of the Facts
 
 
 The United States initiated its anti-dumping inv estigation against certain frozen warmwater 
shrimp from Ecuador on 27 January 2004.  See 69 Fed. Reg. 3876.  The DOC conducted its 
investigation of the extent of dumping under the st atutory authority provided by the Tariff Act of 
1930, as amended, 19 U.S.C. § 1673, et seq., and under the regulatory authority provided in 19 C.F.R.  WT/DS335/R 
 Page 19 
 
 
  Part 351.  As noted above, the DOC published its fi nal margin determination on 23 December 2004.  
Following a final affirmative determination of ma terial injury by the US International Trade 
Commission (70 Fed. Reg. 3943, 27 January 20 05), the DOC published its amended final margin 
determination and anti-dumping duty order on 1 February 2005.  The DOC's final margin 
determination and amended final margin determination, as well as its anti-dumping duty order, 
reflected and contained anti-dumping margins that were calculated by using "zeroing."  
  The DOC's "zeroing" of negative anti-dumping ma rgins in anti-dumping investigations more 
specifically means the following: (1) different "model s," i.e., types, of products are identified using 
"control numbers" that specify the most relevant pr oduct characteristics; (2) weighted average prices 
in the US and weighted average normal values in the comparison market are calculated on a model-
specific basis for the entire period of investigati on; (3) the weighted average normal value of each 
model is compared to the weighted average US pr ice for that same model; (4) to calculate the 
dumping margin for an exporter, the amount of dump ing for each model is summed and then divided 
by the aggregated US price for all models; (5) before summing the total amount of dumping for all 
models, all negative margins on individual models ar e set to zero.  Through this method, the DOC 
calculates margins of dumping and collects anti-du mping duties in amounts that exceed the actual 
extent of dumping by the investigated companies.   The DOC used zeroing in determining the fi nal anti-dumping margins for the two Ecuadorian 
exporters for which anti-dumping margins above the 2 per cent  de minimis  level were calculated in 
both the final and the amended final affirmative determination of sales at less than fair value in the 
investigation of Certain Frozen Warmwater Shri mp from Ecuador cited above, as well as for "all 
other" Ecuadorian exporters that were not separat ely investigated.  The DOC's unpublished Issues and 
Decision Memorandum, dated 23 December 2004, as well as other documents contained in the 
administrative record of the investigation, includi ng computer programs, describe in more detail the 
DOC's use of zeroing in the Ecuadorian shrimp investigation. 
  The DOC's use of zeroing in the Ecuadorian sh rimp investigation appears to be similar 
or identical to the investigation method that w as held to be inconsistent with the Anti-Dumping 
Agreement in  United States – Final Dumping Determination on Softwood Lumber from Canada  
(Panel Report, WT/DS264/R, and Appellate B ody Report, WT/DS264/AB/R, adopted 31 August 
2004), and in  United States – Laws, Regulations and Methodology for Calculating Dumping Margins 
("Zeroing")  (Panel Report, WT/DS294/R, and Appella te Body Report, WT/DS294/AB/R, adopted 
9 May 2006).  
C. Measures and Claims
 
 
 The DOC's Final Determination, the DOC's Amended Final Determin ation, and the DOC's 
anti-dumping duty order applied zeroing in its inv estigation of Certain Frozen Warmwater Shrimp 
from Ecuador (referred to collectively below as the "m easures").  The use of zeroing in each of these 
measures to calculate the margins of dumpi ng for the two exporters with margins above de minimis  
and "all other" exporters is in consistent with the obligations of the United States under the 
Anti-Dumping Agreement.  Specifically, Ecuador considers that the measures are inconsistent with 
the first sentence of Article 2.4.2 of the Anti-Dumping Agreement . 
  The foregoing paragraph is provided without pr ejudice to any argument s that the Government 
of Ecuador may develop and present to the panel re garding the WTO-inconsistency of the measures at 
issue. 
 WT/DS335/R          
Page 20  
 
  D. Request
 
 
 Ecuador requests, pursuant to Article 6 of the DSU and Article 17.4 of the Anti-Dumping 
Agreement, that the Dispute Settle ment Body establish a panel to examine this matter, with the 
standard terms of reference set out in Article 7.1 of the DSU.  Ecuador  asks that its request be placed 
on the agenda for the next meeting of the Disput e Settlement Body to be held on 19 June 2006. 
 
 
 
_______________ 
  WT/DS335/R 
 Page 21 
 
 
   
ATTACHMENT 2 – PROCEDURAL AGREEMENT BETWEEN ECUADOR AND  
THE UNITED STATES (DS335/8)  
 
 WORLD TRADE  
ORGANIZATION  WT/DS335/8 
25 October 2006 
 
 (06-5137) 
 Original:   English 
 
 
 
UNITED STATES – ANTI-DUMPING MEASURE ON SHRIMP FROM ECUADOR 
 
Agreement on Procedures between Ecuador and the United States  
 
 
 The following communication, dated 20 Oct ober 2006, from the delegation of Ecuador and 
the delegation of the United States to the Chairman of the Dispute Settlement Body, is circulated at 
the request of those delegations.  
_______________ 
 
  On 27 November 2005, the Government of Ecuador requested cons ultations with the 
United States (hereinafter "the Parties") under Article 4 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes  ("DSU"), Article XXII of the General Agreement 
on Tariffs and Trade 1994  ("GATT 1994"), and Article 17 of the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994  ("Anti-Dumping Agreement"), with 
respect to anti-dumping measures on shrimp fro m Ecuador.  WT/DS335/1 (21 November 2005).  
Consultations were held on 31 Ja nuary 2006 and on several occasions  thereafter.  These consultations 
have enabled the Parties to agree on the follo wing procedures for purposes of this dispute: 
 
1. Ecuador requested the establishment of a panel in this dispute by filing its request for the 
establishment of a panel on 8 June 2006 (WT/DS335/ 6).  A copy of Ecuador's panel request is 
attached to this agreement.
71  The DSB established a panel on 19 July 2006. 
 
2. The Parties will cooperate to enable the pane l to circulate its report as quickly as possible in 
light of the requirements of the DSU.  To that end, the Parties will work expeditiously to reach 
agreement on expedited working procedures that they will jointly ask the panel to adopt, and that will 
allow for the adoption of the panel report by the DSB no later than 31 October 2006.  That agreement 
will include a request that the Parties file only one written submission each, and that the panel forego 
meetings with the Parties or, at most, have only one  such meeting.  The Par ties also agree to share 
with each other drafts of their respective written su bmissions prior to submitting them to the panel and 
to take all reasonably available st eps to expedite the proceeding. 
 
                                                      
71 Not reproduced here. WT/DS335/R          
Page 22  
 
  3.  The United States will not contest Ecuador's cl aim that the measures identified in the attached 
request for the establishment of a panel are inconsis tent with Article 2.4.2, first sentence, on the 
grounds stated in United States – Final Dumping Determination on Softwood Lumber from Canada , 
WT/DS264/AB/R, Report of the Appellate Body adopted 31 August 2004.  
4.  Ecuador will not request that the panel sugg est, pursuant to Article 19.1, second sentence, of 
the DSU, ways in which the United States c ould implement the panel's recommendations. 
 5.  Provided that the panel's finding is limited to a finding that one or more of the challenged 
measures is inconsistent with Article 2.4.2, fi rst sentence, of the Anti-Dumping Agreement, the 
Parties agree that, pursuant to Article 21.3(b) of th e DSU, the reasonable period of time for bringing 
each such measure into conformity  with the Anti-Dumping Agreemen t will be six months, beginning 
on the date on which the DSB adopts the panel report.    6.  Subject to the consultation requirements of  section 129(b) of the Uruguay Round Agreements 
Act (“URAA”), 19 U.S.C. § 3538(b), the United States will use section 129(b) to recalculate margins 
of dumping (subject to the exclusion of Exportadora de  Alimentos S.A. in paragraph 8, below) and to 
issue a new determination in order to render th e anti-dumping measures on shrimp from Ecuador not 
inconsistent with the findings of the panel.  If any such recalculation that is performed under 
section 129(b) results in a change in a cash deposit rate for the anti-dumping measures on shrimp from 
Ecuador, the new cash deposit rate will have prospective effect only,  taking effect no sooner than the 
date on which the United States Trade Representa tive directs the United States Secretary of 
Commerce to implement its recalculation of the marg ins and new determination, as set forth in section 
129(c)(1) of the URAA, 19 U.S.C. § 3538(c)(1).  7.  The Parties also mutually understand that th e scope of Ecuador's request for the establishment 
of a panel does not include any claim regarding th e margin of dumping calculated for Exportadora de 
Alimentos S.A.  The Parties agree that they w ill inform the panel in their written submissions, 
whether made jointly or separately, that they are seeking findings consistent with this understanding.  
Accordingly, implementation would not involve a recalculation of the margin of dumping for 
Exportadora de Alimentos S.A., to the extent that the findings of the panel are consistent with the 
Parties' understanding. 
 
 For Ecuador For the United States    
 (signed) (signed) 
 Eva Garcia Fabre Peter F. Allgeier  Ambassador Ambassador 
  
_______________