WT/DS404/R 
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ANNEX A 
 
 
EXECUTIVE SUMMARIES OF THE FIRST WRITTEN 
SUBMISSIONS OF THE PARTIES 
 
 
Contents Page 
Annex A-1 Executive Summary of the First Written Submission of 
Viet Nam A-2 
Annex A-2 Executive Summary of the First Written Submission of the 
United States A-11 
Annex A-3 Response of Viet Nam to  the United States' Request for 
Preliminary Rulings A-21 WT/DS404/R 
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  ANNEX A-1 
 
 
EXECUTIVE SUMMARY OF THE FIRST  
WRITTEN SUBMISSION OF VIET NAM 
 
 
I. INTRODUCTION  
1. Viet Nam's First Written Submission in  US – Anti-Dumping Measures on Certain Shrimp 
from Viet Nam  provides the factual context and legal argum ents challenging certain practices used by 
the United States Department of Commerce ("USDOC") in the ongoing antidumping proceedings involving certain shrimp products from Viet Nam.  Each of these practices limits the ability of 
Vietnamese exporters and producers to prove the abse nce of dumping, resulting in the continuation of 
an antidumping order for companies that have in fa ct gone to great lengths to alter their conduct to 
eliminate dumping. 
 
2. Specifically, the four claims set forth in the First Written Submission challenges practices 
that, as applied, are inconsistent with Unite d States obligations under Article VI of the General 
Agreement on Tariffs and Trade 1994  ("GATT 1994") and the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994 ("Agreement "):  (1) the use of zeroing 
to calculate antidumping margins, (2) the applicati on of a country-wide rate to certain respondents not 
individually investigated or reviewed, (3) the all- others rate calculated and applied to certain other 
uninvestigated or unreviewed respondents, and (4) the repeated refusal by  the USDOC to review 
individual respondents requesting such a review a nd thus determining margins for only a limited 
selection of respondents.  The USDOC has relied on,  and continues to rely on, the above-listed 
practices for each stage of the antidumping proceeding. 
 
II. THE MEASURES AT ISSUE 
 
3. The three measures at issue in this dispute relate to the imposition by the United States of 
antidumping duties under the USDOC's antidumping duty order involving certain frozen and canned warmwater shrimp from Viet Nam (case number  A-552-802).  The USDOC issued its final 
determination of sales at less than fair value for the original investigation on 8 December 2004, and 
subsequently published an amende d determination and antidumping dut y order on 1 February 2005.  
Since imposition of the antidumping duty order, USDOC has completed four periodic reviews, issued 
a preliminary determination in the fifth periodic re view, and issued a preliminary determination in a 
Five-Year ("Sunset") review.    
4. Viet Nam's date of accession to the World Tr ade Organization is 11 January 2007.  Two of 
the above-referenced determinations in the shrimp  proceedings have been initiated and completed 
subsequent to Viet Nam's accession and prior to the re quest for consultations in this dispute.  Thus, 
the measures at issue are the second and third administrative reviews made pursuant to the 
antidumping duty order, and the c ontinued use of the challenged pr actices in successive antidumping 
proceedings under this order.  The second admi nistrative review of antidumping duties covered 
entries during the period from 1 February 2006 th rough 31 January 2007, and the final results were 
published on 9 September 2008.  The third ad ministrative review covered entries from 
1 February 2007 to 31 January 2008, and the fi nal results were publishe d on 15 September 2009. 
5. The third measure is the continued use of the practices challenged in the above-referenced 
claims in successive segments of the proceeding under the shrimp antidumping order.  This includes 
the fourth administrative review, the fifth administ rative review, and the five-year (sunset) review.  WT/DS404/R 
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  Consistent with the Appellate Body's interpretation of the Agreement and the Understanding on Rules 
and Procedures Governing the Settlement of Disputes , the USDOC's actions in connection with these 
practices constitute "ongoing conduc t" that is subject to consider ation by the reviewing panel.  
Judicial economy and fundamental fairness require inclusion of this measure because the USDOC has 
given no indication that it intends to alter these practices in any futu re segment of this proceeding. 
 
6. The particular factual situation of this  dispute also makes relevant the USDOC's 
determination in the original investigation and the final results of the first administrative review.  
Although not measures, these determinations are impor tant for the Panel to review and understand 
because of their impact on the measures th at are at issue in this dispute. 
 
III. FACTS 
 7. The claims raised for the three measures at issue involve four practices adopted and used by 
the USDOC at each stage of the proceeding:  (1) the use of zeroing;  (2) application of a country-wide 
rate;  (3) the chosen calculation method for the all- others rate;  and (4) th e limited selection of 
respondents subject to individual review.    
A. T
HE USDOC' S ZEROING METHODOLOGY  
 
8. The USDOC calculates the margin of dumpi ng based on a comparison of normal value and 
United States export price or constructed export pr ice.  Normal value in proceedings involving a 
nonmarket economy country is based on the producer 's factors of production, which include 
individual inputs for raw materials, labor, and en ergy based on the actual production experience of the 
individual respondent.  The USDOC relies on surroga te values to determine the price at which the 
factors of production would be acquired in a market setting, relying on a specific surrogate country for 
this exercise.  In the case of Viet Nam, this surr ogate country has been Bangladesh.  The USDOC then 
applies ratios for overhead, selling, general and admini strative expenses, and profit to the calculation.  
The resulting normal value is compared  to the export price or constructed export, which is the price at 
which the product is first sold  to an unaffiliated purchaser.   
 9. The comparison of normal value and pri ce is made between products of similar 
characteristics.  That is, within the broad categor y of subject merchandise – certain frozen and canned 
warmwater shrimp – are many sub-categories with differing key characteristics, as determined by the USDOC.  Each of these sub-categories, or "models" under USDOC terminology, is assigned a control 
number ("CONNUM") by the USDOC.   
 10. In original investigations, the USDOC u tilizes "model zeroing," where each sales transaction 
is weight-averaged by CONNUM, and each weighted-a verage model is compared to the normal value 
for that CONNUM;  the results of these intermediate calculations for each CONNUM are then aggregated to determine the overall margin of dumping.  Positive dumping in the intermediate 
calculation occurs when the normal value exceed s the average export price of an individual 
CONNUM;  negative dumping occurs when the averag e export price exceeds normal value.  Zeroing 
arises in instances of negative dumping, where th e USDOC eliminates the results of that specific 
CONNUM before calculating the overall weighted dump ing margin for the exporter:  any instances of 
negative dumping are set to zero, as opposed to a llowing the negative dumping to offset the positive 
dumping.   
 11. The overall margin is calculated using only the CONNUMs that produce a positive dumping 
margin.  The USDOC creates a fraction to calcu late the overall dumping margin, using as the 
numerator the total amount of dumping by model, based only on margins that were positive at the intermediate, model-specific stage of comparison.   For models with negative dumping, the USDOC 
ignores the results, thereby inflating the numerator  by an amount equal to the excluded negative WT/DS404/R 
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  comparison results.  The denominator of the fraction is  the total value of all export transactions for all 
models under investigation.  Expressing this fraction as a percentage results in the "weighted average 
dumping margin" for the investigation, which for companies selected for individual investigation 
serves as the cash deposit rate for entries made after publication of the antidumping order.  For 
companies not individually investigated that sa tisfy the USDOC's separate rate criteria (further 
discussion below), the USDOC will generally take the weight-average of the weighted-average 
margins of the firms individually investig ated, excluding margins that are zero, de minimis , or based 
on adverse facts available.  Thus, the model zer oing methodology similarly impacts the antidumping 
margin for these companies.  
 
12. It cannot be reasonably argued that the USDOC  did not use model zeroing in the investigation 
at issue in this dispute. Viet Nam provides subs tantial documentation demons trating that the USDOC 
used a methodology identical to the methodology previously considered by the Appellate Body in 
US – Softwood Lumber V .  The USDOC's Issues and Decision Memorandum, which accompanies 
publication of the final determination, states in e xplicit terms that intermediate model comparisons 
that produced negative dumping margins were not permitted to offset model comparisons that 
produced positive dumping margins, effectively ignoring these sales made by the respondents, regardless of the amount of volume involved.  Fu rther, Viet Nam provides the actual computer 
program outputs and logs for two of the mandatory respondents in the investigation, pinpointing the 
exact lines in the programming that execute the zeroing methodology.    
13. In administrative reviews, the USDOC engag es in simple zeroing, which differs with the 
above method for calculating antidumping margins onl y in the comparison that is made at the 
intermediate step.  In administrative reviews, individual export transactions are compared with a 
contemporaneous weighted-average  normal value;  the amount by which normal value exceeds the 
export price is the dumping margin for that expor t transaction.  As with model zeroing, these 
intermediate comparisons may produce either positi ve or negative dumping margins;  once again, 
comparisons that produce a negative dumping margin are ignored for purposes of calculating the overall dumping margin.  Instead of zeroing by m odel, as with model zeroing, the USDOC here 
zeroes by individual export transaction.  The result is similar, in that the total amount of dumping 
reflected in the numerator is inflated by an amount equal to the excl uded negative differences. 
 
14. As stated above, it cannot reasonably be disput ed that the USDOC engaged in simple zeroing 
in the administrative reviews considered in this di spute.  In each completed administrative review, the 
USDOC has confirmed in its Issues and Decision Me morandum that it did not permit the intermediate 
negative dumping margins to offset the intermed iate positive dumping margins when calculating the 
overall antidumping margin.  The computer program logs and outputs provided by Viet Nam, which 
are in fact the logs and outputs released by th e USDOC following completion of the administrative 
reviews, further substantiate this fact.   
 B. T
HE USDOC' S COUNTRY -WIDE RATE PRACTICE  
 
15. The USDOC practice for determining antidumping margins for Vietnamese companies not individually reviewed differs substantially from the practice for market economy countries.  In the 
shrimp proceedings, the USDOC creates two categories of companies not individually reviewed:  
those assigned an "all-others" rate (in USDOC terminol ogy this is called a "separate rate"), consistent 
with the Agreement ;  and those assigned what is called a "Vietnam-wide" rate. 
 16. Companies wanting to receive the all-others  rate must satisfy the USDOC's separate rate 
criteria.  This requires that companies not individually reviewed submit to the USDOC a "separate 
rate application" or a "separate rate certificati on", to establish the absence of government control, both 
in law and in fact, with respect to exports.  Co mpanies must present evidence to satisfy the criteria 
established by the USDOC to prove the absence of gove rnment control.  Companies that satisfy the WT/DS404/R 
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  criteria will typically receive a rate based on the we ighted average of the rates individually calculated 
for the mandatory respondents, excluding rates that are zero, de minimis , or based on facts available.  
Companies that do not satisfy the USDOC's criteri a receive the Vietnam-wide rate, a punitive rate 
based on adverse facts available.  The result of this  practice is grossly inflated margins for companies 
that are unable to satisfy the unjustif ied criteria established by the USDOC. 
 
17. In these antidumping proceedings, companies that do not satisfy the separate rate criteria have 
been assigned a Vietnam-wide rate of 25.76 per cent for the first, second, third, and fourth 
administrative reviews.  In contrast, the rate for companies that satisfied the separate rate criteria 
was 4.57 percent for the first, second, and third admi nistrative review, and 4.27 percent for the fourth 
administrative review.    
C. USDOC'
S LIMITED SELECTION OF MANDATORY RESPONDENTS AND APPLICATION OF THE 
"ALL-OTHERS " RATE TO RESPONDENTS NOT INDIVIDUALLY REVIEWED    
 
18. The United States antidumping law sets forth the general requirement that all exporters 
seeking individual investigation or review have the opportunity to do so.  The law provides a limited 
exception to this general rule where doing so would be impracticable because of the large number of 
exporters or producers requesting investigation or review.   
 19. At each segment of this antidumping proceeding, the USDOC has severely limited the 
number of companies that it individually reviews.   Following initiation of the investigation and 
administrative reviews, the USDOC issues a respondent selection memorandum in which two determinations are made:  whet her it would be practicable to individually examine all companies 
and, if not, the number and specific identity of those companies for which examination will take 
place.  The USDOC has individually examined between  two and four companies at each phase of this 
antidumping proceeding, despite requests for review that consistently exceed 30 companies.  In each 
memorandum, the USDOC provides the identical ra tionale for limiting the number of companies 
examined:  that the office conducting the review ha s a significant workload, that the office does not 
anticipate receiving additional resources to conduc t the review, and therefore, it would be 
impracticable to review more than the stated number of companies.    
20. The non-selection of  a company for individual review can have significant ramifications for 
that company.  In the second and third administrative reviews, all companies selected for individual examination received rates that there were either zero or de minimis .  Because the USDOC typically 
excludes from the all-others rate calculation zero and de minimis  rates, the USDOC in both instances 
relied on the results of the first administrative revi ew, which in turn relied on calculations from the 
original investigation.  The USDOC relied on a prior phase of the proceeding to assign a margin for 
companies not individually reviewed in a subsequent review.  The fact that in both cases the 
companies selected as mandatory respondents received a zero or de minimis margin was ignored in 
determining the rate for the non-individually reviewed  companies eligible to receive the all-others 
rate.   
 
21. The limited selection of respondents also adve rsely impacts a company's ability to prove the 
absence of dumping and have an antidumping duty order revoked.  A company not afforded the opportunity to participate in administrative review s likewise does not have the opportunity to establish 
that it no longer engages in dumping.  United Stat es law, consistent with Article 11.1 of the 
Agreement , provides for revocation of an antidumping duty order where a company has been found to 
not dump for three consecutive years.  Yet, by refu sing to individually ex amine all companies seeking 
review, the USDOC severely limits the  number of companies that qualify for revocation under this 
provision, making the law irrelevant for most companies seeking revocation.    WT/DS404/R 
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  IV. CLAIMS AND ARGUMENTS 
 A. C
LAIMS OF INCONSISTENCY REGARDING ZEROING  
 
22. The Appellate Body has stated repeatedly  and resoundingly that the issue of zeroing in 
antidumping proceedings is a settled matter:  th e zeroing methodology is inconsistent with the 
Agreement  in both investigations and administrative review s.  In the interest of judicial economy and 
fairness, the Panel should adhere to the guidance of  the Appellate Body and find the zeroing used in 
this proceeding by the USDOC, identical in substa nce to the zeroing previously considered by the 
Appellate Body, to violate Unite d States obligations under the Agreement .   
 
1. The Use of Zeroing in the Original Investigation of this Proceeding Is Inconsistent with 
United States WTO Obligations  
 
(a) Article VI of the GATT 1994 and Article 2.1 of the Agreement  define "dumping" and "margin 
of dumping" with regard to the product as a whole 
 23. The GATT 1994 and the Agreement  both define the concepts of "dumping" and "margin of 
dumping" with regard to the product under investigat ion as a whole, not models or categories that are 
subsets of the product.  First, Article VI:1 of  the GATT 1994 defines dumping as when "products of 
one country are introduced into the commerce of anot her country at less than the normal value of the 
products," referring to the product as a whole, not subsets.   
 24. Second, Article 2.1 of the Agreement , which based on the terms of the provision applies to the 
entire Agreement , defines "dumping" for purposes of the Agreement with clear reference to the 
"product" that is subject to the proceeding.  Th e Appellate Body has repeatedly understood this 
definition to preclude a finding of dumping for any subcategory of the product under review.  
Additional articles of the Agreement  and GATT 1994 provide contextual support for this 
interpretation:  Article 9.2 discusses the imposition of an antidumping duty with respect to a 
"product";  Article 6.10 states that the investigati ng authority shall calculate an "individual margin of 
dumping for each exporter or producer concerne d of the product under investigation";  and 
Article VI:2 of the GATT 1994 provides that "in order to offset or prevent dumping, a contracting 
party may levy on any dumped product an antidumping duty not greater in amount than the margin of 
dumping in respect of that product."    
25. Thus, although an investigating author ity may undertake multiple comparisons using 
averaging groups or models, the results of the multip le comparisons at the sub-level are not "margins 
of dumping."  Rather, those results reflect only inte rmediate calculations made by an investigating 
authority in the context of establishing margins of dumping for the product under investigation.   
 (b) Zeroing is Prohibited Under Article 2.4.2 of the Agreement  
 
26. The model zeroing methodology is inco nsistent with Article 2.4.2 of the Agreement  because it 
fails to consider the results of all export tran saction comparisons for purposes of calculating a final 
dumping margin.  The Article requires that where the administering authority makes a weighted average to weighted average compar ison for purposes of calculating the margin of dumping, as it did 
in the shrimp original investigation, the weighted  average normal value is to be compared to "a 
weighted average of prices of all comparable expor t transactions."  As shown above, the "margin of 
dumping" for which Article 2.4.2 provides the method of calculation refers to the margin of dumping 
for the product as a whole , not a subset of the product.  The requirement of Article 2.4.2 that "all 
comparable export transactions" be compared necessar ily means that all transactions for that product 
be factored into the final calculation, and is not merely a reference to the intermediate, model-based 
calculations.   WT/DS404/R 
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  27. By disregarding or treating as zero the interm ediate comparisons for product models where 
the net export prices exceed normal value, the USDOC 's use of zeroing in investigations necessarily 
fails to account for "all comparable export transacti ons."  The zeroing methodology systematically 
excludes export transactions that Article 2.4.2 requir es be included in the final margin calculation.  
The Appellate Body and numerous pa nels have repeatedly found this ac tion to violate Article 2.4.2 of 
the Agreement .   
 
2. The Use of Zeroing in Periodic Reviews is Inconsistent with United States WTO 
Obligations  
 28. As the discussion above illustrates, Article  IV:1 of the GATT 1994 and Article 2.1 of the 
Agreement  define "dumping" and "margin of dumping" with  regard to the subject product as a whole.  
As recognized by the Appellate Body, this  definition is applicable to the entire Agreement , per the 
opening line of Article 2.1.    
29. Article 9.3 of the Agreement  governs the assessment of final antidumping duties and thus 
bears on the USDOC's use of simple zeroing in administrative reviews.  The Article does not mandate use of a particular methodology for calculation of final assessment, but does require that the "amount 
of the antidumping duty shall not exceed the marg in of dumping as established under Article 2."  
Thus, the margin of dumping, calculated pursuant to  Article 2, serves as a ceiling to the amount of 
antidumping duties that may be collected in the a ssessment phase.  Additionally, as is clear from the 
reference to Article 2, the "margin of dumping" in  Article 9.3 must likewise be calculated on the basis 
of all transactions for the product as a whole, not mere ly a subset of the transactions for that product. 
 
30. The USDOC's model zeroing methodology does not  take into consideration all transactions 
for the product, treating as zero and disregarding those intermediate comparisons where export price 
of an individual transaction exceeds normal value.  By doing so, the calculation necessarily results in 
dumping margins that are higher than would be true if all export transactions were taken into account, 
i.e., higher than the dumping margins would be for the product as a whole.   
 
31. The GATT 1994 and the Agreement  require that where the administering authority makes 
multiple comparisons at an intermediate stage, all intermediate comparisons must be aggregated, 
including comparisons that produce both negative and positive dumping margins.  As has been 
repeatedly construed by the Appellate Body and prio r panels, this action violates Article VI:2 of the 
GATT 1994 and Article 9.3 of the Agreement .   
 
B. C
LAIMS OF INCONSISTENCY REGARDING THE COUNTRY -WIDE RATE 
 
32. As discussed above, the USDOC's practice for calculating the antidumping margins for 
companies not individually investigated or reviewed  differentiates between companies that satisfy the 
USDOC's separate rate criteria and those that do not.  Yet, the USDOC has no authority under the 
Agreement or Viet Nam's Accession Protocol to the WT O to assign the highly punitive Vietnam-wide 
rate to companies in this proceeding.   
 
33. The Agreement  contemplates that an administering authority may apply only three types of 
antidumping margins.  An administering authority may not go beyond the types of margins provided 
for in the Agreement , as identification of the three types of margins in the Agreement  necessarily 
limits the practices and methodologies available to an authority.  To allow an authority to deviate beyond the provided methods for calculation woul d render meaningless the parameters set for 
application of those margins.  Specifically, the express terms of Articles 2, 6, and 9 of the Agreement  
limit the types of margins to be applied.    WT/DS404/R 
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  34. Article 2 defines dumping and provides the framework for how an administering authority 
may determine the existence and extent to which an individually investigated company may be 
engaged in dumping.    
35. Article 6.8 provides that an administering authority may calculate rates for individually 
examined companies on the basis of facts available.  The plain language of Article 6.8, as interpreted 
by the Appellate Body, makes clear that a margin th at is based on facts available may only be applied 
to companies individually examined by the administer ing authority.  Article 6.8 provides that facts 
available may only be used where an "interested party" does not provide "necessary information" to 
the authority.  The Appellate Body has explicitly clarified that non-examined companies are not 
"interested parties" within the context of Article 6.8, precluding application of that Article to those 
entities.   
 
36. Furthermore, an administering authorit y does not, by definition, request "necessary 
information" from companies not individually examin ed.  Necessary information is that which is 
necessary to calculate an antidumping margin.  A lthough an administering authority may request 
information beyond this, only the failure to provide  necessary information triggers the application of 
Article 6.8.  This fact renders this provision ina pplicable to companies not individually examined.  
 
37. Article 9.4 is the final type of antidumping margin contemplated by the Agreement  and 
provides for calculation of a single all-others ra te for companies not individually examined.  
Article 9.4 sets the parameters for margins to be applied where examination has been limited pursuant 
to Article 6.10 of the Agreement .  The Article is clear that an admi nistering authority may not apply to 
non-examined companies an antidumping margin th at exceeds the weighted average margin of 
dumping for companies individually review ed, excluding margins that are zero, de minimis  or based 
on facts available.  Application of a margin beyond  this limit violates the basic and clear terms of 
Article 9.4. 
 38. Viet Nam's Protocol of Accession ("Protocol ") confirms that the USDOC has no basis for 
applying this discriminatory rate to Vietnamese  producers and exporters.  The Protocol, through 
reference to the Report of the Working Party on the Accession of Viet Nam, identifies the entire 
universe of situations in which an administer ing authority may deviate from the terms of the 
Agreement .  While the Protocol provides certain speci al rules applicable to Viet Nam during a 
transition period, it contains no exception for the calculation of the margins of dumping for companies not individually investigated or reviewed.   
 
39. The USDOC has no authority to deviate from the Agreement  and apply the Vietnam-wide rate 
to certain Vietnamese companies.  The Vietnam-wi de rate does not comply with the requirements of 
Articles 2, 6.8, or 9.4, and is not otherwise contemplated by the Agreement  or Viet Nam's Protocol.   
 C. C
LAIMS OF INCONSISTENCY REGARDING THE ALL-OTHERS RATE    
 
40. As discussed above, the USDOC impermissi bly applied both an a ll-others rate and a 
Vietnam-wide rate to companies not individually ex amined.  For purposes of the all-others rate, the 
USDOC generally calculates the all-others rate base d on the weight-average of the weighted-average 
margins of the firms individually examined , excluding those margins that are zero, de minimis , or 
based on facts available.  Two actions taken by  the USDOC with regard to calculation of the 
all-others rate in the second and third administra tive reviews are inconsistent with United States WTO 
obligations. 
41. First, the USDOC's use of weighted averag e margins for individually examined companies 
that were calculated using the zeroing methodology is  inconsistent with Articles 2.4 and 9.4 of the 
Agreement .  Article 9.4 requires that antidumping margin s, calculated in a manner consistent with WT/DS404/R 
Page A-9 
 
 
  Article 2, serve as the basis for determining the ce iling antidumping margin for the all-others margin.  
As set forth above in paragraph 20  above, the all-others rate applied in the second and 
third administrative reviews was in fact based on the final antidumping margins of the original 
investigation.  As discussed in paragraph 12 ab ove, the USDOC utilized model zeroing to calculate 
the rates for individually inves tigated companies in the original  investigation;  as discussed in 
paragraphs 26 and 27 above, use of  this methodology is inconsistent with Article 2.4 of the 
Agreement .  Accordingly, the all-others rate applied in the second and third administrative reviews is 
inconsistent with Article 9.4 of the Agreement .  
 
42. Furthermore, the USDOC's determination to base the all-others rate on the results of a 
previous proceeding is inconsis tent with Article 9.4 of the Agreement .  While Article 9.4 states that an 
administering authority may not use rates that are zero, de minimis , or based on facts available when 
calculating the ceiling of the all-others rate, the Appe llate Body has made clear that an administering 
authority does not operate with complete discreti on where the individually reviewed companies all 
receive an antidumping duty of zero, de minimis , or based on facts available.   
 
43. The Appellate Body's interpretation comports  with the purpose of this provision of the 
Agreement :  companies not individually examined should not be prejudiced by the actions of others.  
Companies that have been denied the opportunity for individual examination should not be subjected 
to a higher rate when the ability to participate has been removed through no fault of their own.  The 
administering authority has an obligation to adop t a reasonable practice that does not subject the 
non-investigated companies to unfair prejudice.  Vi et Nam submits that the USDOC's practice in the 
second and third administrative reviews is prejudicial  to these companies, as it relies on results that 
have no basis in the relevant review.   
 
44. Article 9.4 does not prohibit the use of zero or de minimis rates for purposes of calculating the 
all-others rate;  the prohibition only extends to calculating the ceiling of the all-others rate.  Consistent 
with this understanding, the USDOC must adopt a reasonable approach that both complies the 
ordinary meaning of Article 9.4 and the purpose of that provision.   
 
D. C LAIMS OF INCONSISTENCY REGARDING LIMITING THE NUMBER OF RESPONDENTS SELECTED 
FOR FULL INVESTIGATION OR REVIEW  
 
45. Article 6.10 of the Agreement  requires as a general rule that the administering authority shall 
determine an individual dumping margin for each known exporter or producer of the subject 
merchandise.  The Article goes on to provide a limit ed exception to this requirement where doing so 
would be impracticable because of the large number of producers or exporters.  The issue before the 
Panel is whether this exception shou ld override other provisions of the Agreement  and the object and 
purpose of the Agreement .  In creating a rule out of the exception, the USDOC has denied Vietnamese 
companies their rights available under Articles 6.10, 9.3, 11.1, and 11.3.    
46. It is difficult to conceive that in entering into the Agreement  the parties intended to include an 
exception to a general rule which ultimately woul d become the rule.  Even more probative of the 
proper interpretation of the Article 6.10 exception is  that its repeated and continued application 
essentially nullifies other provisions and principles in the Agreement .  This includes:  (1) the 
protection of exporters and producers from paying an  antidumping duty in excess of their margin of 
dumping pursuant to Article 9.3;  (2) the ability of exporters and producers to obtain revocation of an 
order upon a demonstration that they are no longer dumping pursuant to Article 11.1;  and (3) the 
ability of exporters and producers to benefit from term ination of an order based on a demonstration of 
no likelihood of recurrence or continuation of the dumping pursuant to Article 11.3.   
47. Viet Nam submits that the object and purpose of the Agreement  further supports this 
interpretation.  Because antidumping measures are a mechanism by which the tariff benefits of WTO WT/DS404/R 
Page A-10 
 
 
  Members can be nullified, the application of these pr ocedures is disciplined by detailed rules intended 
to avoid jeopardizing the tariff benefits without an adequate basis.  Thus, the Agreement  puts specific 
limits on the form (Article 18.1) , duration (Articles 11.1 and 11.3 ) and amount (Article 9.3) of 
antidumping measures, and provides a mechanism to both review the need for continuation of the 
duties (Article 11.2) and the amount of the duties (Article 9).  Read in the context of the WTO 
Agreement and the GATT 1994, the Agreement  would thus appear to have two broad objects and 
purposes, one being the establishment of precise limits on the form, duration, and amount of any 
antidumping duties imposed.  Indeed, the Agreement  specifically contemplates the possibility that 
companies subject to the antidumping measures will cease dumping.  Yet, in refusing to provide 
individual exporters and producers the opportunity for review, the USDOC has frustrated one of the 
basic objects and purposes of the Agreement .  It cannot be that the exception to an Article can trump 
not only the general rule contained in the provision , but also frustrate the functions of other Articles 
and the overall purpose of the Agreement .   
 
V. CONSEQUENTIAL VIOLATIONS OF WTO OBLIGATIONS 
 48. As a result of the aforementioned prac tices, the USDOC has committed consequential 
violations that strike at the very core principl es of antidumping measures.  Namely, that antidumping 
duties are company-specific and should not be levied  in excess of the amount of the margin of 
dumping of a particular exporter or producer, a nd that the duties should be terminated upon 
demonstration that dumping is no longer occurring.   
 
49. The claims made by Viet Nam in this dispute re late to practices that have had very significant 
and very real effects on the Vietnamese companie s impacted by the antidumping proceeding.  These 
companies and this industry in Viet Nam serve as a model for adjusting sales practices to ensure 
compliance with the antidumping law in the United States.  For the reasons set forth above, the 
USDOC's practices impermissibly foreclose the ab ility of these companies to benefit from these 
changes. WT/DS404/R 
Page A-11 
 
 
  ANNEX A-2 
 
 
EXECUTIVE SUMMARY OF THE FIRST WRITTEN  
SUBMISSION OF THE UNITED STATES 
 
 
I. INTRODUCTION 
 
1. This is not merely another zeroing dispute.  Zeroing, as a factual matter, had no impact on the 
margins of dumping determined for individually ex amined exporters or producers in the challenged 
proceedings, and it was not used during the proceedi ngs in order to determine any other assessment 
rates applied.  Beyond its unfounded zeroing clai ms, Vietnam seeks to undermine the ability of 
investigating authorities to conduct antidumping examinations when faced with incomplete 
information, uncooperative interested parties, and large numbers of respondent firms.  Ultimately, 
Vietnam asks this Panel to read obligations into the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994  ("AD Agreement") and the General Agreement on 
Tariffs and Trade 1994  ("GATT 1994"), notwithstanding the fact that there is no textual basis for such 
obligations.  This Panel should make an objective assessment of the matter before it and refrain from 
adopting Vietnam's interpretations.  
 2. Vietnam also challenges a number of "measures" that are not properly before the Panel.  The 
United States requests that the Panel grant the reque sts for preliminary rulings with respect to these 
"measures."  II. GENERAL PRINCIPLES 
 3. The complaining party bears the burden of pr oving that a measure is inconsistent with the 
obligations in a covered agreement.  In a dispute involving the AD Agreement, a panel must also take 
into account the standard of review set forth in Ar ticle 17.6(ii) of the AD Agreement, which confirms 
that there are provisions of the Agreement that "admit [] of more than one permissible interpretation."  
Where that is the case, and where the investigating authority has relied upon one such interpretation, a 
panel is to find that interpretation to be in conformity with the Agreement. 
 
4. Article 11 of the Dispute Settlement Unders tanding ("DSU") requires a panel to make an 
objective assessment of the matter before it, including an objective assessment of the facts and the 
applicability of and conformity with the relevant  covered agreements.  The Appellate Body has 
explained that the matter includes both the facts of the case (and the specific measures at issue in 
particular) and the legal claims raised.  
 
5. Articles 3.2 and 19.2 of the DSU mandate th at the findings and recommendations of a panel 
or the Appellate Body, and the recommendations and rulings of the Dispute Settlement Body 
("DSB"), cannot add to or diminish the rights and obligations provided in th e covered agreements.  
While prior adopted panel and A ppellate Body reports create legitimate expectations among WTO 
Members, the Panel is not bound to follow the reas oning set forth in any Appellate Body report.  The 
rights and obligations of the Members flow, not from panel or Appellate Body reports, but from the 
text of the covered agreements.   
 
III. REQUESTS FOR PRELIMINARY RULINGS 
 6. The Investigation :  Pursuant to Article 18.3 of the AD Agreement, the original antidumping 
investigation of shrimp from Vietnam is not subject  to the AD Agreement.  The investigation was WT/DS404/R 
Page A-12 
 
 
  initiated pursuant to an application made before  11 January 2007, the date on which the WTO 
Agreement entered into force for Vietnam.  Conse quently, determinations made by Commerce in the 
course of the investigation are not subject to the provisions of the AD Agreement and may not be reviewed by this Panel. 
 
7. In addition, the investigation was not incl uded in Vietnam's request for consultations.  
Article 4.4 of the DSU provides that a request for c onsultations must state the reasons for the request, 
"including identification of the measure at issu e and an indication of the legal basis for the 
complaint."  Article 4.7 of the DSU provides that a complaining party may request establishment of a 
panel only if "the consultations fa il to settle a dispute."  Article 17. 4 of the AD Agreement states that 
a Member may only refer "the matter" to the DSB following a failure of consultations to achieve a 
mutually agreed solution, and final action by the administering authorities of the importing Member to 
levy definitive antidumping duties or to accept price undertakings.  Because Vietnam failed to include 
the investigation in its consultations request, th e shrimp antidumping investigation is outside the 
Panel's terms of reference. 
 
8. The First Administrative Review :  Like the investigation, the first administrative review 
was initiated prior to Vietnam's accession to the WTO.  Per the terms of Article 18.3 of the 
AD Agreement, the application of the AD Agreemen t is strictly limited "to investigations, and 
reviews of existing measures, initiated pursuant to ap plications which have been made on or after the 
date of entry into force for a Member of the WT O Agreement" (emphasis added).  Accordingly, for 
the same reasons given with respect to the i nvestigation, the AD Agreement does not apply to 
Commerce's determination in the first administrative review.   
9. The "Continued Use of Challenged Practices" :  The "continued use of challenged 
practices" is not a "measure" within  the Panel's terms of reference.  Article 6.2 of the DSU requires 
that a panel request "identify the specific measures at issue and provide a brief summary of the legal 
basis of the complaint sufficient to present the pr oblem clearly."  Vietnam' s panel request limits the 
measures at issue to the particular determinations identified therein and fails to identify the "continued 
use of challenged practices" as a measure at issue in  this dispute. Vietnam' s panel request here is 
distinguishable from the EC's request in US – Continued Zeroing ; Vietnam's panel request fails to 
identify the "continued use of challenged practices" at all.  Because the panel request defines the 
jurisdiction of a panel, the "continued use of challe nged practices" is outside th e Panel's jurisdiction.  
The component proceedings of the "continued use" m easure are outside the Panel's terms of reference 
as well, because Vietnam is attempting to expand the sc ope of the proceedings it identified in its panel 
request. 
 10. Additionally, this purported "measure" is not subject to  WTO dispute settlement because it 
appears to be composed of an indeterminate number of potential future measures.  It is impossible for 
Members to consult on a measure that does not ex ist, and a non-existent measure cannot meet the 
requirement of Article 4.2 of the DSU that the measure be "affecting" the operation of a covered 
agreement.  In US – Upland Cotton , the panel found that a measure that had not yet been adopted 
could not form part of its terms of reference, noting that such a "measure" could not have been 
impairing any benefits because it was not in existen ce at the time of the panel request.  Furthermore, 
Article 17.4 of the AD Agreement provides that a Member may refer "the matter" to dispute 
settlement only if consultations have failed to resolv e the dispute and "final action" has been taken by 
the administering authorities of the importing Memb er to levy definitive antidumping duties or to 
accept price undertakings.  At the time of Vietnam' s panel request, the alleged "continued use of the 
challenged practices" did not invol ve a final action to levy definitive antidumping duties or accept 
price undertakings.   
 WT/DS404/R 
Page A-13 
 
 
  IV. VIETNAM'S CLAIMS REGARDING ZEROING ARE WITHOUT MERIT 
 
11. Vietnam argues that Commerce's "use of zeroing" in the original investigation is inconsistent 
with U.S. WTO obligations.  The investigation is not within the Panel's terms of reference and was 
not subject to the AD Agreement, so Commerce's de termination therein cannot be found inconsistent 
with Article 2.4.2 of the AD Agreement.  To the extent that Commerce relied on dumping margins 
calculated during the investigation in later assessm ent reviews, the use of such margins in an 
assessment review cannot result in a finding that the de termination in the inves tigation is inconsistent 
with Article 2.4.2 of the AD Agreement.  Furtherm ore, the use of dumping margins from the original 
investigation in later assessment pr oceedings cannot itself be found inc onsistent with Article 2.4.2 of 
the AD Agreement, since Article 2.4.2 is limite d by its terms to the "investigation phase."  
 
12. Vietnam contends that the use of zeroing in  the second and third administrative reviews to 
calculate dumping margins applied to individually examined respondents was inconsistent with the 
WTO Agreements.  Vietnam has not explained how the margins of dumping calculated for the 
individually examined firms were affected by "zeroing."  Commerce calculated either a zero or 
de minimis  margin of dumping for every company individually examined in the second and third 
administrative reviews.  Given the zero and de minimis dumping  margins, and that no antidumping 
duties were assessed based on "zeroing," it is not po ssible that antidumping duties were imposed that 
exceeded the margins of dumping, so there can be no vi olation of the obligations in Article VI:2 of the 
GATT 1994 or Article 9.3 of the AD Agreement.   
 
13. In addition, the text and context of the rele vant provisions of the AD Agreement, interpreted 
in accordance with customary rules of interpreta tion of public international law, do not support a 
general prohibition of zeroing that would apply in  the context of assessment proceedings.  The 
methodology used by Commerce to calculate antid umping duties in the assessment proceedings in 
question rests on a permissible interpretation of the AD Agreement and is WTO-consistent. 
 14. In US – Softwood Lumber V (AB) , the Appellate Body found that  the exclusive textual basis 
for an obligation to account for such non-dumping in calculating margins of dumping appears in 
connection with the obligation in Article 2.4.2 that  "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 pr ices of all comparable export transactions ...."  This 
particular text of Article 2.4.2 applies only w ithin the limited context of determining whether 
dumping exists in the investigation phase when  using the average-to-average comparison 
methodology in Article 2.4.2.  
 15. If Vietnam is correct that there is a general prohibition of zeroing that applies in all 
proceedings and under all comparison methodologies,  the meaning ascribed to "all comparable export 
transactions" by the Appellate Body in  US – Softwood Lumber V  would be redundant of the general 
prohibition of zeroing.  The Appellate Body recognized the need to avoid such redundancy in  US – 
Zeroing (Japan) .  There, the Appellate Body  reinterpreted "all comparab le export transactions" to 
relate solely to all transactions within a m odel, and not across models of the product under 
investigation.  However, this is  inconsistent with the reasoning in  US – Softwood Lumber V (AB) . 
 16. Subsequent to  US – Softwood Lumber V (AB) , several panels examined whether the obligation 
not to "zero" when making average-to-average co mparisons in an investigation extended beyond that 
context.  In making an objective assessment of the matter, these panels determined that the customary 
rules of interpretation of public international la w do not support a reading of the AD Agreement that 
expands the zeroing prohibition beyond average-to-avera ge comparisons in an investigation.  This 
Panel should likewise find that, at a minimum, it is  permissible to interpret the AD Agreement as not 
prohibiting zeroing outside the context where the interpretation of "all comparable export 
transactions" articulated in the Appellate Body report in  US – Softwood Lumber V  is applicable. WT/DS404/R 
Page A-14 
 
 
  17. Vietnam's claims depend on interpreting "mar gins of dumping" and "dumping" as relating 
exclusively to the "product as a whole."  The term "p roduct as a whole" does not appear in the text of 
the AD Agreement.  The panel in  US – Zeroing (Japan) explained, "'[T]here is nothing inherent in the 
word 'product[]' (as used in Article VI:1 of the GATT 1994 and Article 2.1 of AD Agreement) to 
suggest that this word should preclude the possibility of establishing margins of dumping on a 
transaction-specific basis ....'"  The panel in  US – Softwood Lumber V (Article 21.5)  explained, "an 
analysis of the use of the words product and products throughout the GATT 1994 , indicates that there 
is no basis to equate product with 'product as a whol e'....  Thus, for example, when Article VII:3 of the 
GATT refers to 'the value for customs purposes of any imported product', this can only be interpreted 
to refer to the value of a product in a particular import transaction." 
 18. Vietnam also has not demonstrated any inc onsistency with Article 9.3 of the AD Agreement 
nor Article VI:2 of the GATT 1994.  Vietnam ar gues that the antidumping duty has exceeded the 
margin of dumping established under Article 2.  Th is argument depends entirely on a conclusion that 
Vietnam's preferred interpretation of the "margi n of dumping," which precludes any possibility of 
transaction-specific margins of dumping, is the only perm issible interpretation of this term as used in 
Article 9.3 of the AD Agreement.  However, an tidumping duties are assessed on individual entries 
resulting from those individual transactions.  The ob ligation set forth in Article 9.3 – to assess no 
more in antidumping duties than the margin of dum ping – is similarly applicable at the level of 
individual transactions.  All panels that have examined this issue – in  US – Zeroing (EC) , US – 
Zeroing (Japan) , and  US – Stainless Steel (Mexico) – have agreed with this interpretation.  These 
panels' understanding of Article 9.3 of the AD Agreement is, at a minimum, a permissible 
interpretation of the provision.   V. VIETNAM'S CLAIMS REGARDING THE "COUNTRY-WIDE" RATE ARE 
WITHOUT MERIT 
 
19. Vietnam argues that Commerce's assignment of a margin of dumping to the Vietnam-wide entity in the second and third administrative reviews was inconsistent with various obligations under 
the AD Agreement.  Vietnam incorrectly refers to the assignment of an assessment rate to the 
Vietnam-wide entity as an assignment of a "country-w ide" rate.  The premise of Vietnam's argument 
is factually incorrect:  Commerce did not assign a "c ountry-wide" rate.  The Vietnam-wide entity rate 
was assigned to those companies that had not established that they are free from government 
influence, particularly in their export activities, and thus are reasonably considered to be parts of one 
entity that Commerce has identified as an "expor ter" or "producer" under Article 6.10 of the 
AD Agreement.  
 20. Article 6.10 requires an investigating authorit y to determine an individual margin of dumping 
for each known "exporter" or "producer" of the pr oduct under investigation, unless this is not 
practicable.  Prior to assigning an individual dumpi ng margin, however, the authority must identify 
whether an entity is an "exporter" or "producer ."  The AD Agreement does not define the terms 
"exporter" or "producer," nor does it establish criteria for an investigating authority to examine in 
order to determine whether a particular entity constit utes an "exporter" or "producer."  Therefore, an 
authority is permitted to determine, based upon the facts on the record, whether a given entity 
constitutes an "exporter" or "producer" as a condition precedent to calculating an individual dumping margin for that entity.  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 
upon their activities and relationships.  The reasoning of the panel in Korea – Certain Paper  supports 
this interpretation of Article 6.10 of the AD Agreement.  
21. An inquiry into the relationship between companies and the reality of their respective 
commercial activities is also relevant in the contex t of exporters from a non-market economy.  As the 
term suggests, in a non-market economy, governme nt influence on the economy interferes with the WT/DS404/R 
Page A-15 
 
 
  full functioning of market principles.  Due to this distortion, prices in a non-market economy cannot 
be used in antidumping calculations because they do not sufficiently reflect demand conditions or the 
relative scarcity of resources.  In other words, th ere is an absence of the demand and supply elements 
that separately and collectively make a market-based  price system work.  During Vietnam's accession 
negotiations, Members expressed concern about the in fluence of the Government of Vietnam on its 
economy and how such influence could affect co st and price comparisons in antidumping duty 
proceedings. 
 22. Commerce's 2002 inquiry into the non-market nature of Vietnam's economy confirmed that 
the Government of Vietnam maintains significant control over the Vietnamese economy.  During the 
antidumping duty investigation on frozen fish f illets from Vietnam, Commerce investigated and 
analyzed the extent of government influen ce on the Vietnamese economy for the purpose of 
determining whether Vietnam should be cla ssified as a non-market economy in Commerce's 
antidumping proceedings.  Commerce incorporated by reference and relied on the analysis in the fish 
fillets investigation when it determined that Vi etnam continues to be a non-market economy for the 
purposes of the determinations challenged in this di spute.  Thus, as one of the first steps in the 
administrative reviews at issue, Commerce determ ined whether the particular companies being 
examined were sufficiently free fro m government control so that, inter alia , their export prices were 
not being set by the government.  In order to make this determination, Commerce required each 
company to submit information demonstrating th e company's independence from government control 
regarding export activities.  If Commerce had previ ously determined that a company was entitled to 
an individual rate, then that co mpany needed only submit a certification that its status had not 
changed.  However, if a company could not dem onstrate that it was sufficiently free from government 
influence, Commerce considered that company inelig ible for an individual (or "separate") rate.  
Instead, that company was identified as be ing part of the Vietnam-wide entity, i.e., the entity that is 
presumed to control the export activities of the companies that compose it. 
 
23. Contrary to Vietnam's claim, this is not a discriminatory practice.  Commerce collects similar information in market economy cases to identify ea ch company's affiliates, including information 
regarding percentage of ownership and ultimate decision making authority.  If the data indicate that 
companies are affiliated and the relationships are sufficiently close so as to  allow one company to 
influence another, Commerce treats the companies as a single entity.  
 
24. The non-market economy entity is treated just like any other "exporter" or "producer" being 
examined under Article 9 of the AD Agreement.  If the non-market economy entity does not provide 
information requested, the authority may rely upon  the facts available pursuant to Article 6.8 and 
Annex II of the AD Agreement.  In the second admi nistrative review, numerous interested parties 
determined to be part of the Vietnam-wide entity failed to provide necessary information requested by 
Commerce.  Thus, Commerce had to rely upon the f acts available.  Neither Article 6.8 nor Annex II 
requires investigating authorities to limit the applica tion of facts available to "individually examined 
exporters/producers."  
 
25. Vietnam further attempts to limit the ability of investigating authorities to rely on facts 
available by arguing that "necessary information"  should be narrowly understood as only that 
information which is used to calculate dumping ma rgins.  There is no basis in the text of the 
AD Agreement for such a limitation.  Vi etnam's reliance on the panel report in Argentina – Ceramic 
Tiles  is misplaced;  that panel was not examining the definition of the term "necessary information" in 
Article 6.8.  Vietnam also mischaracterizes the finding of the panel in Egypt – Steel Rebar .  That 
panel found that "it is left to the discretion of an investigating authority, in the first instance, to 
determine what information it deems necessary for the conduct of its investigation (for calculations, 
analysis, etc.) ...."  Regardless, the information that Commerce requested was necessary in order to 
define the pool from which Commerce selected th e largest exporters, and the information also WT/DS404/R 
Page A-16 
 
 
  represented the data necessary for determining a co mpany's export price, once selected for individual 
examination.   
 26. It is important to emphasize that, in the second administrative review, the Vietnam-wide 
entity received a rate based upon the facts available because of the non-cooperation of several of the 
parties that make up that entity.  In fact, every pa rty under review that was identified as being part of 
the Vietnam-wide entity failed to cooperate by not  responding to a request for necessary information, 
i.e., the quantity and value questionnaires.  As a result,  the rate assigned to each of the companies that 
were identified as being part of the Vietnam-wide  entity would also have been based upon the facts 
available even if they each had been assigned an indi vidual rate.  That is, cons istent with Article 6.8 
and Annex II of the AD Agreement, each of these companies would have been assigned a rate based entirely upon the facts available because they failed to cooperate with the investigation by refusing to 
provide necessary information. 
 27. In the third administrative review, many of the companies under review did not provide 
information to demonstrate that their export activ ities were independent of government control.  
Accordingly, Commerce determined that they we re part of the single Vietnam-wide entity and 
determined an appropriate rate to apply to entri es from this entity.  Commer ce applied to the Vietnam-
wide entity the same rate applied to it in the most recently comp leted proceeding, because this was 
"the only rate ever determined for the Vi etnam-wide entity in this proceeding."   
 VI. VIETNAM'S CLAIMS REGARDING THE "ALL OTHERS RATE" ARE WITHOUT 
MERIT 
 28. Vietnam claims that the sepa rate rates applied by Commerce to  certain exporters or producers 
in the challenged determinations are inconsistent with Articles 2.4 and 9.4 of the AD Agreement 
because 1) the rate was calculated using the zeroi ng methodology, and 2) the rate was a weighted 
average of dumping margins calculated during the or iginal investigation rather than a weighted 
average of dumping margins calculated during the particular administrative reviews.   
 
29. Vietnam's argument is dependent upon its clai m that Commerce acted inconsistently with the 
AD Agreement when it employed the zeroing methodology in the original investigation. Commerce's 
determination of the separate rate for non-examined  exporters and producers in the investigation, 
which Vietnam refers to as the "all-others rate," was made prior to the entry into force of the WTO 
Agreement with respect to Vietnam.  Thus, that determination was not subject to the AD Agreement 
and cannot have been inconsistent w ith Article 2.4 of the AD Agreement. 
 30. In addition, the separate rates determined in the original investigation do not become subject 
to the AD Agreement simply because they continued to  be applied on or after the date of entry into 
force of the WTO Agreement for Vietnam.  Artic le 18.3 of the AD Agreement provides that "the 
provisions of this Agreement shall apply to inv estigations, and assessment proceedings of existing 
measures, initiated pursuant to applications which ha ve been made on or after the date of entry into 
force for a Member of the WTO Agreement."  In  US – DRAMS , the panel analyzed Article 18.3 of the 
AD Agreement, and reasoned that "[P]re-WTO measures do not become subject to the AD Agreement 
simply because they continue to be applied on or  after the date of entry into force of the WTO 
Agreement for the Member concerned."   
 
31. The calculations that Commerce performed in th e investigation to determ ine the separate rates 
"were not subject to any re-examination" in th e second and third assessment  proceedings.  Commerce 
made no new comparisons between the export price a nd the normal value.  Commerce simply applied 
a previously calculated rate from the investigati on, or a prior proceeding, to respondents that 
demonstrated sufficient independence from the gove rnment during the second and third administrative 
reviews. Therefore, as in  US – DRAMS , the separate rates determined in the original investigation, and WT/DS404/R 
Page A-17 
 
 
  applied in the second and third administrative review s, did not become subject to the AD Agreement 
simply because they continued to be applied after th e date of entry into force of the WTO Agreement 
for Vietnam.   
32. In addition to its arguments  related to zeroing, Vietnam asserts that the rate Commerce 
applied to companies that were not individually examined in the second and third administrative 
reviews "unfairly prejudiced" such companies, and fo r this reason was inconsistent with Article 9.4 of 
the AD Agreement.  Vietnam misunderstands th e requirements of Article 9.4 and has not 
substantiated its claim that Commerce acted inconsis tently with that provision.  The Appellate Body 
explained in  US – Hot-Rolled Steel that, on its face, Article 9.4 expressly requires an investigating 
authority to disregard zero or de minimis  margins, or margins based  on facts available, when 
determining a dumping margin ceiling for non-ex amined exporters or producers based on the 
weighted average margin of dumping of the examin ed exporters or producers.  Vietnam correctly 
notes the possibility that "[i]n certain situations, ... the individually examined exporters/producers may 
all receive an antidumping duty of zero, de minimis , or based on facts ava ilable, the three margins 
explicitly prohibited by Article 9.4 from calculation of the guiding ceiling."  That is the case here.  In 
the absence of rates that could be used to ca lculate a weighted average consistent with the 
requirements of Article 9.4, Commerce determined that it would be appropriate to rely on either a rate 
calculated during the original investigation, wh ich was a weighted average of dumping margins 
calculated for exporters and producers individually  examined in that proceeding, excluding any zero 
and de minimis  margins and margins based on facts available,  or a company-specific rate from a more 
recently completed proceeding where such a rate  had been determined for a company.   
 33. In  US – Zeroing (EC) (21.5) , while the Appellate Body recognized that Article 9.4 is silent 
regarding this situation, it ne vertheless found that Article 9.4 includes some, notably undefined, 
obligation relating to the calculation of the rate for non-examined companies.  Respectfully, the 
United States believes that the Appellate Body w as incorrect.  The Appellate Body did not opine on 
any "specific alternative methodologies to calculat e the maximum allowable 'all others' rate in 
situations where all margins of dumping calcula ted for the examined exporters fall into the 
three categories to be disregarded ..." nor di d it articulate a legal standard for assessing the 
consistency of an investigating authority's action with the "obligation" in Article 9.4 in such 
situations.  Hence, the Appellate Body report in  US – Zeroing (EC) (21.5)  offers the Panel no 
guidance for its analysis of the consistency with Article 9.4 of the methodology applied by Commerce 
in the second and third administrative review.  
34. In the absence of any legal standard or de fined obligation, it is not clear how the separate 
rates Commerce applied to non-examined exporters and producers in the second and 
third administrative reviews could be deemed inco nsistent with Article 9.4.  Commerce applied a 
reasonable method of determining dumping margins that was reflective of the range of commercial 
behaviour demonstrated by exporte rs and producers of the subject merchandise during a very recent 
period and provided a reasonable security going forward for the payment of antidumping duties for 
those companies that were not individually examined. 
 
35. Vietnam criticizes the "application of an anti dumping margin that has no basis in the relevant 
period of review" and proposes that Commerce should be  required to "recalculate the all-others rate 
using a weighted-average of the individually re viewed exporters/producers for the contemporaneous 
phase of the proceeding."  Vietnam appears to be arguing that Commerce violated Article 9.4 of the 
AD Agreement by acting consistently with the expl icit prohibition in Article 9.4 against using zero 
and de minimis  margins to determine the ceiling for the dumping margin to be applied to non-
examined exporters and producers.  Vietnam's ar gument is internally incoherent and cannot be 
accepted. WT/DS404/R 
Page A-18 
 
 
  VII. VIETNAM'S CLAIMS REGARDING LIMITING THE NUMBER OF 
RESPONDENTS SELECTED ARE WITHOUT MERIT 
 
36. Vietnam argues that Commerce's determinations to limit its examination in each of the 
proceedings at issue are inconsistent with the AD Agreement.  Vietnam misconstrues the 
AD Agreement obligations.  Article 6.10 of th e AD Agreement allows Members to determine 
individual margins of dumping for a reasonable  number of exporters and producers, and does not 
require the determination of an individual margin of dumping for all exporters and producers, where a 
large number of exporters and producers is involve d.  The only condition for limiting an examination 
is that the number of exporters or producers must be so large as to make a determination of individual 
margins of dumping for all exporters or producers "impracticable."    
37. Article 6.10 does not define the term "imprac ticable."  The ordinary meaning of the term 
"impracticable" is "unable to be carried out or done ;  impossible in practice," or "incapable of being 
performed or accomplished by the means employed or at command."  Vietnam incorrectly argues, 
contrary to the panel's findings in EC – Salmon (Norway) , that a determination to limit an 
examination must be based solely upon the number of companies involved in the proceeding, without 
regard to an investigating authority's resources.  Article 6.10 permits the limiting of an examination 
when an authority does not have the resources to individually examine all parties involved in an 
investigation.  Here, Commerce e xplained why it was necessary to limit the examination, noting the 
large number of companies involved, and providing an analysis of Commerce's available resources.  
Based upon this analysis, Commerce determined th at it would be impracticable to individually 
examine all of the companies involved.   
38. Vietnam further suggests that there is a limit to the number of times an authority may limit its 
examination, and that Commerce h as surpassed that limit and turned  the exception into the rule.  
Article 6.10 of the AD Agreement contains no such limitation.  Any time the Article 6.10 conditions 
are satisfied, an authority may limit its examination.   
39. Vietnam asserts that, by limiting its examination in the proceedings at issue, Commerce 
denied particular companies the opportunity, pursuant  to a U.S. regulation, to have the antidumping 
order revoked with respect to their exports.  Vietna m argues that this violated Article 11.1 of the 
AD Agreement.  This claim is entirely depende nt on Vietnam's claim under Article 6.10 of the 
AD Agreement, which, as explained above, is withou t merit.  Additionally, Vietnam misunderstands 
the meaning of Article 11.1.  As the Appellate Body has confirmed, Article 11.1 does not impose any 
independent or additional obliga tions on Members, so Commerce's determinations cannot violate 
Article 11.1.  Furthermore, the obligations in Article 11 apply to the antidumping duty order as a 
whole, not as applied to individual compani es.  As the Appellate Body found in U.S.  — 
Corrosion-Resistant Steel Sunset Review , "the duty" referenced in Article 11.3 is imposed on a 
product-specific ( i.e., order-wide) basis, not a company-specific basis.  To the extent that Vietnam's 
claim rests on an alleged obligation to revoke the antidumping duty order on shrimp with respect to 
certain individual companies, that claim must fail.  
 
40. Vietnam argues that Commerce violated Ar ticle 11.3 of the AD Agreement because, in 
declining to individually examin e all companies requesting review in every proceeding at issue, 
Commerce has prevented these companies from demonstrating an absence of dumping, which 
Vietnam contends is the basis for determining whether to continue the order.  The sunset review of the 
shrimp antidumping order, i.e., the Article 11.3 review, is not within  the Panel's terms of reference.  
The sunset review has not yet been completed and,  consequently, there is no determination for the 
Panel to review.  In any event, Article 11.3 pr ovides that a definitive antidumping duty must be 
terminated after five years unless the authorities determ ine that "the expiry of  the duty would be likely 
to lead to continuation or recurrence of dumping a nd injury."  The focus of a sunset review is on 
future behaviour, i.e., whether dumping and injury are likely to continue or recur in the event of WT/DS404/R 
Page A-19 
 
 
  expiry of the duty, not whether or to what extent  dumping or injury currently exists.  Contrary to 
Vietnam's assertion, Commerce's sunset review dete rmination is not based solely upon the existence 
of dumping margins in administrative reviews.  Pa rties are permitted to place any information they 
choose on the administrative record of the su nset review.  Vietnam's argument relies on a 
mischaracterization of the analysis Commerce performs in a sunset review.  
 
41. Vietnam alleges that Commerce acted in consistently with Article 6.10.2 of the 
AD Agreement by not determining individual dumping margins for companies that voluntarily submitted necessary information.  Commerce could not  have acted inconsistently with Article 6.10.2 
because no company voluntarily provided the necessary information in the second and third 
administrative reviews such that any obligation under that provision was triggered.    
42. In the fourth administrative review, which is not within the Panel' s terms of reference, 
two companies requested voluntary respondent status  and submitted what they purported was the 
necessary information.  Commerce determined that it could only individually examine 
two companies.  This determination was made ba sed upon the large number of companies involved in 
the proceeding, as well as Commerce's resource constrai nts.  Article 6.10 permits the limitation of an 
examination when the number of companies invol ved is so large as to make an individual 
determination for each company impracticable.  Article 6.10.2, on the other hand, requires an 
authority to determine an individual margin of  dumping for each company that voluntarily submits 
necessary information, unless the amount of companies involved is so large as to make an individual 
determination for each company that voluntaril y submits information "unduly burdensome."  
Commerce explained that it could individually exam ine only two companies, and, more than being 
"unduly burdensome," it was impossible to examin e any more.  Thus, Commerce's decision not to 
determine individual dumping margins for these two co mpanies was consistent with Article 6.10.2.  
 
VIII. VIETNAM'S CLAIM WITH RESPECT TO THE CONTINUED USE OF 
CHALLENGED PRACTICES IS WITHOUT MERIT 
 43. Vietnam submits that "the USDOC has utili zed the challenged practices in an original 
investigation, four consecutive administrative review s, and in the preliminary results of the ongoing 
sunset review" and argues that this is inconsistent  with various provisions of the AD Agreement and 
the GATT 1994.  As explained above, the "continued use of the challe nged practices" is not a measure 
within the Panel's terms of reference.  In any event, Vietnam's argument is premised on its assertion 
that such "continued use" constitutes an "ongoing conduct."  Even were this a cognizable claim, the 
facts belie a conclusion that any such "ongoing conduct" exists or is likely to continue.   
 44. The United States has serious concerns about the rationale articulated by the Appellate Body 
in the  US – Continued Zeroing dispute.  Vietnam incorrectly asserts that the facts of this case are 
"virtually identical" to the cases found to be inconsistent in that dispute.  In  US – Continued Zeroing , 
the Appellate Body found that the record supporte d findings of inconsistency in only four of the 
eighteen cases challenged, i.e., where "the zeroing methodology was repeatedly used in a string of 
determinations made sequentially in periodic reviews and sunset re views over an extended period of 
time."  Each of the four cases where the Appellate Body concluded that there was "a sufficient basis 
for [the Appellate Body] to conclude that the zeroing methodology would likely continue to be 
applied in successive proceedings" included:  (1) th e use of the zeroing methodology in the initial less 
than fair value investigation;  (2) the use of th e zeroing methodology in four successive administrative 
reviews;  and (3) reliance in a sunset review upon rates determined using the zeroing methodology. 
45. The facts in this dispute do not support a conclusion that the challenged practices "would 
likely continue to be applied in successive proceedings ."  The original investigation, the first, fourth, 
and fifth administrative reviews, and the sunset revi ew are not within the Panel's terms of reference 
and there can be no finding of inconsistency in co nnection with those proceedings.  Additionally, WT/DS404/R 
Page A-20 
 
 
  Vietnam has failed to establish that "zeroing" had any impact on the margins of dumping calculated in 
the second and third administrative reviews, and Viet nam has failed to establi sh as a factual matter 
that Commerce used the zeroing methodology in conn ection with the application of a dumping margin 
to separate rate respondents in those proceedings, or to the Vietnam-wide entity.  Hence, with respect 
to Commerce's use of zeroing, Vietnam cannot establish "a string of determinations, made 
sequentially... over an extended period of time."  
 
46. Vietnam seeks to expand the Appellate Body's reasoning in  US – Continued Zeroing beyond 
zeroing to encompass the other "challenged practices ."  As demonstrated above, though, Vietnam's 
claims regarding the other "challenged practices"  are without merit, and thus Vietnam cannot 
establish "a string of determinati ons, made sequentially... over an  extended period of time" with 
respect to those "challenged practices" either. 
 
IX. CONCLUSION 
 47. The United States respectfully requests that th e Panel grant the U.S. requests for preliminary 
rulings and reject Vietnam's claims that the Unite d States has acted inconsistently with the covered 
agreements. WT/DS404/R 
Page A-21 
 
 
  ANNEX A-3 
 
 
RESPONSE OF VIET NAM TO  THE UNITED STATES'  
REQUEST FOR PRELI MINARY RULINGS 
 
 
I. INTRODUCTION  
 
1. With this submission, Viet Nam respectfu lly provides its response to the requests for 
preliminary rulings asserted in the United St ates' first written submission, received on 
13 September 2010.  Viet Nam does so consistent with the communication received from the Panel on 22 September 2010, requesting that a response be file d by Viet Nam no later than 4 October 2010.   
 
2. Viet Nam limits its discussion in this submi ssion to the arguments raised in Section V.A of 
the United States' first written submission.  Sp ecifically, Viet Nam addresses the following requests 
for preliminary rulings: 
 
 The investigation is not subject to the AD Agreement, nor is it within the Panel's 
terms of reference
1; 
 
 The first administrative review is not subject to the AD Agreement because it was 
initiated pursuant to an application made pr ior to the entry into force of the WTO 
Agreement for Viet Nam2; 
 
 The "continued use of challenged practices " is not within the Panel's terms of 
reference.3 
 3. As an initial matter, Viet Nam does not alle ge that the original investigation or first 
administrative review are within the Panel's terms of reference, except to the extent that the results of 
these segments of the proceeding bear on the resu lts of those segments of the proceeding which 
occurred after Viet Nam's accession to the WTO.
4  The issue here is one of semantics not substance.  
Whether or not the measures imposed as a result of the initial investigation and first administrative 
review were consistent with U.S. WTO obligations at  the time the measures were  applied is irrelevant 
in that the U.S. had no obligation to Viet Nam at  the time it applied these measures.  However, the 
measures and their consistency with U.S. WTO obligati ons are relevant to the extent that they were 
the basis of measures applied by the U.S. after Vi et Nam's accession to the WTO.  As such, whether 
one characterizes these measures as being within the terms of reference of the panel or as simply 
being the factual predicate to support the claims related to the second and su bsequent periodic reviews 
which clearly are within the panel's terms of reference is a matter of semantics not substance.  The 
panel's inquiry into the second and subsequent reviews necessarily has to include what was done in 
the original investigation and first review because these actions bear directly on what was done in the 
second and subsequent administrative reviews. 
4. Viet Nam does take strong exception, however, to the United States' cl aim that the "continued 
use of challenged practices" measure is not within th e Panel's terms of reference.  Viet Nam submits 
                                                      
1 First Written Submission of the United States of Amer ica at p. 16 (hereafter, "United States FWS"). 
2 Id. at p. 20.   
3 Id. at p. 21. 
4 First Written Submission of the Socialist Republic of Viet Nam at para. 101 (hereafter, "Viet Nam's 
First Written Submission").   WT/DS404/R 
Page A-22 
 
 
  that the request made for a preliminary ruling on th is issue is little more than strategic gamesmanship 
on the part of the United States and an effort to distract the Panel from the important substantive 
issues that are of concern in this dispute.  Accord ingly, Viet Nam respectfully requests that the Panel 
deny the request made by the United States and perm it for resolution the "continued use of challenged 
practices" measure. 
 II. VIET NAM ASSERTS THAT THE FINAL RESULTS OF THE INVESTIGATION AN 
THE FIRST ADMINISTRATIVE REVIEW ARE WITHIN THE PANEL'S TERMS OF REFERENCE ONLY INSOFAR AS THE RESULTS OF THESE SEGMENTS OF 
THE PROCEEDING BEAR ON SUBSEQUENT REVIEWS AFTER VIET NAM'S 
ACCESSION TO THE WTO 
 
5. The United States claims in its first written su bmission that the final results of neither the 
investigation nor the first administrative review  are within the Panel's terms of reference.
5  Viet Nam 
stated at paragraph 101 of the first written submissi on that "the measures at  issue are the second and 
third administrative reviews made pursuant to the Shrimp  order, and the continued use of the 
challenged practices in successive antidum ping proceedings u nder this order."6  Accordingly, 
Viet Nam does not consider the investigation or the fi rst administrative review to be within the Panel's 
terms of reference, insofar as Viet Nam is not claiming that the panel can find these measures 
inconsistent with U.S. obligations at the time the me asures were applied.  However, to the extent that 
these measures served as the basis for measures app lied after Viet Nam's accession to the WTO and 
are inconsistent with U.S. obligations under the Agreement at that time, the consistency of the 
measures in the investigation and first review with  U.S. obligations after Viet Nam's accession are 
relevant to the panel's inquiry. 
 
6. Although not within the Panel's jurisdicti on, the United States Department of Commerce's 
(hereafter, "USDOC") actions in the investigati on and first administrative review segments of the 
ongoing shrimp proceeding are critical to the Panel' s understanding and analysis of the measures at 
issue.  As explained in Viet Nam's first writte n submission, the factual circumstances of this 
antidumping proceeding are unique because the USDOC 's actions in the investigation directly 
impacted the results of the second and third administ rative reviews, the measur es at issue.  Thus, the 
investigation is relevant to the extent that it illu strates how the USDOC calculated the separate rates 
assessed in the second and third administrative reviews.   
 
7. Viet Nam refers the Panel to paragraphs 76, 87, and 88 of Viet Nam's FWS.  To make clear 
the relevance of the investigation and the first admi nistrative review to the measures at issue, we 
provide a concise timeline that focuses exclusivel y on the USDOC's method for assigning the separate 
rate at each segment of the shrimp proceeding:   
 
 1 February 2005: Final De termination of Investigation and Antidumping Order: 
 
Separate rate respondents assigned a ra te of 4.57 percent based on the 
weight-average of the weighted-average margins for the firms individually investigated.  The USDOC calculated the margins of 
dumping for the individually investigated producers using the model 
zeroing methodology.
7 
 
                                                      
5 United States FWS at paras. 76-86.   
6 Viet Nam's First Written S ubmission at para. 101.   
7 Viet Nam's First Written Submission at para s. 40-46 and Exhibits cited therein.   WT/DS404/R 
Page A-23 
 
 
   12 September 2007: Final Results of First Administrative Review: 
 
Because the individually reviewed companies received assessment rates that were zero or de minimis , for the separate rate the USDOC 
assigned the separate rate from the investigation, 4.57 percent.
8  Again, 
this rate was derived using marg ins of dumping calculated with the 
USDOC's model zeroing methodology.   
 
 9 September 2008: Final Results of Second Administrative Review: 
 
Because the individually reviewed companies received assessment 
rates that were zero or de minimis , for the separate rate the USDOC 
assigned the separate rate from the i nvestigation.  Thus, the separate 
rate was 4.57 percent.9  Again, this rate was derived using margins of 
dumping calculated with the USDOC's model zeroing methodology.   
 
 15 September 2009: Final Results of Third Administrative Review: 
 
Because the individually reviewed companies received assessment rates that were zero or de minimis , for the separate rate the USDOC 
assigned the separate rate from the i nvestigation.  Once again, the 
separate rate was 4.57 percent, which was derived using margins of 
dumping calculated with the USDOC's model zeroing methodology.
10    
 8. The above timeline illustrates (1) why Viet Nam includes in its first written submission 
extensive background and discussion on the investiga tion segment of the proceeding, and (2) why the 
Panel must closely evaluate the USDOC's use of the zeroing methodology in the investigation.  
Viet Nam provided substantial doc umentation in the first written s ubmission demonstrating that the 
USDOC relied on the model zeroing methodology to  calculate the margin of dumping for the 
individually investigated companies.
11  These calculated margins of dumping were the only basis for 
the USDOC's calculation of the separate rate in the investigation.  Thus, use of the zeroing 
methodology directly impacted the separate rate assigned in the investigation.   
 9. The same separate rate assigned in the inves tigation and first administrative review was also 
assigned in the second and third administrative reviews, the measures at issue in this proceeding.  As 
such, because the methodology for determini ng the separate rates assigned in the second and 
third administrative reviews was derived from the or iginal investigation, understanding the calculation 
of the separate rate in the initial investigation is  essential to understanding the basis of the separate 
rate assigned in the second and third administrative reviews. 
 
10. In sum:  Viet Nam does not challenge here the final determination of  the investigation.  
Rather, Viet Nam challenges the final results of the second and third administrative reviews, which 
rely on the investigation's determination.  The fi nal results of the second and third administrative 
reviews were both initiated subsequent to Viet Nam's date of Accession and completed prior to 
Viet Nam's request for consultations in this dispute.   
 
                                                      
8 Exhibit Viet Nam-11. 
9 Exhibit Viet Nam-15. 
10 Exhibit Viet Nam-19. 
11 Viet Nam's First Written Submissi on at paras 40-46;  Exhibits Vi et Nam -33, -42, and -43.   WT/DS404/R 
Page A-24 
 
 
  III. THE "CONTINUED USE OF CHALLENGED PRACTICES" IS A MEASURE 
SUBJECT TO DISPUTE SETTLEMENT AND IS WITHIN THE PANEL'S TERMS 
OF REFERENCE  
 11. The Panel should deny the United States' request  that the Panel make a preliminary ruling that 
the USDOC's continued use of the challenged practices does not constitute a measure in this dispute.  
The United States advances two arguments in support of this claim:  that the measure purports to 
include future measures that are not subject to dispute settlement and that the measure was not 
identified in the Panel request.  The United States' arguments should be dismissed.   
 
A. T
HE APPELLATE BODY HAS RECENTLY CONSIDERED AND REJECTED THE UNITED STATES ' 
ARGUMENT THAT A "CONTINUED USE OF CHALLENGED PRACTICES " MEASURE CANNOT BE 
CONSIDERED BY A PANEL  
 12. The United States contends that the "continue d use of challenged prac tices" cannot be subject 
to dispute settlement.  Citing a 2005 panel report,  the United States claims  that this measure 
encompasses future determinations and, as a result, these future determinations cannot be within the 
Panel's terms of reference under the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (hereafter, "DSU").
12  The United States' interpretation of this exact issue was 
recently addressed and directly rejected by the Appellate Body.    
13. As an initial matter, it has long been recognized  that Article 3.3 of the DSU and Articles 17.3 
and 17.4 of the Agreement  allow for "not only measures consisting of acts that apply to particular 
situations, but also those consisting of acts setti ng forth rules or norms that have general and 
prospective application."
13  These measures are oftentimes referred to as "as such" claims.  The 
Appellate Body's analysis in  US – Continued Zeroing  recognized the artificial distinction made 
between "as such" and "as applied" claims, refusing  to accept the United States' interpretation that 
"as such" may be prospective in na ture, while "as applied" may not.14  The "as such" and "as applied" 
concepts are simply constructs of the disput e settlement system and have no basis in binding 
agreements.  Thus, a measure may fall in the cross-section of these concepts, as is the case of 
practices that are ongoing and cont inuous through the course of one particular proceeding.  Such a 
measure is certainly more broad than an "as applied" measure, but narrower than a generally 
applicable "as such" measure.15  The continuing measure stems from a single antidumping duty order 
and encompasses the use of the challenged practi ce over a sustained period of time, across the 
imposition, assessment, and collection segments of the proceeding.16  Although not of general 
application like an "as such" claim, a continui ng measure ensures predic tability and accountability 
with regard to the order at issue.  The Appella te Body properly recognized that the inability to 
challenge the continued and ongoing  use of a practice would lead to a multiplicity of litigation if 
authorities simply reverted to use of the WTO-inc onsistent practices in segments of the proceeding 
occurring subsequent to resolution by the DSB. 
 
14. The Appellate Body in  US – Continued Zeroing (EC)  concluded that "the continued use of the 
zeroing methodology in successive proceedings in which duties resulting from the 18 antidumping 
                                                      
12 United States FWS at para. 96.   
13 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, adopted 9 January 2004, 
DSR 2004:I, 3 at para. 81.   
14 Appellate Body Report, United States – Continued Existence and Application of Zeroing 
Methodology , WT/DS350/AB/R, adopted 19 February 2009 at para. 179.   
15 Appellate Body Report,  US – Continued Zeroing  at para. 180. 
16 Id. at para. 181.   WT/DS404/R 
Page A-25 
 
 
  duty orders are maintained, constitu te 'measures' that can be challenged in WTO dispute settlement."17  
In considering the United States' arguments in that  case with regard to Article 6.2 specifically, the 
Appellate Body discerned the following:  
The prospective nature of the remedy sought by the European Communities is 
congruent with the fact that the measures at issue are alleged to be ongoing, with 
prospective application and a life potentially stretching into the future.  Moreover, it 
is not uncommon for remedies sought in WTO dispute settlement to have prospective 
effect, such as a finding against laws or regulations, as such, or a subsidy programme 
with regularly recurring payments.
18 
15. In reaching this conclusion, however, the A ppellate Body placed important restrictions on the 
circumstances required to establish the "continued u se" of a practice.  The Appellate Body limited 
application of the "continued use" measure to onl y those proceedings "where the Panel ha[d] made 
clear findings of fact concerning the use of the zeroing methodology, without interruption, in different 
types of proceedings over an extended period of time ."19  The panel is to consider whether a "density 
of factual findings" exist to show that the practic e has been used in succes sive proceedings under the 
same antidumping duty order.20  Thus, continued use cannot be estab lished where a practice is used in 
only a single segment of the proceeding;  logically , this fails to establish that an authority has 
repeatedly and continuously relied on the pr actice throughout a particular proceeding.21  
 16. To exemplify this continued use, the A ppellate Body identified a single antidumping 
proceeding in which (1) simple zeroing was used in  four consecutive periodic reviews, and (2) the 
sunset review relied on the margin from the orig inal investigation, which was calculated using 
zeroing.  The Appellate Body concluded that "[ t]his string of determin ations demonstrates the 
continued use of the zeroing methodology in successive proceedings…"
22  
 
17. As was done in the  US – Continued Zeroing (EC) , Viet Nam has shown a string of 
determinations demonstrating the continued use of the challenged practices in successive proceedings.  
Viet Nam has demonstrated the following: 
 
 Zeroing:  The USDOC utilized mode l zeroing in the investigation23;  simple zeroing 
in the four completed periodic reviews24;  and margins of dumping calculated using 
zeroing were used for purposes of the preliminary results of the ongoing sunset 
review.25 
 
 Vietnam-wide rate:  The USDOC assigned a rate to a "Vietnam-wide entity" in the 
investigation and in the four completed periodic reviews.26 
 
 Limited Respondent selection:  The USDOC impermissibly limited the section of 
individually examined respondents in the investigation and in the five periodic 
reviews for which mandatory respondents have been selected.27 
                                                      
17 Id. at para. 185.   
18 Id. at para. 171.   
19 Id. at para. 195 (emphasis added).   
20 Id. at para. 191.   
21 Id. at para. 193. 
22 Id. at para. 184. 
23 Viet Nam's First Written Submission at para s. 42-46 and exhibits cited therein.   
24 Viet Nam's First Written Submission at pa ras. 47-51 and exhibits cited therein. 
25 Exhibit Viet Nam-25.   
26 Viet Nam's First Written Submission at pa ras. 62-69 and exhibits cited therein. WT/DS404/R 
Page A-26 
 
 
  18. Viet Nam acknowledges that the investigati on and the first administrative review were 
completed prior to Viet Nam's accession.  Viet Nam submits that this fact is irrelevant for purposes of 
this analysis.  The concern in this instance is whether the USDOC has engaged in the above-discussed 
practices on an ongoing and continual basis across  different segments of the proceeding.  The 
USDOC continues to rely on these practices in all segments under the shrimp antidumping order and 
has shown zero inclination to alter course.  To en sure predictability that future segments of the 
proceeding are conducted in a manner consistent with United States WTO obligations, Viet Nam 
respectfully requests that the Panel consider the "continued use of challenged practices" measure in 
this dispute. 
 
B. V IET NAM IDENTIFIED THE "CONTINUED USE OF CHALLENGED PRACTICES " IN THE PANEL 
REQUEST  
 
19. The United States claims that because Viet Nam did not include in the panel request the 
precise language employed by the European Commun ities in a panel request made in an entirely 
different proceeding, Viet Nam did not properly id entify the "continued use of challenged practices" 
measure.  Viet Nam submits that because the panel request identified the ongoing measure in a 
manner consistent with Article 6.2 of the DSU, the Panel should deny the United States' claims and 
accept the "continued use of challenged prac tices" as a measure in this dispute.  
 20. In relevant part, Article 6.2 of the DSU provi des that "the request for establishment of a panel 
shall ... identify the specific measure s at issue and provide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly."
28  Viet Nam understands the United States 
argument to be that Viet Nam's panel request did not identify the "continued use of challenged 
practices" measure, making no claim on the adequ acy of the legal basis for the request.   
 
21. The specificity requirement of Article 6.2 serves two purposes:  it "forms the basis for the 
terms of reference of the panel" and "serves the due process objectives of notifying respondents and potential third parties of the nature of the dispute an d of the parameters of the case to which they must 
begin preparing a response."
29  Determining conformity with Ar ticle 6.2 and these general purposes 
must be based on the panel request "read as a whole."30 
 
22. The general purposes of Article 6.2, and the lens through which they are considered, are 
necessarily informed by the context prov ided by related provisions of the DSU.31  Article 3.3 of the 
DSU calls for the "prompt settlement" of disputes among Members, such that "the DSU must be 
interpreted so as to promote the prompt settlement  of disputes, without adopting a reading of DSU 
provisions that would prolong disputes unnecessarily…"32  Article 9 is also instructive, embodying 
"the DSU's philosophy of resolving all related issues together…." 33  It would contravene the clear 
intent of Articles 3 and 9 to require later resoluti on of an issue substantively identical to a matter 
presently before a panel.  
                                                                                                                                                                     
27 Viet Nam's First Written Submission at pa ras. 78-86 and exhibits cited therein. 
28 Article 6.2, DSU. 
29 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 August 2009 at para. 108.   
30 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, 3257 at 
para. 169.   
31 Panel Report, European Communities – Regime for the Importation, Sale and Distribution of 
Bananas, Complaint by Guatemala and Honduras , WT/DS27/R/GTM, WT/DS27/R/HND, adopted 
25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 695 at para. 7.32.   
32 Panel Report, EC – Bananas III (Guatemala and Honduras) at para. 7.32. 
33 Panel Report, EC – Bananas III (Guatemala and Honduras) at para. 7.32. WT/DS404/R 
Page A-27 
 
 
  23. The Appellate Body and prev ious panels recognize these cons iderations when determining 
whether a panel request satisfies the due process objectives of Article 6.2.  In Argentina – Safeguard 
Measures on Imports of Footwear , for example, the panel considered whether subsequent 
modifications of a definitive measure, which were not  explicitly mentioned in the request, fall within 
the meaning of Article 6.2.  Analyzing prior panel in terpretations of Article 6.2, the panel agreed that 
"the requirements of Article 6.2 could be met in the case of a legal act that is subsidiary to or so 
closely related to a measure specifically identified,  that the responding party can reasonably be found 
to have received adequate notice of the scope of the claims asserted by the complaining party."34  The 
panel's reasoning, applied in a safe guard context, is of general app lication.  The panel was cognizant 
of the danger in expanding a panel's terms of refe rence, but concluded that parties could reasonably 
assume that subsequent modifications of a defi nitive measure would necessarily be included within 
the panel's terms of referen ce given the logical connection.35  This is particularly true where the 
substantive issues being considered remain  the same in the subsequent actions. 
 24. Viet Nam's panel request provided the United St ates and third parties with clear notice that 
Viet Nam would challenge the USDOC's use of the de fined practices in all proceedings related to the 
shrimp antidumping duty order.  In the panel request, Viet Nam identified every segment of the proceeding that is a direct product of the shrimp antidumping duty order.  Indeed, Viet Nam identified 
each segment of the shrimp proceeding that had at the time of the panel request been initiated – the 
investigation, each of the four periodic reviews, a nd the initiation of the five-year sunset review – to 
illustrate the continuous and on going nature of the challenged practices since imposition of the 
antidumping duty order.  Inclusion of the determina tions completed prior to Viet Nam's accession to 
the WTO (the investigation and the first administra tive review) and those segments not yet final (the 
fourth administrative review and the five-year sun set review) provided clear notice that Viet Nam was 
concerned with the ongoing nature of these practices.   Viet Nam specifically included the preliminary 
determination of the fourth administrative review and the initiation of the five-year sunset review to 
ensure that the Panel and Members understood Viet Nam's concerns with the continued use of the 
USDOC practices in those segments of the shrimp antidumping proceeding.
36   
 
25. If the balance of the Request for the Establishment of a Panel by Viet Nam  provides 
insufficient notice of Viet Nam's concern about continued and ongoing practices by the USDOC, the 
portion of the request relating to the ongoing sunset  review plainly establishes Viet Nam's concerns 
regarding continued a nd ongoing practices: 
 
Because of the circumstances described above with regard to the original 
investigation and the subsequent reviews,  including USDOC's use of zeroing, the use 
of a country-wide rate, and the responde nt selection methodology which prevented 
certain producers and exporters from having the opportunity to receive individual 
rates, the ongoing sunset review is inconsistent with the Anti-Dumping Agreement . 
Each of these practices has a substantial and possibly determinative impact on the 
USDOC's sunset review determination because of the effect on the dumping margins 
calculated during the administrative reviews.  Accordingly, Viet Nam considers as a 
                                                      
34 Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 at para. 8.35, citing  Panel Report, Japan – 
Measures Affecting Consumer Photographic Film and Paper , WT/DS44/R, adopted 22 April 1998, 
DSR 1998:IV, 1179 at para. 10.10.   
35 Panel Report, Argentina – Footwear (EC)  at para. 8.45 ("… the subsequent resolutions do not 
constitute entirely new safeguard measures in the sens e that they were based on a different safeguard 
investigation, but are instead modifications of the legal form of the original definitive measure, which remains 
in force in substance and which is the subject of the complaint."). 
36 Viet Nam notes that the fifth administrative review, discussed in Viet Nam's First Written 
Submission, had not been initiated at the time of Viet Nam's panel request.   WT/DS404/R 
Page A-28 
 
 
  consequence of the inconsistencies set fort h in Sections a-c above that the USDOC 
sunset review is inconsistent with Ar ticles 11.2 and 11.3 of the Agreement. 
26. Thus, Viet Nam has expressed its concerns clear ly about the complained of practices in each 
segment of the proceeding and the cumulative effect of these practices on the sunset review and 
ongoing reviews in addition to the effects on completed reviews. 
 
27. It is not clear how Viet Nam could have more  plainly identified its concern with the ongoing 
nature of these practices (by listing each segment of  the proceeding) and the continued use of these 
practices (by identifying the segments that have not  yet reached a final determination).  Viet Nam 
acknowledges that it did not use the precise language adopted by the European Communities in  US – 
Continued Zeroing , as noted repeatedly by the United States.  This fact is irrelevant.  The issue is 
whether Viet Nam's panel request provided the part ies with notice of its concern with the continued 
use of these practices.  As the panel reasoned in Argentina – Safeguard Measures on Imports of 
Footwear , Viet Nam's clear identification of the defi nitive antidumping duty places parties on notice 
for subsequent determinations made  in connection with the antidumping duty.  Each of the segments 
listed in Viet Nam's panel request – the periodic reviews and the five-year sunset review – are 
intimately connected with one another and the an tidumping order;  but for the antidumping order, 
these segments would not occur. 
 
28. Of added importance is that the United Stat es makes no argument that it did not have notice 
of the substantive claims associated with the "cont inued use of challenged practices" measure.  The 
claims set forth in Viet Nam's panel request pertai n to zeroing, application of a Vietnam-wide rate, 
calculation of the all-others rate, and the res pondent selection process.  The "continued use of 
challenged practices" measure does not  expand upon these claims.  There is no meaningful distinction 
substantively between the arguments set forth by Vi et Nam, the United States, or third parties on the 
specified claims, whether in relation to the second and third administrative review or the "continued 
use of challenged practices" measure.  Denial of th e United States' request ha s negligible substantive 
impact on the issues considered in this dispute.   IV. CONCLUSION 
 
29. On the basis of the above, Viet Nam submits as follows: 
 
 Viet Nam makes no claim that the investig ation or first administrative review are 
within the Panel's terms of reference other than as the factual predicate for its claim 
that zeroing was applied in the second and third administrative reviews, thus the 
United States' requests with regard to those segments are moot; 
 
 Viet Nam properly and adequately iden tified the "continued use of challenged 
practices" measure in the panel request of this dispute;  and 
 
 The Appellate Body has recognized that th e "continued use of challenged practices" 
measure is susceptible to DSB resolution.   
 30. Accordingly, Viet Nam respectfully requests that the Panel deny the request made by the 
United States with respect to the "continued use of challenged practices" measure and proceed to 
consider the merits of the claims raised.  
 
_______________