WORLD TRADE  
ORGANIZATION  WT/DS404/5 
9 April 2010 
 
 (10-1873) 
 Original:   English 
  
 
UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP  
FROM VIET NAM 
 
Request for the Establishment of a Panel by Viet Nam
 
 
 
 The following communication, dated 7 April 2010, from the delegation of Viet Nam to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
_______________ 
 
  Upon instruction from my authorities, I wish to convey the request of the Government of Viet 
Nam ("Viet Nam") to the Dispute Settlement B ody (the "DSB") for the establishment of a panel 
pursuant to Article XXIII:1 of the General Agreem ent on Tariffs and Trade 1994 (the "GATT 1994"), 
Articles 4 and 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(the "DSU"), and Article 17.4 of the Agreement on Implementation of Artic le VI of the General 
Agreement on Tariffs and Trade 1994 (the "Anti-Du mping Agreement) with respect to certain anti-
dumping measures imposed by the United States on im ports of certain shrimp from Viet Nam.  
 
1. Consultations 
 Pursuant to Article 4 of the Understanding on the Rules and Procedures Governing the 
Settlements of Disputes  (DSU) and Article XXII:1 of the General Agreement on Tariffs and Trade 
1994 (GATT 1994), Viet Nam requested consultations w ith the United States (US) regarding certain 
anti-dumping measures imposed by the United States on imports of certain shrimp from Viet Nam.  
Viet Nam requested consultations with the Unite d States on 1 February 2010, and the request was 
circulated on 4 February 2010 as document WT /DS404/1, G/L/915, G/ADP/D81/1. Thailand 
requested to join consultations with the United States on 15 February 2010 and the request was 
circulated on 16 February 2010 as document WT/DS404/4. The European Union (EU) requested to join consultations with the United States on 12 Fe bruary 2010 and the request was circulated on 
16 February 2010 as document WT/DS404/3. Japan requ ested to join consultations with the United 
States on 12 February 2010 and the request wa s circulated on 16 February 2010 as document 
WT/DS404/2.  
  Viet Nam and the United States held consu ltations on 23 March 2010 in Geneva. Those 
consultations were held with the hope of reachin g a mutually satisfactory solution. The parties at 
consultations gained a better understanding of the issues under consideration, but did not reach a 
resolution of the matter. Therefore, Viet Nam here by requests that a Panel be established pursuant to 
Article 6 of the DSU and Article XXIII of the GATT 1994.       WT/DS404/5 
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  2. Summary of Facts and Legal Basis of Complaint 
 The specific measures at issue are the anti- dumping order and subsequent periodic reviews 
conducted by the United States Department of Commerce (USDOC) on certain frozen and canned 
warmwater shrimp from Viet Nam.  The following de terminations constitute the measures at issue: 
1. Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned 
Warmwater Shrimp from the Socialist Republic of Vietnam , 69 Fed. Reg. 71005 
(5 Dec. 2004) 
2. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of 
Vietnam: Final Results of the First Antidumping Duty Administrative Review and 
First New Shipper Review , 72 Fed. Reg. 52052 (12 Sept. 2007) 
3. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of 
Vietnam: Final Results and Final Partial Rescission of Antidumping Duty 
Administrative Review , 73 Fed. Reg. 52273 (9 Sept. 2008) 
4. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of 
Vietnam: Final Results and Final Partial Rescission of Antidumping Duty 
Administrative Review , 74 Fed. Reg. 47191 (15 Sept. 2009) 
5. Certain Frozen Warmwater Shrimp from  the Socialist Republic of Vietnam: 
Preliminary Results, Partial Rescission, and Request for Revocation, in Part, of the 
Fourth Administrative Review , 75 Fed. Reg. 12206 (15 Marc h 2010), including denial 
of all requests for revocation.  
6. Initiation of Five-Year ("Sunset") Review , 75 Fed. Reg. 103 (4 January 2010).  
(a) Zeroing 
(i) Summary of Facts 
 The USDOC engaged in model zeroing to calcu late the dumping margin for all respondents 
during the original investigation. Specifically, the USDOC made an average-to-average comparison of 
export price and normal value within "subgroups" of the product under investigation. The USDOC 
aggregated the results of the subgroup, average-to -average comparisons to determine the weighted 
average margin of dumping, excluding any offsets wh ere export price is greater than normal value. 
The USDOC acknowledged use of this zeroing me thodology in the decision memorandum that 
accompanied the final results. As a result, the US  calculated a margin and amount of dumping in 
excess of the actual dumping practised by the respondent companies.    
 In each of the administrative reviews at i ssue, the USDOC has made use of this zeroing 
methodology. Specifically, in making an average-to -average comparison of export price and normal 
value, the USDOC does not allow non-dumped sales to offset the amount of dumping found with respect to other sales. As with the investigation,  the USDOC has acknowledged in each review use of 
this zeroing methodology in the administrative dete rminations. Therefore, the dumping rate is in 
excess of the actual dumping performed by the respondent.   
  These calculations and methodologies are applied pursuant, in particular, to the following 
United States laws and regulations:  
1. Tariff Act of 1930, as amended, Section 771(35)(A)  WT/DS404/5 
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  2. Implementing regulations of the USDOC , 19 C.F.R. § 351.408 and 351.414.  
 
(ii)  Legal Basis of Complaint 
 Viet Nam considers the above-mentioned laws and procedures by the USDOC to be, as such, 
inconsistent with several provisions of the An tidumping Agreement, GATT 1994, and the Marrakesh 
Agreement.  In original investigations, periodic re views, new shipper reviews, sunset reviews, and 
certain changed circumstances reviews, USDOC 's use of zeroing is inconsistent with: 
 
2. Article 2 of the Anti-Dumping Agreement, including paragraphs 2.1, 2.4, and 2.4.2, 
because the comparison made by the USDOC is inconsistent with the requirements of 
Article 2 and those paragraphs of Article 2;  
3. Article 9 of the Anti-Dumping Agreement, including paragraphs 9.1 and 9.3, because 
the USDOC's use of the zeroing methodology results in the imposition of duties in 
excess of the amount of dumping as determined pursuant to Article 2;  
4. Paragraph 9.4 of Article 9 of the Anti-Dumping Agreement because the USDOC's use 
of the zeroing methodology results in the impos ition of duties for the all-other rate in 
excess of the amount of dumping as determined pursuant to Article 2; 
5. Article 1 of the Anti-Dumping Agreement  and Articles VI:1 and VI:2 of the 
GATT 1994 to the extent that the imposition and collection of the duties is inconsistent with the Anti-Dumping Agreement ;  
6. For original investigations only, Article 5.8 of the Anti-Dumping Agreement  where de 
minimis dumping margins are unjustifiably found to be not de minimis; and 
7. For sunset reviews only, Article 11 of the Anti-Dumping Agreement , including 
paragraphs 11.1, 11.2, 11.3  and 11.4 of the Anti-Dumping Agreement  where 
likelihood of continued dumping determin ations are made using the zeroing 
methodology inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping 
Agreement . 
8. Part I:2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662, 
15 November 2006 and Paragr aphs 254 and 255 of the Report of the Working Party 
on Accession of Vietnam , WT/ACC/VNM/48, 26 October, 2006. 
 Viet Nam also considers th at USDOC's application of the above-mentioned laws and 
procedures in the original investigation and periodic re views here at issue to be inconsistent with the 
following provisions of the Anti-Dumping Agreement , GATT 1994, and the Marrakesh Agreement for 
the same reasons set out above:  
9. Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement. 
10. Article 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the Marrakesh 
Agreement. 
11. 
Articles 1 and 2 of the GATT 1994.   WT/DS404/5 
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  (b) Country-Wide Rate Based on Adverse Facts Available 
(i) Summary of Facts 
 The USDOC has applied a "country-wide rate" based on adverse facts available throughout 
the antidumping proceedings identified above. For countries identified as non-market economy 
countries, the USDOC requires that companies no t selected as mandatory respondents apply for 
separate rates; those that fail to do so or do not me et the separate rate criteria are given the "country-
wide rate" as established by USDOC. Even a company that timely and fully responds to the questions 
posed by USDOC will be assigned this country-wide rate if it does not rebut the presumption established by USDOC: specifically, the company mu st establish that it does not operate under the 
control of the government. If the company is successful , it will receive a "separate rate," which is the 
weighted average of the rates calculated for the individually investigated respondents.   
  Companies that do not receive a separate ra te are assigned the country-wide rate. In the 
proceedings at issue, the USDOC assigned a comp any-wide rate based entirely on adverse facts 
available, even where companies responded timely and fully to the questionnaires issued by USDOC. 
The USDOC did so on the basis that certain separate rate applicants did not submit complete 
information and because the Vietnamese government did not submit a response on their behalf. The effect of this action is to assign highly prejudici al and unjustifiable rates to companies that do 
everything in their control to comply with USDOC requests. Companies granted a separate rate have 
received a margin of 4.57 per cent over the course of the measures at-issues; companies assigned a 
country-wide rate have in contrast received a margin of 25.76 per cent.    
 
 These calculations and methodologies are applied pursuant, in particular, to the following 
United States laws and measures:  
12. Tariff Act of 1930, as amended, Sections  771(18)(C)(i), 776(a)(2), and 776(b);   
13. Import Administration Antidumping Manual,  Chapter 10, "Non-Market Economies." 
(ii)  Legal Basis of Complaint 
 In the antidumping proceedings at-issue,  the United States applied the laws and 
methodologies described above with regard to cal culation of a country-wide rate, which Viet Nam 
considers to be inconsistent with the obligations of the United States under the Anti-Dumping 
Agreement . Specifically, Viet Nam considers these measures to  be inconsistent with  Articles 6.8, 9.4, 
and Appendix II of the Anti-Dumping Agreement .  
 
14. Articles 2 and 9 of the Anti-Dumping Agreement because these Articles determine 
the basis for calculation of antidumping margins and the collection of antidumping duties and do not refer to the circumstances contemplated by the application of a 
country-wide rate based on adverse facts available. 
15. Article 6, including paragraphs 6.8, and Appendix II of the Anti-Dumping Agreement 
because USDOC relied on adverse facts available for the calculation of the country-wide rate for entities not granted a "separate rate." In so doing, the USDOC failed to 
adhere to the provisions of the Agreem ent governing the use of adverse facts 
available, as the presence of "state control" is not a relevant criteria for determining 
margins of dumping or the application of adverse facts available.   
16. Article 9, including paragraph 9.4, of the Anti-Dumping Agreement because the 
USDOC has created a category of producers not contemplated in the Agreement. The  WT/DS404/5 
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  Agreement permits an authority to calculat e a rate for individually investigated 
producers, a rate based on facts available fo r individually investigated producers that 
do not cooperate, and a separate, "all others " rate calculated based on the weighted 
average margin of the individually investig ated producers. The "country-wide" rate 
applied by USDOC does not adhere to these limitations.   
17. Part I.2 of the Protocol of Accession of th e Socialist Republic of Vietnam, WT/L/662, 
15 November 2006 and Paragraphs 527, 254 and 255 of the Report of the Working 
Party on Accession of Vietnam, WT/ACC/VNM/48, 27 October 2006 because the terms of Vietnam's accession to the WTO do not permit the application of such a country-wide rate unless otherwise provided for under the Anti-Dumping Agreement.  
 Viet Nam also considers th at USDOC's application of the above-mentioned laws and 
procedures in the original investigation and periodic re views here at issue to be inconsistent with the 
following provisions of the Anti-Dumping Agreement, GATT 1994 , and the Marrakesh Agreement  for 
the same reasons set out above:  
18. Article 18, including paragraphs 18.1, 18.3 and 18.4, of the Anti-Dumping 
Agreement and Article XVI:4 of  the Marrakesh Agreement. 
19. Articles 1 and 2 of the GATT 1994.   
(c) Limiting the Number of Respondents Selected for Full Investigation or Review  
(i) Summary of Facts 
 The United States antidumping law requires as a general rule examination of each known 
producer or exporter of subject merchandise. Beyond this general rule, the USDOC has the authority 
to limit the investigation to a selected number of producers where investigation of all known producers or exporters is not practicable.    The USDOC has only investigated or reviewed  the few largest exporters, with the exception 
of new shipper reviews, throughout the proceedi ng at-issue, limiting to a substantial degree the 
number of producers individually investigated or revi ewed. In the original investigation, the USDOC 
investigated only four respondents out of thirty -eight potential respondents. The USDOC published a 
memorandum in conjunction with this decision, citing the impracticability of investigating all 
producers because of staffing concerns or budgetary constraints to justify the limited number of 
producers individually investigated. The USDOC sim ilarly limited the respondents reviewed to the 
largest exporters in each of the subsequent ad ministrative reviews, selecting for individual 
investigation in each instance a fraction of the companies seeking  individual review.    Companies not selected for individual investig ation or review because of the US authorities 
methodology have not been assigned their own an tidumping rate, but instead receive either the 
"separate rate" or the country-wide rate. The USDO C in the proceedings at-issue have declined to 
calculate an individual rate even where companie s not individually investigated have voluntarily 
submitted information so that USDOC may do so. Th e result is that companies not presently engaging 
in dumping have not had and do not have the opportunity to receive a dumping rate of zero or de 
minimis, because they never have the opportunity to  be individually investigated. Thus, companies 
not individually investigated, caused by USDOC's review of only the largest exporters, are not 
eligible for revocation of the dumping order on an individual basis. The USDOC will revoke an 
antidumping order where the exporter or producer has not engaged in dumping for three consecutive 
years and there is a likelihood that they will not do so in the future. Companies not individually 
investigated in these proceedings have no opport unity to establish three consecutive years of de WT/DS404/5 
Page 6  
 
  minimis dumping rates and will be forced to conti nue to pay dumping rates even if they have not 
engaged in sales at less than fair value for more than three consecutive years. In addition, any final 
duties related to imports from these companies are,  have been, or will be assessed duties in excess of 
the margin of dumping.  
 These methodologies are applied pursuant, in par ticular, to the following United States laws 
and measures:  
20. Tariff Act of 1930, as amended, Section 777A(c)(2)(B);  
21. Implementing regulation of the USDOC, 19 C.F.R. § 351.204. 
(ii)  Legal Basis of Complaint 
 Because the United States has acted in the ma nner just described, Viet Nam considers the 
proceedings to be inconsistent with certain WTO obligations. Viet Nam considers these actions to be 
inconsistent with Articles 6.10 and 11 of the Anti-Dumping Agreement , and Article 31 of the Vienna 
Convention on the Law of Treaties : 
 
22. Article 6, including paragraph 6.10, of the Anti-Dumping Agreement because the 
USDOC has failed to determine an individual margin of dumping for each known exporter or producer, without proper justifica tion, at each stage of the proceedings.   
23. Article 6, including paragr aph 6.10.2 of the Anti-Dumping Agreement because the 
USDOC has, without proper justification,  refused to investigate respondents on the 
basis of information voluntarily submitt ed and has refused voluntary responses. 
24. Article 9, including paragraph 9.4, of the Anti-Dumping Agreement because the 
USDOC has refused to apply individual duties or normal values to respondents that provided the necessary information during th e course of the investigation and has 
applied duties to non-investigated respondents without any evidence of dumping by 
those non-investigated respondents.   
25. Article 11.1 of the Anti-Dumping Agre ement because the USDOC's method of 
selecting respondents requires anti-dumping duti es to be imposed even in instances 
where the producer or exporter is not dumping, where that producer has not been individually selected for investigation. Part I.2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/ 662, 15 November 2006 a nd Paragraphs 527, 
254 and 255 of the Report of the Working Party on Accession of Vietnam, 
WT/ACC/VNM/48, 27 October 2006 because the terms of Vietnam's accession to the WTO do not permit the application of su ch a country-wide rate unless otherwise 
provided for under the Anti-Dumping Agreement.    
26. Article 31 of the Vienna Convention on the Law of Treaties because the USDOC's 
practice does not comport with the overall purpose and intent of the Anti-Dumping 
Agreement, namely, the fair and effective imposition of antidumping duties so as to prevent the sale of goods for less than fair value.  
 Viet Nam also considers th at USDOC's application of the above-mentioned laws and 
procedures in the original investigation and periodic re views here at issue to be inconsistent with the 
following provisions of the Anti-Dumping Agreement, GATT 1994 , and the Marrakesh Agreement  for 
the same reasons set out above:  WT/DS404/5 
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  27. Article 18, including paragraphs 18.1, 18.3 and 18.4, of the Anti-Dumping 
Agreement and Article XVI:4 of  the Marrakesh Agreement. 
28. Articles 1 and 2 of the GATT 1994.   
(d) Sunset Review 
 The USDOC initiated a sunset review for these antidumping proceedings on 4 January 2010. 
Based on statutory time limitations and an excep tional situation in which the USDOC tolled all 
deadlines for seven days, the preliminary determina tion for the sunset review is presently due on 
3 May 2010. Because of the circumstances described a bove with regard to the original investigation 
and the subsequent reviews, including USDOC's us e of zeroing, the use of a country-wide rate, and 
the respondent selection methodology which prevente d certain producers and exporters from having 
the opportunity to receive individual rates, the o ngoing 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 consequence of the 
inconsistencies set forth in Sections a-c above that  the USDOC sunset review is inconsistent with 
Articles 11.2 and 11.3 of the Agreement. 
 
3. Request 
 Viet Nam hereby respectfully requests that a pane l be established, with the standard terms of 
reference, by the Dispute Settlement Body pursuant to Articles 4.7 and 6 of the DSU, Article XXIII of 
the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement . Viet Nam requests that this panel 
be placed on the agenda of the meeting of th e Dispute Settlement Body on 20 April 2010.  
 
__________