WORLD TRADE  
ORGANIZATION   
WT/DS404/R 
11 July 2011 
 
 (11-3293) 
 Original:   English 
 
 
 
 
  
 
  
 
  
 
  
UNITED STATES – ANTI-D UMPING MEASURES ON 
CERTAIN SHRIMP FROM VIET NAM 
  
Report of the Panel 
 
 
 
 
   WT/DS404/R 
 Page i 
 
 
  TABLE OF CONTENTS 
Page 
 
I.  INTRODUCTION .................................................................................................................. .. 1 
A.  ESTABLISHMENT AND COMPOSITION OF THE PANEL  .................................................................. 1  
B.  PANEL PROCEEDINGS  .................................................................................................................. 2  
II.  FACTUAL ASPECTS .............................................................................................................. 2 
III. PARTIES' REQUESTS FOR FIND INGS AND RECOMMENDATIONS......................... 3  
A.  VIET NAM .............................................................................................................................. ..... 3 
B.  UNITED STATES  ........................................................................................................................... 3  
IV.  ARGUMENTS OF THE PARTIES ........................................................................................ 3  
V.  ARGUMENTS OF THE THIRD PARTIES .......................................................................... 4  
VI.  INTERIM REVIEW ................................................................................................................ . 4 
A.  INTRODUCTION  ........................................................................................................................... 4  
B.  VIET NAM'S REQUESTS FOR REVIEW OF PRECISE ASPECTS OF THE INTERIM REPORT  ................. 4  
C.  UNITED STATES ' REQUESTS FOR REVIEW OF PRECISE ASPECTS OF THE INTERIM 
REPORT  .............................................................................................................................. ......... 4 
D.  OTHER CHANGES FROM THE INTERIM REPORT  ........................................................................... 6  
VII. FINDINGS ...................................................................................................................... ........... 6 
A.  RELEVANT PRINCIPLES REGARDING TREATY INTERPRETATION , THE APPLICABLE 
STANDARD OF REVIEW , AND BURDEN OF PROOF  ......................................................................... 6  
1.  Standard of review ............................................................................................................ ........ 6 
2.  Rules of treaty interpretation ................................................................................................ .. 7 
3.  Burden of proof ............................................................................................................... .......... 8 
B.  INTRODUCTION TO THE PANEL 'S FINDINGS – FACTUAL BACKGROUND  ...................................... 8  
1.  Relevant USDOC practices in an ti-dumping proceedings .................................................... 9  
(a)  The U.S. retrospective anti-dumping system .............................................................................. 9  
(b)  "Zeroing" in the calculation of margins of dumping ................................................................ 10  
(c)  USDOC procedures with respect to the selection of respondents ............................................. 11  
(d)  The USDOC's assignment of dumping marg ins to exporters not individually 
examined ...................................................................................................................... ............. 12  
2.  USDOC determinations in the Shrimp  proceedings ............................................................. 13  
(a)  Original investigation ........................................................................................................ ....... 13 
(b)  First administrative review ................................................................................................... .... 13 
(c)  Second administrative review .................................................................................................. . 14 
(d)  Third administrative review ................................................................................................... ... 14 
(e)  Fourth administrative review .................................................................................................. .. 14 
(f)  Fifth administrative review ................................................................................................... .... 15 WT/DS404/R 
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  (g)  Sunset review ................................................................................................................. ........... 15  
C.  TERMS OF REFERENCE  ............................................................................................................... 15  
1.  Introduction .................................................................................................................. ........... 15  
2.  U.S. request for a preliminary ruling with respect to the USDOC determinations 
in the original investigation and first administrative review .............................................. 16  
3.  U.S. request for a preliminary ruling with respect to the "continued use of 
challenged practices" measure .............................................................................................. 17  
(a)  Introduction .................................................................................................................. ............. 17  
(b)  Whether Viet Nam's panel request iden tifies the "continued use of challenged 
practices" as a "measure at issue" as required under Article 6.2 of the DSU ........................... 18  
(i)  Main arguments of the parties ................................................................................................. . 18 
United States ................................................................................................................. ............ 18  
Viet Nam ...................................................................................................................... ............. 18  
(ii)  Main arguments of the third parties ......................................................................................... 1 9 
(iii) Evaluation by the Panel ....................................................................................................... ..... 19 
(c)  Whether the "continued use of challenged practices" measure is amenable to WTO 
challenge ..................................................................................................................... .............. 26  
4.  Conclusion with respect to the meas ures at issue in this dispute ........................................ 27  
D.  VIET NAM'S CLAIMS WITH RESPECT TO ZEROING  ..................................................................... 27  
1.  Introduction .................................................................................................................. ........... 27  
2.  Zeroing "as applied" in the administrative reviews at issue ............................................... 27  
(a)  Introduction .................................................................................................................. ............. 27  
(b)  Whether the USDOC applied zeroing in the administrative reviews at issue ........................... 28  
(i)  Main arguments of the parties ................................................................................................. . 28 
Viet Nam ...................................................................................................................... ............. 28  
United States ................................................................................................................. ............ 28  
(ii)  Evaluation by the Panel ....................................................................................................... ..... 28 
(c)  Whether the USDOC's application of zeroing in the administrative reviews at issue is 
inconsistent with the provis ions cited by Viet Nam ................................................................. 30  
(i)  Introduction .................................................................................................................. ............ 30  
(ii)  Viet Nam's claim under Article 2.4 of the Anti-Dumping Agreement ....................................... 30  
Main arguments of the parties ................................................................................................. .. 30 
Viet Nam ...................................................................................................................... ...... 30 
United States ................................................................................................................. ..... 31 
Main arguments of the third parties .......................................................................................... 31 
India ......................................................................................................................... .......... 31 
Japan ......................................................................................................................... ......... 32  WT/DS404/R 
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  Korea ......................................................................................................................... ......... 32 
Evaluation by the Panel ....................................................................................................... ..... 32 
(iii) Viet Nam's claims of violation under Articles 9.3, 2.1, and 2.4.2 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994 ......................................................................... 34  
3.  Zeroing "as such" ............................................................................................................. ...... 35 
(a)  Introduction .................................................................................................................. ............. 35  
(b)  Whether Viet Nam has established the exis tence of the zeroing methodology as a rule 
or norm of general and pr ospective application ........................................................................ 36  
(i)  Main arguments of the parties ................................................................................................. . 36 
Viet Nam ...................................................................................................................... ............. 36  
United States ................................................................................................................. ............ 37  
(ii)  Evaluation by the Panel ....................................................................................................... ..... 37 
(c)  Whether the zeroing methodology is inconsis tent, as such, with Article 9.3 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994 .............................................. 43  
(i)  Main arguments of the parties ................................................................................................. . 43 
Viet Nam ...................................................................................................................... ............. 43  
United States ................................................................................................................. ............ 44  
(ii)  Main arguments of the third parties ......................................................................................... 4 5 
(iii) Evaluation by the Panel ....................................................................................................... ..... 45 
E.  VIET NAM'S CLAIMS CONCERNING THE LIMITATION OF THE NUMBER OF SELECTED 
RESPONDENTS  ........................................................................................................................... 47  
1.  Introduction .................................................................................................................. ........... 47  
2.  Viet Nam claims under Articles 6.10, 9.3, 11.1 and 11.3 of the Anti-Dumping 
Agreement ..................................................................................................................... ........... 50  
(a)  Introduction .................................................................................................................. ............. 50  
(b)  Main arguments of the parties ................................................................................................. .. 50 
(i)  Viet Nam ...................................................................................................................... ............. 50  
(ii)  United States ................................................................................................................. ............ 52  
(c)  Evaluation by the Panel ....................................................................................................... ..... 53 
3.  Claims under Article 6.10.2 of th e Anti-Dumping Agreement ........................................... 54  
(a)  Introduction .................................................................................................................. ............. 54  
(b)  Main arguments of the parties ................................................................................................. .. 55 
(i)  Viet Nam ...................................................................................................................... ............. 55  
Arguments with respect to the firs t sentence of Article 6.10.2 ................................................. 55  
Arguments with respect to the second sentence of Article 6.10.2 ............................................ 56  
(ii)  United States ................................................................................................................. ............ 57  
Arguments with respect to the firs t sentence of Article 6.10.2 ................................................. 57  WT/DS404/R 
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  Arguments with respect to the second sentence of Article 6.10.2 ............................................ 57  
(c)  Main arguments of the third parties .......................................................................................... 58 
(i)  European Union ................................................................................................................ ........ 58 
(d)  Evaluation by the Panel ....................................................................................................... ..... 58 
(i)  Viet Nam's claim under the first sentence of Article 6.10.2 ...................................................... 58  
(ii)  Viet Nam's claim under the second sentence of Article 6.10.2 ................................................. 59  
F.  VIET NAM'S CLAIMS CONCERNING THE "ALL OTHERS " RATES APPLIED TO 
NON-SELECTED EXPORTERS  ...................................................................................................... 61  
1.  Introduction .................................................................................................................. ........... 61  
2.  Whether the USDOC's reliance on dumpin g margins calculated with zeroing in 
establishing the "all others" rate applied in the second and third administrative 
reviews is inconsistent with Article 9.4 of the Anti-Dumping Agreement ......................... 64  
(a)  Main arguments of the parties ................................................................................................. .. 64 
(i)  Viet Nam ...................................................................................................................... ............. 64  
(ii)  United States ................................................................................................................. ............ 65  
(b)  Main arguments of the third parties .......................................................................................... 66 
(i)  European Union ................................................................................................................ ........ 66 
(ii)  India ......................................................................................................................... ................. 66  
(iii) Japan ......................................................................................................................... ................ 66  
(iv)  Mexico ........................................................................................................................ ............... 66  
(c)  Evaluation by the Panel ....................................................................................................... ..... 67 
3.  Viet Nam's argument with respect to the USDOC's reliance on margins of 
dumping from a prior proceeding and Vi et Nam's claims under Articles 2.4, 
2.4.2, 9.3, 17.6(i) of the Anti-Dumping Agreement .............................................................. 71  
G.  VIET NAM'S CLAIMS CONCERNING THE RATE ASSIGNED TO THE VIETNAM -WIDE 
ENTITY  .............................................................................................................................. ......... 72 
1.  Introduction .................................................................................................................. ........... 72  
2.  The USDOC's failure to assign the "all oth ers" rate to the Vietnam-wide entity, 
viewed in light of Article 9.4 of the Anti-Dumping Agreement .......................................... 74  
(a)  Main arguments of the parties ................................................................................................. .. 74 
(i)  Viet Nam ...................................................................................................................... ............. 74  
(ii)  United States ................................................................................................................. ............ 74  
(b)  Main arguments of the third parties .......................................................................................... 74 
(c)  Evaluation by the Panel ....................................................................................................... ..... 75 
(i)  The text of Article 9.4 ....................................................................................................... ......... 75 
(ii)  Article 9.4 in light of Viet Nam's Protocol of Accession and the Working Party Report ......... 75  
(iii) The application of Article 9.4 in a lacuna  situation .................................................................. 77  
(iv)  Summary ....................................................................................................................... ............ 78   WT/DS404/R 
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  3.  The USDOC's treatment of the Vietnam-wide entity viewed in light of Article 6.8 
of the Anti-Dumping Agreement ........................................................................................... 78  
(a)  Main arguments of the parties ................................................................................................. .. 78 
(i)  Viet Nam ...................................................................................................................... ............. 78  
(ii)  United States ................................................................................................................. ............ 79  
(b)  Evaluation by the Panel ....................................................................................................... ..... 79 
(i)  Interaction between Articles 9.4 and 6.8 .................................................................................. 79  
(ii)  Whether the USDOC complied with the disciplines of Article 6.8 in applying a facts 
available rate to the Vietnam-wide entity ................................................................................. 81  
Second administrative review .................................................................................................. . 81 
Third administrative review ................................................................................................... ... 83 
4.  Conclusion .................................................................................................................... ........... 84  
5.  Viet Nam's claims under Article 17.6(i)  of the Anti-Dumping Agreement ........................ 85  
H.  VIET NAM'S "CONSEQUENTIAL CLAIMS " ................................................................................... 85  
VIII. CONCLUSIONS AND RECOMMENDATION .................................................................. 86  
A.  CONCLUSIONS  ........................................................................................................................... 86  
B.  RECOMMENDATION  ................................................................................................................... 87  
 WT/DS404/R 
Page vi 
 
 
  LIST OF ANNEXES 
 
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 
 
 
ANNEX B 
 
EXECUTIVE SUMMARIES OF THIRD PARTIES' 
WRITTEN SUBMISSIONS 
 
Contents Page 
Annex B-1 Executive Summary of the Third Party Written Submission of the 
European Union  B-2 
Annex B-2 Executive Summary of the Third Party Written Submission of 
Japan B-7 
Annex B-3 Executive Summary of the Third Party Written Submission of 
Republic of Korea B-11 
Annex B-4 Third Party Written Submission of Mexico B-13 
 
 
ANNEX C 
 
ORAL STATEMENTS OF THE PARTIES AT THE FIRST SUBSTANTIVE  
MEETING OF THE PANEL OR EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
Annex C-1 Executive Summary of the Opening Statement of Viet Nam at the 
First Meeting of the Panel C-2 
Annex C-2 Closing Statement of Viet Nam at the First Meeting of the Panel C-8 
Annex C-3 Executive Summary of the Opening Statement of the United States 
at the First Meeting of the Panel C-10 
Annex C-4 Closing Statement of the United States at the First Meeting of the 
Panel C-20 
 
  WT/DS404/R 
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  ANNEX D 
 
ORAL STATEMENTS OF THIRD PARTIES OR 
EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
Annex D-1 Third Party Oral Statement of China D-2 
Annex D-2 Third Party Oral Statement of the European Union D-4 
Annex D-3 Third Party Oral Statement of India D-8 
Annex D-4 Third Party Oral Statement of Japan D-12 
Annex D-5 Third Party Oral Statem ent of the Republic of Korea D-14 
 
 
ANNEX E 
 
EXECUTIVE SUMMARIES OF THE SECOND WRITTEN 
SUBMISSIONS OF THE PARTIES 
 
Contents Page 
Annex E-1 Executive Summary of the Second Written Submission of 
Viet Nam E-2 
Annex E-2 Executive Summary of the Second Written Submission of the 
United States E-11 
 
 
ANNEX F 
 
ORAL STATEMENTS OF THE PARTIES AT THE SECOND SUBSTANTIVE  
MEETING OF THE PANEL OR EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
Annex F-1 Executive Summary of the Opening Statement of Viet Nam at the 
Second Meeting of the Panel F-2 
Annex F-2 Closing Statement of Viet Nam at the Second Meeting of the Panel F-7 
Annex F-3 Executive Summary of the Op ening Statement of the United States 
at the Second Meeting of the Panel F-11 
 
 
ANNEX G 
 
REQUESTS FOR CONSULTATIONS AND THE  
ESTABLISHMENT OF A PANEL 
 
Contents Page 
Annex G-1 Request for Consultations by Viet Nam G-2 
Annex G-2 Request for the Establis hment of a Panel by Viet Nam G-5 
 WT/DS404/R 
Page viii 
 
 
  TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Footwear  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body 
Report WT/DS121/AB/R, DSR 2000:II, 575 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Canada – Dairy 
(Article 21.5 – New Zealand 
and US II) Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Second Recourse to Article 21.5 of 
the DSU by New Zealand and the United States , WT/DS103/AB/RW2, 
WT/DS113/AB/RW2, adopted 17 January 2003, DSR 2003:I, 213 
Canada – Wheat  Panel Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/R, adopted 27 September 2004, as 
upheld by Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, 2817 
China – Audiovisual Products Panel Report, China –  Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate 
Body Report WT/DS363/AB/R 
EC – Bananas III (Guatemala 
and Honduras) 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 
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, 2049 
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R, circulated to WTO 
Members 3 December 2010 [adoption/appeal pending] 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R, adopted 15 January 2008, and Corr.1, 
DSR 2008:I, 3 
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, 
DSR 2000:XI, 5295 
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and 
Paper , WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, adopted 20 December 2005, 
as modified by Appellate Body Repo rt WT/DS295/AB/R,  DSR 2005:XXIII, 
11007  WT/DS404/R 
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  Short Title Full Case Title and Citation 
Thailand – Cigarettes 
(Philippines) Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the 
Philippines , WT/DS371/R, circulated to WTO Members 15 November 2010 
[adoption/appeal pending] 
US – Anti-Dumping Measures 
on PET Bags Panel Report, United States – Anti-Dumping Measures on Polyethylene Retail 
Carrier Bags from Thailand , WT/DS383/R, adopted 18 February 2010 
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopte d 19 December 2002, DSR 2002:IX, 
3779 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009 
US – Corrosion-Resistant 
Steel Sunset Review 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 
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic Random 
Access Memory Semiconductors (DRAMS) of One Megabit or Above from 
Korea , WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521 
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August 2001, DSR 2001:X, 4697 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubu lar Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Administrative Reviews and 
Other Measures Related to Imports of Certain Orange Juice from Brazil, 
WT/DS382/R, circulated on 25 March 2011 [adoption/appeal pending]   
US – Shrimp (Ecuador)  Panel Report, United States – Anti-Dumping Measure on Shrimp from 
Ecuador , WT/DS335/R, adopted on 20 February 2007, DSR 2007:II, 425  
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004, 
DSR 2004:V, 1875 
US – Softwood Lumber V 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by 
Canada , WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII, 
5087 
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R, adopted 20 May 2008, 
DSR 2008:II, 513 
US – Stainless Steel (Mexico) 
 Panel Report, United States – Final Anti-Dumping Measures on Stainless 
Steel from Mexico , WT/DS344/R, adopted 20 May 2008, as modified by 
Appellate Body Report WT/DS344/AB/R, DSR 2008:II, 599 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, 323 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 
9 May 2006, and Corr.1, DSR 2006:II, 417 WT/DS404/R 
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  Short Title Full Case Title and Citation 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 
9 May 2006, as modified by Appellate Body Report WT/DS294/AB/R, DSR 
2006:II, 521 
US – Zeroing (EC)  
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of 
the DSU by the European Communities , WT/DS294/AB/RW and Corr.1, 
adopted 11 June 2009 
US – Zeroing (EC)  
(Article 21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS294/RW, adopted 11 June 2009, 
as modified by Appellate Body Report WT/DS294/AB/RW 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, 3 
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R, adopted 23 January 2007, as modified by Appellate 
Body Report WT/DS322/AB/R, DSR 2007:I, 97 
US – Zeroing (Japan)  
(Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 August 2009 
 
 
  WT/DS404/R 
 Page 1 
 
 
 I. INTRODUCTION 
A. ESTABLISHMENT AND COMPOSITION OF THE PANEL  
1.1 On 1 February 2010, Viet Nam requested cons ultations with the United States pursuant to 
Article 4 of the Understanding on Rules and Pro cedures Governing the Settlement of Disputes (the 
"DSU"), Article XXII:1 of the General Agreemen t on Tariffs and Trade 1994 (the "GATT 1994"), 
and Articles 17.2 and 17.3 of th e Agreement on Implementation of  Article VI of the General 
Agreement on Tariffs and Trade 1994 (the "An ti-Dumping Agreement") with regard to 
determinations in the U.S. anti-dumping proceedings on Certain Frozen Warmwater Shrimp from 
Vietnam  (hereafter " Shrimp "), and certain related actions, laws, regulations, administrative 
procedures, practices and methodologies of the United States.1 
1.2 On 7 April 2010, Viet Nam requested, pursu ant to Article XXIII:1 of the GATT 1994,  
Articles 4 and 6 of the DSU, and Article 17.4 of the Anti-Dumping Agreement, that the Dispute 
Settlement Body ("DSB") establish a panel.2  
1.3 At its meeting on 18 May 2010, the DSB establishe d a panel in accordance with Article 6 of 
the DSU to examine the matter referred to the DSB by Viet Nam in document WT/DS404/5.  
1.4 The Panel's terms of reference are the following:   
"To examine, in the light of the relevant provisions of the covered agreements cited 
by the parties to the dispute, the matter re ferred to the DSB by Viet Nam in document 
WT/DS404/5 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements." 
1.5 On 14 July 2010, Viet Nam requested the Dire ctor-General to determine the composition of 
the Panel, pursuant to paragraph 7 of Article 8 of the DSU.  This paragraph provides:   
"If there is no agreement on the panelists within 20 days after the date of the 
establishment of a panel, at the request of  either party, the Director-General, in 
consultation with the Chairman of the DSB and the Chairman of the relevant Council 
or Committee, shall determine the com position of the panel by appointing the 
panelists whom the Director-General considers most appropriate in accordance with 
any relevant special or additional rules or  procedures of the covered agreement or 
covered agreements which are at issue in th e dispute, after consulting with the parties 
to the dispute.  The Chairman of th e DSB shall inform the Members of the 
composition of the panel thus formed no later than 10 days after the date the 
Chairman receives such a request."   
1.6 On 26 July 2010, the Director-General accordingly composed the Panel as follows3: 
 Chairman:   Mr. Mohammad Saeed   
 
 Members: Ms Deborah Milstein    
   Mr. Iain Sandford    
                                                      
1 WT/DS404/1. See Annex G-1. 
2 WT/DS404/5. See Annex G-2. 
3 WT/DS404/6.  WT/DS404/R 
Page 2 
 
 
 1.7 China, the European Union, I ndia, Japan, Korea, Mexico and Thailand reserved their rights to 
participate in the Panel proceedings as third parties. 
B. PANEL PROCEEDINGS  
1.8 Following consultation with the parties, the Panel adopted its working procedures (including 
additional procedures for the protection of busine ss confidential information) and timetable on 
20 August 2010.  
1.9 On 13 September 2010, as part of its first written submission, the United States submitted 
requests for preliminary rulings.  In its requests, th e United States argued that certain of the measures 
challenged by Viet Nam are outside the terms of reference of this Panel, are not subject to the 
Anti-Dumping Agreement,  and/or are not subject to  WTO dispute settlement because they purport to 
include future measures.  The Panel's rulings on th ese requests are set forth in its findings below.  
1.10 The Panel met with the parties on 20, 21 Oct ober and on 14, 15 December 2010.  It met with 
the third parties on 21 October 2010.  The Panel issued its Interim Report to the parties on 
7 April 2011.  The Panel issued its Final Report to the parties on 19 May 2011. 
II. FACTUAL ASPECTS 
2.1 The present dispute concerns the imposition of anti-dumping ("AD") duties in the U.S. 
proceedings on Shrimp .  The U.S. Department of Commerc e ("USDOC") initiated the original 
investigation in January 2004, issued an anti- dumping duty order in February 2005, and has since 
undertaken periodic reviews and a sunset review. 
2.2 Specifically, Viet Nam makes claims with respect  to the USDOC's final determinations in the 
second and third administrative reviews under the Shrimp  anti-dumping order, and with respect to the 
"continued use", by the USDOC, of certain practic es in successive proceedings under the same order.4  
The "practices" challenged by Viet Nam are the following5: 
(a) The USDOC's use of zeroing in the calculation of dumping margins; 
(b) The application of a "country-wide rate" b ased on adverse facts available to certain 
Vietnamese exporters or producers that could not establish that they act 
independently from the Vietnamese Gove rnment in their commercial and sales 
operations;   
(c) The USDOC's limitation of the number of  exporters or producers selected for 
individual investigation or review. 
2.3 In addition, Viet Nam makes cl aims with respect to the "all others" rate applied by the 
USDOC in the second and third administrative reviews.   
2.4 Finally, Viet Nam also makes claims with respect to the USDOC's "zeroing methodology", as 
such.6 
                                                      
4 Viet Nam's first written submissi on, para. 101;  Viet Nam's s econd written submission, para. 1. 
5 Viet Nam's first written submission, paras. 1-15 ;  Viet Nam's second writte n submission, para. 2. 
6 See infra  section VII.B for a more detailed overview of  the measures and claims at issue in this 
dispute.  WT/DS404/R 
 Page 3 
 
 
 III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
A. VIET NAM 
3.1 Viet Nam requests the Panel to find that7: 
(a) The application of zeroing to individually -investigated respondents in the second and 
third administrative reviews, and its continue d application in the subsequent reviews, 
is inconsistent with Articles 9.3, 2.1, 2.4.2, and 2.4 of the Anti-Dumping Agreement 
and Article VI:2 of the GATT 1994.  
(b) The USDOC's zeroing methodology is, as such , inconsistent with Article 9.3 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.   
(c) The use of margins of dumping determined using the zeroing methodology to 
calculate the "all others" rate in the sec ond and third administrative reviews is, as 
applied, inconsistent with Articles 9.4, 9.3, 2.4.2 and 2.4 of the Anti-Dumping 
Agreement.  
(d) Application of an "all others" rate that fails  to consider the results of the individually-
investigated respondents in the contem poraneous proceeding and produces an anti-
dumping duty prejudicial to companies not selected for individual investigation is, as 
applied in the second and third administrative reviews, inconsistent with Articles 9.4, 
17.6(i), and 2.4 of the Anti-Dumping Agreement.   
(e) The application of an anti-dumping duty based on adverse facts available to the 
Vietnam-wide entity in the second and third administrative reviews, and its continued application in subsequent revi ews, is inconsistent with Articles 6.8, 9.4, 17.6(i) and 
Annex II of the Anti-Dumping Agreement. 
(f) The USDOC's determinations in the second and third administrative reviews, and on 
a continuing basis, to limit the number of individually-investigated respondents such 
that they restrict certain substantive rights under the Anti-Dumping Agreement is 
inconsistent with Articles 6.10, 6.10.2, 9.3, 11.1, and 11.3 of the Anti-Dumping 
Agreement.   
3.2 Viet Nam requests that the Panel recommend that the United States immediately bring the 
relevant measures into conformity with its ob ligations under Article VI of the GATT 1994 and the 
Anti-Dumping Agreement.
8    
B. UNITED STATES  
3.3 The United States requests that the Panel grant its  requests for preliminary rulings and reject 
Viet Nam's claims that the United States has act ed inconsistently with the covered agreements.9 
IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties are set out in their written submissions and oral statements to the 
Panel and their answers to questions.  Executive summaries of the parties' written submissions, and 
                                                      
7 Viet Nam's second written submission, para. 144.   
8 Viet Nam's second written submission, para. 146. 
9 United States' first written submission, para. 222; United States' second written submission, para. 167. WT/DS404/R 
Page 4 
 
 
 their oral statements, or executive summaries thereof, are attached to this Report as annexes (see List 
of Annexes, pages vi-vii).   
V. ARGUMENTS OF THE THIRD PARTIES 
5.1 The arguments of the third parties are set out in  their written submissions and oral statements. 
Third parties' written submissions and oral statements , or executive summaries th ereof, are attached to 
this Report as annexes (see List of Annexes, pages vi-vii).10 
VI. INTERIM REVIEW 
A. INTRODUCTION  
6.1 On 7 April 2011, the Panel submitted its Interim Report to the parties.  On 21 April 2011, the 
parties submitted written requests for review of precise aspects of the Interim Report.  On 
5 May 2011, Viet Nam submitted written comments on the United States' requests for interim review.  
The United States did not comment on Viet Nam's requests for review. 
6.2 As explained below, the Panel has modified asp ects of its findings in light of the parties' 
comments where it considered appropriate.  Du e to these changes, the numbering of certain 
paragraphs and footnotes in the Final Repor t has changed from the Interim Report.   
B. VIET NAM'S REQUESTS FOR REVIEW OF PRECISE ASPECTS OF THE INTERIM REPORT  
6.3 Viet Nam suggests that the Panel make a number of clerical changes to the Interim Report to 
correct typographical errors and to add a reference to  an exhibit in a footnote.  We have amended the 
Interim Report to address Viet Nam's suggestions. 
C. UNITED STATES ' REQUESTS FOR REVIEW OF PRECISE ASPECTS OF THE INTERIM REPORT  
6.4 The United States takes issue with the statement in paragraph 7.14 of the Interim Report 
(unchanged in the Final Report) that when zeroing is applied, negative comparison results "are not 
taken into consideration in calcu lating the overall margin of dumping".  The United States considers 
that negative comparison results are, in fact, take n into consideration when zeroing is applied.  
However, the United States argues, these negative co mparison results are considered to be valued at 
zero.  In addition, the United States submits that zeroing affects only the comparison results that are 
aggregated in the numerator  of the dumping margin calculation.  The United States notes that the 
value of all sales is aggregated in the denominator  of the dumping margin calculation.  The 
United States requests that the Panel amend para graph 7.14 accordingly.  For similar reasons, the 
United States requests that the Pa nel amend paragraph 7. 93, paragraph 7.111 (subject to its other 
request in respect of this paragraph, discussed belo w), footnote 113 to paragr aph 7.80 (footnote 114 in 
the Final Report), and footnote 168 to  paragraph 7.114 (footnote 172 in the Final Report) to reflect the 
fact that zeroing sets the value of any negative compar ison results to zero, rather than "disregard[ing]" 
or "discard[ing]" such results. 
6.5 Viet Nam opposes these U.S. request s.  Viet Nam considers that the Interim Report correctly 
describes the effects of the zeroing methodology.  Furthermore, Viet Nam notes that the Interim 
Report does not comment on the use of sales  in the denominator to calculate the final dumping 
margin, but rather on the failure to use the negative  comparison results  in calculating the numerator. 
                                                      
10 China, India and Thailand did not submit third-party written submissions.  Mexico and Thailand did 
not make third-party oral statements.    WT/DS404/R 
 Page 5 
 
 
 6.6 The Panel does not agree with the United States' suggestion that the Interim Report 
improperly describes the zeroing methodology.  First, the Panel fails to see any distinction, from a 
mathematical point of view, betw een "disregard[ing]" a number in the aggregation of a series of 
numbers, and setting that number at zero.  Second, the Panel considers that the changes suggested by 
the United States would not add to the factual accu racy of its description of the zeroing methodology 
applied by the United States.  The evidence before th e Panel – in particular Exhibit Viet Nam-33, the 
accuracy of which the United States does not contest – is to the effect that the programming 
instructions applied by the USDOC exclude nega tive comparison results from the calculation of the 
dumping margin, not that they set them zero.  Inci dentally, the Panel notes that the United States is 
not requesting any modification to paragraph 7.78 of the Interim Report (unchanged in the Final 
Report), which summarizes the relevant portions of this  exhibit.  For this reason, the Panel declines to 
amend paragraphs 7.14, 7.93, 7.111, footnote 113 (114 in the Final Report) to paragraph 7.80, and 
footnote 168 (172 in the Final Report) to paragraph 7.114 as requested by the United States. 
6.7 In addition, we agree with Viet Nam that our description of the zeroing methodology focuses 
on whether all comparison results are taken into account in the numerator, and that it does not suggest 
that certain sales are disregarded in the denominator.  Nevertheless, the Panel has added a new 
footnote (footnote 115) to make it clear that zer oing does not affect the denominator when the 
USDOC calculates the dumping margin as a percentage.  
6.8 The United States requests that the Panel am end paragraph 7.75 of  the Interim Report 
(unchanged in the Final Report).  The United States submits that while it did not contest the accuracy 
of the evidence submitted by Vi et Nam with respect to the USDOC's use of zeroing in the 
proceedings at issue, it argued that given the zero and de minimis margins of dumping calculated in 
the administrative reviews at issue, Viet Nam fa iled to demonstrate that the USDOC assessed any 
duties in excess of the margin of dumping.  Viet  Nam opposes the U.S. request.  Viet Nam considers 
that the language that the United States proposes to add summarizes the United States' legal  argument, 
and has no relevance to the factual  question of whether the USDOC applied zeroing in the 
proceedings at issue, which is the question addressed in the paragraphs at issue.  The Panel notes that 
the United States did not at any time during its proceedings challenge Viet Nam's allegation that the USDOC used zeroing in the proceedings at issue.   For this reason, the Panel considers that 
paragraph 7.75 accurately reflects the United States' arguments in these proceedings.  Furthermore, as 
Viet Nam notes, paragraph 7.75 concerns the question whether the USDOC used zeroing in the 
proceedings at issue (rather than whether or not duties were assessed).  Finally, the language 
suggested by the United States is already included in paragraph 7.82 and footnote 114 of the Interim 
Report (footnote 116 of the Final Report).  For this  reason, we do not consider it necessary to amend 
paragraph 7.75 as requested by the United States.  Nonetheless, to ensure greater clarity, we have 
inserted, in a new footnote, a referenc e to this paragraph and footnote.   
6.9 The United States requests that we reflect, in paragraph 7.103 of the Interim Report 
(unchanged in the Final Report), its argument that Vi et Nam for the first time made arguments with 
respect to its "as such" claim against the "zeroi ng methodology" in response to a written question of 
the Panel.  Viet Nam opposes the change proposed by the United States.  Viet Nam notes that the 
United States proposes adding language in the section summarizing the United States' legal 
arguments, but that the paragraph that the United States suggests adding does not explain or 
summarize any legal argument made by the United St ates.  Rather, Viet Nam submits, the paragraph 
merely identifies the timing of events during the co urse of the Panel proceedings.  We have added a 
new footnote to this paragraph to reflect the argumen t of the United States in respect of this issue. 
6.10 The United States submits that paragraphs 7.11 1 and 7.122 of the Interim Report (unchanged 
in the Final Report) incorrectly state that the conten t of the alleged norm, and whether it is attributable 
to the United States, is not in dispute.  Moreover,  the United States argues that since these statements 
form an essential part of the basis for the Panel's conclusion in paragraph 7.122 with respect to WT/DS404/R 
Page 6 
 
 
 Viet Nam's "as such" claim agains t the "zeroing methodology", the Panel's conclusion in respect of 
that claim cannot be sustained and the relevant findings should be stricken from the Report.  
Viet Nam opposes this U.S. request on the ground that  the sentences of concern to the United States 
are found in a section discussing the Panel's evaluation, not a section devoted a summary of U.S. 
arguments, and that the United States has not comm ented on any improper inclusion or omission in 
the section summarizing its arguments.  In addition, Viet Nam submits that the Panel is correct that 
the United States did not offer any substantive argu ment on either the content of the alleged norm or 
attribution of the norm to the United States.  Th e Panel has amended paragr aphs 7.111 and 7.122 to 
ensure that they accurately reflect the United St ates' arguments on this issue.  Specifically, the 
relevant paragraphs now reflect the United States' statement, in its second wr itten submission, that 
Viet Nam has failed to provide evidence to establish the content of the alleged norm, and that it is 
attributable to the United States.  We have amende d paragraph 7.222 to reflect the Panel's view that 
Viet Nam has effectively established these two criteria.  For this reason, the Panel has not modified its 
finding with respect to the existence of the "zer oing methodology" as a rule or norm of general and 
prospective application.  
6.11 The United States submits that paragraph 7.113 of  the Interim Report (unchanged in the Final 
Report) does not accurately reflect its position with respect to the evidence put forward by Viet Nam 
in support of its "as such" claim.  The United Stat es indicates that while it did not contest the accuracy 
of the evidence presented, it did contest that su ch evidence was sufficient to establish that the 
challenged measure is inconsistent with the provi sions of the Agreement.  The Panel has amended 
paragraph 7.113 as suggested by the United States.  
6.12 The United States suggests that paragraphs 7.242 a nd 7.248 of the Interim Report be deleted.  
The United States submits that contrary to what th ese paragraphs suggest, it did not argue that the 
Working Party Report on Viet Nam's accession permits an investigating authority to apply a rate to a 
non-market economy entity that is not consistent with the requirements of Article 9.4 of the 
Anti-Dumping Agreement.  Viet Nam opposes this U.S. request, as it considers that paragraph 7.242 
accurately reflects the arguments made by the United States with respect to the rate applied to the 
Vietnam-wide entity.  We have amended the Inte rim Report to address the United States' concerns. 
6.13 The United States also suggests that the Panel make a number of clerical changes to the 
Interim Report to correct typographical errors.  In some instances, the Unite d States also suggests 
modifying the language used in the Report in orde r to enhance its clarity.  In the absence of any 
objection by Viet Nam, we have amended th e Interim Report to address these suggestions. 
D. OTHER CHANGES FROM THE INTERIM REPORT  
6.14 In addition to the typographical and other non-subs tantive errors identified by the parties, we 
have also made a number of changes to the Report to  improve its readability or ensure its accuracy.   
VII. FINDINGS 
A. RELEVANT PRINCIPLES REGARDING TREATY INTERPRETATION , THE APPLICABLE STANDARD 
OF REVIEW , AND BURDEN OF PROOF  
1. Standard of review 
7.1 Article 11 of the DSU provides the standard of review applicable in WTO panel proceedings 
in general.  This provision im poses upon panels a comprehensive ob ligation to make an "objective 
assessment of the matter", both factual and legal.  Article 11 of the DSU provides, in relevant part:  WT/DS404/R 
 Page 7 
 
 
 "The function of panels is to assist th e DSB in discharging its responsibilities under 
this Understanding and the covered agreements.  Accord ingly, a panel should make 
an objective assessment of the matter before  it, including an objective assessment of 
the facts of the case and the applicability of and conformity with the relevant covered 
agreements, and make such other findi ngs as will assist the DSB in making the 
recommendations or in giving the rulings pr ovided for in the covered agreements." 
7.2 Further, Article 17.6 of the Anti-Dumping Agreement sets forth a special standard of review 
applicable to disputes under the Anti-Dumping Agreement.  It provides: 
"(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities' establishment of the facts was proper and whether their 
evaluation of those facts was unbiased and objective.  If the establishment of the facts was proper and the evaluation was unbiased and objective, even 
though the panel might have reached a different conclusion, the evaluation 
shall not be overturned; 
(ii) the panel shall interpret the rele vant provisions of the Agreement in 
accordance with customary ru les of interpretation of public international law.  
Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretati on, the panel shall find the authorities' 
measure to be in conformity with the Agreement if it rests upon one of those 
permissible interpretations."  
7.3 Taken together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement 
establish the standard of review we will apply with respect to the factual and the legal aspects of the 
present dispute. 
2. Rules of treaty interpretation 
7.4 Article 3.2 of the DSU requires us to apply cust omary rules of public international law on the 
interpretation of treaties.  It is generally accepted that these rules can be found in Articles 31-32 of the 
Vienna Convention on the Law of Treaties of 1969 ("Vienna Convention").  Article 31(1) of the 
Vienna Convention provides: 
"A treaty shall be interpreted in good faith  in accordance with the ordinary meaning 
to be given to the terms of the treaty in their context and in the light of its object and 
purpose." 
7.5 Under the Anti-Dumping Agreement, the Panel is generally to follow the same rules of treaty 
interpretation as in any other dispute.  Howe ver, under Article 17.6(ii) of the Anti-Dumping 
Agreement (cited above), where a relevant provision of the Anti-Dumping Agreement admits of more 
than one permissible interpretation, a panel h as to uphold a measure that rests upon one of those 
permissible interpretations. The A ppellate Body has indicated that Article 17.6(ii) contemplates a 
sequential analysis.  The Appe llate Body explained that: 
"The first step requires a panel to apply th e customary rules of interpretation to the 
treaty to see what is yielded by a conscientious application of such rules including 
those codified in the Vienna Convention .  Only after  engaging this exercise will a 
panel be able to determine whether the second sentence of Article 17.6(ii) applies."
11 
                                                      
11 Appellate Body Report, US – Continued Zeroing , para. 271. (emphasis original)  WT/DS404/R 
Page 8 
 
 
 3. Burden of proof 
7.6 The general principles regarding the allocati on of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO agreement by another Member assert and prove its claim.  In US – Wool Shirts and Blouses the Appellate Body stated that: 
"… we find it difficult … to see how any system of judicial settlement could work if 
it incorporated the proposition that the mere assertion of a claim might amount to 
proof.  It is, thus, hardly surprising that va rious international tribunals, including the 
International Court of Justice, have gene rally and consistently accepted and applied 
the rule that the party who asserts a fact, whether the claimant or the respondent, is 
responsible for providing proof thereof. Also, it is a generally-accepted canon of 
evidence in civil law, common law, and, in f act, in most jurisdictions, that the burden 
of proof rests upon the party, whether complaining or defending, who asserts the 
affirmative of a particular claim or defen ce.  If that party ad duces evidence sufficient 
to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption".
12 
7.7 Furthermore, in Canada – Dairy (Article 21.5 –  New Zealand and US II)  the Appellate Body 
stated that: 
"… as a general matter, the burden of proof rests upon the complaining Member. That 
Member must make out a prima facie  case by presenting sufficient evidence to raise a 
presumption in favour of its claim. If the complaining Member succeeds, the 
responding Member may then seek to rebut this presumption. Therefore, under the 
usual allocation of the burden of proof,  a responding Member's measure will be 
treated as WTO- consistent , until sufficient evidence is presented to prove the 
contrary. "13 
7.8 A prima facie  case is one which, in the absence of effective refutation by the other party, 
requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie  case.14  
Viet Nam, as the complaining party, must make a prima facie  case of violation of the relevant 
provisions of the WTO agreements it invokes, which the United States must refute.  We also note, 
however, that it is generally for each party asserting a fact, whether complainant or respondent, to 
provide proof thereof.  In this respect, therefore, it is also for the United St ates to provide evidence 
supporting the facts which it asserts. 
B. INTRODUCTION TO THE PANEL 'S FINDINGS – FACTUAL BACKGROUND  
7.9 Viet Nam requests the Panel to find that the Un ited States acted inconsistently with its 
obligations under the GATT 1994 and the Anti-Dumpi ng Agreement by reason of certain actions of 
the USDOC in its proceedings concerning imports of Shrimp  from Viet Nam.  As noted above, Viet 
Nam's claims pertain to:   
(a) The USDOC's zeroing methodology, as such, and as applied in the proceedings at 
issue.  
                                                      
12 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
13 Appellate Body Report, Canada – Dairy  (Article 21.5 – New Zealand and US II) , para. 66. 
(emphasis original) 
14 Appellate Body Report, EC – Hormones, para. 104.  WT/DS404/R 
 Page 9 
 
 
 (b) The USDOC's decisions, in the proceedings  at issue, to limit the number of 
individually-examined companies. 
(c) The "all others" rate imposed by the USDOC in the proceedings at issue. 
(d) The rate assigned by the USDOC to the Vi etnam-wide entity in the proceedings at 
issue. 
7.10 Before we proceed to analyse Viet Nam's clai ms, we consider it useful to provide a brief 
overview of relevant USDOC practices.  We th erefore provide, in this introductory section, 
background information on: (i) the U.S. retrospective duty assessment system;  (ii) zeroing;  (iii) the USDOC's procedures for the selection of companies fo r individual examination;  (iii) the USDOC's 
assignment of margins of dumping to respondents not individually examined.  In addition, we also 
provide a brief summary of the USDOC's determinations in the Shrimp  proceedings. 
7.11 The summary of relevant facts in this section reflects our unde rstanding of those facts before 
us which are not in dispute and is without prejudice to  our legal findings in subsequent sections of this 
Report.  To the extent that there is a disagreement between the parties with respect to a relevant fact 
before us, we address that controve rsy in the relevant section below. 
1. Relevant USDOC practices in anti-dumping proceedings   
(a) The U.S. retrospective anti-dumping system 
7.12 The United States operates what is referred to  as a "retrospective" duty assessment system.  
Under this system, an anti-dumping duty liability arises, and a security (in the form of a cash deposit) 
is collected at the time of importation, but duties are not assessed at that time.  The U.S. authorities
15 
determine the amount of dumping that actually took  place, and the amount of duties actually due, at a 
later date, in the context of a periodic, or "admin istrative", review.  Interested parties may request 
such a review once a year, during the anniversary month of the order, to determine the amount of 
duties – if any – owed on entries made during the previous year.16  In an administrative review, the 
USDOC assesses the importer's liability for anti-du mping duties on a retrospective and transaction-
specific basis.  The USDOC calculates an importer-s pecific duty assessment rate, which is applied to 
the value of the importer's imports to determine the correct total amount of duties owed;  if no review 
is requested, the duty is assessed at the rate establis hed for the cash deposits.  In addition, the USDOC 
also determines an exporter-specific margin of dumpi ng, which is used to derive a new cash deposit 
rate applicable to imports fr om that exporter going forward.17    
7.13 Five years after the publication of an anti-dumping duty order, the U.S. authorities conduct an 
expiry ("sunset") review to determine whether revo cation of the order would be likely to lead to a 
continuation or recurrence of dumping and injury .  Specifically, the USITC determines whether 
revocation of the order would be likely to lead to  the continuation or recurrence of material injury 
whereas the USDOC determines whether revocation of the order would be likely to lead to a 
                                                      
15 Three agencies of the U.S. Go vernment are involved in anti-dumping proceedings:  the U.S. 
Department of Commerce ("USDOC") determines the existence and level of dumping by foreign 
exporters/producers, while the U.S. International Tr ade Commission ("USITC") determines whether the U.S. 
domestic industry is materially injured or threatened with material injury by reason of the dumped imports.  U.S. 
Customs and Border Protection ("USCBP") is responsible for the collection of duties.   
16 The period of time covered by the review is normally twelve months;  however, in the case of the 
first administrative review, the period of time may extend to a period of up to 18 months in order to cover all 
entries that may have been subject to provisional measures. 
17 United States' first written submission, paras. 15-24;  Viet Nam's first written submission, 
paras. 24-39. WT/DS404/R 
Page 10 
 
 
 continuation or recurrence of dumping.  In making this "likelihood-of-dumpi ng" determination, the 
USDOC takes into consideration the dumping margin s established in the original investigation and 
administrative reviews, as well as the volume of impor ts for the periods before and after the issuance 
of the anti-dumping order.18  
(b) "Zeroing" in the calculation of margins of dumping  
7.14 Generally, the existence of dumping is determined by comparing prices of sales by the 
exporter to the importing country ("export price") to  the price of sales of the same product in the 
exporter's domestic market ("normal value") during a reference period.  Dumping exists if the export 
price is less than the normal value.19  The issue of zeroing arises when ever multiple such comparisons 
between the export price and the normal value are perfo rmed and then need to be aggregated.  In such 
cases, some comparisons may reflect export prices below normal value (i.e. dumping), while others 
may reflect the opposite (export prices above normal valu e).  Zeroing is the practice, when performing 
the aggregation of multiple comparisons, of treati ng the results of comparisons where export prices 
are above normal value as "zero" (treating them as  "undumped" rather than assigning them a negative 
value).  Thus, when zeroing is applied, negative co mparison results are not take n into consideration in 
calculating the overall margin of dumping and are not permitted to offset the results of comparisons 
where export prices are below normal value. 
7.15 Viet Nam makes claims with respect to the alleged use by the USDOC of zeroing in the 
context of original investigations and of periodic reviews. Viet Nam alleges, first, that the USDOC 
applied "model zeroing" in calculating margins of dum ping in the original investigation.  Viet Nam 
describes the USDOC's "model zeroing" methodolog y as follows:  In calculating the margins of 
dumping of individually-investigated exporters in the original investigation, the USDOC makes 
model-specific intermediate comparisons of the weighted average export price to the weighted 
average normal value ("weighted-average-to-we ighted-average" comparisons).  Where the 
intermediate comparison produces a negative dumping margin for a particular model, the USDOC 
refuses to allow the negative dumping margin for that model to offset positive dumping margins 
calculated for other models.  Thus, Viet Nam subm its, when aggregating the dumping margin for all 
models, the USDOC only includes those models that produced a positive dumping margin;  the 
negative dumping margins are set to zero and ha ve no impact on the overall dumping margin.20 
7.16 Viet Nam also makes claims with respect to "simple zeroing" in the context of periodic 
reviews.  Viet Nam submits that in periodic reviews, the USDOC compares the export price of 
individual transactions to a weighted average nor mal value for comparable merchandise ("weighted-
                                                      
18 USDOC Determinations in Recently  Completed Sunset Reviews, Exhi bit Viet Nam-64;  Preliminary 
Determination and Issues and Decision Memorandum in the Sunset Review, Exhibit Viet Nam-25.  Where not 
otherwise specified, all references to  USDOC determinations in the "original investigation", an "administrative 
review" or the "sunset review" are to the relevant USDOC determinations in the Shrimp  proceedings. 
19 In investigations involving products from countries which it categorizes as non-market economies, 
the USDOC calculates the norm al value on the basis of surrogate values  taken from countries which it considers 
to be "market economies" rather than on the basis of the prices or costs of production actually incurred by the 
investigated producer.  Specifically, for each export er/producer, the USDOC relies on the quantities of the 
factors of production used by the expo rter/producer concerned (e .g., labour, raw materials, energy) based on its 
actual production experience.  The US DOC values each such factor of pr oduction on the basis of prices 
prevailing in the "surrogate" "market economy".  The USDOC then applies ratios for overhead, selling, general 
and administrative expenses, and profit to the calculati on resulting from the multipli cation of each respondent's 
factors of production by the surrogate price.  In the Shrimp  proceedings, the USDOC co nsidered that Viet Nam 
is a non-market economy and selected Bangladesh as th e relevant surrogate country.  (Viet Nam's first written 
submission, para. 26 and USDOC 2009 Anti-Dumping Manual Chapter 10, Non-Market Economies, Exhibit 
Viet Nam-31, p. 7). 
20 Viet Nam's first written submission, paras. 29-32.    WT/DS404/R 
 Page 11 
 
 
 average-to-transaction" comparison).  Viet Nam expl ains that the USDOC then aggregates the results 
of these comparisons to calculate the reviewed company's overall dumping margin.  Viet Nam alleges 
that in doing so, the USDOC disregards, or "zero es", all negative comparison results, where the export 
price is higher than the normal value.21   
(c) USDOC procedures with respect to the selection of respondents 
7.17 United States law sets forth a general requi rement that the USDOC shall determine an 
individual margin of dumping for each known exporter or producer.22  Similar to Article 6.10 of the 
Anti-Dumping Agreement, however, U.S. law provides an  exception to this general rule:  If it is "not 
practicable" to make individual dumping margin de terminations because of the large number of 
exporters or producers involved in the investigati on or review, the USDOC may determine individual 
margins of dumping "for a reasonable number of expor ters or producers" by limiting its examination 
to:  (i) a statistically-valid sample of exporters, prod ucers, or types of products;  or (ii) exporters and 
producers "accounting for the largest volume of th e subject merchandise from the exporting country 
that can be reasonably examined".23  In the proceedings at issue,  the USDOC limited its examination 
to the latter.24 
7.18 The USDOC selects exporters/producers for individual examination in the context of an 
administrative review as follows:  On the anniversary month of the publication of the anti-dumping order, the USDOC publishes a notice informing inte rested parties – whether U.S. domestic producers 
or importers or foreign exporters – of the possibility to request an administrative review of individual 
producers and exporters covered by the order.  The USDOC next publishes a notice of initiation, in 
which it lists all companies for which a review has been requested.  The USDOC then analyses 
importation data for these companies using either data collected by the USCBP or questionnaire 
responses submitted by the companies, providing the quantity and value of their exports of the product under consideration during the period under  review.  The USDOC subsequently issues a 
"Respondent Selection Memorandum" in which it dete rmines (1) whether individual examination of 
all companies for which a review has been reque sted would be practicable and (2) if not, the 
companies selected for individual examination for the relevant review ("mandatory respondents").  
U.S. law provides companies not sel ected for individual examination the opportunity to be "voluntary 
respondents", i.e. to come forward and submit to the USDOC the data necessary for the calculation of 
an individual dumping margin.  While the USDOC h as a general obligation to determine individual 
margins for such "voluntary respondents", it ma y also refuse to do so where this would be 
impracticable.
25 
                                                      
21 Viet Nam's first written submission, paras. 36-38. 
22 19 U.S.C. § 1677f-1(c)(1), Exhibit Viet Nam-52. 
23 19 U.S.C. § 1677f-1(c)(2), Exhibit Viet Nam-52. 
24 See infra  section VII.E. 
25 19 C.F.R. §351.204(d)(1) and (2) (Exhibit Viet Nam-53).   WT/DS404/R 
Page 12 
 
 
 (d) The USDOC's assignment of dumping margins to exporters not individually examined26 
7.19 The USDOC's practice for imposing anti-dum ping duties on imports from companies not 
individually examined differs depending on whether the imports originate from a country which the USDOC considers to be a "market economy", or  one which the USDOC treats as a "non-market 
economy".  In the proceedings at issue, the US DOC considered that Viet Nam is a non-market 
economy.
27  
7.20 In proceedings involving imports from non-market economies, the USDOC applies a 
rebuttable presumption that all companies within th e country are essentially operating units of a single 
government-wide entity and, thus, should receive a single anti-dumping duty rate.28  Exporters 
wishing to rebut that presumption must file an a pplication and demonstrate the absence of government 
control, both de jure  and de facto , over their export activities, pursuan t to a set of criteria established 
by the USDOC.29  The "separate rate" respondents which satis fy these criteria are eligible to receive 
an individual margin.  Where the investigating au thority has limited its examination, they either 
receive an individual margin, if selected for indivi dual examination, or an "all others" rate, if not 
selected for individual examination.  
7.21 The "all others" rate30 applied to non-selected respondents is generally based on the weighted 
average margins of dumping of the individually exam ined respondents, excluding rates that are zero, 
de minimis  rates or rates entirely based on facts availabl e.  The all others rate is updated in each 
administrative review in order to reflect the i ndividual dumping margins calculated in the review.31 
7.22 The USDOC Anti-Dumping Manual does not expl ain how the NME-wide rate is to be 
calculated, other than to mention that the NME-wide rate determined in the original investigation may 
be based on adverse facts available, "if, for exampl e, some exporters that are part of the NME-wide 
entity do not respond to the antidumping questionnaire" , adding that "[i]n many cases, the Department 
concludes that some part of the NME-wide entity has not cooperated in the proceeding because those 
that have responded do not account for all imports of subject merchandise."32  The Manual further 
indicates that "occasionally", the NME-wide rate "may be changed" through an administrative review.  
This happens when (i) the USDOC is reviewing th e NME entity because the USDOC is reviewing an 
                                                      
26 The USDOC uses the terms "exporter(s)", "company (ies)" and "respondent(s)" interchangeably.  For 
this reason, we also use these terms interchangeably in discussing the entities in respect of which anti-dumping 
duties are assessed.  Of relevance to this issue, the USDOC Anti-Dump ing Manual, Chapter 10, Non-Market 
Economies indicates that th e USDOC makes "separate rate" determinatio ns (explained below) and assigns anti-
dumping duties with respect to exporters .  The Anti-Dumping Manual furthe r indicates that the exporter-
specific "separate rate" applied by the USDOC – whether individual margin or "all others" rate – is also specific 
to those producers that supplied the exporter during the period of investigation.  The Anti-Dumping Manual 
refers to these as "combination rates" "because such rate s apply to specific combinations of exporters and one or 
more producers" and explains that "[t]he cash-depos it rate assigned to an exporter will apply only to 
merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the 
POI."  (USDOC Anti-Dumping Manual, Chapter 10, Non-Market Economies, Exhibit Viet Nam-31, p. 5). 
27 We use the term "non-market economy" and the acronym "NME" to refer to the USDOC's own use 
of these term and acronym.  In doing so, we express no opinion on the WTO-consistency of the USDOC's 
classification of certain countries, incl uding Viet Nam, in such a category. 
28 USDOC Anti-Dumping Manual, Chapter 10, Non-Mark et Economies, Exhibit Viet Nam-31, p. 3. 
29 USDOC "Separate Rate" Application Used by the USDOC in Investigations Involving Imports from 
Viet Nam, Exhibit Viet Nam-50. 
30 The USDOC refers to the "all others" rate applied to such respondents as the "separate rate".  To 
avoid confusion, in our findings, we usually prefer the term "all others" rate.  
31 See, infra  section VII.F. 
32 USDOC Anti-Dumping Manual, Chapter 10, Non-Market Economies, Exhibit Viet Nam-31, pp. 7-8.   WT/DS404/R 
 Page 13 
 
 
 exporter that is part of that entity;  and (ii) one  of the calculated margins for a respondent is higher 
than the current NME-wide rate.33 
2. USDOC determinations in the Shrimp  proceedings 
7.23 Below is a summary of the successive pr oceedings conducted by the USDOC under the 
Shrimp  anti-dumping order.  This summary is without prejudice to the Panel's analysis of whether any 
or all of these proceedings are within the Panel's term s of reference.  We note, in this respect, that 
Viet Nam acceded to the WTO on 11 January 2007, meaning that certain of the USDOC proceedings 
mentioned here were initiated or completed prior to Viet Nam's accession.  We further note that 
Viet Nam submitted its request for the establishment of  a panel on 7 April 2010, i.e. before certain of 
the USDOC determinations listed below.34  
(a) Original investigation 
7.24 The USDOC initiated on 20 January 2004 an an ti-dumping investigation on certain frozen 
and canned warmwater shrimp from, inter alia , Viet Nam.35  On 8 December 2004, the USDOC 
published its final dete rmination in the original investigation36, and on 1 February 2005, the USDOC 
published the anti-dumping order.37  In the investigation, the USDOC treated Viet Nam as a 
non-market economy.  The USDOC de termined that it was impracticab le to individually examine all 
the Vietnamese exporters/producers of the product under consideration.  The USDOC selected for 
individual examination the four respondents accounting for the largest volume of exports during the 
period of investigation.  Three of these "mandato ry respondents", Camimex, Minh Phu and Minh Hai, 
cooperated with the investigation.  For each of them, the USDOC calculated an individual dumping 
margin ranging from 4.30 to 5.24 per cent.  The US DOC applied to the separate rate respondents not 
selected for individual examination a rate equal to the weighted average of the three individual 
margins of dumping, 4.57 per cent.  Finally, th e USDOC applied to those exporters which it 
considered had not demonstrated entitlement to a separ ate rate a Vietnam-wide rate of 25.76 per cent.  
The USDOC determined this rate on the basis of adverse facts available.38 
(b) First administrative review 
7.25 The first administrative review covered imports of frozen warmwater shrimp from Viet Nam 
during the period 16 July 2004 to 31 January 2006.  The USDOC issued its final determination in that 
review on 12 September 2007.  The USDOC determined  that it was impracticable to individually 
examine all Vietnamese companies covered by the review and selected three Vietnamese respondents 
                                                      
33 USDOC Anti-Dumping Manual, Chapter 10, Non-Market Economies, Exhibit Viet Nam-31, pp. 7-8. 
34 Viet Nam indicates that the second and third administrative reviews were initiated and completed 
subsequent to Viet Nam's accession to the WTO on 11 January 2007  (Viet Nam's first written submission, 
para. 101).  Indeed, these two admini strative reviews are the only ones which were completed after Viet Nam's 
accession and before the s ubmission by Viet Nam of its request fo r the establishment of a panel.   
35 Notice of Initiation of the Original Investigation, Exhibit Viet Nam-03.  
36 Final Determination and Issues and Decision Memorandum in the Original Investigation, Exhibit 
Viet Nam-06. 
37 Amended Final Determination in the Original Investigation and Anti-Dumping Duty Order, Exhibit 
Viet Nam-07;  Preliminary Determination in the Original Investigation, Exhibit Viet Nam-05.  While the 
USDOC initiated an investigation on certain frozen and canned  warmwater shrimp, the anti-dumping order was 
imposed only in respect of frozen  warmwater shrimp, reflecting the USITC' s negative injury determination with 
respect to imports of canned  warmwater shrimp from Viet Nam.    
38 Respondent Selection Memorandum in the Original Investigation, Exhibit Viet Nam-04;  Final 
Determination and Issues and Decision Memorandum in the Original Investigation, Exhibit Viet Nam-06; 
Amended Final Determination in the Original Inve stigation and Anti-Dumping Duty Order, Exhibit 
Viet Nam-07.   WT/DS404/R 
Page 14 
 
 
 for individual examination.  Only one of these respondents, Fish One, cooperated.  The USDOC 
calculated a margin of zero per cent for Fish One.  The USDOC again applied a rate of 25.76 per cent 
to the Vietnam-wide entity.  Since the rates for mandatory respondents included only Fish One's zero 
rate and the Vietnam-wide rate, which was entirely based on adverse facts available, the USDOC 
applied the same "all others" rate wh ich it had applied in the original investigation, i.e. 4.57 per cent.39 
(c) Second administrative review 
7.26 The USDOC's final determination in the sec ond administrative review, covering imports 
during the period 1 February 2006 to 31 January 2007, was issued on 9 September 2008.  The USDOC again determined that it was impracticab le to individually examine all Vietnamese 
exporters/producers.  It selected two companies, Minh Phu and Camimex, for individual examination. 
The USDOC calculated a margin of zero per cent for Camimex and a margin of 0.01 per cent 
(de minimis ) for Minh Phu.  Since all individual margins were zero or de minimis , the USDOC 
applied to most "separate rate" respondents not  individually examined the same 4.57 per cent "all 
others" rate which it had applied in the original investigation and the first administrative review.  
Where a more recent individual margin was on the record for a company, the USDOC applied that 
rate to the company concerned.  The USDOC thus attributed zero rates to both Fish One and Grobest 
and a 4.30 per cent rate to Seaprodex.  The USDOC also applied the same Vietnam-wide rate of 25.76 per cent that it had applied in the original  investigation and first administrative review.
40 
(d) Third administrative review 
7.27 The USDOC's final determination in the third administrative review, covering imports during 
the period 1 February 2007 to 31 January 2008, was issued on 19 September 2009.  The USDOC 
again determined that it was impracticable  to individually examine all Vietnamese 
exporters/producers.  It selected three comp anies, Minh Phu, Camimex and Phuong Nam, for 
individual examination, and calculated a de minimis  margin for each of these companies, ranging 
between 0.08 per cent and 0.43 per cent.  The USDOC adopted the same approach with respect to the 
"all others" rate as in the second administrative review , applying an "all others" rate of 4.57 per cent, 
except where a more recent individual margin was on  the record for a company.  The USDOC also 
applied the same Vietnam-wide rate of 25.76 per cen t rate it had applied in  previous proceedings.41 
(e) Fourth administrative review 
7.28 The USDOC's final determination in the four th administrative review, covering imports 
during the period 1 February 2008 to 31 January 2009, was issued on 9 August 2010.  The USDOC selected two companies for individual examination, Minh Phu and Nha Trang.  It calculated a 
dumping margin of 2.96 per cent for Minh Phu and a dumping margin of 5.58 per cent for Nha Trang.  
                                                      
39 Notice of Initiation of the First Administra tive Review and New Shipper Review, Exhibit 
Viet Nam-08;  Respondent Selection Memorandum in the First Administrative Review, Exhibit Viet Nam-09;  
Preliminary Determination in the First Administrative Re view, Exhibit Viet Nam-10;  Final Determination and 
Issues and Decision Memorandum in the First Administrative Review and New Shipper Review, Exhibit 
Viet Nam-11.  In addition, the USDOC applied a rate of zero to Grobest, a "new shipper" of the product under 
consideration. 
40 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12;  Respondent 
Selection Memorandum in the Second Administrative Review, Exhibit Viet Nam-13;  Preliminary 
Determination in the Second Administrative Review, Exhi bit Viet Nam-14;  Final Determination and Issues and 
Decision Memorandum in the Second Administrative Review, Exhibit Viet Nam-15. 
41 Notice of Initiation of the Third Administrative Review, Exhibit Viet Nam-16;  Respondent 
Selection Memorandum in the Third Administrative Revi ew, Exhibit Viet Nam-17;  Preliminary Determination 
in the Third Administrative Review, Exhibit Viet Nam-18;  Final Determination and Issues and Decision 
Memorandum in the Third Administrative Review, Exhibit Viet Nam-19.  WT/DS404/R 
 Page 15 
 
 
 The USDOC applied as "all others" rate the we ighted average of these margins of dumping, 
i.e. 4.27 per cent.  In addition, the USDOC app lied to the Vietnam-wide entity the same 25.76 per 
cent rate as in previous proceedings.42 
(f) Fifth administrative review 
7.29 The USDOC's fifth administrative revi ew, covering imports during the period 
1 February 2009 to 31 January 2 010, was initiated on 9 April 2010.43  It was ongoing at the time of 
the Panel's proceedings.  The USDOC selected three companies for individual examination, 
Minh Phu, Nha Trang and Camimex.44  
(g) Sunset review  
7.30 The USDOC on 4 January 2010 initiated a five-year "sunset" review of the Shrimp  
anti-dumping order.  On 6 August 2010 the USDOC pr eliminarily determined that revocation of the 
order would be likely to lead to continuation or recurrence of dumpi ng at margins of dumping ranging 
from 4.30 per cent to 25.76 per cent, corresponding to the margins of dumping calculated for various 
Vietnamese companies in the orig inal investigation.  On 7 Dece mber 2010, the USDOC issued its 
final likelihood-of-dumping determination, in which it confirmed these conclusions.45 
C. TERMS OF REFERENCE  
1. Introduction 
7.31 Before addressing the substance of Viet Nam's claims, we first consider a number of issues 
pertaining to whether certain measures are properly before the Panel. 
7.32 Viet Nam seeks "as applied" findings with  respect to three measures: the USDOC's 
determination in the second administrative re view, the USDOC's determination in the 
third administrative review, and the "continued use of challenged practices" in the successive Shrimp  
proceedings.46  In addition, Viet Nam seeks findings with respect to the WTO-consistency, as such, of 
the U.S. "zeroing methodology".47   
                                                      
42 Notice of Initiation of the Fourth Administrative Review, Exhibit Viet Nam-20;  Respondent 
Selection Memorandum in the Fourth Administrative Revi ew, Exhibit Viet Nam-21;  Preliminary Determination 
in the Fourth Administrative Review, Exhibit Viet Nam-22;  Final Determination and Issues and Decision 
Memorandum in the Fourth Administrative Review, Exhibit Viet Nam-23.  We note that at the time of 
Viet Nam's panel request, the USDOC had not yet issued its final determination in the fourth administrative 
review. 
43 Notice of Initiation of the Fifth Administrative Review, Exhibit Viet Nam-26. We note that at the 
time of Viet Nam's panel request, the USDOC had not yet initiated the fifth administrative review. 
44 Respondent Selection Memorandum in the Fifth Administrative Review, Exhibit Viet Nam-27. 
45 Notice of Initiation of the Sunset Review, Exhib it Viet Nam-24, and Preliminary Determination and 
Issues and Decision Memorandum in the Sunset Review, Exhibit Viet Nam-25.  Viet Nam did not submit the 
USDOC's final likelihood-of-dumping determination as an exhibit but provided a reference to the Federal 
Register Notice of that determination (Viet Nam's opening  oral statement at the second meeting of the Panel, 
footnote 46 to para. 52, citing to Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam:  
Final Results of the Five-Year "Sunset" Review of the Antidumping Duty Order , 75 Fed. Reg. 75965, 
7 December 2010, available at http://ia .ita.doc.gov/frn/summary /vietnam/2010-30664.txt).   We note that the 
documents submitted by Viet Nam only pertain to the USDOC's likelihood-of-dumping determinations, and that 
at the time of Viet Nam's panel request, the USDOC had only initiated the sunset review. 
46 Viet Nam's first written submission, para. 101;  Viet Nam's second written submission, para. 144.   
47 Viet Nam's second written submission, para. 144.   WT/DS404/R 
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 7.33 The United States made requests for preliminar y rulings with respect to certain of the 
measures challenged by Viet Nam in the context of  its "as applied" claims.  Specifically, the 
United States requests that we find that the following measures are not within our terms of reference:   
(a) the USDOC's final determination in the original investigation; 
(b) the USDOC's final determination in the first administrative review;  and 
(c) the measure characterized by Viet Na m as the "continued use of challenged 
practices".48 
7.34 We first address the United States' request pertaining to the USDOC determinations in the 
original investigation and first administrative review. 
2. U.S. request for a preliminary ruling with respect to the USDOC determinations in the 
original investigation and first administrative review 
7.35 The United States requests that we find that the USDOC's final determinations in the original 
investigation and in the first administrative review , which are both identified as "measures" at issue in 
Viet Nam's panel request, do not fall within our term s of reference.  In support of its request, the 
United States argues that the original investiga tion was initiated and completed before Viet Nam's 
accession to the WTO, and that the first administ rative review was initiated prior to Viet Nam's 
accession to the WTO.  As a result, the United St ates argues, the Anti-Dumping Agreement does not 
apply to these determinations.49  Moreover, the United States argues that the original investigation 
was not included in Viet Nam's request for consultati ons, which it considers to be  a prerequisite for its 
inclusion in the panel request and, a nd therefore, our terms of reference.50 
7.36 Viet Nam indicates that it does not consider the USDOC's determinations in the original 
investigation and the first administrative review to be  "measures at issue" and does not request that we 
make any findings with respect to the WTO-consistency of these determinations.51  This being the 
case, we see no need to address the U.S. request for preliminary rulings with respect to these 
two determinations.  
7.37 We note, however, that Viet Nam considers that the USDOC's actions in the original 
investigation impact upon the WTO-consistency of the USDOC determinations in the subsequent 
proceedings conducted by the USDOC under the Shrimp  anti-dumping order.52  This, Viet Nam 
                                                      
48 United States' first written submission, paras. 71-98. 
49 United States' first written submission, paras. 76-80 and 85-86;  United States' opening oral 
statement at the first meeting of the Panel, paras. 6- 12;  United States' second written submission, para. 135.  
The United States relies, in this respect, on Article 18.3 of the Anti-Dumping Agreement, which provides as 
follows: 
"Subject to subparagraphs 3.1 and 3.2, the pr ovisions of this Agreement shall apply to 
investigations, and reviews of existing measures, initiated pursuant to applications which have 
been made on or after the date of entry in to force for a Member of the WTO Agreement." 
50 United States' first written submission, paras. 81-84;  United States' second written submission, 
para. 136;  United States' response to Panel question 8. 
51 Viet Nam's response to the United States' request for preliminary rulings, paras. 3, 5-10.  In fact, the 
United States itself recognizes that Viet Nam requests no findings with respect to these two determinations. 
(United States' first written submission, footnote 65 to para. 84 and footnote 69 to para. 86;  United States' 
response to Panel question 8). 
52 Viet Nam's response to the United States' request fo r preliminary rulings, para. 3. Viet Nam indicates 
that it considers that the USDOC's determinations in the original investigation and the first administrative 
review are not within our terms of reference "except to the extent that the results of these segments of the  WT/DS404/R 
 Page 17 
 
 
 argues, is because the USDOC in the second and thir d administrative reviews applied an "all others" 
rate based on dumping margins calculated with  zeroing in the original investigation.53  We address 
this argument of Viet Nam in section VII.F below, in  our analysis of Viet Nam's claims with respect 
to the "all others" rate. 
3. U.S. request for a preliminary ruling with respect to the "continued use of challenged 
practices" measure 
(a) Introduction 
7.38 As we have noted above, in its submissions to  the Panel, Viet Nam identifies as one of the 
measures at issue in this dispute the "continued u se of challenged practices" in successive "segments" 
of the Shrimp  anti-dumping proceeding.  Viet Nam explains that this measure concerns a continued  
and ongoing  conduct on the part of the USDOC, encompassing the use of three of the challenged 
practices (zeroing, Vietnam-wide rate, limitation of  the number of respondents individually examined) 
in successive proceedings under the Shrimp  anti-dumping order.54  This includes not only proceedings 
that have been completed, but also ongoing and future ones, and therefore includes a prospective 
element.55  Viet Nam explains that the measure it chal lenges is similar to the one challenged by the 
European Communities in US – Continued Zeroing , which concerned an ongoing conduct with 
prospective effect.56   
7.39 The United States requests that we preliminar ily determine that this "continued use of 
challenged practices" measure does not fall within our  terms of reference.  The United States argues 
that this "continued use" measure is not a "measure " within the Panel's terms of reference as:  (i) it 
was not "identified" as a "measure at issue" in Vi et Nam's request for the establishment of a panel, 
pursuant to Article 6.2 of the DSU57;  and (ii) it is not a measure that is cognizable in WTO dispute 
settlement because it purports to include future measures.58  Viet Nam asks us to reject the 
U.S. request for a preliminary ruling and to proceed to  consider the merits of its claims in respect of 
that measure.59  
7.40 We examine each of the United States' arguments in turn, starting with the U.S. argument that 
Viet Nam's panel request failed to identify the "c ontinued use of challenged practices" measure as a 
measure at issue in this dispute.  
                                                                                                                                                                     
proceeding bear on the results of those segments of the proceeding which occurred af ter Viet Nam's accession to 
the WTO". 
53 Viet Nam's response to the United States' request for preliminary rulings, paras. 6-10.  
54 Viet Nam's response to the United States' request for preliminary rulings, paras. 13-18;  Viet Nam's 
second written submission, para. 2;  Viet  Nam's response to Panel question 1. 
55 Viet Nam's first written submission, para. 104. Vi et Nam specifies that the "continued use" measure 
includes the fourth administrative review, the fifth admi nistrative review, as well as the sunset review.  The 
fifth administrative review was ongoing but not yet comple ted at the time of the drafting of this Report, whereas 
the USDOC issued a final likelihood-of-dumping determina tion in the context of the sunset review during the 
course of the Panel's proceedings.  See supra  section VII.B.2. 
56 Viet Nam's first written submission, paras. 98-99,  104-105 and 294-295;  Viet Nam's response to the 
United States' request for preliminary rulings, paras. 13-18;  Viet Nam's response to Panel question 1. 
57 United States' first written submission, paras. 88-95;  United States' opening oral statement at the 
first meeting of the Panel, paras. 13-19. 
58 United States' first written submission, paras. 96-98;  United States' opening oral statement at the 
first meeting of the Panel, paras. 20-22;  United States' response to Panel question 12;  United States' second 
written submission, paras. 157-159. 
59 Viet Nam's response to the United States' request for preliminary rulings, paras. 4, 30. WT/DS404/R 
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 (b) Whether Viet Nam's panel request identifies the "continued use of challenged practices" as a 
"measure at issue" as require d under Article 6.2 of the DSU 
(i) Main arguments of the parties 
 United States 
7.41 The United States asserts that Viet Nam's panel request identifies, as the measures at issue in 
this dispute, each proceeding under the Shrimp  order that had already been initiated at the time of the 
panel request.  Thus, the United States argues, Viet Na m's panel request limits the measures at issue to 
these determinations, and nowhere indicates that Viet Nam seeks to challenge a so-called "continued use" measure.  The United States argues that Vi et Nam would have the Panel infer from the 
identification of a selection of "as applied" measures that a "continuing measure" is also a subject of 
the dispute.  The United States considers that such an  inference is not permissible.  The United States 
notes that by contrast, the Europ ean Communities' panel request in US – Continued Zeroing  
specifically and explicitly identified the "continued a pplication" of the anti-dumping duties at issue as 
a measure at issue.
  In addition, the United States submits that  not only is the "continued use" measure 
itself beyond the scope of Viet Nam's panel request, but the components that Viet Nam asserts are part 
of that "continued use" measure are themselv es beyond the scope of the panel request.  The 
United States submits in this respect that Viet  Nam includes the fourth and fifth administrative 
reviews and the sunset review within the "conti nued use" measure whereas Viet Nam's panel request 
only includes the preliminary results of the fourth  administrative review and the initiation of the 
sunset review and makes no mention of the fifth administrative review.60 
7.42 In addition, the United States rejects Viet Nam' s argument that the measures identified in the 
panel request are closely related to the "continue d use" measure.  The United States argues in this 
respect that Viet Nam's reliance on the reports of the Japan – Film  and Argentina – Footwear  panels, 
which both concerned measures not identified in the panel request, is inconsistent with its position 
that the "continued use" measure was identified in its panel request and is in any event inapposite.61 
 Viet Nam 
7.43 Viet Nam considers that it properly and ad equately identified the "continued use of 
challenged practices" measure in its panel request.  Viet Nam asserts that its panel request identified 
its concern with the ongoing nature and the continue d use of the challenged practices by identifying 
each segment of the proceeding that had been initiate d at the time of its panel request.  Viet Nam 
argues that it specifically included segments not yet finalized to ensure that the Panel and Members 
understood that it was concerned with the ongoi ng nature of the USDOC practices at issue.62  
Viet Nam argues that the findings of the Appellate Body in US – Continued Zeroing  provide a useful 
framework for determining whether a complainan t challenging a "continued use" measure has 
complied with Article 6.2.  Viet Nam submits that consistent with the Appellate Body's findings in 
that dispute, its panel request included: (i) the identification of the anti-dumping order, which places 
the Panel and parties on notice for challenges to determinations that fl ow from imposition of the 
order;  (ii) the most recently completed phases of  the proceeding, which in forms parties that the 
                                                      
60 United States' first written submission, para. 88-94;  United States' opening oral statement at the first 
meeting of the Panel, paras. 14-17;   United States' response to Panel question 4;  United States' second written 
submission, para. 137.  The United States clarifies that it is not taking the position that Viet Nam was required 
to use, in its panel request, the same language used by the European Communities in US – Continued Zeroing .  
(United States' opening oral statement at the first meeting of the Panel, para. 18). 
61 United States' second written submission, paras. 146-153. 
62 Viet Nam's response to the United States' request fo r preliminary rulings, paras. 24, 27;  Viet Nam's 
opening oral statement at the firs t meeting of the Panel, para. 28.  WT/DS404/R 
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 conduct is continuing and has not ceased;  and (iii) that the claimed violations have occurred at 
multiple phases since imposition of the order.63 
7.44 Viet Nam also argues that the requirement to identify the measu res at issue under Article 6.2 
must be informed by the context provided by other provisions of the DSU, namely Article 3.3 of the 
DSU, which calls for the "prompt settlement of di sputes", and Article 9, which Viet Nam submits 
embodies "the DSU's philosophy of resolving all related issues together."64  Moreover, Viet Nam 
contends that the reports of the panels in Japan – Film  and Argentina – Footwear  stand for the 
general proposition that the identification of a measu re in the panel request suffices to place within a 
panel's terms of reference measures that are "subsidia ry to", or "closely related" to that measure, or 
subsequent determinations made in connection with that measure.  Viet Nam argues that its 
identification of the Shrimp  anti-dumping order in its panel re quest placed parties on notice for 
subsequent determina tions under that order.65  Viet Nam also argues that the "continued use of 
challenged practices" measure does not  expand upon the claims set forth in its panel request and that, 
as a result, denial of the United States' request w ould have a negligible substantive impact on the 
issues considered in this dispute.66 
(ii) Main arguments of the third parties 
7.45 Korea invites the Panel to review Viet Nam's pa nel request to see whether it can find in that 
request a description that is sufficient to indicat e the nature of the "continued use of challenged 
practices", even though Viet Nam did not use th ese precise terms in its panel request.  Moreover, 
Korea considers that the clear identification of th e fourth administrative review and of the sunset 
review as measures at issu e in Viet Nam's panel request should be  taken into account, given that both 
measures are part of the "continued use of challenged practices".67   
(iii) Evaluation by the Panel 
7.46 Article 6.2 of the DSU provides, in relevant part:  
"The request for the establishment of a pane l shall be made in writing.  It shall 
indicate whether consultations were held, identify the specific measures at issue  and 
provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly ." (emphasis added) 
7.47 In US – Continued Zeroing , the Appellate Body summarized th e jurisprudence with respect to 
Article 6.2 as follows:   
"There are two main requirements under Article 6.2 of the DSU, namely, the 
identification of the specific measures at i ssue, and the provision of a brief summary 
of the legal basis of the complaint.  T ogether, these elements comprise the 'matter 
referred to the DSB', which forms the basi s for a panel's terms of reference under 
                                                      
63 Viet Nam's response to Panel question 4 (referring to Appellate Body Report, US – Continued 
Zeroing , para. 166). 
64 Viet Nam's response to the United States' request fo r preliminary rulings, para. 22 (referring to Panel 
Report, EC – Bananas III (Guatemala and Honduras),  para. 7.32). 
65 Viet Nam's response to the United States' request fo r preliminary rulings, paras. 23-24, 27 (referring 
to Panel Report, Argentina – Footwear , paras. 8.35-8.45);  Viet Nam's response to Panel question 6 (referring to 
Panel Report, Japan – Film , para. 10.8).   
66 Viet Nam's response to the United States' request for preliminary rulings, para. 28. 
67 Korea's third-party written submission, paras. 6-7;   Korea's third-party oral statement, para. 4. WT/DS404/R 
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 Article 7.1 of the DSU.  These requirem ents are intended to ensure that the 
complainant 'present[s] the problem clearly' in the panel request." 68 
7.48 The Appellate Body, in the same decision, also  observed that the requirements in Article 6.2 
of the DSU serve a dual purpose: 
"First, as a panel's terms of reference are established by the claims raised in panel 
requests, the conditions of Article 6.2 serve  to define the jurisdiction of a panel. 
Secondly, the terms of reference, and the request for the establishment of a panel on 
which they are based, serve the due process objective of notifying respondents and potential third parties of the nature of the dispute and of the parameters of the case to 
which they must begin preparing a response."
69 
7.49  The Appellate Body indicated in the same d ecision that to ensure that these purposes are 
fulfilled, "[s]uch compliance must be 'demonstrated  on the face' of the panel request, read 'as a 
whole'".70 
7.50 The United States' arguments pertain to the first requirement under Article 6.2, namely the 
identification of the specific measures at issue.  We  note, with respect to this requirement, that a 
measure may be identified either by its form (e.g. name, number, date and place of promulgation of a 
law or regulation, etc.) or by its substance (e.g. by providing a narrative description of the nature of 
the measure).71  The Appellate Body has indicated in US – Continued Zeroing  that "although a 
measure cannot be identified without some indication of its contents, the identification of a measure 
within the meaning of Article 6.2 need be framed only with sufficient particularity so as to indicate 
the nature of the measure and the gist of what is at issue".72  The Appellate Body further indicated that 
"so long as each measure is discernable in the panel request, the complaining party is not required to 
identify in its panel request each challenged measure  independently from other measures in order to 
comply with the specificity requirement in Article 6.2 of the DSU".73 
7.51 We agree with the abovementioned guidance fro m the Appellate Body and various panels.  
With this guidance in mind, we now c onsider whether Viet Nam's panel request74 identifies the 
"continued use of challenged practices " as a measure at issue in this dispute.  In doing so, we note that 
Viet Nam has referred extensively to  the Appellate Body's findings in US – Continued Zeroing  in 
explaining the nature and scope of the "continued use of challenged practices" measure.  In fact, 
Viet Nam has defined its "continued use" measure pr imarily in relation to the measure at issue in US – 
Continued Zeroing .  
                                                      
68 Appellate Body Report, US – Continued Zeroing , para. 160. (footnotes omitted) 
69 Appellate Body Report, US – Continued Zeroing , para. 161. 
70 Appellate Body Report, US – Continued Zeroing , para. 161 (citing to Appellate Body Report, US –
Carbon Steel , para. 127 and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 169, in turn quoting Appellate Body Report, US – Carbon Steel , para. 127). 
71 Panel Report, Canada – Wheat , para. 6.10, subpara. 36;  Panel Report, China – Audiovisual 
Products , para. 7.17;  Panel Report, Thailand – Cigarettes (Philippines) , para. 7.60. 
72 Appellate Body Report, US – Continued Zeroing , para. 169.  The Appellate Body made this 
comment when explaining the difference between the identification  of the specific measure(s) at issue pursuant 
to Article 6.2 and a demonstration of the existence  of these measure(s).  The Appe llate Body explained that an 
examination regarding the specificity of a panel request does not entail substantive consideration as to what 
types of measures are susceptible to challenge in WTO dispute settlement.  For this reason, the Appellate Body 
"reject[ed] the proposition that an examination of the sp ecificity requirement under Article 6.2 of the DSU must 
involve a substantive inquiry as to the exis tence and precise content of the measure." ( Idem ). 
73 Appellate Body Report, US – Continued Zeroing , para. 170. 
74 WT/DS404/5, Annex G-2.  WT/DS404/R 
 Page 21 
 
 
 7.52 In US – Continued Zeroing , the European Communities made claims in respect of an ongoing 
conduct, which the Appellate Body described as the USDOC's "use of the zeroing methodology in 
successive proceedings in each of the 18 cases [at issue] whereby anti-dumping duties are 
maintained."75  The European Communities'  panel request indicated that the measures at issue 
included, in addition to in dividual determinations:   
"The continued application of, or the application of the specific anti-dumping duties 
resulting from the anti-dumping orders enumer ated from I to XVIII in the Annex to 
the present request as calculated or mainta ined in place pursuant to the most recent 
administrative review or, as the case may be, original proceeding or changed 
circumstances or sunset review proceedi ng at a level in excess of the anti-dumping 
margin which would result from the correct application of the Anti-Dumping Agreement (whether duties or cash deposit rates or other form of measure)."
76 
7.53 The Appellate Body found that the language of the European Communities' panel request was 
sufficient to identify a "continued use" measure, cons istently with the requirements of Article 6.2 of 
the DSU.  In particular, it found that through this  language, the European Communities' panel request 
had properly identified the "con tinued application of the 18 duties" as a measure at issue.77    
7.54 Viet Nam explains that simila r to the measure at issue in US – Continued Zeroing , the 
"continued use" measure it challenges in the pr esent dispute has both present and prospective 
components in the sense that it consists in the a pplication of three of the four USDOC practices 
challenged by Viet Nam in both comple ted and future proceedings under the Shrimp  anti-dumping 
order.78  
7.55 The findings of the Appellate Body in US – Continued Zeroing  clarify the Appellate Body's 
view that measures of the type of the "continued use" measure might properly be challenged in WTO 
dispute settlement proceedings.79  However, the mere fact that a particular measure is capable  of 
WTO challenge does not mean that it necessarily falls w ithin a panel's terms of reference.  Rather, as 
explained above, we must still establish whether or not Viet Nam's panel request actually identifies 
the "continued use of challenged practice" as a "measure at issue". 
7.56 Having examined Viet Nam's panel request cons istent with the guidance and principles set 
out above, we are bound to conclude that Viet Na m's panel request does not identify the "continued 
use of challenged practices" as a measure at issue.  Viet Nam's panel request contains no indication 
that it sought to place any measure in the form of  an ongoing conduct on the part of the USDOC, or 
any future USDOC determinations under the Shrimp  anti-dumping order, before the Panel.  
7.57 First, in this respect, we note that on its face,  the only measures that Viet Nam's panel request 
identifies as "measures at  issue" are those specifically referred to in the introductory paragraph to 
Section 2 of the panel request, namely the USDOC's fi nal determinations in the original investigation 
and in the first, second and third administrative re views, the USDOC's preliminary determination in 
                                                      
75 Appellate Body Report, US – Continued Zeroing , para. 171. 
76 Appellate Body Report, US – Continued Zeroing , para. 163. 
77 Appellate Body Report, US – Continued Zeroing , paras. 159-174. 
78 See supra , para. 7.38 and Viet Nam's first written submission, para. 104.  Viet Nam explains that the 
USDOC's use of the practices at issu e in successive proceedings under the Shrimp  anti-dumping order "is 
conclusive evidence, per the Appellate Body's guidance in US – Continued Zeroing , that the USDOC will 
continue to engage in this conduct in the future ."  (Viet Nam's response to Panel question 55). 
79 We note that in US – Continued Zeroing , the European Communities challenged the USDOC's 
ongoing conduct in proceedings under several anti-dumping orders, whereas in the instant dispute, Viet Nam's 
claims pertain to the USDOC's actions in proceedings under a single order. WT/DS404/R 
Page 22 
 
 
 the fourth administrative review, and the USDOC's notice of initiation of the sunset review.  The 
introductory paragraph to Section 2 of Viet  Nam's panel request reads as follows:   
"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 sh rimp from Viet Nam.  The following 
determinations constitute the measures at issue: 
1. Final Determination of Sales at Less Than Fair Value:  Certain Frozen and 
Canned Warmwater Shrimp from th e 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)."  
7.58 The sentence that introduces the list of de terminations, which reads "The following 
determinations constitute the measures at issue", in  our view provides a strong indication that the 
panel request is limited to these determinations. 
7.59 We recall that a measure at issue can be identif ied not only by its form, but also by a narrative 
description of the nature of the measu re.  With this in mind, we obser ve that, in addition to setting out 
the six segments of the Shrimp  proceedings as constituting "the measures at issue", Viet Nam also 
describes the "zeroing methodology" as a measure in  relation to which it makes "as such" claims.
80  
However, beyond identifying the zeroing methodolog y as a measure subject to "as such" claims, 
Viet Nam's panel request contains no language that  would indicate an intention to include future 
segments of the anti-dumping proceedings as measures at  issue within the Panel's terms of reference 
or that would otherwise identify a "prospective com ponent" of the alleged continued use measure.  As 
can be seen from the list of measures contained in the introductory paragraph to  Section 2 of the panel 
                                                      
80 In this regard, we observe that later in its panel request, Viet Nam speaks of a "zeroing methodology" 
which it describes as having certain characteristics and certain bases.  Although Viet Nam does not include this 
zeroing methodology in its list purporting to constitute the measures at issue in this proceeding, reading the 
panel request as a whole, we are comfortable that Viet Nam has identified the zeroing methodology as a 
measure at issue, consistent with the requirements of Article 6.2 of the DSU.  In addition, the United States has 
not argued that this measure is not properly within our terms of reference.  WT/DS404/R 
 Page 23 
 
 
 request, Viet Nam's panel request only includes meas ures in existence or ongoing at the date of the 
request – as exemplified by th e reference to the USDOC's preliminary  determination in the fourth 
administrative review or the USDOC's initiation  of a sunset review – without any reference to 
upcoming developments in respect of these proceedings.81  Nothing in the panel request justifies 
inferring from the inclusion of partially-completed measures that Viet Nam sought to challenge a 
measure consisting of the USDO C's continuing and ongoing use of certain practices in the 
proceedings under the Shrimp  anti-dumping order.82 
7.60 For the foregoing reasons, we are unable to agr ee with Viet Nam that either the introductory 
paragraph to Section 2 of its panel request or the listing of USDOC determinations as of the date of 
the panel request identified the "continued use of challenged practices" measure consistent with the 
requirements of Article 6.2 of the DSU.83  We also note Viet Nam's argument that language in the 
section of the panel request concerning the "Sunset Review" "established Viet Nam's concerns 
                                                      
81 Consistent with this, in each of the sections of the panel request laying out its legal claims  
("Zeroing", "Country-Wide Rate Based on Facts Available", "Limiting the Number of Respondents Selected for 
Full Investigation or Review" and "Sunset Review") Viet Nam refers to the "USDOC's application of the 
above-mentioned laws and procedures in the original investigation and periodic reviews here at issue " 
(emphasis added) or similar references to USDOC ac tions "[i]n the antidumping proceedings at-issue".  
(Viet Nam panel request, WT/DS404/5, p. 3, chapeau to paras. 9-11 (zeroing claims);  p. 4, chapeau to 
paras. 14-17, and p. 5, chapeau to pa ras. 18-19 ("country-wide rate");  p. 6, chapeau to paras. 27-28 (limitation 
of the number of respondents)).  
82 We note the United States' argume nt that through the "continued us e" measure, Viet Nam seeks to 
extend the scope of that list to include the final determinations in the sunset review and the fourth administrative 
review and the initiation of the fifth administrative review .  We agree with the United States that there is no 
basis in the panel request – whether independent identifi cation of these determinations or identification of a 
"continued use" measure comprising them – to consider th at these determinations are properly before the Panel. 
83 The Panel asked Viet Nam the following question (Panel question 3): 
"(to Viet Nam) In paragraph 160 of its Report in US – Continued Zeroing , the Appellate Body 
stated that the requirements to identify the sp ecific measures at issue and to provide a brief 
summary of the legal basis of the complaint under Article 6.2 of the DSU are "intended to 
ensure that the complainant 'present[s] the problem clearly.'"  Further, in para. 161 of its 
Report in the same dispute, the Appellate Body, referring to its previous decisions, said that 
compliance with Article 6.2 of the DSU must be demonstrated  "on the face" of the panel 
request, read "as a whole". 
Bearing in mind that we must read Viet Nam' s panel request "as a whole", where, on the face 
of the panel request does Viet Nam identify the "continued use" measure in a manner that 
presents the problem clearly."  
 
Viet Nam answered that it: 
"... presented the "continued use" measure in the opening line of Section 2 of the Panel 
Request, stating, "[t]he 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 fr om Viet Nam."  The sentence does not include 
the limitation of "completed" or "initiated" periodic reviews, plainly suggesting Viet Nam's 
concern with any future periodic review in which the USDOC continues to engaged in the 
challenged actions. 
The Panel Request next identifi ed every segment of the proceed ing that is a direct product, 
thus far, of the shrimp antidumping duty order to further clarify Viet Nam's concern with the 
ongoing nature of certain claims raised in the request.  The determinations completed prior to 
Viet Nam's accession to the WTO and those segments not yet final were included for this 
purpose, illustrating that these violations continue to occur.  Viet Nam's request made every 
effort to present as clearly as  possible that the USDOC has continued to engage in the conduct 
throughout each segment of th e antidumping proceeding ste mming from imposition of the 
shrimp antidumping order." WT/DS404/R 
Page 24 
 
 
 regarding continued and ongoing practices".84  The relevant paragraph of  Viet Nam's panel request 
reads as follows: 
"The USDOC initiated a sunset review  for these antidumping proceedings on 
4 January 2010. ... Because of the circumstan ces 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 th e respondent 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 ad ministrative reviews. Accordingly, 
Viet Nam considers as a consequence of the inconsistencies set forth in Sections a-c 
above that the USDOC sunset review is in consistent with Articles 11.2 and 11.3 of 
the Agreement."85 
7.61 We read this paragraph as reflecting Viet Nam' s intention to place the (then ongoing) sunset 
review within our terms of reference, and as expr essing its concern with the cumulative effect of the 
challenged practices on that sunset review .  In other words, the measure at issue in this paragraph 
appears to be the sunset review itself, not some continuing practice of the USDOC.86 
7.62 Viet Nam has been unable to identify any othe r language in its panel request that would 
identify the "continued use" measure as a measure at issue.  It w as incumbent upon Viet Nam, if it 
wished to include a measure of the type which it ha s described in its submissions, to include in its 
panel request at least some indication that it was challenging not only USDOC determinations in 
completed proceedings under the Shrimp  anti-dumping order, but also an ongoing conduct on the part 
of the USDOC, including USDOC actions in future proceedings under the order.  
7.63 We recall that Viet Nam has referred extens ively to the Appellate Body's findings in US – 
Continued Zeroing .  We note that unlike Viet Nam's pane l request, the European  Communities' panel 
request in US – Continued Zeroing  case referred not only to the definitive duties under each of the 
anti-dumping orders at issue, and to the most re cent determinations under these orders, but also 
explicitly indicated the European Co mmunities' intent to place before the panel a measure in the form 
of an ongoing conduct, which it defined as the "con tinued application" of the 18 duties at issue.87  
Viet Nam was not required to formulate its panel requ est by using terms identical or similar to those 
used by the European Communities in US – Continued Zeroing .  However, the European 
Communities' formulation of the "c ontinued application" measure in US – Continued Zeroing  
illustrates how a party may include a measure of this type in its panel request.88  In contrast to that 
panel request, Viet Nam's panel request in the inst ant case does not signal – either directly, or even 
                                                      
84 Viet Nam's response to the United States' request for preliminary rulings, para. 25. 
85 Viet Nam's panel request, p. 7 "(d) Sunset Review". 
86 We note, however, Viet Nam's indication in its response to Panel question 9 that it is not pursuing 
any claims in respect of the USDOC's determinations in the context of the sunset review. 
87 See supra , paras. 7.52-7.53. 
88 A recent illustration of a panel finding that a "c ontinued use" measure was identified in a panel 
request in a manner meeting the requirements of Artic le 6.2 of the DSU is the report of the panel in US – 
Orange Juice (Brazil) .  The panel in US – Orange Juice (Brazil)  found that Brazil's panel request in that case 
was sufficiently precise to satisfy the requirements of  Article 6.2 of the DSU.  Brazil challenged a measure 
which it had described as follows in its panel request: "The continued use of the U.S. 'zeroing procedures' in 
successive anti-dumping proceedings, in relation to the anti-dumping duty order issued in respect of imports of 
certain orange juice from Brazil."  (Panel Report, US – Orange Juice (Brazil) , paras. 7.38-7.41).  The report of 
the US – Orange Juice (Brazil)  panel was issued shortly before the issuance of our Interim Report and had 
neither been appealed nor adopted at the time of the issuance of our Final Report to the parties.  WT/DS404/R 
 Page 25 
 
 
 indirectly, independently or in combination with other measures – any intention to place within the 
Panel's terms of reference a measure in the form of an ongoing conduct on the part of the USDOC, 
extending into the future.  In sum, we reach the view that no "continued use" measure is discernable 
from Viet Nam's panel request. 
7.64 In addition, we note that Viet Nam's request for consultations  did identify a "continued use" 
measure, albeit in words that differ from those used  by Viet Nam in its submissions to the Panel.  
Paragraph 3 of Viet Nam's request for c onsultations reads, in relevant part: 
"Vietnam believes that the United States has acted inconsistent with its WTO 
obligations specified in paragraph 2 above  by applying so-called 'zeroing' in the 
determination of the margins of dumping in  the reviews cited in paragraph 1 above, 
by repeatedly and consistently, failing to provide most Vietnamese respondents 
seeking a review an opportunity to demonstrate the absence of dumping by being 
permitted to participate in a review, and by requiring companies to demonstrate their 
independence from government control and a pplying an adverse facts available rate 
to companies failing to do so in all reviews.  Vietnam further believes that the US has 
an established practice with respect to ea ch of these issues and will, therefore, 
continue to act inconsistent with its WTO obligations relatin g to these issues in 
ongoing and future reviews , including the five year review provided under 
Article 18.1 of the Antidumping Agreement."89  
7.65 The fact that the reference to a measure of this  type in the consultations request was omitted 
from the panel request, and not replaced with other similar textual references to a "continued use" 
measure, or other measure taking the form of an ongoing conduct, confirms the view that the 
"continued use" measure was excluded from the text of Viet Nam's panel request.90 
7.66 Finally, Viet Nam also argues that measures not identified in a panel request may nonetheless 
fall within the panel's terms of reference where they are "subsidiary or closely related to" those 
measures explicitly identified in the panel request.91  In support of this argument, Viet Nam cites to 
the findings of the panels in Japan – Film  and Argentina – Footwear .   
7.67 We do not consider that the findings of the Japan – Film  and Argentina – Footwear  panels 
assist Viet Nam in the present case.  Viet Nam is not arguing that the "continued use" measure is an 
amendment to the specific measures explicitly in cluded in the panel request, as was the case in 
Argentina – Footwear .  Nor can Viet Nam argue that the re lationship between the "continued use" 
measure and the specific determinations included in its panel request is similar to the relationship 
between a basic framework law and implementing me asures provided for in that law, or between 
two documents of a same series, as was the case in Japan – Film . 92  More importantly, the key 
                                                      
89 Viet Nam's request for consultations, WT/DS404/1 (reproduced in Annex G-1), p. 3, para. 3. 
(emphasis added).  Viet Nam confirmed during oral questioning and in its response to Panel question 2 that the 
closing sentence of this paragraph should be understood as a reference to a "continued use" measure. 
90 As a further contrast between the two requests, we note that the consultations request indicates 
Viet Nam's intention to launch consultations with respec t not only to determinations already rendered by the 
USDOC (Viet Nam's request for consultations, p. 1, paras. 1(a)-(d)), but also with respect to what at that time 
were future measures, e.g. the prelim inary and final results of "any administrative reviews or other reviews" 
under the Shrimp  order published "after the date of this request for consultations" (request for consultations, 
p. 2, para. 1(e)) as well as any USDOC determination on remand from the US Court of International Trade 
(request for consultations, p. 2, para. 1(f)). 
91 We note the United States' argument that this lin e of argument is at odds with Viet Nam's position 
that its panel request does identify the "continued use" measure.   
92 The Japan –  Film  panel considered that where a basic frame work law dealing with a narrow subject 
matter is specified in a panel request, implementing "meas ures" might be considered as effectively included in WT/DS404/R 
Page 26 
 
 
 rationale underlying the findings of the Japan – Film  and Argentina – Footwear  panels under 
Article 6.2 was their view that certain measures are so closely related to the measure identified 
explicitly in the panel request that identificati on of the latter provides sufficient notice that the 
complainant intends to challenge the former.93  Accepting Viet Nam's arguments would effectively 
mean that a "continuing measure" is implicitly includ ed in a panel's terms of reference whenever an 
individual determination is challe nged.  Yet we do not consider that the identification of specific 
instances of application of a given "practice" provides sufficient notice to the respondent and third 
parties that the complainant intends to make cl aims in respect of the responding Member's ongoing 
use of that same practice.  Rather, as Viet Nam's own arguments demonstrate, measures in the form of 
an ongoing conduct are markedly different from indivi dual manifestations of that conduct in specific 
instances.94  For this reason, one would expect the compla inant to identify such a measure explicitly in 
its panel request.95   
7.68 In sum, after examining it as a whole, in light of the language used by Viet Nam therein, and 
taking as context Viet Nam's request for consultati ons, we conclude that Viet Nam's panel request 
fails to identify the "continued use of challenged prac tices" as a measure at issue.  For this reason, we 
find that a measure consisting of the "continued use of  challenged practices" is not within our terms of 
reference. 
(c) Whether the "continued use of challenged practi ces" measure is amenable to WTO challenge 
7.69 Given our conclusion that the "continued use"  measure does not fall within our terms of 
reference because it is not identified as a "measure at issue" in Viet Nam's panel request, we do not 
need to examine the United States' request for a preliminary ruling that  the "continued use" measure is 
a measure of a type that may not be challenged be fore a WTO dispute settlement panel.  We recall, 
though, that the Appellate Body found in US – Continued Zeroing  that the continued application of 
certain anti-dumping duties could be challenge d in WTO dispute settlement proceedings.96 
                                                                                                                                                                     
the panel request, in particular where the basic frame work law "specifies the form and circumscribes the 
possible content and scope of implementing 'measures'". Panel Report, Japan – Film , paras. 10.8, 10.13.  In 
addition, the panel considered that a report which was part  of the same series of reports as one which had been 
explicitly included among the measures listed in the panel request fell within its terms of reference. Id., 
para. 10.14.  At issue in Argentina – Footwear  was whether subsequent modifications of the definitive 
safeguard measure identified as the measure at issue in the panel request also fell within the panel's terms of 
reference.  The panel considered that it was the measures  in their substance rather than the legal acts in their 
original or modified legal forms that were most re levant for its terms of reference.  Panel Report, Argentina – 
Footwear , para. 8.40.  
93 See also Panel Report, EC – Fasteners  (adoption/appeal pending), para. 7.38:   
"It is now well established that a measure whic h is not identified in the complainant's panel 
request may nonetheless fall within a panel's terms of reference if it is sufficiently closely 
related to the measures identified in the pane l request, such that the respondent can be found 
to have had adequate notice of the nature of the claims that the complainant might raise during 
the panel proceedings". (footnote omitted) 
94 Viet Nam argues that "continuing measures" fall in the "cross-section" between the measures that are 
the subject of "as such" claims and thos e that are the subject of "as applied" claims, adding that measures in the 
form of an ongoing practice are narrow er than the former, but broader than the latter.  (Viet Nam's response to 
the United States' request for preliminary rulings, para. 13, referring to Appellate Body Report, US – Continued 
Zeroing , para. 180). 
95 We add that, were Viet Nam correct on this point, there would have been no need for the Appellate 
Body to examine the issue of the identification of the "continued application" measure in US – Continued 
Zeroing .  
96 See supra , para. 7.55 .  WT/DS404/R 
 Page 27 
 
 
 4. Conclusion with respect to the measures at issue in this dispute 
7.70 We recall that, with respect to its "as applied"  claims, Viet Nam only seeks to place before the 
Panel the USDOC's determinations in the second a nd third administrative reviews and the "continued 
use" measure.97  In response to a question from the Panel, Viet Nam confirmed that "[i]f the Panel 
determines that the 'continued use' measure does not fa ll within its terms of reference, then the second 
administrative review and third administrative review are the only measures to which Viet Nam's 
claims of violations apply."98  We further recall that Viet Nam ma kes "as such" claims in respect of 
another measure, the U.S. "zeroing methodology".99  We have concluded that the "continued use" 
measure does not fall within our terms of reference.   In consequence, the measures at issue in the 
instant dispute are the USDOC's determinations in  the second and third administrative reviews and the 
U.S. "zeroing methodology".  
D. VIET NAM'S CLAIMS WITH RESPECT TO ZEROING  
1. Introduction 
7.71 Viet Nam requests that we find100: 
(a) that simple zeroing, "as applied" in the second and third administrative reviews, is 
inconsistent with Articles 9.3, 2.1, 2.4. 2, and 2.4 of the Anti-Dumping Agreement 
and Article VI:2 of the GATT 1994101;  and 
(b) that the USDOC's zeroing methodology is, as su ch, inconsistent with Article 9.3 of 
the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.102 
7.72 We examine each claim in turn, starting w ith Viet Nam's "as applied" claim.   
2. Zeroing "as applied" in the administrative reviews at issue 
(a) Introduction 
7.73 Viet Nam requests that we find that the USDOC 's use of simple zeroing to calculate the 
margins of dumping of individually-examined r espondents in the second and third administrative 
reviews is inconsistent with Articles 9.3, 2.1, 2. 4.2 and 2.4 of the Anti-Dumping Agreement and with 
Article VI:2 of the GATT 1994.  We will first consid er whether Viet Nam has demonstrated that the 
USDOC applied zeroing in these two administrative revi ews.  If we are satisfied that Viet Nam has 
met its burden of establishing its factual allegations in  this respect, we will next consider whether, in 
doing so, the USDOC violated the provisions cited by Viet Nam.   
                                                      
97 See supra , para. 7.32.   
98 Viet Nam's response to Panel question 7.  We und erstand Viet Nam's response as only addressing the 
measures before the Panel with respect  to Viet Nam's "as applied" claims. 
99 In supra , footnote 80, we explain why, in our view, this measure falls within our terms of reference. 
100 We have already found that the "continued use of challenged practices" meas ure does not fall within 
our terms of reference and for this reason do not consider Viet Nam's claims in respect of that measure.  We 
consider Viet Nam's claims and argu ments with respect to the alleged use by the USDOC of margins calculated 
with zeroing to calculate the "all others" rates in section VII.F below. 
101 Viet Nam's second written submission, para. 144(1) ;  Viet Nam's opening oral statement at the 
second meeting, para. 59(1). 
102 Viet Nam's second written submission, para. 144(2) ;  Viet Nam's opening oral statement at the 
second meeting, para. 59(2). WT/DS404/R 
Page 28 
 
 
 (b) Whether the USDOC applied zeroing in the administrative reviews at issue 
(i) Main arguments of the parties 
 Viet Nam 
7.74 Viet Nam submits that consistent with its practice in administrative reviews103, the USDOC 
engaged in "simple zeroing" in the calculation of the margins of dumping for individually-examined 
exporters in the administrative reviews at issue.104   
 United States 
7.75 The United States does not contest Viet Nam' s allegation that the USDOC used simple 
zeroing in the administrative reviews at issue.105  
(ii) Evaluation by the Panel 
7.76 We now proceed to determine on the basis of  the evidence submitted by Viet Nam whether 
the USDOC used "simple zeroing" in the calculatio n of individual margins in the second and third 
administrative reviews. 
7.77  First, Viet Nam provides the Panel with pr intouts of the USDOC's computer programme 
"logs" and "outputs" showing the application of zeroing for two Vietnamese respondents selected for 
individual review in each of the second and the third administrative reviews, i.e. Minh Phu and 
Camimex.106  The "logs" provide the computer programming language to execute the desired 
operations on the data, and show  how the programme processed th e data.  The "outputs" provide 
sample dumping calculations and sample prints of databases that are run through the programme.107   
7.78 Viet Nam also submits an affidavit by a trade analyst, Mr. Michael Ferrier, explaining the 
USDOC's use of zeroing in the original investigation and administrative reviews.108  The affidavit 
                                                      
103 For a summary of Viet Nam's description of "simple zeroing", as allegedly used by the USDOC, see 
supra  para. 7.16. 
104 Viet Nam's first written submission, paras. 47-51.  Because of its cl aims in respect of the "continued 
use" measure, Viet Nam submits evidence with resp ect to the use of simple zeroing in each of the 
four administrative reviews under the Shrimp  anti-dumping order.  In this section of our findings, we only 
consider the evidence pertaining to the second and third administrative reviews. 
105 As we note infra , para. 7.82 and footnote 116, the United States' arguments focus on the fact that in 
the measures at issue, the USDOC calculated zero and de minimis  margins of dumping, and as a result did not 
assess any duties in respect of im ports from selected respondents. 
106 USDOC Computer Programme Log for Minh Phu in the Second Administrative Review, 
Exhibit Viet Nam-36;  USDOC Computer Programme Log for Camimex in the Second Administrative Review, 
Exhibit Viet Nam-37;  USDOC Computer Programme Log for Minh Phu in the Third Administrative Review, 
Exhibit Viet Nam-38;  USDOC Computer Programme Log for Camimex in the Third Administrative Review, 
Exhibit Viet Nam-39;  Computer Programme Output for Minh Phu in the Second Administrative Review, 
Exhibit Viet Nam-44;  Computer Programme Output for Camimex in the Second Administrative Review, 
Exhibit Viet Nam-45;  Computer Programme Output for Minh Phu in the Third Administrative Review, 
Exhibit Viet Nam-46;  Computer Programme Output for Camimex in the Third Administrative Review, 
Exhibit Viet Nam-47. 
107 Affidavit by Michael Ferrier, Exhibit Viet Nam-33, para. 9. 
108 Affidavit by Michael Ferrier, Exhibit Viet Nam-33 .  The affidavit states that Mr. Ferrier is an 
international trade analyst with a law firm and formerly worked for the USDOC where, according to his 
affidavit, he analyzed computer responses of respondents, input the information from these responses into the 
USDOC's programme for determining anti-dumping duty margins, and calculated these margins.  The affidavit 
also indicates that the "logs" and "outputs" were released by the USDOC to counsel for Minh Phu and  WT/DS404/R 
 Page 29 
 
 
 directs the Panel's attention to certain lines of computer code in the "logs" that implement the 
instruction to disregard negative comparison results in the calculation of the total anti-dumping duties 
of a reviewed exporter.109  The affidavit further explains that  corroboration for this removal by the 
computer programme of any comparison result of zero or below (i.e.  comparisons for which the 
export price exceeds normal value) can be found in the "outputs" for Minh Phu and Camimex.  These 
outputs record, for each of these two Vietnamese compan ies,  the volume and value of sales that were 
below normal value, as well as the volume an d value of each producer's total sales to the 
United States during the review period.110  Finally, the affidavit also identifies the programming lines 
that exclude any comparison result below zero in the calculation of the importer-specific assessment 
rate.  
7.79 Viet Nam also provides the Panel with the Issues and Decision Memoranda that accompany 
each of the USDOC's final determinations in the administrative reviews at issue.  The memoranda 
confirm the USDOC's use of zeroing in these reviews.  In the memorandum to the second 
administrative review, the USDOC states that it "has continued to deny offsets to dumping based on export transactions that exceed the normal value in this review".
111  In the memorandum to the third 
administrative review, the USDOC writes that "in the event that any of the export transactions 
examined in this review are found to exceed nor mal value, the amount by which the price exceeds 
normal value will not offset the dumping f ound in respect of other transactions."112 
7.80 We recall that where a party adduces evidence su fficient to raise a presumption that what it 
claims is true, the burden shifts to the other party, who will fail unless it adduces evidence to rebut 
that presumption.113  In the present instance, Viet Nam has put  forward sufficient evidence to lead us 
to the view that, as Viet Nam alleges, the USDO C used simple zeroing in the calculation of the 
dumping margins of individually-examined exporters/p roducers.  In the absence of any arguments or 
evidence on the part of the United States to  rebut the presumption established by Viet Nam114, we are 
satisfied that the USDOC used simple zeroing in  its calculation of the margins of dumping of 
individually-examined producers in the second and third administrative reviews.115   
                                                                                                                                                                     
Camimex.  We note that in referring to Exhibit Viet Nam-33, we use the term "affidavit" which has been used in 
the exhibit and by the parties, without any comment on the status of the document as a matter of U.S. municipal 
law.   
109 Affidavit by Michael Ferrier, Exhibit Viet Na m-33, paras. 27-56;  Viet Nam's first written 
submission, para. 48. 
110 According to the figures provided , in each of two administrative reviews, the vast majority of 
Minh Phu's and Camimex' U.S. sales (in terms of both value and volume) were excluded because the export 
price was equal to or above normal value.   
111 Issues and Decision Memorandum for the Fi nal Determination in the Second Administrative 
Review, Exhibit Viet Nam-15, pp. 13-14. 
112 Issues and Decision Memorandum for the Final Determination in the Third Administrative Review, 
Exhibit Viet Nam-19, p. 13.  See also, infra  paras. 7.115-7.116 for a more detailed discussion of the content of 
the Issues and Decision Memoranda. 
113 See, supra  paras. 7.6-7.8.  
114 In its response to Panel question 54, para. 6, the United States comments on the Ferrier affidavit 
(Exhibit Viet Nam-33).  The United States indicates that "[t]he evidence contained in Exhibit Viet Nam-33 does 
not appear to be factually incorrect."  The USDOC does not comment on other evidence submitted by Viet Nam 
in support of its allegation.   
115 We note that the USDOC places the amount re sulting from the aggregation of the various 
comparison results in the numerator when calculating the margins of dumping as a percentage of the total value 
of export transactions.  The issue before us relates to this inclusion of comparison results in the numerator.  
Zeroing does not affect the denominator:  the USDOC includes the value of all export transactions in the 
denominator of the equation.   WT/DS404/R 
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 (c) Whether the USDOC's application of zeroing in the administrative reviews at issue is 
inconsistent with the prov isions cited by Viet Nam 
(i) Introduction 
7.81 We now proceed to consider whether the USDOC 's application of zeroing to calculate the 
margins of dumping of selected respondents in the two periodic reviews at issue was inconsistent with 
the United States' obligations under the covered agreements. 
7.82 As we discuss below, this is not the first time U.S. practices in relation to zeroing have come 
before a WTO panel.  The facts be fore us are unusual, however, in that all of the margins of dumping 
in the second and third administrative reviews were either zero or de minimis .  This raises the question 
whether the use of zeroing is WTO-inconsistent, even though no duties are actually assessed with 
respect to the selected respondents.116  
7.83 Viet Nam makes claims of violation under Articles 9.3, 2.1, 2.4.2, and 2.4 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.117  We examine each of Viet Nam's 
claims, starting with the alleged violation of  Article 2.4 of the Anti-Dumping Agreement.118  
(ii) Viet Nam's claim under Article 2.4 of the Anti-Dumping Agreement  
 Main arguments of the parties 
  Viet Nam 
7.84 Viet Nam asserts that the "fair comparison" la nguage in the first sentence of Article 2.4 
creates an independent obligation for the investigatin g authority to make a "fair comparison" between 
export price and normal value.119  Viet Nam argues that the use of a zeroing methodology in periodic 
reviews violates this obligation, particularly as it systematically eliminates certain transactions from 
the comparison.  Viet Nam notes that the Appellate Body has found that zeroing is inconsistent with 
Article 2.4 because it distorts the prices of certain  export transactions, since export transactions made 
at prices above normal value are not considered at th eir real value, and because it artificially inflates 
the magnitude of dumping, resulting in higher margins of dumping and making a positive 
determination of dumping more likely.120  Viet Nam argues that the violation of Article 2.4 resides in 
                                                      
116 The United States argues that given the zero and de minimis  dumping margins, Viet Nam has not 
demonstrated that the USDOC assessed any duties with respect to imports from the selected respondents 
(United States' first written submission,  paras. 106-109 and United States' second written submission, para. 31).  
Viet Nam admits that under the U.S. procedures for the conduct of administrative reviews, if an exporter obtains 
a zero margin or a de minimis  margin, it necessarily follows that as a result of that same review, no importer will 
be assessed any duties in respect of imports from that exporter (Viet Nam's response to Panel question 50).  In 
light of these clarifications from the parties, we consider it an undisputed fact that no duties were assessed with 
respect to the selected respondents as a resu lt of the two administrative reviews at issue. 
117 Viet Nam's second written submission, para. 144(1). 
118 We recall that a panel is entitled to structure its analysis in the manner most appropriate to facilitate 
the analysis of the issues pres ented to it.  (Panel Report, US – Zeroing (EC) , para. 7.13;  Panel Report, US – 
Zeroing (Japan) , para. 7.14 and footnote 641; see also Appellate Body Report, US – Zeroing (EC) (Article 21.5 
– EC) , para. 277). 
119 Viet Nam's response to Panel question 51 (citing to Appellate Body Report, US – Zeroing (EC) , 
para. 146). 
120 Viet Nam's second written submission, paras. 28- 30;  Viet Nam's response to Panel questions 17 
and 51 (citing to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135;  Appellate 
Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , paras. 138-140 and 142; and Appellate Body 
Report,  US – Zeroing (Japan) , paras. 146-147);  Viet Nam's closing oral  statement at the s econd meeting of the 
Panel, para. 8.  WT/DS404/R 
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 this unfair comparison. Viet Nam therefore considers that the use of zeroing to calculate dumping 
margins in the periodic reviews at issue is inconsis tent with Article 2.4 notwithstanding the fact that 
the calculations produced zero and de minimis  margins.121 
  United States 
7.85 The United States argues that Article 2.4 concerns  the issue of the comparability of the export 
price and normal value, including the need for any adjustments, prior to the investigating authority 
conducting the comparison between the two.  Thus , the United States argues, Article 2.4 does not 
speak to the issue of how the results of these comparisons are to be treated and does not require their aggregation.  As a consequence, Article 2.4 does not prohibit zeroing.
122  The United States argues 
that the Appellate Body's statements, in prior disput es, that zeroing is inconsistent with Article 2.4 
were either dependent on findings of violation under  Article 2.4.2 or Article 9.3, or pertained to 
zeroing in different contexts.123  In addition, the United States argu es,  where the ma rgins of dumping 
calculated are zero or de minimis , they cannot be characterized as "artificially inflated" or "inherently 
unfair" and zeroing does not lead to the collec tion of duties in excess of the dumping margin under 
Article 9.3 of the Anti-Dumping Agreement.124 
7.86 The United States argues that higher or lower dumping margins are not inherently fair or 
unfair, and therefore a methodology cannot be said to be unfair merely because it produces higher margins.  The United States submits that the te xt of Article 2.4 does not resolve whether any 
particular assessment of anti-dumping duties exceed s the margin of dumping because Article 2.4 does 
not resolve whether "dumping" and "margins of dumping" are concepts that apply to individual 
transactions. Thus, the text of Article 2.4 does not re solve whether zeroing is "fair" or "unfair".  The 
United States submits that a number of panels have rejected the expa nsive interpretation of the "fair 
comparison" requirement advocated by Viet Nam.
125   
 Main arguments of the third parties 
  India 7.87 India urges the Panel follow the Appellate Body 's prior decisions on the issue of zeroing.  
India notes that the Appellate Body has ruled in US – Zeroing (Japan)  that zeroing in the context of 
periodic reviews is inconsistent with the "f air comparison" requirement in Article 2.4.
126  
                                                      
121 Viet Nam's response to Panel question 51;  Viet Nam's comments on the United States' response to 
Panel question 49 (referring to Appellate Body Report,  US – Corrosion-Resistant Steel Sunset Review , 
para. 137). 
122 United States' second written submission, paras. 21-29. United States' opening oral statement at the 
second meeting of the Panel, paras. 16-18;  United States' comments on Viet Nam's response to Panel 
question 51. 
123 United States' second written submission, paras. 30-37 (referring to Appellate Body Report, US – 
Zeroing (Japan) , para. 168, Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , 
para. 142; and Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 135-138);  
United States' response to Panel question 49.   
124 United States' second written submission, paras. 31-32. 
125 United States' second written submission, paras. 34 -37 and United States' opening oral statement at 
the second meeting of the Panel, paras. 19-23 (referring to Panel Report, US – Zeroing (Japan) , para. 7.155, 
7.158;  Panel Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 5.74;  Panel Report, US – Zeroing 
(EC) , para. 7.260). 
126 India's third-party oral statement, paras. 10, 12;  India's response to Panel question 2 (referring to 
Appellate Body Report, US – Zeroing (Japan) , paras. 167-169). WT/DS404/R 
Page 32 
 
 
   Japan 
7.88 Japan argues that the use of zeroing violates Article 2.4 of the Anti-Dumping Agreement 
irrespective of its impact, because by using zeroing, th e investigating authority fails to carry out a fair 
comparison, irrespective of the outcome of that comparison.127  Japan asserts that the Appellate Body 
has held that there is an inherent bias in a zeroing methodology and that as a way of calculating 
margins, the zeroing methodology "cannot be describ ed as impartial, even-handed, or unbiased", 
because it necessarily excludes any negative comparisons results.128   
  K o r e a  7.89 Korea argues that it is now settled that zeroing makes an investigating authority methodically 
fail to take into account all export transactions fo r the product as a whole, and therefore inevitably 
leads to an "unfair comparison."
129 
 Evaluation by the Panel 
7.90 Viet Nam alleges that the USDOC's use of zeroing in the second and third administrative 
reviews violates the "fair comparison" requirement set forth in the first sentence of Article 2.4 of the 
Anti-Dumping Agreement.  This sentence provides: 
"A fair comparison shall be made betwee n the export price and the normal value." 
7.91 The Appellate Body has previously indicated that the use of zeroing to calculate dumping 
margins is inherently inconsistent w ith this "fair comparison" requirement.130  We refer in this regard 
to the findings of the Appellate Body in US – Corrosion Resistant Steel Sunset Review , US – 
Softwood Lumber V (Article 21.5 – Canada) , and US – Zeroing (Japan) .  We note, in particular, the 
findings of the Appellate Body in US – Softwood Lumber V (Article 21.5 – Canada)  that: 
"First, the use of zeroing under the transaction-to-transaction comparison 
methodology when aggregating the transaction-specific comparisons for purposes of calculating the 'margins of dumping', distorts  the prices of certain export transactions 
because export transactions made at prices above normal value are not considered at 
their real value.  The prices of these expor t transactions are artificially reduced when 
zeroing is applied under the transaction-to-transaction comparison methodology.  As 
the Appellate Body explained in the original dispute, '[z]eroing means, in effect , that 
at least in the case of some  export transactions, the export prices are treated as if they 
were less than what they actually are.' 
Secondly, the use of zeroing in the transaction-to-transaction comparison 
methodology, as in the weighted average-to -weighted average methodology, tends to 
                                                      
127 Japan's third-party written submission, para. 49;  Japan's third-party oral statement, para. 2;  Japan's 
response to Panel question 3. 
128 Japan's third-party written submission, paras. 30-31, 49;  Japan's response to Panel question 3 
(referring to, inter alia , to Appellate Body Report, US – Zeroing (Japan) , para. 146, in turn quoting Appellate 
Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 142; and to Appellate Body Report, US – 
Corrosion-Resistant Steel Sunset Review , para. 135). 
129 Korea's response to Panel question 2. 
130 Regarding the U.S. argument concerning the scope of the first sentence of Article 2.4 (described, 
supra  para 7.85), we note that the Appellate Body has already confirmed that the first sentence of Article 2.4 
creates an independent obligation, the scope of which is not exhausted by the remainder of that provision (see, 
e.g. Appellate Body Report, US – Zeroing (EC) , para. 146, affirming, on this point, the interpretation of the 
panel in the same dispute, paras. 7.253-7.258;  and Appellate Body Report, EC – Bed Linen , para. 59).  WT/DS404/R 
 Page 33 
 
 
 result in higher margins of dumping.  As the Appellate Body underscored in US – 
Corrosion-Resistant Steel Sunset Review ,  the use of zeroing:   
... will tend to inflate the margins calculated.  Apart from inflating 
the margins, such a methodology co uld, in some instances, turn a 
negative margin of dumping into a positive margin of dumping. ...  
Thus, the inherent bias in a zeroing methodology of this kind may 
distort not only the magnitude of a dumping margin, but also a 
finding of the very existence of dumping."131  
7.92 The Appellate Body concluded that: 
"... the use of zeroing under the transac tion-to-transaction comparison methodology 
artificially inflates the magnitude of dumpi ng, resulting in higher margins of dumping 
and making a positive determination of du mping more likely.  This way of 
calculating cannot be described as impartia l, even-handed, or unbiased.  For this 
reason, we do not consider that the calculation of 'margins of dumping', on the basis of a transaction-to-transaction comparison that uses zeroing, satisfies the 'fair 
comparison' requirement within the meaning of Article 2.4 of the Anti-Dumping 
Agreement ."
132 
7.93 We agree with the above reasoning of the Appellate Body, and adopt it as our own.  Even in 
cases where no anti-dumping duties are assessed, the application of zeroing distorts the prices of 
certain export transactions, because export transact ions made at prices above normal value are not 
considered at their real value.  Indeed, Viet Na m has demonstrated that, in the two administrative 
reviews at issue, the USDOC disregarded the resu lts of the export price/normal value comparison for 
the vast majority of the selected respondents' export transactions.133  In doing so, the USDOC, without 
any justification under the Anti-Dumping Agreement,  effectively reduced the export prices for the 
relevant export transactions, treating these prices as e qual to the normal value, even though in reality 
they were not.  
7.94 Since it is an integral part of the price co mparison undertaken by the USDOC, we consider 
that the USDOC's artificial reduction of the expor t price of transactions in the second and third 
administrative reviews is sufficient to render the price comparison inconsistent with the first sentence 
of Article 2.4, even though no an ti-dumping duties are ultimately assessed. 
7.95 Furthermore, as the Appellate Body underscored in US – Corrosion-Resistant Steel Sunset 
Review ,  there is an inherent  bias in the zeroing methodology, because it tends  to artificially inflate the 
dumping margins calculated.134  The clear implication of the A ppellate Body's approach is that 
zeroing is incompatible with the requirement of  a "fair comparison" under Article 2.4 of the 
Anti-Dumping Agreement, irrespective of whether duties are actually assessed. 
                                                      
131 Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , paras. 139-140 (citing to 
Appellate Body Report, US – Softwood Lumber V , para. 101 and US – Corrosion-Resistant Steel Sunset Review , 
para. 135). (emphasis original, footnotes omitted) 
132 Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 142.  See also 
Appellate Body Report, US – Zeroing (Japan) , paras. 146 and 167-169.  
133 See supra  footnote 110. 
134 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135, cited supra  
para. 7.91. WT/DS404/R 
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 7.96 For these reasons, we reject the United States ' argument that where the margins of dumping 
calculated are zero or de minimis , as they are here, there can be no violation of Article 2.4.135  
7.97 On the basis of the foregoing, we conclude that  the United States acted inconsistently with 
Article 2.4 of the Anti-Dumping Agreement as a resu lt of the USDOC's use of zeroing to calculate the 
dumping margins of individually-examined exporters in the second and third administrative reviews.  
(iii) Viet Nam's claims of violation under Articl es 9.3, 2.1, and 2.4.2 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994 
7.98 In addition to its claim under Article 2.4, Viet  Nam also considers th at the USDOC's use of 
zeroing in the second and third administrative review s violates Articles 9.3, 2.1, and 2.4.2 of the 
Anti-Dumping Agreement, and Article VI:2 of the GATT 1994. 
7.99 The United States asks us to reject Viet Nam's claims under these provisions.  The 
United States argues, inter alia , that the prohibition of zeroing in periodic reviews under Article 9.3 of 
the Anti-Dumping Agreement and Article VI:2 of th e GATT 1994, if there is one, is triggered by the 
imposition of duties in excess  of the margin of dumping, such that there can be no violation when no 
duties are assessed136;  that Article 2.1 of the Anti-Dumping Agreement is purely definitional and does 
not impose any independent obligati on upon the investigating authority137;  and that Article 2.4.2 of 
the Anti-Dumping Agreement applies only in the context of original investigations, and imposes no obligation with respect to periodic reviews.
138  
7.100  In US – Shirts and Blouses , the Appellate Body stated that "a panel need only address those 
claims which must be addressed in or der to resolve the matter at issue".139  The Appellate Body has 
also stated in Australia – Salmon  that "[a] panel has to address those claims on which a finding is 
necessary in order to enable the DSB to make su fficiently precise recommendations and rulings so as 
to allow for prompt compliance by a Memb er with those recommendations and rulings."140 
7.101  We have already found that the USDOC's use of  zeroing in the calculation of the margins of 
dumping of selected respondents in the second and thir d administrative reviews was inconsistent with 
Article 2.4 of the Anti-Dumping Agreement.  Finding a violation of any of the other provisions 
invoked by Viet Nam would add nothing to the resolution of this dispute, nor would it aid in any 
potential implementation.  Accordingly, we consider  it appropriate to exercise judicial economy in 
respect of Viet Nam's claims under Articles 9.3, 2.1, and 2.4.2 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994.  
                                                      
135 United States' response to Panel question 49, para. 3.  We note that shortly before we issued our 
interim report, another panel issued its Report in whic h it arrived at a similar conclusion.  See Panel Report, 
US – Orange Juice (Brazil) (adoption/appeal pending), paras. 7.137-7.161.   
136 United States' first written submission, paras. 104 , 106-109;  United States' opening oral statement 
at the first meeting of the Panel, para. 26;  United States' response to Panel questions 14 and 19;  United States' 
second written submission, paras. 7-10;  United States' opening oral statement at the second meeting of the 
Panel, paras. 7-8. 
137 United States' second written subm ission, paras. 21-37 and 49-54;   United States' opening oral 
statement at the second meeting of the Panel,  para. 11 (referring to Appellate Body Report, US – Zeroing 
(Japan) , para. 140). 
138 United States' second written submission, paras. 38-48;  United States' opening oral statement at the 
second meeting of the Panel, paras. 12-14;  United States' comments on Viet Nam's response to Panel 
questions 52 and 53A. 
139 Appellate Body Report, US – Shirts and Blouses , p. 19. 
140 Appellate Body Report, Australia – Salmon , para. 223.  WT/DS404/R 
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 3. Zeroing "as such" 
(a) Introduction 
7.102  We now consider Viet Nam's claims with respect to the U.S. "zeroing methodology".  
Viet Nam argues that the zeroing methodology is a rule or norm of general and prospective 
application that may be subject to an "as such" cl aim, even though it is not set forth in any written 
document.141  Viet Nam requests us to find that this rule or norm, insofar as it relates to the calculation 
of dumping margins in periodic reviews is, as such, in consistent with Article 9.3 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994.142 
7.103  The United States asks us to reject Viet Nam's claims.  While the United States does not deny 
that unwritten rules or norms of ge neral and prospective application may be challenged "as such", the 
United States submits that Viet Nam has failed to establish as a matter of fact, based on the evidence 
put forward in this proceeding, that the alle ged zeroing methodology cons titutes a norm of general 
and prospective application.143 
7.104  Viet Nam's claims raise issues regarding the circumstances in which an unwritten rule or 
norm of general and prospective application may be challenged in WTO dispute settlement 
proceedings.  While it is now established144 that such measures are susceptible to challenge, the 
Appellate Body has indicated that their unwritten na ture means that panels must exercise particular 
care in determining whether or not the complaining Member has properly established their existence.  
Accordingly, we will first examine whether or not  Viet Nam has properly established the existence of 
the zeroing methodology as a rule or norm of general and prospective application.  If we find Viet Nam has properly established the existence of such a measure as a matter of fact, we will then 
evaluate the parties' arguments concerni ng the WTO-consistency of that measure. 
                                                      
141 See, e.g. Viet Nam's second wr itten submission, para. 20;  Viet Na m's opening oral statement at the 
second meeting of the Panel, para. 10;  Viet Nam's response to Panel question 54B;  Viet Nam's comments on 
the United States' response to Panel question 50(ii).  While Viet Nam requests findings in respect of the "zeroing 
methodology", in its arguments, Viet Nam interchangeably uses the terms "zeroing methodology" and "zeroing 
procedures".  In our findings, we use the term "zeroing methodology" used by Viet Nam in its request for 
findings. 
142 Viet Nam's second written submission, para. 144( 2). Viet Nam notes that the Appellate Body, in 
US – Zeroing (Japan) , para. 88, affirmed the finding of the panel in that case that "'zeroing procedures' under 
different comparison methodologies, an d in different stages of the anti- dumping proceedings, do not correspond 
to separate rules or norms, but simply reflect different manifestations of a single rule or norm".  (Viet Nam's 
second written submission, para. 18).  That said, we note that Viet Nam's requests for findings are limited to the 
application of that methodology in the context of U.S. administrative reviews and that Viet Nam's arguments 
focus on the precise context of the use of the weighted-average-to-transaction comparison methodology in such 
reviews. 
143 The United States notes that Viet Nam's first wr itten submission made no reference to any "as such" 
claim and that during oral questioning  in the first meeting of the Panel, Viet Nam indicated that it was not 
pursuing an "as such" claim in this dispute.  The United States submits that Viet Nam for the first time 
articulated the bases of its "as such" claim against th e zeroing methodology in response to a written question 
from the Panel (Panel question 11).  (United States' second written submission, para. 11).   
144 See, e.g. Appellate Body Report, US – Zeroing (EC) , paras. 192-193. WT/DS404/R 
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 (b) Whether Viet Nam has establishe d the existence of the zeroing methodology as a rule or norm 
of general and prospective application 
(i) Main arguments of the parties 
 Viet Nam 
7.105  Viet Nam submits that prior panels and th e Appellate Body have  concluded that the 
U.S. zeroing methodology is an established norm or practice that may be subject to an as such 
claim.145  Viet Nam asserts that the zeroing procedures, as described in the affidavit it submitted as 
Exhibit Viet Nam-33, are unchanged from the procedur es that were found to constitute a general rule 
or norm in these past disputes.146  Viet Nam argues that the Panel may take judicial notice of the facts 
underlying these findings by previous  panels and the Appellate Body of the existence of the zeroing 
methodology as a rule or norm of general and prospec tive application.  Viet Nam submits that doing 
so would be consistent with the objective of Ar ticle 3.2 of the DSU of achieving security and 
predictability in the mulilateral trading system.  Further, Viet Nam argues that doing so would be 
consistent with the approach adopted by the US – Shrimp (Ecuador)  and US – Antidumping Measures 
on PET Bags  panels.  Viet Nam argues that these panels re lied on the facts as set forth in prior reports 
to establish the facts in the dispute before them.  Thus, Viet Nam considers that citation to the report 
of a previous panel is sufficient to place the factua l findings and the legal conc lusions related to such 
factual findings on the record of this proceeding.147   
7.106  In any event, Viet Nam considers that it has met its burden of proof with respect to the 
existence of the zeroing methodology.  Viet Nam notes that it has provided, in the Ferrier affidavit (Exhibit Viet Nam-33), a detailed analysis of the zeroing methodology to calculate dumping margins 
generally and as used by the USDOC in the specific context of the Shrimp  anti-dumping 
proceedings.
148  Viet Nam further cites to statements ma de by the USDOC in the four administrative 
reviews conducted by the USDOC in the Shrimp  anti-dumping proceedings, in which the USDOC 
sought to justify its practice of zeroing with lang uage that confirms its general and systematic 
application of this practice.149  Thus, Viet Nam argues, all eviden ce on the record of this proceeding 
indicates the systematic application of zeroing in administrative reviews.150 
7.107  Viet Nam further submits that the establishment of the relevant facts is not wholly the 
responsibility of the complaining party.  Viet Nam co nsiders that it has met its burden of establishing 
a prima facie case of the existence of the zeroing methodology as a general rule or norm.  As a result, 
Viet Nam submits, the burden of proof has shifted to the United States.  Viet Nam argues that the 
                                                      
145 Viet Nam's second written submission, para. 18 and Viet Nam's comments on the United States' 
response to Panel question 50(ii) (referring to Panel and Appellate Body Reports, US – Zeroing (Japan)  and 
Panel and Appellate Body Reports, US –  Stainless Steel (Mexico );  Viet Nam's comments on the United States' 
response to Panel question 50(ii).   
146 Viet Nam's opening oral statement at th e second meeting of the Panel, para. 10. 
147 Viet Nam's response to Panel question 54A;  Viet Nam's comments on the United States' response to 
Panel question 50A (referring to Panel Report, US – Shrimp (Ecuador) , para. 7.28;  and Panel Report, US – 
Anti-Dumping Measures on Polyethylene Carrier Bags from Thailand , para. 7.7). 
148 Viet Nam's comments on the United States' response to Panel question 50(i). 
149 Viet Nam's comments on the United States' response  to Panel question 50(iii) (referring to Issues 
and Decision Memorandum for the Final Determination in the First Administrative Review, Exhibit 
Viet Nam-11, pp. 15-16;  Issues and Decision Memorandum for the Final Determination in the Second 
Administrative Review, Exhibit Viet Nam-15, pp. 13-14;  Issues and Decision Memorandum for the Final 
Determination in the Third Administrative Review, Exhibit Viet Nam-19, pp. 12-13;  Issues and Decision 
Memorandum for the Final Determination in the Fourth Administrative Review, Exhibit Viet Nam-23, 
pp. 33-34). 
150 Viet Nam's response to Panel question 50(iii).  WT/DS404/R 
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 United States fails to submit any evidence to rebut Vi et Nam's case.  Viet Nam asks the Panel to treat 
the United States' silence in this respect as an acknowledgment that no such evidence exists.151  
 United States 
7.108  The United States argues that Viet Nam has not placed before the Panel sufficient evidence to 
support a finding as to the existence of the alle ged zeroing methodology as a measure which may be 
challenged "as such" before a WTO panel consiste nt with the findings of the Appellate Body in US – 
Zeroing (EC) .152  The United States notes that Viet Nam cites to prior panel and Appellate Body 
reports with respect to the "zeroing methodology".  The United States asserts that argument regarding 
another dispute, or mere citation to the findings of another panel or the Appellate Body, is insufficient 
to place such facts before the Panel.  The United States notes that in US – Continued Zeroing , the 
Appellate Body indicated that factual findings in pr ior disputes regarding the existence of the zeroing 
methodology as a rule or norm are not binding in subsequent disputes.153  The United States argues 
that while in US – Continued Zeroing  the Appellate Body indicated that evidence adduced in one 
proceeding and admissions made in respect of the same factual question about the operation of an 
aspect of municipal law may be submitted as evid ence in another proceeding, it is necessary to 
actually adduce the evidence and point to any such  admissions, which Viet Nam has not done with 
respect to the existence of the alleged zeroing methodology.154   
7.109  The United States submits that th e evidence presented by Viet Nam to the Panel falls short of 
the evidence described by the Appe llate Body in previous disputes.155  The United States argues that 
the present Panel has before it evidence of, at mo st, the alleged application of "zeroing" in 
four administrative reviews of one product, an "expert opinion" that does not even purport to 
demonstrate the existence of the "zeroing methodol ogy" as a measure of general and prospective 
application attributable to the United States, a nd portions of the USDOC's Anti-Dumping Manual that 
are not relevant to the question of zeroing and do not include the "standard computer programs" used 
by the USDOC to calculate dumping margin.  The United States argues that this evidence does not 
establish "systematic application" of zeroing in ad ministrative reviews and that the absence of any 
evidence to that effect on the reco rd before the Panel supports a conc lusion that Viet Nam has failed 
to establish such a systematic application.156 
(ii) Evaluation by the Panel 
7.110  In US – Zeroing (EC) , the Appellate Body indicated that "a panel must not lightly assume the 
existence of a 'rule or norm' constituting a measure of general and prospective application, especially 
when it is not expressed in the form of a written document".157  The Appellate Body reasoned that the 
                                                      
151 Viet Nam's response to Panel questions 54A and 54B;  Viet Nam's comments on the United States' 
response to Panel questions 49 (ii) and (iv). 
152 United States' second written submission para. 16;  United States' opening oral statement at the 
second meeting of the Panel, para. 27;  and United States ' response to Panel question 54(iii) (all referring to 
Appellate Body Report, US – Zeroing (EC) , paras. 196-198).   
153 United States' second written subm ission para. 19; United States' opening oral statement at the 
second meeting of the Panel, para. 28; United States' re sponse to Panel question 54A; United States' comments 
on Viet Nam's response to Panel question 54A  (all referring to Appellate Body Report, US – Continued Zeroing , 
para. 190). 
154 United States' opening oral statement at the second meeting of the Panel, para. 28, comments on 
Viet Nam's response to Panel questions 54A and 54B;  see also response to Panel question 54A. 
155 United States' response to Panel question 54(iii)  (referring to the Appellate Body Reports on US – 
Zeroing (EC)  and US – Zeroing (Japan) ). 
156 United States' response to Panel question 54(iii). 
157 Appellate Body Report, US – Zeroing (EC) , para. 196. WT/DS404/R 
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 existence and content of such a rule or norm may be  more uncertain than wh ere the rule or norm is 
expressed in the form of a written document.158  The Appellate Body observed that: 
"... when bringing a challenge against such a 'rule or norm' that constitutes a measure 
of general and prospective application, a complaining party must clearly establish, 
through arguments and supporting evidence, at least that the alleged 'rule or norm' is 
attributable to the responding Member;  its precise content;  and indeed, that it does 
have general and prospective application.  It is only if the complaining party meets 
this high threshold, and puts forward suffici ent evidence with respect to each of these 
elements, that a panel would be in a position to find that the 'rule or norm' may be 
challenged, as such.  This evidence may include  proof of the systematic application of 
the challenged 'rule or norm'.  Particular ri gour is required on the part of a panel to 
support a conclusion as to the existence of a 'rule or norm' that is not expressed in the 
form of a written document.  A panel must carefully examine the concrete 
instrumentalities that evidence the existence of the purported 'rule or norm' in order to 
conclude that such 'rule or norm' can be challenged, as such."159   
7.111  The above reasoning was applied by the panels in US – Zeroing (Japan)  and US – Stainless 
Steel (Mexico) .160  Like those panels, we are guided by the above reasoning of the Appellate Body.  In 
the present instance, the parties' disagreement focuses on whether the evidence before the Panel 
properly establishes that the zeroing methodology is  a rule or norm of general and prospective 
application.  We note that the United States argue s that Viet Nam has pointed to no evidence and 
made no argument that would "clearly establish" that the alleged rule or norm is attributable to the 
United States, and the precise content of that norm.161  We disagree.  In our view, Viet Nam has 
presented evidence sufficient to establis h both the content of the norm, and that it is attributable to the 
United States.   First, we note that the United St ates has not contested the content of the alleged norm 
– i.e.  that the USDOC, in calculating dumping margins in the context of periodic reviews, disregards 
any intermediate comparison result where the export price is equal to, or greater, than the normal 
value – as described by Viet Nam in its submissions and supporting e xhibits.  Second there can in our 
view be no question that if there is a norm, it is attr ibutable to the United States.  We recall that the 
USDOC forms part of the United States Government a nd that Viet Nam alleges that the norm at issue 
finds application in connection with the appli cation by the United States of its anti-dumping law.162 
7.112  With guidance from relevant case law163, we consider that the zeroing methodology may be 
found to have general and prospec tive application if the USDOC is shown to have a deliberate policy 
of applying that methodology, going beyond the si mple repetition of the application of that 
methodology in specific cases.164  Given the unwritten nature of the alleged rule or norm at issue, our 
conclusions in this respect may rest on inferences drawn from evidence in the form, inter alia , of 
                                                      
158 Appellate Body Report, US – Zeroing (EC) , para. 197. 
159 Appellate Body Report, US – Zeroing (EC) , para. 198. (emphasis original, footnote omitted) 
160 Panel Report. US – Zeroing (Japan) , paras. 7.47-7.59;  Panel Report, US – Stainless Steel (Mexico), 
paras. 7.28-7.42 and 7.84-7.97.  The findings of the US – Zeroing (Japan)  panel with respect to the existence of 
a rule or norm of general and prospective application were upheld in Appellate Body Report, US – Zeroing 
(Japan) , para. 88.  The findings of the US – Stainless Steel (Mexico) panel on the issue were not appealed.  
161 United States' second written submission, paras. 17-20. 
162 Viet Nam's response to Panel question 54B. 
163 We refer in this regard to the reports of the panels and the Appellate Body in US – Zeroing (EC)  and 
US – Zeroing (Japan) , and the report of the panel in US – Stainless Steel (Mexico) .  To be clear, we consider 
these findings relevant to determine the legal framework that we must apply in examining Viet Nam's factual 
assertions and claims;  however, we do  not consider that the factual findings of these prior panels and the 
Appellate Body alleviate Viet Nam's burden of establishing, before us, that the U.S. zeroing methodology is a 
norm of general and prospective application. 
164 Panel Reports, US – Zeroing (Japan) , para. 7.52;  US – Stainless Steel (Mexico) , paras. 7.40, 7.95.  WT/DS404/R 
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 expert opinions, statements by the authorities con cerned, or other evidence which indirectly supports 
the view that the application by the authorities of the methodology at issue reflects a "deliberate 
policy".165 
7.113  We now turn to consider the eviden ce placed on our record by Viet Nam.166  In this respect, 
we first note Viet Nam's reliance on the USDOC's use of zeroing in each of the anti-dumping 
proceedings undertaken pursuant to the Shrimp  order.  Evidence submitted by Viet Nam – the 
accuracy of which is not contested by the United States – demonstrates that the USDOC applied 
"simple zeroing" not only in the second and third administrative reviews, but also in each of the 
additional administrative reviews conducted under the Shrimp  order.167   
7.114  Viet Nam also submits to the Panel evidence to  the effect that the USDOC applies zeroing in 
all anti-dumping proceedings where it is required to ca lculate a margin of dumping.  In particular, the 
Ferrier affidavit submitted by Viet Nam includes a general overview of th e standard programming 
used by the USDOC, which indicates that the USDOC uses a standard computer programme in 
calculating margins of dumping, and that the USDOC consistently includes instructions to disregard 
negative comparison results in this programme.168  We note that the United States objects that the 
                                                      
165 Our evaluation of the evidence before us is guided by the Appellate Body's indication that panels 
should engage in a cumulative evaluation of the evidence. The Appellate Body stated that a panel has a duty, 
under Article 11, "to evaluate evidence in its totality, by which we mean the duty to weigh collectively all of the 
evidence and in relation to each other, even if no piece of evidence is by itsel f determinative of an asserted fact 
or claim".  (Appellate Body Report, US – Continued Zeroing , para. 336). 
166 We note that Viet Nam invites us to take judicial notice of the findings of prior panels and of the 
Appellate Body as to the existence and WTO-inconsistency of the U.S. "zeroing methodology", in particular 
those in US – Zeroing (Japan)  and US – Stainless Steel (Mexico) , in which the U.S. zeroing methodology, as it 
relates to the use of the weighted-average-to-transaction comparison method ("simple zeroing") in periodic 
reviews was found to be WTO-inconsistent. (Viet Nam' s second written submission, para. 19;  Viet Nam's 
response to Panel question 11).  Viet Nam argues that we should apply an approach similar to that of the panels 
in US – Shrimp (Ecuador)  and US – Anti-Dumping Measures on PET Bags .  We note, though, that while the 
complainants in these disputes were allowed to rely on  prior legal findings regarding the WTO-inconsistency of 
an identical measure in an earlier proceeding, the comp lainants were not dispensed from establishing, as a 
matter of fact, the existence of that measure.  In addition, we note that the Appellate Body has cautioned, in 
US – Continued Zeroing , that findings of facts in one dispute are not binding in another dispute. (Appellate 
Body Report, US – Continued Zeroing , para. 190).   
167 Viet Nam refers us to the Issues and Decision Me moranda in each of the four administrative reviews 
completed under the Shrimp  order.  In each of these Memoranda, the USDOC states that it does not, in the 
review at issue, allow the amount by which the price exceeds normal value in  certain transactions to offset the 
amount of dumping found in respect of other transactions.  (Issues and Decision Memorandum for the Final 
Determination in the First Administrative Review, Exhibit Viet Nam-11, p. 15;  Issues and Decision 
Memorandum for the Final Determination in the Second Administrative Review, Exhibit Viet Nam-15, p. 14;  
Issues and Decision Memorandum for the Final Determination in the Third Administrative Review, Exhibit 
Viet Nam-19, p. 13;  Issues and Decision Memorandum for the Final Determination in the Fourth 
Administrative Review, Exhibit Viet Nam-23, p. 35;  al l are quoted in Viet Nam's first written submission, 
para. 47).  In addition, Viet Nam also provides com puter programme outputs and logs of the USDOC's dumping 
margin calculations for individually examined respondents in  the administrative reviews at  issue.  In addition to 
the logs and outputs discussed above, paras. 7.77-7.78, pertaining to the USDOC's calculations in the second 
and third administrative reviews, Viet Nam also provides the logs and outputs for individual respondents in the 
fourth administrative review.  (Viet Nam's first written submission, para. 48, referring to Computer Programme 
Log with respect Minh Phu in the Fourth Administrative Review, Exhibit Viet Nam-41;  Computer Programme 
Output with respect to Minh Phu in the Fourth Administrative Review, Exhibit Viet Nam-49;  Computer 
Programme Log with respect Nha Trang in the Fourth Administrative Review, Exhibit Viet Nam-69;  Computer 
Programme Output with respect to Nha Trang in the F ourth Administrative Review, Exhibit Viet Nam-70).   
168 See Exhibit Viet Nam-33, paras. 6-7: 
"The structure and language of the computer programming the USDOC uses to derive the 
overall weighted-average dumping margin are basically the same in an original investigation WT/DS404/R 
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 Ferrier affidavit "does not even purport to be an 'expert opinion' demonstrating the existence of the 
'zeroing methodology' as a measure of general a nd prospective application attributable to the 
United States", but that, rather, "it is, as stated in paragraph 8 thereof, merely an analysis of 'the 
USDOC's computer programs used to determine the antidumping duty margins ... in the original 
investigation and the second, third, and fourth administrative reviews".169  We are not persuaded by 
the United States' argument.  In our view, the prec ise purpose for which the affidavit was prepared has 
no bearing on the probative value of Mr. Ferrier's evidence.170  Thus, even though the Ferrier affidavit 
may have been prepared with a focu s on the application of zeroing in the Shrimp  proceedings, we 
have identified extracts from the affidavit that addr ess the standard programme  generally used by the 
USDOC, and therefore the use of zeroing in the calculation of margins of dumping more generally.171  
We note that the United States has not contested the accuracy of Mr. Ferrier's statement with respect 
to the standard programme generally used by the USDOC.172   
7.115  Significant evidence of the general and prospec tive nature of the zeroing methodology is also 
found in a number of statements made by the USDOC in the Issues and Decision Memoranda accompanying the final determinations in the four completed administrative reviews of the Shrimp  
order.  We consider that these statements demonstr ate that the USDOC maintains a practice of zeroing 
in administrative reviews, going beyond the simple  application of zeroing in individual instances, and 
that this practice reflects a deliberate policy.  For instance, the Issues and Decision Memorandum 
accompanying the USDOC's final determination in the second administrative review states that, 
outside the context of weighted-average-to-weighted -average comparisons in original investigations, 
the USDOC interprets the definition of "dumping ma rgin" in the U.S. anti-dumping statute to mean 
that: 
"a dumping margin exists only when nor mal value is greater than export or 
constructed export price. As no dumping ma rgins exist with respect to sales where 
normal value is equal to or less than export or constructed export price, the 
Department will not permit these non-dumped sales to offset the amount of dumping 
found with respect to other sales."
173 
                                                                                                                                                                     
and administrative reviews, although minor differences in language occur.  These differences 
do not, however, affect the language and procedures used to implement what is commonly 
referred to as 'zeroing'. 
The programming language addresses many aspects of the dumping margin calculation. The 
manner and order in which procedures and calculations are executed by the USDOC's 
programs are intrinsically linked to the U.S.  antidumping laws and the USDOC's policies 
interpreting those laws. The USDOC cannot alter the structure of key components of the 
calculation procedures in the standard computer programs without risking violating its laws or 
changing its policies interpreting those laws." 
169 United States' response to Panel question 54(i), para. 6.  The United States makes a similar 
argument in para. 17 of its second written submission. 
170 We note that the Appellate Body has indicated in the past that panels are entitled to examine all 
evidence placed on the record before them, including evidence submitted by the defending party, regardless of 
the purpose of the party introducing the evidence.  See Appellate Body Report, Korea – Dairy , paras. 136-137.  
In Korea – Dairy , the Appellate Body rejected an argument of  Korea that the panel in that dispute had 
impermissibly relied on evidence submitted by Korea, for a purpose other than that for which Korea had 
submitted the evidence, and used it to reach conclusions contrary to Korea's interests. 
171 Affidavit by Michael Ferrier, Exhibit Viet Nam-33, paras. 6-7, cited supra  footnote 168. 
172 To be clear, we do not view any line of computer code as a practice or methodology in itself, but 
consider that the consistent presence  of a line of computer code to discard negative comparison results can be 
regarded as manifestation of a zeroing practice maintained by the USDOC. 
173 Issues and Decision Memorandum for the Fi nal Determination in the Second Administrative 
Review, Exhibit Viet Nam-15, p. 13.  WT/DS404/R 
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 7.116  The Memorandum adds that the U.S. Court of A ppeals for the Federal Ci rcuit "has held that 
this is a reasonable interpretation of the stat ute".  The abovementioned Issues and Decision 
Memorandum further explains, in reaction to argume nts by Vietnamese interested parties citing to 
WTO precedents finding that the zeroing methodolog y employed by the USDOC in periodic reviews 
is WTO-inconsistent, that WTO reports are without effect under U.S. law,  unless and until they have 
been adopted pursuant to the specified U.S. statut ory scheme.  The Memorandum further provides that 
"[w]hile the Department has modified its calcula tion of weighted-average dumping margins when 
using average-to-average comparis ons in antidumping investigations, the Department has not adopted 
any other modifications concerning any other me thodology or type of proceeding, such as 
administrative reviews."  The USDOC then concludes that, consistent with its interpretation of the 
U.S. anti-dumping statute, the USDOC continued to "deny offsets" in its final determination in the 
periodic review at issue.174  Similar statements appear in the Issues and Decision Memoranda 
accompanying the USDOC's final determinations in  each of the other administrative reviews under 
the Shrimp  order.175 
7.117  In our view, the import of these statements extends beyond the administrative reviews of the 
Shrimp  order.  The general references to  interpretation of the applicable statute, and the calculation of 
margins of dumping under that statute, indicate th at whenever the USDOC calculates a margin of 
dumping in the context of administrative reviews, the USDOC will never allow non-dumped sales to 
offset the amount of dumping with respect to othe r sales.  In other words, the USDOC will always 
apply zeroing. 
7.118  We recall the Appellate Body's indication that a panel should not lightly assume the existence 
of a rule or norm constituting a measure of general and prospective application, particularly where the 
rule or norm at issue is not expressed in writte n form, and that a complaining party making a 
challenge against such a measure "must clearly  establish" (our emphasis), inter alia , that the alleged 
"rule or norm" does have general and prospective application.176  The Appellate Body itself has 
indicated that the complaining party bringing such a challenge faces a "high threshold".177   
7.119  In our view, the evidence put forward by Viet Nam meets the "high threshold" referred to by 
the Appellate Body in US – Zeroing (EC) .  This evidence in our view demonstrates that the USDOC's 
application of zeroing in administrative reviews ex tends well beyond the mere repetition of a practice 
in specific cases and rather substantiates Viet Nam' s allegation that the USDOC maintains a deliberate 
policy to this effect. 
                                                      
174 Issues and Decision Memorandum for the Fi nal Determination in the Second Administrative 
Review, Exhibit Viet Nam-15, pp. 13-14. 
175 See Issues and Decision Memorandum for the Final Determination in the First Administrative 
Review, Exhibit Viet Nam-11, p. 16, wh ich states that "[b]ecause no change has yet been made with respect to 
the issue of 'zeroing' in administrative reviews, the Department has continued with its current approach to 
calculating and assessing antidumping duties in this administrative review";  Issues and Decision Memorandum 
for the Final Determination in the Third Administrative Re view, Exhibit Viet Nam 19, pp. 12-13, cited in part in 
Viet Nam's first written submission, para. 49;  Issues and Decision Memorandum for the Final Determination in 
the Fourth Administrative Review, Exhibit Viet Na m-23, pp. 33-35.  See al so Issues and Decision 
Memorandum for the Final Determination in the Original Investigation, Exhibit Viet Nam-06, p. 11, which 
primarily pertains to the USDOC zeroing "methodology" as it applies to original investigations, but in which the 
USDOC nevertheless mentions the application of that methodology in the context of administrative reviews 
("... in the context of an administrative review, the Fe deral Circuit has affirmed the Department's statutory 
interpretation which underlies this methodology as reasonable.").  Although only the second and third 
administrative reviews are "measures at issue" upon which we must pronounce, documents issued by the 
USDOC in other proceedings under the Shrimp  order may serve as evidence of Viet Nam's factual assertions 
concerning the existence of the alleged "zeroing methodology". 
176 Appellate Body Report, US – Zeroing (EC) , para. 198, cited supra  para. 7.110. 
177 Appellate Body Report, US – Zeroing (EC) , para. 198, cited supra  para. 7.110. WT/DS404/R 
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 7.120  Mindful of the rules governing the allocation of the burden of proof and of the Appellate 
Body's indication that panels should exercise partic ular care in examining the evidence supporting the 
existence of an unwritten norm, we  nevertheless expressly sought the view of the United States on the 
evidence before us.178  Although we provided the United States with an opportunity to identify any 
evidence that might rebut the evidence submitted by Viet Nam in support of its claim that the USDOC 
zeroing methodology is a rule or norm of general and prospective application, the United States 
declined to put forward any such evidence.179  This being the case, we conclude that Viet Nam has 
established that the U.S. zeroing methodology is a norm which may be challenged "as such." 
7.121  We emphasize that we reach this conclusion so lely on the basis of th e evidence placed before 
us.  We note, however, that our conclusion as to the f acts before us is consistent with that reached by 
panels and the Appellate Body in prior decisions in which they have found that the United States 
maintains a norm of general and pr ospective application by virtue of which it applies the zeroing 
methodology in performing dumping margins calcula tions, notably in the context of using the 
weighted-average-to-transaction methodology in periodic reviews.180 
                                                      
178 We are, in particular, guided by the Appellate B ody's indication that "[p]articular rigour is required 
on the part of a panel to support a conclusion as  to the existence of a 'rule or norm' that is not expressed in the 
form of a written document" and that, "[a] panel must carefully examine the concre te instrumentalities that 
evidence the existence of  the purported 'rule or norm' in order to conclude that such 'rule or norm' can be 
challenged, as such". Appellate Body Report, US – Zeroing (EC) , para. 198.  (emphasis original) 
179 We asked the United States "What evidence is ther e on the record that mi ght support a conclusion 
that there is not a systematic application of zeroing in administrative reviews?"  (Panel question 54(iii)).  The 
United States answered that "Vietnam has the burden to offer evidence sufficient to substantiate its claim,  and 
Vietnam has failed to put forward the requisite evidence to support an as such claim wi th respect to the so-called 
'zeroing methodology.'"  The United States also argued that  it is insufficient for Viet Nam to rely on the facts, 
rationale, and findings in other disputes and that the evidence presented by Viet Nam "falls far short of the 
evidence as described by the Appellate Body in US – Zeroing (EC)  and US – Zeroing (Japan) ."  The 
United States also argued that the ev idence before the Panel does not es tablish a "systematic application of 
zeroing in administrative reviews." 
We also asked the following question to the United Stat es:  "If the Panel were to find that Viet Nam has 
discharged its initial burden of establishing that the 'zeroing methodology' constitutes a rule or norm that may be 
challenged 'as such', the onus would shift to the United Stat es to refute the existence of that measure.  What 
evidence would the United States rely on to do so?" (Panel  question 54 (iv)).  The Unite d States answered that:   
"The U.S. response would depend upon how Vietnam established that the 'zeroing 
methodology' constitutes a rule or norm that may be challenged 'as such.'  Because Vietnam 
has not done so in this dispute, it is unclear how the United States would refute the existence 
of such a measure or norm, and we are not in  a position to speculate on our response to 
evidence that Vietnam has no t presented to the Panel. 
Hypothetically, if the Panel were to determine that Vietnam has discharged its initial burden 
of establishing that the 'zeroing methodology' constitutes a rule or norm that may be 
challenged 'as such,' the United States could respond, for example, by supplying evidence that 
calls into question whether Vietnam's evidence in fact supports that conclusion." 
The rest of the United States' answer concerns th e WTO-consistency of the zeroing methodology, in 
the event that the Panel found th at Viet Nam has established the existence of that measure.  
180 Because we are of the view that  the evidence discussed above suffi ces to meet the criteria set forth 
by the Appellate Body in US – Zeroing (EC) , we need not consider the other evidence cited by Viet Nam, in 
particular the USDOC's Anti-Dumping Manua l.  In any event, we agree with th e United States that on their face, 
the chapters of the USDOC Anti-Dumping Manual subm itted by Viet Nam relate only to the USDOC's NME 
methodology and to sunset reviews (United States' response to Panel question 54(iii)).  For the same reason, we 
need not decide whether Exhibit Vi et Nam-74, a recent Notice issued by  the USDOC seeking comments from 
interested parties on a proposed rule change, is admissible evidence, given its late submission by Viet Nam 
(USDOC, "Antidumping Pr oceedings:  Calculation of the Weighted  Average Dumping Margin and Assessment 
Rate in Certain Antidumping Duty Proceedings " (28 December 2010), Exhibit Viet Nam-74).  WT/DS404/R 
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 7.122  In light of the foregoing, we uphold Viet Nam's arguments that the U.S. zeroing methodology 
has general and prospective application.  Since, as indicated above, we are satisfied that Viet Nam has 
established the content of that rule or norm and th at it may be attributed to the United States, we 
conclude that Viet Nam has properly establishe d the existence of the zeroing methodology as a 
measure that may be challenged "as such."  We now turn to Viet Nam's claim that the zeroing 
methodology measure is as such WTO-inconsistent.  
(c) Whether the zeroing methodology is inconsis tent, as such, with Article 9.3 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994 
7.123  Viet Nam claims that the USDOC's zeroing methodology is, as such, inconsistent with 
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT.181 
7.124    The United States asks us to reject Viet Nam's claims. 
(i) Main arguments of the parties 
 Viet Nam 
7.125  Viet Nam argues that the Appellate Body h as repeatedly found zeroing in administrative 
reviews to be inconsistent w ith the Anti-Dumping Agreement.182  In particular, Viet Nam notes, the 
Appellate Body twice held that the precise zeroing methodology at issue in this dispute is 
inconsistent, as such, with Articles 9.3 of the Anti-Dumping Agreement and VI:2 of the 
GATT 1994.183  Viet Nam considers that the findings of the Appellate Body in previous disputes are 
determinative in this dispute and that  the Panel should follow these precedents.184  Viet Nam submits 
that while recognizing the need to reach decisions on a dispute-specific basis, the Appellate Body has 
made clear that following its decisions in prior disputes "is not only appropriate, but is what would be 
expected from panels, especially where the issues are the same".185  Viet Nam further argues that 
Article 3.2 of the DSU requires security and predic tability in the dispute settlement process and that 
refusing to recognize prior determinations involving id entical factual situations would frustrate these 
goals.186 
7.126  Relying on these precedents, Viet Nam argues th at Articles VI of the GATT 1994 and 2.1 of 
the Anti-Dumping Agreement both define "dumping" and "margin of dumping" with regard to the 
product under investigation as a whole, and not in rela tion to models or categories that are subsets of 
the product. Viet Nam considers that the U.S. zeroing methodology does not produce a margin of 
dumping based on all intermediate comparisons and th erefore fails to calculate a margin of dumping 
for the product as a whole.  Viet Nam further argues that the arguments raised by the United States in 
this dispute – that dumping may be found at the i ndividual, transaction level and that a margin of 
dumping need not be calculated for the product as a w hole, have been repeatedly rejected by the 
                                                      
181 Viet Nam's second written submission, paras. 17-21  and 144(2);  Viet Nam's opening oral statement 
at the second meeting of the Panel, para. 59(2).  
182 Viet Nam's first written submission, paras. 11 5-120, 151-157 and Viet Nam's second written 
submission, para. 11 (referring to Appellate Body Reports in US – Zeroing (EC) , para. 133;  US – Zeroing 
(Japan) , para. 176, US – Stainless Steel (Mexico) , para. 139;  US – Continued Zeroing , para. 316;  US – Zeroing 
(Japan) (Article 21.5 – Japan) , paras. 195 and 197). 
183 Viet Nam's second written submission, paras. 11  and 19 (referring to Appellate Body Report, US – 
Zeroing (Japan) , paras. 166, 169;  and Appellate Body Report, US – Stainless Steel (Mexico) , paras. 133-136). 
184 Viet Nam's second written submission, para. 20;  Viet Nam response to Panel question 55.   
185 Viet Nam's first written submission, para. 119 (citing Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 188). 
186 Viet Nam's opening oral stat ement at the second meeting of the Panel, paras. 11, 57. WT/DS404/R 
Page 44 
 
 
 Appellate Body.187  Viet Nam recalls that Article 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994 explicitly provide that margins of dumping may not be greater than 
the margin of dumping for the product as a whole.  This, Viet Nam argues, means that where the 
administering authority makes use of multiple comparis ons at an intermediate stage, it must aggregate 
the results of all intermediate comparisons, in cluding negative comparison results, for purposes of 
calculating the margin of dumping.  Viet Nam argues that by systematically disregarding negative 
comparison results, the USDOC's simple zeroing practice necessarily results in dumping margins that 
are greater than the margins for the product as a whole.188 
 United States 
7.127  The United States argues that the text of the Anti-Dumping Agreement, interpreted in 
accordance with the customary rul es of interpretation, does not support a general prohibition of 
zeroing that would apply in the context of assessme nt proceedings under Article of the 9.3 of the 
Anti-Dumping Agreement and that at a mini mum, the USDOC's methodology to calculate 
anti-dumping duties in administrative reviews rests on a permissible interpretation of the Anti-Dumping Agreement under Article 17.6(ii) of the Agreement.
189   
7.128  Specifically, the United States argues that Viet Nam's claims depend on interpreting the terms 
"margins of dumping" and "dumping" as relating exclusively to the "product as a whole".  The United States argues that there is no basis in Ar ticle VI of the GATT 1994 or in the Anti-Dumping 
Agreement for such a proposition.  The United States argues that "dumping" as defined under 
Article 2.1 of the Anti-Dumping Agreem ent is a transaction-specific concept.
190  The United States 
further argues that the obligation set forth in Ar ticle 9.3 – to assess no more in anti-dumping duties 
than the margin of dumping – is similarly applicable  at the level of individual transactions.  The 
United States notes that in Viet Nam's view, a Member breaches Article 9.3 and Article VI:2 of the GATT by failing to provide offsets, because Memb ers are required to calculate dumping margins on 
an exporter-specific basis for the "product as a whole" and, consequently, a Member is required to 
aggregate the results of all "intermediate comparis on results".  The United States argues that so long 
as the margin of dumping is understood to apply at the level of individual transactions there is no 
tension between the exporter-specific concept of dumping as a prici ng behaviour and the 
importer-specific remedy of payment of anti-dumping duties.  The United States adds that it is only 
when an obligation to aggregate transactions under Article 9.3 is improperly inferred that any 
perception of conflict arises.
191   
7.129   The United States invites the Panel to make an  objective assessment of the matter before it, 
reach the same conclusion as the panels in US – Zeroing (EC) , US – Zeroing (Japan) , and US – 
                                                      
187 Viet Nam's second written submission, paras. 40-47 (referring to Appellate Body Report, US – 
Softwood Lumber V , para. 93;  Appellate Body Report, US – Stainless Steel (Mexico) , paras. 99, 106;  Appellate 
Body Report, US – Zeroing (Japan) , para. 115;  Appellate Body Report, US – Zeroing (EC) , paras. 127, 132;  
Appellate Body Report, US – Continued Zeroing , para. 283).  While this is not totally clear from Viet Nam's 
submissions, we understand Viet Nam to make these arguments not only with respect to its "as applied" claims, 
but also with respect to "as such" claims.  See also Viet Nam's first written submission, paras. 121-128. 
188 Viet Nam's first written submission, paras. 144- 157 (referring to Appellate Body Reports on US – 
Zeroing (EC) , US – Zeroing (Japan) , US – Stainless Steel (Mexico) , US – Continued Zeroing , US – Zeroing 
(Japan) (Article 21.5 - Japan) ). 
189 United States' first written submission, paras. 110-116;  United States' second written submission, 
para. 13.  In para. 13 of its second written submission, th e United States incorporates by reference its arguments 
in paras. 110-138 of its first written submission, which it made in response to Viet Nam's "as applied" claim.  
We therefore reproduce these argum ents here and take them into consideration in our analysis. 
190 United States' first written submission, paras. 117-123;  United States' second written submission,  
paras. 51-53. 
191 United States' first written submission, paras. 117-138.  WT/DS404/R 
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 Stainless Steel (Mexico) , which agreed with the interpretation it puts forward, and reject Viet Nam's 
claims.192   
(ii) Main arguments of the third parties 
7.130  Every one of the third parties that commented on Viet Nam's claims under Article 9.3 of the 
Anti-Dumping Agreement and Article VI:2 of th e GATT 1994 – China, European Union, India, 
Japan, Korea, and Mexico – supports Viet Nam's arguments and invites the Panel to follow the 
reasoning of the Appellate Body in prior disputes in which it has found zeroing in periodic reviews to 
be inconsistent with these provisions.193 
(iii) Evaluation by the Panel 
7.131  Viet Nam's claim against the zeroing methodology, as such, is based on Article 9.3 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.  Article 9.3 of the Anti-Dumping Agreement reads:   
"The amount of the anti-dumping duty shall not exceed the margin of dumping as 
established under Article 2." 
7.132  Article VI:2 of the GATT 1994 provides: 
"In order to offset or prevent dumping, a contracting party may levy on any dumped 
product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product.  For the purposes of this Article, the margin of dumping is 
the price difference determined in accorda nce with the provisions of paragraph 1." 
7.133  Although formulated differently, Article 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994 impose similar obliga tions.  Both provide that the amount of the 
anti-dumping duty shall not exceed the margin of dumping. 
7.134  The parties' arguments regarding the WTO-cons istency of the U.S. zeroing methodology raise 
a number of important issues of treaty interpretation,  the most fundamental of which is whether the 
"margin of dumping" referred to under Articles 9.3 a nd VI:2 must be calculated for the "product as a 
whole", and in respect of an exporter (Viet Na m's position), or whether it may be calculated on a 
transaction-specific basis (the United States' position).  These issues raised by Viet Nam's claims are, 
however, not novel.  The Appellate Body has had the opportunity to consider these issues of interpretation in several prior WT O dispute settlement proceedings. 
7.135  In these prior cases, the Appellate Body has consiste ntly held that "dumping", as this term is 
defined under the Anti-Dumping Agreement and un der Article VI:1 of the GATT 1994, necessarily 
relates to the product under  consideration as a whole, and not to individual export transactions.  
Consequently, the Appellate Body has found that the "margin of dumping" must necessarily be 
determined on the basis of all export transactions of  a given exporter.  Thus, if the investigating 
authority conducts multiple comparisons for individu al transactions or for groups of transactions, it 
must aggregate the results of all such intermed iate comparisons, including those where the export 
                                                      
192 United States' first written submission, paras. 115- 116;  United States' opening oral statement at the 
first meeting of the Panel, paras. 28-31. 
193 China's third-party oral statement, pp. 2-3 (thi s statement contains no paragraph numbering);  
European Union's third-party written submission, paras. 6-168;  European Union's third-party oral statement, 
paras. 2-7;  India's third-party oral statement, para s. 1-2 and 8-12;  Japan's third-party written submission, 
paras. 8-50;  Japan's third-party oral statement, para. 2;  Korea's third-party written submission, paras. 9-16;  
Korea's third-party oral statement,  paras. 5-9;  Mexico's third-party written submission, paras. 4-29. WT/DS404/R 
Page 46 
 
 
 price exceeds the normal value".194  Related to this, the Appellate Body has consistently held that 
dumping necessarily is an exporter-specific concept.195  Thus, the Appellate Body has indicated that 
dumping can only be determined for the exporte r, and in connection with the product under 
consideration as a whole, rather than on a transaction-specific basis.   
7.136  The Appellate Body has found that these defin itions of "dumping" and of the "margin of 
dumping" apply throughout the Agreement, including un der Article 9.3, and under Article VI:2 of the 
GATT 1994.  Therefore, the Appellate Body has r easoned, the "margin of dumping" calculated in 
accordance with Article 2 – in relation to the ex porter, and in connecti on with the product under 
consideration as a whole –  operates as a ceiling for the total amount of anti-dumping duties that can 
be levied on the entries of the subject merchandise  from that exporter.  Thus, if the investigating 
authority chooses to undertake multiple comparisons at an  intermediate stage, it is not allowed to take 
into account the results of only some of these comparisons, while disregarding others.196   
7.137  On this basis, the Appellate Body has found that "simple zeroing" in periodic reviews – as it 
is applied by the USDOC – is inconsistent with Article 9.3 of the Anti-Dumping Agreement and with 
Article VI:2 of the GATT 1994.  The Appellate Body has held that zeroing results in the levy of an 
amount of anti-dumping duty that exceeds an exporte r's margin of dumping.  This, the Appellate 
Body has explained, is because when the USDOC applies simple zeroing in periodic reviews, the 
USDOC compares the prices of individual export transactions against monthly weighted average 
normal values, and disregards the amounts by which the export prices exceed the monthly weighted 
average normal values when aggregating the results of the comparisons to calculate the cash deposit 
rate for the exporter and the duty assessment rate for the importer concerned.197  We note, however, 
that the Appellate Body has made it clear that its rulings with respect to zeroing in periodic reviews 
concern the amount of anti-dumping duty that can be levied in accordance with Article 9.3 of the 
Anti-Dumping Agreement, and not the issue of how th is amount is to be collected from the importers.  
Specifically, the Appellate Body has clarified that  the prohibition of simple zeroing in periodic 
reviews does not preclude Members from carrying out  an importer-specific inquiry to determine the 
duty liability, as long as the duty collected does not exceed the exporter-specific margin of dumping 
established for the product under consideration as a whole.198 
7.138  In the present dispute, the United States asser ts that the Anti-Dumping Agreement and the 
GATT 1994 do not prohibit zeroing in the context of peri odic reviews.  In particular, the United States 
argues that it is possible to interpret the terms or  concepts of "dumping" and "margin of dumping" as 
                                                      
194 Appellate Body Report, US – Softwood Lumber V , paras. 92-100;  US – Zeroing (EC) , para. 126;  
Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 122;  Appellate Body Report, 
US – Zeroing (Japan) , paras. 108-110, 115, 151;  Appellate Body Report, US – Stainless Steel (Mexico) , 
paras. 97-99;  Appellate Body Report, US – Continued Zeroing , paras. 276-287. 
195 Appellate Body Report, US – Zeroing (EC) , paras. 128-129;  Appellate Body Report, US – Zeroing 
(Japan) , paras. 111-112, 150;  Appellate Body Report, US – Stainless Steel (Mexico) , paras. 83-95;  Appellate 
Body Report, US – Continued Zeroing , paras. 282-283.   
196 Appellate Body Report, US – Zeroing (EC) , para. 130;  Appellate Body Report, US – Zeroing 
(Japan) , paras. 155-156;  Appellate Body Report, US – Stainless Steel (Mexico) , para. 96;  Appellate Body 
Report, US – Continued Zeroing , paras. 286-287, 314.   
197 Appellate Body Report, US – Zeroing (EC) , paras. 132-135;  Appellate Body Report, US – Zeroing 
(Japan) , paras. 155, 166;  Appellate Body Report, US – Stainless Steel (Mexico) , paras. 133-139;  Appellate 
Body Report, US – Continued Zeroing , paras. 315-316.  The Appellate Body has also noted that if zeroing in 
periodic reviews were allowed under Article 9.3 of the Anti-Dumping Agreement, this would allow Members to 
circumvent the prohibition under Article 2.4.2 on zeroing in original investigations.  (See, e.g. Appellate Body 
Report, US – Stainless Steel (Mexico) , para. 109). 
198 Appellate Body Report, US – Zeroing (EC) , para. 131; Appellate Body Report, US – Zeroing 
(Japan) , para. 156;  Appellate Body Report, US – Stainless Steel (Mexico) , paras. 111-114;  Appellate Body 
Report, US – Continued Zeroing , para. 291.  WT/DS404/R 
 Page 47 
 
 
 referring not only to the product as a whole, but also to specific export transactions.  The 
United States also rejects the notion that dumping is necessarily an exporter-specific concept, and 
argues that dumping may also be determined for individual importers.  While we have carefully 
reviewed and considered these arguments of the Un ited States, we note that the Appellate Body has 
considered, and rejected, these very same arguments in prior dispute settlement proceedings.  Indeed, 
in two such prior cases – US – Zeroing (Japan)  and US – Stainless Steel (Mexico)  – the Appellate 
Body found that zeroing in the context of admini strative reviews is, as such, inconsistent with 
Article 9.3 of the Anti-Dumping Agreem ent and Article VI:2 of the GATT 1994.199 
7.139  In considering the merits of the parties'  arguments, and performing our own objective 
assessment of the matter at hand, we are mindful of  the Appellate Body's view that "[f]ollowing the 
Appellate Body's conclusions in ear lier disputes is not only appropriate, it is what would be expected 
from panels, especially where the issues are the same" and that "[t]his is also in line with a key 
objective of the dispute settlement system to provi de security and predictability to the multilateral 
trading system."200 
7.140    We further recall that, in US – Stainless Steel (Mexico) , the Appellate Body considered that 
failure by the panel in that case to follow previ ously adopted Appellate Body reports addressing the 
same issues undermined the development of a c oherent and predictable body of jurisprudence 
clarifying Members' rights and obligations under the covered agreements as contemplated under the 
DSU.201  We also note the concurring opinion expressed in the Appellate Body Report in US – 
Continued Zeroing  that, on the question of zeroing, the A ppellate Body has spoken definitively, the 
Appellate Body's decisions have been adopted by  the DSB, and the membership of the WTO is 
entitled to rely upon these outcomes.202   
7.141  We recall that the findings of the Appellate Body in US – Zeroing (Japan)  and US – Stainless 
Steel (Mexico)  discussed above203 addressed the very same questi on which is now before us, i.e.  the 
consistency with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 of 
the zeroing methodology, as such, in the context of administrative reviews.  Following an objective 
assessment of the matter, and a thorough review of the abovementioned reasoning expressed by the 
Appellate Body, we agree with that reasoning and adopt it as our own.   
7.142  Based on the foregoing considerations, we find th at the U.S. zeroing methodology, as such, as 
it relates to the use of simple zeroing in periodic reviews, is inconsistent with the United States' 
obligations under Article 9.3 of the Anti-Dumpi ng Agreement and Article VI:2 of the GATT 1994. 
E. VIET NAM'S CLAIMS CONCERNING THE LIMITA TION OF THE NUMBER OF SELECTED 
RESPONDENTS  
1. Introduction 
7.143  Viet Nam makes a number of claims in relation to the limitation by the USDOC of the 
number of Vietnamese respondents for which it determined an individual dumping margin in the 
second and in the third administrative reviews.  Viet Nam requests that we find that: 
                                                      
199 Appellate Body Report, US – Zeroing (Japan) , para. 166;  Appellate Body Report, US – Stainless 
Steel (Mexico) , para. 134. 
200 Appellate Body Report, US – Continued Zeroing , para. 362. 
201 Appellate Body Report, US – Stainless Steel (Mexico) , para. 161. 
202 Appellate Body Report, US – Continued Zeroing , para. 312.  We note, however, that the Appellate 
Body has not had to pronounce itself on the consiste ncy with the Anti-Dumping Agreement and the GATT 1994 
of zeroing as applied in the context of the use of the weighted average-to-transaction methodology to address 
"targeted dumping" pursuant to the second senten ce of Article 2.4.2 of th e Anti-Dumping Agreement. 
203 Supra , para. 7.138. WT/DS404/R 
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 "The USDOC's determinations in the sec ond and third administrative reviews ... to 
limit the number of individually investigat ed respondents such that they restrict 
certain substantive rights under the Anti-Du mping Agreement is inconsistent with 
Articles 6.10, 6.10.2, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement"204 
7.144  Viet Nam's claims concern the USDOC's app lication of Articles 6.10 and 6.10.2 of the 
Anti-Dumping Agreement.  These Articles provide, in relevant part:   
"6.10 The authorities shall, as a rule, determ ine an individual margin of dumping for 
each known exporter or producer concerned of  the product under investigation.  In 
cases where the number of exporters, producers, importers or types of products 
involved is so large as to make such a determination impracticable, the authorities 
may limit their examination either to a reasonable number of interested parties or products by using samples which are statis tically valid on the basis of information 
available to the authorities at the time of the selection, or to the largest percentage of 
the volume of the exports from the country  in question which can reasonably be 
investigated. 
.... 
6.10.2 In cases where the authorities have limited their examination, as 
provided for in this paragraph, they shall nevertheless determine an 
individual margin of dumping for any exporter or producer not initially 
selected who submits the necessary inform ation in time for that information 
to be considered during the course of  the investigation, except where the 
number of exporters or producers is so large that individual examinations 
would be unduly burdensome to the authorities and prevent the timely completion of the investigation. Voluntary responses shall not be 
discouraged." 
7.145  Viet Nam also alleges a violation of Artic les 9.3, 11.1 and 11.3 of the Anti-Dumping 
Agreement.  Article 9.3 provides that: 
"The amount of the anti-dumping duty shall not exceed the margin of dumping as 
established under Article 2." 
7.146  Articles 11.1 and 11.3 provide that:   
"11.1 An anti-dumping duty shall remain in force only as long as and to the extent 
necessary to counteract dumping which is causing injury." 
"11.3 Notwithstanding the provisions of  paragraphs 1 and 2, any definitive 
anti-dumping duty shall be terminated on a da te not later than five years from its 
imposition (or from the date of the most recent review under paragraph 2 if that 
review has covered both dumping and injury , or under this paragraph),  unless the 
authorities determine, in a review initiated before that date on their own initiative or 
upon a duly substantiated request made by  or on behalf of the domestic industry 
within a reasonable period of time prior to that date, that the expiry of the duty would 
                                                      
204 Viet Nam's second written submission, para. 144(6);  Viet Nam's first written submission, para. 235.  
Viet Nam makes similar claims in respect of the "con tinued use of challenged practices" measure.  We have 
already determined that this measure is not within our terms of reference.   WT/DS404/R 
 Page 49 
 
 
 be likely to lead to continuation or recurrence of dumping and injury.205  The duty 
may remain in force pending the outcome of such a review." 
7.147  In each of the proceedings it conducted under the Shrimp  anti-dumping order, including in the 
second and third administrative reviews, the USDO C limited the number of Vietnamese respondents 
for which it determined an individual margin of dum ping.  In each instance, the USDOC determined 
that it was impracticable to exam ine all respondents for which an administrative review had been 
requested and determined to limit its examination to "...exporters and prod ucers accounting for the 
largest volume of the subject merchandise from the exporting country that can be reasonably examined".  In the second administrative review , the USDOC determined that it could reasonably 
investigate two Vietnamese exporters, accounting for 34  per cent of the total exports of exporters 
seeking individual review.
206  In the third administrative review, the USDOC selected three 
respondents for individual review.207  The USDOC explained its decision to limit the number of 
respondents with almost identical language in both  administrative reviews.  The USDOC considered 
that:   
"In selecting respondents for review, the Depa rtment carefully considers its resources 
including its current and anticipated work load and deadlines coinciding with the 
segment in question.  After careful cons ideration of our resources, we believe 
[conclude]208 that it would not be practicable in this review to examine all 
producers/exporters of the subject merchandi se for whom a review was requested [for 
which we have a request for review].  AD/CVD Operations Office 9, the office to 
which the administrative review is assigne d, does not have the resources to examine 
all such exporters/producers.  This o ffice is conducting numerous concurrent 
antidumping proceedings which place a constraint on the number of analysts that can be assigned to this case.  Not only do these other cases present a significant workload, 
but the deadlines for a number of the cases coin cide and/or overlap with deadlines in 
this antidumping proceeding.  In addition,  because of the significant workload 
throughout Import Administration, we do not anticipate receiving any additional 
resources to devote to this antidumping proceeding. 
Therefore, after careful consideration of our  resources, we believe that it would not be 
practicable in this administrative review to  examine all producers/exporters of subject 
merchandise for whom a review has been requested.  In light of our resource 
constraints, we believe it is practicable to  examine two [three] of these companies."
209  
7.148  Of relevance to Viet Nam's claims, U.S. law provides an opportunity for individual exporters 
or producers to seek revocation of the anti-dumping orde r on an individual basis.  The relevant U.S. 
regulations, 19 C.F.R. §351.222, provide that in  making a determination whether to revoke an anti-
                                                      
205 When the amount of the anti-dumping duty is assessed on a retrospective basis, a finding in the most 
recent assessment proceeding under subpar agraph 3.1 of Article 9 that no duty is  to be levied shall not by itself 
require the authorities to terminate the definitive duty. (original footnote) 
206 Exhibit Viet Nam-13, Respondent Selection Memorandum in the Second Administrative Review.  
207 Exhibit Viet Nam-17, Respondent Selection Memorandum in the Third Administrative Review.  
The USDOC's Respondent Selection Memorandum in the Third Administrative Review does not indicate what 
percentage of Viet Nam's exports of shrimp to the United States, or of the exports of respondents seeking 
review, these three resp ondents accounted for. 
208 The underlined text is that of the Respondent Selection Memorandum in the Second Administrative 
Review;  the text in square brackets is that of the Respondent Selection Memorandum in the Third 
Administrative Review. 
209 Respondent Selection Memo in the Second Administrative Review, Exhibit Viet Nam-13, pp. 3-4, 
quoted in Viet Nam's first written submission, para. 238; and Respondent Selection Memo in the Third 
Administrative Review, Exhibit Viet Nam-17, pp. 2-3. WT/DS404/R 
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 dumping order in part, the USDOC is to take into account, inter alia , whether the exporter or producer 
concerned has sold the product under considerati on at undumped prices for at least three consecutive 
years.210  In the proceedings at issue, certain Vietnamese exporters sought company-specific 
revocations of the anti-dumping order.  In their requests for revocation, certain of these companies 
requested that the USDOC assign them an individu al margin of dumping.  More details on these 
requests are provided below.  
7.149  Also of relevance to Viet Na m's claims is the fact that  the USDOC, when conducting its 
likelihood-of-dumping determination in the context of  a sunset review, takes into consideration the 
margins of dumping established in the original  investigation and in administrative reviews.211 
7.150  Viet Nam challenges two aspects of the USDOC's actions in the determinations at issue:  
First, Viet Nam considers that the USDOC applied Article 6.10 in a manner that deprived Vietnamese 
respondents of substantive rights under Article 6.10 it self and under Articles 9.3, 11.1 and 11.3 of the 
Anti-Dumping Agreement.  Second, Viet Nam argu es that the USDOC acted inconsistently with 
Article 6.10.2 of the Anti-Dumping Agreement by discouraging Vietnamese exporters from 
submitting voluntary responses, and by refusing to consider such voluntary responses when they were 
made.  We consider each in turn.  
2. Viet Nam claims under Articles 6.10, 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement 
(a) Introduction 
7.151  We first consider Viet Nam's claims unde r Articles 6.10, 9.3, 11.1 and 11.3 of the 
Anti-Dumping Agreement.   
7.152  Viet Nam claims that the USDOC applied the limited examination exception provided for in 
Article 6.10 in a manner that deprived Vietnamese exporters and producers of substantive rights (that 
depend on the existence of individual margins) under Articles 6.10212, 9.3, 11.1 and 11.3 of the 
Anti-Dumping Agreement.213   
7.153  The United States asks us to reject Viet Nam's claims. 
(b) Main arguments of the parties 
(i) Viet Nam 
7.154  Viet Nam argues that the USDOC has effectively turned the general rule in the first sentence 
of Article 6.10 (i.e. that an individual margin shoul d be determined for each exporter/producer) into 
an exception, and the exception under the same provision into a general rule.214  According to 
Viet Nam, the USDOC's repeated use of limited ex aminations renders the individual margin rule 
provided for in the first sentence of Article 6.10, and additional requirements in Articles 9.3, 11.1 
                                                      
210 19 C.F.R. § 351.222, "Revocation of orders;  termination of suspended investigations", Exhibit 
Viet Nam-56. 
211 See, supra  para. 7.13. 
212 Viet Nam at times includes, and at other times, omits, Article 6.10 itself from the list of provisions, 
or rights or principles which the USDOC's application of the Article 6.10 exception infringes upon.   
213 Viet Nam's second written submission, para. 119. 
214 Viet Nam's first written submissi on, paras. 238, 255.  Viet Nam argues that the USDOC applies the 
exception provided for under Article 6.10 as a rule, and vice versa , not only in the Shrimp  proceeding, but in 
virtually every other recent investigation or review.  Vi et Nam's first written submission, para. 269 (referring to 
Exhibit Viet Nam-65, List of Ten Most Recently Co mpleted USDOC Administrative Review Results (as of 
12 August 2010)).  WT/DS404/R 
 Page 51 
 
 
 and 11.3 that are dependent on the existence of indi vidual margins, meaningless.  Viet Nam contends 
that an authority cannot use the exception provided in  Article 6.10 to avoid that authority's obligations 
under other provisions of the Agreement. 
7.155  With respect to Article 9.3, Viet Nam argu es that the USDOC's refusal to individually 
examine certain respondents means that the USDOC fa ils to ensure that the amount of duties assessed 
on these respondents does not exceed their margin of dumping.215  Viet Nam interprets Article 11.1 as 
providing a self-standing right for an individual exporter/producer to obtain a company-specific 
revocation of the order upon a showing that it has ceased dumping.  Viet Nam argues that non-selected Vietnamese respondents are prevented fro m exercising their rights under this provision and 
under the U.S. regulation providing for company-specific revocations.  This, Viet Nam argues, is 
because in the absence of individual margins of  dumping, non-selected respondents are unable to 
demonstrate that they have ceased dumping.
216  Viet Nam argues that the USDOC is also required, 
under Article 11.3, to make company-specific likelihood-of-dumping determinations, using each 
respondent's individual margin of dumping, and that under U.S. law and practice, in order to obtain a 
termination of the order in the context of a sunset  review, respondents must demonstrate that they 
have ceased dumping and that their exports to the Un ited States have continued at levels comparable 
to those in the period preceding the order.217  Viet Nam considers that the USDOC's refusal to 
determine an individual margin for each res pondent means that these respondents are unable to 
demonstrate the absence of dumping, and are therefore unable to meet the relevant standard in the 
context of a sunset review.218   
7.156  Viet Nam asserts that it is the responsibility of the authority to apply the exception in 
Article 6.10 in a manner which is c onsistent with the authority's obligations under other provisions of 
the Anti-Dumping Agreement.  Viet Nam argues th at, to do so, the authority may be required to 
deviate from standard practices applied in pro ceedings in which the authority does not limit its 
investigation.  Viet Nam argues that the USDOC made  no effort in the proceedings at issue to balance 
its right to conduct limited examinations with the interests and rights of Vietnamese respondents to 
have duties assessed based on individual margins and to  obtain a company-specific review in order to 
demonstrate the absence of dumping.  Viet Nam asserts that in these proceedings, the Vietnamese respondents suggested an alternative which would have allowed the USDOC to determine individual 
margins of dumping for those companies requesting them with limited additional effort given the 
small variations in normal value between companies in an NME context.  According to Viet Nam, the 
same objective could have been achieved by applying to non-selected respondents the zero and 
de minimis  margins calculated for the selected respondents.
219  
                                                      
215 Viet Nam's opening oral statement at the first m eeting of the Panel, para. 71;  Viet Nam's second 
written submission, paras. 120, 132. 
216 Viet Nam's first written submission, paras. 260, 283;  Viet Nam's ope ning oral statement at the first 
meeting of the Panel, para. 72;  Viet Nam's second wr itten submission, paras. 121, 130;  Viet Nam's opening 
oral statement at the second meeting of  the Panel, paras. 42-49;  Viet Nam's response to Panel questions 45-48.  
217 Viet Nam's first written submission, para . 262 (citing to USDOC Anti-Dumping Manual, 
Chapter 25, Sunset Reviews, pp. 7-8, and Chapter 10 , Non-Market Economies, Exhibit Viet Nam-31;  and 
Five Most Recently Completed Sunset Review Determinations, Exhibit Viet Nam-64);  Viet Nam's opening oral 
statement at the first meeting of the Panel, para. 73 (c iting to Preliminary Results of  Sunset Review and Issues 
and Decision Memorandum, Exhibit Viet Nam-25);  Viet  Nam's response to Panel question 45;  Viet Nam's 
second written submission, paras. 121-122. 
218 Viet Nam's first written submission, para. 261-263 , 284;  Viet Nam's second written submission, 
paras. 122, 131. 
219 Viet Nam's first written submission, paras. 25 3-254;  Viet Nam's second written submission, 
para. 137;  Viet Nam's response to Panel question 65. WT/DS404/R 
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 (ii) United States 
7.157  The United States asserts that there is no limit to the number of times that an investigating 
authority may limit its examination.  Rather, th e United States submits, Article 6.10 permits the 
investigating authority to limit its examinati on whenever the conditions for doing so are met, 
i.e. where the number of exporters/producers mak es determinations of individual margins for all 
exporters/producers "impracticable."220  The United States notes that Viet Nam is not alleging that the 
USDOC violated Article 6.10 by failing to select the largest number of exporters/producers that 
"reasonably" could be examined, and that Viet Nam is also not arguing that the USDOC should have 
or could have investigated all respondents requ esting reviews in each of the reviews. Thus, the 
United States argues, Viet Nam has provided no basi s to support its claim that  the United States acted 
inconsistently with any ob ligation under Article 6.10.221 
7.158   The United States considers that Viet Nam's cl aims under provisions other than Article 6.10 
are necessarily dependent on its claim under that pr ovision.  The United States submits that it cannot 
be found to have acted inconsistently with one pr ovision of the Anti-Dumping Agreement due to the 
proper exercise of its rights under a separate provision of the same Agreement.222  The United States 
also argues that the obligations under the other prov isions cited by Viet Nam are unrelated to an 
investigating authority's determination to limit its examination and to the application of anti-dumping 
duties to companies not individually examined.223  
7.159  The United States addresses each provision cite d by Viet Nam as follows:  Firstly, the 
United States argues that Viet Nam's interpretation of Article 9.3 reads the second sentence of 
Article 6.10, and all of Article 9.4, out of th e Anti-Dumping Agreement.  The United States argues 
that there could, in the proceedings at issue, be no connection between the anti-dumping duty assigned 
to non-selected respondents and these respondents' ma rgin of dumping, given that no margin of 
dumping was determined for these respondents.224 
7.160    Secondly, the United States argues that Article 11.1 does not impose any independent or 
additional obligation on Members, but merely in forms Articles 11.2, which Viet Nam does not 
invoke, and 11.3.  The United States further submits that the obligations in Article 11 apply to the 
anti-dumping order as a whole, and do not concer n the particular anti-dumping duties applied to 
individual companies.  The United States submits that, even assuming, arguendo , that there were an 
obligation under Article 11 to provide compa ny-specific opportunities for revocation, under 
Article 11.4 of the Agreement, the provisions of Ar ticle 6.10, authorizing the authority to limit its 
examination, would also apply to such a review .  The United States further notes that Viet Nam's 
arguments focus on the U.S. regulation permitting the revocation of an anti-dumping order with 
respect to an individual company.  The United St ates argues that there is no obligation under the 
Anti-Dumping Agreement to revoke an order on a company-specific basis, let alone an obligation to 
do so where the exporter receives thr ee successive zero margins, and th at it cannot be found to have 
                                                      
220 United States' first written submission, paras. 194- 195;  United States' opening oral statement at the 
first meeting of the Panel, para. 43. 
221 United States' first written submission, para. 193-19 ;  United States' opening oral statement at the 
first meeting of the Panel, para. 42;  United States' response to Panel questions 39-41;  United States' second 
written submission, paras. 117-119;  United States' opening oral statement at the second meeting of the Panel, 
paras. 82-84;  United States' comments on Viet Nam's response to Panel question 64. 
222 United States' second written submission, para. 127;  United States' opening oral statement at the 
second meeting of the Panel, paras. 95-95;  United States' comments on Viet Nam's response to Panel 
question 64. 
223 United States' opening oral statement at th e second meeting of the Panel, para. 92. 
224 United States' opening oral statement at th e second meeting of the Panel, para. 94.  WT/DS404/R 
 Page 53 
 
 
 acted inconsistently with the Anti-Dumping Agreem ent for failing to take action that the Agreement 
does not require.225 
7.161  Thirdly, the United States argues that the sunset review under the Shrimp  anti-dumping order 
(i.e. the Article 11.3 review) is not within the Panel' s terms of reference and that for this reason, 
Viet Nam's claim under Article 11.3 fails.  In addition, the United States argues that the USDOC does 
not necessarily base its sunset review determinations  solely upon the existence of dumping margins in 
administrative reviews, noting that interested pa rties are permitted to place any information they 
choose on the record.226 
7.162  In addition, the United States rejects Viet Nam's suggestion that the USDOC could have 
employed alternative methodologies to assign individual margins to more exporters.  The 
United States submits that the Anti-Dumping Agreemen t imposes no obligation in this respect.  In any 
event, the United States submits, the methodologies suggested by Viet Nam would not have allowed 
the calculation of margins of dumping for non-selected exporters.227  
(c) Evaluation by the Panel 
7.163  Before proceeding with our evaluation, we recall that the first sentence of Article 6.10 of the 
Anti-Dumping Agreement provides that, "as a rule, the investigating authority shall determine an 
individual margin of dumping for each known export er or producer".  To do so, the investigating 
authority would have to individually examine each known exporter or producer.  As a result of the 
difficulty of performing individual examinations of all known exporters and producers in certain 
cases, the second sentence of Article 6.10 provides for an exception to the rule set forth in the first 
sentence.  In particular, the investigating authorit y may limit the scope of its examination "[i]n cases 
where the number of exporters, producers, importers or types of products involved is so large as to 
make such [individual] determinati on[s] impracticable."  In such cases of limited examination, the 
authority must examine either "a reasonable numbe r of interested parties or products by using 
samples", or "the largest percentage of the volum e of the exports from the country in question which 
can reasonably be investigated". 
7.164  In examining Viet Nam's claims, we note that Viet Nam is not challenging the USDOC's 
decision to conduct limited examinations in the second and third administrative reviews.228  In other 
words, Viet Nam is not challenging the USDOC's determination that it was "impracticable" to 
examine all known exporters and producers.  Nor is  Viet Nam challenging the number of exporters or 
producers which the USDOC included in its limited sa mple.  Instead, Viet Nam is claiming that the 
USDOC's repeated use of limited examination in the second and third administrative reviews caused 
the USDOC to undermine the rights of exporters and producers provided for in other provisions of the 
Anti-Dumping Agreement that are dependent on each  exporter or producer ha ving individual margins 
of dumping. 
7.165  Since Viet Nam is not claiming that the USDOC 's use of limited examinations in the second 
and third administrative reviews was inconsistent  with the second sentence of Article 6.10, we 
                                                      
225 United States' first written submission, para. 199-203;  United States' response to Panel questions 45 
and 47;  United States' second written submission, paras. 129-132;  United States' opening oral statement at the 
second meeting of the Panel, para. 97. 
226 United States' first written submission, paras. 204-208. 
227 United States' second written submission, paras. 121-122;  United States' response to Panel 
question 41;  United States' opening oral  statement at the second meeting of the Panel, para. 85;  United States' 
comments on Viet Nam's response to Panel question 65. 
228 Viet Nam's response to Panel question 64;  Viet Nam's opening oral statement at the first meeting of 
the Panel, para. 75;  Viet Nam's second written submissi on, paras. 119 and 135;  and Viet Nam's opening oral 
statement at the second meetin g of the Panel, para. 50.  WT/DS404/R 
Page 54 
 
 
 proceed on the basis that the USDOC's use of limite d examinations in those reviews was consistent 
with the abovementioned criteria set forth in that pr ovision.  Accordingly, we understand Viet Nam's 
argument to be that, even though the USDOC undert ook limited examinations in a manner consistent 
with the second sentence of Article 6.10, the USDOC  violated other provisions of the Anti-Dumping 
Agreement because, in undertaking limited examinat ions, the USDOC failed to provide non-selected 
respondents with individual margins of dumping. 
7.166  We are not persuaded by Viet Nam's claims.  In  our view, the use of limited examinations is 
governed exclusively by the second sentence of Artic le 6.10.  Viet Nam has not identified any other 
provision in the Anti-Dumping Agreement governing th e use of limited examina tions.  In particular, 
Viet Nam has not identified any text in either the first sentence of Article 6.10, or Articles 9.3, 11.1 
and 11.3, concerning the use of limited examinations. 
7.167  Viet Nam's claims are premised on the view that Articles 9.3, 11.1 and 11.3 of the 
Anti-Dumping Agreement require the de termination of individual margins229, notwithstanding the 
legitimate use of a limited examination.  To in terpret these other provisions of the Anti-Dumping 
Agreement in this way would render the second sentence of Article 6.10 meaningless.  Indeed, 
Viet Nam would effectively have us interpret the fi rst sentence of Article 6.10, and Articles 9.3, 11.1 
and 11.3 of the Anti-Dumping Agreement, in isolation, as if the second sentence of Article 6.10 did not exist.  There is no doubt that, generally, there is a preference for individual margins to be 
determined for each known exporter and producer.  This  is the very essence of the first sentence of 
Article 6.10.  However, the exception provided for in the second sentence of Article 6.10 makes it 
clear that, despite the general preference for indi vidual margins, investigating authorities need not 
determine individual margins for all known exporters  and producers in all cases.  Since neither the 
first sentence of Article 6.10, nor Articles 9.3, 11. 1 and 11.3 of the Anti-Dumping Agreement, impose 
any additional restrictions on the use of limited exam inations, there is no basis for us to find that the 
USDOC's legitimate (i.e. consistent with the s econd sentence of Article 6.10) use of limited 
examinations is inconsistent with those provisions. 
7.168  For the foregoing reasons, we reject Viet Nam's cl aims of violation of Ar ticles 6.10, 9.3, 11.1, 
and 11.3 of the Anti-Dumping Agreement. 
3. Claims under Article 6.10.2 of the Anti-Dumping Agreement 
(a) Introduction 
7.169  Viet Nam claims that the USDOC in the second and third administrative reviews acted 
inconsistently with the U.S. obligations under Article 6.10.2 of the Anti-Dumping Agreement.  
Article 6.10.2 provides as follows: 
"In cases where the authorities have limited th eir examination, as provided for in this 
paragraph, they shall nevertheless determin e an individual margin of dumping for any 
exporter or producer not initially selected who submits the necessary information in 
time for that information to be consider ed during the course of the investigation, 
except where the number of exporters or producers is so large that individual 
                                                      
229 The parties disagree whether, irrespective of the use of limited examinations, some or all of these 
provisions require the determination of individual margins.   We need not address this  issue, since in any event 
the second sentence of Article 6.10 provides expressly th at individual margins need not be determined in all 
cases.  WT/DS404/R 
 Page 55 
 
 
 examinations would be unduly burdensome to the authorities and prevent the timely 
completion of the investigation.  Vol untary responses shall not be discouraged."230 
7.170   Viet Nam's arguments in support of its cl aim(s) under Article 6.10.2 evolved during the 
course of the Panel's proceedings.  At first, Viet Nam only argued that the USDOC failed to comply 
with the standard set out under the first sentence of Article 6.10.2 of the Anti-Dumping Agreement 
because voluntary responses made by non-selected parties were rejected by the USDOC.231  I n  i t s  
subsequent submissions, Viet Nam also clai med that the USDOC had discouraged voluntary 
responses, contrary to the requirement in the s econd sentence of Article 6.10.2 that "[v]oluntary 
responses shall not be discouraged". 
7.171  The United States opposes Viet Nam's claims under both the first and second sentences of 
Article 6.10.2. 
(b) Main arguments of the parties 
(i) Viet Nam 
 Arguments with respect to the first sentence of Article 6.10.2 
7.172  Viet Nam argues that Article 6.10.2 imposes a different test, and requires a distinct 
determination, than the determination to limit the investigation under Article 6.10.  Viet Nam argues 
that the relevant consideration under Article 6. 10.2 is the number of voluntary responses, not the 
overall number of exporters and produ cers subject to the duty.  Viet Nam argues that rejection of 
voluntary responses can only take place in exceptional circumstances.232  In its first written 
submission, Viet Nam argued that the USDOC acte d inconsistently with this requirement under 
Article 6.10.2 by repeatedly rejecting voluntary r esponses in the context of the USDOC's decision to 
limit the number of individually investigated or  reviewed respondents and not on the basis of the 
number of voluntary respondents and the incremental workload entailed in reviewing the number of 
voluntary respondents involved.233  Viet Nam later clarified that it considers that the USDOC acted in 
violation of Article 6.10.2 in refu sing to consider a request for voluntary response treatment submitted 
by Fish One in the third administrative review.  Vi et Nam asserts that counsel for Fish One met with 
the USDOC to request inclusion of its client as a mandatory respondent following the selection of 
exporters and producers for individual examination and to inform the USDOC that it would provide 
all necessary documents to the USDOC with the inte ntion of demonstrating the absence of dumping.  
Viet Nam indicates that Fish One re newed this request in a letter of 28 October 2008, again informing 
the USDOC that it would provide any necessary info rmation to obtain an individually calculated 
margin of dumping.234 
                                                      
230 We note, in addition that the last sentence of Article 9.4 reads:  "The authorities shall apply 
individual duties or normal values to imports from any exporter or producer not included in the examination 
who has provided the necessary information during the course of the investigation, as provided for in 
subparagraph 10.2 of Article 6." 
231 Viet Nam's first written submission, para. 287. 
232 Viet Nam opening oral statement at the first meeting of the Panel, para. 74;  Viet Nam's response to 
Panel questions 37-38;  Viet Nam's second written submission, para. 123.  
233 Viet Nam's first written submission, paras. 285-288. 
234 Viet Nam's response to Panel question 42 and Viet Nam's sec ond written submission, paras. 129 
and 134, all referring to Fish One's "Request for the Department to Comply with its Regulations Regarding 
Revocation of Antidumping Duty Orders", Exhibit Viet Nam-62, p. 6. WT/DS404/R 
Page 56 
 
 
  Arguments with respect to the second sentence of Article 6.10.2 
7.173  Viet Nam argues that the last sentence of Article 6.10.2 imposes an obligation – that the 
authority's actions not deter a company from submitting voluntary responses – that is distinct from the obligation in the first sentence of Article 6.10.2 that the authority consider voluntary responses.  
Viet Nam argues that this requirement in the fina l sentence of Article 6.10.2 addresses the conduct of 
the authority even prior to submission of a voluntary response or a formal request for treatment as a 
voluntary response.  Viet Nam argues that discouragi ng behaviour in violation of this obligation may 
take the form of either action or inaction on the pa rt of the authority.  Viet Nam provides, as example 
of the latter, the hypothetical case of an aut hority that passively complied with a regulation 
prohibiting the acceptan ce of voluntary responses.
235  
7.174  Viet Nam argues that the standard applied by the USDOC under Article 6.10 forecloses the 
possibility of voluntary responses and thus "constructively" discourages such voluntary responses:  
Viet Nam argues that where the USDOC determines that it would be impracticable to individually 
investigate all exporters and producers, in virt ually no instances could the USDOC later accept a 
voluntary respondent under the "undue burden" standa rd in the first sentence of Article 6.10.2. 
Viet Nam explains that the USDOC's Respondent  Selection Memoranda in the second and third 
administrative reviews indicated that it did not ha ve the resources to examine more than two or 
three companies.  Viet Nam reasons that an aut hority's statement that it cannot and will not examine 
more than an identified number of companies w ill dissuade companies from seeking examination on a 
voluntary respondent basis as these companies will lack  any reason to believe that the authority would 
consider examination of a submitted response.236 
7.175  In addition, Viet Nam argues that the USDOC's ac tions in the treatment of certain requests by 
Vietnamese exporters/producers in the administrati ve reviews at issue "discouraged" voluntary 
responses.  Viet Nam asserts that in the third admi nistrative review, Fish One, one of the Vietnamese 
exporters, requested treatment as voluntary res pondent and offered to provide the USDOC all 
necessary information to calculate an individual margin of dumping.  Viet Nam argues that Fish One 
made repeated efforts, through formal meetings with the USDOC and formal submissions to the 
USDOC, to gain some assurances that data s ubmitted to the USDOC would be accepted by the 
USDOC for purposes of the anti-dumping margin calcu lation.  Viet Nam further asserts that the 
USDOC refused to directly address this request and to  provide an answer to Fish One until forced to 
do so in the preliminary determination. Viet Nam submits that completing a full questionnaire 
response requires significant financial and time commi tments and that under the circumstances that 
prevailed in the proceedings at issue, a rationa l business actor would be discouraged from completing 
a full anti-dumping questionnaire response.237 
                                                      
235 Viet Nam's response to Panel question 67. 
236 Viet Nam's opening oral statement at the first mee ting of the Panel, para. 74;  Viet Nam's response 
to Panel question 43;  Viet Nam's second written submis sion, paras. 123 and 133;  Viet Nam's opening oral 
statement at the second meeting of the Panel, para. 40.  In its first written submission, Viet Nam relied on a 
statement made by the United States in its first written su bmission, para. 214.  Later, in its response to Panel 
question 67, Viet Nam cited to statements of the USDOC in the Respondent Selection Memoranda in the 
proceedings at issue (Respondent Selection Memoran dum in the Second Administrative Review, Exhibit 
Viet Nam-13, p. 4;  and Respondent Selection Memorandum in the Third Administrative Review, Exhibit 
Viet Nam-17, p. 3). 
237 Viet Nam's second written submission, para. 138;  Viet Nam's opening oral statement at the second 
meeting of the Panel, para. 41;  Viet Nam response to Panel question 68.  WT/DS404/R 
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 (ii) United States 
 Arguments with respect to the first sentence of Article 6.10.2 
7.176  The United States argues that the USDOC could not have acted inconsistently with the 
requirements of the first sentence of Article 6.10.2 in the second and third administrative reviews, as 
no exporter or producer made the voluntary submis sion of "necessary information" that would have 
triggered the application of that provision.  The United States explains that in the second 
administrative review, no company requested voluntar y respondent status.  The United States notes 
that in the third administrative review, one co mpany requested voluntary respondent status, but 
subsequently did not submit any data.238 
 Arguments with respect to the second sentence of Article 6.10.2 
7.177  The United States argues that there is no basis for Viet Nam's assertion that the USDOC acted 
inconsistently with the last sentence of Article 6. 10.2.  The United States argues that Viet Nam offers 
no evidence of so-called "discouraging behaviour" ot her than the USDOC's determinations that it was 
impracticable to examine all respondents, which the United States argues are consistent with the 
requirements of Article 6.10.  The United States rejects as unfounded Viet Nam's assertion that the 
United States clarified that the USDOC will ne ver consider voluntary respondents where it has 
already limited the number of respondents individually examined.  The United States argues that no such clarification can be found in the record of the administrative reviews at issue.  The United States 
further notes that the USDOC has, in the past , accepted and relied on vol untary submissions to 
determine dumping margins on numerous occasions.  The USDOC did so, for example, when one of the exporters initially selected for individual examin ation withdrew its request, or the exporter ceased 
cooperating with the examination, in which case it became practicable to individually investigate 
another respondent.  The United States argues that Viet Nam's interpretation of the phrase "shall not 
be discouraged" would deprive Members of the right  to limit the examination under Article 6.10.  In 
particular, the United States argues, under Viet Nam's proposed interpretation, an investigating 
authority, in order to act consistently with Ar ticle 6.10.2 and not impliedly "discourage" voluntary 
responses, would need to preserve its ability to acce pt and consider voluntary responses, and to do so 
would be required to act inconsistently with Artic le 6.10, by examining some percentage of the 
volume of exports that is less than the largest percen tage that can reasonably be examined in order to 
reserve additional resources for possible voluntar y responses. The United States argues that the 
USDOC cannot be found to have acted inconsiste ntly with one provision of the Anti-Dumping 
Agreement by virtue of its proper application of another provision of the same Agreement.
239 
7.178  Furthermore, the United States argues that the ob ligation in the last sentence of Article 6.10.2 
is framed as a prohibition on action  on the part of the authorities.  The United States argues that the 
USDOC took no action to discourage voluntary responses in the second and third administrative 
reviews.  The United States notes that Viet Nam of fers as evidence only one letter from the record of 
the third administrative review which, in the U.S.  opinion, fails to show any action taken by the 
USDOC to discourage a voluntary response by Fish One or any other company.  The United States 
argues that in that letter, Fish One is not asking to be treated as a voluntary respondent, but is asking 
for a revocation review, and, if required by the US DOC to obtain such a review, to be selected as a 
                                                      
238 United States' first written submission, paras. 210- 214;  United States' opening oral statement at the 
first meeting of the Panel, paras. 44-45;  United States ' response to Panel questions 37-38 and 42;  United States' 
second written submission, paras. 123-126;  United States ' opening oral statement at the second meeting of the 
Panel, para. 88;  United States' response to Panel question 67. 
239 United States' opening oral statem ent at the second meeting of the Panel, para. 89;  United States' 
response to Panel questions 43, 67;  United States' comments on Viet Nam's response to Panel questions 67-68.  
The United States cites, as evidence,  the Preliminary Determination in the Administrative Review on Certain 
Activated Carbon from the Peoples' Republic of China, Exhibit US-8. WT/DS404/R 
Page 58 
 
 
 mandatory respondent.  The United States argues th at this letter does not reference a possible 
voluntary submission of a full questionnaire.  Furtherm ore, the United States argues that even if Fish 
One had sought some indication of the USDOC's intent early in the proceeding, the USDOC's 
inability to respond at that time with any commitm ent one way or the other cannot be viewed as 
discouraging. 
(c) Main arguments of the third parties 
(i) European Union 
7.179  The European Union considers that both the overall number of exporte rs involved and the 
number of voluntary responses is relevant under Ar ticle 6.10.2.  The European Union does not, 
however, take a position on whether the requirements of Article 6.10.2 were met in view of the 
specific facts before the Panel.240   
(d) Evaluation by the Panel 
7.180   We begin by addressing Viet Nam's claim under the first sentence of Article 6.10.2. 
(i) Viet Nam's claim under the first sentence of Article 6.10.2  
7.181  In cases where an investigating authority's examin ation is limited to certain selected exporters 
or producers, consistent with Article 6.10, the fi rst sentence of Article 6.10.2 provides that the 
authority shall nevertheless also determine indi vidual margins of dumping for non-selected exporters 
or producers that "submit[] the necessary informatio n in time for that information to be considered 
during the course of the investigation", unless the aut hority determines that the number of exporters or 
producers is so large that individual examinati ons would be unduly burdensome and prevent timely 
completion of the investigation.  Thus, the applica tion of the first sentence of Article 6.10.2 is only 
triggered if non-selected exporters or producers ma ke so-called voluntary responses.  If no such 
voluntary response is submitted, there is no obligation on the investigating authority to take any action 
under the first sentence of Article 6.10.2. 
7.182  At the first substantive meeting, the United St ates asserted that the application of the first 
sentence of Article 6.10.2 was never triggered in th e second or third administrative reviews, since in 
neither of those reviews did any Vietnamese respondent make the requisite voluntary response.241  
During oral questioning by the Panel at the first s ubstantive meeting, Viet Nam confirmed that no 
Vietnamese respondents had submitted voluntary responses pursuant to the first sentence of 
Article 6.10.2.  Furthermore, in response to a written question from the Panel inviting Viet Nam to 
"provide any relevant information with respect to the submission of voluntary responses", Viet Nam 
failed to identify any instance in the second or third reviews where voluntary responses had been 
submitted by Vietnamese exporters or producers.242 
7.183  In light of the absence of any evidence indi cating that any voluntary response was ever 
submitted by non-selected exporters or producers in the second or third administrative reviews, we 
find that the obligations in the first sentence of Artic le 6.10.2 were never triggered in those reviews.  
Accordingly, we reject Viet Nam's claim that the USDOC acted inconsistent with the first sentence of 
Article 6.10.2. 
                                                      
240 European Union's third-party written submission, paras. 187-188; European Union's response to 
Panel question 15. 
241 United States' opening oral statement at the first meeting of the Panel, para. 45. 
242 Viet Nam's response to Panel question 42.  WT/DS404/R 
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 (ii) Viet Nam's claim under the second sentence of Article 6.10.2 
7.184  We recall that the second sentence of Article 6. 10.2 provides that "[v]oluntary responses shall 
not be discouraged".  While the parties disagree on the precise meaning of the term "discourage", and 
the issue of whether or not "discouragement" requir es active conduct on the part of the investigating 
authority, we consider that the facts of the present case do not require us to explore this legal issue in 
any detail. 
7.185  Viet Nam formulated its claim under the second sen tence of Article 6.10.2 somewhat late in 
the Panel process.243  In order to fully understand the factual basis for Viet Nam's claim, after the 
second substantive meeting, the Pa nel asked Viet Nam to "explain  what evidence Viet Nam has 
placed on the record to substantiate a claim under the last sentence of Article 6.10.2".244  In response, 
Viet Nam cited to: 
"the standard applied by the USDOC for the selection of mandatory respondents in 
support of the claim made under the last sentence of Article 6.10.2.  The standard 
applied by the USDOC to limit the number of respondents selected for review violates Article 6.10.2 of the Anti-Dumping Agreement by foreclosing the possibility 
of voluntary respondent treatment and thus  dissuading companies from attempting to 
participate as voluntary respondents.  As noted, the USDOC's respondent selection 
memoranda in the second and third administra tive reviews explained that it would not 
be 'practicable to examine' more than two or three companies, respectively.  In other 
words, the USDOC determined and expressly stated that it did not have the resources to examine more than two or three compani es.  An authority's explicit statement that 
it cannot and will not examine more than th e identified number of companies will of 
course dissuade companies from seeking examination on a voluntary respondent basis.  The company lacks any reason to be lieve that the authority would consider 
examination of a submitted response where all evidence indicates the contrary."
245 
7.186  Thus, as evidence of the alleged discouragement of voluntary responses, Viet Nam cites to the 
fact that the USDOC determined that it would no t be practicable to examine more than two or 
three exporters or producers in the second and third administrative reviews.  Despite the very direct 
nature of the Panel's request, Viet Nam does not c ite to any other evidence indicating that the USDOC 
discouraged voluntary responses.246 
7.187  We recall that, in accordance with Article 6.10 of the Anti-Dumping Agreement, an authority 
may limit its examination in cases where the number of exporters, producers, importers or types of 
products involved is so large as to make [individu al margin] determination[s] impracticable".  The 
USDOC availed itself of this right in the second and third administrative reviews.  The justification 
for doing so was provided for in the Respondent Selection Memoranda.  In the memoranda, the 
USDOC discusses its resource constraints, and concludes "that it would not be practicable in this 
                                                      
243 Viet Nam's second written submission, para. 133. 
244 Panel question 68. 
245 Viet Nam's response to Panel question 68, para. 82. 
246 We note that the Respondent Selection Memorandum in the Original Investigation (Exhibit 
Viet Nam-04) contains a section addr essing whether the USDOC should investigate voluntary respondents, in 
the event that it were to receive voluntary responses.  The USDOC indicates that it wo uld not be in a position to 
individually examine companies other than the four mandatory respondents, unless some of these mandatory 
respondents decided not to cooperate in the investigation.  We note that Viet Nam does not rely on this 
memorandum or any statement of the USDOC contained therein.  In any event, Viet Nam makes no request for 
findings in respect of the original investigation, which it accepts is outside our terms of reference. WT/DS404/R 
Page 60 
 
 
 review" to individually examine all producers and expor ters, and that, in light of resource constraints, 
"it is practicable to examine two [or three] of these companies".247   
7.188  We recall that Viet Nam has not alleged that the USDOC failed to meet the substantive 
criteria of Article 6.10 in limiting its examination.  In other words, Viet Nam has not challenged the 
USDOC's determination that it would not be practicable to examine all exporters and producers in the 
second and third administrative reviews.  For this r eason, there is no basis for the Panel to conclude 
that the USDOC limited its examination in a manner inconsistent with Article 6.10. 
7.189  In our view, the USDOC's legitimate exercise  of its right to limit its examination under 
Article 6.10 cannot suffice, in and of itself, to  constitute evidence of a violation of the second 
sentence of Article 6.10.2.  That is to say, the US DOC's determination that it would not be practicable 
to investigate all exporters and producers cannot constitute evidence that the USDOC discouraged 
voluntary responses. 
7.190  We stress that Viet Nam has adduced no ot her evidence of alleged discouragement of 
voluntary responses by the USDOC.  In its second written submission, Viet Nam asserted that the USDOC had initially refused to respond to a request for treatment as a voluntary respondent by Fish 
One, a non-selected exporter, in the third administrati ve review.  Viet Nam appeared to allege that the 
USDOC's initial refusal to respond to Fish One's re quest could be construed as "discouragement" of 
voluntary responses.  Fish One's alleged request for voluntary respondent treatment was submitted as 
Exhibit Viet Nam-62.  In response to a question from the Panel regarding the evidence needed to 
make out a claim under the second sentence of Article 6.10.2, the United States asserted: 
"In the second and third administrative reviews, Commerce took no action to 
discourage voluntary responses.  Indeed, we note that Vietnam does not cite to any 
record evidence from the second administrative review with regard to this claim.  
Vietnam offers as evidence only one letter fro m the record of the third administrative 
review, dated October 8, 2008.  In that lette r, the respondent party at issue, Fish One, 
is not asking to be treated as a voluntary respondent, but is asking for a specific 
revocation review, and, if required by Co mmerce to obtain such a review, to be 
selected as a mandatory respondent.  This letter does not reference a possible 
voluntary submission of a full questionnaire, concluding as follows:  "Fish One 
stands ready, even now, to full y participate in this review as a mandatory respondent 
and take the same time as the other mandatory respondents to answer the questionnaires."  Fish One, to be treated as a voluntary respondent, needed to actually 
submit the necessary information by the app licable deadlines.  Even if Fish One had 
sought some indication of Commerce's intent early in the proceeding, Commerce's inability to respond at that time with any commitment one way or the other cannot be 
viewed as discouraging.  This evidence by Vietnam fails to show any action taken by 
Commerce to discourage a voluntary response by Fish One or any other company."
248 
7.191  In its Comments on the United States' Respon se, Viet Nam did not challenge the U.S. 
interpretation of Fish One's alleged request for vol untary respondent treatment.  Upon examination of 
the relevant document, we see no reason to disagr ee with the United States' interpretation of Fish 
One's request.  In particular, we see no reason to treat that request as evid ence that Fish One sought 
                                                      
247 Respondent Selection Memorandum in the Second Administrative Review, Exhibit Viet Nam-13, 
pp. 3-4, and Respondent Selection Memorandum in the Third Administrative Review, Exhibit Viet Nam-17, 
pp. 2-3, quoted supra  para. 7.147.  
248 United States' response to Panel question 67, para. 63 (citing to Fish One's "Request for the 
Department to Comply with its Regulations Regarding Revocation of Antidumping Duty Orders", Exhibit 
Viet Nam-62, pp. 7-8). (emphasis original)  WT/DS404/R 
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 treatment as a voluntary respondent in the third admi nistrative review.  Instead, the relevant document 
details Fish One's attempts to be treated as a manda tory respondent.  In these circumstances, we do 
not consider that the document submitted as Exhi bit Viet Nam-62 supports Viet Nam's claim under 
the second sentence of Article 6.10.2.  
7.192  For the above reasons, we reject Viet Nam's claim under the second sentence of Article 6.10.2 
of the Anti-Dumping Agreement. 
F. VIET NAM'S CLAIMS CONCERNING THE "ALL OTHERS " RATES APPLIED TO NON -SELECTED 
EXPORTERS  
1. Introduction 
7.193  We now turn our attention to Viet Nam's claims  with respect to the "all others" rates applied 
by the USDOC in the second and third administrative reviews.249     
7.194  Article 9.4 of the Anti-Dumping Agreement im poses disciplines with respect to the rate 
which an investigating authority may apply to non- selected exporters/producers, in a case in which it 
has limited its examination pursuant to the sec ond sentence of Article 6.10 of the Agreement.250  The 
rate so established is referred to as the "all others " rate.  Article 9.4 provides, in relevant part:   
"When the authorities have limited their examination in accordance with the second 
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from 
exporters or producers not included in the examination shall not exceed: 
(i) the weighted average margin of dumping established with respect to 
the selected exporters or producers or, 
 ... 
provided that the authorities shall disregard for the purpose of this paragraph any zero 
and de minimis  margins and margins established under  the circumstances referred to 
in paragraph 8 of Article 6." 
7.195  As can be seen from its text, Article 9.4 does not prescribe any specific method that WTO 
Members must use in establishing an "all others" rate that is applied to exporters or producers that are 
not individually examined.  Rather, Article 9.4 simply provides that any "all others" anti-dumping 
duty shall not exceed  a certain maximum or ceiling.  In other words, Article 9.4 provides for the 
maximum allowable rate that may be applied.  Sub- paragraph (i) of Article 9.4 states the general rule 
that this maximum allowable "all others" rate is equal to the weighted average of the margins of 
dumping established with respect to individually-exam ined exporters.  However, the clause beginning 
with "provided that" qualifies this general rule.  It  mandates that, "for the purpose of this paragraph", 
investigating authorities shall disregard zero and de minimis  margins of dumping, as well as "margins 
                                                      
249 As previously noted, in the determinations at issue, the USDOC refers to the "all others" rate 
applied to such respondents as the "separate rate".  In our findings, however, we use the terminology "all others" 
rate. 
250 Article 9.4 applies only "[w]hen the authorities have limited their examination in accordance with 
the second sentence of paragraph 10 of Article 6", i.e.  with respect to duties imposed on imports from 
cooperating exporters that have made themselves k nown to the investigating authorities.  Consequently, 
Article 9.4 does not govern the duties applied in respect of exporters that have not yet exported the product and 
exporters that have not come forward to the investigating authorities.  See Panel Report, EC – Salmon (Norway) , 
para. 7.431;  Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.159;  Panel Report, US – Zeroing 
(EC) (Article 21.5 – EC) , footnote 916.  WT/DS404/R 
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 established under the circumstances referred to in paragraph 8 of Article 6", i.e.  margins of dumping 
established on the basis of facts available.251 
7.196  Article 9.4 of the Anti-Dumping Agreement does not explicitly address how the maximum 
allowable "all others" rate should be calculated when  each of the margins of the selected exporters is 
zero, de minimis , or based on facts available.  The Appellate Body has referred to this as a lacuna  in 
Article 9.4.  In US – Hot Rolled Steel , the Appellate Body explained that the lacuna  arises because 
"while Article 9.4 prohibits  the use of certain margins in the calculation of the ceiling for the 'all 
others' rate, it does not expressly address the issue of how that ceiling should be calculated in the 
event that all margins are to be excluded  from the calculation, under [these] prohibitions".252  T h e  
principal question raised by Viet Nam's claims is that of the disciplines, if any, that govern the 
imposition of the "all others" rate in such a situa tion.  This question arises because, as we explain 
below, all respondents selected for individual ex amination in the second and third administrative 
reviews received a zero or a de minimis  margin of dumping.   
7.197  In its preliminary determination in the second administrative review, the USDOC noted that 
its practice in administrative reviews is to apply the provision of U.S. law concerning the calculation 
of the "all others" rate in original investigations.  This provision instructs the USDOC to assign an "all 
others" rate equal to the weighted average of the rates of selected respondents, excluding zero and 
de minimis  margins and margins based entirely on adverse facts available.  The USDOC noted that it 
had preliminarily determined de minimis  margins of dumping for both selected respondents, 
Minh Phu and Camimex.  The USDOC decided to apply to the 27 "separate rate" companies not selected for individual examination an "all others " rate equal to the weighted average of these 
individual margins, i.e. a de minimis  rate, but invited interested parties to comment on the 
methodology it should apply in its final determination.
253 
7.198  In its final determination, the USDOC noted that it had received comments from interested 
parties.  The USDOC also indicated that U.S. law c ontemplated that it may use an average of the zero, 
de minimis  and total facts available rates determined in an investigation and that in the review at issue, 
it had assigned margins based on adverse facts availabl e to the 35 companies it considered to be part 
of the Vietnam-wide entity.  The USDOC noted howev er that it had available information that would 
not be available in an original investigation, na mely rates from prior administrative and new shipper 
reviews.  The USDOC further noted that it had, in  another case, assigned an "all others" rate based on 
the weighted average of zero and de minimis  rates, but noted that in that case, there had been no rates 
based entirely on adverse facts available.254  In view of these considerations and of the comments 
received from interested parties, and because th e circumstances were unchanged from those in the 
first administrative review, the USDOC considered that a "reasonable method" was to assign the 
                                                      
251 The Appellate Body has found that this includes margins established in totality or in part on the 
basis of facts available.  Appellate Body Report, US – Hot Rolled Steel , para. 122. 
252 Appellate Body Report, US – Hot Rolled Steel , para. 126. (emphasis original) 
253 Preliminary Determination in the Second Administrative Review, Exhibit Viet Nam-14, pp. 12133 
and 12135-12136.  The USDOC invited interested parties to address, in particular, the following factors: 
"(a) The Department has limited its examination of respondents ... (b) [U.S. law] provides 
that, with some exceptions, the all-others rate in an investigation is to be calculated excluding 
any margins that are zero, de minimis  or based entirely on facts available, and (c) the 
[Statement of Administrative Action] states that with respect to the calculation of the 
all-others rate in such cases, 'the expected method will be to weight-average the zero and de 
minimis  margins and margins determined pursuant to the facts available, provided that volume 
data is available. However, if this method is not feasible, or if it results in an average that 
would not be reasonably reflective of potential dumping margins for non-investigated 
exporters or producers, Commerce may use other reasonable methods.'' 
254 Final Determination in the Second Administrative Review, pp. 52274-52275, and Issues and 
Decision Memo, pp. 18-20, Exhibit Viet Nam-15.  WT/DS404/R 
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 4.57 per cent "all others" rate applied in the original  investigation and first administrative review.  The 
USDOC considered that this constituted "a reasona ble method which is reflective of the range of 
commercial behaviour demonstrated by exporters of the subject merchandise during a very recent 
period"255 and that "there is no reason to find that it is not reasonably reflective of potential dumping 
margins for the non-selected companies".256  However, where a separate rate respondent had received 
an individual margin in a prior proceeding (e.g. as a selected respondent in the original investigation 
or first administrative review), the USDOC applied that rate to the respondent.  As a result, the 
USDOC assigned the following rates:  (i) a rate of zero to both Grobest and to Fish One as the individual rate most recently calculated for each of these companies;  (ii) a rate of 4.30 per cent to 
Seaprodex, as the individual rate most recently calcu lated for that company;  and (iii) a general "all 
others" rate of 4.57 per cent to the other "separate rate" companies, which formed the vast majority of 
non-selected respondents.
257   
7.199  The USDOC calculated margins of dumping above de minimis  for all three selected 
companies in its preliminary determination in the th ird administrative review.  As a result, in that 
preliminary determination, the USDOC assigned to th ese companies an "all others" rate equal to the 
weighted average of these margins, 4.26 per cent.258  However, the USDOC revised these individual 
margins in its final determination.  As a result, all individual margins of dumping became de minimis .  
The USDOC indicated that it "must, again, look to  other reasonable means to assign separate rate 
margins to non-reviewed companies e ligible for a separate rate in th is review" and determined, like in 
the second administrative review, that "a reasonabl e method" was to assign to non-selected companies 
the most recent rate calculated for them, i.e., the 4. 57 per cent "all other" rate initially applied in the 
original investigation.  As in the second admi nistrative review, however, the USDOC also applied 
"individual" rates to companies for which it had prev iously determined an individual margin.  As a 
result, it applied a rate of zero to both Grobest and Fish One, and a rate of 4.30 per cent to 
Seaprodex.259   
7.200  Viet Nam's claims pertain to the 4.57 per cent "a ll others" rate applied by the USDOC to most 
non-selected respondents in both reviews.  Viet Nam requests that we find that: 
(a) The use of margins of dumping determined using the zeroing methodology to 
calculate the all others ("se parate") rate in the second a nd third administrative reviews 
is, as applied, inconsistent with Articles 9. 4, 9.3, 2.4.2 and 2.4 of the Anti-Dumping 
Agreement.260 
(b) The application of an all others ("separate") rate that fails to consider the results of 
the individually-investigated respondents in the contemporaneous proceeding and 
produces an anti-dumping duty prejudicial to companies not selected for individual investigation is, as applied in the sec ond and third administrative reviews, 
inconsistent with Articles 9.4, 17.6(i) , and 2.4 of the Anti-Dumping Agreement.
261 
7.201  The United States asks us to reject Viet Nam's claims.  
                                                      
255 Final Determination in the Second Administrative Review, p. 52275, Exhibit Viet Nam-15; see also 
Issues and Decision Memo in the Second Administrative Review, p. 19, also Exhibit Viet Nam-15. 
256 Issues and Decision Memo in the Second Administrative Review, p. 19, Exhibit Viet Nam-15. 
257 See Final Determination in the Second Administrative Review, pp. 52274-52275, and Issues and 
Decision Memo, pp. 19-20.  Exhibit Viet Nam-15. 
258 Preliminary Determination in the Third Administrative Review, Exhibit Viet Nam-18, 
pp. 10016-10017. 
259 See Final Determination in the Third Administrative Review, Exhibit Viet Nam-19, 
pp. 47195-47196.  
260 Viet Nam's second written submission, para. 144(3). 
261 Viet Nam's second written submission, para. 144(4). WT/DS404/R 
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 7.202  Thus, Viet Nam challenges the "all others" rate  applied in the second and third administrative 
reviews on two grounds – the USDOC's reliance on dumping margins calculated with zeroing and its 
reliance on dumping margins calculated in a prior pr oceeding, where all individual margins in the 
current proceeding are zero or de minimis  – and under five distinct provisions of the Anti-Dumping 
Agreement, Articles 9.4, 9.3, 2.4.2, 2.4 and 17.6(i).  
7.203  We first examine Viet Nam's claims under Artic le 9.4, before addressing Viet Nam's claims 
under the other provisions it cites.  In addressing Viet Nam's claims under Article 9.4, we first focus 
on Viet Nam's argument that the USDOC impermissibly, under that provision, relied on dumping margins calculated with the use of zeroing. 
2. Whether the USDOC's reliance on dumping  margins calculated with zeroing in 
establishing the "all others" rate applied in the second and third administrative reviews 
is inconsistent with Article 9.4 of the Anti-Dumping Agreement 
(a) Main arguments of the parties 
(i) Viet Nam 
7.204  Viet Nam asserts that the USDOC used "mode l zeroing" under the weighted-average-to-
weighted-average comparison methodology to calcu late the dumping margins of selected respondents 
in the original investigation.
262  Viet Nam argues that, as the Appellate Body has repeatedly found, 
and as the United States has conceded in other disputes, the USDOC's model zeroing methodology 
does not produce a dumping margin for the product as a whole and as a result is inconsistent with 
Article 2.4.2.263  In its first written submission, Viet Nam argues that Article 9.4 requires that 
dumping margins calculated in a manner consistent  with Article 2 serve as the basis for the 
administering authority's calculation of the "all others" rate.264  In its second written submission, 
Viet Nam further argues that as a result of its u se of the model zeroing methodology, the USDOC's 
original investigation produced margins of dumpi ng for the selected respondents in excess of these 
respondents' margins of dumping, as properly calculate d.  Viet Nam argues that an "all others" rate 
based on zeroing necessarily overstates the margin of dumping as properly calculated under Article 2 
and therefore by definition exceeds the (properly cal culated) weighted average margin of dumping for 
mandatory respondents, and therefore violates the requirements of Article 9.4.265 
7.205  Viet Nam responds to the argument of the United States that the Panel should not consider the 
actions of the USDOC in the original investiga tion because it was completed prior to Viet Nam's 
accession to the WTO.  Viet Nam clarifies that it is not requesting the Panel to make findings in respect of the USDOC's determinati ons in the original investigation.
266  Viet Nam argues that the final 
results of the original investigation remain releva nt only because of the actions taken by the USDOC 
in subsequent proceedings.  Vi et Nam also submits that under the reasoning advocated by the 
United States, the USDOC could continue to apply i ndefinitely WTO-inconsiste nt determinations, so 
long as the determinations remained unchanged sin ce Viet Nam's accession to the WTO.  Viet Nam 
also submits that the United States' citation to US – DRAMS  is incongruent with the facts of the 
present dispute, where, in the second and third admi nistrative reviews, the USDOC fully investigated 
the issue of the "all others" rate, and issued separat e new determinations in this respect, distinct from 
those made in the original investigation.   Viet Nam notes that by contrast, in US – DRAMS , the scope 
                                                      
262 Viet Nam's first written submission, paras. 40-46, 141-143, 208-215. 
263 Viet Nam's first written submission, paras. 12 0, 129-139; Viet Nam's second written submission 
paras. 52-53.  
264 Viet Nam's first written submission, para. 209.  
265 Viet Nam's second written submission, paras. 50-54 and 60-62. 
266 Viet Nam's response to the United States' request for preliminary rulings, para. 3.  WT/DS404/R 
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 determination was never re-examined after the origin al investigation and was passively re-applied in 
subsequent stages of the proceeding.267 
(ii) United States 
7.206  The United States argues that the "all others" ra tes imposed by the USDOC in the second and 
third administrative reviews could not be found to be inconsistent with Ar ticle 9.4.  This, the 
United States contends, is because Article 9.4 does not prescribe any methodology for assigning a rate 
to non-selected companies, and neither Article 9.4 nor any other provision of the Anti-Dumping 
Agreement specify the maximum rate  in a situation where all the dumping margins calculated for 
selected companies fall into the th ree categories to be disregarded.  The United States considers that 
the Appellate Body erred when, in US – Zeroing (EC) (Article 21.5 – EC) , it reversed the finding of 
the panel that Article 9.4 imposes no obligation rega rding the maximum "all others" rate that may be 
applied in such a situation.  Th e United States further notes that th e Appellate Body in that dispute 
provided no indication as to what specific methodologies could be used or what legal standard would 
apply in assessing the consistency of an investiga ting authority's actions with Article 9.4 in a lacuna 
situation.268   
7.207  The United States further argues that Article 9.4 of the Anti-Dumping Agreement does not 
prohibit zeroing and that even if the challenged me asures were found to be in consistent with other 
provisions of the Agreement, that would not mean th at, as a consequence, they are also inconsistent 
with Article 9.4.269  The United States adds that Viet Nam's claims of violation are dependent on the 
Panel finding that the "all others" rates applied in the second and third administrative reviews were 
inconsistent with the covered agr eements when they were originally  calculated.  The United States 
notes, however, that the WTO Agreement did not apply between the United States and Viet Nam at 
the time of the original investigation, meaning that  the "all others" rate calculated in the original 
investigation could not be WTO-inconsistent at the time it was calculated.  Moreover, the 
United States argues that the Agreement does not a pply to the "all others" rates determined in the 
second and third administrative reviews because in those reviews, the USDOC merely continued to 
apply the rate determined in the original investiga tion, prior to the entry into force of the Agreement 
for Viet Nam.  The United States relies for this argument on the findings of the panel in US – 
DRAMS .  The US – DRAMS  panel found that pursuant to Artic le 18.3, the Anti-Dumping Agreement 
only applies to those parts of a pre-WTO measur e that are included in the scope of a post-WTO 
review.  The United States asserts that the USDOC  made no dumping margin calculations in the 
second and third administrative reviews in order to  determine the "all others" rate, and did not 
recalculate or otherwise re-examine the "all others" ra te applied in the original investigation.  As a 
result, the United States argues, USDOC also did not use zeroing during these reviews and cannot be found to have acted inconsistently with the U. S. obligations under the Anti-Dumping Agreement.
270 
                                                      
267 Viet Nam's second written submission para. 62;  Viet Nam's response to Panel question 18. 
268 United States' first written submission, paras. 176-184, 187;  United States' opening oral statement 
at the first meeting of the Panel, paras. 49-51;  United States' opening oral statemen t at the second meeting of 
the Panel, paras. 31-33;  United States' response to Panel questions 20 and 21. 
269 United States' opening oral statement at th e second meeting of the Panel, para. 32. 
270 United States' first written submission, paras. 99-103 and 168-175;  United States' opening oral 
statement at the first meeting of the Panel, paras. 6-10, 54-58;  United States' second written submission, 
paras. 21-48 and 63-76 and 83-89;  United States' opening oral statement at the second meeting of the Panel, 
paras. 31-50, and 65-66.  The United States cites to the Panel Report on US – DRAMS , paras. 6.14, 6.16.  WT/DS404/R 
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 (b) Main arguments of the third parties 
(i) European Union 
7.208  The European Union rejects the United States' suggestion that the reasoning of the panel in 
US –  DRAMS  applies in the present case.  The European Union explains that the issue before the 
Panel in the present dispute concerns the use of the "all others" rate in actions taken by the 
United States after Viet Nam's accession, not whether those "all others " rates continue after 
Viet Nam's accession. The European Union argues th at if the Panel concludes that the USDOC used 
zeroing when determining the dumping margins in th e original investigation, the use of those 
dumping margins and the application of the "all ot hers" rates from the original investigation in 
subsequent determinations amount to a new and separate measure which is subject to the present 
panel proceedings.271 
(ii) India 
7.209  India considers that the second and third admi nistrative reviews are measures in their own 
right, distinct from the original investigation, and that the findings of the US – DRAMS  panel can be 
distinguished from the facts and circumstances of the present dispute.  India agrees with Viet Nam 
that an "all others" rate calculated by using WT O-inconsistent "model zeroing" in the original 
investigation violates Article 9.4 of the Anti-Du mping Agreement.  For this reason, Viet Nam 
considers the "all others rate" applied in the second and third administrative reviews is inconsistent 
with Article 9.4.272  
(iii) Japan 
7.210  Japan submits that the "all others" rate must always – even in a lacuna  situation – be based on 
WTO-consistent margins of dumping.  Japan consider s that this conclusion follows from the text of 
Article 9.4, and that the term "m argins of dumping" in Article 9.4 refers to margins of dumping that 
are WTO-consistent at the time when they are used to calculate the "all others" rate.  In Japan's view, 
it is the determination of the "all others" rate in  the second and third administrative reviews that is 
rendered WTO-inconsistent, not the determinations of the dumping margins in the original 
investigation.  For this reason, Japan rejects the U. S. argument that the "all others" rates applied in the 
second and third administrative reviews are shielded  from review because they are based on margins 
that were calculated in the original investigation.273   
(iv) Mexico 
7.211  Mexico considers that the "all others" rates de termined by the USDOC in the second and third 
administrative reviews are distinct determinati ons from the rates determined in the original 
investigation and are properly subject to review by the Panel.  Mexico submits that the reasoning of 
the US – DRAMS  panel does not apply in the present disput e.  Mexico reasons that unlike the product 
scope in an anti-dumping proceeding, which is determ ined only once in the original investigation, the 
"all others" rate changes in each administrative review.  Thus, Mexico submits that the "all others" 
rates applied in the two reviews at issue are subj ect to the disciplines of the Agreement, and the 
                                                      
271 European Union's third-party written submission, paras. 179-180;  European Union's response to 
Panel questions 5-6.  
272 India's third-party oral statement, paras. 9-10, 13-16;  India's response to Panel question 6. 
273 Japan's third-party written submission, paras. 70-79;  Japan's third-party oral statement, para. 3;  
Japan response to Panel question 7.  WT/DS404/R 
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 United States may not rely on dumping margins established in a WTO-inconsistent manner, 
irrespective of the fact that the margins were  established in the original investigation.274    
(c) Evaluation by the Panel 
7.212  We first consider Viet Nam's argument that re liance by an investigating authority on margins 
of dumping calculated with zeroing in the determination of an "all others" rate is  inconsistent with the 
disciplines of Article 9.4, irrespective of the fact th at all the margins determined for selected exporters 
are zero, de minimis , or based on facts available.275 
7.213  We find guidance in the WTO jurisprudence with r espect to sunset reviews.  In particular, we 
note the findings of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review , in which 
the Appellate Body found that should investigati ng authorities choose to rely upon dumping margins 
in making a likelihood-of-dumping determina tion under Article 11.3 of the Anti-Dumping 
Agreement, the margins of dumping relied upon must be  ones that were calculated consistently with 
Article 2 of the Agreement.276  The Appellate Body added that "[w]e see no other provisions in the 
Anti-Dumping Agreement  according to which Members may calculate dumping margins".277  We read 
these statements of the Appellate Body as standing fo r a more general proposition that any "margin of 
dumping" calculated or relied upon by an investigati ng authority in the context of the application of 
the disciplines of the Agreement must be calculate d consistently with Article 2 and its various 
paragraphs.  Of relevance to this question, we furt her note that the Appellate Body has repeatedly held 
that the definition of the phrase "margin of dumping" under Article 2.1 applies to the entire 
Agreement.278 Accordingly, we consider that any individual margin of dumping which the 
investigating authority relies upon in determining th e maximum allowable "all others" rate must of 
necessity have been calculated in confor mity with the provisions of Article 2.279, 280  This is true 
irrespective of whether or not all individual margins are zero, de minimis  or based on facts available. 
7.214  We observe that this conclusion is consistent with the statemen ts of the Appellate Body in 
US – Zeroing (EC) (Article 21.5 – EC) , in which it commented on the disciplines that apply under 
Article 9.4 in a lacuna  situation.  The panel in that case  had found that, in a lacuna  situation, 
                                                      
274 Mexico's third-party written submission, paras. 39-42;  Mexico's response to Panel question 6. 
275 We note that neither party questions the applicability of Article 9.4 of the Anti-Dumping Agreement 
in the context of periodic reviews.  Accordingly, our finding s below proceed on the assumption that Article 9.4 
governs the imposition of "all others" rates in the context of U.S. administrative reviews. 
276 Appellate Body Report , US – Corrosion-Resistant Steel Sunset Review , para. 127, cited with 
approval in Appellate Body Report, US – Zeroing (Japan) , para. 183, Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , para. 390.  
277 Appellate Body Report , US – Corrosion-Resistant Steel Sunset Review , para. 127.  
278 We refer to our summary of the Appellate Body's jurisprudence on this issue, supra  para. 7.136. 
279 While authorities have the right to apply "all others" rates that are less than the maximum allowable 
amount, few authorities do so in practi ce (outside of the context of the le sser-duty rule).  For this reason, 
investigating authorities generally do not make separate determinations of (i) the maximum allowable rate, and 
(ii) the rate that will actually be applied.  Instead, auth orities generally simply determine the "all others" rate to 
be applied.  In our view, a determination of the maximum allowable "all others" rate is always implicit in such a 
determination, since the "all others" rate applied by the authority must necessarily be equal to or below the 
maximum allowable "all others" rate.  In other words, an authority that determines an "all others" rate of x per 
cent implicitly determines that the maximum allowable "all others" rate is at least x per cent.   
280 We also see confirmation for our interpretation of Article 9.4 in the Appellate Body's interpretation 
of Article 9.3, of which Article 9.4 is an exception.  The Appellate Body has found that the margin of dumping 
established for an exporter in accordance with Article 2  operates as a ceiling for the total amount of 
anti-dumping duties that can be levied on the entries of the subject merchandise from that exporter. See, e.g. 
Appellate Body Report, US – Zeroing (EC) , para. 130;  Appellate Body Report, US – Zeroing (Japan) , 
paras. 155-156;  Appellate Body Report, US – Stainless Steel (Mexico) , para. 96;  Appellate Body Report, US – 
Continued Zeroing , paras. 286, 314 (discussed, supra , para. 7.137).   WT/DS404/R 
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 "Article 9.4 simply imposes no prohibition, as no ceiling  can be calculated" and that, as a 
consequence, "there would be no legal basis for a pa nel to conclude that the 'all others' rate actually 
established is inconsistent with Article 9.4".281  The Appellate Body disagreed.  The Appellate Body 
indicated that, notwithstanding the lacuna , Article 9.4 nevertheless imposes certain residual 
disciplines.  In particular, the Appellate Body found that:   
"[T]he fact that all margins of dumping for the investigated exporters fall within one 
of the categories that Article 9.4 directs investigating authorities to disregard, for 
purposes of that paragraph, does not imply that the investigating authorities' discretion to apply duties on non-investigat ed exporters is unbounded.  The lacuna 
that the Appellate Body recognized to ex ist in Article 9.4 is one of a specific method .  
Thus, the absence of guidance in Article 9.4 on what particular methodology to follow does not imply an absence of any oblig ation with respect to the "all others" 
rate applicable to non-investigated expor ters where all margins of dumping for the 
investigated exporters are either zero, de minimis , or based on facts available."
282 
7.215  Although the Appellate Body did not  elaborate on the nature of the boundaries that might 
apply to the investigating authority's discretion in the lacuna  situation283, we note the Appellate 
Body's view that some form of boundary neverthel ess applies.  We interpret the Appellate Body's 
statement in US – Zeroing (EC) (Article 21.5 – EC)  to mean that if an investigating authority limits its 
investigation and applies an "all ot hers" rate to non-selected exporters , its discretion in doing so is not 
unlimited.  In our view, one limitation under Article  9.4 is that the margins of dumping which are 
used to establish the maximum allowable "all others" rate must be ones which, at the time the "all 
others" rate is applied, conform to  the disciplines of the Agreement.  
7.216  In the present dispute, Viet Nam alleges th at the USDOC relied upon margins of dumping 
calculated with the use of zeroing in determining the "all others" rate applied in each of the measures 
at issue.  We recall that the Appellate Body has consistently found that the use of zeroing renders 
"margins of dumping" inconsistent with Article 2 of the Anti-Dumping Agreement.  Specifically, the 
Appellate Body has found that "model zeroing", as it was applied by the USDOC, is inconsistent with 
Article 2.4.2 of the Anti-Dumping Agreement.284  Significantly in our view, the United States has not 
taken issue with Viet Nam's argument that zeroing is inconsistent with that provision.  We also recall 
our earlier findings that the application of simple zer oing in a periodic review renders the comparison 
inconsistent with the first sentence of Article 2.4.285  For the same reasons, we are of the view that the 
use of "model zeroing" in the context of an origin al investigation would be inconsistent with that 
same provision.286  
7.217  Based on the foregoing considerations, we consid er that an investigating authority that 
determines the maximum allowable "all others" rate  on the basis of dumping margins calculated with 
the use of zeroing acts inconsistently with Article 9. 4.  We now examine Viet Nam's factual allegation 
                                                      
281 Panel Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 8.283. (emphasis original, footnote 
omitted) 
282 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 453. (emphasis original) 
283 In US – Zeroing (EC) (Article 21.5 – EC) , the Appellate Body considered that as the parties had not 
suggested specific alternative methodologies to calculate the maximum allowable "all others" rate, and that as 
the measures at issue were no longer in effect, it did not need to make findings concerning the 
European Communities' claim under Article 9.4.  
284 See, e.g. Appellate Body Report, US – Softwood Lumber V , para. 102.  
285 See supra , paras. 7.93-7.97. 
286 In addition, we note that the findings of the Appellate Body in US – Softwood Lumber V  
(Article 21.5 – Canada) , on which we rely in our findings under Article 2.4, pertained to the use of zeroing 
under the transaction-to-transaction methodology in original investigations.   WT/DS404/R 
 Page 69 
 
 
 that the USDOC, in the administrative reviews at i ssue, imposed an "all others " rate determined on the 
basis of dumping margins calculated using "model zeroing". 
7.218  Before doing so, however, we note the United Stat es' argument that, as a result of Article 18.3 
of the Anti-Dumping Agreement287, the "all others" rates applied in the second and third 
administrative reviews are not subject to the di sciplines of the Agreement because they were 
calculated in the original investigation, which was initiated and completed prior to Viet Nam's 
accession to the WTO.  The United States contends th at these "all others" rates do not become subject 
to the Anti-Dumping Agreement merely  because they continued to be applied on or after the date of 
entry into force of the WTO Agreement for Viet Nam.   
7.219  We note, first, that despite some ambiguity in  the formulation of its  claims and arguments, 
Viet Nam has clarified that it is not requesting us to make any findings in respect of the rates determined by the USDOC in the original investigati on.  Rather, Viet Nam explains that it is seeking 
findings only with respect to the USDOC's final de terminations in the second and third administrative 
reviews.
288  It is not in dispute that the USDOC's de terminations in these two administrative reviews 
are subject to the disciplines of the Anti-Dumping Agreement.   
7.220  The United States argues that, because the "all others" rate was never recalculated, the 
USDOC never revisited its decision to apply that all others rate.  According to the United States, the 
USDOC merely continued to apply the "all others" rate initially applie d in the original investigation 
during the second and third administrative reviews.  The United States relies, in particular, on the 
findings of the panel in US – DRAMS .  That panel, applying Article 18.3 to the facts before it, 
considered that the scope of application of the Agreement was determined by the scope of post-WTO 
reviews, such that the Agreement only applied to t hose parts of a pre-WTO measure that were covered 
by a post-WTO review.  According to the United States, because the USDOC merely continued to 
apply the "all others" rate from th e original investigation, which pre-dated Viet Nam's accession to the 
WTO, in the period following Viet Nam's accession to the WTO, the "all others" rate is not subject to 
WTO review. 
7.221  We are unable to accept the United States' argument which, in our view, is not supported by 
the findings of the panel in US – DRAMS.  In US – DRAMS , the determination at issue – that of the 
product coverage of the Anti-Dumping measures at issu e – was determined once, before the entry into 
force of the WTO Agreement, and never subsequently  reconsidered.  By contrast, the evidence before 
us shows that the USDOC made a new and distinct  "all others" rate determination in each of the 
administrative reviews which are before us.  We  note in particular that, in its preliminary 
determination in the second administrativ e review, the USDOC initially applied a de minimis  
"all others" rate that reflected the weighted aver age of the selected respondents' dumping margins.  
The USDOC then invited interested parties to co mment on the methodology that it should apply in its 
final determination and, on the basis of those comme nts, eventually decided to apply the "all others" 
rate calculated and applied in the original investigation.289  These facts squarely contradict the 
suggestion by the United States that the USDOC merely  continued to apply the "all others" rate from 
the original investigation in the two reviews at issu e.  On the contrary, they show that in the second 
administrative review the USDOC actively considered  and analysed the question of which "all others" 
rate to apply and, on the basis of the specific margins calculated in that review, made a new 
                                                      
287 Article 18.3 provides, in relevant part, that the provisions of the Anti-Dumping Agreement "shall 
apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been 
made on or after the date of entry into force for a Member of the WTO Agreement." 
288 See supra , section VII.C. 
289 Preliminary Determination in the Second Admini strative Review, Exhibit Viet Nam-14; and Final 
Determination and Issues and Decision Memorandum in the Second Administrative Review, Exhibit 
Viet Nam-15, discussed supra  paras. 7.197-7.198. WT/DS404/R 
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 determination in which it decided to apply the sa me "all others" rate whic h it had applied in the 
original investigation.  The mere fact that the "a ll others" rate ultimately applied was not recalculated 
does not change the extent of the analysis inherent  in the USDOC's new determination to continue to 
apply that rate.  In the third administrative revi ew, the USDOC preliminary determined an "all others" 
rate of 4.26 per cent.290  Only when the margins of examined  exporters were revised in the final 
determination did a " lacuna  situation" present itself, in response to which the USDOC decided to 
apply the "all others" rate from the original inves tigation.  Again, this shows that in the third 
administrative review, the USDOC gave full and rene wed consideration to the question of the "all 
others" rates to be applied. 
7.222  In sum, the evidence before us shows that th e "all others" rates applied in each of the 
administrative reviews at issue were subject to fu ll consideration by the USDOC in each case.  The 
"all others rate" applied by the USDOC in each inst ance was a direct result of the margins calculated 
by the USDOC in that review .  It is only because the USDOC dete rmined that all such margins could 
not relied upon that the USDOC decided  to apply the same "all others" rate as had been applied in the 
original investigation.  Accordingly, the United States' citation to the findings of the panel in US – 
DRAMs  is inapposite.   
7.223  For these reasons, we reject the United States' argument that the "all others" rates applied by 
the USDOC in the second and third administrative re view are shielded from challenge under the Anti-
Dumping Agreement by virtue of Article 18.3.   
7.224  Turning to the substance of Viet Nam's claim, we  recall that the "all others" rate of 4.57 per 
cent initially applied by the USDOC in the original  investigation, and later applied again in the 
administrative reviews at issue, was the weighted av erage of the individual margins calculated for the 
three selected respondents in that investigation.291  Viet Nam argues that the USDOC had, in the 
original investigation, applied "model zeroing" in calculating these margins of dumping.292  Viet Nam 
supports this allegation with evidence similar to that which it provided in support of its claim that the 
USDOC applied "simple zeroing" in the calcula tion of individual margins in the second and third 
administrative reviews:  Viet Nam provides th e Panel with the USDOC's programming logs and 
computer programme outputs with respect to Mi nh Phu and Camimex, two Vietnamese respondents 
selected for individual examination in the investigation.293  Viet Nam also again relies on the Ferrier 
affidavit, which describes how the computer pr ogramme used by the USDOC in the original 
investigation implemented the US DOC's model zeroing methodology.294  The affidavit identifies 
certain lines of computer code in the "logs" that  implement the instruction to disregard negative 
comparison results in the calculation of the total an ti-dumping duties of the selected respondents.  The 
affidavit also refers to the "outputs", which corr oborate this removal by the computer programme of 
any comparison result of zero or below.  
                                                      
290 Preliminary Determination in the Third Administrative Review, Exhibit Viet Nam-18; and Final 
Determination in the Third Administrative Review, Exhibit Viet Nam-19, discussed supra , para. 7.199. 
291 Final Determination in the Original Investigation, p. 71009 and Issues and Decision Memorandum, 
pp. 28-29, Exhibit Viet Nam-06;  Amended Final Dete rmination in the Original Investigation, Exhibit 
Viet Nam-07, pp. 5153-5154. 
292 Viet Nam's first written submission, paras. 29-32;  Viet Nam's second written submission, para. 58.  
See supra , para. 7.15 for Viet Nam's description of the U.S. "model zeroing" methodology. 
293 Viet Nam's first written submi ssion, para. 45, referring to USDOC Computer Programme Log for 
Minh Phu in the Original Investigation, Exhibit Viet Nam-34;  USDOC Computer Programme Log for 
Camimex in the Original Investigation, Exhibit Viet Nam-35;  Computer Programme Output for Minh Phu in 
the Original Investigation, Exhibit Viet Nam-42;  Computer Programme Output for Camimex in the Original 
Investigation, Exhibit Viet Nam-43.  
294 Ferrier affidavit, Exhibit Viet Nam-33, paras. 11-26.  This is the same affidavit discussed 
supra ,para. 7.78.  WT/DS404/R 
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 7.225  Finally, Viet Nam also refers us to the I ssues and Decision Memorandum published with the 
final results of the original investigation, in  which the USDOC indicates that, in calculating the 
margins of dumping of indivi dually investigated exporters: 
"[W]e made model-specific comparisons of weighted average export prices with 
weighted-average normal values of compar able merchandise. ... We then combined 
the dumping margins found based upon these comparisons, without permitting 
non-dumped comparisons to reduce the dumping margins found on distinct models of 
subject merchandise, in order to calcula te the weighted-average dumping margin".295  
7.226  The United States neither seeks to rebut Viet Nam's assertion that the USDOC applied model 
zeroing in the original investigation, nor provi des any evidence contradicting the evidence put 
forward by Viet Nam.  In th ese circumstances, we are satisfi ed that the evidence submitted by 
Viet Nam establishes that the USDOC:  (i) applie d model zeroing when calculating the margins of 
dumping for selected respondents in the original i nvestigation, and (ii) in the second and third 
administrative reviews, determined the maximum a llowable "all others" rate on the basis of these 
margins of dumping, which had been calculated with zeroing in the original investigation.   In doing 
so the USDOC implicitly determined that the maxi mum allowable "all others" rate could be based on 
dumping margins calculated with zeroing.   
7.227  Since, in the second and third administrative revi ews, the USDOC applied an "all others" rate 
(and therefore implicitly also a maximum allowabl e "all others" rate) on the basis of margins of 
dumping that had been calculated with zeroing in the original investigation, we find that the USDOC acted inconsistently with Article 9.4 of the Anti-Dumping Agreement in these reviews.
296  
3. Viet Nam's argument with respect to th e USDOC's reliance on margins of dumping 
from a prior proceeding and Viet Nam's claims under Articles 2.4, 2.4.2, 9.3, 17.6(i) of 
the Anti-Dumping Agreement 
7.228  We recall Viet Nam's second argument under Ar ticle 9.4, namely that the USDOC acted 
inconsistently with the United States' obligations  under that provision because it imposed, in the 
second and third administrative reviews, an "all othe rs" rate determined on the basis of margins of 
dumping that had been calculated in a prior proceeding, which "all others" rate was prejudicial to non-selected respondents.  Moreover, we recall that  in addition to its claims under Article 9.4, 
Viet Nam makes claims of viola tion under Articles 9.3, 2.4.2, 2.4 and 17.6(i) of the Anti-Dumping 
Agreement.
297 
                                                      
295 Issues and Decision Memorandum in the Original Investigation, Exhibit Viet Nam-06, p. 12, cited 
by Viet Nam in its first written submission, para. 43 and in its second written submission, para. 57.  We note 
that the evidence submitted by Viet Na m shows that subsequent to the origin al investigation in this proceeding, 
the USDOC altered its anti-dumping methodology in orig inal investigations:  The USDOC announced, in a 
notice published on 27 December 2006 that going forward, it would "no longer make average-to-average 
comparisons in investigations without prov iding offsets for non-dumped comparisons." ( Antidumping 
Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation;  
Final Modification , 27 December 2006, Exhibit Viet Nam-66, cited in Viet Nam's first written submission,  
para. 34) 
296 Our findings concern the USDOC's reliance  on dumping margins calculated not in accordance with 
Article 2 of the Anti-Dumping Agreement to establish the "all others" rate applied in each of the administrative 
reviews here at issue .  We are not, however, making any findings with respect to the consistency, with the U.S. 
obligations under the Anti-Dumping Agreement, of the USDOC's actions and determinations in the original 
investigation.  Nor should our findings be read as sugge sting that those actions and determinations were subject 
to the disciplines of the Anti-Dumping Agreement.  
297 See, supra  para. 7.200. WT/DS404/R 
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 7.229  We are of the view that our findings above that the United States acted inconsistently with its 
obligations under Article 9.4 of the Anti-Dumping Agreement suffice to resolve the dispute between 
the parties with respect to the measures at issue.   In our view, making additional findings under the 
same provision or making findings under other pr ovisions of the Anti-Dumping Agreement would not 
contribute to the resolution of the dispute betw een the parties or assist in any potential 
implementation.  For these reasons, we do not consid er Viet Nam's argument that the United States 
acted inconsistently with Article 9.4 by virtue of the USDOC's application of an "all others" rate "that 
fails to consider the results of the individuall y-investigated respondents in the contemporaneous 
proceeding and produces an antidumping duty prejudi cial to companies not selected for individual 
investigation", and we exercise judicial economy in respect of Viet Nam's claims under Articles 9.3, 
2.4.2, and 2.4 of the Anti-Dumping Agreement.  
7.230  With respect to Article 17.6(i), as the United States notes298, Viet Nam's panel request makes 
no reference to this provision.  For this reason, we  consider that Viet Nam's claim of violation of 
Article 17.6(i) of the Anti-Dumping Agreemen t is not within our terms of reference. 
G. VIET NAM'S CLAIMS CONCERNING THE RATE ASSIGNED TO THE VIETNAM -WIDE ENTITY  
7.231  Viet Nam challenges the rate assigned to the Vietnam-wide entity in the second and third 
administrative reviews.  Viet Nam's claims concern (i) the USDOC's failure to assign to the Vietnam-wide entity an "all others" rate, and (ii) th e assignment instead to the Vietnam-wide entity of 
a rate based on facts available.  Viet Nam's claims are based on Articles 6.8, 9.4, 17.6(i), and 
Annex II, of the Anti-Dumping Agreement. 
7.232  The United States asks us to reject Viet Nam's claims. 
1. Introduction 
7.233  Before addressing Viet Nam's claims, we first set out the relevant facts in light of which the 
issues raised by Viet Nam's claims must be examined. 
7.234  We recall that, in the two reviews at issue, th e USDOC limited its examination in the manner 
provided for in the second sentence of Article 6. 10 of the Anti-Dumping Agreement, because of the 
large number of firms involved.
299  The second sentence of Article 6.10 provides: 
"In cases where the number of exporters, produ cers, importers or types of products 
involved is so large as to make such a determination impracticable, the authorities 
may limit their examination either to a reasonable number of interested parties or 
products by using samples which are statis tically valid on the basis of information 
available to the authorities at the time of the selection, or to the largest percentage of 
the volume of the exports from the country  in question which can reasonably be 
investigated." 
7.235  Thus, while the second sentence of Article 6.10 a llows authorities to limit the scope of their 
examination, that provision also ensures that, in  cases where authorities do so, a minimum number of 
exporters or producers (or "respondents") ar e nevertheless examined individually.300  Whereas the 
maximum anti-dumping rate to be applied to selected  exporters is determined by their individual 
margins of dumping (in accordance with Article 9.3 of the Anti-Dumping Agreement), the question 
                                                      
298 United States' second written submission, para. 75. 
299 See, supra  para. 7.147.  
300 We refer to those respondents selected for indivi dual examination as "selected" respondents.  We 
refer to those respondents not selected for indivi dual examination as "non-selected" respondents.  WT/DS404/R 
 Page 73 
 
 
 arises as to the maximum allowable amount of any "all others" rate assigned to non-selected 
exporters.  This issue is addressed by the relevant  part of Article 9.4 in the following terms: 
"When the authorities have limited their examination in accordance with the second 
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from 
exporters or producers not included in the examination shall not exceed: 
(i) the weighted average margin of dumping established with respect to 
the selected exporters or producers, 
… 
provided that the authorities shall disregard for the purpose of this paragraph any zero 
and de minimis  margins and margins established under  the circumstances referred to 
in paragraph 8 of Article 6. …" 
7.236  As noted above, the USDOC limited its examin ations in the second and third administrative 
reviews in the manner envisaged by the second se ntence of Article 6.10.  Having done so, the 
USDOC was therefore required to  select a minimum number of respondents for individual 
examination. 
7.237  We recall that the USDOC treat ed Viet Nam as a non-market economy.  As a result, the 
USDOC applied a rebuttable presumption that all sh rimp exporting companies are controlled by the 
Government of Viet Nam, such that they may be  treated as operating units of a single, government-
controlled, Vietnam-wide entity, rather than i ndividual exporters in their own right.  Exporting 
companies that could establish their eligibility for a separate rate, on the basis of their independence from government control, were either selected for individual examination, or assigned the "all others" 
rate (we refer to these companies as "separate ra te" companies).  All remaining exporting companies 
(which we refer to as "non-separate rate" compani es) were subject to the rate assigned to the 
Vietnam-wide entity.  In other words, the "all others" rate was only assigned to separate rate 
respondents, excluding therefore the Vietnam-wide entit y and its constituent parts.  In this regard, the 
USDOC's notice of initiation of the second administrative review stated that "[o]nly those respondents 
with separate rate status will be included in the group receiving the weighted-average margin 
calculated from the selected respondents."
301  
7.238  In the second administrative review, the USDOC  selected two separate rate companies for 
individual examination.  The USDOC selected three separate rate companies for individual 
examination in the third administrative review.  The USDOC did not select any non-separate rate 
companies for individual examination.  The rates assigned to the selected (separate rate) respondents 
were based on their individual margins of dumping (all of which were zero or de minimis ).  Other 
separate rate respondents received an "all others " rate of 4.57 per cent.  All non-separate rate 
respondents received the Vietnam-wide entity rate, se t at 25.76 per cent on the basis of facts available 
(i.e. the highest rate calculated in the petition that could be corroborated).302   
7.239  We begin by examining Viet Nam's claim under Article 9.4 of the Anti-Dumping Agreement, 
which concerns the USDOC's failure to assign an "all  others" rate to the Vietnam-wide entity.  After 
reviewing the text of that provision, we consider the possible impact of the Working Party Report of 
Viet Nam's Accession to the WTO.  We also cons ider whether, because all the margins of dumping 
for individually examined respondents in the sec ond and third administrative reviews were zero or 
de minimis , the USDOC could be considered to have vi olated any obligations under Article 9.4 in 
                                                      
301 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17100. 
302 United States' first written submission, para. 160. WT/DS404/R 
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 those reviews.  We subsequently examine whethe r the USDOC was entitled to assign a facts available 
rate to the Vietnam-wide entity, instead of an "a ll others" rate, because of non-cooperation by certain 
exporting companies treated as operating units of the Vietnam-wide entity. 
7.240  We recall that the USDOC conducted limited examinations, as envisaged by the second 
sentence of Article 6.10.  It is for this reason that  the issue of whether or not the USDOC should have 
assigned an "all others" rate, i.e. a rate for non-selected respondents, to the Vietnam-wide entity 
arises.  It is also for this reason that issues regarding alleged non-coopera tion by respondents at the 
sample selection stage arise. 
2. The USDOC's failure to assign the "all others" rate to the Vietnam-wide entity, viewed 
in light of Article 9.4 of the Anti-Dumping Agreement 
(a) Main arguments of the parties 
(i) Viet Nam 
7.241  Viet Nam's basic argument is that Article 9.4 governs the rate that should be applied to all 
companies not selected for individual examination, whet her or not they are eligible for a separate rate.  
Viet Nam's argument is based on the word "any" in the second line of Article 9.4.  Viet Nam 
interprets the use of this word to mean that Article 9.4 governs the assessment of anti-dumping duties 
to "any" company not selected for indi vidual examination, without exception.303  Viet Nam contends 
that Article 9.4 is absolute, in the sense that , where an investigating authority has limited its 
examination, it must calculate an anti-dumping duty for all companies not individually investigated, 
irrespective of any question of their eligibility for a se parate rate, that is no greater than the weighted 
average margin of dumping of the selected companies, excluding rates that are zero, de minimis , or 
based on facts available. 
(ii) United States 
7.242  In response, the United States notes that, in the second and third administrative reviews, the 
margins of dumping calculated for the two selected respondents were zero or de minimis .  The 
United States asserts that Article 9.4 does not provide  for any maximum allowable "all others" rate in 
such a lacuna  situation.304  According to the United States, therefore, the USDOC could not be found 
to have violated Article 9.4 in the second or third administrative reviews. 
(b) Main arguments of the third parties 
7.243  While some third parties expressed the view that the USDOC was entitled to treat separate 
legal entities as part of the Vietnam-wide entity, pr ovided the structural and commercial relationship 
between the State and exporting companies was properly examined, only China addressed whether or 
not the USDOC was entitled not to have applied an "all others" rate to the Vietnam-wide entity.  
China argues that the rate applied to the Vietnam-wi de entity is inconsistent with Article 9.4 because 
non-investigated exporters should necessarily receive the "all others" rate.  China argues that the 
provisions of the Anti-Dumping Agreement never re quire non-selected companies to first demonstrate 
that they should be assigned an "all-others" rate.305 
                                                      
303 Viet Nam's second written submission, para. 110;   Viet Nam's response to Panel question 27, 
para. 74. 
304 The United States makes this argumen t, for example, at para. 78 of its opening oral statement at the 
second meeting of the Panel. 
305 China's third-party oral statement, pages 1-2.  WT/DS404/R 
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 (c) Evaluation by the Panel 
7.244  As indicated above, we begin by considering the te xt of Article 9.4, which is set forth above.   
(i) The text of Article 9.4 
7.245  On its face, the text of Article 9.4 seems clear in requiring that, in the context of limited 
examinations envisaged by the second sentence of  Article 6.10, any rate assigned to non-selected 
respondents should not exceed the maximum allowable amount provided for in that provision.  This 
suggests that any exporter not selected for indivi dual examination should be  assigned an "all others" 
rate that does not exceed that maximum allowable am ount.  There is nothing in the text of Article 9.4 
suggesting that authorities are entitled to render app lication of an "all others " rate conditional on the 
fulfilment of some additional requirement.306   
(ii) Article 9.4 in light of Viet Nam's Protocol of Accession and the Working Party Report 
7.246  In its first written submission, the United States asserts that: 
"During Vietnam's accession negotiations , Members expressed concern about the 
influence of the Government of Vietnam on its economy and how such influence could affect cost and price comparisons in antidumping duty proceedings.  
Paragraph 254 of the Working Party Repor t reflects the concern among Members that 
government influence may create special di fficulties in determining cost and price 
comparability in the context of antidumpi ng and countervailing duty investigations, 
and that a strict comparison with Vietnamese costs and prices might not always be 
appropriate.  Indeed, the Working Party Report indicates that a dumping comparison using domestic costs and prices in Vietnam is not required for imports from Vietnam 
unless and until investigated producers demonstrate that market conditions exist in 
the industry producing the like product.  In light of the Working Party Report and the commitments made therein, Members are free to determine that, absent a 
demonstration to the contrary by Vietnamese producers, government influence will 
prevent market principles from functioning in the Vietnamese industry manufacturing 
the product under investigation."
307 
7.247  Initially, we had understood the United States to  argue that, because government influence 
over the Vietnam-wide entity prevented that entity from functioning on the basis of market principles, 
the USDOC was allowed by the provisions of the Working Party Report on the Accession of 
Viet Nam to the WTO ("Working Party Report") not to a pply an "all others" rate to that entity.  At the 
interim review, however, the United States clarifie d that, to the extent its argument relied on the 
Working Party Report, it was only as confirmation of the permissibility of treating the Vietnam-wide 
entity as a single exporter or producer.  Accordingl y, the United States does not rely on the Working 
Party Report to argue that the provisions thereof a llowed the USDOC not to apply an "all others" rate 
to the Vietnam-wide entity.  Nevertheless, as e xplained below, certain provisions of the Working 
Party Report address the application of the Anti-Dumping Agreement in the context of anti-dumping 
                                                      
306 The additional requirement to which we refer concerns the separate rate criterion, whereby 
application of an "all others" rate was made dependent on eligibility for separate rate status ("Only those 
respondents with separate rate status will be include d in the group receiving the weighted-average margin 
calculated from the selected respondents." (Notice of Initiation of the Second Administrative Review, Exhibit 
Viet Nam-12, p. 17100)).  For present purposes, we do no t consider it necessary to examine in greater detail the 
substantive basis for the distinction made by the US DOC between separate rate and non-separate rate 
respondents, including in particular the question of whether or not the USDOC was entitled to presume state 
control of shrimp exporting companies absent their showing of separate rate status. 
307 United States' first written submission, para. 146. (emphasis original) WT/DS404/R 
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 proceedings involving imports from non-market economies.  For this reason, it is appropriate for us to 
consider the interpretation of Article 9.4 in light of the Working Party Report. 
7.248  Viet Nam submits that there is nothing in Viet Nam's Protocol of Accession, including the 
Working Party Report, that would provide for an alte rnative interpretation of Ar ticle 9.4 in the context 
of imports from NME countries.  Viet Nam contends  that neither the Protocol of Accession nor the 
Working Party Report provide any basis for di fferential treatment to a company because of 
government ownership.308 
7.249  We note that, in negotiating Viet Nam's accession to the WTO, some Members did identify 
certain difficulties that might arise in anti-dumping proceedings involving imports from Viet Nam 
because that country had not yet transitioned to a fu ll market economy.  In this regard, we note that 
paragraph 254 of the Working Party Report provides: 
"Several Members noted that Viet Nam was continuing the process of transition 
towards a full market economy.  T hose Members noted that under those 
circumstances, in the case of imports of  Vietnamese origin into a WTO Member, 
special difficulties could exist in determining cost and price comparability in the 
context of anti-dumping investigations and countervailing duty investigations.  Those 
Members stated that in such cases, the importing WTO Member might find it necessary to take into account the possibility that a strict comparison with domestic 
costs and prices in Viet Nam might not always be appropriate."
309 
7.250  Paragraph 255 of the Working Party Report explains that, in light of such difficulties: 
"The representative of Viet Nam confirmed that, upon accession, the following would 
apply − Article VI of the GATT 1994, the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping 
Agreement") and the SCM Agreement shall apply in proceedings involving exports 
from Viet Nam into a WTO Member consistent with the following: 
(a) In determining price comparability under Article VI of the 
GATT 1994 and the Anti-Dumping Agreement, the importing WTO 
Member shall use either Vietnamese prices or costs for the industry under investigation or a methodology that is not based on a strict 
comparison with domestic prices or costs in Viet Nam based on the 
following rules: 
(i) If the producers under investigation can clearly show 
that market economy conditions prevail in the industry 
producing the like product with regard to the manufacture, production and sale of that product, the importing WTO 
Member shall use Vietnamese pric es or costs for the industry 
under investigation in determining price comparability; 
(ii) The importing WTO Member may use a 
methodology that is not based on a strict comparison with 
domestic prices or costs in Viet Nam if the producers under investigation cannot clearly show that market economy 
conditions prevail in the industry producing the like product 
                                                      
308 Viet Nam's second written submission, para. 95. 
309 Working Party Report, WT/ACC/VNM/48, para. 254.  WT/DS404/R 
 Page 77 
 
 
 with regard to manufacture, production and sale of that 
product."310 
7.251  Thus, because of difficulties resulting from the fa ct that Viet Nam was still continuing the 
process of transition towards a full market economy , Members agreed that investigating authorities 
need not necessarily calculate normal value on the basis of domestic prices in Viet Nam, as would 
otherwise be required by Article 2 of the Anti-Du mping Agreement.  However, we see nothing in 
paragraphs 254 and 255 of the Working Party Report , or any other provision thereof, indicating that 
the interpretation and/or application of any ot her provision of the Anti-Dumping Agreement, 
including Article 9.4, should be modified to accommodate any special difficulties that might arise in a 
proceeding involving imports from Viet Nam.  In particular, there is nothing in the Working Party 
Report indicating that an investigating authority is entitled to render application of an "all others" rate 
subject to some additional require ment not provided for in Article 9.4.  Furthermore, whereas sub-
paragraphs (i) and (ii) of paragr aph 255 allow an investigating aut hority to modify its investigation 
depending on whether "producers under investigati on" can or cannot "clearly show that market 
economy conditions prevail" in the relevant indust ry, the investigating authority may only do so in 
respect of price comparability.  Sub-paragraphs (i) and (ii) of paragraph 255 do not allow an 
investigating authority to assign "all others" rates to non-selected respondents on the basis of whether or not market conditions prevail.  Accordingl y, the Working Party Report has no bearing on our 
evaluation of Viet Nam's claim under Artic le 9.4 of the Anti-Dumping Agreement. 
7.252  We next consider the United States' argum ent regarding the fact that a so-called lacuna  
situation arose in the second and third administrative reviews. 
(iii) The application of Article 9.4 in a lacuna  situation 
7.253  With regard to the United States' argument that the USDOC could not be found to have 
violated Article 9.4 because that provision does not provide for any maximum allowable "all others" 
rate in cases where the margins of a ll selected exporters are either zero, de minimis , or based on facts 
available, the text of Article 9.4, interpreted in the light of Viet Nam's Protocol of Accession and the 
accompanying Working Party Report, provides no lega l basis for the USDOC not to have applied an 
"all others" rate to the Vietnam-wide entity.  T hus, in those factual circumstances in which a 
maximum allowable "all others" rate may be dete rmined pursuant to Article 9.4(i), there is no 
question that an "all others" rate should have  been applied to both selected and non-selected 
respondents.  The Panel acknowledges that where all margins calculated for individually examined 
exporters/producers are zero or de minimis , or result from application of facts available, it is not 
possible to determine the ceiling which the "all othe rs" rate shall not exceed.  It does not follow, 
however, from this lacuna  that a Member is entitled to differentia te, in terms of the application of an 
all others rate, between expor ters/producers that qualify for separate rate treatment and 
exporters/producers that fail to qualify for such treat ment and are treated as part of the Vietnam-wide 
entity. If such differentiation is not permissible in cases where Articles 9.4(i) permits the calculation 
of the maximum allowable "all others" rate, it is unclear why such differentiation would be 
permissible in lacuna  situations.
311  The Panel recalls in this respect that the Appellate Body has 
                                                      
310 Working Party Report, WT/ACC/VNM/48, extract fr om para. 255.  We note that, according to 
para. 2 of Part I of the Protocol on the Accession of  Viet Nam to the WTO (WT/ L/662), the commitments set 
forth in para. 527 of the Working Party Report, which include para. 255 thereof, shall be an integral part of the 
WTO Agreement.  It is appropriate,  therefore, that we read Article 9.4 of the Anti-Dumping Agreement in 
conjunction with para. 255 of the Working Party Report. 
311 Furthermore, we observe that the USDOC stated in its notice of initiation of the 
second administrative review that "[o]nly those responden ts with separate rate status will be included in the 
group receiving the weighted-average margin calculated fro m the selected respondents" (Notice of Initiation of 
the Second Administrative Review, Exhibit Viet Nam-12, p. 17100).  Even outside of a lacuna  situation, 
therefore, the USDOC still would not have applied an "all others" rate to the Vietnam-wide entity. WT/DS404/R 
Page 78 
 
 
 specifically rejected the argument that Article 9.4 imposes no obligations in lacuna  situations.  
Specifically, as we have noted above, in US – Zeroing (EC) (Article 21.5 – EC)  the Appellate Body 
found that:   
"[T]he fact that all margins of dumping for the investigated exporters fall within one 
of the categories that Article 9.4 directs investigating authorities to disregard, for 
purposes of that paragraph, does not imply that the investigating authorities' 
discretion to apply duties on non-inves tigated exporters is unbounded.  The lacuna  
that the Appellate Body recognized to ex ist in Article 9.4 is one of a specific method .  
Thus, the absence of guidance in Article 9.4 on what particular methodology to 
follow does not imply an absence of any oblig ation with respect to the "all others" 
rate applicable to non-investigated expor ters where all margins of dumping for the 
investigated exporters are either zero, de minimis , or based on facts available."312 
7.254  We consider that our finding in response to th e abovementioned U.S. ar gument is consistent 
with this finding by the Appellate Body.  We note that the Appellate Body's finding does not concern 
the scope of respondents that should be assigned an "all others" rate.  In other words, it does not 
suggest that the existence of the lacuna  situation allows an investigating authority to not assign an "all 
others" rate to "non-investigated exporters" that wo uld otherwise have been assigned such rate.  The 
Appellate Body's finding merely concerns the maxi mum allowable rate that may be assigned to the 
non-selected respondents. 
(iv) Summary 
7.255  We have examined the text of Article 9.4, read  in light of certain provisions of the Working 
Party Report.  We have also considered the fact th at, in the reviews at issu e, the margins of selected 
respondents were zero or de minimis .  Our analysis indicates that the USDOC's decision not to apply 
an "all others" rate to the Vietnam-wide entity is inconsistent with Article 9.4 of the Anti-Dumping 
Agreement. 
7.256  We next consider the parties' arguments concerning Article 6.8 of the Anti-Dumping 
Agreement, and the potential relevance of that provision to our analysis under Article 9.4.  
3. The USDOC's treatment of the Vietnam-wide enti ty viewed in light of Article 6.8 of the 
Anti-Dumping Agreement 
(a) Main arguments of the parties 
(i) Viet Nam 
7.257  Viet Nam invokes Article 6.8 and Annex II as the basis for an affirmative claim against the 
USDOC's decision to assign a facts available rate to the Vietnam-wide entity.  Viet Nam claims that 
the USDOC was not entitled to apply facts availabl e in the second and third administrative reviews, 
because the USDOC failed to comply with the requirem ents of Article 6.8.  In particular, Viet Nam 
submits that respondents did not fail to provide info rmation that was "necessa ry" within the meaning 
of Article 6.8.  In addition, Viet Nam submits th at Article 6.8 only applies in respect of respondents 
selected for individual examination, and therefore ha s no application in respect of the rate applied to 
non-selected respondents. 
7.258  Furthermore, Viet Nam submits that the USDOC 's attempt to bring its actions within the 
ambit of Article 6.8 and paragraph 7 of Annex II of the Anti-Dumping Agreement by reliance on the 
                                                      
312 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 453. (emphasis original)  WT/DS404/R 
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 so-called quantity and value questionnaires is disinge nuous.  According to Viet Nam, the application 
of the Vietnam-wide rate had nothing to do with  whether or not quantity and value information was 
provided by certain respondents.  Rather it ha d to do with whether individual entities had 
demonstrated the absence of government control over their export activities.313  Viet Nam therefore 
denies that Article 6.8 could justify the non-applicati on of an "all others" rate to the Vietnam-wide 
entity.  According to Viet Nam, the obligations in Article 9.4 are absolute, and therefore independent 
of the application of the Article 6.8 facts availa ble mechanism in respect of non-cooperation at the 
sample selection stage. 
(ii) United States 
7.259  The United States denies that the USDOC fa iled to comply with the requirements of 
Article 6.8.  The United States also argues that, in cases of non-cooperation by respondents at the time that the authority selects respondents for individual examination (in cases where the authority's 
examination is limited under Article 6.10), the aut hority is entitled to apply a facts available rate, 
rather than an "all others" rate, irrespective of th e requirements of Article 9.4.  The United States 
asserts that "[o]therwise, for example, if a company were aware that is was dumping at a high level 
and it was one of the largest exporters to the Un ited States of subject merchandise, it would have no 
incentive to respond to the quantity and value questi onnaire because it would receive a lower rate by 
not cooperating".
314 
(b) Evaluation by the Panel 
7.260  We begin by addressing the parties' arguments regarding the interaction between Articles 6.8 
and 9.4.  
(i) Interaction between Articles 9.4 and 6.8 
7.261  The USDOC found that 35 exporting companies had failed to respond to the USDOC's 
"quantity and value" ("Q&V") ques tionnaire.  According to the USDOC, that data was necessary in 
order for the USDOC to determine which respondents  to select for individual examination.  The 
United States contends that, as a result of such non-cooperation, the USDOC was entitled to apply a 
facts available rate to the Vietnam-wide entity instead of an "all others" rate.  
7.262  Article 6.8, which regulates the use of facts available, provides: 
"In cases in which any interested party refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes 
the investigation, preliminary and final de terminations, affirma tive or negative, may 
be made on the basis of the facts available.  The provisions of Annex II shall be 
observed in the application of this paragraph." 
7.263  Regarding Viet Nam's argument that the Article  6.8 facts available mechanism does not apply 
in respect of non-selected respondents, we note that the first sentence of Article 6.8 envisages the use 
of facts available in cases of non-cooperation by "any" interested party.  The reference to 
non-cooperation by "any" interested party suggests that  Article 6.8 is of broad application.  There is 
nothing in the text of Article 6.8 to suggest that the facts available mechanism only applies in respect 
of non-cooperation by a limited categor y of interested parties.  In particular, there is no indication in 
the text to suggest that, in cases of limited examin ation (under Article 6.10), Article 6.8 only allows 
                                                      
313 Viet Nam's opening oral statement at th e second meeting of the Panel, para. 34. 
314 United States' first written submission, para. 160. WT/DS404/R 
Page 80 
 
 
 the use of facts available in respect of those inte rested parties that were selected for individual 
examination, as alleged by Viet Nam. 
7.264  We recall that the USDOC purported to find non-cooperation at the time it sought to select 
respondents for individual examination.  In principle,  if a respondent fails to provide information that 
the investigating authority needs to determine th e composition of the sample in cases of limited 
examination, the authority is unable to establis h whether that respondent should be selected for 
individual examination, or placed in the resi dual category of non-selected respondents and assigned 
the all-others rate.  In other words, the investiga ting authority would not be able to determine whether 
or not the non-cooperating respondent should be sel ected or non-selected for the purpose of applying 
Article 9.4.  In these factual circumstances, we acknowledge that it would not necessarily be 
unreasonable for an investigating authority to assign a facts available rate to those respondents that 
failed to cooperate at the sample selection stage, provided the requirements of Article 6.8 are fulfilled. 
7.265  We need not reach a firm conclusion on this issu e, though, since we are not persuaded that the 
reason the USDOC did not assign an "all others" rate  to the Vietnam-wide entity was non-cooperation 
by constituent parts of the Vietnam-wide entity at the sample selection stage.  In this regard, we are 
struck by the fact that, already in its notice of initiation of the second administrative review, the 
USDOC had stated that "[o]nly those respondents with  separate rate status will be included in the 
group receiving the weighted-average margin  calculated from the selected respondents."315  T h i s  
statement indicates that, even before any questionna ire had been issued, and before any issue of non-
cooperation could have arisen, the USDOC had already resolved not to  apply an "all others" rate to 
the Vietnam-wide entity.  We conclude from this st atement that, even if the exporting companies had 
cooperated fully with the USDOC, the Vietnam-wide entity still would not have been assigned an "all 
others" rate.316  In these circumstances, we do not consider  that there is any reasonable basis on which 
the USDOC could subsequently refer to non-coop eration by non-separate rate respondents as the 
reason for not having applied an "all others" rate to the Vietnam-wide entity.317 
7.266   As a result, there is not strictly any need for us to examine whether or not the USDOC's 
application of the Article 6.8 facts available mechanism met the requirements of that provision.  We 
shall address this issue, though, in case the Appe llate Body might disagree with our conclusion on 
appeal. 
                                                      
315 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17100. 
316 In our view, this is a reflection of the fact th at, under the U.S. regime for anti-dumping proceedings 
involving non-market economies, the Vietnam-wide entity, as a non-separate rate respondent, will inevitably be 
assigned the Vietnam-wide entity rate, rather than an "all others" rate calculated on the basis of the margins of 
dumping of separate rate respondents selected for individual examination.  We note that, as the USDOC 
explained in its Notice of Initiation of the Second Administrative Review (p. 17099), "[i]t is the Department's 
policy" to assign a single anti-dumping duty rate to non- separate respondents.  This statement of USDOC policy 
is consistent with the USDOC's Anti-Dumping Manual, whic h also states that "[t]hos e exporters that do not or 
cannot demonstrate that they are separate from th e government-wide entity receive the NME-wide rate" 
(USDOC Anti-Dumping Manual, Chapter 10, Exhibit Viet Nam-31, Section III.A, page 3).  The USDOC's Anti-
Dumping Manual clearly distinguishes between the "NME-wide rate", addresse d at Section IV of Chapter 10 of 
the Manual, and the "Separate Rates" (assigned to sepa rate rate respondents), addressed at Section III of 
Chapter 10 of the Manual.  See also our discussion of the USDOC's exclusion of non-separate rate respondents 
from selection for individual review, below at paras. 7.272-7.273.  The USDOC effectively operates parallel 
systems for determining duties in anti-dumping dumping proceedings involving imports from non-market 
economies: one for separate rate respondents, and one for the remaining non-separate rate respondents. 
317 We agree in this regard with the finding by the panel in Guatemala – Cement II  that: "Although 
there are certain consequences (under Article 6.8) for in terested parties if they fail to cooperate with an 
investigating authority, in our view such consequences only  arise if the investigating authority itself has acted in 
a reasonable, objective and impa rtial manner." (Panel Report, Guatemala – Cement II , para. 8.251)  WT/DS404/R 
 Page 81 
 
 
 (ii) Whether the USDOC complied with the disciplines of Article 6.8 in applying a facts available 
rate to the Vietnam-wide entity 
7.267  Viet Nam claims that the USDOC's use of f acts available to determine the dumping rate 
applied to the Vietnam-wide entity in the second administrative review was inconsistent with 
Article 6.8 and Annex II of the Anti-Dumping Agreement.318  Viet Nam contends that the Q&V data 
requested by the USDOC was not "necessary", such that the failure  of entities to provide that 
information could not justify the use of facts availa ble.  Viet Nam submits that information is only 
"necessary" if it is needed to determine a margin of dumping for a selected exporter or producer.  Viet Nam also asserts that the fact that the Q& V data requested by the USDOC was not "necessary" 
in the second administrative review is demonstrated  by the fact that the USDOC did not need to 
request that data in the third administrative revi ew, but instead obtained that data from another U.S. 
Government agency. 
7.268  The United States asks the Panel to reject Viet Nam's arguments.  The United States contends 
that the information sought by the USDOC from the 35 exporting companies was "necessary", and that the USDOC complied with all the requirements of Article 6.8 in assigning a facts available rate to 
the Vietnam-wide entity. 
7.269  As explained above, we are examining whethe r or not the USDOC fulfilled the criteria of 
Article 6.8 when assigning a facts available rate to the Vietnam-wide entity.  As a result of differences 
in the factual circumstances of the second and third administrative reviews, we address each review 
separately, starting with the second. 
 Second administrative review 
7.270  In the second administrative review, the USDOC  applied a facts available rate to the 
Vietnam-wide entity on the basis of non-coopera tion by both the Vietnam-wide entity, and the 
35 exporting companies subject to the Vietnam-wide entity rate.  (Neither the Vietnam-wide entity, 
nor any of the 35 exporting companie s found to constitute that entity, ha d been selected for individual 
examination.)  In its preliminar y determination, the USDOC found that the 35 exporting companies 
had failed to respond to the USDOC's Q&V and separa te rate questionnaires, or the follow-up letters 
sent by the Department.319  In its final determination, the USDOC found that the 35 exporting 
companies had failed to respond onl y to the USDOC's Q&V questionnaire.320 
7.271  We recall that the text of Article  6.8 is set forth at paragraph 7.262 above.  In accordance with 
the first sentence of Article 6.8, determinations may be made on the basis of facts available "[i]n cases where any interested parts refuses access to, or otherwise does not provide, necessary information".  
We shall begin by examining whether or not the USDOC properly found that the 35 exporting 
                                                      
318 We note that, in its request for the establishment of  a panel, Viet Nam refers to the application of the 
facts available Vietnam-wide entity rate to companies that "responded timely and fully to the questionnaires 
issued by USDOC" (WT/DS404/5, Annex G-2, page 4).  In its response to Panel question 27 (para. 72), 
Viet Nam also refers to the possibility of a (cooper ative) company providing information to the USDOC 
indicating that the company is not independent of go vernment control, and ther efore receiving the facts 
available Vietnam-wide entity rate.  However, Viet Nam has not produced any evidence indicating that any such 
cooperative company was assigned the Vietnam-wide entity rate based on facts available.  Rather, the evidence 
on the record regarding the second administrative review indicates that all 35 expor ting companies subject to the 
facts available Vietnam-wide entity rate were found not to have responded to the USDOC's request for Q&V 
data. 
319 Preliminary Determination in the Second Administrative Review, Exhibit Viet Nam-14, p. 12131. 
(footnotes omitted) 
320 Final Determination in the Second Administrative Review, Exhibit Viet Nam-15, p. 52275. 
(footnote omitted) WT/DS404/R 
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 companies treated as constituent parts of the Viet nam-wide entity had failed to provide "necessary" 
information, in the form of Q&V data. 
7.272  The USDOC alleged that Q&V data was "nec essary" in order for the USDOC to select 
respondents for individual examination.  As explained above, it would not necessarily be 
unreasonable for an investigating authority to assign a facts available rate to those respondents that 
failed to cooperate at the sample selection stage, prov ided the requirements of Article 6.8 are fulfilled.  
One consideration in this regard would be whethe r or not the investigating authority had properly 
designated information that alle gedly non-cooperative respondents failed to provide as "necessary" 
within the meaning of Article 6.8.  As to whethe r or not the Q&V data requested by the USDOC was 
properly designated by the USDOC as "necessary", we recall that the USDOC stated in its notice of 
initiation of the second administrative review that "[b]ecause the Department intends to select the 
mandatory respondents by selecting the exporters /producers accounting for the largest volume of 
subject merchandise exported to the United States du ring the period of review, the Department will 
require all potential respondents to demonstr ate their eligibility for a separate rate."321  We consider 
this statement in light of the USDOC's assertion in the notice of initiation of the first administrative 
review that it would "allow only those respondents w ith separate rate status to be included in the 
sampling pool."322  We further recall the USDOC's assertion,  earlier in its notice of initiation of the 
second administrative review, that "[i]t is the Department's policy" to assign all non-separate rate 
respondents the NME-wide rate.323  Taken together, we consider that these various statements by the 
USDOC make it clear that non-separate rate res pondents would not be selected for individual 
examination.  
7.273  This observation is supported by the distincti on drawn between separate rate respondents and 
non-separate rate respondents in Chapter 10 of  the USDOC's Anti-Dumping Manual ("Manual")324, 
which addresses USDOC procedures in respect of anti-dumping proceedings involving non-market 
economies.  Section III of Chapter 10 of the Manu al deals with "Separate Rates".  Part G of 
Section III explains how the USDOC selects separat e rate respondents for individual examination in 
cases where it will conduct a limited examination.  Section IV of Chapter 10 of the Manual deals with 
"The NME-Wide Rate".  There is no explanation in  that Section of how the USDOC might select non-
separate rate respondents for individual examination.   Instead, Section IV st ates that the NME-wide 
rate "may be based on adverse facts available if, for example, some exporters that are part of the 
NME-wide entity do not respond to the antidumping qu estionnaire."  Section IV further provides that 
"[i]n many cases, the Department concludes that  some part of the NME-wide entity has not 
cooperated in the proceeding because those that have responded do not account for all imports of 
subject merchandise."  Thus, while Section III (Part G) of the Manual explains how separate rate 
respondents might be selected for individual examination, Section IV merely explains that the 
(NME-wide entity) rate assigned to non-separate ra te respondents is often based on facts available.325  
                                                      
321 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17100. 
322 Notice of Initiation of the First Administrative Review, Exhibit Viet Nam-08, p. 17818.  Although 
the first administrative review is not on e of the measures at issue, we cons ider it appropriate to consider this 
evidence as factual context for our re view of the USDOC's treatment of n on-selected respondents in the second 
and third administrative reviews. 
323 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17099.  This 
statement of USDOC policy is consistent with Chapte r 10 of the USDOC's Anti-Dumping Manual ("Manual"), 
which also states that "[t]hose exporters that do not or  cannot demonstrate that th ey are separate from the 
government-wide entity receive the NME-wide rate" (USDOC Anti-Dumpi ng Manual, Exhibit Viet Nam-31, 
Section III.A, p. 3). 
324 We note that Viet Nam has not advanced any cl aims against the USDOC's Manual "as such".  We 
do not consider that the ab sence of any claim "as such " should preclude our consideration of the Manual as 
evidence in the context of Viet  Nam's "as applied" claims.  
325 The Panel asked the United States how the USDOC would calculate the rate applied to the 
Vietnam-wide entity if: (i) the USDOC applied sampling but the Vietnam-wide entity was not selected for  WT/DS404/R 
 Page 83 
 
 
 The absence of any discussion of the potential selection of non-separate rate respondents for 
individual examination in Section IV of the Manual is  a reflection, we believe, of the fact that that 
such respondents would not be selected for individual examination. 
7.274  In light of these factors, ta ken together, we consider th at the USDOC had determined326 that 
non-separate rate respondents would not be selecte d for individual examination in the second 
administrative review before any question of non- cooperation by non-selected respondents could have 
arisen.327  In these circumstances, we do not consider th at the USDOC could properly have designated 
Q&V data from non-separate rate respondents as "necess ary" in the meaning of Article 6.8 of the 
Anti-Dumping Agreement.  Thus, the USDOC's appli cation of facts available as a result of exporting 
companies' failure to provide that data could not have justified the use of facts available under that 
provision.  Accordingly, the USDOC's application of a facts available rate to  the Vietnam-wide entity 
in the second administrative review was not cons istent with Article 6.8 of the Anti-Dumping 
Agreement.328  In view of this finding, it is not necessary for us to consider Viet Nam's claim under 
Annex II of the Anti-Dumping Agreement. 
 Third administrative review 
7.275  The United States asserts that the USDOC did not apply a facts available rate to the 
Vietnam-wide entity in the third administrative revi ew.  Instead, the United States asserts that the 
USDOC "applied to the Vietnam-wide entity the sa me rate applied to it in the most recently 
completed proceeding, because this was 'the only rate  ever determined for th e Vietnam-wide entity in 
this proceeding.'"329 
7.276  Viet Nam notes the USDOC's decision to "assign[] the entity's current rate and only rate ever 
determined for this entity in this proceeding"330.  According to Viet Nam, left unsaid in the USDOC's 
decision is the fact that the only rate ever app lied to the Vietnam-wide entity was based upon adverse 
                                                                                                                                                                     
individual examination; (ii) the use of facts available was not justified in respect of the Vietnam-wide entity; 
and (iii) a lacuna  situation did not arise (Panel question 63C).  The United States replied: 
"We would note that the factual situation described in the Panel’s question was not present in 
either the second or third administrative revi ew.  In any event, Co mmerce determines the 
appropriate dumping rate to apply on a case-by-case basis, based on the particular facts and 
circumstances before it, and the arguments of the parties presen ted in proceeding.  
Accordingly, the United States is not in a positi on to speculate, in the absence of specific facts 
and arguments presented in the context of a particular case, on what determinations 
Commerce might make under such hypothetical circumstances." 
326 We asked the United States certain questions regarding the USDOC's treatment of non-separate rate 
respondents (questions 29, 61 and 63).  The U.S. replie s indicate that the USDOC is not precluded in U.S. law 
from selecting non-separate respondents for individual examination.  Viet Nam's claim concerns the USDOC's 
application of U.S. law, rath er than the U.S. law as such.  Accordingly,  our analysis need not consider the legal 
possibility that the USDOC might have selected non-separate rate respondents for individual examination.  
Instead, we focus on the fact that, in  the second administrative review, the USDOC has determined not to do so. 
327 Viet Nam has not raised any claim under Article 6.10 of the Anti-Dumping Agreement regarding 
the USDOC's failure to consider non-separate rate respondents for individual review.  However, the absence of 
any Article 6.10 claim does not preclude us from considering this issue when evaluating the USDOC's finding 
of non-cooperation by non-separate rate respondents. 
328 In view of this finding, we need not addr ess Viet Nam's argument that the USDOC could not 
properly have found non-cooperation by the Vietnam-wide entity on the basis of non-cooperation by its 
constituent parts (for example, Viet Nam's response to Panel question 35, para. 88). 
329 United States' first written submission, para. 164. (footnote omitted) 
330 Viet Nam's opening statement at the second mee ting of the Panel, para. 29 (citing to Preliminary 
Determination in the Third Administrative Review, Exhibit Viet Nam-18, pp. 10009, 10014 (unchanged in Final 
Determination)). WT/DS404/R 
Page 84 
 
 
 facts available.  Viet Nam asserts th at the fact that the USDOC had pr eviously applied the rate to the 
Vietnam-wide entity does not alter the facts available nature of the rate. 
7.277  The USDOC did not explicitly apply a facts available rate in the third administrative review.  
This is because, unlike in the second administra tive review, the USDOC did not seek any Q&V data 
from any exporting entity in the third administra tive review.  Instead, the USDOC obtained the Q&V 
data it considered necessary for the purpose of selec ting exporters for individual examination from the 
USCBP.  If we were to take a formalistic approa ch regarding the third administrative review, we 
would conclude that the rate assigned to the Vietnam- wide entity in that review was not based on facts 
available.  This is because there was no indicati on by the USDOC, at any time, that it was applying 
facts available.  Under this approach, the questi on of the interaction between Articles 6.8 and 9.4 
would not arise. 
7.278  However, in performing our objective assessment of  the matter, we consider it appropriate to 
take a less formalistic view of the USDOC's actions in the third administrative review.  In this respect, 
we agree with Viet Nam's assertion331 that there are essentially three types of rate that may be 
assigned under the Anti-Dumping Agreement: an individu al rate consistent with Article 2, an "all 
others" rate consistent with Article  9.4, or a facts available rate c onsistent with Article 6.8.  The 
United States has not characterised the rate as signed to the Vietnam-wide entity in the third 
administrative review as a rate determined unde r either Article 2 or 9.4 of the Anti-Dumping 
Agreement.  Nor is there any eviden ce on the record to suggest that th is was the case.  Since the rate is 
not assigned under Articles 2 or 9.4, the only other basis under the Anti-Dumping Agreement for applying that rate would be Article 6.8 (whi ch would result in a facts available rate). 
7.279  Furthermore, although there was no formal a pplication of facts available in the third 
administrative review, the rate ultimately assigned to  the Vietnam-wide entity was exactly the same as 
the rates that had previously been assigned in the original investigation and preceding administrative 
reviews, and those rates had been determined on the basis of facts available.  In these circumstances, 
we consider it appropriate to treat the 25.76 per cen t rate assigned to the Vietnam-wide entity in the 
third administrative review as a facts available rate, founded on the same determination of 
non-cooperation made by the USDOC in the second admini strative review.  To fail to treat this rate as 
a facts available rate would elevate form over subs tance, and ignore the true factual circumstances 
surrounding the assignment of that rate.  
7.280  Regarding the application of the criteria set forth in Article 6.8 to what we consider to have 
been in substance a facts available rate assigned in  the third administrative review, we note that the 
USDOC did not request Q&V data from any exporting entity in that review.
332  I n  t h e s e  
circumstances, there is no basis for any valid finding of non-cooperation, and therefore no basis for 
any valid application of facts available in the sense of  Article 6.8.  For this reason, we find that the 
rate assigned to the Vietnam-wide entity in the thir d administrative review was not consistent with 
Article 6.8 of the Anti-Dumping Agreement.333 
4. Conclusion 
7.281  We recall our analysis under Article 9.4, whic h indicates that the USDOC's decision not to 
apply an "all others" rate to the Vietnam-wide entit y is inconsistent with that provision.  We have 
                                                      
331 Viet Nam's first written submission, paras. 164-187.  The United States has not contested 
Viet Nam's description of the three types of rate that may be applied under the Anti-Dumping Agreement. 
332 See USDOC Respondent Selection Memorandum in the Third Administrative Review, Exhibit 
Viet Nam-17. 
333 In view of this finding, it is not necessary for us  to consider Viet Nam's claim under Annex II of the 
Anti-Dumping Agreement.  WT/DS404/R 
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 considered whether our analysis of Article 9.4 should be modified on the basis of the USDOC's 
application of an Article 6.8 facts available rate to the Vietnam-wide entity.  In light of the fact that 
the USDOC had decided not to apply an "all others " rate to the Vietnam-wide entity before any 
question of non-cooperation could ha ve arisen, and in light of our findings that the USDOC in any 
event failed to comply with the requirements of Ar ticle 6.8, we see no reason to do so.  Accordingly, 
we conclude that the USDOC's failure to assign an "a ll others" rate to the Vietnam-wide entity in the 
second and third administrative reviews is incons istent with Article 9.4 of the Anti-Dumping 
Agreement.  In light of our analysis under Article 6.8, we also conclude that the USDOC's assignment 
of a facts available rate to the Vietnam-wide entity  in the second administrative review and a rate that 
is in substance a facts available rate in the thir d administrative review is not consistent with 
Article 6.8 of the Anti-Dumping Agreement. 
5. Viet Nam's claims under Article 17.6(i) of the Anti-Dumping Agreement 
7.282  While a certain ambiguity remains in this r espect, Viet Nam appears to seek findings of 
inconsistency under Article 17.6(i) of the Anti-Dumpi ng Agreement in relation to the rate assigned to 
the Vietnam-wide entity.334  As the United States notes335, Viet Nam's request for the establishment of 
a panel336 does not provide for any claim under this provision.  For this reason, insofar as Viet Nam 
can be understood to be making a claim under Article  17.6(i) of the Anti-Dumping Agreement, we 
find that any such claim falls outside our terms of reference.  
H. VIET NAM'S "CONSEQUENTIAL CLAIMS " 
7.283  Viet Nam makes "consequential claims" of viol ation under Articles 9.3, 11.1 and 11.3 of the 
Anti-Dumping Agreement.337  Under these "consequential claims", Viet Nam argues that the 
USDOC's actions with respect to the conduct challenged under its other claims – zeroing, 
"country-wide" rate, limitation of the number of sel ected respondents and "all ot hers" rate – will have 
a consequential impact on the USDOC's sunset review, such that the USDOC could not reach a final 
sunset review determination consiste nt with the Anti-Dumping Agreement.338, 339  The United States 
                                                      
334 Viet Nam's second written submission, para. 144(5). 
335 United States' second written submission, para. 75. 
336 WT/DS404/5, Annex G-2. 
337 Viet Nam's first written submission, paras. 28 9-291;  Viet Nam's second written submission, 
paras. 142-143.  We note that Viet Nam did not include these claims in the list of requests for findings included 
in its second written submission. 
338 For instance, Viet Nam explained that:   
"Viet Nam's consequential claim asserts that the USDOC's conduct in the completed 
administrative reviews is such that the USDO C cannot reach a final determination in the 
five-year sunset review that is consistent  with the requirements of the Anti-Dumping 
Agreement.  Specifically, the US DOC's conduct with regard to zeroing, the limited selection 
of mandatory respondents, the all others rate calculation methodology, and the treatment of 
the Vietnam-wide entity renders it impossible for the USDOC to comply with the 
Anti-Dumping Agreement.  As a consequence of the USDOC's ac tions with respect to these 
practices, the final determination of the five year sunset review will violate United States 
WTO obligations.  
The factual basis for the claim is the resulting impact of the USDOC's actions on the ongoing 
five-year sunset review, demonstrated by th e rules and practices that govern a USDOC 
five-year sunset review determination." (Viet Nam's response to Panel question 13(ii), 
paras. 24-25)   
339 In its opening oral statement at the second meeting of the Panel, Viet Nam provides a reference to 
the Federal Register Notice of the USDOC's final likelih ood-of-dumping determination, made in the context of 
the sunset review, in which the USDOC concludes that revocation of the anti-dumping order is likely to lead to 
continuation or recurrence of dumping (Viet Nam's opening oral statement at the second meeting of the Panel, 
footnote 46 to para. 52, citing to Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam:  WT/DS404/R 
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 argues, commenting on Viet Nam's consequential clai ms, that the final determination in the sunset 
review is not a measure within our terms of reference.340  We note that Viet Nam has not argued that 
the sunset review does fall within our terms of refere nce.  Viet Nam has also confirmed that it is not 
pursuing any claims with respect to the sunset review  other than as part of its claims on the "continued 
use" measure341, which, we have determined, is not within our terms of reference.342 
7.284  In light of the foregoing, we find that Viet Na m's "consequential" claims pertain to a measure 
not within our terms of reference.  For this reason, we make no findi ngs with respect to Viet Nam's 
"consequential" claims of violation under Ar ticles 9.3, 11.1 and 11.3 of the Anti-Dumping 
Agreement. 
VIII.  CONCLUSIONS AND RECOMMENDATION 
A. CONCLUSIONS  
8.1 For the reasons set out in the foregoing secti ons of this Report, we conclude as follows: 
(a) A measure consisting of the "continued use of  challenged practices" is not within our 
terms of reference. 
(b) The United States acted inconsistently with Article 2.4 of the Anti-Dumping 
Agreement as a result of the USDOC's application of the zeroing methodology to 
calculate the dumping margins of selected respondents in the second and third administrative reviews under the Shrimp  anti-dumping order; we exercise judicial 
economy in respect of Viet Nam's claims th at the United States acted inconsistently 
with Articles 9.3, 2.1, and 2.4.2 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. 
(c) The U.S. zeroing methodology, as such, as it re lates to the use of simple zeroing in 
administrative reviews, is inconsistent with the United States' obligations under 
Article 9.3 of the Anti-Dumping Agreem ent and Article VI:2 of the GATT 1994. 
(d) Viet Nam has not established that the USDOC's decisions to limit its examinations in 
the second and third administrative reviews ar e inconsistent with Articles 6.10, 9.3, 
11.1, and 11.3 of the Anti-Dumping Agreement. 
(e) Viet Nam has not established that the Unite d States acted inconsistently with its 
obligations under the first sentence of Ar ticle 6.10.2 of the Anti-Dumping Agreement 
in the second and third administrative reviews. 
                                                                                                                                                                     
Final Results of the Five-Year "Sunset" Review of the Antidumping Duty Order , 75 Fed. Reg. 75965, 
7 December 2010, available at http://ia .ita.doc.gov/frn/summary/vietnam/201 0-30664.txt).  In the same oral 
statement, Viet Nam argues that th e challenged USDOC practices have, therefore, effectively resulted in a 
sunset review determination which is inconsistent with the United States' obligations under Article 11.3 of the 
Anti-Dumping Agreement. 
340 United States' comments on Viet Nam's response to Panel question 69. 
341 Viet Nam's response to Panel question 9, para. 15. 
342 Moreover, we note that while Viet Nam's "consequen tial claims" appear to be very closely related to 
the "continued use" measure, Viet Nam has indicated that it considers them to be distinct and that it maintains 
its "consequential claims" regardless of our determination with respect to whether the "continued use" measure 
falls within our terms of refere nce.  Viet Nam's response to Panel questions 13(iii) and 69.   WT/DS404/R 
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 (f) Viet Nam has not established that the Unite d States acted inconsistently with its 
obligations under the second sentence of Article 6.10.2 of the Anti-Dumping 
Agreement in the administrative reviews at issue. 
(g) The United States acted inconsistently with its obligations under Article 9.4 of the 
Anti-Dumping Agreement as a result of the USDOC's imposition, in the second and 
third administrative reviews, of an "all others" rate determined on the basis of 
margins of dumping calculated with zeroing; we exercise judicial economy  
in respect of Viet Nam's claims unde r Articles 9.3, 2.4.2, and 2.4 of the 
Anti-Dumping Agreement. 
(h) Viet Nam's claims of violation under Article 17.6(i) of the Anti-Dumping Agreement 
in relation to the "all others" rate are not within our terms of reference.  
(i) The USDOC's failure to assign an "all others " rate to the Vietna m-wide entity in the 
second and third administrative reviews is inconsistent with Article 9.4 of the 
Anti-Dumping Agreement. 
(j) The USDOC's assignment of a facts available rate to the Vietnam-wide entity in the 
second administrative review and a rate that is  in substance a facts available rate in 
the third administrative review is not consistent with Article 6.8 of the 
Anti-Dumping Agreement. 
(k) Viet Nam's claims of violation under Article 17.6(i) of the Anti-Dumping Agreement 
in relation to the rate assigned to the Viet nam-wide entity are not within our terms of 
reference.  
(l) Viet Nam's "consequential" claims of viol ation under Articles 9.3, 11.1 and 11.3 of 
the Anti-Dumping Agreement relate to a measure that is not within our terms of reference and we make no findings in respect of these claims. 
B. R
ECOMMENDATION  
8.2 Under Article 3.8 of the DSU, in cases where th ere is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie  to constitute a case of nullification or 
impairment of benefits under that agreement.  Accordingly, we concl ude that to the extent that the 
United States has acted inconsistently with certain  provisions of the Anti-Dumping Agreement and of 
the GATT 1994, it has nullified or impaired benef its accruing to Viet Nam under these agreements. 
8.3 Pursuant to Article 19.1 of the DSU, having found that the United States has acted 
inconsistently with provisions of the Anti-Du mping Agreement and of the GATT 1994 as set out 
above, we recommend that the United States bring its measures into conformity with its obligations 
under those Agreements. 
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