WT/DS404/R 
Page B-1 
 
 
   
 
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 
 WT/DS404/R  
Page B-2 
 
 
  ANNEX B-1 
 
 
EXECUTIVE SUMMARY OF TH E THIRD PARTY WRITTEN 
SUBMISSION OF THE EUROPEAN UNION  
 
 
I. PRELIMINARY ISSUES RAISED BY THE U.S.   
1. The EU considers that the Panel should reject the U.S. request for preliminary rulings.  First, 
the EU considers that to the extent that dumping ma rgins from the original investigation and the first 
administrative review were used in subsequent reviews as the basis for calculating dumping margins 
or imposing/collecting anti-dumping duties, the Panel is due to examine, as part of the evidence and 
facts of this case, whether the U.S. applied zeroing in those measures.  Second, the U.S. already tried 
the argument that that "continued used of zeroing"  is not a measure which can be subject to WTO 
dispute settlement in  US – Continued Zeroing (EC)  and failed.  
 
II. STANDARD OF REVIEW: THE ROLE OF THE PRECEDENT IN THIS DISPUTE 
 2. In  US – Stainless Steel from Mexico  the Appellate Body clarified the role of its previous 
reports and indicated how panels should act  in cases where the same legal issues arise 
(paras 157-162).  The EU fully agrees with these statements without reservation.  WTO panels are 
obliged to correctly apply the law; in the context of  this dispute this also means that the Panel should 
follow the rulings of the Appellate Body where th e Appellate Body has previously interpreted the 
same legal questions.  Otherwise, the security and predictability enshrined in Article 3.2 of the DSU 
would be put in serious danger.   
 III. OVERVIEW OF THE CORE PROBLEM 
 
3. The term "zeroing" – which does not appear in the ADA, may be considered something of a 
misnomer, because it describes only part of the pr oblem: that is, the downward adjustment of the 
relatively high export transactions; or, in other wo rds, the setting to zero of the negative amounts.  
The heart of the matter, however, is the selection of the relatively low priced export transactions 
per se , as a sub-category, as the only or preponderant b asis for the dumping margin calculation.  This 
has nothing to do with "offsets" or "credits".  
4. This is not a new problem.  It is discussed at length in Jacob Viner's Memorandum,  and was 
specifically addressed in the Uruguay Round negotiations, during which the Members were fully informed of the issue and knew exactly what they we re talking about.  After more than three years of 
public negotiations, the problem was nicely summarised by the WTO secretariat:  it was generally 
considered that the practice of comparing a wei ghted average normal value with individual export 
transactions was obviously unfair to exporters – pa rticularly from developing countries – and required 
amendment of the Tokyo Round AD Code; the U.S. explained that such a method was necessary to 
reveal targeted dumping – that is, successive attacks on different parts of an importing market; the 
consensus was that the Membership should try to  find a solution to accommodate the legitimate 
concerns of both sides.  That compromise was the text of Article 2.4.2 of the ADA, as it stands today.  
5. Looking at the overall design and architecture of Article 2.4.2, and reading its provisions 
intelligently, in the light of the underlying econom ic realities that the legal rules are intended to 
address and respond to – that is, the real world, it is clear that there are only three sub-categories of 
clustered low priced export transactions that it is  permissible to respond to:  those clustered by WT/DS404/R 
Page B-3 
 
 
  purchaser, region or time.  These categories broadly correspond to typical market definition 
parameters: they make economic sense.  
 6. Thus, it is not permissible, and it is not fair, to pick up low priced export transactions 
clustered by model.  The U.S. has acknowledged as much .  This is clear from the term "all" in the first 
sentence of Article 2.4.2, and the definition of dump ing in Article 2.1 of the ADA and Article VI:1 of 
the GATT 1994 in terms of the product; read toge ther with the absence in the targeted dumping 
provisions of any reference to a sub-category by  model.  Thus, the relevant provisions, and 
particularly the normal rule and the exception, are read harmoniously, so as to give meaning – both 
legal and economic – to all the treaty terms. 
 7. In exactly the same way, it is not possible to pick up low priced export transactions per se  as a 
sub-category.  There is no reference to any such sub-category in the provisions on targeted dumping.  
To accept such a proposition would be to render the targeted dumping provisions useless; and to negate the compromise, negotiated and agreed by all the WTO Members (in return for other 
concessions), to which we have just referred.  The pr oof of this is that for some 15 years the U.S. has 
simply ignored the targeted dumpi ng requirements, content to continue doing exactly what it was 
doing before, based on its own unilatera l interpretation of Article 2.4.2.  The further proof of this is 
that, by its own assertion, the U.S. sought the inser tion of the phrase "the existence of margins of 
dumping during the investigation phase" (the "Phrase ") precisely with the intention of side-stepping 
the compromise and the obligations that we have just  outlined.  This is a highly significant point that 
bears repetition: the entire U.S. position is premised on the implied admission that the overall design 
and architecture of Article 2.4.2 is to be interpre ted in the manner advocated by the EU in previous 
cases. 
 
8. We turn, therefore, to the Phrase "the  existence of margins of dumping during the 
investigation phase", added – behind closed doors – after some three and a half years of public 
negotiations.  According to the U.S., this means that  the obligations in Article 2.4.2 do not apply to 
the re-calculation of dumping margins in assessment pr oceedings.  Rather, the U.S. is completely free 
to choose the methodology to be used for calcula ting a contemporaneous dum ping margin and finally 
collecting duties.  Since the results of the first retrospective assessment proceeding are applied with 
effect from the date on which duties were first im posed, this would negate entirely the compromise 
enshrined in Article 2.4.2.  
 9. In the view of the EU, assuming Members ne gotiate in full knowledge of the 1969 Vienna 
Convention on the Law of the Treaties (the "Vienna  Convention"), it may reasonably be assumed that 
they negotiate in good faith, just as they agree that the terms of the ADA are to be interpreted in good 
faith.  In such negotiations, the EU would neither e xpect nor accept that what is clearly given, after 
lengthy debate, with one hand (t hat is, agreement not to use asymmetry absent targeted dumping) 
would be surreptitiously entirely taken away with the other hand.  The U.S. position reflects what 
might be termed the "last minute" "spanner in the wo rks" theory of international negotiation – a tactic 
that, in the view of the EU, is hardly suited to a multilateral organisation with 153 Members, 
including many developing countries.  
 
10. However, assuming for the sake of argument, th at such negotiation tactics are permissible, the 
EU would like to draw the Panel's very close atten tion to what a Member forfe its when it adopts such 
an approach.  First, most obviously, the Member  chooses to leave no trace of its intended unilateral 
interpretation in the preparatory work.  Second, a nd in similar vein, the Member chooses not to offer 
any explanation to its negotiating partners – many of whom are developing countries – as to what the 
object and purpose of such a provision might be.  This is particularly problematic when the 
subsequent unilateral interpretation flies in the face of the overall design and architecture of the ADA.  
Especially when there is no object and purpose capab le of explaining why, on the basis of identical 
data, the mere act of collection should inflate the dumping margin many times over – a proposition WT/DS404/R  
Page B-4 
 
 
  that is "manifestly absurd or unreasonable" within  the meaning of the Vienna Convention – both in 
legal terms and in economic terms.  Third, and in similar vein, the Member chooses to forego any 
attempt to reconcile conflicting cont ext with its intended unilateral in terpretation.  The Panel may thus 
note that of the various elements of the interpretiv e rule in the Vienna Convention, by the U.S.' own 
choice, there is only one that stands between the U.S. and failure: the supposed ordinary meaning of 
the Phrase. 
 
11. We believe we have previous ly amply demonstrated – and we do so again below – that the 
ordinary meaning of the Phrase is not that advocated  by the U.S..  We believe that, for the U.S., the 
term "investigation" was key in its intended unilatera l interpretation.  In fact, we have an express 
admission of this in the U.S. Statement of Administrative Action (SAA), which accompanied the adoption of the U.S. Uruguay Round Agreements Act, and which contains the words ("not reviews").  
Obviously, the drafter of the SAA well appreciated th at these words are not contained in Article 2.4.2 
of the ADA, and do not result from a proper interpre tation of that provision, which is precisely why 
they were inserted in the SAA in an attempt at ex post rationalisation – an attempt doomed to fail, as 
subsequent WTO litigation has demonstrated.  
 12. The discussion could stop here.  But there are a multitude of other interpretative points 
against the U.S.  First, the grammatical structure of  the Phrase, in which the term "during … phase" is 
grammatically linked to a period of time in which margins exist (an investigation period) as opposed 
to one in which they are established (as the U.S.  would have it).  This both confirms the EU 
interpretation and precludes the U.S. interpretation.  Second, the defined term "margin of dumping" 
has the same meaning throughout the ADA, and must inform the meaning of the Phrase – there being 
no support in the text for the view that the definition should change at the moment of final collection.  
Third, the overall design and architecture of Article  2.4.2, as outlined above.  It is particularly 
significant in this respect that the EU position r eads the normal rule referring to the investigation 
period in counterpoint to the exceptional rule perm itting a response to time based targeted dumping.  
Thus, once again, the EU advances a harmonious read ing of all the treaty terms, which makes legal 
and economic sense of all of them.  Fourth, the nume rous references in Article 2 to "investigations", 
which are considered, even in U.S. municipal law, to refer to all types of investigations, including 
assessment proceedings.  Fifth, the rule in Ar ticle 9.3 that the amount assessed cannot exceed the 
dumping margin – with an express cross-reference to a ll of Article 2.  Sixth, the absence of any object 
and purpose argument capable of supporting the U.S.  position.  Seventh, the preparatory work, as 
outlined above … And the list goes on.  
13. Finally, the U.S. turns to some other genera l arguments, equally without merit.  First, the 
so-called "mathematical equivalence" argument, wh ich is obviously vitiated by a simple intellectual 
error: something can perfectly well be fair as a response to targeted dumping, but unfair absent 
targeted dumping.  Second, the argument derived fr om Article 9(4)(ii) and the so-called "variable 
duty" or prospective normal value.  This provision concerns sampling, and insofar as it implies the 
possibility that one of the measures that could be  imposed pursuant to Article 9.2 ADA could be a 
variable duty, it equally implies that any such duty is ultimately subject to final assessment or refund 
under Article 9.3, with dumping margins re-calcula ted in accordance with all of the provisions of 
Article 2.  This is completely logical.  It plugs th e gap that would otherwise arise in the refund system 
under Article 9.3.2, in which final liability cannot , by definition, increase.  The only option for 
Members operating such systems who are fearful of ta rgeted dumping is a variable duty, with refund 
in the event that the feared targeted dumpi ng does not materialise.  The proposition that 
Article 9(4)(ii) in any way contradicts any of the in terpretative points that we have already outlined is 
thus without merit.  Third, the proposition that  because, in the U.S., assessment proceedings are 
importer driven, this should change the analysis.  This practical assertion is without merit.  The ADA 
responds to international price discr imination by exporters; and it is a matter of elementary accounting 
to calculate final liabilities for importers, whils t respecting the ceiling fixed by the amount of 
dumping practiced by an exporter. WT/DS404/R 
Page B-5 
 
 
  14. If all of the interpretative elements in th e Vienna Convention support the position of the EU 
and Vietnam, and disprove the position of the U.S ., the U.S. interpretation cannot be said to be 
"permissible" within the meaning of Article 17.6 of the ADA.  IV. VIETNAM-WIDE RATE 
 15. The European Union considers that Article 6. 10 of the ADA allows for the determination of a 
single margin of dumping per producer and thus pe rmits to combine separate entities into a single 
supplier which is the actual source of the alleged price discrimination.  The fact that Vietnam is a 
non-market economy country, and issue which clearly arises from its Protocol of Accession, is very 
relevant for the proper identification of the actu al supplier in the present case.  Indeed, in a 
non-market economy country, the State control over the means of production and State intervention in 
the economy, including international trade, impl y that all the means of production and natural 
resources belong to one entity, the State.  All imports from non-market economy countries are therefore considered to emanate from a single supplier,  the State.  The State (in this case, Vietnam) in 
this sense can be considered as one supplier whose dumping behaviour can be identified and 
addressed in accordance with the di sciplines in the ADA.  In view  of the State's control over 
international trade, it would not be relevant  to name exporting companies which do not act 
independently from the State separately since th ey collectively constituted one single supplier or 
exporting entity, i.e., the State.  The application of a single duty rate then also becomes necessary to 
avoid circumvention of the duties ( i.e., the channelling of exports throug h the supplier with the lowest 
duty rate).  As also evidenced by the U.S., Vi etnam as a non-market economy country, meets these 
concerns.  Consequently, in the EU's view, Article  6.10 of the ADA allows investigating authorities to 
consider the State in cases of non-market economy countries as an "exporter" or "producer" and, thus, 
a single dumping margin for the State and its export branches can be calculated. 
 V. ALL OTHERS RATE 
 
16. Whether the USDOC applied zeroing in the or iginal investigation and/or any subsequent 
reviews is a factual matter that the Panel has to determine on the basis of the evidence provided by 
Vietnam.  If the Panel concludes that the US DOC used zeroing when determining the dumping 
margins in the context of those anti-dumping pro ceedings, the use of those dumping margins and the 
application of those rates in subsequent dete rminations amount to a new and separate measure 
attributable to the U.S. which is s ubject to this Panel's proceedings.   
 
17. Moreover, the European Union considers th at, even assuming that Article 9.4 of the ADA 
contains a lacuna and, thus, does not provide any specific methodology for the calculation of a margin of dumping to be applied to non-investigated comp anies when the only margins calculated during the 
investigation are either zero or de minimis  or calculated pursuant to Article 6.8, such a silence does 
not imply that no obligation is imposed on WTO Memb ers when calculating "all others" rates in those 
circumstances.  In this respect, the European Union invites the Panel to examine whether, looking at 
the ADA as a whole, the methodology used by the U.S. was reasonable in view of the specific 
circumstances of the case.   
 
VI. LIMITATIONS IN THE NUMBER OF RESPONDENTS 
 18. The European Union considers that, since Article 6.10 is procedural in nature, it applies in the 
context of review proceedings.  Moreover, th e European Union consid ers that, in cases where 
investigating authorities have limited their ex amination in accordance with Article 6.10, second 
sentence, they are also required to consider requ ests for individual examination, "except where the 
number of exporters or producers is so large that individual examinations would be unduly 
burdensome to the authorities and prevent the timel y completion of the investigation".  The exception 
is defined by reference to a large number of exporte rs or producers, as a condition for the application WT/DS404/R  
Page B-6 
 
 
  of the exception.  The exception is justified on the basis that individual examination would be unduly 
burdensome to the authorities and would prevent the timely completion of the investigation.  In the 
EU's view, it is for the Panel to verify whether th ese elements were present in view of the specific 
facts of the case. 
 WT/DS404/R 
Page B-7 
 
 
  ANNEX B-2 
 
 
EXECUTIVE SUMMARY OF  THE THIRD PARTY  
WRITTEN SUBMISSION OF JAPAN  
 
 
I. INTRODUCTION 
 
1. Japan's written submission focuses on two of the issues raised by Viet Nam:  (i) the use of the 
zeroing procedures by the United States Department of Commerce ("USDOC")1;  and (ii) the 
USDOC's determination of "all others" rates.2  In both respects, the United States appears to act 
inconsistently with its WTO obligations.3   
 
II. THE USE OF ZEROING PROCEDURES IS INCONSISTENT WITH MEMBERS' 
OBLIGATIONS UNDER THE AD AGREEMENT  AND THE GATT 1994 
 
2. Viet Nam has challenged the USDOC's use of zeroing to determine margins of dumping for 
selected respondents in the second and third ad ministrative reviews, as well as the USDOC's 
continued use4 of the so-called "zeroing" procedur es in successive segments of the ongoing 
proceeding pertaining to Certain Frozen Warmwater Shrimp from Viet Nam  (including subsequent 
administrative reviews and the five-year sunset review).5  Viet Nam has also asked the Panel to 
examine the USDOC's use of zeroing in the original investigation and first administrative review to 
the extent they are relevant to the challenged measures.6  Japan agrees with Viet Nam that the use of 
zeroing in administrative reviews is inconsiste nt with Article 2.4 and Article 9.3 of the 
AD Agreement , and Article VI:2 of the GATT 1994. 
 
3. The consequences of zeroing in the measures at issue are precisely the same as the 
consequences of zeroing addressed in many previous WTO disputes.  First , by excluding all negative 
comparison results, the USDOC makes a "dumping" de termination that disregards an entire category 
of the export transactions making up the "product" – namely, those low-priced export transactions that 
generate the negative comparison r esults.  "Dumping" is, therefore, not determined for the " product " 
as defined by the investigating authority, but for a sub-part of it. 
 
4. In EC – Bed Linen , US – Softwood Lumber V , US – Zeroing (EC) , US – Softwood 
Lumber V (21.5) , US – Zeroing (Japan) , US – Stainless Steel (Mexico) , and US – Continued 
Zeroing (EC) , the Appellate Body ruled that a partial dete rmination of this type, taking account of just 
some comparison results, is inconsistent with th e definition of "dumping" in Article 2.1 of the 
                                                      
1 See Viet Nam's First Written Submission, Section VI.A. 
2 See Viet Nam's First Written Submission, Section VI.C. 
3 Viet Nam also raises two other i ssues: (i) calculation of the countr y-wide rate; and (ii) sampling.  See 
Viet Nam's First Written Submission, Sections VI.B a nd VI.D.  In this submission, Japan does not offer 
comments on these other two elemen ts of the measures at issue. 
4 Japan does not further address this "continued use" measure in the present submission, but notes that 
the Appellate Body has considered the continued use of the zeroing methodology in successive proceedings to 
be susceptible to challenge in WTO dispute settlement.  See Appellate Body Report, US – Continued Zeroing 
(EC) , paras. 175-185. 
5 See Viet Nam's First Written Submission, Section IV. 
6 See Viet Nam's First Written Submission, Section IV. WT/DS404/R  
Page B-8 
 
 
  AD Agreement , and Article VI of the GATT 1994, because it is not made for the "'product' as 
a whole".7 
 5. Second , zeroing means that an affirmative "dumping" determination is much more likely to be 
made than not.
8  The reason is that the positive comparison results included  in the determination relate 
to export transactions with prices that are lower  than normal value;  in sharp contrast, the excluded  
negative results relate to export transactions with prices higher  than normal value.  The export 
transactions selected for inclusion in the determinati on, therefore, relate to the sub-part of the product 
that is the most likely to generate an affirmative dumping determination. 
 
6. As a result, zeroing can produce a "dumping" determination where, in fact, the product as a 
whole is not dumped.9  The exclusion of negative comparison r esults also "inflates" the amount of any 
"dumping" determination that is made.10 
 7. Thus, zeroing systematically prejudices the interests of foreign producers and exporters 
because the negative comparison results that are favo rable to them are purposefully set aside by the 
USDOC.  As a result, the Appellate Body has held that the maintenance and use of zeroing procedures 
involve an "inherent bias" and "distortion" in the comparison of export price and normal value.
11  This 
is the very antithesis of the "fair comparison" required by Article 2.4 of the AD Agreement . 
 8. For these reasons, the United States' zeroing procedures, and anti-dumping measures adopted 
using these procedures, have been found to be inco mpatible with Articles 2.4 and 2.4.2, 9.3, 9.5 
and 11.3 of the AD Agreement  in a series of previous disputes.
12 
 
9. In the current dispute, the United States rep eats the interpretive stance it has now taken in a 
string of previous Zeroing  disputes.  The arguments relied upon by the United States have been 
refuted by the complainants and third parties in prev ious disputes, and rejected by the Appellate Body.  
Japan urges the Panel to reject the United States' ar guments that the use of zer oing is not inconsistent 
with the AD Agreement  and the GATT 1994.   
 
III. THE "ALL OTHERS" RATES APPLIED BY THE USDOC IN THE SECOND AND 
THIRD ADMINISTRATIVE REVIEWS ARE INCONSISTENT WITH THE 
UNITED STATES' OBLIGATIONS UNDER THE AD AGREEMENT  
 
10. Viet Nam challenges the USDOC's determinations  of the "all others" rate in the second and 
third administrative reviews as inconsistent with Article 9.4 of the AD Agreement .13  Based on 
Viet Nam's and the United States' description of th e facts, Japan understands that the USDOC did not 
calculate "all others" rates but  a pplied the "all others" rate determin ed in the original investigation 
                                                      
7 See, e.g. , Appellate Body Report, EC – Bed Linen , para. 53; Appellate Body Report, US – Softwood 
Lumber V , para. 99; Appellate Body Report, US – Zeroing (EC) , para. 126; Appellate Body Report, US – 
Softwood Lumber V (21.5) , paras. 87 and 89; Appellate Body Report, US – Zeroing (Japan) , para. 115. 
8 Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 140-142; Appellate Body Report, 
US – Corrosion-Resistant Steel Sunset Review , para. 135. 
9 Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 140-142; Appellate Body Report, 
US – Corrosion-Resistant Steel Sunset Review , para. 135. 
10 Appellate Body Report, EC – Bed Linen , para. 55; Appellate Body Report, US – Softwood Lumber V , 
para. 101; and Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135. 
11 See Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 140-142; Appellate Body 
Report, US – Corrosion-Resistant Steel Sunset Review , paras. 134-135; and Appellate Body Report, EC – Bed 
Linen , para. 55. 
12 See, e.g. , Appellate Body Report, US – Zeroing (Japan) , para. 190; Appellate Body Report, US – 
Zeroing (EC) , para. 263; Appellate Body Report, US – Softwood Lumber V , para. 183. 
13 Viet Nam's First Written Submission, Section VI.C. WT/DS404/R 
Page B-9 
 
 
  using "model zeroing" to non-investigated respondent s in the second and third administrative reviews.  
Pursuant to U.S. law14, the USDOC considered this to be a "reasonable" approach.  Japan addresses 
three points.  
A. A
N INVESTIGATING AUTHORITY IS OBLIGATED TO UPDATE THE "ALL OTHERS " RATE IN AN 
ADMINISTRATIVE REVIEW BASED ON THE DUMPING MARGINS DETERMINED FOR 
RESPONDENTS SELECTED IN THAT REVIEW PURSUANT TO ARTICLE 9.4 OF THE 
AD A GREEMENT  
 11. With regard to this first question, in Japan's  view, an investigating authority is obliged, 
pursuant to Article 9.4 of the AD Agreement , to update the "all others" rate to be applied to 
non-selected respondents based on the dumping marg ins determined for the selected respondents 
when it conducts an administrative review and select s respondents to be investigated in that review. 
 12. Article 9.4 does give rise to an obligation to update th e "all others" rate when an investigating 
authority decides to conduct an administrative revi ew because it  establishes the general rule that an 
investigating authority must determine the ceiling for the "all others" rate based on "the weighted 
average margin of dumping established with respect to the selected  exporters or producers".
15  If an 
investigating authority  mak es a new selection of exporters and producers in an administrative review, 
and determines new margins for them, Article 9.4 requi res that the "all others" rate be based on the 
updated margins for the selection made.   
 
13. Under Article 9.4., Members are entitle d to impose an "all others" rate on non-examined  
exporters, on the grounds that individually examined producers are engaged in dumping.  Thus, if the 
examined producers are dumping and subject to an ti-dumping duties, the non-examined producers are 
also deemed to be dumping and subject to such du ties.  However, if the individually examined 
producers are no longer dumping and no longer subject  to anti-dumping duties, there is no rational 
basis to presume that non-examined exporters are dumping or to impose anti-dumping duties on them alone .   
 
14. Further, if the "all others" rate were not up dated to reflect the latest situation when 
individually determined rates in a given administrative review were all zero or de minimis , then the 
level of the "all others" rate would be greater than  the level required to offset the level of dumping 
most recently determined, which would be contrary to Article 11.1 of the AD Agreement which  
establishes the principle that anti-dumping duties "shall remain in force only as long as and to the 
extent necessary to counteract dumping".
16 
 B. A
N INVESTIGATING AUTHORITY DOES NOT HAVE UNLIMITED DISCRETION IN DETERMINING 
AN "ALL OTHERS " RATE IF ALL SELECTED RESPONDENTS IN AN ADMINISTRATIVE REVIEW 
RECEIVE RATES THAT ARE EXPLICITLY TO BE EXCLUDED PURSUANT TO ARTICLE 9.4 
 
15. Next, Japan turns to the second question, whic h considers what methodologies are available 
to an investigating authority for determining the "a ll others" rate, if all the individually investigated 
respondents in an administrative review receive rates that are explicitly to be excluded in determining 
the ceiling for the "all others" rate pursuant to Artic le 9.4.  The Appellate Body has not stated the 
bounds of an investigating authority's obligations u nder Article 9.4 in determining an "all others" rate 
when the lacuna  exists. 
 
                                                      
14 See Viet Nam's First Written Submission, para. 230. 
15 Emphasis added. 
16 Emphasis added. WT/DS404/R  
Page B-10 
 
 
  16. The case at hand appears to fall within the lacuna  in Article 9.4 because, in the second and 
third administrative reviews, each of the rates de termined by the USDOC for the selected respondents 
was zero or de minimis .  Japan submits that the investigating authority's obligation under Article 9.4 
requires it to apply an "all others" rate of zero in the second and third administrative reviews.  In 
Japan's view, this would be the only reasonable out come, because none of the individually examined 
exporters was found to be engaged in dumping.  Thus, in Japan's view, the United States acted 
inconsistently with its obligations  under Article 9.4 by applying the "all others" rate from the original 
investigation in the second and third administrati ve reviews, where the respondents selected for 
investigation all received zero or de minimis  rates. 
 
C. I F AN INVESTIGATING AUTHORITY IS ENTITLED TO RELY ON AN "ALL OTHERS " RATE 
DETERMINED IN AN EARLIER PROCEEDING PURSUANT TO ARTICLE 9.4, THAT RATE MUST BE 
BASED ON WTO-C ONSISTENT MARGINS OF DUMPING  
 17. With regard to the third question, Japan submits that, if the Panel determines that  an 
investigating authority may apply the "all others" ra te determined in an original investigation to 
non-selected respondents in administrative reviews when the lacuna  in Article 9.4 is triggered, such 
"all others" rate must  be based on WTO-consistent  margins of dumping.  That is, if the "all others" rate 
from the original investigation was calculated b ased on WTO-inconsistent margins of dumping, the 
"all others" rate violates Article 9.4.  
18. Yet, this is precisely what the United States has done in the second and third administrative 
reviews in this case.  In Japan's view, this is  neither "reasonable" nor consistent with the 
United States' obligations under the AD Agreement  or the GATT 1994.  Rather, the United States 
must re-calculate the "all others" rate from the original investigation without using "model zeroing" if 
it is to apply it in subseque nt administrative reviews. 
 
19. The United States contends that it is entitled to rely on margins of dumping established in the 
original investigation because the original investig ation was initiated pursuant to an application made 
before Viet Nam's accession to the WTO.
17  This argument is without merit.  The administrative 
reviews at issue, and the all others rate, are subject to the disciplines of the AD Agreement , a fact that 
the United States does not dispute.  Therefore, in these administrative reviews, and in setting the 
revised all others rate, the United States may no t rely on "margins of dumping" established in a 
WTO-inconsistent manner, irrespec tive of when these margins were first established. 
 
                                                      
17 See U.S. First Written Submission, paras. 169-175. WT/DS404/R 
Page B-11 
 
 
  ANNEX B-3 
 
 
EXECUTIVE SUMMARY OF TH E THIRD PARTY WRITTEN 
SUBMISSION OF THE REPUBLIC OF KOREA  
 
 
I. INTRODUCTION  
1. This third party submission is presented by  the Government of the Republic of Korea 
("Korea") with respect to certain aspects of the First Written Submissions by Viet Nam dated 
20 August 2010 and by the United States of America dated 13 September 2010.  
 II. ARGUMENTS  
A. T
HE CLEAR IDENTIFICATION OF THE FOURTH ADMINISTRATIVE REVIEW AND THE SUNSET 
REVIEW MADE IN THE PANEL REQUEST SHOULD BE TAKEN INTO ACCOUNT IN PRELIMINARY 
RULING ON THE CONTINUED USE OF CHALLENGED PRACTICES . 
 
2. In this dispute, Vietnam contests the "con tinued use of challenged practices" clearly and 
strongly in its first written submission, while the United States argues that the "continued use of 
challenged practices" was not identified in Vietnam' s Panel Request, and it would appear to apply to 
an indeterminate number of potential future measur es, and thus is not with in the Panel's Terms of 
Reference.1 
 
3. Although Vietnam did not use the term "conti nued use of challenged pr actices" in its Panel 
Request, Korea notes that the Panel should review ca refully whether it could find a description in the 
Panel Request that is sufficient to indicate the natu re of the "continued use of challenged practices".  
Especially, Korea would like to emphasize that th e Fourth Administrative Review and the Sunset 
Review, which seem to be parts of the "continued use of challenged practices", are inarguably within 
Vietnam's Panel Request.  Korea views that above-m entioned measures, as either components of the 
"continued use of challenged practices" or as indepe ndent measures at issue, are subject to this 
dispute. 
 
B. T HE PANEL SHOULD FIND THAT THE PRACTICE OF "ZEROING " IN ADMINISTRATIVE REVIEWS IS 
INCONSISTENT WITH ARTICLE 9.3 OF THE ANTI-DUMPING AGREEMENT AND ARTICLE VI:2  OF 
THE GATT  1994 
 4. Korea considers the United States' arguments on United States' practice of zeroing in 
administrative reviews unconvincing, and believes that  the Panel should find that the United States' 
practice of zeroing is inconsistent with the Anti-Dumping Agreement .  
 
5. Specifically, the United States argues in its fi rst submission that the concept of "dumping" 
and "margin of dumping" have a mean ing in relation to individual transaction, that is to say, dumping 
may occur in a single transaction and dumping which occurs with respect to one transaction does not 
need to be mitigated by the occurrence of anothe r transaction made at a non-dumped price.  However, 
the Appellate Body has explicitly rejected the United States' arguments that "dumping" and 
                                                      
1 U.S. First Written Submission, para. 87. WT/DS404/R  
Page B-12 
 
 
  "margin of dumping" can be found to exist at th e level of individual transactions in ruling the 
USDOC's practice of zeroing in periodic administrative reviews.2  
 6. The Appellate Body, in analyzing the con cept of "dumping" and "margin of dumping," has 
examined the context in other provisions of the Anti-Dumping Agreement , such as 
Articles 5.8, 6.10, 9.5 as well as the concept of injurious dumping, and concluded that the 
Anti-Dumping Agreement does not refer to "dumping" and "margin of dumping" as existing at the 
level of individual transactions.  The argument by the United States is simply not compatible with the rulings and reasoning of the Appellate Body's decisions. 
 
7. Furthermore, the United States also argues that the term "product" used in Article 2.1 of the Anti-Dumping Agreement and Article VI of the GA TT 1994 does not refer exclusively to "product as 
a whole" and thus, the relevant provision does not require margins of dumping to be established on an 
aggregate basis for the "product as whole".  This argument is contrary to the Appellate Body's 
reasoning in United States – Final Dumping Determination on Softwood Lumber from Canada
3, in 
which the Appellate Body held that "margin of dumping" could only be established for the product 
under investigation as a whole.4 
 
8. Considering the Appellate Body's reasoning, Korea is unable to find that the USDOC's 
zeroing methodology in the assessment proceedings rests on a permissible interpretation of the 
Anti-Dumping Agreement and WTO-consistent. 
 
III. CONCLUSION 
 9. For the reasons stated above, Korea respectfully  requests that the Panel find the United States' 
practice of zeroing as used in the administrativ e reviews in anti-dumping proceedings concerning 
imports of certain shrimp from Vietnam to be inconsistent with the Anti-Dumping Agreement. 
 
                                                      
2 See US – Continued Existence and Application of Zeroing Methodology, Appellate Body Report, 
WT/DS350/AB/R, 2 April 2009, para. 287. 
3 See United States – Final Dumping Determination on Softwood Lumber from Canada, Appellate 
Body Report, WT/DS264/AB/R, 11 August 2004, paras. 92 to 93. 
4 Id. para. 99.  WT/DS404/R 
Page B-13 
 
 
  ANNEX B-4 
 
 
THIRD PARTY WRITTEN SUBMISSION OF MEXICO  
 
 
I. INTRODUCTION 
 
1. This third party submission is presented by  the Government of Mexico ("Mexico") with 
respect to certain aspects of the United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam (WT/DS404).  The issues addressed in this su bmission are contained in the First Written 
Submission of the Socialist Republic of Viet Nam1 and the First Written Submission of the 
United States of America.2 
 
2. As a World Trade Organization ("WTO") member likewise seeking compliance by the 
United States with its WTO obligations in relatio n to the practice of "zeroing" in anti-dumping 
("AD") duty "administrative reviews"3 and related measures by the U.S. Department of Commerce 
("USDOC"), Mexico has a systemic interest in the proper interpretation and a pplication of the various 
provisions of Agreement on Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994  (the " Anti-Dumping Agreement "), the  General Agreement on Tariffs and Trade 1994  
("GATT 1994"), and the Understanding on Rules and Procedures Governing the Settlement of 
Disputes  ("DSU").  Mexico appreciates this opportunity  to participate in this proceeding and present 
its views to the Panel.  
 
3. Mexico will limit its response to issues of broader systemic concern.  In particular, Mexico 
will address:  (1) the proper and important role of established Appellate Body precedent in subsequent 
panel reviews dealing with identical issues;  (2) the Anti-Dumping Agreement's  clear preclusion of 
zeroing in administrative reviews, as confirmed repeatedly by the Appellate Body;  (3) the 
appropriateness of Vietnam's challenge to the c ontinued use of zeroing as ongoing conduct subject to 
WTO dispute settlement;  (4) the appropriateness of Vietnam's challenge to zeroed rates incorporated 
in measures within this Panel's term s of reference;  and (5) the role of panel requests, as opposed to 
consultations requests, in determin ing a panel's terms of reference.  
 II. THE PANEL SHOULD FOLLOW ESTABLISHED PRECEDENT OF THE 
APPELLATE BODY 
 
4. The zeroing methodology presented for review in this dispute has been ruled WTO-
inconsistent time and time again.
4  The First Written Submission of the United States raises no new 
substantive arguments in defense of the zeroing measu re that have not been fully addressed in other 
proceedings.  Instead, the United States requests this Panel ignore the long line of consistent Appellate 
Body rulings in this area and to chart a course of its  own.  This Panel should reject that invitation and 
should adhere to the established WTO jurisprude nce – not only because the prior Appellate Body 
                                                      
1 First Written Submission of the Socialist Republic of Viet Nam, United States – Anti-Dumping 
Measures on Certain Shrimp from Viet Nam , WT/DS404, 20 August 2010 ("Viet Nam First Written 
Submission"). 
2 First Written Submission of the United States of America, United States – Anti-Dumping Measures 
on Certain Shrimp from Viet Nam , WT/DS404, 13 September 2010 (" U.S. First Written Submission"). 
3 Period reviews, in the parlance of the Anti-Dumping Agreement , are referred to as "administrative 
reviews" under U.S. law.  These terms are used interchangeably throughout this third party submission. 
4 See Appellate Body Report, US – Zeroing (EC) , para. 263;  Appellate Body Report, US – Zeroing 
(Japan) , paras. 123-127, 190;  Appellate Body Report, US – Stainless Steel from Mexico , para. 133;  Appellate 
Body Report, US – Continued Zeroing , para. 316. WT/DS404/R  
Page B-14 
 
 
  decisions were correctly decided,  but because there are strong system ic reasons to adhere to this 
consistent body of law.  
 
5. In an effort to distance itself from the long-lin e of contrary Appellate Body jurisprudence, the 
United States argues that "[w]hile prior adopted pa nel and Appellate Body reports create legitimate 
expectations among WTO Members, the Panel in this  dispute is not bound to follow the reasoning set 
forth in any Appellate Body Report."5  The United States continues, "while the dispute settlement 
system serves to resolve a particular dispute, and to clarify agreement provisions in the context of 
doing so, neither panels nor the Appellate Body can adopt authoritative interpretations that are 
binding with respect to another dispute."6  However, this "does not mean that subsequent panels are 
free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate 
Body reports that have been adopted by the DSB,"7 and the United States vastly underplays the 
important role of prior consistent  rulings in future WTO disputes where the same issues have been 
addressed by the Appellate Body.  
 
6. As recognized both by WTO panels and the Appellate Body, there are important systemic 
reasons for following the decisions of the Appellate Body in previous disputes when issues already 
decided are presented again to a new panel.  The A ppellate Body has expressed  its deep concern about 
the implications of a panel ignoring prior Appella te Body reports on the same issues before it as 
follows:  
 
Dispute settlement practice demonstrates that WTO Members attach 
significance to reasoning provided in previous panel and Appellate Body reports.  Adopted panel and Appellate Body reports are often 
cited by parties in support of lega l arguments in dispute settlement 
proceedings, and are relied upon by panels and the Appellate Body in 
subsequent disputes.  In addition,  when enacting or modifying laws 
and national regulations pertaining to international trade matters, 
WTO Members take into account the legal interpretation of the 
covered agreements developed in adopted panel and Appellate Body 
reports.  Thus, the legal interpreta tion embodied in adopted panel and 
Appellate Body reports becomes part and parcel of the acquis of the 
WTO dispute settlement system.  Ensuring "security and 
predictability" in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons, an 
adjudicatory body will resolve the same legal question in the same 
way in a subsequent case . 
In the hierarchical structure contemplated in the DSU, panels and the 
Appellate Body have distinct roles to play. In order to strengthen 
dispute settlement in the multilateral trading system, the Uruguay Round established the Appellate Body as a standing body.  Pursuant 
to Article 17.6 of the DSU, the Appellate Body is vested with the 
authority to review "issues of la w covered in the panel report and 
legal interpretations developed by the panel". Accordingly, 
Article 17.13 provides that the Appellate Body may "uphold, modify or reverse" the legal findings and c onclusions of panels.  The creation 
of the Appellate Body by WT O Members to review legal 
interpretations developed by pane ls shows that Members recognized 
                                                      
5 U.S. First Written Submission, para. 68. 
6 Id., para. 70. 
7 Appellate Body Report, US – Stainless Steel from Mexico , para. 158 (citations omitted). WT/DS404/R 
Page B-15 
 
 
  the importance of consistency and stability in the interpretation of 
their rights and obligations under the covered agreements.  This is 
essential to promote "security and predictability" in the dispute settlement system, and to ensure the "prompt settlement" of disputes.  The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of 
a coherent and predictable body of jurisprudence clarifying 
Members' rights and obligations under the covered agreements as 
contemplated under the DSU .  Clarification, as envisaged in 
Article 3.2 of the DSU, elucidates the scope and meaning of the 
provisions of the covered agreemen ts in accordance with customary 
rules of interpretation of public international law.  While the 
application of a provision may be re garded as confined to the context 
in which it takes place, the relevance of clarification contained in 
adopted Appellate Body reports is not limited to the application of a 
particular provision in a specific case .  
We are deeply concerned about the Panel's decision to depart from 
well-established Appellate Body jurisprudence clarifying the 
interpretation of the same legal issues.  The Panel's approach has 
serious implications for the proper functioning of the WTO dispute settlement system, as explained above.
8 
7. In another dispute, the Appellate Body succi nctly summarized the same point, stating that 
"following the Appellate Body's conclusions in earli er disputes is not only appropriate, but is what 
would be expected from panels, especi ally where the issues are the same."9 
 
8. This understanding of the significance of prior Appellate Body rulings to subsequent disputes 
involving the same issues has also been emphasized specifically within the context of the U.S. zeroing 
methodology at issue in this dispute.  In US – Zeroing (EC) , the Appellate Body observed that 
"[a]lthough previous Appellate Body decisions are not  strictly speaking binding on panels, there 
clearly is an expectation that panels will follow su ch decisions in subsequent cases raising issues that 
the Appellate Body has expressly addressed.  The Appe llate Body has stated that adopted Appellate 
Body reports should be taken into account wh ere they are relevant to any dispute."10 
 
9. As explained in greater detail below, the s ubstance of Vietnam's zeroing claims have been 
considered and affirmed in a long line of cons istent prior Appellate Body decisions.  The 
United States does not offer in its Written Submi ssion any new substantive arguments not already 
rejected in previous proceedings.  Accordingly, th is Panel should adopt the reasoning from those prior 
decisions and hold (yet again) the United States' zeroing methodology, including as applied in 
administrative reviews and "sunset" reviews, in violation of the Anti-Dumping Agreement  and the 
GATT 1994.  
 
                                                      
8 Id., paras 160-162 (emphasis added). 
9 Appellate Body Report, OCTG from Argentina , para. 188;  see also  Appellate Body Report, US – 
Certain Shrimp and Shrimp Products (Malaysia)(21.5) , para. 109 ("[I]n taking into account the reasoning in an 
adopted Appellate Body Report – a Report, moreover, that was directly relevant to the Panel's disposition of the 
issues before it – the Panel did not err. The Panel was correct in using our findings as a tool for its own 
reasoning."). 
10 Panel Report, US – Zeroing (EC) , para. 7.30. WT/DS404/R  
Page B-16 
 
 
  III. THE UNITED STATES' ZEROING METHODOLOGY IS INCONSISTENT WITH 
THE ANTI-DUMPING AGREEMENT 
 
10. The United States' application of its zer oing methodology in administrative reviews has 
repeatedly been held by the Appellate Body to violate the Anti-Dumping Agreement .  The 
United States asks this Panel to ignore establishe d precedent on the exact issue presented in this 
dispute based on its erroneous theory that margins of dumping can be calculated at the transaction 
level.  This repeatedly rejected theory, which the United States potentially plans to employ to avoid its 
WTO obligation not to zero, should be rejected yet again by this Panel.  Moreover, the United States' 
application of zeroing is not some how rendered consistent with the Anti-Dumping Agreement  by 
virtue of USDOC calculating certain dumping margins as zero or de minimis .  Prior to addressing 
these issues, however, Mexico will first highlight th e irrelevance of Article 17.6(ii) on which the 
United States relies. 
A. T HE UNITED STATES ' EMPHASIS ON ARTICLE 17.6( II) IS MISPLACED IN THIS DISPUTE  
 
11. Article 17.6(ii) of the Anti-Dumping Agreement  is not relevant to this dispute, despite claims 
by the United States to the contrary.  Article 17.6(ii) provides:  
 
the panel shall interpret the releva nt provisions of the Agreement in 
accordance with customary rules of interpretation of public international law.  Where the panel finds that a relevant provision of 
the Agreement admits of more than one permissible interpretation, 
the panel shall find the authorities' me asure to be in conformity with 
the Agreement if it rests upon one of those permissible 
interpretations. 
12. The United States seizes on the second sentence to suggest that it somehow renders zeroing 
permissible under the Anti-Dumping Agreement .  The United States is misguided about how 
Article 17.6(ii) operates.   
 
13. According to the United States, "[t]he ve ry premise underlying Article 17.6(ii) is that 
two distinct interpretations can be permissible simu ltaneously:  one that would render the measure at 
issue consistent with the AD Agreement, and a nother that would render the measure at issue 
inconsistent with the AD Agreement."
11   
 
14. If an interpretation "would render the measure at issue inconsistent with the AD Agreement," 
nothing in Article 17.6(ii) makes that interpretati on permissible.  Article 17.6(ii) never renders an 
inconsistent measure permissible.  Rather, Article 17.6(ii) merely clarifies that two interpretations 
may both be "permissible" and consistent with a Member's obligations under the Agreement.  
Accordingly, the second sentence only becomes relevant  when application of the customary rules of 
interpretation of international law yield mo re than one permissible interpretation.  
 
15. As discussed in greater detail in the following section, the interpretation of the Anti-Dumping 
Agreement advanced by the United States in this proceeding,  in particular, is one that has repeatedly 
been held impermissible  based on application of the rules of in terpretation of international law, which 
are embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties  ("VCLT").12  
Because the U.S. interpretation of the Anti-Dumping Agreement as allowing zeroing has always been 
rejected for being impermissible  under the language, context, and purpose of the treaty, the provision 
in Article 17.6(ii) is irrelevant to this dispute. 
                                                      
11 U.S. First Written Submission, para. 66. 
12 See Appellate Body Report, US – Hot-Rolled Steel from Japan , para. 57. WT/DS404/R 
Page B-17 
 
 
  B. Z EROING IS UNQUESTIONABLY PROHIBITED IN ADMINISTRATIVE REVIEWS AND "SUNSET " 
REVIEWS  
 
16. Mexico would like to state very plainly that the United States raises no new issues that have not already been squarely addressed by the Appellate Body.  In short – the Anti-Dumping Agreement 
prohibits the use of zeroing in any anti-dumpi ng proceeding and under any comparison method, 
including those challenged here.
13  The Appellate Body has confirmed this fact no fewer than 
five times, rejecting each of the United Stat es' arguments raised here in the process. 
17. Mexico has already challenged the same methodology employed by the United States under 
the AD order on certain shrimp from Vietnam.  In that  dispute, the Appellate Body definitively ruled 
that simple zeroing is "as such, inconsistent with  Article VI:2 of the GATT 1994 and Article 9.3 of 
the Anti-Dumping Agreement."14  This ruling only confirmed the Appellate Body's ruling in US – 
Zeroing (EC)  that the zeroing methodology used by USDOC in administrative reviews is inconsistent 
with the Anti-Dumping Agreement .15  Furthermore, the Appellate Body in US – Zeroing (Japan)  
likewise found that zeroing in administrative reviews wa s "as such" and "as applie d" inconsistent with 
Articles VI:1 and VI:2 of the GATT 1994, and Articles 2.4 and 9.3 of the Anti-Dumping Agreement .16  
The Appellate Body reconfirmed this ruling twice more in 2009 in US – Continued Zeroing  and US – 
Zeroing (Japan)(21.5) .17  This issue has been adequately addressed and resolved by the Appellate 
Body.  
 
18. In fact, one member of the Panel issued a separate concurring opinion in  US – Continued 
Zeroing to express frustration with the United States' recalcitrance, stating:  
 
In matters of adjudication, there must be an end to every great 
debate.  The Appellate Body exists to clarify the meaning of the 
covered agreements.  On the question of zeroing it has spoken 
definitively.  Its decisions have been adopted by the DSB.  ... 
Whatever the difficulty of interpreting the meaning of "dumping", it cannot bear a meaning that is both export-specific and transaction-
specific.  ... One must prevail.  The Appellate Body has decided the 
matter.  At a point in every debate, there comes a time when it is more important for the system of dispute resolution to have a 
definitive outcome, than further to pick over the entrails of battles 
past.  With respect to zeroing, that time has come.
18 
19. As the member alluded to in the p assage above, and as the United States admits19, the crux of 
the argument on zeroing is whether "dumping" and "mar gins of dumping" are concepts that can have 
meaning at the transaction-specific level, as the Unite d States suggests, or if they only have meaning 
with reference to the "product as a whole," as Vietnam contends.   
 
20. The Appellate Body has explained in no uncerta in terms that Vietnam's position is correct and 
that the United States' interpretation is not permissible within the context of the Anti-Dumping 
Agreement : 
                                                      
13 See Appellate Body Report, US – Zeroing (Japan) , paras. 123-127, 190. 
14 Appellate Body Report, US – Stainless Steel from Mexico , para. 133. 
15 Appellate Body Report, US – Zeroing (EC) , para. 263. 
16 See Appellate Body Report, US – Zeroing (Japan) , para. 190(c). 
17 See Appellate Body Report, US – Continued Zeroing , para. 316;  Appellate Body Report, US – 
Zeroing (Japan)(21.5) , paras. 195, 197. 
18 Appellate Body Report, US – Continued Zeroing , para. 312. 
19 See U.S. First Written Submission, para. 117. WT/DS404/R  
Page B-18 
 
 
  A product under investigation may be  defined by an investigating 
authority.  But "dumping" and "margins of dumping" can be found to 
exist only in relation to that product as defined by that authority.  They cannot be found to exist for only a type, model, or category of 
that product.  Nor, under any comparison methodology, can 
"dumping" and "margins of dumpin g" be found to exist at the 
level of an individual transaction .  Thus, when an investigating 
authority calculates a margin of dumping on the basis of multiple comparisons of normal value and export price, the results of such 
intermediate comparisons are not, in themselves, margins of 
dumping.  Rather, they are merely "inputs that are [to be] aggregated in order to establish the margin of dumping of the product under 
investigation for each exporter or producer."
20 
21. The Appellate Body has also been equally clear in refuting the United States argument, raised 
again here, that the Anti-Dumping Agreement 's preclusion of zeroing is limited to original 
investigations.21  Importantly, the Appellate Body has recogni zed that the definition of a product must 
remain consistent through all stages of an inves tigation, and furthermore, that the concepts of 
"dumping," "injury," and "margin of dumping" ar e interlinked and should be considered and 
interpreted in a coherent and cons istent manner for all parts of the Anti-Dumping Agreement .22  Based, 
in part, on these premises, the Appellate Body concluded as follows:  
 
We fail to see a textual or contextual basis in the GATT 1994 or the 
Anti-Dumping Agreement  for treating transactions that occur above 
normal value as "dumped", for purposes of determining the existence 
and magnitude of dumping in the original investigation, and as "non-
dumped", for purposes of assessing the final liability for payment of 
anti-dumping duties in a period review.  If as a consequence of 
zeroing, the results of certain comparisons are disregarded only for purposes of assessing final liability for payment of anti-dumping 
duties in a periodic review, a mismatch is created between the 
product considered "dumped" in the original investigation and the product for which anti-dumping duties are collected.  This is not 
consonant with the need for consis tent treatment of a product at the 
various stages of anti-dumping duty proceedings.
23 
22. Even though the United States acknowledges that  "[t]he Appellate Body has taken the view 
that the definition of 'dumping' may only be interpre ted as applying at the 'level of the product under 
consideration,' not individual export transactions,"  the United States nevertheless requests that this 
Panel ignore the prior Appellate Body rulings a nd endorse the United States' transaction-specific 
interpretation.  
 
23. To avoid still more futile rounds of dis pute settlement at the WTO, this Panel should 
reconfirm not only that zeroing is absolutely prohibited in all antidum ping proceedings, including 
administrative reviews and sunset reviews, but that "dumping" and "margins of dumping" are 
inherently aggregate concepts that apply exclusively to products as a whole under the Anti-Dumping 
Agreement . 
                                                      
20 Appellate Body Report,  US – Zeroing (Japan) , para. 115 (emphasis added). 
21 See U.S. First Written Submission, para. 111. 
22 See Appellate Body Report, US – Stainless Steel from Mexico , para. 106;  Appellate Body Report, 
US – Continued Zeroing , para. 284. 
23 Appellate Body Report, US – Continued Zeroing , para. 285.   WT/DS404/R 
Page B-19 
 
 
  24. In summary, the United States offers nothing mo re than rehashed arguments that have been 
roundly rejected by the Appellate Body.   
 
C. T HE UNITED STATES ' CALCULATION OF ZERO OR DE MINIMIS  RATES FOR INDIVIDUALLY 
EXAMINED RESPONDENTS IN ADMINISTRATIVE REVIEWS DOES NOT RENDER ITS ZEROING 
METHODOLOGY COMPLIANT WITH THE ANTI-DUMPING AGREEMENT  
 
25. Despite its continued use of zeroing to cal culate the margins of dumping for individually 
examined respondents in the second and third admini strative reviews, the United States argues that it 
did not act inconsistently with Article VI :2 of the GATT 1994 and Article 9.3 of the Anti-Dumping 
Agreement because zero or de minimis  margins were calculated for all such respondents.24  Given that 
no antidumping duties were assessed, the United Stat es reasons, it is not possible that antidumping 
duties in excess of the margins of dumping were imposed, as prohibited by Article 9.3.  The 
United States ignores, however, the clear requirement  in Article 9.3 that a margin be established 
consistent with Article 2 ( i.e. without zeroing).  
 
26. The United States is correct that, under Article 9.3 of the Anti-Dumping Agreement , a 
Member is prohibited from imposing an antidumpi ng duty in excess of the margin of dumping as 
established in Article 2.  Pursuant to Articles 9. 3.1 and 9.3.2, a Member is required to refund any 
duties in excess of the actual margin of dumping determined under Article 2.  A Member is, thus, 
required to first calculate the margin of dumping for the relevant exporter(s) during the period of 
review consistent with Article 2 (Step 1), and to then compare this amount to the total amount of 
duties actually collected (Step 2).  To the extent the latter is greater than the former, the Member must 
provide refunds within the time allotted in Articles 9.3.1 and 9.3.2.   
 
27. If the amount of duties actually collected on im ports from a particular e xporter or exporters is 
zero, it cannot exceed the actual margin of dumping.25  Mexico therefore agrees that where no duties 
are collected from an importer, as is the case wi th respect to the imports from the individually 
examined respondents in the second and third ad ministrative reviews here, no violation of 
Article 9.3.1 or 9.3.2 would exist.  However, ev en where no duties are actually collected, the use of 
zeroing in the calculation of the margin of dumping would still violate Article 9.3.    
28. Specifically, the use of zeroing would violate th e obligation in the chapeau of Article 9.3 that 
requires a Member to calculate a margin of dumpi ng "as established under Article 2" (Step 1 above).  
As the Appellate Body has repeatedly affirmed, ze roing cannot be used to calculate a margin of 
dumping under Article 2, including in periodic reviews.   
 29. Accordingly, a Member that used zeroing h as failed to calculate a "margin of dumping as 
established under Article 2," regardless of whether any antidumping duties were actually collected on 
the basis of that margin calculation.  Accordingl y, USDOC's undisputed use of zeroing to calculate 
the margins of dumping for individually examined respondents in the second and third administrative 
reviews still violates the Anti-Dumping Agreement . 
 
                                                      
24 U.S. First Written Submission, para. 109. 
25 Theoretically, zero duties collected would be great er than a negative margin of dumping, but a 
Member is not required to provide refunds for sales above normal value.  See Appellate Body Report, US – 
Stainless Steel from Mexico , para. 113 n. 237;  Appellate Body Report, US – Zeroing (Japan) , para. 155 n. 363;  
Appellate Body Report, US – Zeroing (EC) , para. 131 n. 234. WT/DS404/R  
Page B-20 
 
 
  IV. THE CONTINUED USE OF THE ZEROING PROCEDURES BY THE 
UNITED STATES IS PROPERLY CHALLENGED AND SUBJECT TO PANEL 
REVIEW IN THIS DISPUTE 
 30. The United States is also misguided in its request for a preliminary ruling that Vietnam's 
challenge to the continued use of U.S. zeroing pr ocedures fails because it purports to include "future 
measures."  The United States argues that Vietna m appears to be challenging "an indeterminate 
number of potential future measures," and that "[m]easu res that are not yet in existence are not within 
a panel's term [sic] of reference under the DSU."
26  As the Appellate Body has confirmed, the 
United States' position is flawed because it fails to  recognize administrative reviews as segments of 
the same proceeding and because it erroneously assumes that all future conduct is beyond the reach of 
the WTO dispute settlement process.  
 
31. The United States would like this tribunal to treat an AD order as series of autonomous and 
independent measures.  For the United States, a de finitive AD original determination would be an 
independent measure from the first subsequent administrative review, which would be itself 
independent from the second review, and so on with r espect to the third, fourth, and even after the 
sunset review.  Following the United States' sugges tion would mean that an application of a practice 
in the original final determination that violates the Anti-Dumping Agreement , such as zeroing, would 
be independent from the application of the same practice in the first administrative review, and subsequent reviews.  In the eyes of the United States, the AD order would be a series of 
one-year-hit-and-run measures outside the scope of WTO dispute settlement.  
 
32. The United States' only support for its contention is the panel report in United States – 
Upland Cotton .
27  The United States' reliance on Upland Cotton  is misplaced.  In Upland Cotton , the 
Panel found that payments under the Agricultural Assi stance Act of 2003 (the "Act") were not within 
the Panel's terms of reference because the Act w as not enacted until after the panel request.  As a 
result, consultations were not sought or held on the payments under the Act.  The Panel also 
specifically "noted[d] that the cott onseed payments for each year were ad hoc  appropriations, each 
with a separate legal basis, which did not follow a single model."28  The Panel further found that the 
relevant section "did not amend or modify any existing or previous programme.  Unlike Public 
Law 107-25, it did not provide for assistance under an earlier law, it did not define the recipients as 
those who had previously received assistance an it was not implemented by an existing regulation."29  
The Panel thus concluded that "[t]his evidence discl oses the existence of separate and legally distinct 
cottonseed payment programmes for crops in different  years rather than a single cottonseed payment 
programme."30 
 
33. In contrast, in this dispute Vietnam cha llenges the continued application of zeroing in 
periodic reviews and "sunset" revi ews conducted as stages of a c ontinuous proceeding involving the 
imposition, assessment, and collection of duties under the same AD order.  In fact, USDOC's own regulations regard administrative reviews as "segme nts" in one single proceeding beginning on the 
date the anti-dumping petition is filed a nd continuing until the AD order is revoked.
31  Therefore, 
Vietnam has every right to challenge in this di spute USDOC's continued use of zeroing in successive 
proceedings under a single AD order.  
 
                                                      
26 U.S. First Written Submission, para. 96. 
27 Id. 
28 Panel Report, US – Upland Cotton , para. 7.162 (citations omitted). 
29 Id., para. 7.165 (citations omitted). 
30 Id., para. 7.167.  
31 See 19 C.F.R. § 351.102(40),(47). WT/DS404/R 
Page B-21 
 
 
  34. The Appellate Body endorsed just such a challenge in US – Continued Zeroing , where it 
concluded that "continued use of the zeroing met hodology in successive proceedings in which duties 
resulting from the 18 anti-dumping duty orders are ma intained, constitute 'measures' that can be 
challenged in WTO dispute settlement."32  The Appellate Body noted that the complaining Member, 
"in seeking an effective resolution of its dispute with  the United States, is entitled to frame the subject 
of its challenge in such a way as to bring the ongoing conduct, regarding the use of the zeroing 
methodology in [the case], under the scrutiny of WTO dispute settlement."33   
 
35. In arriving at its conclusion, th e Appellate Body reasoned as follows: 
 
As discussed, we are of the view that it can be discerned from the panel request, read as a whole, that the measures at issue consist of 
an ongoing conduct, that is, the use of the zeroing methodology in 
successive proceedings in each of the 18 cases whereby anti-dumping duties are maintained.  The prospec tive nature of the remedy sought 
by the European Communities is c ongruent with the fact that the 
measures at issue are alleged to  be ongoing, with prospective 
application and a life potentially stretching into the future.  
Moreover, it is not uncommon for remedies sought in WTO dispute 
settlement to have prospective eff ect, such as a finding against laws 
or regulations, as such, or a subsidy programme with regularly 
recurring payments. 
... We see no reason to exclude ongoing c onduct that consists of the use 
of the zeroing methodology from challenge in WTO dispute 
settlement.  The successive determinations by which duties are 
maintained are connected stages in each of the 18 cases involving 
imposition, assessment, and collection of duties under the same anti-dumping duty order.  The use of the zeroing methodology in a string 
of these stages is the allegedly unchanged component of each of the 
18 measures at issue.  It is with respect to this ongoing conduct that the European Communities brought its challenge, seeking its 
cessation.
34 
36. With respect to the AD order on certain shrimp from Vietnam, USDOC has applied zeroing at 
every stage and has given no indication that it will change its approach in future stages.  The 
United States erroneously claims that Vietnam ca nnot establish a sequential st ring of determinations 
over a period of time sufficient to justify a finding that zeroing would likely continue to be applied in successive proceedings.
35  The United States reasons that this is so because:  1) the first, fourth, and 
fifth administrative reviews are not within the Panel' s terms of reference;  2)  zeroing did not impact 
the individually examined respondents in the second a nd third administrative reviews;  and 3) zeroing 
arguably was not used to calculate the margin s for respondents not individually examined ( i.e. those 
subject to a separate rate or the country-wide ra te) in the second and third administrative reviews.36   
 
                                                      
32 See Appellate Body Report,  US – Continued Zeroing , para. 185. 
33 Id., para 181. 
34 Appellate Body Report, US – Continued Zeroing , paras 171 and 181. 
35 See U.S. First Written Submission, para. 219. 
36 See id.  WT/DS404/R  
Page B-22 
 
 
  37. Even putting aside whether the United States' three premises are correct, an established and 
sequential pattern can be established on this reco rd because, as a factual matter, USDOC applied 
zeroing in every one of those reviews.  Even if  Vietnam's accession date precludes a WTO panel from 
issuing legal rulings with respect to the first admi nistrative review, this Panel is not required to 
pretend that, as a factual matter, that proceeding ne ver occurred.  Therefore, this Panel has every 
reason to believe, based on evidence of USDOC's c onsistent practice up to this point, that zeroing is 
likely to continue in successive proceedings un der the AD order on certain shrimp from Vietnam.  
38. It is the ongoing conduct of the United Stat es in continuing to use zeroing in successive 
determinations by which anti-dumping duties are app lied and maintained that Vietnam is challenging 
as "ongoing conduct" here.  Vietnam is entitled to fra me its challenge in way that subjects this 
ongoing conduct to the scrutiny of WTO dispute settle ment.  Accordingly, the United States' request 
for a preliminary ruling in this respect should be denied.  
 V. THE ZEROED "SEPARATE RATES" INCORPORATED  BY THE UNITED 
STATES IN THE SECOND AND THIRD ADMINISTRATIVE REVIEWS ARE 
PROPERLY CHALLENGED AND SUBJEC T TO PANEL REVIEW IN THIS 
DISPUTE 
 39. The United States argues that "to the exte nt that Commerce relied on dumping margins 
calculated during the investigation in later assessm ent reviews, the use of such margins in an 
assessment review cannot result in a finding that the determination in the investigation  is inconsistent 
with Article 2.4.2 of the AD Agreement."
37  The United States relies on th is reasoning to suggest that 
this Panel cannot review the "separate rates" determined in the second and third administrative 
reviews, which merely adopted a weighted-average  margin of dumping calculated using zeroing in the 
original investigation.  The United States misc onstrues Vietnam's challenge in this regard. 
 
40. As Mexico understands it, Vietnam is not seeking a finding that the determination in the 
investigation is inconsistent with the Anti-Dumping Agreement .  Such a finding would, in theory, 
result in revocation of the AD order and would aff ect the assessment of duties on imports during the 
period of investigation.   
 41. Rather, Vietnam is challenging the "separate ra te" (or "all-others rate") as determined in the 
second and third administrative reviews, and there is no question that these reviews are properly 
subject to review by this Panel.
38  The separate rates in these reviews are distinct determinations 
published in by USDOC in the Federal Register  and bear no obvious (or usua l) relationship to rates 
determined in the original investigation.  It is th e United States that chose to incorporate data from the 
original investigation to reach its determinations  in these reviews and, regardless of whether that 
decision was reasonable and WTO-consistent, it certainly cannot shield the United States' 
determinations in the second and third administrativ e reviews from the scrutiny of this Panel.   
 42. Accordingly, this Panel should review Vietna m's challenge to the separate rates determined 
by USDOC in the second and third administra tive reviews.  And b ecause these rates were 
unquestionably calculated through the use of zeroing,  they should be rejected as unreasonable and 
inconsistent with the Anti-Dumping Agreement . 
 
                                                      
37 Id., para. 101 (emphasis in original). 
38 See Viet Nam First Written Submission, paras. 208, 210. WT/DS404/R 
Page B-23 
 
 
  VI. THE ORIGINAL INVESTIGATION IS NOT EXCLUDED FROM THIS PANEL'S 
TERMS OF REFERENCE BY VIRTUE OF THE CONSULTATIONS BETWEEN 
VIETNAM AND THE UNITED STATES 
 43. The United States argues that the original i nvestigation resulting in the AD Order on certain 
shrimp from Vietnam is not subject to this Panel's terms of reference.  The United States relies, in 
part, on Vietnam's request for consultations.
39  The United States places undue emphasis on the 
request for consultations and ignores Vietnam' s request for the establishment of a panel. 
 
44. Previous panels and the Appe llate Body have specifically highlighted that "a WTO panel's 
terms of reference are governed by the complain ing Member's panel request, as opposed to it its 
consultations request."40  Thus, the United States is incorrect in its suggestion that the consultations 
request sets the matter in stone, thereby limiting wh at can properly be raised before this Panel.41  As 
the Appellate Body has noted, "the purpose of consulta tions is to clarify the facts of the situation and 
to arrive at a mutually agreed solution."42  Neither "Articles 4 and 6 of the DSU, [n]or paragraphs 1 
to 4 of Article 4 of the SCM Agreement , require a precise and exact identity  between the specific 
measures that were the subject of consultations a nd the specific measures iden tified in the request for 
the establishment of a panel."43 
 
45. The Panel in United States – Continued Zeroing  made clear that that, "as long as the 
consultations request and the panel request concern the same matter, or dispute, claims raised in 
connection with measures identified in the complain ing Member's panel request would fall within a 
panel's terms of reference even if those precise measures were not identified in the consultations 
request."44  Vietnam clearly cited USDOC's original inv estigation determination in its panel request.  
The United States errs by failing to acknowledge or address this inclusion in the panel request, which 
determines this Panel's pr oper terms of reference.  
 VII. CONCLUSION  
46. Mexico appreciates the opportunity to par ticipate in these proceedings, and to present its 
views to the Panel.  
47. For the foregoing reasons, Mexico respectfully urges the Panel to find, consistent with 
established Appellate Body precedent, that "dumpi ng" and "margin of dumping" are inherently 
aggregate concepts that cannot exist on a transaction-specific basis, and thus, zeroing in 
administrative reviews and sunset reviews is precluded by the Anti-Dumping Agreement  and the 
GATT 1994.  Mexico requests that the Panel furthe r find that the United States' continued use of 
zeroing in subsequent proceedings is  properly subject to review by this Panel, as are zeroed rates 
incorporated in measures within this Panel's terms of reference. 
  
_______________ 
 
                                                      
39 See U.S. First Written Submission, paras. 81-84. 
40 Panel Report, US – Continued Zeroing , para. 7.23 (citing Appellate Body Report, Brazil – Aircraft ). 
41 See U.S. First Written Submission, para. 82. 
42 Panel Report, Brazil – Aircraft,  para. 131 (internal quotations omitted). 
43 Id., para. 132 (emphasis in original). 
44 Panel Report, US – Continued Zeroing , para. 7.22.