WORLD TRADE  
ORGANIZATION  WT/DS345/9 
22 April 2008 
 (08-1912) 
 Original:   English 
  
UNITED STATES – CUSTOMS BOND DIRECTIVE FOR MERCHANDISE SUBJECT TO 
ANTI-DUMPING/COUNTERVAILING DUTIES 
 
Notification of an Appeal by India
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 17 April 2008, from the Delegation of India, is being 
circulated to Members. 
 
_______________ 
 
 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  (the "DSU") and Rule 20 of the Working Procedures for Appellate Review , 
India hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in the 
Report of the Panel on United States – Customs Bond Directive for Merchandise Subject to 
Antidumping/ Countervailing Duties (WT/DS345/R) (the “Panel Report”) and certain legal 
interpretations developed by the Panel in this dispute. 
 
At issue is the enhanced bond requirement (the “EBR”) imposed by the United States on 
importers of certain frozen warmwater shrimp fro m India subject to anti-dumping duties imposed by 
the United States.  The United States has imposed th e EBR pursuant to certain instruments specified 
in paragraph 2.2 of the Panel Report which, for convenience, are referred to collectively as the 
“Amended CBD”. 
 
India seeks review by the Appellate Body of  the following errors of law and of legal 
interpretation by the Panel:  1. The Panel erred in its conclusion (and re lated findings) that Article VI of the General 
Agreement on Tariffs and Trade 1994  (the “GATT 1994”) read in conjunction with Articles 1 
and 18.1 of the Agreement on Implementation of Article  VI of the General Agreement on 
Tariffs and Trade 1994  (the “ Anti-Dumping Agreement ”) permits responses to dumping other 
than (a) definitive duties, (b) provisional measures and (c) price-undertakings.
1  In particular: 
 
(a) The Panel erred in finding that the Appellate Body’s conclusions in  US – 
Antidumping Act of 19162 and U S   –  C D S O A3 that the permissible responses to 
dumping are limited to definitive anti- dumping duties, provisional measures and 
                                                      
1 See Panel Report, paras. 7.62 - 7.77. 
2 Appellate Body Report on United States – Anti-Dumping Act of 1916 , WT/DS136/AB/R, 
WT/DS162/AB/R, adopted 26 September 2000 (“ U.S.-Antidumping Act of 1916 ”). 
3 Appellate Body Report on United States-Continued Dumping and Subsidy Offset Act of 2000 , 
WT/DS217/AB/R, WT/DS234/AB/R, adopted on 27 January 2003 (“ U.S.-CDSOA ”). WT/DS345/9 
Page 2  
 
price-undertakings, are mere dicta  because, in those Reports, the Appellate Body did 
not even refer to the provisions of Note 1 Ad paragraphs 2 and 3 of Article VI of the 
GATT 1994 (the “Ad Note”).
4  The Panel’s failure to follow the Appellate Body’s 
conclusions in previous disputes on the same  issue is inconsistent with its function 
under Article 3.2 of the DSU of ensuring “security and predictability to the 
multilateral trading system” and under Article  3.3 of ensuring the “prompt settlement 
of situations” and, further, is inconsistent  with its obligation under Article 11 to make 
an objective assessment of the matter.  
 (b) The Panel erred in finding that the phrase “the provisions of the GATT 1994 , as 
interpreted by this Agreement” in Article 18.1 of the Anti-Dumping Agreement  was 
simply designed to clarify that the re levant provision of the GATT 1994 is Article 
VI.
5 
 
2. The Panel erred in its conclusion (and rela ted findings) that, in principle, the EBR was 
authorized by the Ad Note because the Anti-Dumping Agreement  did not prohibit it.6  I n  
particular: 
 
(a) The Panel erred in rejecting India’s ar gument that the Ad Note was implemented 
through Article 7 of the Anti-Dumping Agreement  and could not be applied 
independently of Article 7 by finding that the Ad Note was not “… expressly limited 
to provisional measures taken prior to  a final determination of dumping”.7 
 (b) The Panel erred also in finding that, while  in the case of the prospective system of 
assessment of anti-dumping duties, the phrase “final determination” in the Ad Note could be interpreted as the final determination that precedes the decision to impose 
duties,
8 in the case of the retrospective syst em followed by the United States, the 
same phrase could be interpreted as the “det ermination of the final liability for the 
payment of anti-dumping duties” referred to in Article 9.3.1 of the Anti-Dumping 
Agreement .9 
 (c) Further, the Panel erred in finding that, fo r purposes of taking security under the Ad 
Note, under the retrospective system of asse ssment followed by the United States, the 
anti-dumping duty order at the end of the original investigation and again at the end of each new assessment review gave rise to a suspicion of dumping with respect to 
import entries into the United States after each such anti-dumping duty order and such 
suspicion lasted until the subsequent assessme nt review with respect to such import 
entries, in which both the existence and am ount of dumping could be determined with 
precision.
10 
 3. The Panel erred in its conclusion (and re lated findings) that the Amended CBD was not 
inconsistent as such with the provisions of (a) Articles 1 and 18.1 of the Anti-Dumping 
Agreement  and (b) Articles 10 and 32.1 of the SCM Agreement .
11  In particular: 
 
                                                      
4 See Panel Report, para. 7.76. 
5 See Panel Report, para. 7.73 and footnote 113. 
6 See Panel Report, paras. 7.71 – 7.84; 7.86 – 7.90; 7.95 – 7.107; 7.116 – 7.118 and footnotes 111-114.  
7 See Panel Report, paras. 7.91 – 7.95. 
8 See Panel Report, para. 7.86. 
9 See Panel Report, paras. 7.86 – 7.87. 
10 See Panel Report, paras. 7.80 – 7.87. 
11 See Panel Report, paras. 7.236 – 7.238.  WT/DS345/9 
 Page 3 
 
 
(a) The Panel did not make an objective assessment of the matter before it in accordance 
with the requirements of Article 11 of the DSU when it concluded that the Amended CBD was discretionary in character.
12 
 (b) The Panel also erred in concluding th at every application of the EBR under the 
Amended CBD would not necessarily constitute an impermissible specific action 
against dumping or subsidization, as the case may be.
13   
 
4. The Panel erred in concluding that the Amended CBD was not inconsistent with the 
provisions of Article 18.4 of the Anti-Dumping Agreement  and of Article 32.5 of the SCM 
Agreement .14  In the event that the Appellate B ody concludes that the Amended CBD is 
inconsistent as such with the pr ovisions of (a) Article 18.1 of the Anti-Dumping Agreement  
and (b) Article 32.1 of the SCM Agreement , India requests the Appellate Body to complete 
the analysis and rule in India’s favour that  the Amended CBD is inconsistent with the 
provisions of Article 18.4 of the Anti-Dumping Agreement  and of Article 32.5 of the SCM 
Agreement  also. 
 5. The Panel erred in its conclusion (and re lated findings) that the Amended CBD was not 
inconsistent either as such
15 or as applied16 with the provisions of Articles 9.1, 9.2, 9.3 and 
9.3.1 of the Anti-Dumping Agreement  and was not inconsistent as such with the provisions of 
Articles 19.2, 19.3 and 19.4 of the SCM Agreement .17  In particular:  
 
(a) The Panel erred in finding that the defin ition of the term “duty” in Article 9 of the 
Anti-Dumping Agreement  is not broad enough to encompass cash deposits.18 
 (b) The Panel erred in finding that the statement of the Appellate Body in U.S. – Zeroing 
(Japan)
19 that, under the retrospective system of assessment, “… [a]t the time of 
importation, an administering authority may collect duties, in the form of cash deposits, on all export sales ….” constituted obiter dictum .
20 
 6. The Panel erred in its conclu sion (and related findings) that ce rtain provisions of U.S. law, 
i.e., 19 U.S.C. §1623 and 19 C.F.R. §113.13, did not form part of the Panel’s terms of 
reference.
21 
 7. Further, in the event that the Appellate Body  upholds the Panel’s conclusion that the Ad Note 
authorized the imposition of the EBR in principle,  India considers that the Panel erred in its 
conclusion (and related findings ) that the United States did not have any obligation to assess 
the risk of default by importers prior to imposing the EBR.
22  
 
8. The Panel also erred in its conclusion (and related findings) that it was permissible for the 
United States to defend the EBR under Article XX(d) even though the Panel had found the 
                                                      
12 See Panel Report, paras. 7.216 – 7.222; 7.227. 
13 See Panel Report, paras. 7.225 – 7.227; 7.236. 
14 See Panel Report, para. 7.271. 
15 See Panel Report, paras. 7.262 – 7.263. 
16 See Panel Report, paras. 7.97 – 7.105; 7.159 – 7.161. 
17 See Panel Report, para. 7.264. 
18 See Panel Report, paras. 7.98 – 7.106 and para. 7.160. 
19 Appellate Body Report on United States – Measures Relating to Zeroing and Sunset Reviews, 
WT/DS322/AB/R, adopted on 23 January 2007 (“ U.S – Zeroing (Japan) ”).  
20 See Panel Report, para. 7.101. 
21 See Panel Report, paras. 7.181 – 7.196. 
22 See Panel Report, paras. 7.118 and footnote 148. WT/DS345/9 
Page 4  
 
EBR to be a specific action against dumping wh ich was not in accordance with the provisions 
of the GATT 1994.
23  
 9. In the event that the Appellate Body concludes that Article XX(d) of the GATT 1994  
remained available to the Unite d States to justify the EBR, India considers that the Panel 
nevertheless acted inconsistently with its oblig ation under Article 11 of the DSU to make an 
objective assessment of the matter before it when  it found that, for the purpose of considering 
the defence of the United States under Article XX(d), the law or regulation at issue was 19 U.S.C. §1673e(a)(1) read together with 19 U.S.C. §1673e(b)(1), 19 U.S.C. §1673, 19 C.F.R. §351.212(b)(1) and 19 C.F.R. §351.211(c)(1).
24 
 In sum, India considers that the Panel erred in law in the interpretation and application of Articles 1, 
7, 9.1, 9.2, 9.3, 9.3.1, 18.1 and 18.4 of the Anti-Dumping Agreement , of Articles  10, 19.2, 19.3, 19.4, 
32.1 and 32.5 of the SCM Agreement , of Article VI, the Ad Note and Article XX(d) of the GATT 
1994 and of Articles 3.2, 3.3 and 11 of the DSU. 
 
__________ 
 
                                                     
 
23 See Panel Report, paras. 6.11 – 6.13. 
24 See Panel Report, para 7.300.