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 
 WT/DS404/R  
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  ANNEX D-1 
 
 
THIRD PARTY ORAL ST ATEMENT OF CHINA 
 
 
 China appreciates this opportunity to provide its views on two matters arising in this dispute. 
 
I. INCONSISTENCY REGARDING THE COUNTRY-WIDE RATE PRACTICE 
  China takes the view that the Country-Wide Ra te practice, as a result of the "Separate Rate 
Application" practice adopted by the United Stat es, is inconsistent with the AD Agreement. 
 
 When determining antidumping rates for comp anies in economies that are not treated as 
market economy by the United States, the USDOC requires that non-investigated companies first 
satisfy some established criteria, i.e., Separate Rate Application, in order to receive a margin based on 
the weighted average of the rates for the indi vidually investigated respondents, namely, by 
establishing "an absence of central government control,  both in law and in fact, with respect to 
exports".  Otherwise, what they receive woul d be a "country-wide rate" base on adverse facts 
available. 
 
 This is substantially differed from the USDOC 's practice for determ ining antidumping rates 
for companies in market economies.  In an antidumping proceeding involving a market economy 
country, companies not individually investigated ar e assigned an "all-others" rate, which is based on 
the weighted-average margins for the firms individually investigated.  
 By adopting the Separate Rate Application practice, the United States introduces additional 
requirement differentiating market economy and non-m arket economy, which is not provided in the 
AD Agreement. 
 
 According to the first sentence of Article 6.10 of the AD Agreement, it is clear that the investigating authorities must, "as a rule", calcu late an individual dumping margin for each known 
exporter or producer of the product under investig ation.  The second senten ce introduces an exception 
to the principle laid out in the first sentence, i.e., where the number of exporting producers is so large 
as to make the determination of an individual dum ping margin impracticable, investigating authorities 
may limit their examination "by using samples".  The Wording of Article 6.10 suggests that sampling 
is the sole exception to the rule of individual margins. 
 
 According to Article 6.10, there should be only two categories of respondents before the 
investigating authorities, 1) those "samples" that are investigated and assigned individual rates, and 
2) those not selected and assigned an "all-others" rate.  The provisions of  the AD Agreement never 
requires non-selected companies to first demonstrate th at they should be assigned an "all-others" rate. 
 
 The United States argues that it is proper for the USDOC to consider that the Vietnam-Wide 
entity as an exporter or producer under investigation.   There is no legal basis for this argument.  
Under the test applied by the panel in Korea-Certai n Paper, the investigating authorities have to show 
that there is sufficiently close structural and comme rcial relationship between individual producers to 
justify treating them as a single entity.  If this ca nnot be demonstrated, the authorities, pursuant to the 
first sentence of Article 6.10, must treat each  legal entity as a separate producer/exporter, and 
calculate individual dumping margins for each of them.   
 WT/DS404/R 
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   In this case, China does not believe that the "sufficiently close stru ctural and commercial 
relationship" exists. 
 
II. ZEROING 
  It is well-settled by the Appellate Body and panels that the practice of zeroing employed by the United States, either in original investigations or  in periodic reviews, is inconsistent with the WTO 
obligations of the United States.  China requests that the Panel recommend that the United States 
bring its measures into conformity with its oblig ations under the relevant covered agreements of 
the WTO. 
  There are also some Chinese shrimp comp anies suffering from the related measures on 
shrimp from China by United Stat es.  China keeps on requesting the United States to recalculate the 
antidumping rates for the affected Chinese exporti ng producers of shrimp, but has no substantial 
result.  China urges the United States to provide a pack age solution to this issue so as to fully bring its 
measures into conformity with its obligations under the relevant covered agreement of the WTO.   
  China thinks that it is not enough for the US DOC to modify its methodology in original 
antidumping investigations with respect to the calcu lation of the weighted-average dumping margin.  
According to the current practice of the USDOC, the relevant antidumping rates of the companies 
assigned any antidumping rates before January 200 7 cannot be recalculated retrospectively. 
 
 China requests the United States to recalculate the antidumping rates also for such Chinese 
companies, including those exporting producers of shrimp in China. 
 
 For the stated reasons above, China requests that  the Panel find that the U.S. measures at issue 
violate relevant provisions of the AD Agreemen t and that the Panel recommend to the Dispute 
Settlement Body to request that the U.S. bring its measures into conformity with its obligations under 
the AD Agreement and the GATT 1994. 
 
 Thank you for your attention. WT/DS404/R  
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  ANNEX D-2 
 
 
THIRD PARTY ORAL STATEMENT OF  
THE EUROPEAN UNION 
 
 
1. The European Union makes this third party oral  statement because of its systemic interest in 
the correct and consistent interp retation and application of the Anti-Dumping Agreement and the  
Understanding on Rules and Procedures Govern ing the Settlement of Disputes (DSU) .  The European 
Union would like to briefly comment on the four main  substantive issues in the current proceedings.   
 
I. ZEROING 
 
2. None of the issues in relation to the use of zeroing by the United States raised in this 
proceeding are new.  Vietnam's claims appear to be supported by a consistent body of reasoning and 
findings, contained in all previous reports issued by panels and the Appellate Body, most recently in 
EC – Continued Zeroing .  Further, the United States has not ra ised anything new in its argumentation 
to defend its zeroing methodologies and practices.  
 
3. The European Union's oral statement on this matter will therefore be brief.  In its written 
submission the European Union set out at length the reasons why in its view, this Panel should follow 
the findings and conclusions contained in previous pa nel and Appellate Body re ports on zeroing.  It is 
beyond dispute that the practice of zeroing in an ti-dumping cases has been contested many times in 
WTO dispute settlement proceedings.  The Appellate Bo dy in particular has ad judicated on the issues 
raised in this case frequently, including in cases involving different variations of zeroing, both in 
original investigations and revi ew investigations, in different factual circumstances and between 
different parties.  
 4. The United States does not contest this, but argues that this Panel should not follow these 
prior Appellate Body reports.  Further, the United States explicitly invites this Panel to re-apply 
findings and follow the reasoning contained in panel re ports that have been rejected and overturned –
in many cases more than once – by the Appellate Body, in reports which have subsequently been 
adopted by the DSB.  The European Union submits that the suggestion by the United States that, 
according to Article 11 of the DSU  this Panel should be free to de part from adopted Appellate Body 
reports on issues of law and legal in terpretations relating to the covere d agreements, is misguided.  It 
is rather the opposite.  The Appellate Body itself h as addressed this very question in several cases, 
notably in  US – Stainless Steel from Mexico , and thus the U.S. proposition should be rejected. 
 
5. On the substance, the European Union has set  out its views in its written submission, and has 
only a few comments in this oral statement, on tw o specific aspects of the U.S. written submission.  
 
6. First, zeroing has nothing to do with "offsets" or  "credits".  The key issue and the fundamental 
problem raised by the U.S. methodology is th e selection of the relatively low priced export 
transactions per se , as a sub-category, as the only or preponderant basis for the dumping margin 
calculation, regardless of whether or not they are clustered by purchaser, region or time.  This does 
not reflect the compromise set out in the text of Article 2.4.2 of the Anti-Dumping Agreement.  It is 
clear that according to Article 2.4.2 of the Anti-Dumping Agreement there are only three sub-
categories of clustered low priced export transacti ons that it is permissible to respond to: those 
clustered by purchaser, region or time.  Thus, it is not  permissible, and it is not fair, to pick up low-
priced export transactions clustered by model or per se , as the U.S. zeroing methodology does.  This 
is also clear from the term "all" in the first sente nce of Article 2.4.2, and the definition of dumping in WT/DS404/R 
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  Article 2.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994  in terms of the 
product as a whole; read together with the absence in the targeted dumping provisions of any 
reference to a sub-category by m odel or low-priced transactions per se .  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. Second, the United States continues to re ly on the legally erroneous proposition that the 
disciplines of Article 2.4.2 of the Anti-Dumping Agreement are excluded from retrospective 
assessment proceedings.  In this respect, we believe that the Panel does not n eed to enter into this 
issue.  Confronted with the same argument by th e United States, the Appellate Body has repeatedly 
found  that Article VI of the GATT 1994  and Articles 2.1 and 9.3 of the Anti-Dumping Agreement 
require that the dumping margin must be establishe d on the basis of the product under investigation as 
a whole.  In any event, should the Panel enter into this discussion, we invite the Panel to take into 
account the analysis set out in our written submission.  II. VIETNAM-WIDE RATE 
 
8. Moving on to the Vietnam-wide rate issue, the European Union considers that the 
Anti-Dumping Agreement permits the calculation of dumping margins and the imposition of 
anti-dumping duties on a country-wide basis in cases of imports from non-market economy countries, 
such as Vietnam.  Vietnam's references to the types of anti-dumping margins contemplated by 
Articles 2, 6 and 9 of the Anti-Dumping Agreement are unavailing.  In fact, Vietnam does not seem to 
indicate the particular provision which the United States violates when calculating a Vietnam-wide 
duty rate.  In the EU's view, several provisions in the Anti-Dumping Agreement , in particular 
Articles 6.10, 9.2 and 9.4, when read t ogether, speak against Vietnam's claim.  
 
9. First, Article 6.10, first sentence contains a general principle or preference for the calculation 
of dumping margins on an individual basis, rather than  a strict obligation to do so in each and every 
case. 
 
10. Second, Article 6.10, second sentence cannot be interpreted as meaning that sampling is the 
only exception to the alleged general rule.  In practi ce, there are more situations where the calculation 
of dumping margins cannot be carried out on an in dividual basis: for example, when investigating 
authorities cannot identify the relevant producer and actual source of dumping; or where the information colleted and verified in the course of the investigation leads to identical dumping margin 
results for all suppliers.  
 11. Third, the WTO case law interpreting Artic le 6.10 as not requiring the determination of 
dumping margins for each legal entity in all cases furt her permits the determination of one dumping 
margin for related companies as a whole, as a single supplier and the actual source of the alleged price 
discrimination. 
 
12. Fourth, Article 9.2 of the Anti-Dumping Agreement permits the imposition of anti-dumping 
duties on a country-wide basis also in the par ticular case of imports from non-market economy 
countries.
1  Indeed, absent market economy conditions, the State is considered the actual supplier and 
the "source" of the alleged price discrimination, and any "amounts" collected from the State or its 
                                                      
1 Appellate Body Report,  US – Corrosion Resistant Steel Sunset Review , para. 150 ("Article 9.2 refers 
to the imposition of 'an anti-dumping duty ... in respect of  any product', rather than the imposition of a duty in 
respect of individual exporters or producers.  We ag ree that this reference in Article 9.2 informs the 
interpretation of Article 11.3. (…)  Therefore, Article 9.2 confirms our initial view that Article 11.3 does not 
require investigating authorities to make their likelih ood determination on a company-specific basis"). WT/DS404/R  
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  export branches ( i.e., companies which do not act de jure  or de facto  independently from the State) is 
"appropriate". 
13. Fifth, in any event, the third sentence of Article 9.2 of the Anti-Dumping Agreement  also 
permits the imposition of duties on a country-wide b asis when there are several suppliers and it is 
"impracticable" to specify individual anti-dumping duties per supplier.  The notion of "impracticable" 
implies "something which is not feasible in practice" or "something which cannot be done for 
practical reasons".  In other words, suppliers cannot be specified by name and duties cannot be 
imposed on an individual basis because of "practical" reasons ( i.e., it would render those duties 
ineffective, not feasible or not suited for being used for a particular purpose, i.e., offsetting or 
preventing dumping from the actual supplier, that bei ng the State in non-market economy countries).   
 14. Sixth, Article 9.4 of the Anti-Dumping Agreement cannot be the only exception to the 
individual imposition of duties because, by defin ition, that would deprive the third sentence of 
Article 9.2 of the Anti-Dumping Agreement of any meaning.  In fact, this interpretation would make 
that sentence (and particularly the term "imprac ticable") redundant and unnecessary, contrary to the 
principle of effectiveness in treaty interpretation
2, since the only exception would already be 
mentioned in Article 9.4.  
15. Therefore, the European Union considers that , whilst not taking a position on the facts of this 
case and, in particular on the U.S. methodol ogy to calculate dumping margins and impose 
anti-dumping duties on the Vietnam-wide entity, the Anti-Dumping Agreement permits the imposition 
of anti-dumping duties on a country-wide basis in cases of imports from non-market economy 
countries.  III. ALL OTHERS RATE 
 16. With respect to Vietnam's claims against th e U.S. calculation of the "all others" rate, the 
European Union recalls that, as the Appellate Body  has noted, the absence of guidance in Article 9.4 
on what particular methodology to follow does not im ply an absence of any obligation with respect to 
the "all others" rate applicable to non-investigat ed exporters where all margins of dumping for the 
investigated exporters are either zero, de minimis , or based on facts available.  
 
17. The European Union has not encountered in  its practical experien ce a case where all the 
dumping margins found for the companies within the sample were zero/ de minimis  or based on facts 
available.  However, the European Union consider s that, when all the results found for the sampled 
companies are zero/ de minimis , the same result should be extrapolat ed to "all others" thus leading to 
the non imposition of measures.  In contrast, if some dumping margins are zero/ de minimis  and some 
others are based on facts available, a reasonable method should be followed in order to impose duties 
on "all others" as well, for example, by taking into account the level of cooperation of exporting 
producers.  In this respect, the European Union i nvites the Panel to examine whether the methodology 
used by the U.S. was reasonable in view of the specific circumstances of the case. 
 
IV. LIMITATIONS IN THE NUMBER OF RESPONDENTS 
 
18. Finally, as regards Vietnam's claims on the USDOC's limitations in the number of 
respondents examined in each of the anti-dumping pro ceedings at issue and the continued denials of 
requests by individual respondents to be individua lly examined, the European Union refers to the 
exception contained in Article 6.10, second sentence.  If the number of exporters or producers is so 
large that individual examinations would be undul y burdensome to the authorities and prevent the 
timely completion of the investigation, investig ating authorities are not required to individually 
                                                      
2 Appellate Body Report,  US – Gasoline , p. 23, DSR 1996:I, at 21. WT/DS404/R 
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  examine all known exporters or producers outside the samp le.  It is for the Panel to verify whether the 
facts of the case show that this was the case. 
  Mr. Chairman, Members of the Panel, the Europ ean Union stands ready to participate further 
in the discussion and answer any questions that this  Panel may have.  Thank you for your attention. WT/DS404/R  
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  ANNEX D-3 
 
 
THIRD PARTY ORAL ST ATEMENT OF INDIA 
 
 
 India would like to thank the panel for providing  an opportunity to present its views as a third 
party in this dispute.    
1. The issue of zeroing is of extreme systemic importance to the multilateral trading system.  It 
is a matter of regret that the United States continues to apply the "zeroing" methodology for 
determining anti-dumping margins despite the well settled position of its de nouncement by numerous 
reports of Panels and the Appellate Body that u se of this zeroing methodology is inconsistent with 
Articles 2.4, 2.4.2, 9.3, 9.5 and 11.3 of the Anti-Dumping Agreement (ADA).  The   Appellate Body in 
US – Zeroing (Japan),  in US – Zeroing (EC),  US – Softwood Lumber V  has held that the United States 
zeroing procedures, and anti-dumping measures adopted using these procedures, are inconsistent  with 
Articles 2.4 and 2.4.2, 9.3, 9.5 and 11.3 of the ADA.  
 
2. Mr. Chairman, India believes that Members w ill eventually come to realize the futility of 
pursuing the use of "zeroing".  India is deeply concerned at the impact of the prolonged use of this 
methodology on the credibility and predictability of the multilateral dispute settlement system.  In 
view of the settled jurisprudence by the Appellate Body, India believes that the panel will reiterate 
that the practice of "zeroing" by any WTO Member in  the original investigation, or during periodic or 
administrative reviews and sunset reviews is in consistent with Member s' WTO obligations under 
the ADA.    I. INTRODUCTION 
 
3. Vietnam challenges three meas ures at issue and four practices adopted by the U.S. in this 
dispute that relate to the imposition by the United States of antidumping duties under the USDOC's 
antidumping duty order involving certain frozen and canned warm water shrimp from Viet Nam.   
 
4. The U.S. practices under challenge are:  (i) the use of zeroing to calculate antidumping 
margins, (ii) the application of a country-wide rate  to certain respondents not individually investigated 
or reviewed, (iii) the all-others rate calculated and applied to certain other non-investigated or 
non-reviewed respondents, and (iv) the repeated  refusal by the USDOC to review individual 
respondents requesting such a review and thus de termining margins for only a limited selection of 
respondents.  
  Mr Chair we will confine our statement in respect of two of the challenged practices; 
 
5. Vietnam has claimed that each of these practic es limits the ability of Vietnamese exporters 
and producers to prove the absence of dumping, resu lting in the continuation of an antidumping order 
for companies that have in fact gone to great lengt hs to alter their conduct to eliminate dumping.   
 6. India understands that Vietnam has challenge d the USDOC's use of zeroing to determine 
margins of dumping for selected respondents in th e second and third administrative reviews and the 
USDOC's continued use of the so called zeroing pro cedures in successive segments of the continuing 
proceedings of certain frozen warm water shrimp from Viet Nam ( including subsequent administrative 
reviews and the five year sunset review) .Vietnam also requests the Panel to examine the USDOC's 
use of zeroing in the original investigation and firs t administrative review to the extent they are 
relevant to the challenged measures.  WT/DS404/R 
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  7. Vietnam challenges the U.S. practices as inc onsistent with United States obligations under 
Article VI of the General Agreement on Tariffs and Trade 1994  ("GATT 1994") and the Agreement 
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Agreement ").  
Vietnam alleges that the USDOC has relied on, and continues to rely on, th e above-listed practices for 
each stage of the antidumping proceeding.   
 
A. C LAIM OF USE OF ZEROING IN THESE PROCEEDINGS AS INCONSISTENT WITH UNITED STATES 
WTO  OBLIGATIONS  
 
8. Vietnam challenges the USDOC's zeroing, as a pplied, in two administrative reviews and its 
continued use in subsequent phases of this antidumping proceeding.  Vietnam states that the USDOC's Final Determination in the original invest igation stated in explicit terms that the USDOC 
utilized the model zeroing and acknowledged the u se of the same zeroing methodology that was at 
issue in the US – Softwood Lumber V  dispute.  Vietnam states that as the USDOC stated plainly in the 
determinations, the zeroing methodology has been  applied in each phase of this antidumping 
proceeding.  
 9. Vietnam, thus, challenges the USDOC's u se of the zeroing methodology in the original 
investigation to determine the "all- others" rate in the subsequent ad ministrative reviews.  It alleges 
that the USDOC relied on the margin calculated in  the original investigation for purposes of assigning 
rates in subsequent administrativ e reviews.  Thus, the USDOC's use of the zeroing methodology has a 
direct relationship with the measures at-issue in th is dispute.  The USDOC's use of zeroing at the 
investigation phase produced a higher assessment and cash deposit rate for exports in the subsequent 
reviews than would have existed but for use of  the WTO-inconsistent zeroing calculation.   
 
10. India states that in the c ase the U.S. has used  the zeroing methodology in the original 
investigation it would lead to an inflated dumping ma rgin rate.  This would be in conflict with the 
well settled WTO jurisprudence wherein zeroing has been  held to be inconsistent with the provisions 
of the WTO Agreements.  As per Vietnam's clai m, the use of such zeroing methodology in the 
original investigation to determine the "all others " rate in subsequent administrative reviews would 
also lead to inflated rates and be inconsistent with the WTO Agreements.  The Appellate Body in US 
– Zeroing (Japan) , has, ruled that the "maintenance" of zer oing procedures in original investigations 
and administrative reviews is incons istent with Article 2.4 of the ADA.  It states that "[I]n a review 
proceeding under Article 9.3.1, the authority is  required to ensure that the total amount of 
anti-dumping duties collected from all the importers of that product does not exceed the total amount 
of dumping found in all sales made by the exporter or foreign producer, calculated according to the 
margin of dumping established for that exporter or foreign producer without zeroing.  The AB held in  
US – Zeroing (EC) that the zeroing methodology, as applied by the USDOC in the administrative 
reviews at issue, is inconsis tent with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of 
the GATT 1994.  The AB in  US – Stainless Steel (Mexico)  found that the use of zeroing by the 
USDOC in administrative reviews was in consistent with Article 9.3 of the Anti-Dumping Agreement  
and Article VI:2 of the GATT 1994. 
 
11. On a reading of the opening clause of Article  2.1 of the ADA, the Appellate Body has also 
ruled that the definition of "dumping" "applies to  the entire ADA including the provisions governing 
administrative reviews such as in US – Zeroing (Japan) ;  US – Softwood Lumber V , and US – 
Corrosion-Resistant Steel Sunset Review.    
 
12. India has consistently opposed the use of the zeroing method in calculating dumping margins 
from its initial dispute initiated against the EC as zer oing is inconsistent with  Article 2.4.2 of the 
ADA.
1  India states that it is important that this Panel reiterates and reinforces the conclusion that 
                                                      
1 DS141 ( EC – Bed Linen ) WT/DS404/R  
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  practice of zeroing as stated above is "as such" in consistent with the obligations under GATT, 1994, 
Anti-Dumping Agreement and the Agreement for Esta blishing the WTO as consistently held by the 
Panels and Appellate Body in sev eral reports.  Any other conclusion would result in the purported 
continuance of the zeroing practice, which not only inflates dumping margins, but also detracts from 
the obligation to undertake an objective examination of the impact of dumped imports and ascribes 
dumping even in cases where no dumping may exist.  India urges that in the interest of judicial 
economy and fairness, the Panel should follow the judicial well settled position and find that the 
zeroing used in this proceeding by the USDOC,  violates United States' obligations under the 
WTO Agreement. 
 
B. C LAIMS OF INCONSISTENCY REGARDING THE ALL OTHERS RATE 
 
13. Vietnam states that the USDOC generally calculates the all others rate based on the weight- 
average of the weighted average margins of the firms individually examined excluding those margins 
that are zero, de minimis or based on facts available.  Vietnam states that the all others rate applied in 
the second and third administrative reviews was b ased on the "All others rate" in the original 
investigation.  In turn, the "all others" rate from the original investigation was determined by taking 
the weighted average of margins of dumping determ ined for individually investigated respondents in 
the original investigation using "model zeroing".   
 14. Vietnam argues that Article 2.4.2 requires that  a fair comparison shall be made between the 
export price and the normal value.  Anti dumping margins that do not adhere to Article 2 are 
construed to be WTO inconsistent  and must be recalculated.  
 
15. Article 9.4 require that these anti dumping ma rgins calculated in a manner consistent with 
Article 2 serve as a basis for the administrating author ity's calculation of the All Others rate. Thus, the 
weighted average of dumping for those companies in dividually examined is the ceiling for the margin 
of dumping to be applied to the All Others Rate.    
16. India would, thus, support the view that margins of dumping determined in original 
investigations using zeroing are inconsistent among others with Articles 2.4 and 2.4.2 of the ADA and 
that an "all others" rate calculated by using WTO inconsistent model zeroing in the original 
investigation violates Article 9.4 of the ADA. Theref ore, the "all others rate" applied in the second 
and third administrative reviews is inc onsistent with Article 9.4 of the ADA. 
 
17. In Appellate Body Report, US – Hot-Rolled Steel , it has been held that Article 9.4 simply 
identifies a maximum limit, or ceiling, which investigating authorities ' shall not exceed ' in 
establishing an 'all others' rate".  The AB has also held that, although Article 9.4 addresses the 
calculation of the ceiling for the "all others" rate, as opposed to the "all others" rate itself, it does not 
provide unlimited discretion to investigating authorit ies when no ceiling can be calculated due to the 
lacuna  in Article 9.4. 
 
 We quote:   
 
"[W]e do not agree with the Panel's statemen t that, in situations where all margins of 
dumping are either zero, de minimis, or based  on facts available, Article 9.4 "simply 
imposes no prohibition, as no ceili ng can be calculated."  In our view, the fact that all 
margins of dumping for the investigated ex porters fall within one of the categories 
that Article 9.4 directs investigating author ities to disregard, for purposes of that 
paragraph, does not imply that the investigating authorities' discretion to apply 
duties on non-investigated exporters is unboun ded.  The lacuna that the Appellate 
Body recognized to exist 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 WT/DS404/R 
 Page D-11 
 
 
  absence of any obligation with respect to the "all others" rate applicable to 
non-investigated exporters where all marg ins of dumping for the investigated 
exporters are either zero, de minimis, or based on facts available. " 
18. However, the Appellate Body has not stated  the bounds of an investigating authority's 
obligations under Article 9.4 in determ ining an "all others" rate when the lacuna  exists. 
 
19. In India's view, a point for consideration is whether Article 9.4 of the ADA require a 
mandatory obligation on the Investigating Authorit y to make a fresh or updated determination in a 
review on the basis of respondents selected in the re view.  In the case that no such obligation exists 
then the investigating authority may apply the uncha nged "All Others rate" calc ulated in the original 
investigations as the USDOC has done as claimed by Vietnam in the present case.  India would like to 
submit to the Panel that the language used in Article  9.4 suggest that the All Others rate be based on 
the weighted average margin of dumping calculated for "selected" exporters or producers.  In an 
administrative review, if the investigating aut hority has made a new selection of exporters and 
producers and calculates new margins for them, then a reading of Article 9.4 may suggest that the 
margin of dumping be based on the new "selected" exporters or producers. 
 20. It appears that the dispute at hand falls within  the lacuna described above.  Further, it has been 
held that in such matters, the discretion with the investigating authorities to apply duties on non 
investigated exporters is not unbounded and does no t imply an absence of any obligation with respect 
to the all others rate applicab le to non investigated exporters.2 
 
21. A point for consideration for the Panel, maybe whether it is incongruous that if the 
individually examined producers are no longer dumping (as in the second and third administrative 
reviews in the present dispute) and not paying anti dumping duties on their imports, should there be a 
rationale (on the basis of rates calculated in the original investigation) to impose duties on non 
examined exporters during the same period.  It has been held in US – Hot-Rolled Steel  and US – 
Zeroing (EC) (21.5) that the purpose of Article 9.4 is to "pre vent" exporters that were not selected for 
participation in the review from being "prejudiced". 
 
22. In view of the lacuna in Article 9.4 as stated  above, India  would therefore, urge the Panel to 
examine the consistency of U.S. measures as regard s determination of "all others rate" with its 
obligations under Article 9.4 of the ADA.  
  We would like to end our submission with tha nking the panel again for providing us with is 
opportunity. 
 
                                                      
2 US – Zeroing (EC) (21.5)  (ABR). WT/DS404/R  
Page D-12 
 
 
  ANNEX D-4 
 
 
THIRD PARTY ORAL ST ATEMENT OF JAPAN 
 
 
1. Japan appreciates the opportunity to present its views as a third party in this important 
dispute.  The views expressed today and in our written submission are based on Japan's systemic 
interest in the sound interpretation of the legal obliga tion at issue.  In this statement, Japan would like 
to briefly tough upon the following three points:  (1 ) the issue of zeroing in administrative reviews;  
(2) whether the United States' application of the "a ll others" rates are inconsistent with members' 
obligations under the Anti-Dumping Agreement;  and (3) Viet Nam's claims of inconsistency 
regarding the country-wide rate with the Anti-Dumping Agreement. 
 2. First , Japan will not reiterate its arguments set out  in our third party submission here.  Suffice 
it to say that all of the relevant legal issues involved over the WTO-inconsistency of the zeroing 
methodology in the context of administrative view s have been thoroughly and fully examined and 
already resolved by the Appella te Body based on well-reasoned analyses in the previous zeroing 
disputes.  Japan agrees with the Viet Nam that the use of zeroing in administrative reviews is 
inconsistent with Article 2.4 and Article 9.3 of th e Anti-Dumping Agreement, and Article VI:2 of the 
GATT 1994. 
 3. Second , as stated in Japan's written submission, Japan is of the view that the USDOC's 
determinations of "all others" rate  in the second and third administrativ e reviews is inconsistent with 
its obligation under Article 9.4 of the Anti-Dumping Agreement.  Japan considers that the USDOC is 
obliged to determine a contemporaneous "all others " rate in an administrative review based on the 
dumping margins determined for respondents selected in that review.  If the USDOC finds that the 
each of the rates determined for th e selected respondents was zero or de minimis , then the only 
reasonable outcome is to apply "all others" rate of zero, because none of the exporters individually 
examined for that period was found to be engaged in dumping.  There is no basis to assume that 
during the same period, non-examined exporters should  be subject to anti-dumping duties.  Even if the 
panel determines that an investigating authority ma y apply the "all others" rate determined in an 
original investigation to non-selected exporters in ad ministrative reviews, such all other rate must be 
based on WTO-consistent margins of dumping.  The ad ministrative reviews and the all others rate at 
issue are subject to the disciplines of the Anti- Dumping Agreement, and the term "margins of 
dumping" in Article 9.4 refers to margins of dumping  that are WTO-consistent at the time when they 
are used to calculated the all other rate.   
 
4. Third , Japan wishes to offer a few observations to Viet Nam's claims of inconsistency 
regarding the "country-wide" rate with the An ti-Dumping Agreement.  The first sentence of 
Article 6.10 of the Anti-Dumping Agreement estab lishes a general obligation to determine an 
individual dumping margin for each known exporter or producer concerned.  Viet Nam argues that the "country-wide" rate to exporters of  subject merchandise that did not meet "separate rate criteria" was 
not permitted under the Viet Nam's Protocol of Accession or the Anti-Dumping Agreement.
1  
The U.S., in contrast, argues that the rate was a ssigned to those companies that had not established 
that they are free from government influence, part icularly in their export activities, and thus are 
reasonably considered to be parts of one entity that the USDOC has identified as an "exporter" or 
"producer".2 
 
                                                      
1 See Viet Nam's First Written Submission, Section VI.B. 
2 See U.S. First Written Submission, Section V.C. WT/DS404/R 
 Page D-13 
 
 
  5. Japan considers that the Anti-Dumping Ag reement allows investigating authorities to 
calculate a single dumping margin for "legally dis tinct entities" to the extent that they can be 
considered a single "exporter" or "producer" in th e sense of the first sentence of Article 6.10, 
However, as explained by the panel in Korea – Certain Paper , the treatment of legally distinct entities 
as a single exporter or producer is allowed only in  the case where "the structural and commercial 
relationship between the companies in questions is  sufficiently close to be considered as a single 
exporter or producer."3    
 6. This question becomes particularly pertin ent in a case like this where non-market economy 
involves because of a particular role the government  plays in non-market economy.  Therefore, Japan 
requests that the panel pay special attention to the role of the government of Viet Nam in its economy 
in examining whether the exporters or producers to  which the "country-wide" rate is applied have 
structural and commercial relationship be tween themselves and the government.  
 7. This concludes Japan's oral statement.  Jap an thanks for this opportunity.  Japan would 
welcome any questions you may have. 
 
                                                      
3 See Panel Report, Korea – Certain Paper , para. 7.161 – 7.162. WT/DS404/R  
Page D-14 
 
 
  ANNEX D-5 
 
 
THIRD PARTY ORAL STATEMENT OF  
THE REPUBLIC OF KOREA 
 
 
1. The Republic of Korea ("Korea") appreciates  this opportunity to present its views on key 
issues included in Korea's third party submission.  
 
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. First, in this dispute, Vietnam contests the "continued use of challenge d 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. 
 
3. Korea finds that "continued use of challenge d practices" is not a mere potential future 
measure as alleged by the United States.  Rather , that is an ongoing use of zeroing practice in 
successive proceedings of a certain anti-dumping case, which has some similarity with the measure in 
the US – Continued Zeroing  case. 
 
4. With respect to whether it was properly iden tified in Vietnam's Panel Request, Korea notes 
that the Panel should review carefully whether it co uld find a description in the Panel Request that is 
sufficient to indicate the nature of the "continued use of challenged practices".  Especially, Korea 
would like to emphasize that the 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 is of the view that above-mentioned 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 
 5. Regarding the United States' practice of zeroing in administrative reviews, Korea is of the 
view that the Panel should find that the Unite d States' practice is inconsistent with the Anti-Dumping 
Agreement .  
 
6. The United States argues the measures at is sue rest on a permissible interpretation of 
Anti-Dumping Agreement , and thus, they are WTO-consistent.  Specifically, the United States asserts 
that the concept of "dumping" and "margin of dum ping" have a meaning 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 mitig ated by the occurrence of another transaction made 
at a non-dumped price.  However, the Appellate Body has explicitly rejected the United States' 
arguments that "dumping" and "margin of dumping" can  be found to exist at the level of individual 
transactions in a previous ruling regarding the US DOC's practice of zeroing in periodic administrative 
reviews. 
 WT/DS404/R 
 Page D-15 
 
 
  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, in 
which the Appellate Body held that "margin of dumping" could only be established for the product 
under investigation as a whole. 
 8. Korea is of the view that the argument by the United States is simply not compatible with the 
rulings and reasoning of the aforementioned Appellate Body's decisions.  Korea is unable to find any 
reason for the Panel to see the USDOC's zeroing me thodology in the assessment proceedings rests on 
a permissible interpretation of the Anti-Dumping Agreement , although the Panel should make an 
objective assessment of the matter before it. 
 9. For the aforementioned reasons, Korea r espectfully requests that the Panel find the 
United States' practice of zeroing as used in the administrative reviews in anti-dumping proceedings 
concerning imports of certain shrimp from Vietnam to be inconsistent with the 
Anti-Dumping Agreement . 
 
 
_______________