WORLD TRADE  
ORGANIZATION  WT/DS343/R 
29 February 2008 
 (08-0736) 
 Original:   English 
  
 
     
 
  
UNITED STATES – MEASURES RELATING TO SHRIMP 
FROM THAILAND 
 
 
Report of the Panel 
 
 
  WT/DS343/R 
 Page iii 
 
 
 TABLE OF CONTENTS 
Page  
 
I. INTRODUCTION ................................................................................................................... .1 
A. COMPLAINT OF THAILAND ..........................................................................................................1  
II. FACTUAL ASPECTS ..............................................................................................................2  
A. THE ANTI -DUMPING MEASURE ....................................................................................................2  
B. THE ENHANCED CONTINUOUS BOND REQUIREMENT (THE "EBR") .............................................3  
C. IMPOSITION OF CONTINUOUS BONDS AND OTHER SECURITY RE QUIREMENTS IN THE 
CONTEXT OF THE US RETROSPECTIVE ANTI -DUMPING AND COUNTERVAILING DUTY 
ASSESSMENT SYSTEM ..................................................................................................................4  
1. Overview of anti-dumping and countervailing duty procedures..........................................4  
2. Timeline for anti-dumping and countervailing duty procedures .........................................5  
D. IMPLEMENTATION OF THE AMENDED CONTINUOUS BOND DIRECTIVE (THE "AMENDED 
CBD")............................................................................................................................. ..............6  
E. THE IMPACT OF THE ENHANCED CONTINUOUS BOND REQUIREMENT (THE "EBR") ON 
SUBJECT SHRIMP IMPORTERS .......................................................................................................9  
III. PARTIES' REQUESTS FOR FIND INGS AND RECOMMENDATIONS.......................10  
IV. ARGUMENTS OF THE PARTIES ......................................................................................11  
V. ARGUMENTS OF THE THIRD PARTIES ........................................................................11  
VI. INTERIM REVIEW...............................................................................................................11  
A. THAILAND 'S COMMENTS ON THE INTERIM REPORT ...................................................................12  
1. The impact of the EBR on subject importers .......................................................................12  
2. Findings by the USCIT in NFI v. U.S. ...................................................................................13  
3. Parallel panel proceedings ..................................................................................................... 13 
4. "Specific action" in response to dumping ............................................................................13  
5. Specific action "against" dumping........................................................................................14  
6. Application of the Ad Note..................................................................................................... 14 
7. Ordinary meaning of the text of the Ad Note.......................................................................16  
8. Administrative reviews a nd exporter-specific assessmen t rate assignments.....................17  
9. Cash deposits .................................................................................................................. .........17  
10. Negotiating history of the Ad Note ........................................................................................17  
11. Likelihood of increase of dumping margin for future imports as a best proxy ................18  
12. The phrase "error or fraud on the part of import specialists"...........................................18  
13. Documentation on likelihood of anti-dumping rate increases ............................................18  
14. The United States defence under Article XX(d) of the GATT 1994 ....................................20  
15. Factual findings on risk of default.........................................................................................21  WT/DS343/R 
Page iv  
 
 B.
 THE UNITED STATES ' COMMENTS ON THE INTERIM REPORT ....................................................21  
1. Typographical errors........................................................................................................... ...21 
2. Factual aspects to the dispute ................................................................................................2 1 
3. Treatment of amendments as part  of the measure at issue.................................................22  
4. The EBR formula................................................................................................................ ....22  
5. The relationship between Article 9.3.1 of the Anti-Dumping Agreement  and 
retrospective duty assessment................................................................................................22  
6. Characterisation of the "enhanced" bond requirement......................................................22  
7. The legal standard for determining whet her or not the application of the EBR 
resulted in "reasonable" security requirements ..................................................................23  
VII. FINDINGS....................................................................................................................... ........26  
A. PRELIMINARY  ISSUES .........................................................................................................26  
1. Parallel panel proceedings in DS343 and DS345..................................................................26  
2. Overview of the Panel's approach to consideration of Thailand's claims .........................27  
3. Order of analysis.............................................................................................................. .......27  
B. THAILAND 'S CLAIM AGAINST THE USE OF ZEROING IN THE ORIGINAL INVESTIGATION ............28  
1. Main arguments of the parties...............................................................................................28  
2. Evaluation by the Panel........................................................................................................ ..29 
(a) The role of the Panel under Article 11 of the DSU ...................................................................29  
(b) Burden of proof................................................................................................................ .........30  
(c) Has Thailand established that the USDOC "zeroed" in the measure at issue? .........................31  
(d) Has Thailand established that the methodolog y used by USDOC is the same in all 
legally relevant respects as the methodology reviewed by the Appellate Body in US – 
Softwood Lumber V ?.................................................................................................................31  
(e) Has Thailand established that the methodol ogy applied by USDOC is inconsistent 
with Article 2.4.2 of the Anti-Dumping Agreement ? ................................................................32  
C. THAILAND 'S CLAIM AGAINST THE APPLICATION OF THE EBR  TO SUBJECT SHRIMP 
FROM THAILAND .......................................................................................................................35  
1. Scope of the meas ure concerned............................................................................................35  
2. Article 18.1 of the Anti-Dumping Agreement  and the Ad Note ...........................................37  
3. Does the application of the EBR constitu te "specific action against dumping"?..............38  
(a) Main arguments of Thailand..................................................................................................... 38 
(i) "Specific action" in response to dumping .................................................................................38  
(ii) Specific action "against" dumping............................................................................................38  
(b) Main arguments of the United States........................................................................................39  
(i) "Specific action" in response to dumping .................................................................................39  
(ii) Specific action "against" dumping............................................................................................40   WT/DS343/R 
 Page v 
 
 
 (c) Evaluation by the Panel ........................................................................................................ ....41  
(i) Whether or not the application of the EBR is "specific" to dumping........................................42  
(ii) Whether or not the application of the EBR acts "against" dumping.........................................43  
(iii) Conclusion ..................................................................................................................... ...........45  
4. Was the EBR applied "in accordance with" the provisions of the GATT 1994 , as 
interpreted by the Anti-Dumping Agreement ........................................................................46  
(a) Main arguments of Thailand..................................................................................................... 46 
(b) Main arguments of the United States........................................................................................47  
(c) Evaluation by the Panel ........................................................................................................ ....48  
(i) The relationship between the Ad Note and the Anti-Dumping Agreement ...............................48  
(ii) The temporal scope of the Ad Note ...........................................................................................51  
Ordinary meaning of the text of the Ad Note.................................................................................... ...... 51  
Contextual considerations regarding Articles 5.1 and 9.3.1 of the Anti-Dumping Agreement ................ 53  
Contextual considerations regarding th e WTO-conformity of cash deposits.......................................... 55  
Negotiating history............................................................................................................ ...................... 58  
(iii) The combined use of bonds and cash deposits..........................................................................60  
(iv) Whether the application of the EBR resulted in "reasonable" security requirements..............62  
(d) Summary........................................................................................................................ ...........65  
(i) Finding on whether or not the application of the EBR was "in accordance with" the 
Ad Note ........................................................................................................................ .............65  
5. Conclusion in respect of Thailand's Article 18.1 claim .......................................................65  
6. Other claims by Thailand....................................................................................................... 65 
(a) Articles 7 and 9 of the Anti-Dumping Agreement , Article VI:2 of the GATT 1994 , and 
the Ad Note.................................................................................................................... ...........65  
(b) Articles I:1, II:1(a), II:1(b), X:3(a) and XI:1 of the GATT 1994 . .............................................66  
7. United States' defence under Article XX(d) of the GATT 1994 ..........................................68  
(a) Main arguments of the United States........................................................................................68  
(b) Main arguments of Thailand..................................................................................................... 69 
(c) Evaluation by the Panel ........................................................................................................ ....69  
(i) Whether the EBR is necessary to  secure compliance with US laws and regulations as 
provided in Article XX(d) of the GATT 1994 ............................................................................70  
First element: Whether the EBR has been "designe d" to secure complian ce with US laws and 
regulations that are not in th emselves WTO-inconsistent ....................................................................... 7 0 
Second element:  Whether the EBR is "necessar y to secure complian ce with" 19 U.S.C. § 
1673e(a)(1), 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) ......................................................................................................... ................... 73  
(ii) Conclusion ..................................................................................................................... ...........76  
VIII.  CONCLUSIONS AND RECOMMENDATIONS................................................................76  
 WT/DS343/R 
Page vi  
 
 ANNEX A 
 
EXECUTIVE SUMMARIES OF THE FIRST WRITTEN SUBMISSION  
OF THE PARTIES 
 
CONTENTS PAGE 
Annex A - 1 Executive Summary of the First Written Submission of the  
United States A-2 
Annex A - 2 Executive Summary of the First Written Submission of Thailand A-9 
 
 
ANNEX B 
 
EXECUTIVE SUMMARIES OF THE SECOND WRITTEN SUBMISSION  
OF THE PARTIES 
 
 
CONTENTS PAGE 
Annex B - 1 Executive Summary of the Second Written Submission of the  
United States B-2 
Annex B - 2 Executive Summary of the Second Written Submission of Thailand B-10 
 
 
ANNEX C 
 
EXECUTIVE SUMMARIES OF THE FIRST WRITTEN SUBMISSION  
OF THE THIRD PARTIES 
 
 
CONTENTS PAGE 
Annex C - 1 Executive Summary of the First Written Submission of Brazil C-2 
Annex C - 2 Executive Summary of the First Written Submission of Chile C-7 
Annex C - 3 Executive Summary of the First Written Submission of the EC C-10 
Annex C - 4 Executive Summary of the First Written Submission of India C-15 
Annex C - 5 Executive Summary of the First Written Submission of Japan C-21 
Annex C - 6 Executive Summary of the First Written Submission of Korea C-24 
Annex C - 7 Executive Summary of the First Written Submission of Mexico C-27 
 
 
  WT/DS343/R 
 Page vii 
 
 
 TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body 
Report, WT/DS121/AB/R, DSR 2000:II, 575 
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Brazil – Desiccated Coconut  Panel Report, Brazil – Measures Affecting Desiccated Coconut , WT/DS22/R, 
adopted 20 March 1997, upheld by Appellate Body Report, WT/DS22/AB/R, DSR 1997:I, 189 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 
23 October 2002, DSR 2002:VIII, 3045 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 
1997, DSR 1997:II, 591 
EC – Bed Linen  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, 2049 
EC – Sardines  Panel Report, European Communities – Trade Description of Sardines , 
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate 
Body Report, WT/DS231/AB/R, DSR 2002:VIII, 3451 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry , 
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1, 2, 3 and 4, 
adopted 23 July 1998, DSR 1998:VI, 2201 
Japan – Alcoholic 
Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97  
Korea – Various Measures on 
Beef  Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 
2001, DSR 2001:I, 5 
Mexico – Anti-Dumping Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dump ing Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 
20 December 2005 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, adopted 20 December 2005, as 
modified by Appellate Body Report, WT/DS295/AB/R 
Mexico – Corn Syrup  
(Article 21.5 – US)  Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the 
DSU  by the United States , WT/DS132/AB/RW, adopted 21 November 2001, 
DSR 2001:XIII, 6675 WT/DS343/R 
Page viii  
 
 Short Title Full Case Title and Citation 
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 4793 
US – 1916 Act (EC)  Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the 
European Communities , WT/DS136/R and Corr.1, adopted 26 September 2000, 
upheld by Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, 
DSR 2000:X, 4593 
US – 1916 Act (Japan)  Panel Report, United States – Anti-Dumping Act of 1916, Complaint by Japan , 
WT/DS162/R and Add.1, adopted 26 September 2000, upheld by Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831 
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 
US – Certain EC Products  Appellate Body Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/AB/R, adopted 10 January 2001, 
DSR 2001:I, 373 
US – Corrosion-Resistant 
Steel Sunset Review  Appellate Body Report, United States – Sunset R eview of Anti-Dumping Duties 
on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3  
US – DRAMS  Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access 
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea , 
WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521 
US – FSC  (Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW2, adopted 14 March 2006 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571 
US – Offset Act  (Byrd Amendment
 ) Appellate Body Report, United States – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, 
DSR 2003:I, 375 
US – Offset Act  
(Byrd Amendment ) Panel Report, United States – Continued Dumping and Subsidy Offset Act of 
2000 , WT/DS217/R, WT/DS234/R, adopted 27 January 2003, as modified by 
Appellate Body Report, WT/DS217/AB/R, WT/DS234/AB/R, DSR 2003:II, 
489 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 
US – Shrimp  
(Article 21.5 – Malaysia)  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
 and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481 
US – Shrimp (Ecuador) Panel Report, United States – Anti-Dumping Measure on Shrimp from Ecuador , 
WT/DS335/R, adopted on 20 February 2007  WT/DS343/R 
 Page ix 
 
 
 Short Title Full Case Title and Citation 
US – Softwood Lumber V  Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004, 
DSR 2004:V, 1875 
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R, adopted 31 August 2004, as modified by 
Appellate Body Report, WT/DS264/AB/R, DSR 2004:V, 1937 
US – Stainless Steel  Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate 
in Coils and Stainless Steel Sheet and Strip from Korea , WT/DS179/R, adopted 
1 February 2001, DSR 2001:IV, 1295 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT /DS253/AB/R, WT/DS254/AB/R, 
WT/DS258/AB/R, WT/DS259/AB/R , adopted 10 December 2003, 
DSR 2003:VII, 3117  
US – Steel Safeguards Panel Reports, United States – Definitive Safeguard Measures on Imports of 
Certain Steel Products , WT/DS248/R, WT/DS249/R, WT/DS251/R, 
WT/DS252/R, WT/DS253/R, WT/DS254/R, WT/DS258/R, WT/DS259/R, and Corr.1, adopted 10 December 2003, as modified by Appella te Body Report, 
WT/DS248/AB/R, WT/DS249/AB/R, WT /DS251/AB/R, WT/DS252/AB/R, 
WT/DS253/AB/R, WT/DS254/AB/R, WT /DS258/AB/R, WT/DS259/AB/R, 
DSR 2003:VIII, 3273  
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005 
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R and Corr.1, adopted 
23 May 1997, DSR 1997:I, 323 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 
9 May 2006 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 9 May 
2006, as modified by Appellate Body Report, WT/DS294/AB/R 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007 
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R, adopted 23 January 2007, as modified by Appellate 
Body Report, WT/DS322/AB/R 
 
  WT/DS343/R 
 Page 1 
 
 
 I. INTRODUCTION 
A. COMPLAINT OF THAILAND  
1.1 On 24 April 2006, Thailand requested consulta tions with the United States pursuant to 
Article 4 of the Understanding on Rules and Proce dures Governing the Settlement of Disputes (the 
"DSU "), Article XXII:1 of the General Agre ement on Tariffs and Trade 1994 (the " GATT 1994 ") and 
Articles 17.2, 17.3 and 17.4 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (the " Anti-Dumping Agreement ") with respect to certain issues 
relating to measures imposed by the United States on imports of certain frozen warmwater shrimp 
from Thailand.1  Thailand and the United States held consu ltations, but failed to resolve the dispute. 
1.2 On 15 September 2006, Thailand requested the establishment of a panel pursuant to 
Article XXIII of the GATT 1994 , Articles 4 and 6 of the DSU , and Article 17 of the Anti-Dumping 
Agreement .2  
1.3 At its meeting on 26 October 2006, the Dis pute Settlement Body (DSB) established a Panel 
pursuant to the request of Thailand in document WT /DS343/7, in accordance with Article 6 of the 
DSU .  
1.4 The Panel's terms of reference are the following: 
"To examine, in the light of the relevant provisions of the covered agreements cited 
by Thailand in document WT/DS343/7, the ma tter referred to the DSB by Thailand in 
that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements." 
3 
1.5 At its meeting on 21 November 2006, the DS B also established a Pa nel pursuant to the 
request of India in document WT/DS345/6, which dealt substantially with the same matter.   
1.6 On 19 January 2007, Thailand requested the Director-General to determine the composition 
of the Panel, pursuant to Article 8.7 of the DSU . This paragraph provides: 
"If there is no agreement on the panelists within 20 days after the date of the 
establishment of a panel, at the request of  either party, the Director-General, in 
consultation with the Chairman of the DSB and the Chairman of the relevant Council 
or Committee, shall determine the com position of the panel by appointing the 
panelists whom the Director-General consid ers most appropriate in accordance with 
any relevant special or additional rules or  procedures of the covered agreement or 
covered agreements which are at issue in th e dispute, after consulting with the parties 
to the dispute. The Chairman of the DSB shall inform the Members of the 
composition of the panel thus formed no later than 10 days after the date the 
Chairman receives such a request." 
1.7 Thailand also requested the Director General to  select the same persons to serve as panelists 
for both DS343 and DS345, in accordance with Article 9.3 of the DSU , which provides: 
"If more than one panel is established to ex amine the complaints related to the same 
matter, to the greatest extent possible the same persons shall serve as panelists on 
                                                      
1 WT/DS343/1. 
2 WT/DS343/7. 
3 WT/DS343/8. WT/DS343/R 
Page 2  
 
 each of the separate panels and the timetab le for the panel process in such disputes 
shall be harmonized." 
1.8 On 26 January 2007, the Director-Gener al composed the Panel as follows:   
Chairperson: Mr. Michael Cartland 
 
 Members: Mrs.  Enie Neri de Ross 
   M r .  G r a h a m  S a m p s o n   1.9 Brazil, Chile, China, the Europ ean Communities, India, Japan, Korea, Mexico and Viet Nam
4 
reserved their rights to participate in the Panel proceedings as third parties.5 
1.10 The Panel held the first substantive meeting with the parties on 6 and 7 June 2007.  The 
session with the third parties took place on 7 June 2007.   The Panel's second substantive meeting with 
the parties was held on 24 and 25 July 2007.  
1.11 On 4 September 2007, the Panel issued the Descrip tive Part of its Panel Report.  The Interim 
Report was issued to the parties on 9 October 2007 a nd the Final Report was issued to the parties on  
13 November 2007. 
II. FACTUAL ASPECTS 
2.1 This dispute concerns the use of "zeroing" an d the application of the enhanced continuous 
bond requirement (hereafter the "EBR")6 by the United States on certain frozen warmwater shrimp 
imported from Thailand.  
A. THE ANTI -DUMPING MEASURE  
2.2 The first measure at issue concerns the im position of anti-dumping duties on imports of 
shrimp from Thailand.  On 27 January 2004, the United States initiated an anti-dumping investigation 
of certain frozen and canned warmwater shrimp imported from Thailand, Brazil, China, Ecuador, 
India, and Viet Nam.7  On 28 July 2004, the US Department of Commerce (hereafter "USDOC") 
preliminarily determined that certain frozen and canned warmwater shrimp from Thailand were being 
sold at less than fair value to the United  States (the "Preliminary Determination").8  On 1 February 
2005, USDOC published an amended fina l determination of sales at less than fair value and an anti-
dumping duty order imposing definitive anti-dum ping duties only on imports of certain frozen 
warmwater shrimp from Thailand.9 
                                                      
4 In a letter directed to the DSB, dated 8 February 2007, Viet Nam reserved its third party rights.  The 
parties did not oppose this request. 
5 WT/DS343/8/Rev.1. 
6 In its Request for Establishment of the Panel, Thailand uses the term "Continuous Bond 
Requirement", instead of EBR to refer to the measure at issue. 
7 Initiation of Antidumping Duty Investigations: Certain Frozen and Canned Warmwater Shrimp from 
Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam , 
69 Fed. Reg. 3876 (27 January 2004). 
8 Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final 
Determination, and Negative Critical Circumstances De termination:  Certain Frozen and Canned Warmwater 
Shrimp from Thailand , 69 Fed. Reg. 47100 (4 August 2004). 
9 Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty 
Order:  Certain Frozen Warmwater Shrimp from Thailand , 70 Fed. Reg. 5145 (1 February 2005), Exhibit 
THA-14.  On 23 December 2004, USDOC published a fi nal determination that frozen and canned warmwater  WT/DS343/R 
 Page 3 
 
 
 2.3 In the anti-dumping order, the USDOC estab lished margins of dumping for eleven 
individually-investigated Thai exporters ranging fro m 5.7% to 6.8%, and an "all others" margin of 
dumping of 6.0%. 
2.4 The United States does not accept nor dispute that  the "zeroing" used to calculate the anti-
dumping duties at issue in these proceedings is  inconsistent with Article 2.4.2 of the Anti-Dumping 
Agreement , and does not contest Thailand's zeroing claim for purposes of this dispute.10 
B. THE ENHANCED CONTINUOUS BOND REQUIREMENT (THE "EBR") 
2.5 The second measure at issue concerns the imposition of the EBR on importers of shrimp from 
Thailand subject to an anti-dumping order.  On 9 July 2004, US Customs and Border Protection (hereafter "US Customs") amended its existing bond  requirements to include new guidelines specific 
for "covered cases" within "special categories" of  merchandise.  The EBR has been imposed pursuant 
to the Customs Bond Directive 99-3510-004 on Monetary Guidelines for Setting Bond Amounts 
issued on 23 July 1991 (the "1991 Customs Bond Directive")
11, as amended by the Amendment to 
Bond Directive 99-3510-004 for Certain Merchandi se Subject to Antidumping/Countervailing Cases 
(hereafter the "July 2004 Amendment")12, the document entitled "Clarification to July 9 2004 
Amended Monetary Guidelines for Setting Bond Am ounts for Special Categories of Merchandise 
Subject to Antidumping and/or Countervailing Duty Cases" (hereafter the "August 2005 Clarification")
13, the document entitled "Current Bond Fo rmulas" posted by US Customs on its 
website on 24 January 2005 (hereafter "Current Bond Formulas")14, and the Notice published in the 
United States Federal Register entitled Mone tary Guidelines for Setting Bond Amounts for 
Importations Subject to Enhanced Bonding Requi rements (hereafter th e "October 2006 Notice").15 
The July 2004 Amendment, the August 2005 Clarification, the document Current Bond Formulas and 
the October 2006 Notice is referred to collectively as the "Amended CBD".  US Customs has identified as a primary objective of the directive, "c ontinued vigilance ... to ensure collection of all 
appropriate anti-dumping a nd countervailing duties."
16  On 1 February 2005, US Customs 
implemented the EBR with respect to all imports of certain frozen warmwater shrimp subject to 
anti-dumping duties (hereafter "subject shrimp").17  Prior to 1 February 2005, the United States had 
also sent notices to 33 importers beginning on 6 August 2004, of which 12  importers furnished 
                                                                                                                                                                     
shrimp from Thailand was being sold at less than fair value in the United States.  See Notice of Final 
Determination of Sales at Less Than Fair Value and Ne gative Final Determination of Critical Circumstances:  
Certain Frozen and Canned Warmwater Shrimp from Thailand , 69 Fed. Reg. 76918 (23 December 2004), 
Exhibit THA-15.  Thereafter, on 21 January 2005, the US International Trade Commission (hereafter "USITC") 
determined that imports of frozen warmwater shrimp from Thailand were causing material injury to the US 
domestic industry but concluded that imports of canned warmwater shrimp were not causing injury or threat thereof and should thus be excluded from the Order.  See Certain Frozen or Canned Warmwater Shrimp and 
Prawns from Brazil, China, Ecuador, India, Thailand , and Vietnam: Investigations Nos. 1063-1068 (Final) , 70 
Fed. Reg. 3943 (27 January 2005) and USITC Publication 3748, Certain Frozen or Canned Warmwater Shrimp 
and Prawns from Brazil, China, Ecuador, India, Thailand, and Vietnam: [Investigations Nos. 1063-1068 
(Final)]  (January 2005). 
10 United States' responses to First Set of Panel Questions, para. 1. 
11 Exhibit THA-1. 
12 Exhibit THA-2. 
13 Exhibit THA-4. 
14 Exhibit THA-3. 
15 Monetary Guidelines for Setting Bond Amounts for Importations Subject to Enhanced Bonding 
Requirements, 71 Fed. Reg. 62276 (24 October 2006), Exhibit THA-5. 
16 Exhibit THA-2. 
17 US Customs applied the EBR to all importers of subject shrimp under an anti-dumping order from 
Brazil, China, Ecuador, India, Thaila nd, and Viet Nam.  See Notice of Amended Final Determination of Sales at 
Less Than Fair Value and antidumping duty order: Certain Frozen Warmwater Shrimp from India, 70 Fed. Reg 
5147 (1 February 2005).   WT/DS343/R 
Page 4  
 
 enhanced bonds.  To date, "agriculture/aquaculture  merchandise" is the onl y merchandise designated 
as a "special category" and "shrimp covered by anti-dumping or countervailing duty cases" is currently the only "covered case"  designated within the agri culture/aquaculture category. 
C. I
MPOSITION OF CONTINUOUS BONDS AND OTHER SECURITY REQUIREMEN TS IN THE CONTEXT 
OF THE US RETROSPECTIVE ANTI -DUMPING AND COUNTERVAILING DUTY ASSESSMENT 
SYSTEM  
2.6 According to the United States, the EBR in co mbination with cash deposits is imposed to 
ensure payment of anti-dumping or countervailin g duties under its retrospective duty assessment 
system.  Unlike the systems employed in many other countries, the US retrospective system determines final liability for anti-dumping and coun tervailing duties after merchandise is imported 
into the country at the end of assessment or "admin istrative" reviews which are conducted 12 months 
following the anniversary month of the relevant anti-dumping order.
18  Certain of the following 
aspects of the US system discussed below, may prove relevant to an objective assessment of 
Thailand's claim. 
1. Overview of anti-dumping and countervailing duty procedures 
2.7 Under the US retrospective duty assessment syst em, the United States determines, through an 
investigation, whether margins of dumping or co untervailable subsidisation exist, and whether 
dumped imports or countervailable subsidisation cause or threaten to cause material injury to a domestic industry.  During the preliminary phase of the investigation, the US International Trade Commission (hereafter "USITC") determines whether a reasonable indication exists that an industry 
in the United States is materially injured, whether a reasonable indication exists that an industry in the 
United States is threatened with material injury, or whether the establishment of an industry in the 
United States is materially retarded by reason of subject merchandise investigated.  USDOC  also preliminarily determines whether a reasonable basis exists to believe that dumping or countervailable 
subsidisation is occurring.  If USDOC makes an affi rmative determination, it will issue a preliminary 
determination, which permits the imposition of provisional measures, historically in the form of a 
cash deposit, bond, or other security requiremen t, to ensure collection if anti-dumping or 
countervailing duties are ultimately imposed.  The pr eliminary determination sets forth ad valorem 
cash deposit rates for producers/exporters individually  investigated, as well as an "all-others" rate 
applicable to all other producers/exporters.  Sub sequently, USDOC makes a final determination as to 
whether dumping or countervailable s ubsidisation is occurring.  If th is determination is affirmative 
and USITC also issues a final determination that im ports of subject merchandise in the investigation 
were causing material injury to the US domestic indus try or threatening with material injury, or that 
the establishment of an industry in the United Stat es is materially retarded by reason of subject 
merchandise in the investigation, thereafter US DOC issues a public notice, denominated under US 
law as an anti-dumping or countervailing duty order.   In the anti-dumping or countervailing duty 
order, USDOC sets forth ad valorem cash depos it rates for producers/exporters individually 
investigated, as well as an "all-others" rate applicable  to all other producers/exporters.  Pursuant to the 
order, importers must post a cash deposit of est imated anti-dumping or countervailing duties for each 
import transaction.  This cash deposit is based on  the overall margin of dumping or countervailable 
subsidisation found for the exporter or producer during the investigation phase.   
2.8 During the anniversary month following a final determination in the investigations phase, 
importers, exporters, producers, a nd domestic interested parties ma y request that USDOC conduct an 
assessment review often referred to as an "adminis trative review" of the import transactions that 
occurred in the prior year.  During this review, US DOC analyses all of the import transactions for the 
                                                     
 
18 See generally Title VII of the Tariff Act of 1930, 19 U.S.C. § 1671 et seq .; see also 19 C.F.R. § 
351.101 et seq .  WT/DS343/R 
 Page 5 
 
 
 period of review (i.e.  , the prior 12 months) to determine the final amount of the anti-dumping or 
countervailing duty payable on imports from each pr oducer or exporter for which USDOC received a 
request for review.   
2.9 Upon USDOC's completion of an administrative review, US Customs a pplies the assessment 
rate provided by USDOC to the customs value of each  entry to determine the amount of final liability.  
If the amount of the cash deposit is greater than the amount of final liability, US Customs refunds the 
amount collected in excess of the final liability, together with interest on the excess amount.  
Alternatively, if the amount of final liability ex ceeds the amount of the cash deposit, US Customs 
issues a bill to the importer for payment of the diffe rence in the amounts together with interest on the 
difference in the amounts.  During the administrative review, USDOC may establish a new cash 
deposit rate for each producer or exporter, on the basis of that producer or exporter's transactions over 
the period of review.  This new ad valorem cash depos it rate will be applied to future imports from the 
producer or exporter.  USDOC analyses the import transactions of each producer or exporter subject 
to the review to calculate a new cash deposit rate going forward.  For those entries not covered by a 
request for an administrative review, USDOC instructs US Customs to assess anti-dumping or 
countervailing duties at the cash depos it rate required upon entry.   
2.10 Due to the design of the US retrospective system , the dumping or subsidisation calculations in 
the administrative review are based on different  transactions than those evaluated during the 
investigation. The investigation evaluates the pric ing behaviour of producer s and exporters based on 
transactions completed during a period of time prior to the initiation of the anti-dumping or 
countervailing duty investigation.  In contrast, an administrative review evaluates pricing behaviour 
during later time periods.19  As a result of this, the dumping or subsidisation margins calculated in the 
administrative review may be either higher or lower than the margins calculated in the investigation.  
According to the United States, the EBR attempts  to ensure full collection of anti-dumping or 
countervailing duties by securing against the possibili ty that the margin will increase from the time of 
the investigation until calculation of the final duty liability during the administrative review, and that 
importers will default on payment of increased duties.20 
2. Timeline for anti-dumping and countervailing duty procedures 
2.11 Under US law, USDOC has a finite period to  complete its anti-dumping or countervailing 
duty investigation and issue an anti-dumping or countervailing duty order, if any.  USDOC may 
extend the deadlines for the preliminary and final de terminations, but cannot extend the investigation 
beyond 407 days.  US law provides that USDOC ordinarily must complete an administrative review 
within 365 days.  USDOC may extend the deadlines for issuing preliminary and final results of the 
assessment review, but the review may not excee d 545 days.  Specifically, the following is an 
overview of applicable time limits:  
• In the petition phase of an anti-dumping or countervailing duty investigation, 
USDOC has 20 days (which may be extended to 40 days, only in the case of an anti-
dumping investigation) to determine whethe r to initiate an investigation after it 
receives a petition to investigate dumping or  countervailable subsidisation.   
• In the preliminary phase of an anti-dump ing or countervailing duty investigation, 
after USDOC initiates the investigation, US ITC has 45 days (which may be extended 
                                                      
19 The first administrative review evaluates transactions occurring from the date of imposition of 
provisional measures (if any) in the preliminary determination through the end of the twelve-month period 
following imposition of the anti-dumping duty order, generally a period of 18 months.  All subsequent administrative reviews generally evaluate transac tions occurring during the preceding 12 months. 
20 United States' responses to First Set of Panel Questions, para. 64. WT/DS343/R 
Page 6  
 
 to 65 days) from the date the petition is filed to make a preliminary injury 
determination.  If USITC makes a preliminar y affirmative injury determination, then 
USDOC has 140 days (which may be extended to 190 days) in the case of a dumping investigation, or 65 days (which may be  extended to 130 days) in the case of a 
countervailable subsidisation investigation, from the date it initiated the investigation 
to make its preliminary determination of th e existence of dumping or countervailable 
subsidisation.   
• In the final phase of an anti-dumping or countervailing duty investigation, USDOC 
has 75 days (which may be extended to 135 days, only in the case of an anti-dumping 
investigation) from its preliminary determina tion to make a final determination of the 
dumping or subsidisation margins of inv estigated producers and exporters.  If 
USDOC makes an affirmative final determination, USITC has until 45 days (which 
may be extended to 75 days) after USDOC's  final determination to make its final 
injury determination.  If the USITC makes an  affirmative final injury determination, 
USDOC issues an anti-dumping or countervailing duty order.   
• One year after the date the anti-dumping or  countervailing duty order is issued, and 
during the anniversary month of the order every year thereafter, interested parties 
may request that USDOC conduct an administrative review of individual producers or 
exporters.  After initiating this review, USDOC is required to issue preliminary 
results of the actual margin of dumping or subsidisation for the entries of the reviewed producer or exporter during the pe riod of review within  245 days (which 
may be extended to 365 days)  after the last day of the anniversary month.  USDOC then must issue the final results within 1 20 days (which may be extended to 180 days) 
after the preliminary results are published. 
D. I
MPLEMENTATION OF THE AMENDED CONTINUOUS BOND DIRECTIVE (THE "AMENDED CBD ") 
2.12 Following issuance of the anti-dumping duty orde r on imports of certain frozen warmwater 
shrimp on 1 February 2005, US Customs began re quiring subject shrimp importers to maintain 
enhanced bond coverage additional to the cash secur ity required on each entry, in compliance with the 
Amended CBD.21   
2.13 Generally, to satisfy US Customs bond requireme nts, any importer of goods subject to an 
anti-dumping or countervailing duty order may obtain either a single entry bond, covering a single 
entry, or a continuous bond, which provides security  for all entries filed by the bond principal during 
the period of time covered by the bond, typically one year.  US Customs may also require additional 
security if US Customs believes that acceptance of  an entry secured by a continuous bond would 
impair US Treasury revenue collection.22  Previously, under the 1991 Customs Bond Directive, 
importers subject to an anti-dumping or counterva iling duty order that selected the continuous bond 
option only needed to post a customs bond equal to the greater of $50,000 or 10 per cent of the duties, taxes, and fees paid during the preceding year, rounded to the nearest multiple of $10,000.  After publication of the Amended CBD, however, US Cu stoms implemented the EBR and required select 
importers of merchandise designated as "covered cases"  to provide continuous customs bonds  in 
excess of amounts established under 1991 guidelines and in addition to cash deposits of estimated 
                                                     
 
21 As indicated in paragraph 2.5 above, the Unite d States sent notices to 33 importers prior to 
publication of the Anti-dumping Order on 1 February 2005 beginning on 6 August 2004, of which 12 importers furnished enhanced bonds prior to 1 February 2005. 
22 See 19 C.F.R. § 113.13(d).  US Customs administers the powers under section 113.13(d) in 
accordance with the 1991 Customs Bond Di rective, which provides that "a bond may be demanded with a limit 
of liability amount greater than that computed using this fo rmula, provided sufficient evidence of high risk is on  
hand to support the higher amount": See Exhibit THA-1, p. 3.  WT/DS343/R 
 Page 7 
 
 
 anti-dumping duties per entry.  Thus, under the Am ended CBD, in addition to a minimum of $50,000 
or 10 per cent of the duties, taxes, and fees paid during the preceding year, US Customs requires importers subject to the EBR to secure a bond for an amount equal to the USDOC cash deposit rate in 
effect on the date of entry of the merchandise multiplied by the importer's value of imports from the previous year, as well as pay cash deposits equal to  the amount of anti-dumping duties per entry.  The 
Amended CBD does not apply to single entry bonds. 
2.14 As noted, subject shrimp is currently the onl y category of merchandise subject to the EBR. 
2.15 The following hypothetical example illustrat es the combined total security obligations 
imposed on Thai shrimp importers subject to the EBR, including bond and cash deposit requirements: 
(a) An importer of Certain Frozen Warmwater Sh rimp from Thailand subject to the "all-
others" anti-dumping duty rate imports US$1 million
 of subject shrimp during the 
previous 12 months. 
(b) The value of subject shrimp entered in the present transaction amounts to US$10,000 . 
(c) The Bound rate under Harmonized Tariff Sc hedule (HTS) headings 0303.13.00 and 
1605.20.10 is 0 per cent.  
(d) The USDOC anti-dumping duty "all-others" rate (pursuant to anti-dumping order) is 
6.0 per cent.  
(e) US Customs applies the Amended EBR formula to the existing importer without 
making adjustments based on an individualized determination. 
 Obligation Description Amount 
1. Normal Duties: As per a 0 per cent bound rate under HTS 
headings $0 
2. Cash Deposit for Anti-dumping 
Duties: Upon issuance of an anti-dumping order 
but prior to an administrative review, US 
Customs orders the posting of a cash 
deposit based on the "all-others" rate.23 $600 
3. Continuous Bond Amount:24 Basic Bond + EBR ( see 3(a) + (b) below ), 
rounded up  by increments of $10,000 up to 
$100,000, and then by increments of 
$100,000. $200,000 
                                                      
23 See 19 C.F.R. § 351.211(a).  If no administrativ e review is requested, anti-dumping duties will be 
assessed at the cash deposit rate for estimated anti-dumping duties as established in the anti-dumping Order and 
required on that merchandise at the time of entry.  (See 19 C.F.R. § 351.212(c)). 
24 A continuous bond amount secures mu ltiple transactions during its va lidity.  In place of a continuous 
bond, an importer may elect to post a single-transaction bond, which is equal to the assessed anti-dumping duty 
rate plus all applicable duties, taxes, and fees. WT/DS343/R 
Page 8  
 
  Obligation Description Amount 
3(a).  Basic Bond Amount: The greater of either $50,000 or 10 
per cent of the duties, taxes, and fees paid during the preceding year, rounded.
25 $50,000 
3(b).  EBR Amount: 100 per cent of Anti-dumping duty rate 
established in final Order or most recent 
Administrative Review * value of imports 
in previous 12 months. $60,000 
4. Total Obligations: = 1. + 2. + 3. $200,000 continuous 
bond (covering all 
shipments in one 
year period) + $600 
cash deposit per 
shipment of $10,000 
 
2.16 The Amended CBD authorizes US Customs to u se the standard formula or instead make 
individualised bond determinations for subject Th ai shrimp importers to determine bond amounts.  
The Amended CBD (specifically the August 2005  Clarification and the October 2006 Notice) 
provides that US Customs may reconsider bond am ounts for individual importers on a case-by-case 
basis to ensure that duties are co llected.  However, in order to r eceive a reduction in the overall bond 
coverage via an individualized bond determination, an importer mu st so request, and may submit 
information on its financial condition related to the risk of non-collection for that importer.  US 
Customs will then determine bond amounts based on the financial information supplied by the 
importer, US Customs records on compliance history of the importer, the importer's or principal's 
ability to pay, and other relevant information av ailable to US Customs.  Thus, the October 2006 
Notice provides that, "[a]bsent exceptional circumst ances, the above formulas will determine the bond 
amounts where a submission has not been made by the principal".26  To date, the United States has 
indicated that it received 27 requests for individuali zed bond determinations, of which it has reviewed 
22 requests, has granted no reductions to three importers, reductions of 25 per cent to eleven 
importers, 45 per cent to one importer, 75 per cent to  two importers, 80 per cent to one importer and 
85 per cent to two importers.27 
2.17 The Enhanced continuous bonds provided pursu ant to the Amended CBD are released when 
final liability for anti-dumping duties on goods cove red by the bond is assessed, and upon liquidation 
of the import entries made in account of the goods.28  As explained in Section II.C.2 above, if an 
administrative review is requested, final liability  for anti-dumping or countervailing duties will be 
determined through such a review.  If an administ rative review is not requested, final liability will 
equal the margin of dumping or subsidy published in  the final determination; however, this liability 
will not be assessed until the conclusion of the tim e period for requesting an administrative review. 
                                                      
25 See 1991 Customs Bond Directive, Exhibit THA-1, which fixed a minimum continuous bond 
amount of $50,000 and establishes the following formula: (1) In the case of 0 to $1 million duties/taxes, the 
bond limit of liability is fixed in multiples of $10,000 nearest to 10 per cent of duties, taxes and fees paid during the preceding calendar year; or (2) in the case of duties/taxes over $1 million, the bond liability is fixed in 
multiples of $100,000 nearest to 10 per cent of dutie s, taxes and fees paid during the preceding year. 
26 Exhibit THA-5. 
27 See United States' Responses to First Set of Pa nel Questions, para. 44; Exhibit US-12.  The GAO 
Report, Exhibit THA-10, p. 42, indicates that the number of shrimp importers totalled 550 through June 2006.  
Exhibit US-17 refers to 530 shrimp importers in 2004. 
28 Under 19 USC § 1675(b), once the administering authority orders liquidation of entries pursuant to a 
review, goods are liquidated within 90  days after the instructions to Customs are issued, in most cases.  WT/DS343/R 
 Page 9 
 
 
 E. THE IMPACT OF THE ENHANCED CONTINUOUS BOND REQUIREMENT (THE "EBR") ON SUBJECT 
SHRIMP IMPORTERS  
2.18 Following the application of the EBR, subject  shrimp importers have faced significantly 
higher security obligations than previously to en ter merchandise.  Specifically, as explained above, 
subject shrimp importers must satisfy both the B asic Bond and EBR as well as provide cash deposits 
equal to the anti-dumping duty rate established in th e final determination.  Additionally, Thailand 
explains that sureties have also "typically" re quired subject shrimp importers/exporters to post 
collateral equal to 100 per cent of the EBR to secure the increased bond amounts.29  The United States 
contends that evidence presented to this Panel doe s not support the conclusion that a majority of 
companies eligible to act as sureties on bonds securing  obligations to US Customs has required certain 
importers of subject shrimp to post collateral equal to 100 per cent of the EBR.30  Thailand further 
explains that subject shrimp importers/exporters ha ve also been required to pay associated fees to 
secure the increased bond amounts.31 32  Due to the fact that enhan ced bonds are deemed valid for 12-
month periods of liability, but are not released until final liability has been a ssessed for anti-dumping 
duties on the goods covered by the bond, shrimp impor ters/exporters subject to the EBR have also had 
to furnish concurrent enhanced bonds and concurrent rounds of colla teral for bonds covering distinct 
12-month periods of liability.33  In the context of the additional security, collateral and fee obligations, 
the Government Accountability Office (hereafte r "USGAO") in a report (the "USGAO Report")34 
concluded that subject importers /exporters have likely had to fo rgo other commercial opportunities, 
although the effects could not be fully isolated from other changes occurri ng at the same time.35  The 
USGAO Report also observed that some importers  have required exporters  to export on a Delivery 
Duty Paid ("DDP") basis, thereby making the expo rter, as the importer of record, responsible for 
customs bond requirements.36  The parties disagree on the im pact of the increased security 
                                                      
29 In its first written submission, paragraph 125, Tha iland refers to the following statement by the US 
Court of International Trad e (hereafter "USCIT") in NFI v. US  (Exhibit THA-9, p. 38.): "[T]he testimony of 
witnesses for two plaintiffs relating to the requirem ents imposed on plaintiffs seeking new term bonds 
corroborates the finding that sureties ty pically require 100 percent collateral in the situations occasioned by the 
new bonding requirements."  In paragraph 125 of its  first written submission, Thailand also refers to 
communications between customs brokers and subject exporters (Exhibit THA-13) that discuss 100 per cent 
collateral requirements. 
30 See United States' Request for Review of the Interim Report, para. 4.  See also Exhibit US-13, which 
lists companies to act as sureties on bond s securing obligations to US Customs. 
31 Thailand presents as evidence invoices (Exhibit THA-18) indicating that surety companies have 
charged Thai exporters 10 per cent of the amount of the enhanced bond as a fee for providing the bonds.  The 
United States has emphasized that, as a third party benefi ciary to the contract betw een the surety and the bond 
principal, it is not itself a party to the contract, and thus  does not set market-based fees charged by sureties or 
receive payments:  see United States' first written submission, paras. 7 and 10. 
32 See e.g. Exhibit THA-9, p. 38 ("the testimony of witnesses for two plaintiffs relating to the 
requirements imposed on plaintiffs seeking new term bon ds corroborates the finding  that sureties typically 
require 100 percent collateral in  the situations occasioned by the new bonding requirements."). 
33 See e.g. Exhibit THA-18, wherein US Customs in separate communications to a Thai 
importer/producer, specified that the importer/producer must post separate enhanced bonds, each of which is deemed sufficient for one year. 
34 Government Accountability Office, Customs' Revised Bonding Policy Reduces Risk of Uncollected 
Duties, but Concerns about uneven Implementation and Effects Remain , GAO-07-50 (Washington D.C.: 
October 2006), Exhibit THA-10. 
35 See USGAO Report, pp. 6, 24 and 35, Exhibit THA-10; see also  NFI v. US , Exhibit THA-9, p. 31. 
36 See USGAO Report, p. 6, Exhibit THA-10.  See also United States' second written submission 
(WT/DS343), para. 30, wherein the United States contends that the use of a DDP basis rather than Cost, 
Insurance and Freight (CIF) one does not affect the costs borne by the importer of record. WT/DS343/R 
Page 10  
 
 requirements and related collateral requirements and fees on the year-on-year volume of shrimp 
imports into the United States.
37 
2.19 In October 2006, the USGAO concluded that th e Amended CBD criteria were not transparent 
or consistently applied.38  On 13 November 2006, the US Court of International Trade (hereafter 
"USCIT") ruled that US Customs appeared to have  discretion under US law to consider potential anti-
dumping or countervailing duty in setting continuous bond amounts39; however, it concluded that the 
administrative record supported the conclusion that the plaintiffs are likely to demonstrate that US 
Customs arbitrarily and capriciously selected the anti-dumping orders on shrimp as the only "covered 
case" of merchandise40, and that the application of the Amended CBD to the eight complaining 
importers was arbitrary and capricious.41  For this reason, the USCIT issued a preliminary injunction 
status quo  in favour of eight of the 20 complaining impor ters, prohibiting the enforcement of any side 
agreements that limited importation42, and ordered US Customs to review the sufficiency of certain 
EBR bonds amounts in excess of $1,500,000 posted by the eight complaining importers in the case.43  
The USCIT's final decision on the merits of the compla inants' legal claims is pending.  After the GAO 
Report was issued but prior to publication of the USCIT's ruling, US Customs published the Amended 
CBD criteria in the October 2006 Notice, whic h further described the process for obtaining 
individualized bond amounts.   
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1 Thailand requests the Panel;44 
(a) to find that, regarding the application of the EBR to subject shrimp from Thailand, 
the United States acted inconsistently with: 
(i) Article 18.1 of the Anti-Dumping Agreement  by taking specific action against 
dumping that is not in accordance with the provisions of Article VI of the GATT 1994  as interpreted by the Anti-Dumping Agreement ; 
(ii) subsidiarily, Articles 7 and 9
45 of the Anti-Dumping Agreement , Article VI:2 
of the GATT 1994 , and the Ad Note to Article VI:2 and 3 of the GATT 1994  
(the "Ad Note"). 
(iii) Article XI:1 of the GATT 1994  by imposing an impermissible restriction on 
imports of shrimp from Thailand; or, alternatively, that the United States acted inconsistently with Article II:1( a) and the first and second sentences of 
Article II:1(b) of the GATT 1994  by imposing impermissible duties or 
charges on imports of shrimp from Thailand.   
                                                     
 
37 See e.g. Thailand's first written submission, para s. 144-145; United States' first written submission, 
para. 41. 
38 See generally, USGAO Report, Exhibit THA-10. 
39 See Exhibit THA-9, p. 42. 
40 See Exhibit THA-9, p. 54 
41 See Exhibit THA-9, p. 58. 
42 See Exhibit THA-9, p. 73. 
43 See Exhibit THA-9, p. 72. 
44 Thailand's first written submission, paras. 288-290. 
45 In its Request for Establishment of the Panel, pa ra. 2 (vi), Thailand also claimed a violation of 
Articles 9.1, 9.2 and 9.3 of the Anti-Dumping Agreement .  In response to Question 42 from the Panel, Thailand 
stated that it did not pursue further a violation under Article 9.1.  WT/DS343/R 
 Page 11 
 
 
 (iv) Article X:3(a) of the GATT 1994  by failing to administer its customs laws 
and regulations relating to bonds in  a uniform, impartial and reasonable 
manner. 
(v) Article I of the GATT 1994  by failing to extend to imports of subject shrimp 
advantages that are provided to imports of shrimp from other countries.   
(b) to find that, regarding the Anti-Dumping Measure, the United States acted 
inconsistently with:   
(i) Article 2.4.2 of the Anti-Dumping Agreement  by using the zeroing 
methodology to calculate margins of dumping.46   
(c) to proceed to address Thailand's claims re garding the consistency of the EBR with 
Articles XI, II, X:3(a), and I of the GATT 1994 , even if the Panel were to agree with 
Thailand on the claim that the application of the Enhanced Bond Requirement constitutes specific action against dumping w ithin the meaning of Article 18.1 of the 
Anti-Dumping Agreement .   
(d) to recommend, in accordance with Article 19.1 of the DSU , that the DSB request the 
United States to bring the measures at  issue into conformity with the Anti-Dumping 
Agreement  and the GATT 1994  within a reasonable period of time.   
(e) to suggest, pursuant to its authority under Ar ticle 19.1, that the United States bring its 
measure into conformity by immediately releasing any bonds held by US Customs for imports of subject shrimp from Thailand pursuant to the EBR, so that those imports, like all other US imports subject to an ti-dumping duties would be secured by the 
Basic Bond Requirement. 
3.2 The United States requests that the Panel reject Thailand's claims for the reasons provided in 
its first written submission.
47 
IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties as set forth in their executive summaries su bmitted to the Panel, 
are attached to this Report as Annexes (see List of Annexes, page v). 
V. ARGUMENTS OF THE THIRD PARTIES 
5.1 The arguments of the third parties as set fort h in their executive summaries submitted to the 
Panel, i.e. Brazil, Chile, China, the European Communities, India, Korea, Japan and Mexico, are 
attached to this Report as Annexes (see List of Annexes, page v).48 
VI. INTERIM REVIEW 
6.1 On 9 October 2007, the Panel issued its Interi m Report to the parties.  On 23 October 2007, 
both parties submitted written requests for the review of precise aspects of the Interim Report.  The 
                                                      
46 In its Request for Establishment of the Panel, paras.  2 (a) (ii), (iii) and (iv), Thailand also claimed a 
violation of Articles 2.1, 2.4 and 9.3 of the Anti-Dumping Agreement .  In Thailand's Answers to First Set of 
Panel Questions, question 2, Thailand stated that it di d not pursue further a violation under these articles. 
47 United States' first written submission, para. 81. 
48 China and Viet Nam informed the Panel that they would not be providing written submissions. WT/DS343/R 
Page 12  
 
 parties also submitted written co mments on the other party's commen ts on 2 November 2007.  Neither 
party requested an interim review meeting. 
6.2 In accordance with Article 15.4 of the DSU , this section of the Panel's Report sets out the 
Panel's response to the arguments made at the inte rim review stage, wherever the Panel felt that 
explanation was necessary.  The Panel has also modi fied certain aspects of its Report in light of the 
parties' comments wherever the Panel considered it necessary.  Due to the factual similarities in the 
disputes DS343 and DS345, the Panel wherever possi ble has modified the respective reports of these 
two disputes in parallel.  The Panel has also made  a limited number of editorial corrections to the 
Interim Report for the purposes of clarity and accu racy.  References to sections, paragraph numbers 
and footnotes in this Section VI relate to the Interim Report.  Where appropriate, references to 
paragraphs and footnotes to the Final Report are included. 
A. T
HAILAND 'S COMMENTS ON THE INTERIM REPORT  
1. The impact of the EBR on subject importers 
6.3 Regarding paragraph 2.18 and co llateral requirements, Thailand requests the Panel to modify 
its statement that at least one or more sureties h as required subject importers  to provide 100 per cent 
collateral, based on statements made by the US CIT that sureties "typically" require 100 per cent 
collateral (see NFI v. U.S. , Exhibit THA-9, at 38).  Thailand submits that the dictionary definition of 
"typically" is "representatively, characteristically."  (see New Shorter Oxford dictionary, vol. 2 (1993), 
Brown, L. Ed. (Clarendon Press: Oxford) p. 3442).  Further, Thailand requests the Panel to refer to 
evidence disclosed in email communications be tween customs brokers and exporters discussing 
collateral requirements (see Exhibit THA-13).  The United States requests the Panel to decline 
Thailand's suggestions due to the fact that the proceedings in NFI v. US  are ongoing, contain a 
different factual record and involve questions of US  law.  In particular, the United States notes that 
the findings in NFI v. US  pertain to 8 importers and should not be extrapolated.  The United States 
further notes that evidence on record, such as Exhi bit THA-13, does not support the conclusion that 
all or a majority of sureties require collateral.  However, the United States does request the Panel to 
include evidence submitted by Thailand and the Unit ed States on the issue of collateral requirements 
into the relevant footnotes.  Taking both parties' co mments into consideration, the Panel has modified 
paragraph 2.18 in order to reflect both parties' views with respect to  the overall effect of the EBR on 
all subject shrimp importers /exporters from Thailand. 
6.4 Regarding paragraphs 2.18, 6.59 and 6.75, footnote 103 and fees and the stacking effect, 
Thailand requests the Panel to refer to Exhibit THA-18 as evidence to support a finding that sureties 
have charged associated fees to se cure increased bond amounts.  Thailand further requests the Panel 
to refer to Exhibit THA-18 as discussed in paragr aphs 132-134 of Thailand's first written submission, 
or NFI v. US , Exhibit THA-9 as discussed in paragraphs 59-62 and 113 of Thailand's first written 
submission to support its explanation of the stacking effect of bonds on imports.  The United States 
does not object to inclusion of citation to Exhibit T HA-18, but requests the Panel to retain the existing 
text in the main body.  If the Panel refers to  Thailand's arguments regarding stacking, the United 
States requests the Panel to also refer to US argume nts presented in paragraphs  7, 10-11, and 40-44 of 
its first written submission.  In relation to fees, the Panel has added citation to invoices provided in 
Exhibit THA-18 and the United States' first written s ubmission, in footnotes to paragraph 2.18 of the 
Interim Report.  The Panel has also cited to E xhibits THA-18 and THA-13 in paragraph 2.18 when 
discussing the stacking of enhanced bonds and its effect on collateral requirements.   
6.5 Regarding paragraph 2.18, Thailand also request s the Panel to modify the phrase "certain 
importers may have required exporte rs to export on a DDP basis" to reflect a statement by the 
USGAO that importers "now require" exporters  to export on a DDP basis (see USGAO Report, 
Exhibit THA-10, p. 6).  Thailand also asks the Pane l to consider a Thai shrimp industry survey (see  WT/DS343/R 
 Page 13 
 
 
 Exhibit THA-12) in support of the finding that exporters are required to ship on a DDP basis.  The 
United States requests the Panel to modify the Interi m Report to reflect the US position that the use of 
a DDP basis rather than a Cost, Insurance, and Frei ght (CIF) basis does not affect the costs faced by 
the importer of record.  The Panel has modified the phrasing of its descriptive section in paragraph 
2.18 to reflect statements by the USGAO regarding whether importers of subject shrimp have required 
exporters to export on a DDP basis, and has includ ed citation to the United States arguments on the 
impact of a shift to a DDP basis. 
2. Findings by the USCIT in NFI v. U.S.  
6.6 Regarding paragraph 2.19, Thailand requests the Pa nel to additionally refer to findings by the 
USCIT from section 2(b) of NFI v. U.S.  (see Exhibit THA-9, p. 54).  Thailand submits that, as 
pertains to the decision on whether to issue a prel iminary injunction, the USCIT concluded that the 
administrative record supported the conclusion that the plaintiffs are likely to demonstrate that US 
Customs arbitrarily and capriciously selected the anti-dumping orders on shrimp as the only "covered 
case" of merchandise.  The United States construes the current language in the report as accurately 
describing the USCIT's decision with respect to the eight complaining importers.  The Panel has 
retained the original language discussing the US CIT holding while also seeking to clarify its 
description of the US court's holding through th e addition of language in  paragraph 2.19.  The 
paragraph now reflects the USCIT's findings that plaintiffs are likely to demonstrate that US Customs both arbitrarily and capriciously selected the an ti-dumping order as the only covered case, and 
arbitrarily and capriciously applied the Amende d CBD to the eight complaining importers.  
3. Parallel panel proceedings 
6.7 Regarding paragraph 6.1, Tha iland requests the Panel to consider substituting the word 
"should" for "would" in the final sentence so that it  does not appear that the decision to appoint the 
same panellists in DS343 and DS345 and to harmonise the timetable for the two cases was made by the representative of the United States.  The United States notes that the US representative stated on 
record that "the same panellists could  consider on the same timetable the matters in the two requests". 
(see WT/DSB/M/222, emphasis added).  The Panel has amended paragraph 6.1 (7.1 of the Final 
Report) to reflect the statement made by the US representative. 
4. "Specific action" in response to dumping 
6.8 Regarding paragraphs 6.55 and 6.61, Thailand requests the Pa nel to refer to additional 
arguments and evidence provided by Thailand in para graphs 162 – 176 of its first written submission.  
Thailand submits that the Panel has only referred selectively to its argumentation regarding whether 
the application of the EBR constitutes "specific ac tion" in response to dumping.  In particular, 
Thailand submits that paragraph 6.61 contains no reference to Th ailand's responses to the United 
States' arguments, including those presented in para graphs 19 – 27 of Thailand' s first oral statement, 
and paragraphs 8 – 15 of Thailand' s second oral statement.  The United States considers the Panel to 
have adequately represented Thaila nd's arguments in paragraphs 162 – 176 of the Interim Report, as 
well as Thailand's responses to US arguments, and doesn 't believe further changes are necessary.  In 
the case that the Panel were to refer to argumenta tion offered by Thailand in subsequent submissions, 
the United States requests the Panel to refer to US arguments in response to these additions. 
6.9 In making its findings, the Panel has set out the main arguments of the parties.  The Panel 
does not consider that it is required to provide an exhaustive description of all of the parties' 
arguments, sub-arguments and supporting evidence wh en making its findings, particularly since the 
parties' own summaries of their arguments are annexed to the Report.  Thailand's main  argument 
regarding the specificity of the relevant action is th at the EBR may only be applied to goods subject to 
US anti-dumping orders.  This argument is repe ated on numerous occasions in the extracts identified WT/DS343/R 
Page 14  
 
 by Thailand in its interim comments, and is prope rly reflected in para. 6.55 of the Interim Report 
(7.55 of the Final Report).  
5. Specific action "against" dumping 
6.10 Regarding paragraph 6.59, Thailand requests the Panel to refer to additional arguments and 
evidence provided by Thailand in paragraphs 182 – 190 of its firs t written submission.  Thailand 
submits that the Panel has only referred selectivel y to its argumentation regarding whether the 
application of the EBR constitutes specific action "a gainst dumping".  In particular, Thailand submits 
that paragraphs 6.64, and 6.75 – 6. 77 contain no reference to Thailand's submissions or evidence, such 
as Thailand's argumentation as to why the effects of the collateral requirements and fees charged by sureties are relevant considerations  when determining that the measu re is "against" dumping (as found 
by the Panel in footnote 103 of the Interim Repor t), and argumentation that the EBR does not simply 
facilitate the collection of anti-dumping duties (as f ound by the Panel in paragraph 6.76).  The United 
States considers the Panel to have adequately repr esented Thailand's submissions and evidence in the 
Interim Report, including arguments regarding colla teral and fees in paragr aph 6.75 of the Interim 
Report, and Thailand's argument that the EBR does not solely facilitate the collection of anti-dumping 
duties.  In the case that the Panel were to refer to argumentation offered by Thailand in subsequent 
submissions, the United States requests the Panel to  refer to US arguments in response to these 
additions. 
6.11 The Panel considers that it has appropriately summarized the main arguments of Thailand 
regarding the impact of the application of the EBR.  The Panel does not consider that it is required to 
provide an exhaustive description of all of the parties' arguments, sub-arguments and supporting 
evidence when making its findings, particularly sin ce the parties' own summaries of their arguments 
are annexed to the Report. 
6. Application of the Ad Note 
6.12 Regarding paragraphs 6.81 – 6.87, Thailand s ubmits that the Panel's discussion of Thailand's 
arguments regarding the application of the Ad Note  is incomplete.  In particular, Thailand submits 
that the Panel only discusses arguments regarding the relationship between the Ad Note and the Anti-
Dumping Agreement , but not other arguments related to other issues discussed in Section VI.C.4, such 
as the proper interpretation of the Ad Note (see e.g. Thailand's first oral statement, paras. 9 – 16).   
6.13 Thailand requests the Panel to address the following arguments: (a) Thailand's argument 
regarding the ordinary meaning of the term "sus pected dumping", based on its ordinary meaning and 
the context of the authority to impose anti-dumping du ties in Article VI:2 (see Thailand's responses to 
the Panel's first set of questions, paras. 47 – 49; Thailand's second written submission, paras. 27, 30 – 
31); (b) Thailand's argument that Article VI and the Anti-Dumping Agreement require a simultaneous 
finding of the existence of dumping and injury (see Thailand's first oral statement, paras. 13 – 14, Thailand's second written submission, paras. 26, 31);  (c) Thailand's argument that the term "cash 
deposit" as used in the Anti-Dumping Agreement  refers only to provisional measures (see Thailand's 
second oral statement, paras. 38 – 42); and (d) Tha iland's argument that the purpose of cash deposits 
of estimated anti-dumping duties collected after the imposition of an anti-dumping order is to protect 
domestic industries rather than to secure the paym ent of potential increases in liability (see Thailand's 
second oral statement, para. 54).   
6.14 In addition, Thailand submits that the Pane l has not discussed Thailand's responses to the 
United States' arguments, such as in paragraph 6.87 of  the Interim Report, regarding the United States' 
contention that Thailand's arguments would mean that security pending final assessment of anti-
dumping duties was nowhere permitted by the Anti-Dumping Agreement  or the GATT 1994  (see e.g. 
Thailand's first oral statement, paras. 5 – 7; Thailand's second written submission, paras. 8 – 12;  WT/DS343/R 
 Page 15 
 
 
 Thailand's response to the Panel's second set of qu estions, paras. 23 – 25; Thailand's second oral 
statement, para. 7). 
6.15 The United States considers the Panel to have adequately represented Thailand's arguments 
regarding the ordinary meaning of "suspected dum ping", Article VI, the meaning of "cash deposit" 
and the alleged "purpose" of cash deposits in th e Interim Report.  The United States considers 
unwarranted Thailand's request to respond to argum ents regarding what Thailand claims would not 
prevent the United States from administering its retrospective duty assessment system.  The United 
States, contends that this argument is premised on a claim that "cash deposits" are "duties", which the Panel has discussed and rejected in paragra phs 6.110 – 6.121 of the Interim Report.  
6.16 Thailand's main argument regarding the ordinary  meaning of the term "suspected dumping" is 
that "[t]he ordinary meaning of 'suspected' is 'that one suspects to  exist or to be such' " (footnote 
omitted).  Given that an investigation under Article 5.1 of the Anti-Dumping Agreement  is to 
determine the "existence" of dumping, dumping can no  longer be said to be merely "suspected" once a 
final determination in such an investigation has been made.
49  This argument is premised on the view 
that the existence of dumping is established on ce the anti-dumping order is imposed.  The Panel 
addresses this issue – and therefore the premise of Th ailand's argument - at para. 6.102 of the Interim 
Report.  The Panel addresses this issue further – with specific reference to Thailand's argument 
regarding Article 5.1 of the Anti-Dumping Agreement  – in paras 6.107 – 6.109 of the Interim Report. 
6.17 Thailand's argument that Article VI and the Anti-Dumping Agreement require a simultaneous 
finding of the existence of dumping and injury is  necessarily addressed in our view, expressed at para. 
6.108 of the Interim Report, that the conditio ns for imposing anti-dumping measures (including 
therefore the existence of injury and causation) ar e established in respect of the "current situation" 
prevailing at the time of imposition.  Our point rema ins, though, that a finding of dumping (and injury 
and causation) at the time of imposition does not mean that there will necessarily be dumping in 
respect of future import entries. 
6.18 Thailand's argument that the term "cash deposit", as used in the Anti-Dumping Agreement , 
refers only to provisional measures is necessarily addressed by our consideration of the negotiating 
history of the Ad Note, which makes it clear that th e Ad Note is not limited to provisional measures 
taken prior to the final determination of dumping.  This argument is further addressed by our review 
of the relationship between the Ad Note and the Anti-Dumping Agreement , for it is premised on an 
assumption that the terms of Article 7.2 of the Anti-Dumping Agreement  somehow trump those of the 
Ad Note. 
6.19 We have included footnote 170 at  paragraph 7.122 of our Final Report to address Thailand's 
argument in respect of the purpose of cash deposits collected after the imposition of an anti-dumping 
order. 
6.20 To the extent that Thailand's comment in resp ect of paragraph 6.87 of the Interim Report 
would suggest that the United States is entitled to continue its current practice of collecting cash 
deposits, we note Thailand's argument that "the United States is authorised under Article 9 of the Anti-
dumping Agreement  to maintain its current practice of collecting cash deposits of estimated anti-
dumping duties following the imposition of definitive anti-dumping duties."50  This argument is 
necessarily addressed – and rejected - through our findings on the possible treatment of cash deposits 
as anti-dumping duties.  To the extent that Thailand' s comment refers to its argument that the United 
                                                      
49 See para. 47 of Thailand's Responses to the First Set of Panel Questions. 
50 See Thailand's second written submission, para. 9. WT/DS343/R 
Page 16  
 
 States could collect security under the Basic Bond Requirement,
51 we note that these proceedings 
concern the WTO-consistency of the specific facts surrounding the application of the EBR.  Whether 
or not the United States might legitimately take action under some other provi sion of its domestic law 
does not affect our analysis of the application of the EBR in light of the relevant provisions of the covered agreements, including Article 18.1 of the Anti-Dumping Agreement  and the Ad Note.  While 
we examined other forms of security that might pot entially be applied under the Ad Note, we did so in 
order to shed light on the interpretation of that provision.  Thailand's arguments regarding possible 
security under the Basic Bond Requirement would not serve this function, for Thailand has made it 
clear that the Basic Bond Requirement would not ap ply under the Ad Note, which it considers to be 
superseded by the Anti-Dumping Agreement . 
7. Ordinary meaning of the text of the Ad Note 
6.21 Regarding paragraphs 6.100 – 6.106, Thailand submits that the Panel has not discussed the 
ordinary meaning of the term "suspected dumping" in the Ad Note as interp reted in accordance with 
Article 31 of the Vienna Convention on the Law of Treaties.  Thailand conte nds that the Panel has 
instead interpreted the term "suspected dumping" so lely by reference to the processes of the United 
States' investigating authority.  Thailand therefore re quests the Panel to verify that the interpretation 
of the ordinary meaning of the text of the Ad Note is based on the ordinary meaning of the text, in accordance with Article 31 of the Vienna Convention, and not strictly on US administrative practice.  
Thailand also requests the Panel to provide refere nce to the records in paragraphs 6.101 – 6.102 
regarding discussion of US administrative processes .  The United States disagrees with Thailand's 
request to modify the discussion of "suspected dum ping".  The United States does not consider the 
Panel to suggest that "suspected" dumping should no t be interpreted based on its ordinary meaning, 
nor that the Panel adopted a meaning of "suspected" th at is inconsistent with its ordinary meaning.  
The United States also considers that the Panel's ev aluation of the US duty assessment system in this 
context appears intended not to interpret the term "s uspected", but to assess how that term applies to 
the particular facts of this dispute.  Neverthe less, if the Panel chooses to include reference and 
citations to the record describing duty assessment, the United States suggests the Panel refer to the 
description of the US retrospective duty assessment system set forth in paragraphs 2.7 – 2.10 of the Interim Report.  
6.22 The Panel had not understood there to be any disagreement between the parties regarding the 
ordinary meaning of the term "suspected dumping" .  Rather, the disagreement concerned the question 
of whether or not there could still be "suspect ed dumping" after the imposition of an anti-dumping 
order.  Since in this case the relevant anti-dumping order was imposed by the United States, the Panel 
considered this issue in the context of the US system .  The Panel did not refer to the context of the US 
system to interpret the terms "suspected dumping" per se .  We have included paragraph 7.101 in the 
Final Report to clarify our interpretation of the phrase "suspected dumping". 
6.23 Regarding Thailand's suggestion that we incl ude references for our description of the US 
administrative processes, we note that this descri ption is based on descriptions of the relevant 
processes provided by the parties (both orally and in writing) during the course of these proceedings. 
                                                     
 
51 See, for example, para. 7 of Thailand's oral statem ent at the first substantive meeting.  We understand 
that this argument does not include the US practice of collecting cash deposits, for Thailand's argument pre-
supposes that action under the Basic Bond Requirement will not constitute "specific action against dumping" (see para. 17 of Thailand's comments on the Interim Repo rt), whereas cash deposits are necessarily "specific 
action against dumping".    WT/DS343/R 
 Page 17 
 
 
 8. Administrative reviews and exporter- specific assessment rate assignments 
6.24 Regarding paragraph 6.109 and footnote 136, Th ailand requests the Panel to clarify through 
references to the record the finding that the Un ited States in its administrative reviews initially 
assesses whether the export price for particular e xports was below normal value.  Thailand submits 
that evidence before the Panel, including the prel iminary determination in the first administrative 
review of shrimp from Thailand, indicates that th e United States' actual determination in assessment 
reviews is based on an overall calculation of a si ngle dumping margin for each exporter, based on all 
of the exporters' transactions within the review pe riod (see Exhibits US-5, US-6).  The United States 
considers the discussion of how the United States calc ulates the anti-dumping margin to be accurate in 
its current form.  Regardless, the United States hi ghlights the Panel's finding that the existence of 
dumping is established after imports are made. 
6.25 Thailand also requests the Panel to explain the statement that the calculation of an exporter-
specific assessment rate in an  administrative review is done "for the sake of administrative 
convenience."  Specifically, Thailand requests the Pa nel to explain the meaning of "administrative 
convenience" and how this concept differs from a published determination of a margin of dumping 
within the meaning of the Anti-Dumping Agreement  for each exporter.  The United States does not 
consider it necessary for the Panel to elaborat e on the meaning of the term "administrative 
convenience". 
6.26 The Panel has made a number of changes to f ootnote 155 to its Final Report in order to 
address the concerns raised by Thailand.  
9. Cash deposits 
6.27 Regarding paragraph 6.113, Thailand also request s the Panel to explain the statement that "a 
cash deposit is not cash and is not a payment to yield public revenue at the time it is provided", and in 
what sense cash deposits of estimated duties paid on entry of goods subject to US anti-dumping orders 
are not "cash".  Thailand submits that the parties di d not dispute that cash deposits of estimated duties 
are, in fact, "cash" paid to the general fund of the US treasury at the time of importation.  Thailand 
requests the Panel to clarify its position through reference to US la w and the record and to clarify 
what is the process where a cash deposit "is conve rted from a deposit or security, into a form of 
payment".  The United States disputes Thailand's read ing of the Panel's findi ng, contending the Panel 
to have meant that cash deposits are not liquidate d revenue without the same attributes as cash.  
However, if the Panel were to include citation to th e record on the transformation of cash deposits into 
a form of payment, the United States suggests refe rring to the description of the assessment review 
process in paragraphs 6.110 – 6.121 an d 2.8 – 2.9 of the Interim Report. 
6.28 The Panel has made a number of changes to para graph 6.113 (now 7.114 of its Final Report) 
and inserted footnote 170 in its Final Report order to address the concerns raised by Thailand.  
10. Negotiating history of the Ad Note 
6.29 Regarding paragraph 6.124, Thailand submits that , in its submissions, it referred to the 1959 
Report of the Group of Experts as well as the 1948 Re port of the Working Party that adopted the Ad 
Note, when discussing the negotiating history of the Ad  Note (see Thailand's first oral statement, para. 
15, Thailand's response to the first set of Panel questions, para. 10, and Th ailand's response to the 
second set of Panel questions, para. 42).  Accord ingly, Thailand requests the Panel to revise 
paragraphs 6.124 – 6.125 to reflect both of these references to the negotiating history.  The United 
States does not consider changes to this section necessary because it views the Panel's analysis as 
more than adequate.  The United States also notes th e Panel's statement that it is not referring to the 
negotiating history because it does not consider it dete rminative of the issue before it.  The United WT/DS343/R 
Page 18  
 
 States considers that Thailand's reference to the 1948 Working Party Report does not detract from the 
Panel's conclusions concerning the negotiating history,  but is instead fully consistent with the Panel's 
interpretation, under which dumping is suspected  until anti-dumping duties are finally assessed and 
collected. 
6.30 The Panel has inserted paragraphs  7.127 and 7.128 in its Fina l Report addressing this issue. 
11. Likelihood of increase of dumping margin for future imports as a best proxy 
6.31 Regarding paragraphs 6.137 – 6. 138, Thailand submits that if a Member may also make a 
separate prospective determination of the likely dumping margin for future imports, and if the 
Member properly determines that the rates of dump ing found in the final determination of dumping 
are likely to increase, then the rate of dumping f ound in the final determination is no longer the "best 
and only available proxy for duties that ultimatel y may be assessed".  In light of this, Thailand 
requests the Panel to revise these paragraphs to clarif y that, if a Member determines that the rates of 
dumping provided in the anti-dumping order are likely to decrease , then that determination also 
constitutes "the best estimate of suspected dumpi ng for which security may be required pursuant to 
the Ad Note".  Thailand submits, in this sense, that  a Member could collect security only in this lower 
amount as "reasonable" under the Ad Note. 
6.32 The United States disagrees with Thailand's a ssertions but nonetheless requests the Panel to 
make clarifications to this section.  The United Stat es disagrees with the assertion that a Member must 
also make a separate prospective determination of the likely dumping margin for future imports in 
addition to determining the margin of dumping for the period of investigation.  The United States 
contends that the Panel did not conclude that the only evidence that a Member may offer to support 
the establishment of a "reasonable" security would be through a prospective determination of the 
likely dumping margin.  According to the United Stat es, this conclusion is without basis in the Ad 
Note and would not accord with the Panel's observa tion in paragraph 6.111 that Members are entitled 
to operate retrospective duty assessment systems.  Th e United States contends that, in accord with the 
Panel's conclusion that dumping is suspected un til final assessment under the US retrospective 
assessment system, likelihood needs to be evaluate d based on information available to the customs 
authority at the time the security is imposed, whic h may or may not include the type identified by 
Thailand. 
6.33 The Panel declines Thailand's request, since this  case does not concern a situation in which a 
Member determined that the rates of dumping pr ovided in the anti-dumping order are likely to 
decrease. 
12. The phrase "error or fraud on the part of import specialists" 
6.34 Regarding paragraph 6.141, the Panel refers  to "error or fraud on the part of import 
specialists."  Thailand submits that the term "impor t specialists" is generally used to describe US 
Customs officers responsible for issues relating to  specific products, but that Thailand made no 
allegations of fraud by US Customs officers.  Thus, Thailand requests the Panel remove the phrase 
"on the part of import specialists" to avoid inferen ce of such an allegation.  The United States does not 
object to this change. 
6.35 The Panel has amended its text to address the concern raised by Thailand. 
13. Documentation on likelihood of anti-dumping rate increases 
6.36 
Regarding paragraphs 6.141 et se q., Thailand contends that the Panel is incorrect in asserting 
that the United States did not submit any documenta ry evidence that anti-dumping rates increased 33  WT/DS343/R 
 Page 19 
 
 
 per cent of the time.  Thailand submits that in response to question 24 from the Panel following the 
first substantive meeting with the parties, the Un ited States addressed this via Exhibit US-10 (see US 
response to the second set of Panel questions, para . 38).  According to Thailand, Exhibit US-10 
consists of the following: (i) 1 page that cont ains a chart plotting "Number of Cases" against 
"Percentage Change" with figures ranging from 0% to 2500% (but the X axis does not extend from -
1% to -100%) without: (1) a further definition of th e term "cases", (2) details of the anti-dumping duty 
orders, and period of time covered by these "cases" , (3) details on each individual "case", including 
figures for the extent of increase/decrease in the " case", the order concerned, date of entry and value 
of trade, or, (4) figures for aggregate number of  "cases" where margins increased, decreased or 
remained the same; (ii) 1 page that provides figures for uncollected duties on crawfish  for fiscal year 
2003 with deposit and final rates; (iii) 5 pages of undefined figures 
("FirstOfTotalAmt","ADZCaseNbr","Su m","Rate Increase") that relate only to particular exporters of 
crawfish from China; and (iv) 3 pages that set out the amount of uncollected duties for fiscal year 
2003 on all anti-dumping and countervailing duty orders .  Thailand further notes that the United 
States described Exhibit US-10 as a US Customs analysis  of "historical rate fluctuations in individual 
cases" (see US response to the first set of Panel que stions, para. 26).  Thailand also asserts that the 
United States referred to Exhibit US-10 (at para. 38 of its responses to the Panel's Second Set of 
Questions) in support of its assertion that rates increased approximately 33 per cent of the time.  Therefore, Thailand requests the Panel to revise para graph 6.141 to indicate that the United States 
submitted documentary evidence in support of the assertion that anti-dumping rates increased 33 per 
cent of the time, but such evidence is unclear and unreliable.   
6.37 In Thailand's view, however, the analysis in Exhibit US-10 does not have a precise scope and 
methodology and does not clearly concern 13 anti- dumping cases involving 340 exporters, as claimed 
by the United States in its responses to the second se t of Panel questions, footnote 46.  According to 
Thailand the analysis is also problematic becau se it appears to be limited to a subset of 
agriculture/aquaculture cases, does not contain wei ghting by trade value or volume, and includes 
cases involving new shipper reviews.  Thailand submits  that, given that the cash deposit rate was zero 
in new shipper reviews, all affirmative dumping dete rminations would have been considered as cases 
of "increases" in dumping rates, resulting in an ex aggerated estimate that cannot be extrapolated to 
ordinary assessment reviews or a situation wher e the new shippers bonding privilege has been 
removed.  Accordingly, Thailand requests the Pane l to specifically cite portions of Thailand's 
submissions that set out objections to Exhibit US-10.  In light of these changes, nevertheless, even if 
there were clear and reliable documentary eviden ce to support the United States' analysis, Thailand 
submits that this analysis should not change the Panel's conclusion in para graphs 6.142 – 6.146. 
6.38 Thailand further submits that, in footnote 167 to  paragraph 6.141 of the Interim Report, the 
Panel's statement that the "Unite d States' evidence in respect of rate incr eases extends beyond the 
crawfish case and covers each agriculture/aquacu lture order" is inaccurate as it is unsupported by 
evidence on record.  Thailand notes that the Panel h as based this statement on footnote 45 of the 
United States' responses to the second set of Pane l questions. According to Thailand, however, the 
United States provided no evidence to support the assertion that all agriculture/aquaculture orders are 
covered in its analysis.  Tha iland submits that the United Stat es did not provide a list of the 
agriculture/aquaculture orders exam ined by the CBP in Exhibit US-10.  Moreover, Thailand submits 
that the United States instead provided Exhibit US-1 9 which, according to the United States, updated 
Exhibit US-10.  Thailand asserts, however, that Exhibit US-19 does not cover "each 
agriculture/aquaculture order" as it excludes, at a minimum, 2 anti-dumping orders on pasta and 1 
anti-dumping order on frozen raspberries (see Thailand' s responses to the first set of Panel questions, 
footnote 55).  Moreover, Thailand contends that the United States' assertion that the CBP examined 
13 anti-dumping orders (see United States' responses to the second set of Panel questions, 
footnote 46),  suggests that US Customs' analysis wa s incomplete, as there appear to be more than 13 
anti-dumping orders in effect on agriculture/aqu aculture merchandise (see Thailand's responses to the 
first set of Panel questions, footnote  55 (listing "at least" 22 orders); Exhibit US- 19 (listing 17 orders); WT/DS343/R 
Page 20  
 
 and Exhibit US-21 (listing 21 orders)). Accordingly,  Thailand requests the Panel to also revise this 
statement in footnote 167. 
6.39 The United States notes that it has not cited Exhibit US-10 in support of the argument that 
rates increased 33 per cent of the time.  Accordi ng to the United States, Exhibit US-10 addresses the 
question of the amount  by which rates increase in cases where an  increase occurs, leaving this Exhibit 
irrelevant to the Panel's analysis of the likelihood of a rate increase.  The United States asserts that 
Exhibit US-19 is relevant to the question of th e likelihood of increase.  The United States contends 
that this Exhibit examines each assessment for each agriculture/aqu aculture order and compares it to 
the cash deposit rate at the time to determine the lik elihood that rates would increase (38 per cent, in 
that study).  However, due to the Exhibit's inclusion in footnote 167, the United States considers the 
Panel to have only concluded that the United Stat es did not provide documentary evidence in support 
of its argument that rates increased 33 per cent of th e time, not more generally to arguments regarding 
rate increases. 
6.40 The Panel declines to find that the United St ates submitted Exhibit US-10 in support of its 
argument that rates of dumping had increased in 33 pe r cent of cases.  Regarding Thailand's reference 
to para. 38 of the US Responses to the Panel's Sec ond Set of Questions, we note that the United States 
merely cited Exhibit US-10 in support of its assertio n that "[w]hen rates increased, they increased by, 
on average, 285%".  Since this was not an issue that  we were required to examine, we had no need to 
examine the parties' arguments in respect of the co ntents of Exhibit US-10.  While the United States 
submitted evidence of rate increases in Exhibit US-1 9, the United States made no argument that such 
evidence demonstrated that rates increased in 33 per cent of cases. 
6.41 We have amended footnote 187 of the Final Re port in light of the concerns raised by 
Thailand.  
14. The United States defence under Article XX(d) of the GATT 1994  
6.42 Regarding Section VI.6(b), Thailand submits that, to the extent that the Anti-Dumping 
Agreement  constitutes lex specialis  with respect to the measure at  issue, the panel should only 
consider defences available within the Anti-Dumping Agreement  and not the United States' defence 
under Article XX(d) of the GATT 1994 .  Thailand submits that consideration of the United States' 
Article XX(d) defence is inconsistent w ith the finding that Article 18.1 of the Anti-Dumping 
Agreement , read in conjunction with the Ad Note, aut horises the taking of reasonable security based 
on future increases in dumping margins.  Accord ingly, Thailand requests the Panel to either not 
exercise judicial economy with respect to Thailand's other claims under the GATT 1994  or to also 
exercise judicial economy with respect to the Unite d States' defence under Article XX(d).  Otherwise, 
Thailand requests the Panel to explain why it has c onsidered the United States' Article XX(d) defence 
while exercising judicial economy with respect to Thailand's GATT 1994 claims. 
6.43 The United States considers Thailand's request without basis since, it contends, the Panel 
found that the application of the EBR to subject Th ai shrimp importers breached the Ad Note to 
Article VI of the GATT 1994 .  Because Article XX(d) applied to claims under the GATT 1994  and the 
Ad Note is a provision of the GATT 1994 ¸ the United States considers it appropriate to reach the 
United States' Article XX(d) defence.  Furtherm ore, the United States disagrees with Thailand's 
assertion that the Panel should not consider Artic le XX(d) in view of its findings regarding lex 
specialis .  The United States notes that the Panel found that "Article VI of the GATT 1994  and the Ad 
Note" constitute lex specialis , and not the Anti-Dumping Agreement .     
6.44 The Panel is of the view that a respondent in a WTO dispute may simultaneously respond to 
claims presented by the claimant while also raising an affirmativ e defence under a relevant provision 
in Article XX of the GATT 1994 .  The Panel notes that the text of the chapeau to Article XX of the  WT/DS343/R 
 Page 21 
 
 
 GATT 1994  reads: " ... nothing in this Agreement  shall be construed to prevent the adoption or 
enforcement by any contracting party of measures . .. " (emphasis added).  This text does not on its 
face limit a panel from considering an affirmativ e defence under Article XX where it has found a 
violation under a provision of the GATT , including Article VI and/or the Ad Note.  In this regard, the 
Panel recalls its findings that the application of the EBR constitutes specific action against dumping 
which is not in accordance with the provisions of the GATT 1994 since it is inconsistent with the Ad 
Note.  The Panel also considers it proper to analyse the United States' defence under Article XX 
notwithstanding the finding presented in pa ragraph 6.159 that Article VI of the GATT 1994 and the 
Ad Note to Article VI constitute lex specialis .  In the findings, the Panel re fers to Article VI and its 
Ad Note as lex specialis  with respect to the other more general provisions of the GATT 1994  cited by 
Thailand.  The Panel's findings with respect to the applicability of the principle of lex specialis  do not 
refer to a defence under Article XX(d) in order to jus tify a potential violation of Article VI and its Ad 
Note.  Accordingly, the Panel considers additiona l analysis of the United States' Article XX(d) 
defence unnecessary and rejects Thailand's request fo r review of our findings on this issue.   
15. Factual findings on risk of default 
6.45 Regarding the Panel's analysis of the meaning of "reasonable" in the Ad Note and "necessary" 
under Article XX(d) of the GATT 1994 , Thailand submits that these concepts should involve 
consideration of both the likelihood that anti-dumpi ng duties will increase and the risk of default by 
importers of subject merchandise due to increased duty lia bility.  With respect to its analysis of the Ad 
Note, Thailand notes that the Panel commented that  "there is no additional obligation under the Ad 
Note to assess the risk of default of individual importers", and made no fact ual findings regarding the 
risk of default on increased duty liability.  With r espect to its analysis of Article XX(d), Thailand 
notes that the Panel also did not consider the risk of default.  Thailand re quests the Panel to make 
factual findings on the relevance of the risk of default, and whether the United States properly determined an increased default risk.  The United States does not consider it necessary for the Panel to 
evaluate evidence regarding risk of default.  Ho wever, the United States contends that the Panel 
should clarify its findings by inserting a statement confirming that the Panel is not suggesting that a 
Member is precluded from requiring security as in "other cases of customs administration", such as 
when an importer has a significant risk of default. 
6.46 In view of the analytical appro ach adopted by the Panel in this case, we do not consider that it 
is appropriate for us to address the parties' evidence regarding the risk of default.  In particular, the 
analytical approach of the Panel does not provide any standard against which to assess that evidence. 
B. T
HE UNITED STATES ' COMMENTS ON THE INTERIM REPORT  
1. Typographical errors 
6.47 Regarding paragraph 1.10, the United States requests replacing the phrase "24 and 25 July 
200" with "24 and 25 July 2007".  The Panel has corrected this typographical error. 
6.48 Regarding paragraph 1.11, the United States requests replacing the phrase "9 September 
2007" with "9 October 2007".  The Panel has corrected this typographical error. 
2. Factual aspects to the dispute 
6.49 Regarding paragraph 2.10, the United States re quests replacing the phrase "prior to initiation 
of the anti-dumping or countervailing duty order" with the phrase "prior to initiation of the anti-
dumping or countervailing duty investigation."  The Panel has corrected this error. WT/DS343/R 
Page 22  
 
 6.50 Regarding paragraph 2.13, the United States subm its that US Customs designates importers of 
certain merchandise, not importers, as "covered cases", and thus requests the Panel to modify the text to read: "US Customs implemented the EBR and requ ired select importers of merchandise designated 
as 'covered cases' ...".  The Pane l has corrected this error. 
3. Treatment of amendments as part of the measure at issue 
6.51 Regarding paragraph 6.48, the United States cons trues the Panel's analysis as suggesting that 
the inclusion of certain language in a panel request  concerning amendments to measures, or the need 
to secure a positive resolution to a dispute could be  the basis for treating a measure as part of the 
measure at issue and within the panel's terms of re ference.  The United States requests the Panel to 
remove the third and final sentences from the para graph and base the analysis on the nature of the 
measure in question.  Thailand disagrees with the United States' suggestion to delete the third and 
final sentences of paragraph 6.48.  Thailand not es that the finding by the Appellate Body in Chile 
Price Band System  considered both the extent to whic h the new measure amended the existing 
measure, and the fact that the request for the establishment included language to encompass 
amendments.  Thailand contends it would be misl eading to include the October 2006 Notice within 
the Panel's terms of reference without basing the decision in part on the statement in Thailand's 
request for establishment that the measure at issu e included any amendments.  The Panel has made 
minor modifications to the text in paragraph 6.48 (7 .48 of the Final Report) in order to reflect the 
rationale presented in Chile – Price Band System  that an amendment should not change the essence  of 
the original measure into something different than what was in force before its issuance. 
4. The EBR formula 
6.52 Regarding paragraph 6.72 (7.72 of the Final Re port), the United States requests the Panel to 
replace the phrase "the formula would be invalid" in the final sentence of this paragraph with "the 
formula would not apply" to more accurately charact erise the status of the EBR formula in relation to 
the directive. 
6.53 The Panel has made the change re quested by the United States. 
5. The relationship between Article 9.3.1 of the Anti-Dumping Agreement  and retrospective 
duty assessment  
6.54 Regarding paragraphs 6.108 (7.109 of the Final Report) and 6.111 (7.112 of the Final Report), 
the United States requests the Panel to modify lang uage to more accurately reflect the relationship 
between Article 9.3.1 of the Anti-Dumping Agreement  and retrospective duty assessment.  First, the 
United States suggests that the Panel replace the pa renthetical that the system is "(specifically 
authorised by Article 9.3.1)" with "(which is specifi cally contemplated in Article 9.3.1)".  Second, the 
United states suggests replacing the parenthetical "(wh ich Members are entitled to apply by virtue of 
Article 9.3.1 of the Anti-Dumping Agreement )" with "(which is specifically contemplated by Article 
9.3.1 of the  Anti-Dumping Agreement )". 
6.55 The Panel has made the changes re quested by the United States. 
6.
 Characterisation of the "enhanced" bond requirement 
6.56 Regarding paragraph 6.128 (7.131 of the Final Report), the United States  suggests replacing 
the term "extended" with "enhanced" to descr ibe the bonds required under the Amended CBD.   
6.57 The Panel has made the change proposed by the United States.  WT/DS343/R 
 Page 23 
 
 
 7. The legal standard for determining whether or not the application of the EBR resulted 
in "reasonable" security requirements 
6.58 Regarding paragraphs 6.136 – 6.146, the United States proposes a number of changes to 
language that, in its view, could be construed as in consistent with the Panel's positions elsewhere in 
its Report.  First, the United States proposes a number of changes to prevent the Panel from 
incorrectly paraphrasing the reasonableness standard set forth in the Ad Note.  In general, the United 
States proposes to use the formulation "the likeli hood of rates increasing", as the United States 
considers that the term "likely", or "likely amount " (as used by the Panel in the Interim Report), 
suggests that a Member must demonstrate substantial certainty. 
6.59 Thailand disagrees that the standard applied by  the Panel requires a showing of substantial 
certainty.  Thailand also disagrees with the US pr oposal to use the term "likelihood", for Thailand is 
concerned that reference to "a likelihood" might mean  that so long as one possible outcome is that the 
amount of final liability may increase over the rate of  dumping established in the investigation, there 
would be "a" likelihood that rates may increase. 
6.60 Second, the United States considers that the Pane l's use of the term "likely" in the Interim 
Report’s discussion of increases in margins could be read to contradict its point elsewhere in the 
report that the information on which security requireme nts must be evaluated is that available "at the 
time that the [requirement]" is imposed, and not ex post  rationalization.52  The United States recalls 
the Panel's statement in paragraph 6.102 of its In terim Report that, due to the operation of the U.S. 
retrospective duty assessment system, "there is no cer tainty that imports entering the United States 
following imposition of an anti-dumping order are in fact dumped" and that until assessment "it is not 
possible to state with certainty whether or not those imports are dumped."  Since likelihood would 
need to be evaluated based on information available to the customs authority at the time the security 
requirement is imposed, the United States has s uggested, for example, changing "determine the 
amount" to "estimate the amount" in paragraph 6.138. 
6.61 Thailand submits that the textual changes re quested by the United States would reduce the 
objective standard articulated in  the Interim Report to a questi on of what "roughly approximates" 
potential margins.53  As the Appellate Body has made clear in  the context of sunset reviews, the mere 
fact that a determination requires a prospective anal ysis does not justify a departure from the standard 
of an objective, impartial and reas oned determination of probability.  Thailand asserts that the Panel 
should not make any revisions to the Interim Report that would suggest that "reasonable security" can 
be based on a possibility of rates increasing, rather  than the "best estimate" by an "objective and 
impartial investigating authority" that rates "wer e likely to increase" and a proper determination of 
"the likely amount of such increase." 
6.62 Third, the United States asserts that as in "o rdinary cases of customs administration", there 
may be cases in which an importer has a histor y of defaulting on its obligations such that additional 
security may be the only means available to the Unite d States to ensure that duties are paid, short of 
prohibiting that importer from entering goods entirely.  The United States claims that the Panel failed 
to address US arguments regarding risks of defau lt.  The United States requests that the Panel 
consider clarifying its findings to confirm that it is not finding that a Member is precluded from 
requiring additional security in cases in which principles of ordinary customs administration would so require, such as cases in which importers have a de monstrated history of non-payment of liability 
owed. 
                                                     
 
52 Interim Report, para. 6.144. 
53 US Request for interim Review, para. 13. WT/DS343/R 
Page 24  
 
 6.63 Thailand asserts that none of the parties has argue d that a risk of default constitutes a basis 
separate from the amount of liability on which to determin e the amount of security.  Instead, Thailand 
considers that any security must be capped at the amount of potential liability and then may be 
adjusted below the total potential liability based on the default risk  of the individual importer.  
Thailand also asserts that the United States is not co rrect to state that the Panel does not directly 
address the United States' arguments regarding risk of default.  Thailand asserts that the Panel 
considered whether it was necessary to consider risk of default and concluded that it was not.
54  
Furthermore, Thailand notes that the Panel found th at security measures such as the EBR constitute 
specific action against dumping.  As specific action against dumping, such measures may be imposed 
only in response to situations covered by Article VI and the Anti-Dumping Agreement , i.e., injurious 
dumping.  Thailand asserts that the United Stat es' proposal to impose security requirements above  the 
amount of potential liability for dumping duties, however, would impose additional burdens on 
importers based on their financial wellbeing.  Tha iland asserts that this is not permitted under the Ad 
Note, which permits only action against dumping.  Accordingly, to permit additional security above 
the potential liability for dumping duties, or security so lely on the basis of a risk of default, would 
expand the scope of Article VI of the GATT 1994 and the Anti-Dumping Agreement beyond dumping 
and include within their scope matters such as the financial structure and strength of importers that 
they were not intended to address or regulate.  Thailand submits that any question of additional 
security relating to the risk of default could arise only under provisions of the GATT unrelated to "specific action against dumping." 
55 
6.64 The United States also asks the Panel to refer to estimates of the "amount" of final dumping 
liability rather than estimates of the amount of the final "rate" of dumping.  The United States asserts 
that since security for antidumping duties (whether  cash deposit or bond) is a quantity based on the 
total dumping liability, which depends both on the ad  valorem rate and the customs value of imports 
entered at a given time, using the term "dumping liability" rather than the "rate of dumping" in 
discussing the amount of security that may be required is more appropriate. 
6.65 Thailand asserts that the United States has failed  to clearly articulate any good reason for the 
Panel to make the suggested changes.  Furthermore,  Thailand notes the US argument that liability for 
anti-dumping duties arises on importation following a finding that dumping is occurring and the publication of an anti-dumping order.  Since the Panel finds that the order gives rise to a suspicion of 
dumping, Thailand is concerned that the changes proposed by the United States would imply that liability for anti-dumping duties may be established on th e basis of merely a suspicion of dumping.  
6.66 Regarding para. 6.142 of the Interim Report, the Un ited States asks the Panel to delete certain 
language describing an argument made by the Unite d States early in the proceedings.  Thailand did 
not comment on the change requested by the United States. 
6.67 The Panel has made only a limited number of the changes requested by the United States 
regarding this first issue.  In particular, the Pa nel has declined the US suggestion to replace its own 
language with references to "the likelihood of rates increasing", for the United States has failed to 
properly explain the advantages of its formulation ove r that of the Panel.  Generally, the Panel is 
concerned that the changes proposed  by the United States might weaken  the standard that the Panel 
                                                     
 
54 Interim Report, para. 6.139, footnote 164. 
55 While the Panel failed to address this argument in the Interim Report, Thailand has persistently 
argued in these proceedings that the Ad Note permits only provisional security measures now further regulated 
under Article 7 of the Anti-Dumping Agreement .  The authority for any additional security for duties imposed as 
definitive dumping measures is regulated by the GATT, in cluding Article XX(d) thereof, rather than the Ad 
Note or the Anti-Dumping Agreement .  See Thailand's Request, para. 17 and accompanying citations at note 20; 
Thailand's Second Oral Stat ement, para. 61.  Thailand again requests the Panel to address this argument in its 
final report.  WT/DS343/R 
 Page 25 
 
 
 applied, consistent with the Ad Note, in the present ca se.  In particular, the Panel is not persuaded that 
it is inappropriate to expect an investigating author ity to make determinations of what is likely to 
happen in the future.  The Panel is not persuaded by the US suggestion that the standard articulated in 
the Interim Report would require ex post  rationalization.  The Panel considers that an investigating 
authority is required to comply with the applicable  standard by making a pros pective determination of 
the likelihood of rates of dumping increasing on the b asis of the information available to it at the 
relevant time. 
6.68 The Panel declines to make any changes in respect of the US comments on the need to 
consider the risk of default as in "ordinary cases of customs administration".  The Panel considers that 
it already addressed the principal argument of the United States regarding risk of default in note 164 
of the Interim Report.  The Panel declines to furthe r confirm that it is not finding that a Member is 
precluded from requiring additional security in cases in which principles of ordinary customs administration would so require.  The Panel's finding s are based on its interpretation of the Ad Note.  
The Panel does not have a mandate to consider wh ether or not additional security may be imposed 
under principles of ordinary customs administration.  Although the Ad Note contains the phrase "[a]s 
in many other cases in customs administration", th e Panel considers that such phrase is used for 
introductory purposes only.  If such phrase had been intended to dictate the substantive circumstances 
under which "reasonable security" could be imposed unde r the Ad Note, details of such other cases of 
customs administration would have been spelled out in the Ad Note in detail. 
6.69 The Panel accepts the US request to refer to u se the term "dumping liability" rather than the 
"rate of dumping".  This is because the amount of security is not merely a function of the rate of 
dumping in the anti-dumping order, but also of the cu stoms value of the relevant imports.  The Panel 
is not persuaded by Thailand's concerns regard ing any suggestion that liability for anti-dumping 
duties arises pursuant to imposition of an anti-dum ping order following a de termination of dumping, 
injury and causation.  As noted at paragraph 6.108 of  the Interim Report, this is in fact the basis for 
collecting anti-dumping duties under prospective assessme nt systems.  Regardless of when liability is 
actually deemed to arise, Article 9.3 of the Anti-Dumping Agreement  stipulates that, under both the 
prospective and retrospective ass essment systems, "[t]he amount of the anti-dumping duty shall not 
exceed the margin" of dumping.  The Panel has m odified paragraphs 7.140 and 7.141 of the Final 
Report accordingly.  The Panel has not modified the reference to "the likely amount of such increase" 
in paragraph 7.141 of the Final Re port in order to maintain consis tency with the identical phrase in 
para. 7.140 of the Final Report (in respect of whic h the United States did not ask the Panel to include 
references to duty liability).  
6.70 Regarding paragraph 6.188, the United States re quests the Panel to modify the fourth and 
sixth sentences to incorporate modifications suggested  for paragraphs 6.136 – 6.146.  Specifically, the 
United States requests that the Panel replace the phr ase "that rates of dumping provided for in the 
anti-dumping order were likely to increase" with the phrase "that there was a likelihood that rates of 
dumping provided for in the anti-dumping order woul d increase"; and the phrase "without adequately 
establishing that anti-dumping duties are likely to in crease" with the phrase" without adequately 
establishing that there was a likelihood that an ti-dumping duties would increase".  For the same 
reasons discussed above, Thailand requests the Pane l to reject this change.  Thailand does not 
consider the United States to have explained why this change is appropriate in the context of a review 
of the standard of "necessary" under Article XX(d).  For the reasons set forth above in respect of 
paragraphs 6.136 – 6.146, the Panel declines to ma ke the changes requested by the United States. 
6.71 In the absence of any objection from Thailand,  the Panel sees no reason not to make the 
deletion requested by the United States in respect of paragraph 6.142 of the Interim Report (7.144 of 
the Final Report). WT/DS343/R 
Page 26  
 
 VII. FINDINGS 
A. PRELIMINARY
 ISSUES 
1. Parallel panel proceedings in DS343 and DS345 
7.1 On 21 November 2006, a month after the establishment of the present Panel, the DSB 
established a separate Panel in (DS345) US – Customs Bond Directive the terms of reference of which 
also included the application of the EBR to imports of subject shrimp.  At that meeting of the DSB, 
Thailand stated that it had expected the establis hment of a single Panel for both proceedings in 
accordance with Article 9.1 of the DSU.  In the absence of that single Panel, Thailand indicated that, 
pursuant to Article 9.3 of the DSU , it expected that the same persons would be appointed as panelists 
in the two disputes and that the timetables would be harmonized.  The representative of the United 
States responded that, although the Panel in DS343 ha d already been establishe d, the same persons 
could be appointed to serve as panelists in the two proceedings and the timetables of the separate 
Panels could be harmonized. 
7.2 The meetings to appoint the same members for this Panel and DS345 were held jointly 
between the two separate complainants, Thailand and India, and the common defendant, the United 
States.  Since the Parties were unable to agree on panellists to serve fo r these proceedings, on 19 
January 2007, Thailand and India requested, in separat e letters, that the Director-General determine 
the composition of the Panel pursuant to Article 8.7 of the DSU, and select the same persons to serve 
as panelists for both proceedings, pursuant to Article 9.3 of the DSU .  On 26 January 2007, the 
Director-General composed the two separate Panels consisting of the same members. 
7.3 On 9 February 2007, Thailand and India sent sep arate letters to the Chairman of the two 
Panels requesting enhanced third party rights in each  other's proceedings.  On  15 February 2007, the 
Chairman met with the parties in a joint organi sational meeting to hear comments on the proposed 
Timetable and Panel Working Procedures.  At that meeting, as well as in a letter dated 
16 February 2007, the United States argued that gran ting enhanced third party rights to Thailand and 
India was not necessary in the instant cases.   
7.4 After having heard the parties' views, the Pane l decided not to grant enhanced third party 
rights to India and Thailand but instead, opted for a practical approach aimed at ensuring that the 
parties to both disputes enjoyed adequate opportuni ty to participate in the proceedings where 
appropriate.  Thus, on 23 February 2007, the Panel sent to the parti es a joint Timetable as well as 
separate, albeit similarly worded , Working Procedures.  In this joint communication, the Panel 
informed the parties that it had decided the following: 
"[The Panel] intends to conduct both proceedi ngs so as to ensure that the parties who 
are also third parties in each other's pr oceedings, have adequate opportunity and 
ability to participate to the fullest extent in a manner which is compatible with the 
provisions of the DSU .  To this end, after having hear d the parties' views, the Panel 
intends to take the following steps: 
(i) holding consolidated substan tive meetings with the parties 
(Thailand, India and US); 
(ii) allowing the complainants during the joint meetings to 
comment on each others' argumentation, provided they limit themselves to those claims they have in common;  WT/DS343/R 
 Page 27 
 
 
 (iii) holding separate Third-Party Sessions, starting with DS343 
and asking the Members which are not third-parties to DS345 (i.e., Chile, Mexico, Korea and Viet Nam) to leave the meeting room once the Third-Party Session for DS343 is over.  Note that since Thailand and India are third parties to each other's cases, and parties in their 
own, they would be in the room during the entirety of the joint 
meetings, including third party sessions;  
(iv) not allowing submissions in one case to be deemed to be 
submitted in the other case.  The parties could however attach to their third party submissions, their submissi ons made as parties in the case 
in which they are complaining party;  
(v) issuing separate reports;   (vi) allowing all parties to respond to all questions posed by the 
Panel in writing." 
2. Overview of the Panel's approach to consideration of Thailand's claims 
7.5 Thailand has challenged two measures applied by the United States that affect the import of 
subject shrimp from Thailand.  Thailand has firs t challenged the United States' use of zeroing to 
calculate the margin of dumping for importers of Thai shrimp subject to definitive anti-dumping duties.  Thailand claims that the United States' use of zeroing in this instance is inconsistent with Article 2.4.2 of the Anti-Dumping Agreement .
56 
7.6 Thailand has also challenged the application of  the EBR to subject shrimp from Thailand.  
Specifically, Thailand challenges the consistency of the application of the EBR, which it claims 
imposes an impermissible restriction on imports of subject shrimp from Thailand, with the provisions 
of Article 18.1 of the Anti-Dumping Agreement .  Subsidiarily and alternatively, Thailand claims that 
the EBR is also inconsistent with the provisions of Articles 7.1, 7.2, 7.4 and 7.5 of the Anti-Dumping 
Agreement ; Article VI:2 of the GATT 1994  and the Ad Note, which it claims govern the application of 
provisional anti-dumping measures; and Articles 9.1, 9.2 and 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994 , which it claims govern the imposition and collection of anti-dumping 
duties.   
7.7 In addition, Thailand claims that the E BR is inconsistent with XI:1 of the GATT 1994  by 
imposing an impermissible restric tion on imports of subject shrimp from Thailand; or, alternatively, 
with Article II:1(a) and the first and se cond sentences of Article II:1(b) of the GATT 1994  by 
imposing impermissible duties or charges on imports of subject shrimp from Thailand .  Thailand 
further claims that the United States ac ted inconsistently with X:3(a) of the GATT 1994 by failing to 
administer its customs laws and regulations rela ting to bonds in a uniform, impartial and reasonable 
manner and with Article  I of the GATT 1994 by failing to extend to imports of subject shrimp from 
Thailand advantages that are provided to imports of shrimp from other countries. 
3. Order of analysis 
7.8 The Panel will first address Thailand's claim related to zeroing, and will then proceed to 
address Thailand's claims challenging the application of the EBR. 
                                                      
56 As indicated in footnote 46 above, Thailand informed the Panel that it had abandoned its original 
claims under Articles 2.1, 2.4 and 9.3 of the Anti-Dumping Agreement  in respect to its zeroing claim.  The Panel 
will therefore not address these claims in this Report. WT/DS343/R 
Page 28  
 
 B. T
HAILAND 'S CLAIM AGAINST THE USE OF ZEROING IN THE ORIGINAL INVESTIGATION  
7.9 Thailand submits that the United States used  zeroing when calculating the dumping margins 
for Thai exporters on the basis of weighted aver age-to-weighted average comparisons in the Final 
Determination that served as a basis for the An ti-dumping order on subject shrimp from Thailand.57  
According to Thailand, the "zeroing" in which USDOC  engaged in this inves tigation is the same as 
the "zeroing" in which USDOC engaged in US – Softwood Lumber V  and US – Shrimp (Ecuador) .  
Thailand submits that the use of such zeroing is inconsistent with Article 2.4.2 of the Anti-Dumping 
Agreement . 
7.10 In response to a Question from the Panel, the United States asserted that it "is not contesting 
Thailand's zeroing claim for purposes of this dispute".58 
1. Main arguments of the parties 
7.11 Thailand asserts that WTO panels and the Appellate  Body have repeatedly found that the use 
of zeroing when calculating dumping margins on the b asis of weighted average-to-weighted average 
comparisons is inconsistent with Article 2.4.2 of the Anti-Dumping Agreement .59  Thailand notes in 
this regard that the Appellate Body stated in US – Softwood Lumber V that: 
"Zeroing means, in effect , that at least in the case of some export transactions, the 
export prices are treated as if they were l ess than what they actually are. Zeroing, 
therefore, does not take into account the entirety of the prices of some export 
transactions, namely, the prices of export tr ansactions in those s ub-groups in which 
the weighted average normal value is less than the weighted average export price.  Zeroing thus inflates the margin of dumping for the product as a whole."
60 
7.12 Thailand further notes that the panel in US – Shrimp (Ecuador) recently stated that: 
"There is now a consistent line of Appellate Body Reports, from EC – Bed Linen to 
US – Zeroing (EC) that holds that "zeroing" in the context of the weighted average-
to-weighted average methodology in original investigations (first methodology in the first sentence of Article 2.4.2) is inconsiste nt with Article 2.4.2. We have, as is our 
duty, carefully considered the Appellate Body's reasoning in US – Softwood 
Lumber V and taken into consideration the consis tent line of Appellate Body Reports 
as mentioned in the previous paragraph.  We find the Appellate Body's reasoning 
persuasive and adopt it as our own."
61 
7.13 Thailand asserts that even the USDOC itself h as admitted that it used zeroing in calculating 
the dumping margins of Thai shrimp exporters on the basis of average-to-average comparisons in the 
Final Determination and the Anti-Dumping Measure .  According to Thailand, the USDOC Decision 
Memorandum rejected arguments from the Thai expor ters and the Government of Thailand urging it 
not to use zeroing and explained its use of zeroing in the following terms:   
 "(i) We disagree with the respondents and the Government of Thailand that we should 
discontinue our practice of not offsetting dumped sales with non-dumped sales in the 
                                                      
57 See Exhibit THA-14. 
58 See United States' Responses to First Set of Panel Questions, para. 1. 
59 See e.g. Panel Report, US – Zeroing (Japan) , para. 7.86; Appellate Body Report, US – Softwood 
Lumber V , para. 117; Panel Report, US – Softwood Lumber V , paras. 7.224 and 8.1(a)(i); Panel Report, US – 
Zeroing (EC) , paras. 7.31-32; Appellate Body Report, EC – Bed Linen , paras. 46-66. 
60 Appellate Body Report, US – Softwood Lumber V , para. 101.   
61 Panel Report, US – Shrimp (Ecuador) , paras. 7.40 et seq.   WT/DS343/R 
 Page 29 
 
 
 calculation of the overall weighted-average dumping margin, and thus we have not 
changed our calculation of the weighted -average dumping margins for the final 
determination. Specifically, we made m odel-specific comparisons of weighted-
average export prices with weighted-average normal values of comparable merchandise. See section 773(a) of the Act; see also section 777A(d)(1)(A)(i) of the 
Act. We then combined the dumping margins found based upon these comparisons, 
without permitting non-dumped comparisons  to reduce the dumping margins found 
on distinct models of subject merchandise, in order to calculate the weighted-average 
dumping margin. See section 771(35)(A) and (B) of the Act."
62 
 
7.14 Thailand submits that there can therefore be no dispute that this is exactly the same 
methodology as was found to be incons istent with Article 2.4.2 in US – Softwood Lumber V.   
Thailand also asserts that this is  exactly the same methodology as w as found to be inconsistent with 
Article 2.4.2 by the US – Shrimp (Ecuador) panel. 
7.15 Thailand submits that, for the same reasons as articulated by the Appellate Body in US – 
Softwood Lumber V and the recent panel in US – Shrimp (Ecuador) , the use of this zeroing 
methodology by the USDOC in calculating the du mping margins of Thai shrimp exporters was 
inconsistent with Article 2.4.2 of the Anti-Dumping Agreement .  Accordingly, Thailand requests that 
the Panel find that the United States acted in consistently with Article 2.4.2 of the Anti-Dumping 
Agreement  in determining the dumping margins of the Th ai exporters in the Final Determination and 
the Anti-Dumping Measure. 
7.16 As noted above, the United States is not contesting Thailand's Article 2.4.2 claim.  
Furthermore, the United States acknowledges that the same type of "zeroing" occurred in the 
investigation of shrimp from Thailand as in the relevant investigation US – Shrimp (Ecuador) .  The 
United States further recognizes that a measure usin g a similar calculation was the subject of the US - 
Softwood Lumber V report, and the DSB ruled that the measure  was inconsistent with Article 2.4.2, 
first sentence, because of that calculation.   
2. Evaluation by the Panel 
7.17 As is evident from the arguments of the parties, the issue we are confronted with in respect of 
Thailand's Article 2.4.2 claim is very simila r to the issue addressed by the panel in US – Shrimp 
(Ecuador) .  Since we agree with the approach adopted by  that panel, our findi ngs regarding Thailand's 
claim closely resemble, and refer extensively to, th e findings of that panel.  Given that the United 
States does not contest Thailand's claim, we fi rst consider our role under Article 11 of the DSU , and 
the burden of proof to be discharged by Thailand if it is to succeed in its claim.  We then consider the 
more substantive issues of whether Thailand has es tablished that the USDOC "zeroed" in the measure 
at issue, and whether Thailand has established that  the methodology used by USDOC is the same in 
all legally relevant respects as the methodol ogy reviewed by the Appellate Body in US – Softwood 
Lumber V .  Thereafter, we consider whether Thailand has established that the methodology applied by 
USDOC is inconsistent with Article 2.4.2 of the Anti-Dumping Agreement . 
(a) The role of the Panel under Article 11 of the DSU  
7.18 Article 11 of the DSU  provides: 
"The function of panels is to assist th e DSB in discharging its responsibilities under 
this Understanding and the cove red agreements. Accordingly, a panel should make an 
objective assessment of the matter before it, including an objective assessment of the 
                                                      
62 Decision Memorandum, Exhibit THA-16, p. 8. WT/DS343/R 
Page 30  
 
 facts of the case and the applicability of and conformity with the relevant covered 
agreements , and make such other findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered agreements. 
Panels should consult regularly with the par ties to the dispute and give them adequate 
opportunity to develop a mutually satisfactory solution."
63 (emphasis added) 
7.19 Notwithstanding the US decision not to cont est Thailand's claim, we are still bound by 
Article 11 of the DSU  to make an "objective assessment of the facts of the case and the applicability 
of and conformity with the rele vant covered agreements, and make such other findings as will assist 
the DSB in making the recommendations or in gi ving the rulings provided for in the covered 
agreements". 
(b) Burden of proof 
7.20 The panel in US – Shrimp (Ecuador)  made the following findings in respect of burden of 
proof: 
"Because of its singularity, this dispute raises in a particularly acute fashion the issue 
of the burden of proof. 
The burden of proof lies, in WTO dispute se ttlement proceedings, with the party that 
asserts the affirmative of a particular claim or defence. Ecuador, as the complaining party, must therefore make a prima facie cas e of violation of the relevant provisions 
of the relevant WTO agreements.  The bur den would then shift to the responding 
party (here the United States), to adduce evidence to rebut the presumption that 
Ecuador's assertions are true.  In this context, we recall that 'a prima facie case is one 
which, in the absence of effective refutati on by the defending party, requires a panel, 
as a matter of law, to rule in favour of the complaining party presenting the prima facie case.' 
In our view, the issue of the burden of proof is of particular importance in this case.  
This is because Ecuador has made factual a nd legal claims before the Panel which the 
United States does not contest. Yet, the fact that the United States does not contest 
Ecuador's claims is not a sufficient basis fo r us to summarily conclude that Ecuador's 
                                                     
 
63 Article 11 of the DSU . We note that Article 17.6 of the Anti-Dumping Agreement  – setting forth the 
special standard of review app licable to disputes under the Anti-Dumping Agreement  – also applies to this 
dispute. Article 17.6  provides that: 
 "17.6 In examining the matter referred to in paragraph 5: 
(i) in its assessment of the facts of the matter, the panel shall determine whether the 
authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective.  If the establishment of the facts was proper and the evaluation 
was unbiased and objective, even though the pa nel might have reached a different conclusion, 
the evaluation shall not be overturned;  (ii) the panel shall interpret the relevant provisions of the Agr eement 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' measure to be in conformity with the Agreement if it rests 
upon one of those permissible interpretations." 
 Given that the United States does not contest Thailand's claims, it is not necessary for us to consider in 
detail the implications of the standard of review in this dispute.  WT/DS343/R 
 Page 31 
 
 
 claims are well-founded.  Rather, we can onl y rule in favour of Ecuador if we are 
satisfied that Ecuador has made a prima facie case. 
(...) Thus, notwithstanding the fact that the United States is not seeking to refute 
Ecuador's claims, we must satisfy ourselves that Ecuador has established a prima 
facie case of violation, and notably that it has presented 'evidence and argument... 
sufficient to identify the challenged measure and its basic import, identify the relevant WTO provision and obligation contained th erein, and explain the basis for the 
claimed inconsistency of the measure with that provision.' "
64 (footnotes omitted) 
7.21 In support, the panel relied on Appellate Body rulings in EC – Hormones  and US – Gambling  
stressing the importance of the obligation on compla ining parties to establish a prima facie case.  We 
agree with this reasoning of the panel in US – Shrimp (Ecuador) , and adopt it as our own.  
Accordingly, notwithstanding the fact that the United States is not seeking to refute Thailand's claims, 
we must satisfy ourselves that Thailand has established a prima facie case of violation of Article 2.4.2 of the Anti-Dumping Agreement . 
(c) Has Thailand established that the USDOC "zeroed" in the measure at issue? 
7.22 We now consider whether Thailand has establishe d that USDOC "zeroed" in the measure at 
issue. 
7.23 Thailand has referred to USDOC's Decision Me morandum in support of its factual assertion 
that USDOC "zeroed" in the measu re at issue.  Furthermore, th e United States acknowledges that 
USDOC did zero as alleged by Thailand.  In these ci rcumstances, we are satisfied that Thailand has 
provided sufficient evidence that USDO C zeroed in the measure at issue. 
(d) Has Thailand established that the methodology used by USDOC is the same in all legally 
relevant respects as the methodology reviewed by the Appellate Body in US – Softwood 
Lumber V ? 
7.24 We now determine whether the "zeroing" methodology used by the USDOC to calculate the 
dumping margins at issue here was, as alleged by Th ailand, the same in all legally relevant respects as 
the one the Appellate Body, in US – Softwood Lumber V
 , found to be inconsiste nt with Article 2.4.2 
of the Anti-Dumping Agreement . 
7.25 The Appellate Body in US – Softwood Lumber V , described "zeroing" as applied by the 
USDOC in that investigation as follows: 
"First, USDOC divided the product under i nvestigation (that is, softwood lumber 
from Canada) into sub-groups of identical, or  broadly similar, product types.  Within 
each sub-group, USDOC made certain adjust ments to ensure price comparability of 
the transactions and, thereafter, calculate d a weighted average normal value and a 
weighted average export price per unit of the product type.  When the weighted average normal value per unit exceeded the we ighted average export price per unit for 
a sub-group, the difference was regarded as th e 'dumping margin' for that comparison.  
When the weighted average normal value per unit was equal to or less than the 
weighted average export price per unit for a sub-group, USDOC took the view that there was no "dumping margin" for that comp arison.  USDOC aggregated the results 
                                                     
 
64 Panel Report, US – Shrimp (Ecuador) , paras. 7.7 – 7.11. WT/DS343/R 
Page 32  
 
 of those sub-group comparisons in which the weighted average normal value 
exceeded the weighted average export pr ice—those where the USDOC considered 
there was a "dumping margin"—after multiplying the difference per unit by the volume of export transactions in that sub-group.  The results for the sub-groups in which the weighted average normal value w as equal to or less than the weighted 
average export price were treated as zero for purposes of this aggregation, because 
there was, according to USDOC, no "dumping ma rgin" for those sub-groups.  Finally, 
USDOC divided the result of this aggregati on by the value of all export transactions 
of the product under investigation ( including the value of export transactions in the 
sub-groups that were not in cluded in the aggregation ).  In this way, USDOC obtained 
an "overall margin of dumping", for each exporter or producer, for the product under 
investigation (that is, softwood lumber  from Canada)."(emphasis original)
65 
7.26 The Appellate Body also added that: 
"Thus, as we understand it, by zeroing, the investigating authority treats as zero the 
difference between the weighted average normal value and the weighted average 
export price in the case of those sub-groups  where the weighted average normal value 
is less than the weighted average export pr ice.  Zeroing occurs only at the stage of 
aggregation of the results of the sub-groups  in order to establish an overall margin of 
dumping for the product under investigation as a whole."66 
7.27 In order to demonstrate that USDOC engaged in similar weighted average-to-weighted 
average zeroing in the investiga tion at issue, Thailand relies on the abovementioned USDOC Decision 
Memorandum.  That document establishes that USDOC "made model-specific comparisons of 
weighted-average export prices with weighted-avera ge normal values of comparable merchandise (...) 
[and] then combined the dumping margins found based upon these comparisons, without permitting non-dumped comparisons to reduce the dumping margins found on distinct models of subject merchandise, in order to calculate the weighted-average dumping margin."
67 
7.28 Furthermore, we note that the United States ac knowledges that the same type of "zeroing" 
occurred in the investigation of shrimp fro m Thailand as in the relevant investigation US – Shrimp 
(Ecuador) , and that that panel found that the zeroing methodology at issue in US – Shrimp (Ecuador)  
was the same methodology as at issue in US – Softwood Lumber V .68 
7.29 Having examined the description of the me thodology employed by the USDOC in its 
Decision Memorandum, we are satisfied that Thailand  has demonstrated that the methodology applied 
by the USDOC in calculating the margins of dum ping for subject merchandise from Thailand was the 
same in all legally relevant respects as the met hodology which was found by the Appellate Body in 
US – Softwood Lumber V  to be inconsistent with Article 2.4.2 of the Anti-Dumping Agreement .  In 
our view, the abovementioned acknow ledgement by the United States lends support to our conclusion 
that Thailand has met its burden to make a  prima facie case. 
(e) Has Thailand established that the methodology applied by USDOC is inconsistent with 
Article 2.4.2 of the Anti-Dumping Agreement ? 
7.30 We now turn to the legal analysis of Thailand's claim, i.e. whether the measure it challenges is 
inconsistent with Article 2.4.2 of the Anti-Dumping Agreement .  Article 2.4.2 provides as follows: 
                                                      
65 Appellate Body Report, US – Softwood Lumber V , para. 64 (footnote omitted). 
66 Appellate Body Report, US – Softwood Lumber V , para. 65. 
67 Decision Memorandum, Exhibit THA-16, p. 8. 
68 See US – Shrimp (Ecuador) , para. 7.34.  WT/DS343/R 
 Page 33 
 
 
 "Article 2 
Determination of Dumping 
... 
2.4.2 Subject to the provisions governing fair comparison in paragraph 4, the 
existence of margins of dumping during the investigation phase shall normally be 
established on the basis of a comparison of  a weighted average normal value with a 
weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to-transaction basis.  A normal value established on a weighted average basis may be compared to prices of 
individual export transactions if the author ities find a pattern of export prices which 
differ significantly among different purchasers, regions or time periods, and if an 
explanation is provided as to why such  differences cannot be taken into account 
appropriately by the use of a weight ed average-to-weighted average or 
transaction-to-transaction comparison." 
7.31 Thailand has relied on the Appellate Body Report in US – Softwood Lumber V
  and the panel 
report in US – Shrimp (Ecuador)  in support of its claim of inconsistency with Article 2.4.2 and, in 
particular, on the Appellate Body's finding that margins of dumping may only be calculated for a 
product as a whole under the weighted average-to-wei ghted average methodology provided for in the 
first sentence of Article 2.4.2. 
7.32 While we are not bound by the reasoning in pr ior Appellate Body and/or panel reports, 
adopted Reports create legitimat e expectations among WTO Members,69  and "following the 
Appellate Body's conclusions in earlier disputes is not only appropriate, but is what would be 
expected from panels, especially where the issues are the same".70 
7.33 The panel in US – Shrimp (Ecuador) explained its understanding of the Appellate Body's 
reasoning in US – Softwood Lumber V  as follows: 
"The Appellate Body began its analysis with  the text of Article 2.4.2 and noted that 
the question before it was the proper interpre tation of the terms 'all comparable export 
transactions' and 'margins of dumping' in Ar ticle 2.4.2.  In examining the arguments 
of the parties with respect to these phrases, the Appellate Body concluded that the parties' disagreement centered on whether a Member could take into account 'all' 
comparable export transactions only at the sub-group level, or whether such transactions also had to be taken into account when the results of the sub-group 
comparisons are aggregated.  To examine that issue, the Appellate Body noted the 
definition of dumping in Article 2.1 of the Anti-Dumping Agreement .  The Appellate 
Body found that 'it [was] clear from the texts of [Article VI:1 of the GATT 1994  and 
Article 2.1 of the Anti-Dumping Agreement ] that dumping is defined in relation to a 
product as a whole as defined by the investig ating authority'.  The Appellate Body 
further considered that the definition of 'd umping' contained in Article 2.1 applies to 
the entire Agreement , including Article 2.4.2, and that "'[d]umping', within the 
meaning of the Anti-Dumping Agreement , can therefore be found to exist only for the 
product under investigation as a whole, and cannot be found to exist only for a type, 
                                                     
 
69 See Appellate Body Report , Japan Alcoholic Beverages II , p. 14; Appellate Body Report, US – 
Shrimp (Article 21.5 – Malaysia) , paras. 108-109; Appellate Body Report, US – Softwood Lumber V , paras. 109-
112. 
70 Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews , para. 188. WT/DS343/R 
Page 34  
 
 model, or category of that product."
71 Next, the Appellate Body relied on its Report in 
EC – Bed Linen , in which it stated that '[w]hatever the method used to calculate the 
margins of dumping ... these margins must be, and can only be, established for the  product   under investigation as a whole.'  Thus, the Appellate Body noted that "[a]s 
with dumping, 'margins of dumping' can be found only for the product under 
investigation as a whole, and cannot be found to exist for a product type, model, or 
category of that product."  The Appellate Body therefore rejected the United States' arguments in that case that Article 2.4.2 does not apply to the aggregation of the results of multiple comparisons at the sub- group level; for the Appellate Body, while 
an investigating authority may undertake mu ltiple averaging to establish margins of 
dumping for a product under investigation, the results of the multiple comparisons at 
the sub-group levels are not margins of dum ping within the meaning of Article 2.4.2; 
they merely reflect intermediate calculations made by an investigating authority in the 
context of establishing margins of dumping fo r the product under investigation. It is 
only on the basis of aggregating all
 such intermediate values that an investigating 
authority can establish margins of dumping for the product under investigation as a 
whole.  On this basis, the Appellate Body held that zeroing, as applied by the 
USDOC in US – Softwood Lumber V : 
mean[t], in effect , that at least in the case of  some  export 
transactions, the export prices are treated as if they were less than what they actually are.  Zeroing, therefore, does not take into account 
the  entirety  of the  prices  of  some  export transactions, namely, the 
prices of export transactions in those sub-groups in which the weighted average normal value is less than the weighted average 
export price.  Zeroing thus inflates the margin of dumping for the product as a whole. 
The Appellate Body on this basis conclude d that the treatment of comparisons for 
which the weighted average normal value is  less than the weighted average export 
price as "non-dumped" comparisons was not in accordance with the requirements of Article 2.4.2 of the Anti-Dumping Agreement .  As a result, the Appellate Body upheld 
the Panel's finding that the United States had acted inconsistently with Article 2.4.2 of 
the Anti-Dumping Agreement  in determining the existence of margins of dumping on 
the basis of a methodology incorporating the practice of zeroing."
72  
7.34 The panel in US – Shrimp (Ecuador) further found that "there is  now a consistent line of 
Appellate Body Reports, from EC – Bed Linen  to US – Zeroing (EC)  that holds that 'zeroing' in the 
context of the weighted average-to-weighted aver age methodology in original investigations (first 
methodology in the first sentence of Article 2. 4.2) is inconsistent with Article 2.4.2."73   
7.35 We have carefully considered th e Appellate Body's reasoning in US – Softwood Lumber V  
and taken into consideration the finding of the panel in US – Shrimp (Ecuador)  that there is a 
consistent line of Appellate Body Reports condemn ing "zeroing" in the context of the weighted 
average-to-weighted average methodology in original investigations.  Given that the issues raised by 
Thailand's claim are identical in all material resp ects to those addressed by the Appellate Body in 
Softwood Lumber V , we are satisfied that Thailand has established a prima facie case that the use of 
zeroing by the USDOC in the calculation of the margin s of dumping in respect of the measure at issue 
is inconsistent with the United States' obligations under Article 2.4.2 of the Anti-Dumping Agreement 
                                                      
71 Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews , para. 188. 
72 Panel Report, US – Shrimp (Ecuador) , paras. 7.38 and 7.39 (footnotes omitted). 
73 Panel Report, US – Shrimp (Ecuador) , para. 7.40.  WT/DS343/R 
 Page 35 
 
 
 because the USDOC did not calculate these dumping ma rgins on the basis of the "product as a whole" 
in that it failed to take into account all compar able export transactions in calculating the margins of 
dumping. 
7.36 In light of our finding that Thailand has made a prima facie case of violation in respect of the 
measure at issue, and in the absence of arguments from the United States to the contrary, we rule in 
favour of Thailand. We therefore conclude that  the USDOC, by using "zeroing" in the manner 
described above, has acted inconsistently with the Un ited States' obligations under Article 2.4.2 of the 
Anti-Dumping Agreement . 
C. THAILAND 'S CLAIM AGAINST THE APPLICATION OF THE EBR  TO SUBJECT SHRIMP FROM 
THAILAND  
1. Scope of the measure concerned 
7.37 Thailand's claims concern the application of th e Amended CBD, i.e. the EBR, to imports of 
subject shrimp from Thailand.  Therefore, before entering into an analysis of each of Thailand's 
claims, the Panel first must identify which are the le gal instruments that comprise the Amended CBD.   
7.38 We recall that our terms of reference that govern the present dispute are the following: 
"To examine, in the light of the relevant provisions of the covered agreements cited 
by Thailand in document WT/DS343/7, the ma tter referred to the DSB by Thailand in 
that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements." 
74 
7.39 In its Request for Establishment, Thailand specifi ed that the measure at issue consists of the 
following legislative/legal instruments:  
(a) the July 2004 Amendment;75 
(b) the August 2005 Clarification;76 
(c) the document Current Bond Formulas;77 and 
(d) "any amendments or extensions to the [EBR], and any related or implementing 
measures."78   
7.40 In its first written submission, Thailand additionally identified the October 2006 Notice79, 
which was published on 24 October 2006 following the submission of Thailand's Request for 
Establishment, as one of the four instruments th at amends and clarifies the United States' policy 
related to continuous customs bonds and the operation and application of the EBR.80  The United 
States has not contested the inclusion of the Oc tober 2006 Notice within this Panel's terms of 
reference. 
                                                      
74 WT/DS343/8. 
75 Exhibit THA-2. 
76 Exhibit THA-4. 
77 Exhibit THA-3. 
78 WT/DS343/7, p. 3. 
79 Exhibit THA-5. 
80 Thailand's first written submission, para. 51. WT/DS343/R 
Page 36  
 
 7.41 We recall that the Appellate Body has ruled that  panels have a duty to examine issues of a 
"fundamental nature", issues that go to the root of their jurisdiction, on their own motion if the parties to the dispute remain silent on those issues.
81  Whether a measure falls within our terms of reference is 
clearly an issue that goes to the root of our jurisdiction.  Theref ore, even though the United States 
does not contest the inclusion of the October 2006 No tice, we must determine whether this Notice is 
within our terms of reference.   
7.42 Article 7 of the DSU , governing the Panel's terms of reference, Article 4 of the DSU , 
governing a complainant's request for consultations, and Article 6 of the DSU , governing a 
complainant's request for establishment of a panel ar e relevant to this issue.  Article 7.1 of the DSU  
provides: 
"Panels shall have the following terms of reference unless the parties to the dispute 
agree otherwise within 20 days from the establishment of the panel: 
To examine, in the light of the relevant provisions in (name of the 
covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make 
such findings as will assist the DSB in making the recommendations 
or in giving the rulings provided  for in that/those agreement(s)." 
7.43 Article 4.4 of the DSU  provides: 
"All such requests for consultations shall be notified to the DSB and the relevant 
Councils and Committees by the Member wh ich requests consultations. Any request 
for consultations shall be submitted in writing and shall  give the reasons for the 
request,  including identification of the measures at issue and an indication of the 
legal basis for the complaint." (emphasis added) 
7.44 Article 6.2 of the DSU  provides: 
"The request for the establishment of a pa nel shall be made in writing. It shall 
indicate whether consultations were held, identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly. In case the applicant request s the establishment of a panel with other 
than standard terms of reference, the writte n request shall include the proposed text of 
special terms of reference." (emphasis added) 
7.45 The Appellate Body affirmed in US – Upland Cotton  that, "pursuant to Article 7 of the DSU , 
a panel's terms of reference are governed by  the request for establishment of a panel".
82  As evident 
from the text of Articles 4 and 6 of the DSU , the complainant must identif y the measure at issue in 
both the request for consultations and request for panel establishment.   
7.46 The Appellate Body previously considered in Chile – Price Band System  whether an 
amendment to a measure that was enacted after  the Panel had been established should nevertheless be 
considered as within the Panel's terms of reference.83  In that case, the Appellate Body determined that 
the amendment at issue should be considered as pa rt of the measure at issue since the amendment 
                                                      
81 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 36; see also  Appellate Body 
Report, US – Carbon Steel , para. 123. 
82 See e.g. Appellate Body Report, US – Upland Cotton , para. 284, citing to Appellate Body Report, 
US – Carbon Steel , para. 124. 
83 Appellate Body Report, Chile – Price Band System, para. 137.  WT/DS343/R 
 Page 37 
 
 
 served the purpose of clarifying the legislation th at established the measure at issue and did not 
change the original measure into something differe nt than what was in fo rce before the amendment.84  
This determination was considered c onsistent with earlier jurisprudence85 and was also found to be 
consistent with the object and purpose of the WTO dispute settlement system, as set forth in 
Article 3.7 of the DSU , to "secure a positive solution to a dis pute".  The Appellate Body explained: 
"If the terms of reference in a dispute ar e broad enough to include amendments to a 
measure—as they are in this case—and if it is necessary to consider an amendment in 
order to secure a positive solution to the di spute—as it is here—then it is appropriate 
to consider the measure  as amended  in coming to a decision in a dispute."86 
7.47 In the case before us, we note that the Oct ober 2006 Notice further describes the process to 
determine enhanced continuous bond amounts for importations involving what the United States 
describes as elevated collection risks, and seeks pub lic comment concerning that process.  We also 
note that the United States describes the 2006 Noti ce as the "comprehensive and exclusive statement 
of the policy and processes expressed in the July 2004 Amendment to the Bo nd Guidelines, the Bond 
Formulas posted on CBP's Web site, and the August 2005 Clarification".87 
7.48 We agree with and adopt as our own the A ppellate Body's rationale as provided in Chile – 
Price Band System .  In the dispute before us, the Unite d States published the October 2006 Notice 
after this Panel had been established.  Moreover, in our view, Thailand's inclusion of the language 
"any amendments or extensions to the [EBR], and any related or implem enting measures" in its 
Request for Establishment of a Panel88 is broad enough to allow for the inclusion of the 2006 Notice.  
The October 2006 Notice seeks to clarify the legislat ion that established the measure at issue and does 
not change the essence of the original measure into something different than what was in force before 
its issuance (in this regard, we recall that the Oc tober 2006 Notice includes in its text the statement 
that it is the "comprehensive and exclusive statem ent of the policy and processes expressed in the July 
2004 Amendment to the Bond Guidelines, the Bond Fo rmulas posted on [US Cu stoms'] Web site, and 
the August 2005 Clarification").  In our view, the inclusion of October 2006 Notice allows the Panel 
to achieve a positive resolution to the dispute, a nd additionally, accords with the interests of both 
parties.   
7.49 The Panel therefore finds that the October 2006 No tice is properly part of the measure at issue 
and within the Panel's terms of reference. 
2. Article 18.1 of the Anti-Dumping Agreement  and the Ad Note 
7.50 Thailand submits that the application of th e EBR to subject shrimp from Thailand is 
inconsistent with Article 18.1 of the Anti-Dumping Agreement .  Article 18.1 provides that: 
                                                      
84 Appellate Body Report, Chile – Price Band System, para. 137. 
85 The Appellate Body in Chile – Price Band System  cited to a passage from the Panel's finding in 
Argentina – Footwear (EC)  which concluded that modifications made to the measure at issue during the panel 
proceedings did:  
"… not constitute entirely new safeguard measures in  the sense that they were based on a different 
safeguard investigation, but are instead modifications of the legal form of the original definitive measure, which 
remains in force in substance and which is the subj ect of the complaint."  (See Appellate Body Report, Chile – 
Price Band System , para. 138.) 
86 Appellate Body Report, Chile – Price Band System, para. 144. 
87 See Exhibit THA-5, p. 62277. 
88 WT/DS343/7, p. 3. WT/DS343/R 
Page 38  
 
 "No specific action against dumping of expor ts from another Member can be taken 
except in accordance with the provisions of GATT 1994 , as interpreted by this 
Agreement." 
7.51 Thailand submits that the application of the EBR to subject shrimp from Thailand constitutes 
specific action against dumping in a form other than a permitted response to dumping under the 
provisions of GATT 1994  as interpreted by the Anti-Dumping Agreement .  The United States rejects 
Thailand's claim. 
7.52 We begin our evaluation of Thailand's claim by considering whether or not the application of 
the EBR constitutes "specific action against dumping".  Thereafter, we turn to the issue of whether or 
not the EBR is applied "in accordance with the provisions of the GATT 1994 , as interpreted by" the 
Anti-Dumping Agreement . 
3. Does the application of the EBR constitu te "specific action against dumping"? 
(a) Main arguments of Thailand 
7.53 Thailand asserts that the application of the E BR constitutes "specific action against dumping" 
because it is (i) "specific action" in response to  dumping that (ii) also acts "against" dumping. 
(i) "Specific action" in response to dumping 
7.54 Thailand notes that in US – Offset Act (Byrd Amendment) , the Appellate Body  stated that:  
"[A] measure that may be taken only when  the constituent elements of dumping … 
are present, is a 'specific action' in response to dumping within the meaning of Article 18.1 of the Anti-Dumping Agreement … [i]n other words, the measure must 
be inextricably linked to, or have a str ong correlation with, the constituent elements 
of dumping …"
89   
7.55 According to Thailand, the key consideration fo r the Appellate Body was the "strength of the 
link between the measure and the elements of dump ing" and the "degree of correlation between the 
scope of application of the measure a nd the constituent elements of dumping".90  For this reason, the 
Appellate Body stated that the test "is met not only when the constituent elements of dumping are 
'explicitly built into' the action at issue, but also where … they are implicit in the express conditions 
for taking such action".91  Thailand submits that the constituent elements of dumping are implicit in 
the express conditions for the application of the EBR since it may be applied only  to goods subject to 
a US anti-dumping duty order. 
(ii) Specific action "against" dumping 
7.56 According to Thailand, the Appellate Body in US – Offset Act (Byrd Amendment) interpreted 
the term "against" in Article 18.1 of the Anti-Dumping Agreement  as relating to "an idea of 
opposition, hostility or adverse effect".92  Thailand asserts that the Appellate Body held that for a 
measure to be "against" dumping: 
"[I]t is necessary to assess whether the design and structure of a measure is such that 
the measure is "opposed to", has an adver se bearing on, or, more specifically, has the 
                                                      
89 US – Offset Act (Byrd Amendment) , para. 239. 
90 US – Offset Act (Byrd Amendment) , para. 244. 
91 US – Offset Act (Byrd Amendment) , citing with approval Thailand's Appellee Submission, para. 14. 
92 US – Offset Act (Byrd Amendment) , para. 250.  WT/DS343/R 
 Page 39 
 
 
 effect of dissuading the practice of dumpi ng or the practice of subsidization, or 
creates an incentive to te rminate such practices."93 
7.57 Thailand further asserts that the Appellate Body  clarified that action "against" dumping does 
not require direct contact between the measure a nd the dumped product or entities responsible for the 
product.  The Appellate Body stated that: 
"[T]here is no requirement that the measure must come into direct contact with the 
imported product, or entities connected to, or  responsible for, the imported good such 
as the importer, exporter, or foreign producer."94 
7.58 Thailand argues that the Appellate Body and pa nel agreed that "the test should focus on 
dumping … as practices ".95 
7.59 Thailand submits that the application of the EBR to subject shrimp from Thailand has an 
adverse bearing on, and the effect of dissuading,  the practice of dumping.  Furthermore, the EBR 
comes into direct contact with the imported produc t and entities connected to its import such as the 
importer, exporter or foreign producer.  First, Thailand asserts that the application of the EBR 
dissuades the practice of dumping by dissuading imports into the United States of subject shrimp.  
Second, Thailand asserts that the EBR has an adve rse bearing on both the practice of dumping and the 
entities responsible for the dumped goods as it results  in enhanced bonds significantly greater than 
those required of other goods solely because t hose goods are subject to anti-dumping measures.  
Thailand asserts that the adverse bearing of the E BR is compounded by the demands of sureties for 
100 per cent collateral to secure the enhanced bonds.96  According to Thailand, the adverse bearing of 
the EBR is further compounded by the "stacking" of bonds, and accompanying collateral, year after 
year.97  Thailand argues that the adverse effects of the EBR include the tying up of assets and cash 
that forces companies to forego business opportunities,  and the fees charged by surety companies.   
(b) Main arguments of the United States 
7.60 The United States denies that the application of the EBR is either "specific action" in response 
to dumping, or specific action "against" dumping. 
(i) "Specific action" in response to dumping 
7.61 Regarding Thailand's argument th at the EBR is specific to dumping because it may be and has 
been applied only to importers of goods subject to a US anti-dumping order98 and the formula it 
contains uses the anti-dumping rate as one variable  in determining the amount of additional security 
that may be prescribed,99 the United States asserts that these feat ures merely reflect the fact that the 
directive is, like various measures refe rred to by the Appellate Body in US – Offset Act (Byrd 
Amendment) , "related to" dumping or subsidies insofa r as the unsecured liability it is designed to 
secure is anti-dumping and countervailing duty liability.100  The United States asserts that, according 
                                                      
93 US – Offset Act (Byrd Amendment) , para. 254. 
94 US – Offset Act (Byrd Amendment) , para. 253. 
95 US – Offset Act (Byrd Amendment) , para. 253. 
96 See paragraph 2.18 above discussing collateral requirements to secure enhanced bonds. 
97 See paragraph 2.18 above discussing collateral requirements to secure enhanced bonds. 
98 Thailand's first written submission, paras. 162-4 and 169. 
99 Thailand's first written submission, paras. 165-67. 
100 With regard to the decision of the USCIT that Thailand cites in support of its position that the 
directive as applied to importers of shrimp from Tha iland is "specific" to dumping (Thailand's first written 
submission, para. 167), the United States notes that the litigation relates to certain claims under US law (rather 
than the WTO Agreement s) and is ongoing.  Moreover, the October 2006 Notice was issued just prior to the WT/DS343/R 
Page 40  
 
 to the Appellate Body, "an action that is not 'spe cific' within the meaning of Article 18.1 of the Anti-
Dumping Agreement  and of Article 32.1 of the SCM Agreement , but is nevertheless related to 
dumping or subsidization, is not prohibited by Article 18.1 of the Anti-Dumping Agreement  or 
Article 32.1 of the SCM Agreement ."
101  The United States asserts that the directive is applied in 
response to noncollection risk – the mere fact that th e particular noncollection risk at issue relates to 
anti-dumping duties is not a sufficient basis to conclude  that the directive itself is "taken in response 
to the constituent elements of dumping or a subsid y."  The United States submits that "the constituent 
elements of ‘dumping'" are not "built into the essential elements" of the additional bond directive,102 
since US Customs does not determine anti-dumping or countervailing duty margins, and the directive 
does not purport to establish margins of dumping or s ubsidization.  The United States also asserts that 
the additional bond directive does not apply to a ll entries subject to anti-dumping or countervailing 
duties – rather it only applies to those for which a sp ecific noncollection risk has been identified.  The 
United States submits that the sole reason the dir ective is designed to secure anti-dumping liability is 
because the vast majority of unsecured liability that  has resulted in noncollection happens to be anti-
dumping duty liability . 
7.62 The United States rejects Thailand's argument that the directive is "not specifically related to 
matters other than dumping."103  According to the United States, the fact that the additional bond 
directive is based on noncollection risk, rather  than the constituent elements of dumping or 
subsidization, is evident in the text of the directiv e itself and associated materials.   The United States 
asserts that none of the information US Customs uses to determine that merchandise should be identified as "special category" merchandise subject to the amended directive – previous collection 
problems, payment history, indications that the liquidated duty rates may exceed existing security – 
has any relation to the constituent el ements of dumping or subsidization.
104  Likewise, none of the 
information US Customs requests for purposes of establishing individual bond amounts – prior history of paying import duties, the value of the merchandi se to be secured, the degree of supervision US 
Customs exercises over the transaction, the prio r record of the importer in honoring bond 
commitments, and evidence of the importer's ab ility to pay duties assessed – has any bearing on the 
constituent elements of dumping or subsidization.
105  The United States submits that all of these 
factors are, however, relevant to establishing noncollection risk. 
7.63 The United States acknowledges that the formul as for determining bond amounts incorporate 
the anti-dumping rate, but only because from the standpoint of US Customs it is the best and only available baseline proxy of duties that ultimately may be assessed.  According to the United States, 
the inclusion of the anti-dumping rate in the form ulas thus does not support the conclusion that the 
directive itself relies on the constituent elements of dumping or subsidization. 
(ii) Specific action "against" dumping 
7.64 The United States further submits that a review of Thailand's assertions demonstrates that the 
additional bond directive does not meet the second prong of the test set forth by the Appellate Body 
under Article 18.1:  it is not an action taken "aga inst" dumping or subsidization.  The United States 
rejects Thailand's argument that the bond directive is an action "against" dumping because "it results 
in enhanced bonds significantly greater than tho se required of other goods solely because those goods 
                                                                                                                                                                    
 
release of the decision referenced by Thailand, and the co urt did not squarely address the Notice in its findings.  
See Exhibit THA-9. 
101 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 262. 
102 Appellate Body Report, US – 1916 Act , para. 130. 
103 Thailand's first written submission, para. 175. 
104 Exhibit THA-5, p. 62,277. 
105 Exhibit THA-5, p. 62,277 .  WT/DS343/R 
 Page 41 
 
 
 are subject to anti-dumping measures."106  The United States asserts that the higher bond is not 
required "solely because those goods are subject to anti-dumping measures."107  Rather, the directive 
is applied to importers of certain goods because US Customs has determined that those importers pose 
a higher risk of default.  The United States argues that  the fact that this potential liability and risk of 
default happen to be attributable to certain an ti-dumping and countervailing duties does not permit the 
conclusion that the directive is an acti on "against" dumping and subsidization. 
7.65 The United States asserts that actions by sureties and other private parties, including sureties' 
fees and collateral requirements associated with th ese imports, do not constitute evidence that the 
directive itself is an action "against" dumping or su bsidization.  The United States submits that US 
Customs does not set surety fees, nor does it require  importers to post collateral in support of bonds.  
The United States asserts that US Customs is a third party beneficiary to bond contracts, which are 
private contracts negotiated between the surety and the importer. 
7.66 Furthermore, the United States asserts that the Appellate Body noted in US – Offset Act (Byrd 
Amendment )  that "a measure cannot be against dumping or a subsidy simply because it facilitates or 
induces the exercise of rights that are WTO-consistent."108  According to the United States, the 
GATT 1994  and the Anti-Dumping Agreement  do not prohibit the United States from collecting the 
anti-dumping duties in question, and the bond requirement facilitates its ability to do so. 
(c) Evaluation by the Panel 
7.67 In considering the text of Article 18.1 of the Anti-Dumping Agreement , we note that the 
relevant language was considered in  detail by the Appellate Body in US – Offset Act (Byrd 
Amendment) .  In that case, the Appellate Body found: 
"Looking to the ordinary meaning of the words used in these provisions, we read 
them as establishing two conditions precedent th at must be met in order for a measure 
to be governed by them.  The first is that a measure must be "specific" to dumping or 
subsidisation. The second is that a measure must be "against" dumping or 
subsidisation.  These two conditions operate together and complement each other.  If 
they are not met, the measure will not be governed by Article 18.1 of the Anti-
Dumping Agreement   or by Article 32.1 of the  SCM Agreement .  If, however, it is 
established that a measure meets these two c onditions, and thus falls within the scope 
of the prohibitions in those provisions, it would then be necessary to move to a 
further step in the analysis and to determ ine whether the measure has been "taken in 
accordance with the provisions of GATT 1994 ", as interpreted by the  Anti-Dumping 
Agreement   or the  SCM Agreement .  If it is determined that this is not the case, the 
measure would be inconsistent  with Article 18.1 of the  Anti-Dumping Agreement   or 
Article 32.1 of the  SCM Agreement ."109 
                                                      
106 Thailand's first written submission, para. 186. 
107 Thailand's first written submission, para. 186 . 
108 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 258.  The fact that the Appellate 
Body was analysing a measure affecting private parties' ability to file petitions does not provide a basis to 
distinguish the instant facts from those before the Appellate Body in US – Offset Act (Byrd Amendment) .  
Contrary to Thailand's assertion, the "WTO-consistent" ri ght in question was not the right of a private party to 
file a petition, as actions by private parties are not them selves subject to a finding of WTO-consistency.  Rather, 
as here, the Appellate Body was evaluating a measure that  facilitated the exercise of "WTO-consistent rights" by 
the government (in that case, acceptin g applications, conducting investig ations, and imposing orders; here, 
collecting duties owed).  US – Offset Act (Byrd Amendment) , para. 258. 
109 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 236. WT/DS343/R 
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 7.68 We agree with this analysis by the Appellate Body, and adopt it as our own.  Accordingly, in 
order to establish whether the application of the EBR constitutes "specific action against dumping", 
we shall first examine whether or not the application of the EBR is " specific " to dumping.  If so, we 
shall then consider whether or not  the application of the EBR acts " against  dumping". 
(i) Whether or not the application of the EBR is "specific" to dumping 
7.69 The degree of specificity needed for action to  fall within the scope of Article 18.1 was 
addressed by the Appellate Body in US – 1916 Act  and US – Offset Act (Byrd Amendment) .  In its 
report in US – 1916 Act , the Appellate Body found that: 
"[T]he ordinary meaning of the phrase 'specific action against dumping' of exports 
within the meaning of Article 18.1 is action that is taken in response to situations 
presenting the constituent elements of 'dumpi ng'.  'Specific action against dumping' of 
exports must, at a minimum, encompass action that may be taken  only when the 
constituent elements of 'dumping' are present."
110   
7.70 In US – Offset Act (Byrd Amendment), the Appellate Body explained further that: 
"[T]he criterion we set out in US – 1916 Act  for specific action in response to 
dumping is not whether the constituent elem ents of dumping or of a subsidy are 
explicitly referred to in the measure at i ssue, nor whether dumping or subsidization 
triggers the application of the action, nor whether the constituent elements of 
dumping or of a subsidy form part of the essential components of the measure at issue.  Our analysis in  US – 1916 Act   focused on the strength of the link between the 
measure and the elements of dumping or a s ubsidy.  In other words, we focused on 
the degree of correlation between the scope of application of the measure and the 
constituent elements of dumping or of a subs idy.  In noting that the 'wording of the 
1916 Act also makes clear that these actions can be taken  only  with respect to 
conduct which presents the constituent el ements of 'dumping', we did not  require   
that the language of the measure include th e constituent elements of dumping or of a 
subsidy.  This is clear from our use of the word "also", which suggests that this aspect 
of the 1916 Act was a supplementary reason for our finding, and not the basis for it.  Indeed, we required that the constituent el ements of dumping (or of a subsidy) be 
"present", which in our view can include  cases where the constituent elements of 
dumping and of a subsidy are implicit in the measure."
111 
7.71 We agree with the Appellate Body's interpreta tion of the phrase "specific action", and adopt it 
as our own.  Accordingly, we shall determine whethe r or not the application of the EBR is "specific" 
to dumping by examining whether or not the applicati on of the  EBR is inextricably linked to, or has a 
strong correlation with, the constituent elements of dumping. 
7.72 In our view, the constituent elements of dumping are implicit in the express conditions for the 
application of the EBR, since the EBR may be applied only to goods subject to a US anti-dumping (or 
countervailing) duty order.112  If there were no finding that the constituent elements of dumping were 
                                                      
110 Appellate Body Report, US – 1916 Act , para. 122 (footnote omitted, original emphasis).  Although 
the Appellate Body's finding refers to the phrase "specific action against dumping" in its entirety, the Appellate 
Body confirmed in US – Offset Act (Byrd Amendment)  (para. 245) that its finding concerned the phrase "specific 
action", rather than the word "against". 
111 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 244 (footnotes omitted). 
112 The United States has not disputed the factual accu racy of Thailand's argument (see Thailand's first 
written submission, para. 163) that the 9 July 2004 Amendment limits the application of the EBR to 
merchandise upon which USDOC has issued an anti-dumping order, setting out that "[a]ny increase in bond  WT/DS343/R 
 Page 43 
 
 
 present, there would be no anti-dumping order against subject shrimp, and therefore no basis for 
applying the EBR in respect of subject shrimp imports.  For this reason, the existence of the constituent elements of dumping is a le gal pre-requisite for the application of the EBR.  This is further 
confirmed by the fact that the formula in the Amended CBD for calculating the EBR includes direct 
reference to the anti-dumping duty rate, and theref ore the constituent elements of dumping.  If the 
constituent elements of dumping were not present, the US would not have found cause to determine 
an anti-dumping rate, and the formula would not apply. 
7.73 We note the US argument that although the application of the EBR may be related to 
dumping, the application of the EBR is not "specific" to dumping because it is "based on non-collection risk rather than the constituent elements of dumping",
113 in the sense that the EBR does not 
"apply to all entries subject to antidumping or c ountervailing duties – but only to those for which a 
specific non-collection risk has been identified".114  We recall, though, that the Appellate Body has 
already determined115 that a measure need not be triggered  by the constituent elements of dumping in 
order for that measure to constitute "specific action"  in respect of dumping.  Nor does the existence of 
"additional requirements" transform a "specific action against dumping" into something else.116  Even 
though the application of the EBR might ultimately be triggered by a risk of non-collection, the fact 
remains that the EBR is only applied in respect of imports subject to anti-dumping (or countervailing 
duty) orders.  There remains, therefore, a significan t degree of correlation between the application of 
the EBR and the constituent elements of dumping.  In our view, such a degree of correlation demonstrates that the application of the EBR is "sp ecific", rather than merely related, to dumping. 
(ii) Whether or not the application of the EBR acts "against" dumping 
7.74 In our view, a measure will only act "against" dumping if it has some form of adverse bearing 
on dumping.  This is consistent with th e approach of the Appellate Body in US – Offset Act (Byrd 
Amendment) , where it found that: 
"[T]o determine whether a measure is "a gainst" dumping or a subsidy, [] it is 
necessary to assess whether the design and st ructure of a measure is such that the 
measure is "opposed to", has an adverse bearing on, or, more specifically, has the 
effect of dissuading the practice of dumpi ng or the practice of subsidization, or 
creates an incentive to te rminate such practices."
117 
7.75 In light of the ordinary meaning of the term "a gainst", we consider it appropriate to adopt a 
similar approach in determining wh ether or not the application of the EBR acts "against" dumping.  In 
doing so, we note that the Appellate Body concluded that the measure at issue in US – Offset Act 
(Byrd Amendment) had an adverse bearing on the foreign prod ucers/exporters because it "created an 
incentive" for those foreign producers/exporters "not to engage in the practice of exporting dumped or 
                                                                                                                                                                     
liability will become effective when the Department of Commerce (DOC) issues its Order on the case", and that 
the 10 August 2005 Clarification char acterises the 9 July 2004 Amendment as containing "specific guidelines 
for bonds covering certain merchandise subject to antidumping/countervailing duty cases ". 
113 United States' first written submission, para. 35. 
114 United States' first written submission, para. 39. 
115 In US – Offset Act (Byrd Amendment) , the Appellate Body found that the relevant measure 
constituted "specific action against dumping" notwithstanding the US argument that the relevant measure was 
not triggered by the constituent elements of dumping, but ra ther by an applicant's qualification as an "affected 
domestic producer" which has incurred qualifying expenditures.  Appellate Body Report, US – Offset Act (Byrd 
Amendment), para. 243. 
116 In US – 1916 Act , the Appellate Body held that "an additional requirement" for the taking of action 
(in that case, a finding of intent) did "not transform the 1916 Act into a statute that does not provide for 'specific action against dumping'".  (see Appellate Body Report, US – 1916 Act , para. 132). 
117 Appellate Body Report, US – Offset Act (Byrd Amendment), para. 254. WT/DS343/R 
Page 44  
 
 subsidized products or to terminate such practices".
118  In our view, a similar incentive arises as a 
result of the application of the EBR on imports of s ubject shrimp.  Ordinarily, the application of the 
EBR results in additional costs119 that, although initially borne by importers, ultimately impact on 
foreign producers/exporters of the subject merchandise, just as anti-dumping duties do.120  As a result 
of the formulas used to calculate the amount of th e EBR, the amount of the EBR, like the amount of 
anti-dumping duty, is directly linked to a given foreign producer's/exporter's margin of dumping.121  
The higher the margin of dumping, the higher the amount of the EBR, and the higher the cost of the EBR.
122  In order to maintain its level of sales and/ or profitability, despite the increased costs for 
importers as a result of the application of the EBR,  foreign producers/exporters  have an incentive to 
reduce, or even eliminate, their margin of dumpi ng (just as they have an incentive to reduce their 
margin of dumping in order to reduce the amount of anti-dumping duties levied on their goods).123  
Furthermore, shrimp importers have an incentive to avoid the costs associated with the application of 
the EBR by importing shrimp from foreign producers/exporters whose produce has not been found to have been dumped, and is therefore not subject to the shrimp anti-dumping order.  As a result of such 
incentives, which affect the relevant entities in mu ch the same way as anti-dumping duties do, we find 
that the application of the EBR constitutes specific action "against" dumping. 
                                                     
 
118 Appellate Body Report, US – Offset Act (Byrd Amendment), para. 256. 
119 The financial costs of obtaining enhanced bonds include the fees and collateral requirements 
imposed by surety companies for providing such bonds.  (See paragraph 2.18 above discussing fee and collateral requirements to secure enhanced bonds).  Although th e United States does not itself determine the terms and 
conditions under which surety companies provide bonds, the United States must have been aware that importers 
would necessarily incur costs in procuring the bonds that it required them to provide. 
120 Although the parties have made arguments regarding the actual impact of the EBR on the volume 
and market share of imports from Thailand, we do not consider these to be relevant to the issue before us.  In 
our view, Article 18.1 of the Anti-Dumping Agreement  is concerned with the effect of actions on the practice of 
dumping, rather than trade flows in the relevant imports .  We note that the Appellate Body has confirmed that 
"the test should focus on dumping [or subsidization] as practices" (see Appellate Body Report, US – Offset Act 
(Byrd Amendment) , para. 253), and that the appropriate "analy sis does not mandate an economic assessment of 
the implications of the measure on the conditions of competition under which domestic product and 
dumped/subsidized imports compete" (see Appellate Body Report, US – Offset Act (Byrd Amendment) , 
para. 257). 
121 Thailand also argues that the EBR acts "against" dumping by inflating the margin of dumping for a 
given shipment.  Thailand asserts that the export price on which the determination of dumping is based is a net 
price from which all shipping costs, including duties, charges, and other costs of importation, including the cost 
of the EBR, are deducted.  Thailand argues that when the cost of the EBR is deducted from the invoiced export 
price to arrive at the net export price used to determine dumping margins, the result is a lower export price and, therefore, higher dumping margins.  The United States  submits that Thailand's argument is founded on an 
incorrect citation to a provision in US law, and a fundamentally incorrect understanding how the USDOC 
interprets and applies the relevant legal provisions.  We recall that we are presently examining Thailand's claim 
against the EBR as applied against imports of shrimp .  Since Thailand has provid ed no evidence that, in 
applying the EBR against imports of shrimp, the United St ates treated the costs of ob taining enhanced bonds as 
shipping costs to he deducted from the export price, there is no basis for us to conclude that any such application of the EBR acted "against" dumping. 
122 In this regard, the adverse bearin g of the application of the EBR is similar to that of the measure at 
issue in US – Offset Act (Byrd Amendment) (where the adverse bearing resulted from the collected anti-dumping 
duties being transferred to domestic producers) , in the sense that the adverse bearing is directly linked to the 
margin of dumping of the foreign producer/exporter.  Indeed, the adverse bearing of the EBR is similar to that of 
an anti-dumping duty, in the sense that both result in increased costs that the relevant entities have an incentive to avoid or mitigate. 
123 In response to Question 6 from the Panel after the first substantive meeting, the United States 
asserted that "[i]f the cash deposit rate in the most recen tly completed administrative re view is determined to be 
zero, any new continuous bond obtained after completion of the administrative review would reflect an 
enhanced bond amount of $0."  WT/DS343/R 
 Page 45 
 
 
 7.76 The United States argues that, rather than being specific action "against" dumping, the 
application of the EBR merely facilitates the coll ection of anti-dumping duties.  In assessing this 
argument, we note that in US – Offset Act (Byrd Amendment)  the Appellate Body disagreed with the 
panel's finding that the Continued Dumping and Su bsidy Offset Act (hereafter the "CDSOA") is a 
measure against dumping because the CDSOA provi des a financial incentive for domestic producers 
to file or support applications for the in itiation of anti-dumping and countervailing duty 
investigations, and that such an incentive would likely result in a greater number of applications, 
investigations and orders.  In par ticular, we note that the Appellate Body found that "a measure cannot 
be against dumping or a subsidy simply because it f acilitates or induces the exercise of rights that are 
WTO-consistent."124  Upon careful refection, we do not consider that the Appellate Body's reasoning 
should preclude our finding that the application of the EBR constitutes specific action "against" 
dumping.  Instead, the Appellate Body's reas oning means that we would be precluded from 
concluding that the application of the E BR constitutes specific action "against" dumping simply  
because it may also facilitate the collection of WTO- consistent anti-dumping duties.  However, this 
does not preclude us from concluding, as  the Appellate Body and panel did in US – Offset Act (Byrd 
Amendment) , that the application of the measure at issue constitutes specific action "against" dumping 
on the basis of other considerations, notwithstanding  the fact that the application of that measure 
might also facilitate the collection of WTO-consistent anti-dumping duties. 
7.77 Our finding that the application of the EBR constitutes "specific action against dumping" is 
supported by the US view that provisional measures taken in the form of bonds constitute "specific 
action against dumping".125  If a bond applied as a provisional measure should be treated as a 
"specific action against dumping", it would appear reasonable to conclude that a bond applied as a 
definitive measure should be similarly categorized: in both cases, the adverse bearing of the bond on 
foreign producers/exporters and im porters (and the correlation with the constituent elements of 
dumping) is the same.  The United States asserts, though, that unlike a bond required as a provisional measure, the EBR provides for security after the ex istence of dumping has been established, pending 
determination of the facts with respect to paymen t of duties.  The United States submits that the 
application of the EBR "facilitates the exercise of WTO-consistent rights"
126 – i.e., the collection of 
duties owed following the imposition of an order.  Th e United States asserts that, by contrast, certain 
bonds required before an antidumping duty or der has been imposed may not be viewed as 
"facilitating" the exercise of WTO-consistent rights, insofar as, before the order is imposed, it has not 
been established that a Member is  entitled to collect duties.  We are not persuaded by the United 
States' argument, however, since we have already conc luded that the fact that the application of the 
EBR may facilitate the exercise of WTO-consistent ri ghts is not determinative of whether or not the 
application of the EBR constitutes "specific action ag ainst dumping" (in the sense that this fact does 
not preclude a finding that a measure constitutes "specific action against dumping" on the basis of 
other considerations). 
(iii) Conclusion 
7.78 In light of the above, we conclude that the a pplication of the EBR constitutes "specific action 
against dumping" in the meaning of Article 18.1 of the Anti-Dumping Agreement .  
7.79 Accordingly, we must now consider the remain ing elements of Article 18.1, regarding the 
question of whether or not the EBR was applied "in accordance with the provisions of GATT 1994 ", 
as interpreted by the  Anti-Dumping Agreement . 
                                                      
124 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 258. 
125 See United States' Responses to Second Set of Panel Questions, para. 5, in which the United States 
asserts that "a bond requirement prior to imposition of an order may be considered an action 'against' dumping". 
126 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 258. WT/DS343/R 
Page 46  
 
 4. Was the EBR applied "in accordance with" the provisions of the GATT 1994 , as 
interpreted by the Anti-Dumping Agreement   
7.80 The United States submits that the EBR was a pplied "in accordance with the provisions of 
GATT 1994 ", as interpreted by the  Anti-Dumping Agreement , because the application of the EBR is 
authorised by the Ad Note.  Thailand rejects the US reliance on the Ad Note. 
(a) Main arguments of Thailand 
7.81 Thailand submits that the Ad Note cannot be read independently of the provisions of the Anti-
Dumping Agreement  to create a fourth permissible response to dumping not provided for in the Anti-
Dumping Agreement .  Thailand further asserts that, in any ev ent, the text of the Ad Note expressly 
limits its application to provisional measures taken wh ile dumping is "suspected", that is, prior to a 
final determination of dumping. 
7.82 Thailand asserts that Article VI of the GATT 1994 , which includes as an "integral part" the 
Ad Note, cannot be read independently of the Anti-Dumping Agreement .  Thailand notes that Article 1 
of the Anti-Dumping Agreement  provides that the provisions of the Anti-Dumping Agreement  "govern 
the application of Article VI of GATT 1994  in so far as action is take n under anti-dumping legislation 
or regulations."  Thailand argues that the Appellate Body found in US – 1916 Act that "Article 1 states 
that 'an anti-dumping measure' must be consistent with Article VI of the GATT 1994  and the 
provisions of the Anti-Dumping Agreement ."
127  Thailand also states that, similarly, in Brazil – 
Desiccated Coconut , the Appellate Body emphasised that "Article VI of the GATT 1994 " cannot "be 
applied independently of the SCM Agreement  in the context of the WTO" as "[t]he authors of the new 
WTO regime intended to put an end to the fragm entation that had characterized the previous 
system".128  According to Thailand, the Appellate Body  identified a clear distinction between the 
previous GATT system, in which Article VI coul d be invoked separately from the Tokyo Round SCM 
Code, and the WTO system, in which Article VI cannot be so invoked.129  Thailand asserts that this 
distinction applies equally to the Anti-Dumping Agreement .   
7.83 Thailand submits that, when read in conjunction with the Anti-Dumping Agreement , 
Article VI and the Ad Note permit only three r esponses to dumping.  According to Thailand, the 
Appellate Body has consistently found that "Article  VI, and, in particular, Article VI:2, read in 
conjunction with the Anti-Dumping Agreement , limit the permissible responses to dumping to 
definitive anti-dumping duties, provisional measures and price undertakings ".130  Thailand asserts that 
these responses are governed by Articles 7, 8, and 9 of the Anti-Dumping Agreement .  Thailand 
further asserts that the United States has also argued this position in recent panel proceedings.131   
7.84 Thailand understands the United States to argue  that the Ad Note permits the imposition of 
cash deposit and bond amounts in excess of the amount of the margin of dumping currently in effect 
during the period following the imposition of definiti ve anti-dumping duties.  For Thailand, therefore, 
the United States argues that Article 9 of the Anti-Dumping Agreement , governing the imposition and 
collection of anti-dumping duties, does not limit the amounts of cash deposits and bonds that may be 
imposed.  Thailand asserts that, in these circumstances,  there is a conflict between the provisions of 
Article 9 of the Anti-Dumping Agreement , which expressly limits the measures that may be taken 
                                                      
127 Appellate Body Report, US – 1916 Act, para. 119. 
128 Appellate Body Report, Brazil – Desiccated Coconut , p. 18. 
129 Appellate Body Report, Brazil – Desiccated Coconut , p. 18 . 
130 Appellate Body Report, US – 1916 Act , para. 137; Appellate Body Report, US – Offset Act (Byrd 
Amendment) , para. 265. 
131 Thailand refers in this regard to United States' first written submission to the Panel, Mexico – 
Anti-Dumping Measures on Rice,  (WT/DS294) 22 March 2004, para. 274.  WT/DS343/R 
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 following the imposition of definitive anti-dumping duties, and the United States' reading of the 
Ad Note.  Thailand notes that, in cases of conf lict between a provision of a multilateral trade 
agreement, such as the Anti-Dumping Agreement , and the GATT 1994 , the General Interpretative Note 
to Annex 1A of the Marrakesh Agreement Establishing the WTO provides that the provisions of the 
multilateral trade agreement shall prevail.132  Thailand submits that for this reason also, the Ad Note 
cannot be read to confer rights to take action against dumping following the imposition of definitive 
dumping duties that are not found in Article 9 of the Anti-Dumping Agreement . 
7.85 Thailand also asserts that the Ad Note limits the permissible measures to a single security in 
the form of a " cash deposit or bond", rather than  a combination of both cash deposits and bonds. 
(b) Main arguments of the United States 
7.86 The United States submits that Thailand offers an  interpretation of the Ad Note in relation to 
the Anti-Dumping Agreement  that is inconsistent with the terms of the Anti-Dumping Agreement and 
fails to give the Ad Note any meaning or legal effect, contrary to the relationship between the 
GATT 1994  and other WTO Agreements contemplated by the WTO Agreement .  The United States 
asserts that the GATT 1994 , including the Ad Note, is an "integral part" of the WTO Agreement .133  
The United States argues that past panels and the Ap pellate Body have noted that Article VI is "part 
of the same treaty" as the Anti-Dumping Agreement , and "should not be interpreted in a way that 
would deprive it or the Antidumping Agreement of meaning."134  The United States argues that panels 
"should give meaning and legal effect to all the relevant provisions," including the Ad Note.  
According to the United States, the Ad Note perm its Members to require "reasonable security (cash 
deposit or bond)" for the payment of antidumping and countervailing duties.  For the United States, no 
other provision of the Anti-Dumping Agreement  or the GATT 1994  specifically addresses security for 
the payment of duties after the final determination in  an investigation, including the collection of cash 
deposits, and, moreover, no provision prohib its a Member from requiring this security. 
7.87 The United States submits that, instead of "reading Article VI in conjunction with the 
Antidumping Agreement," as the Appellate Body in US – 1916 Act  suggested,135 Thailand, through a 
misreading of Articles 7 and 9 of the Anti-Dumping Agreement , attempts to read Article VI and the 
Ad Note out of the covered agreements entirely,  depriving both provisions of any meaning.  The 
United States asserts that, if accepted, Thailand's various theories would mean that security pending 
final assessment of anti-dumping and counterva iling duties is nowhere permitted by the Anti-Dumping 
Agreement , SCM Agreement , or the GATT 1994 .  The United States asserts that, if Thailand's 
arguments were accepted, Members would not be  permitted to maintain security requirements 
pending final determination of liability.  The Unite d States argues that to preclude a Member with a 
retrospective system from requiring the posting of secur ity prior to the determin ation of final liability 
would create a disparity between retrospective and prospective systems.   The United States argues 
that such a conclusion would compromise Members'  ability to maintain retr ospective duty assessment 
systems, despite the fact that these systems are specifically contemplated by the text of the 
Agreement. 
                                                      
132 The General Interpretative Note states that: "In the event of a conflict between a provision of the 
General Agreement on Tariffs and Trade and a provision of another agreement in Annex 1A to the Agreement Establishing the World Trade Organization (referre d to in the agreements in Annex 1A as the " WTO 
Agreement "), the provision of the other agreement sha ll prevail to the exte nt of the conflict." 
133 Article II:2 of the WTO Agreement .. 
134 Panel Report, US – 1916 Act (EC) , para. 6.97. 
135 Cf. Thailand's Responses to First Set of Panel Questions, paras. 34-37. WT/DS343/R 
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 (c) Evaluation by the Panel 
7.88 At this juncture, we are examining the issu e of whether or not the EBR was applied "in 
accordance with the provisions of GATT 1994 ", as interpreted by the  Anti-Dumping Agreement .  The 
parties agree that the relevant provision of the GATT 1994  in this regard is Article VI, and specifically 
the Ad Note thereto.
136  This is also consistent with the vi ew expressed by the Appellate Body in US – 
1916 Act . 137  The Ad Note provides that: 
"As in many other cases in customs administration, a contracting party may require 
reasonable security (bond or cash deposit) for the payment of anti-dumping or countervailing duty pending fina l determination of the facts in any case of suspected 
dumping or subsidization." 
7.89 We first consider the relationshi p between the Ad Note and the Anti-Dumping Agreement , and 
the question of whether or not the Ad Note may au thorize the imposition of security requirements that 
are not expressly envisaged by the Anti-Dumping Agreement .  If we find that the Ad Note may 
authorize such security requirements, we consider the temporal scope of the security requirements that Members may impose pursuant to the Ad Note.  Ther eafter, we consider the question of whether or 
not Members may require security combining bot h cash deposits and bonds.  Finally, we examine 
whether the application of the EBR constitutes "reasonable" security. 
(i) The relationship between the Ad No te and the Anti-Dumping Agreement  
7.90 Thailand's basic argument is that Article VI of the GATT 1994 , including the Ad Note, may 
not be applied "independently" of the Anti-Dumping Agreement , in the sense that it may not provide 
an independent basis for taking specific action against dumping outside of the provisions of the Anti-
Dumping Agreement .  In this regard, Thailand asserts that the Appellate Body found in Brazil – 
Desiccated Coconut  that "Article VI of the GATT 1994 " cannot "be applied independently of the SCM 
Agreement  in the context of the WTO" as "[t]he authors of the new WTO regime intended to put an 
end to the fragmentation that had characterized the previous system".
138  In other words, Thailand 
argues that if Article VI of the GATT 1994  were found to provide an independent basis for taking 
specific action against dumping, such finding w ould result in fragmented anti-dumping regimes.  
7.91 In considering Thailand's argument, we note th at the Appellate Body findings relied on by 
Thailand were prefaced by the following observations: 
"The relationship between the GATT 1994  and the other goods agreements in 
Annex 1A is complex and must be examined on a case-by-case basis.  Although the provisions of the GATT 1947  were incorporated into, and became a part of the 
GATT 1994 , they are not the sum total of the rights and obligations of WTO Members 
                                                     
 
136 We note that the GATT 1994  consists inter alia  of the GATT 1947 .  Article XXXIV of the 
GATT 1947  provides that the annexes to the GATT 1947  are "an integral part" thereo f.  The Ad Note, which is 
contained in Annex I to the GATT 1947 , is therefore "an integral part" of the GATT 1947 .  As such, the Ad Note 
is necessarily part of the GATT 1994 .  We conclude from the fact that the Ad Note is included under the heading 
"Ad Article VI" that the Ad Note is part of Article VI of the GATT 1994 .  Both parties agree with this approach 
(See e.g. Thailand's second written submission, para. 3, and United States' second written submission, para. 14). 
137 In particular, the Appellate Body clarified "Since the only provisions of the GATT 1994 
"interpreted" by the  Anti-Dumping Agreement   are those provisions of Article VI concerning dumping, 
Article 18.1 should be read as requiring that any "specific action against dumping" of exports from another 
Member be in accordance with the relevant  provisions of  Article VI of the GATT 1994 , as interpreted by the 
 Anti-Dumping Agreement ".  Appellate Body Report, US – 1916 Act , para. 124.  See also Panel Report, US – 
1916 Act (Japan) , paras. 6.214-218 and 6.264; and Panel Report, US – 1916 Act (EC) , paras. 6.197-6.199. 
138 Appellate Body Report, Brazil – Desiccated Coconut , p. 18.  WT/DS343/R 
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 concerning a particular matter.  For example,  with respect to subsidies on agricultural 
products, Articles II, VI and XVI of the GATT 1994  alone do not represent the total 
rights and obligations of WTO Members.  The Agreement on Agriculture  and the 
SCM Agreement  reflect the latest statement of WTO Members as to their rights and 
obligations concerning agricultural subsidi es.  The general interpretative note to 
Annex 1A was added to reflect that the other goods agreements  in Annex 1A, in 
many ways, represent a substantial elaboration of the provisions of the GATT 1994 , 
and to the extent that the provisions of the other goods agreements conflict with the 
provisions of the GATT 1994 , the provisions of the other goods agreements prevail.  
This does not mean, however, that the other goods agreements in Annex 1A, such as 
the SCM Agreement, supersede the GATT 1994.   As the Panel has said: 
... the question for consideration is not whether the SCM Agreement 
supersedes Article VI of GATT 1994.   Rather, it is whether Article VI 
creates rules which are separate and distinct from those of the SCM 
Agreement , and which can be applied without reference to that 
Agreement, or whether Article VI of GATT 1994  and the SCM 
Agreement  represent an inseparable package of rights and disciplines 
that must be considered in conjunction."139  
7.92 It is important to note that, despite the complexity of the issue under consideration, the 
Appellate Body was abundantly clear in stating that Article VI of the GATT 1994  was not superseded 
by the SCM Agreement .  The findings of the panel, which were  upheld by the Appellate Body without 
modification, similarly excluded the possibility that the SCM Agreement  might be superseded by 
Article VI of the GATT 1994 .  Thus, neither the panel nor  Appellate Body findings in Brazil – 
Desiccated Coconut  provide any basis for concluding that Article VI of the GATT 1994  is superseded 
by the SCM Agreement .140  We emphasise this point because,  in our view, Thailand's position 
regarding the relationship between the Ad Note and the Anti-Dumping Agreement  suggests that the 
latter supersedes the former. 
7.93 Thailand correctly notes that the panel and Appellate Body in Brazil – Desiccated Coconut  
found that Article VI could not be applied "w ithout reference" to, or independently of, the SCM 
Agreement .  This finding cannot mean, though, that the Ad Note may not authorise action that is not 
envisaged by the SCM Agreement  or Anti-Dumping Agreement .141 
7.94 In our view, the findings in Brazil – Desiccated Coconut  that Article VI may not be applied 
independent of, or without reference to, the Anti-Dumping Agreement  simply mean (consistent with 
the conflict mechanism set forth in the general inte rpretative note to Annex 1A) that Article VI may 
not be interpreted to justify action that is prohibited by the Anti-Dumping Agreement .  It is in this 
sense that Article VI must be applied with reference to the Anti-Dumping Agreement .  If the Ad Note 
authorises conduct, and reference to the Anti-Dumping Agreement  confirms that such conduct is not 
prohibited by the Anti-Dumping Agreement , we see no basis in the Anti-Dumping Agreement , the 
GATT 1994 , or the abovementioned findings of the pa nel and Appellate Body, to prohibit such 
                                                      
139 Appellate Body Report,  Brazil – Desiccated Coconut , p. 14  (emphasis added, footnote omitted). 
140 Although the findings of the panel and Appellate Body in Brazil – Desiccated Coconut  were 
concerned with the relationship between Article VI of the GATT 1994  and the SCM Agreement , we see no 
reason why (and the parties have not argued that) those findings should not guide us in assessing the relationship between Article VI and the Anti-Dumping Agreement , especially since the Appellate Body's findings concerned 
the broader "relationship between the GATT 1994  and the other goods agreement in Annex 1A" to the WTO 
Agreement . 
141 Such result would conflict with the Appellate Body's conclusion that the SCM Agreement  does not 
supersede Article VI of the GATT 1994 . WT/DS343/R 
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 conduct.
142  Any other approach would deprive the Ad Note of meaning and le gal effect, and would 
effectively mean that it h as been superseded by the Anti-Dumping Agreement . 143 
7.95 In our view, such an approach to the relationship between the Ad Note and the Anti-Dumping 
Agreement  is entirely consistent with the interpretation set forth by the Appellate Body in Brazil – 
Desiccated Coconut .  Contrary to Thailand's argument, we do not consider that our approach 
reintroduces "the fragmentation that had characterized the previous system".144  The fragmentation 
with which the Appellate Body was concerned in Brazil – Desiccated Coconut  resulted from the fact 
that, under the GATT regime, Contracting Parties could take anti-dumping action under Article VI 
even if they had not signed – and were therefore not bound by – the Tokyo Round Anti-Dumping Code.  Non-signatories of the Code could theref ore act (under Article VI) "independently" of, or 
"without reference" to the Code.  Such fragm entation, which is precluded under the "single 
undertaking" in the WTO regime, would not be re-int roduced by our interpretation of the relationship 
between Article VI and the Anti-Dumping Agreement , since our interpretation is premised on the 
notion that Article VI may not be applied "ind ependently" of, or "without reference" to, the Anti-
Dumping Agreement . 
7.96 Thailand has not identified any provision of the Anti-Dumping Agreement  that would prohibit 
the security requirements resulting from the application of the EBR.
145  Nor are we able to identify 
any.  As a matter of law, therefore, such security requirements would be authorized by the Ad Note, 
provided they are in conformity with the substantive provisions thereof.  This is the issue we will turn 
to shortly. 
                                                      
142 In this regard, we note that Thailand argued in its reply to Question 16 of the First Set of Panel 
Questions (at para. 38) that "the provisions of Article VI cannot be read to expand on or undermine the specific rules contained in the Anti-Dumping and SCM Agreement s".  This statement is not inconsistent with our 
interpretation of the relationship between Article VI and the Anti-Dumping Agreement : provided there are no 
"specific rules" contained in the Anti-Dumping Agreement  regarding security for definitive anti-dumping duties, 
there is no risk that security acti on authorized by Article VI would "expand on or undermine" those specific 
rules.  We also note Thailand's reliance on Article 1 of the Anti-Dumping Agreement , which provides in relevant 
part that the provisions of the Anti-Dumping Agreement  "govern the application of Article VI of GATT 1994 ".  
Consistent with our reasoning above, we consider that the Anti-Dumping Agreement  can only govern the 
application of Article VI to the extent that it expressly addresses issues covered by Article VI.  In our view, the 
Anti-Dumping Agreement cannot govern the application of Article VI  in respect of security for definitive anti-
dumping duties if the Anti-Dumping Agreement contains no provisions expressly dealing with such security. 
143 Any other approach would also render other parts of Article VI, such as paragraph 6(b) thereof, 
inutile.  As noted by the panel in Brazil – Desiccated Coconut (note 60), the Anti-Dumping Agreement  "does not 
replicate or elaborate on Article VI:5 of GATT 1994 , which proscribes the imposition of both an anti-dumping 
and a countervailing duty to compensate for the same situation of dumping and export subsidization, nor does it address the issue of countervailing action on behalf of a third country as provided fo r in Article VI:6(b) and (c) 
of GATT 1994 .  If the [Anti-Dumping] Agreement  were considered to supersede Article VI of GATT 1994  
altogether with respect to countervailing measures, thes e provisions would lose all force and effect.  Such a 
result could not have been intended." 
144 Appellate Body Report, Brazil – Desiccated Coconut , p. 18. 
145 Thailand has not advanced any primary claim that the imposition of reasonable security 
requirements is inconsistent with any provisions of the Anti-Dumping Agreement  other than Article 18.1.  Since 
we are examining the applicability of the Ad Note precise ly in order to resolve Thailand's Article 18.1 claim, 
that provision provides no basis – at this stage – for conc luding that the application of the EBR is prohibited by 
the Anti-Dumping Agreement .  Thailand has argued, by way of "subsidia ry and alternative" claims, that the EBR 
is inconsistent with the provisions of Articles 7.1, 7.2, 7.4, and 7.5, and Articles 9.1, 9.2 and 9.3 of the Anti-
Dumping Agreement  (see note 266 to Thailand's first written submission).  Article 7 contains disciplines 
regarding the imposition of provisional measures.  Since we are presently assessing the application of EBR after 
the imposition of the anti-dumping order, i.e., as a definitive anti-dumping measure, Article 7 is not applicable.  
Furthermore,  Article 9 is concerned with the imposition and collection of anti-dumping duties (see paragraph 
7.113).  Since the EBR is not an anti-dumping duty, the EBR is not governed – let alone prohibited - by that 
provision.  WT/DS343/R 
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 7.97 Before concluding on the relations hip between the Ad Note and the Anti-Dumping 
Agreement , though, we must consider Thailand's asser tion that the Appellate Body has found that 
"Article VI, and, in particular, Artic le VI:2, read in conjunction with the Anti-Dumping Agreement , 
limit the permissible responses to dumping to 'definitive anti-dumping duties, provisional measures and price undertakings'".
146  While we acknowledge that such statements were made by the Appellate 
Body in US – 1916 Act and US – Offset Act (Byrd Amendment) ,  we note that the Appellate Body was 
not considering the WTO-consistency of security impo sed pursuant to the Ad No te in those cases.  By 
contrast, we have conducted a careful examination of the relationship between the Ad Note and the 
Anti-Dumping Agreement , and find that the Ad Note may permit responses to dumping in the form of 
particular security requirements.  In doing so, we note that Appellate Body jurisprudence clearly 
indicates that the Ad Note has not been superseded by the Anti-Dumping Agreement .  In such 
circumstances, we are not prepared to find that the Ad Note h as been rendered superfluous by dicta in 
an Appellate Body Report that does not even refer to  the provisions of the Ad Note.  Instead, we shall 
base ourselves on the clear-cut guidance that has been provided by the Appellate Body in Brazil – 
Desiccated Coconut . 
7.98 For all the above reasons, we find that the relationship between the Ad Note and the Anti-
Dumping Agreement  is not such as to preclude the Ad Note authorizing certain types of security that 
are not expressly envisaged by the Anti-Dumping Agreement . 
(ii) The temporal scope of the Ad Note 
7.99 We recall that the EBR was applied on imports entering the United States after the shrimp 
anti-dumping order was imposed.  The first substantive issue we must consider is whether the 
temporal scope of the Ad Note covers the period of  application of the anti-dumping order (as alleged 
by the United States), or whether it is limited to provisional measures taken prior to the imposition of 
the anti-dumping order (as alleged by Thailand). 
Ordinary meaning of the text of the Ad Note  
7.100  By its express terms, the Ad Note is applicable  "pending final determination of the facts in 
any case of suspected dumping or subsidization".  Th e United States argues that the temporal scope of 
the Ad Note covers the period of application of  the anti-dumping order since, in a retrospective 
system such as the US system, there remains a "case of suspect ed dumping" pending completion of 
the assessment review.  Thailand agues that the app lication of the Ad Note is expressly limited to 
provisional measures taken while dumping is "suspected ", that is, prior to a final determination of 
dumping.  Thailand asserts that the existence of du mping is confirmed once a final determination of 
dumping is made by the USDOC, such that there can no longer be "any case of suspected dumping" 
as of the imposition of the anti-dumping order. 
7.101  The Ad Note refers to "suspected dumping."  We interpret "dumping" in light of Article 2.1 of 
the Anti-Dumping Agreement .  Regarding the term "suspected", the United States asserts that this 
refers to dumping that is "imagined to be possible or likely."147  Thailand asserts that the ordinary 
meaning of "suspected" is "that one suspects to exist or to be such".148  Despite the apparent 
differences between the definitions advanced by the pa rties, in fact the parties have merely proposed 
different elements of one of the definitions set forth in The New Shorter Oxford English Dictionary  
(which defines the word "suspected" in relevant pa rt as "that one suspects to exist or to be such; 
imagined to be possible or likely").  There is, th erefore, no disagreement between the parties in this 
                                                      
146 Appellate Body Report, US – 1916 Act , para. 137; Appellate Body Report, US – Offset Act (Byrd 
Amendment) , para. 265. 
147 The New Shorter Oxford English Dictionary  (Clarendon Press, 4th Ed. 1993), p. 3162. 
148 The New Shorter Oxford English Dictionary  (Clarendon Press, 4th Ed. 1993), p. 3162.     WT/DS343/R 
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 regard.  We understand the te rm "suspected" to refer to dumping that is suspected to exist, in the sense 
that its existence may be imagined to be likely.
149 
7.102  In order to determine whether or not there remains "a case of suspected dumping" after 
imposition of a US anti-dumping order, we must carefully consider the analyses of dumping undertaken in the US retrospective system.  In order to impose an anti-dumping order, the United 
States first determines, through an analysis of im port entries during a given period of investigation, 
whether margins of dumping exist, and whether dump ed imports cause or threaten to cause material 
injury to a domestic industry.  If a determination of injurious dumping is made, the United States 
issues an anti-dumping duty order.  In its anti-dumping duty order, the United States sets forth ad 
valorem  cash deposit rates for producers/exporters indivi dually investigated, as well as an "all-others" 
rate applicable to all other subject producers/e xporters.  Pursuant to the anti-dumping duty order, 
importers must post a cash deposit of estimated anti-dumping duties for each import transaction.  This cash deposit is based on the overall margin of dumpi ng found for the exporter or producer during the 
investigation phase.  Thereafter, the US retros pective duty assessment system provides that, every 
twelve months, during the anniversary month of the antidumping duty order, importers, exporters, 
producers, and domestic interested parties have the opportunity to request that USDOC conduct an 
assessment review of the import en tries that occurred in the prior year (but following imposition of 
the anti-dumping order).  During any such review, th e United States analyses all of the import entries 
for the relevant period of review (i.e.  , the prior 12 months) to determine the final amount of the 
antidumping duty payable on imports from the relevant producer or exporter.  For those entries not covered by a request for an assessment review, USDOC instructs US Customs to assess anti-dumping 
duties at the cash deposit rate required upon entry. 
7.103  In our view, there is no certainty that impor ts entering the United States following imposition 
of an anti-dumping order are in fact  dumped.  The determination of  dumping made during the initial 
investigation underlying the anti-dumping order does not apply to these imports, since that determination was made on the basis of imports oc curring during an earlier period of investigation.  
Rather, the final determination (o f the existence and amount) of dumping is only made in respect of 
imports entering the United States following imposition of the anti-dumping order when an assessment review is undertaken.  Un til that time, it is not possible to state with certainty whether or 
not those imports are dumped.  Indeed, the assessment review may demonstrate that those import entries were not dumped, such that no anti-dumping duties may be collected. 
7.104  While there is no certainty that import entries subject to an anti-dumping order are dumped, 
there is a reasonable basis for suspecting
 that they might be.  Such suspicion of dumping results from 
the finding of dumping made in respect of import entries of subject merchandise during the initial period of investigation, i.e.  , the finding of dumping that gave rise to the anti-dumping order.  In our 
view, that suspicion of dumping may last until a final determination of du mping is made in the 
assessment review, whereupon both the existence and amount of dumping may be determined with 
precision.
150 
7.105  Thailand asserts that there is no longer an y suspicion of dumping once there is a 
determination of dumping giving rise to the imposition of an anti-dumping order.  That determination, 
however, relates to imports during the period of inv estigation underlying the initial investigation.  It 
                                                      
149 As noted below at note 184, we do not consider that the mere possibility of dumping would be 
sufficient to justify reasonable  security under the Ad Note. 
150 A new determination of dumping in an assessment review would, of course, give rise to a further 
suspicion of dumping.  Even if the results of the first assessment review indicate that there was no dumping 
during the period under review, we consider it reasonable to continue to suspect – on the basis of the initial investigation underlying the anti-dumping order – that future imports may be dumped.  This interpretation is 
consistent with, and indeed supported by, note 22 of the Anti-Dumping Agreement .  WT/DS343/R 
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 does not relate to imports entering the United States after the anti-dumping order is imposed.151  
Accordingly, the initial determination does not remo ve the suspicion of dumping in respect of those 
later imports.  In fact, as noted above, that initial de termination is actually the basis for the suspicion 
of dumping in respect of those later imports. 
7.106  We note Thailand's argument that the above analys is fails to take into account that in many 
cases no assessment review is conducted.152  In those cases, Thailand asserts that, by automatic 
operation of law, the entries are liquidated at th e margin of dumping in effect at the time of 
importation, i.e.  , the amount of the cash deposit of estimated duties.  The United States asserts that 
Thailand's emphasis on "automatic assessment" in its  response is misleading.  The United States 
argues that in no case is assessment – whether at th e cash deposit rate or otherwise – conducted at the 
time of entry, and in all cases the cash deposit collected  at the time of entry is a baseline proxy of the 
amount that may ultimately be assessed, and is never itself the final liability.  The United States assert 
that while, in some cases, the amount of the cash deposit happens to equal the amount of the final 
liability, it cannot be known at the time of entry whether this will be the case (since it cannot be 
known whether an interested party intends to request a review). 
7.107  Irrespective of whether or not the final assessme nt in cases where no interested party requests 
a review may be deemed to be "automatic", th ere remains no means of knowing whether or not an 
assessment review will be conducted at the time that  the import entry is made.  This will only be 
known once either the assessment review is requested , or the deadline for requesting such review has 
passed without any such request having been made .  Thus, even though imports may ultimately be 
liquidated at the cash deposit rate in the anti-dum ping order, there remains the possibility that an 
assessment review may be requested, and that such  review may indicate that those imports are not 
dumped (i.e., that no anti-dumping duties are to be asse ssed).  At the time of entry, therefore, such 
imports may only be suspected of being dumped. 
Contextual considerations regarding Articles 5.1 and 9.3.1 of the Anti-Dumping Agreement   
7.108  Turning to broader contextual considerati ons regarding Articles 5.1 and 9.3.1 of the Anti-
Dumping Agreement , Thailand asserts that there is a fundamental difference between the 
determination in an original investigation of whether dumping exists – and thus is not merely 
"suspected" – and the determination in a retrospectiv e assessment review of the amount of duties to be 
collected on particular entries.  According to Thaila nd, this difference is reflected in the text of the 
                                                      
151 In support of its argument, Thailand refers to a number of provisions of US law.  Thus, Thailand 
asserts that the US anti-dumping law uses the word "sus pect" to refer to the period  between a preliminary and 
final determination of dumping.  According to Thailand, section 733(b) of the Tariff Act of 1930 provides for a 
preliminary determination of "whether ther e is a reasonable basis to believe or suspect  that the merchandise is 
being sold, or is likely to be sold, at less than fair value."  Thailand asserts that, in contrast, section 735(a)(1) of the Tariff Act provides for a "final determination of whether the subject merchandise is being, or is likely to be, 
sold in the United States at less than fair value."  Thailand argues that the US DOC's regulations similarly 
characterise the final determination of dumping investigation as one that "constitutes a final decision by the Secretary [of Commerce] as to whether dumping or countervailable subsidization is occurring ."  Thailand 
submits that under US law, therefore,  dumping is only "suspected" during the period between the preliminary 
and final determinations of dumping.  This dispute is governed by the covered agreements, not US law.  Accordingly, our findings are based on the text of Article VI of the GATT 1994  (including the Ad Note), and the 
Anti-Dumping Agreement   This is consistent with the finding by the Appellate Body in  US – Softwood Lumber 
IV that "[t]he manner in which the municipal law of a WTO Member classifies an item cannot, in itself, be 
determinative of the interpretation of provisions of the WTO covered agreements."  (Appellate Body Report, US 
– Softwood Lumber IV , paras. 56, 65; see also Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review , para. 87 and note 87.)  Since our findings are not based on the provisions of US law, we shall disregard 
Thailand's arguments in respect thereof. 
152 See e.g. Thailand's Responses to Second Set of Panel Questions, paras. 34-39. WT/DS343/R 
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 Anti-Dumping Agreement , with Article 5.1 referring to an inves tigation to determine the "existence ... 
of dumping", and Article 9.3.1 referring only to the "d etermination of the final liability for payment of 
anti-dumping duties."  Thailand argues that the referen ce in Article 9.3.1 to the determination of final 
liability for payment of anti-dumping duties necessarily  implies that there has previously been a 
determination that dumping (and injury) exist an d that the imposition of anti-dumping duties is 
merited.  Thailand argues that if dumping is merely  "suspected" after the conclusion of the original 
investigation and until the final liability for duties on particular imports is determined, all US anti-
dumping orders are inconsistent with the basic requirement of Article VI of the GATT 1994  and the 
Anti-Dumping Agreement  that anti-dumping measures may only be imposed when imports are found 
to be dumped and to be causing, or threatening to cause, material injury to the domestic industry. 
7.109  We note that the Appellate Body found in Mexico – Anti-Dumping Measures on Rice  that "the 
conditions to impose [an anti-dumping duty] are to  be assessed with respect to the current 
situation."
153    We understand this to mean that, accord ing to the Appellate Body, the conditions for 
imposing anti-dumping duties, including the existence of  dumping, must be established in respect of 
the "current situation" (at the time of imposition).  There is no obligation on Members, at the time of 
imposition, to establish the existence of dumping prospectively, by reference to any future  situation.  
Indeed, any such obligation would be impossible to  fulfil.  While Members applying a prospective 
system of anti-dumping duty collection may use their findings in respect of the period of investigation as a proxy for the period following imposition of a definitive anti-dumping measure, there is no 
obligation on Members to do so.
154  Indeed, Members applying a retrospective system of anti-
dumping duty assessment (which is specifically contempl ated in Article 9.3.1) choose not to do so.  
Accordingly, we see no basis to conclude that the United States, which applies a retrospective system, 
already determines the existence of dumping in resp ect of future import entries at the time that it 
imposes an anti-dumping order.  The fact that Article 5.1 requires the United States to establish the existence of dumping at the time it imposes such order,  does not mean that the United States is at the 
same time establishing the existenc e of dumping in respect of future import entries covered by that 
order. 
7.110  Regarding Article 9.3.1, we note that this provisi on refers to "the determination of the final 
liability for payment of anti-dumping duties".  In  a retrospective system, this determination 
necessarily takes place after the relevant import entries have been made.  In our view, part of the process of determining "final liability for payment of  anti-dumping duties" is to determine whether or 
not those entries were dumped.
155  If they were not dumped, there is no "final liability for payment of 
anti-dumping duties".  Conversely, if they were dumped, there is "final liability for payment of anti-
dumping duties" (commensurate with the amount of dum ping found to exist).  Accordingly, we do not 
accept Thailand's argument that the reference in Articl e 9.3.1 to the determination of final liability for 
                                                      
153 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 165.  Although an 
investigating authority generally assesses the current situation on the basis of historical data pertaining to a past period of investigation, the panel found that such historical data "is being used to draw conclusions about the 
current situation"  (Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.58). 
154 Besides, the refund mechanism provided for in Article 9.3.2 of the Anti-Dumping Agreement  is 
designed to ensure that Members applying a prospective duty assessment system do not collect anti-dumping 
duties in excess of the actual amount of dumping. 
155 Thailand asserts that, in an assessment review, the United States does not assess whether the export 
price for particular  imports was below normal value to determin e the amount of liability  under Article 9.3.1. 
Instead, Thailand asserts that the United States makes overall  determinations of assessment rates for 
importers/exporters based on all imports during the period  covered by an administrative review, and establishes 
a single assessment rate for each importer/exporter.   We need not examine the factual accuracy of this 
argument, since in any event it would not change the fact that  the existence of dumping – whether for import 
entries individually, or for import entries overall – is established after those import entries are made.  Until such time, the United States may reasonably  (on the basis of the anti-dumping order) view those import entries as a 
"case of suspected dumping".  WT/DS343/R 
 Page 55 
 
 
 payment of anti-dumping duties necessarily implies th at there has previously been a determination 
that dumping exists in respect of subsequent impor ts, and that the levying of anti-dumping duties is 
merited.  Rather, it simply means that there is a case of suspected dumping, and that the levying of anti-dumping duties may be merited. 
Contextual considerations regardi ng the WTO-conformity of cash deposits
 
7.111  A further contextual consideration arises fro m the United States' assertion that Thailand's 
arguments would mean that no  security is permissible pending final assessment, including cash 
deposits.  Thailand rejects this argument, asserting instead that the cash deposits required by the 
United States following the imposition of an anti-dumping order are definitive anti-dumping duties permissible under Article 9 of the Anti-Dumping Agreement . 
156  Thailand asserts that this is 
consistent with the view of the Appellate Body in US – Zeroing (Japan), where it held that "[a]t the 
time of importation, an administering authority may collect duties, in the form of a cash deposit, on all export sales …".
157  The United States maintains that cash de posits are not duties within the meaning 
prescribed under Article 9 of the Anti-Dumping Agreement , but instead are a "form of security" or 
"estimate of the amount of duties that will ultimately be owed on a given entry."158  The United States 
also calls attention to the fact that Article 7.2 of the Anti-Dumping Agreement distinguishes cash 
deposits from duties by stating that "provisional measures may take the form of a provisional duty or, preferably, a security – by cash deposit or bond ... ."
159 
7.112  We consider that the US argument raises an ex tremely important consideration, for the ability 
to require security is an essential element of a retr ospective assessment system (which is specifically 
contemplated by Article 9.3.1 of the Anti-Dumping Agreement ).  If security, including even cash 
deposits, may not be required pursuant to the Ad Note, we consider it important to establish what 
provision of the GATT 1994  or Anti-Dumping Agreement  it may be required under.  If security, 
including even cash deposits, may not be imposed unde r such other provisions, we consider that an 
interpretation of the Ad Note permitting such security  would be further justified.  Thus, even though 
we are not required to rule on whether or not cash deposits may be imposed pursuant to the Ad Note 
in order to resolve the dispute before us, this issu e is an important contextual consideration to which 
we should have regard when interpreting the Ad Note. 
7.113  As to the question of whether or not cash depos its may be justified un der other provisions of 
the GATT 1994  or Anti-Dumping Agreement , Thailand argues that cash deposits are anti-dumping 
duties that may be imposed pursuant to Article 9 of the Anti-Dumping Agreement .  We are not 
persuaded by this argument, though, for the defin ition of the term "duty" is not broad enough to 
encompass cash deposits.  In this regard, Thailand has relied on Black's Law Dictionary  to define 
"duty" as "4. A tax imposed on a commodity or tran saction, esp. on imports" (Black's Law Dictionary, 
7th ed., B.A. Garner (ed.) (West Group, 1999), p. 523)(" Black's ").160  Thailand has further asserted 
that the definition of the term "tax" is "A mone tary charge imposed by the government on persons, 
entities, or property to yield public revenue" (Ibid.,  p.1469), and that the relevant definition of 
"charge" is "7. price, cost or expense" (Ibid., p.227).161  Thailand also distinguished duties from bonds 
in the following terms: 
"A 'duty' involves a monetary expense to yield public revenue.  A duty has an 
intrinsic value in itself  and can yield public revenue without further transformation. In 
                                                      
156 See Thailand's Responses to First Se t of Panel Questions, paras. 29-30. 
157 Appellate Body Report, US – Zeroing (Japan) , para. 156. 
158 United States' Responses to First Set of Panel Questions, para. 25. 
159 United States' second written submission, para. 16. 
160 See Thailand's first written submission, note 270. 
161 Thailand's first written submission, note 218. WT/DS343/R 
Page 56  
 
 contrast, a 'bond' is a 'security' instrume nt reflecting a written promise to pay money 
if certain circumstances occur.  Its value is not intrinsic to itself , but rather depends 
on the transformation of that bond into something of value through, for example, payment of the duties by the surety.  Thus:   
Securities differ from most other commodities in which people deal. 
They have no intrinsic value in themselves  – they represent rights in 
something else. The value of a bond, note or other promise to pay depends on the financial c ondition of the promisor."
162 
7.114  Thailand therefore distinguishes duties from bonds on the basis of whether or not those 
instruments have intrinsic value in and of themse lves.  In our view, the notion of intrinsic value 
provides an equally valid basis for distinguishing du ties from cash deposits.  Just as security in the 
form of a bond is without intrinsic value, so too is  security in the form of a cash deposit.  Although 
cash may have intrinsic value, a cash deposit, on the other hand, is not liquida ted revenue and is not a 
payment to yield public revenue at the time it is pr ovided, but rather, is provided as a form of security 
like a bond.  Based on the distinctions drawn above , a cash deposit will not yield public revenue until 
some point in the future.  In the context of the US retrospective assessment system, that point comes 
when – and only when – either duties are assessed  pursuant to an assessment review, or the cash 
deposits are liquidated once the deadline for requ esting an assessment review has expired (without 
any assessment review having been requested).163  Until that point, a cash deposit has no intrinsic 
value in and of itself. 
7.115  Furthermore, we note that Article 9.3.1 of the Anti-Dumping Agreement refers to 
circumstances "[w]hen the amount of the anti-dumping duty is assessed on a retrospective basis".  If 
the cash deposit applied in a retrospective system we re a duty, it would make no sense to talk of the 
amount of the duty being assessed on a retrospective basis, as the amount of the cash deposit, which 
Thailand refers to as a  "duty", is fixed prospectively . 
7.116  In addition, we observe that Article 9.3 pr ovides that the amount of the anti-dumping duty 
"shall not exceed the margin of dumping as establis hed under Article 2".  The Appellate Body has 
confirmed that the margin of dumping established in  an assessment review is a margin of dumping "as 
established under Article 2".164  This is also consistent with note 22 to the Anti-Dumping Agreement , 
                                                      
162 Thailand's first written submissi on, para. 204. (emphasis added) 
163 Thailand asserts that the United States' anti-dumping regulations expressly recognize that cash 
deposits are estimated duties that differ from a security in that "upon the issuance of an order [i.e. following a 
final determination of dumping], importers no longer may post bonds as security for antidumping or countervailing duties, but instead must make a cash deposit of estimated duties " (19 CFR § 351.211(a)).  
Thailand also notes that the US Tariff Act provides that following final determinations of dumping and injury, 
the USDOC must publish an anti-dumping order that "requires the deposit of estimated anti-dumping duties  
pending liquidation of entries of merchandise at the same time as estimated normal customs duties on that 
merchandise are deposited" (Section 736(a)(3) of the Tariff Act, 19 USC § 1673e(a)(3)).  According to 
Thailand, cash deposits of estimated anti-dumping duties are themselves duties.  We have already indicated that 
we shall resolve this dispute on the basis of the provisions of the covered agreements, rather than the provisions 
of US law.  That being said, by definition a security for estimated  duties is not a duty per se .  A security for 
estimated duties is merely a security for duties that may possibly be collectible in the future.  There is no duty in 
the absence of any such  future collection. 
164 In US – Zeroing (EC)  (para. 130) the Appellate Body stated that "the margin of dumping established 
for an exporter or foreign producer operates as a  ceiling  for the total amount of anti-dumping duties that can be 
levied on the entries of the subject product (from that exporter) covered by the duty assessment proceeding."  In 
the context of that case (starting with the Appellate Bo dy's reference to the need to establish a margin of 
dumping (under Article 2) for the product as a whole,  and for each exporter or foreign producer (see 
paras 127-129)) it is clear to us that the Appellate Body was referring to the margin of dumping established in 
an assessment review as a margin of dumping "established under Article 2".  WT/DS343/R 
 Page 57 
 
 
 which applies "when the amount of the anti-dumping duty is assessed on a retrospective basis", and 
which envisages definitive duties being levied pursu ant to "assessment proceeding[s]".  Since note 22 
accepts that amounts of anti-dumping duties, which (according to Article 9.3) must not exceed the margin of dumping established under Article 2, may be assessed pursuant to  assessment proceedings, 
necessarily note 22 also accepts that the margin s of dumping established in assessment proceedings 
are margins of dumping "established under Article 2".  Accordingly, and consis tent with Article 9.3, 
the margin of dumping in the assessment review operates as a ceiling for the amount of anti-dumping 
duty.  If the cash deposit were an anti-dumping dut y, and the cash deposit were in excess of the 
margin of dumping established subsequently in th e assessment review, the imposition of that cash 
deposit would violate Article 9.3.  This cannot be a correct interpretation, though, for under this 
interpretation it would be impossible for a Member  requiring cash deposits to know, at the time of 
application, whether or not it was acti ng in conformity with Article 9.3. 
7.117  We recall Thailand's reliance on the statement by the Appellate Body in US – Zeroing (Japan) 
that "[a]t the time of importation, an administering au thority may collect duties, in the form of a cash 
deposit, on all export sales…".
165  However, in that case the Appe llate Body was not addressing, and 
did not need to address, the issue of whether or not cash deposits constitute duties.  The Appellate 
Body's statement therefore constitutes obiter dictum  in the discussion of a different issue, which we 
do not feel compelled to treat as authoritative guidan ce on the issue before us here.  Furthermore, in 
its earlier Report on US – Zeroing (EC) , the Appellate Body included dicta to the effect that, under the 
US retrospective duty assessment system, "the United  States collects security in the form of a cash 
deposit at the time a product enters the United States, and determines the amount of duty due on the 
entry at a later date ."166  This suggests that in that earlie r case the Appellate Body treated cash 
deposits as a form of security for duties to be collected later, rather than as duties per se .  Thus, even 
if we were required to follow Appellate Body dict a, it is unclear exactly how this dicta should be 
interpreted. 
7.118  In addition, we observe that Article 9.3.1 of the Anti-Dumping Agreement refers to 
"refund[s]" to be made in the context of retrosp ective assessment systems.  Article 9.3.1 does not 
stipulate what precisely must be refunded.  Article 9. 3.2, by contrast, which applies in the context of 
prospective assessment systems, refers to "refund[s] ... of any ... duty paid".  Unlike Article 9.3.2, 
therefore, Article 9.3.1 does not characterize what  is being refunded as a "duty", even though (as 
acknowledged by Thailand167) Article 9.3.1 is the mechanism by which cash deposits are refunded.  If 
cash deposits were duties, there would have been no need to use different language in Articles 9.3.1 
and 9.3.2. 
7.119  As further contextual support for our view that cash deposits required following imposition of 
an anti-dumping order are not anti-dumping duties, we note that Article 7.2 of the Anti-Dumping 
Agreement , regarding provisional measures, draws a clear  distinction between a (provisional) "duty" 
and a "cash deposit".  Thailand's argument that cash deposits are duties is therefore at odds with the 
plain language of Article 7.2. 
7.120  Thailand submits that a failure to treat the a pplication of cash deposits as the levying of anti-
dumping duties would restrict the right of Member s to bring dispute settlement proceedings under 
Article 17.4 of the Anti-Dumping Agreement , which provides that a Member may refer a matter to the 
Dispute Settlement Body only "if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumpi ng duties or to accept price undertakings ..."
168  
                                                      
165 Appellate Body Report, US – Zeroing (Japan) , para. 156. 
166 Appellate Body Report, US – Zeroing (EC) , para. 109. 
167 See e.g. Thailand's second written submission, para. 39. 
168 Article 17.4 also provides that "a provisional m easure" can be referred to  the DSB when considered 
to be taken contrary to Article 7.1. WT/DS343/R 
Page 58  
 
 Thailand suggests that if definitive anti-dumping duti es are only levied pursuan t to a final assessment 
of duties in an administrative review, a US an ti-dumping order could not be challenged in WTO 
dispute settlement proceedings until after that fina l assessment has taken place (rather than when cash 
deposits are applied pursuant to the anti-dumping order). 
7.121  We do not share Thailand's concerns, though, sin ce Article 17.4 refers to "final action ... by 
the administering authorities ... to levy definitive anti-dumping duties".  Thus, Article 17.4 does not 
state that definitive anti-dumping duties must have been levied.  Rather, Article 17.4 merely requires 
that final action to levy definitive anti-dumping duties mu st have been taken.  In this context, the word 
"to" should in our view be inte rpreted adverbially, to express purpose.
169  Accordingly, the imposition 
of an anti-dumping order by the United States constitutes "final action ... to levy of definitive anti-
dumping duties" (emphasis added), in the sense that the order puts in place a mechanism providing for 
the levying of definitive anti-dumping duties (even t hough the amount of those duties – if any – is not 
calculated until some time in the future).    If th e drafters of Article 17.4 had meant that Members 
should wait until definitive anti-dumping duties we re actually levied be fore initiating dispute 
settlement proceedings, the relevant phrase in Ar ticle 17.4 would have read "if definitive anti-
dumping duties have been levied, or price undertakings accepted". 
7.122  Accordingly, we are not persuaded by Thailand' s argument that cash deposits may be imposed 
pursuant to Article 9 of the Anti-Dumping Agreement  (as anti-dumping duties).170  Nor has Thailand 
advanced any other basis for Members to require secu rity in the form of cash deposits.  We recall, 
though, that we consider that the ability of Memb ers to require security such as cash deposits pending 
final assessment is an essential requirement for the operation of a retrospective assessment system.  
Such contextual considerations support our interpre tation of the ordinary meaning of the Ad Note as 
permitting such security. 
Negotiating history  
7.123  Thailand also submits that the negotiating histor y of the Ad Note and Article VI makes clear 
that the reference in the Ad Note to "suspected  dumping" referred to the period "before anti-dumping 
duties are actually brought into operation."171  Thailand refers in this re gard to the 1959 Report of the 
Group of Experts on Anti-dumping and Countervailing Duties, wherein "[t]he Group agreed that it was desirable that such provisional measures should not  be of retroactive application and that they 
should preferably take the form of bond or cash deposits as mentioned in Interpretative Note 1 to 
paragraphs 2 and 3 of Article VI."
172  According to Thailand, the Ad Note was, in effect, superseded 
by the adoption of Article 10 of the 1967 Agreemen t on Implementation of Article VI, the forerunner 
of Article 7 of the current Anti-Dumping Agreement , which provided a more comprehensive 
regulation of the use of provisional measures. 
                                                      
169 The New Shorter Oxford English Dictionary , L. Brown (ed.) (Clarendon Press, 1993), Vol II, 
provides that, when used with an infinitive in adverbial relation, the word "to" "indicat[es] a specified purpose, 
use, function, or intention". 
170 Thailand also asserts that, when it established th e current retrospective system, the United States 
Congress expressly described the function of cash deposits of estimated duties not as to secure potential 
increases in liability, but rather as to reduce the damage which delayed assessment may cause a domestic 
industry.  According to Thailand, therefore, the Congress considered these payments of estimated duties to fill 
the same function as anti-dumping measures of remedying injury to a domestic industry.  Thailand asserts that 
cash deposits should, therefore, be governed by Article 9.  Consistent with our mandate, our findings are based 
on a thorough consideration of the relevant covered agreements.  We decline to depart from those findings on the basis of statements allegedly made by the United States Congress. 
171 See UN Conference on Trade and Employment, Third Committee:  Commercial Policy, Report of 
the Working Party to Sub-Committee C, 22 January 1948, E/CONF.2/C.3/C/18, paras. 3(vii); 9 and 10. 
172 Thailand refers in this regard to the 1959 Report of the Group of Experts on Anti-dumping and 
Countervailing Duties, L/978, para. 19 (BISD 8S 151).  WT/DS343/R 
 Page 59 
 
 
 7.124  The United States rejects Thailand's reliance on negotiating history, arguing that neither 
Article 7 nor the concept of "provisional measures" existed at the time the Ad Note was negotiated.  
The United States asserts that the Group of Experts relied on by Thailand stated explicitly that 
"Article VI made no mention of  them [provisional measures]". 
7.125  Thailand's argument regarding negotiating history refers to a single paragraph in the 1959 
Report of the Group of Experts on Anti-Dumping and Countervailing Duties entitled "Provisional 
anti-dumping measures".  That paragraph provides: 
"19. The Group discussed the question of provisional anti-dumping measures. It 
was recognized that in certain circumstan ces the use of such measures might be 
justified in order to limit the material inju ry to a domestic industry, even though it 
was noted that Article VI made no mention of them. On the other hand, it was 
generally felt that provisional measures shoul d be used sparingly and for the shortest 
possible time in order to interfere as little as possible with normal trade and in order 
that they should not assume a protectionist character. For this reason, any such measures should preferably be introduced after the responsible administration of the 
importing country had carried out an initial confidential investigation that revealed 
that there was a serious case to consider  further. Moreover, where possible, the 
provisional measures should not lead to a situation in which either the exporter or the importer of the product under investigation w ould suffer if the eventual decision were 
not to impose an anti-dumping duty. The Group agreed that it was desirable that such provisional measures should not be of retroactive application and that they should 
preferably take the form of bond or c ash deposits as mentioned in Interpretative 
Note 1 to paragraphs 2 and 3 of Article VI. Furthermore, they should be based on 
provisions which would, as far as possible, permit the importer to determine the maximum duty which could be assessed." 
7.126  In the second sentence of the a bove extract from their Report, therefore, the Group of Experts 
"noted that Article VI made no mention of [p rovisional measures]".  Since the Ad Note was 
introduced into the GATT 1947  in 1948,
173 and was therefore an integral part of Article VI of the 
GATT 1947  at the time that the Group of Experts issued its Report, this statement by the Group of 
Experts is therefore fundamentally at odds with Th ailand's argument that the Ad Note is expressly 
limited to provisional measures taken prio r to a final determination of dumping.  
7.127  Regarding Thailand's argument that the 1948 Report of the Working Party that actually 
adopted the Ad Note understood the term "suspect ed dumping" to refer to the period "before anti-
dumping duties are actually brought into operation", we note that the language cited by Thailand 
actually arises in paragraph 10 of that Report, which concerns a proposal (item (viii)) from the 
Netherlands regarding the inclusion of a consultation mechanism.  The language is not used in respect 
of Brazil's proposal (item (vii)) regarding the inclus ion of the Ad Note.  In particular, the Report 
reads: 
"10. Item (viii) In connection with the new paragraph proposed  by him in the paper submitted to the 
Sub-Committee on 9 January the representative of the Netherlands pointed out that the proposal was intended to: 
                                                     
 
173 The Ad Note to Article VI was included in Article 34 of the Havana Charter and was incorporated 
into the GATT in conjunction with the rest of Article 34 in 1948 (see Report of Working Party No. 3 on 
Modifications to the General Agreement, GATT/CP.2/22/Rev.1 (30 Aug. 1948)). WT/DS343/R 
Page 60  
 
  (a)  provide facilities for consultation between Members in cases of suspected 
dumping before anti-dumping duties are actually brought into operation." 
7.128    Since the language of the Report relied on by Thailand did not relate to the Ad Note, its 
relevance in the present dispute is questionable.  In  addition, it is by no means clear that the phrase 
"before anti-dumping duties are actually brought into action" necessarily refers to the period prior to 
the imposition of an anti-dumping order, since it mi ght equally refer to the period prior to assessment 
of the anti-dumping duties.  Furthermore, that language  is in any event not sufficient to contradict the 
very clear statement of the abovementioned Group of Experts. 
7.129  We are considering the relevant negotiating hi story because Thailand referred to it in support 
of its claim under Article 18.1 of the Anti-Dumping Agreement .  We are not referring to the 
negotiating history pursuant to Article 32 of the Vienna Convention , i.e., because we find that our 
interpretation of the relevant provisions "leaves the meaning ambiguous or obscure; or leads to a 
result which is manifestly absurd or unreasonable. "  Nor are we referring to the negotiating history 
because we find it determinative of the issues before us.  However, if the Ad Note was not introduced 
to provide for reasonable security in the form of  provisional measures, one might legitimately ask 
what it introduced for.  Since the United States appears to have been applying a form of retrospective 
assessment system at the time the Ad Note was introduced,
174 one might reasonably speculate that the 
Ad Note may have been intended to provide fo r reasonable security for definitive anti-dumping 
duties, pending final assessment. 
7.130  In light of the above, we find that the applica tion of the EBR falls with in the temporal scope 
of the Ad Note, in the sense th at the Ad Note authorizes the imposition of security requirements 
during the period following the imposition of a US anti-dumping order. 
(iii) The combined use of bonds and cash deposits 
7.131  We recall that the EBR was applied in conj unction with cash deposits, in the sense that 
importers had to provide both e nhanced bonds and cash deposits covering the same subject import 
entries.  We next consider whether the Ad No te allows the imposition of security requirements 
combining both cash deposits and bonds, or whet her the Ad Note requires Members to choose 
between either (i) cash deposits or (ii) bonds. 
7.132  Thailand asserts that the word "or" in the phr ase "cash deposit or bond" in the Ad Note can 
only be read in the exclusive sense rather than the inclusive sense, so  that only a single security in the 
form of either (i) a cash deposit or (ii) a bond ma y be applied.  Thailand further argues that the 
question of whether a measure is "reasonable" within  the meaning of the Ad Note cannot be resolved 
simply by reference to the amount of the security.  According to Thailand, the manner in which any 
security is imposed must also be "reasonable".  Thailand submits that by mandating that security 
required specifically for the collection of anti-dumping duties should take the form of either a bond or 
a cash deposit, the drafters of the Ad Note sought to limit the burdens placed on importers by ensuring 
that importers would not be required to provide specific anti-dumping security in two different forms 
at the same time. 
                                                      
174 The parties disagree on whether or not the United States was applying a retrospective assessment 
system at the time the Ad Note was introduced into the GATT 1947 .  The United States claims that it was, 
whereas Thailand claims that it was not.  Since this issue is not central to our findings, there is little to be gained in seeking to resolve this issue definitively.  We note, though, that even Thailand acknowledges that there may 
have been cases (outside of the "normal" situation) in which the United States was required to assess anti-
dumping after the time of entry of goods (see Thailand's comments on the United States' reply to Question 15 from the Panel at the second substantive meeting, para. 12).  The United States must necessarily have applied 
some form of retrospective assessm ent in respect of such cases.  WT/DS343/R 
 Page 61 
 
 
 7.133  The United States submits that nothing in the text or context supports this reading of the term.  
According to the United States, the phrase "bond or cash  deposit" is a parenthetical that appears after 
the term "reasonable security" and that term provid es relevant context for in terpretation.  The United 
States asserts that Thailand fails to explain how requiring two types of security instead of one is 
relevant to determining what constitutes "reasonabl e security".  The United States also argues that 
Thailand fails to explain why the Agreement should be  read to proscribe Customs from, for example, 
replacing a portion of the existing cash deposit requirement with a bond requirement.  The United States argues that the Appellate Body has interpreted other uses of "or" in the WTO Agreement s as 
covering one or the other item, as well as both items, in a phrase.  The United States notes that, in its report in US – FSC (Article 21.5 – EC II) , the Appellate Body interpreted Article 21.5 of the DSU  in 
this manner.  Article 21.5 states:  
"Where there is disagreem ent as to the existence or consistency with a covered 
agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, 
including wherever possible resort to the original panel."
175   
7.134  The United States argues that the Appellate Body interpreted this provision to mean that "an 
Article 21.5 panel may be called upon to examine either the ‘existence' of ‘measures taken to comply' 
with DSB recommendations and rulings, or, when su ch measures exist, the ‘consistency' of those 
measures with the covered agreements, or a combination of both , in situations where the measures 
taken to comply, through omissions or othe rwise, may achieve only partial compliance."176  T h e  
United States submits that, like the language interpreted by the Appellate Body in US – FSC 
(Article 21.5 – ECII) , based on the text and context, the "or" in the Ad Note encompasses a cash 
deposit, a bond, or a combination of both. 
7.135  We agree with Thailand's argument that the r easonableness of the security is to be assessed by 
reference to both the form and the amount thereof.  In terms of form, the purpose of the phrase "(cash 
deposit or bond)" in the Ad Note is to clarify th at both cash deposits and bonds constitute reasonable 
forms of security.  Since that is th e case, we see nothing in the text of  the Ad Note to suggest that the 
combination of both (otherwise reasonable) forms of  security necessarily results in a measure that is 
unreasonable.  In particular, the text of the Ad Note  does not provide that the form of security will 
only be reasonable if either  (i) cash deposits or (ii) bonds are required. 
7.136  We consider that an interpretation of the word  "or" to permit the combined use of bonds and 
cash deposits is consistent with  the Appellate Body's interpre tation of the word "or" in US – FSC 
(Article 21.5 – EC II) .  In that case, the Appellate Body found177 that the word "or" in respect of the 
phrase "existence or consistency" in Article 21.5 of the DSU  should be interpreted to permit 
Article 21.5 proceedings addressing both the "exist ence" and the "consistency" of implementation 
measures, not only one or the other.  Since the A ppellate Body was interpreting a similar use of the 
word "or" in US – FSC (Article 21.5 – EC II) , the Appellate Body's findings regarding that matter 
offer useful guidance that we consider it appropriate to follow in these proceedings. 
7.137  In light of the above, we find that the applicati on of the EBR is consistent with the temporal 
scope of the Ad Note, and that the United States is entitled to impose security requirements combining 
both cash deposits and bonds.  The fi nal substantive issue for us to examine is whether or not the 
security requirements established by the EBR in th is case were "reasonable" in the meaning of the 
Ad Note.  
                                                      
175 Article 21.5 of the DSU  (emphasis added). 
176 Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 60 (emphasis added). 
177 Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 60. WT/DS343/R 
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 (iv) Whether the application of the EBR resulted in "reasonable" security requirements 
7.138  The Ad Note only permits the imposition of "r easonable" security requirements.  Thus, the 
application of the EBR may only be found to be in accordance with the Ad Note  to the extent that it 
provides for "reasonable" security.  The United States  asserts that the application of the EBR provided 
for reasonable security, whereas Thailand contends that the resultant security requirements were not 
reasonable.  As noted in the preceding section, the r easonableness of the security is to be assessed by 
reference to both the form and the amount thereo f.  Having already dealt with Thailand's claim 
regarding the form of the security required by th e United States, in this section we consider the 
reasonableness of the amount thereof. 
7.139  The United States submits that the ordinary meaning of the term "reasonable" is "in 
accordance with reason; not irrational or absurd."
178  The United States further asserts that, with 
respect to amounts, "reasonable" is additionally defi ned as "[w]ithin the limits of reason; not greatly 
less or more than might be thought likely or appropriate."179  We consider it appropriate to consider 
the meaning of the term "reasonable" in light of this definition.180  We believe it equally important, 
though, to consider the context in which the term  "reasonable" is used.  In particular, since the 
Ad Note only permits security in a given "case of suspected dumping", the reasonableness of that 
security should be assessed in light of the ci rcumstances of that case of suspected dumping. 
7.140  In this regard, we recall that the EBR is app lied in conjunction with cash deposits.  While the 
cash deposits are designed to secure the duty liability  established as a result of the anti-dumping order 
(or most recent assessment review), the EBR is applied to secure against liability resulting from 
increases in the rate of dumping over and above that established in the order (or most recent 
assessment review).181  Since the amount of cash deposits is limited to the rate of dumping established 
in the anti-dumping order (or most recent assessment review), such security corresponds to the given 
case of suspected dumping, and is therefore in principle "reasonable" within the meaning of the 
Ad Note.  The same reasoning does not cover th e application of the EBR, however, since the 
application of the EBR increases the level of security beyond the dumping liability established as a 
result of the anti-dumping order.  By virtue of th e reasonableness requirement in the Ad Note, such 
increased security would only be permitted if there were some other basis which renders it reasonable 
in a particular case. 
7.141  In light of the abovementioned dictionary de finition (whereby reasonableness may be defined 
as "not irrational or absurd" and, with respect to am ounts, as "not greatly less or more than might be 
thought likely or appropriate"), we consider that there would only be an appropriate basis for such 
increased security if a Member properly determined that the rates of dumping provided for in the anti-
dumping order were likely to increase (such that th e cash deposits provided for in the anti-dumping 
order would not provide sufficient security for the relevant case of suspected dumping).182  T h e  
                                                      
178 The United States refers to the New Shorter Oxford English Dictionary , p. 2496. 
179 The United States refers to the New Shorter Oxford English Dictionary , p. 2496. 
180 We note that Thailand has not challenged the definition proposed by the United States. 
181 Thailand has not argued that the United States would not be entitled to collect duties in respect of 
any amount by which the rate of dumping established in an assessment review exceeds the cash deposits made 
in respect of the relevant import entries. 
182 Both parties argue that the reasonableness of the a pplication of the EBR should be assessed in light 
of the likelihood of increases in the rates of dumping.  See e.g. United States' Responses to First Set of Panel 
Questions, para. 51, and para. 68 of Thailand's second written submission.  We acknowledge that rates of dumping may increase, and that the United States would be entitled to collect anti-dumping duties 
commensurate with the full amount of dumping.  In our view, though, it would not be reasonable to require 
additional security simply because of the possibility of rates of  dumping increasing.  (Otherwise, since rates may 
also possibly decrease, one could argue that a reduction in security would be equally reasonable.)  The 
possibility of rates increasing beyond a reasonable level of security, and importers defaulting on that excess, is a  WT/DS343/R 
 Page 63 
 
 
 Member would also need to determine the likely amount  of such increase, in or der to ensure that the 
amount of the additional security requirement is not greatly more than the amount by which the final dumping liability would likely exceed the dumping lia bility established as a result of the anti-dumping 
order.  Only then could that Member demonstrat e that the additional secur ity properly and reasonably 
relates to an established case of suspected dumping, c onsistent with the requirements of the Ad Note.  
Without this type of analysis, the rate in the an ti-dumping order remains "the best and only available 
baseline proxy of duties that ultimately may be assessed",
183 and therefore the best estimate of 
suspected dumping for which security may be required  pursuant to the Ad No te.  Security exceeding 
this estimate would not be "reasonable" in the meaning of the Ad Note. 
7.142  We shall therefore examine whether the United States properly determined that the rate of 
dumping envisaged in the anti-dumping order would likely increase.  If we find that it did, we shall 
then examine whether the United States properl y established the likely amount of such increase.184 
7.143  The United States asserts that "[t]o analyse the likelihood of potential increases, US Customs 
used historical data on increases in the antidumping rate".185  In this regard, the United States refers to 
note 28 to para. 26 of its first written submission, wh ere it is stated that "CBP's analysis at the time 
indicated that with respect to ag riculture/aquaculture cases, rates incr eased 33 per cent of the time, did 
not change 11 per cent of the time, and decreased 56 per cent of the time".  
7.144  We note that the United States has not submitte d any documentary evidence in support of its 
assertion that anti-dumping rates increased 33 per cent of the time.  It is, therefore, impossible to assess the rigour of the United States' analysis.  In pa rticular, it is impossible to verify how the United 
States treated cases where the rate may have increased as a result of error on the part of Customs, or 
error or fraud on the part of other parties.
186 187  In our view, apparent rate increases resulting from 
error or fraud should not be confused with genuine  increases in exporters' actual rates of dumping. 
                                                                                                                                                                     
risk inherent in the retrospective system.  The Ad Note does not allow Members to seek to eliminate that risk 
through the application of unreasonably  excessive security requirements. 
183 See United States' first written submission, para. 37. 
184 The United States also argues that the applicati on of the EBR is reasonable because, in addition to 
the likelihood of anti-dumping rates increasing, it also reflects the amount  of potential liability  in the event of 
default and the likelihood of default (see para. United Stat es' second written submission, para. 24).  Both parties 
submitted argumentation regarding the US assessment of the risk of shrimp importers defaulting on anti-
dumping duties in excess of the cash deposits.  If the United States had properly established the likelihood of 
rates increasing, and the amount of likely increase, we consider that the United States would have been able to 
introduce additional security requirements up to that amount.  In the context of the application of the EBR, there is no additional obligation under the Ad Note to assess the risk of default of individual importers.  By virtue of 
the Ad Note, security may be imposed once a case of su spected dumping is establis hed, such that anti-dumping 
duties may be payable.  There is nothing in the Ad Note to suggest that security may only be required if it is further established that importers would not otherwise pay the relevant anti-dumping duties.  It is the case of 
suspected dumping that triggers the right to impose security requirements under the Ad Note, not the risk of 
default of individual importers.  (If this were not the cas e, the United States would be required to assess the risk 
of individual importers defaulting befo re imposing cash deposits.)  Although the risk of default does not provide 
a basis for requiring security under the Ad Note, we see no reason why a member could not choose to only 
impose security requirements otherwise authorized under the Ad Note in respect of importers with a greater risk 
of default. 
185 See United States' Responses to First Set of Panel Questions, para. 36. 
186 See e.g. Exhibit THA-6, bottom of page 10. 
187 Thailand argues extensively that  the major proportion of uncollected anti-dumping duties concerned 
imports covered by the anti-dumping order on crawfish, and that such uncollected anti-dumping duties resulted 
from the special circumstances of that  case.  We do not consider it necessary  to review those arguments, though, 
since at this juncture we are addr essing US evidence regarding cases in which the rates of dumping increased, 
rather than cases resulting in uncollected anti-dumping duties more generally.  As illustrated at page 8 of Exhibit WT/DS343/R 
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 7.145  Leaving aside the lack of supporting documen tary evidence, we are in any event not 
persuaded that an objective and impa rtial investigating authority could properly conclude that rates of 
dumping for subject shrimp were likely to increase on the basis of a finding that, historically, rates 
only increased in one third of agri culture/aquaculture cases generally.
188  Furthermore, the United 
States has provided no explanation as to how any alleged historical trend in respect of dumping rates 
for agriculture/aquaculture cases generally might justify conclusions regarding the likelihood of 
dumping rates for subject shrimp specifically.  In a ddition, we recall that the EBR is applied on all 
imports of subject shrimp.  A finding that, histori cally, rates have increased 33 per cent of the time in 
respect of agriculture/aquaculture cases generally is no t sufficient, in our view, to demonstrate that all 
rates for subject shrimp (in respect of all imports, from all sources) are likely to increase. 
7.146  The United States seeks to support its conclusion that rates of dumping would likely increase 
by asserting that "USDOC's preliminary results from the first administrative review of the antidumping order with respect to shrimp indicate th at several Thai companies that had been making 
cash deposits at the 6% rate established in the invest igation may be subject to an assessment rate in 
excess of 57%."
189  Thailand retorts that USDOC's prelimin ary results from the first administrative 
review of the anti-dumping order with respect to shrimp actually indicate that "[f]or 17 out of the 18 
exporters for whom actual margins (rather than puniti ve facts-available margin s) were determined, the 
assessment rates were actually lower  than the cash deposit rates.  In other words, for 94 per cent of 
exporters for whom actual margins were calculated,  the "unsecured liability" that the United States 
refers to did not even arise."190  Thailand also asserts that, even  including exporters for whom actual 
margins were not determined, assessment rates incr eased for only eight exporters.  According to 
Thailand, Thai "export statistics indicate that e xporters whose assessment rates increased accounted 
for only 1.92 per cent of the value of trade for the period covered by the administrative review."191  
Thai asserts that rates of dumping have therefore d eclined or remained the same for approximately 98 
per cent of the value of entries of Thai shrimp.192 
7.147  In principle, we do not consider that the prelim inary results of the first administrative review 
of the shrimp anti-dumping order are relevant to a determination of whether or not an objective and 
impartial investigating authority could properly have  found, at the time that the EBR was imposed on 
shrimp, that rates of dumping by shrimp exporters were likely to increase.  We therefore decline to 
base our findings on such ex post  rationalization.  Even if such analysis were relevant, though, it 
would not favour the position of the United States, for Thailand has demonstrated – and the United 
                                                                                                                                                                     
THA-6, not all uncollected anti-dumping duties in the cr awfish case resulted from increased rates of dumping.  
Scenario 1, e.g. which concerns the majority of the unpaid crawfish duties, concerned the problem of importers 
from new shippers being allowed to post single entry bonds, rather than cash deposits, and then defaulting on those bonds (with CBP no t able to collect from the su rety because the latter had gone bankrupt).  Furthermore, 
Exhibit US – 10 suggests that the United States had evidence of rate increases extending beyond the crawfish 
case (the United States claims that it had evidence of rate  increases in respect of 13 antidumping cases involving 
340 exporter/producers; see United St ates' Responses to Second Set of Pa nel Questions, note 46; see also the 
Amendment, which although it refers explicitly to the craw fish case, also states that "[r]ecent antidumping cases 
for agriculture/aquaculture merchandise have also resulte d in considerable rate increases").  Given the broad 
nature of this evidence, there is no basis to quer y such evidence by reference to the allegedly special 
circumstances of a single case.   
188 See United States' first written submission, para. 26. 
189 See United States' first written submission, para. 26. 
190 See Thailand's oral statement at th e first substantive meeting, para. 66. 
191 See Thailand's Responses to First Set of Panel Questions, para. 112.  In response to Question 50 
from the Panel, Thailand also suggested (at para. 119) that "the CBP may have improperly limited its analysis to 
cases in which administrative review s were conducted" (emphasis added).  Since Thailand did not confirm the 
factual basis for this argument in its subsequent submissi ons to the Panel, we shall not consider this argument 
further. 
192 See Thailand's second written submission, para. 69.  WT/DS343/R 
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 States has not disputed – that rates only increased for a very small proportion of shrimp imports from 
Thailand. 
7.148  For these reasons, we do not consider that an objective and impartial investigating authority 
could properly have found, on the basis of the evid ence relied on by the United States at the relevant 
time, that the rates of dumping established in the shrimp order were likely to increase.  
7.149  In light of our conclusion in the preceding sub-sec tion, we see no need to consider whether or 
not the United States properly determined the amount by which rates of dumping were likely to increase. 
(d) Summary 
7.150  As a result of our finding that the United Stat es failed to properly establish that the rates of 
dumping provided for in the anti-dumping order were likely to increase, we find that the United States 
failed to demonstrate that the additional secur ity required through the application of the EBR 
reasonably correlated to any case of suspected dum ping in excess of the margin of dumping provided 
for in the anti-dumping order.  Accordingly, we c onclude that the additional security requirements 
resulting from the application of the EBR were not "reasonable" within the meaning of the Ad Note. 
(i) Finding on whether or not the application of the EBR was "in accordance with" the Ad Note 
7.151  In light of our finding that the application of the EBR was not "reasonable" within the 
meaning of the Ad Note, we further find that the application of the EBR was not "in accordance with 
the provisions of the GATT 1994 , as interpreted by" the Anti-Dumping Agreement . 
5. Conclusion in respect of Thailand's Article 18.1 claim 
7.152  Since we have found that the application of  the EBR constitutes "specific action against 
dumping" that is not "in accordance with the provisions of the GATT 1994 , as interpreted by" the 
Anti-Dumping Agreement , we conclude that the application of the EBR is inconsistent with 
Article 18.1 of the Anti-Dumping Agreement . 
6. Other claims by Thailand 
(a) Articles 7 and 9 of the Anti-Dumping Agreement , Article VI:2 of the GATT 1994 , and the 
Ad Note 
7.153  Thailand has made separate claims that the E BR is inconsistent with the provisions of 
Articles 7.1, 7.2, 7.4 and 7.5 of the Anti-Dumping Agreement ; Articles 9.1, 9.2 and 9.3 of the Anti-
Dumping Agreement ; Article VI:2 of the GATT 1994 ; and the Ad Note.  In note 266 to its first written 
submission, Thailand has explained that "these clai ms are subsidiary and alternative to Thailand's 
Article 18.1 claim and, to the extent that the Pa nel finds in Thailand's favour on the Article 18.1 
claim, the Panel need not further address Thaila nd's separate claims" under the abovementioned 
provisions.  
7.154
 In light of Thailand's characterisation of these additional claims as "subsidiary and 
alternative" to its claim under Article 18.1 of the Anti-Dumping Agreement , and in view of our finding 
in respect of Thailand's Article 18.1 claim, we  do not consider it necess ary to address Thailand's 
claims under Articles 7 and 9 of the Anti-Dumping Agreement , Article VI:2 of the GATT 1994 , and 
the Ad Note. WT/DS343/R 
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 (b) Articles I:1, II:1(a), II:1(b), X:3(a) and XI:1 of the GATT 1994 . 
7.155  Thailand has made additional claims under Articles XI:1 and, alternatively, Article II:1(a) and 
the first and second sentences of Article II:1(b), of the GATT 1994 ; and Articles X:3(a) and I of the 
GATT 1994 .  However, unlike its alternative claims under Articles 7 and 9 of the Anti-Dumping 
Agreement , and Article VI of the GATT 1994 and its Ad Note, Thailand has requested that the Panel 
address its claims regarding the consistency of the EBR with Articles XI, II, X:3(a), and I of the 
GATT 1994  even if it were to find a violation of its main claim under Article 18.1 of the Anti-
Dumping Agreement .  In Thailand's view, the Panel should make findings "to assist the DSB in 
making recommendations or rulings aimed at achievi ng a satisfactory settlement of the matter and to 
ensure that on appeal the Appellate Body can, if  necessary, fully address those claims or, at a 
minimum, complete any necessary analysis to rule on those claims".
193 
7.156  The Panel, after careful consideration, on th e basis of judicial economy, refrains from ruling 
on Thailand's claims under Articles XI, II, X:3(a), and I of the GATT 1994 .  The Panel recalls that the 
principle of judicial economy is recognized in WT O law.  The Appellate Body has consistently ruled 
that panels are not required to address all the claims made by a complaining party.  In fact, a panel has 
discretion to determine which claims it must addr ess in order to resolve the dispute between the 
parties, provided that those claims are within its terms of reference.194  The Appellate Body has relied 
on the explicit aim of the dispute settlement mechan ism, which is to secure  a positive solution to a 
dispute, as provided in Article 3.7 of the DSU  or a satisfactory settlement of the matter as per 
Article 3.4 of the DSU .  The Appellate Body has stressed that the basic aim of dispute settlement in 
the WTO is to settle disputes and not to "make law" by clarifying existing provisions of the WTO 
Agreement  that fall outside the context of resolving a particular dispute: 
"[G]iven the explicit aim of dispute settlement that permeates the DSU , we do not 
consider that Article 3.2 of the DSU  is meant to encourage either panels or the 
Appellate Body to 'make law' by clarifying existing provisions of the WTO 
Agreement  outside the context of resolving a particular dispute.  A panel need only 
address those claims which must be addressed in order to resolve the matter in issue 
in the dispute.195"196  
7.157  We bear in mind that, in Australia – Salmon , the Appellate Body cautioned panels against 
false judicial economy arguing that the right to exercise judicial economy could not be exercised where only a partial resolution of a dispute would result: 
"The principle of judicial economy has to be applied keeping in mind the aim of the 
dispute settlement system.  This aim is to resolve the matter at issue and 'to secure a 
positive solution to a dispute'.  To provide only a partial resolution of the matter at 
issue would be false judicial economy.  A panel has to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to a llow for prompt compliance by a Member 
with those recommendations and rulings 'in order to ensure effective resolution of 
disputes to the benefit of all Members.'"
197   
                                                      
193 Thailand's first written submission, para. 289. 
194 Appellate Body Report, India – Patents (US), para. 87. 
195 (footnote original ) The "matter in issue" is the "matter referred to the DSB" pursuant to Article 7 of 
the DSU . 
196 Appellate Body Report, US – Wool Shirts and Blouses , DSR 1997:I, 323 at 340.  See also Panel 
Report, US – Steel Safeguards , para. 10.701. 
197 Appellate Body Report, Australia – Salmon , para. 223.  See also Panel Report, EC – Sardines, 
paras. 7.148-7.152;  Panel Report, US – Steel Safeguards , para. 10.703.  WT/DS343/R 
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 7.158  The Panel believes that this is not the case in the current proceedings.  In making findings 
under Article 18.1 of the Anti-Dumping Agreement  and the Ad Note,  the Panel believes that it has 
effectively resolved this aspect of the dispute.  The Panel finds support for its exercise of judicial 
economy in the practice of panels and the Appellate Body in previous dispute settlement proceedings.  
For example, as regards Thailand's claim under Article XI:1 of the GATT 1994 , the Panel in US – 
1916 Act (Japan) , after finding a violation of Article VI, he ld that in the case before it, Article VI 
addressed the "basic feature" of the measure at issue more directly than Article XI, although this did 
not mean that Article VI applied to the exclusion of Article XI:1.  On that occasion, the Panel found 
that it was entitled to exercise judicial economy and decided not to review the claims of Japan under 
Article XI.198  Precedent also exists as regards Tha iland's claim under Article X:3(a) of the 
GATT 1994 .  In previous disputes, after having found vi olations of, inter alia, Article I of the 
GATT 1994199, Article 11.2 of the Anti-Dumping Agreement200 and Article 2.4.1 of the Anti-Dumping 
Agreement201, the respective Panels did not consider it n ecessary to examine the Article X:3(a) claims. 
7.159  Even if the Panel would have found that the app lication of the EBR is not inconsistent with 
Article 18.1 of the Anti-Dumping Agreement, the Panel is of the view that it would not be appropriate 
to proceed and rule on Thailand's additional GATT 1994 claims .  We note that the text of Article 18.1 
of the Anti-Dumping Agreement provides that "[n]o specific action against dumping of exports from 
another Member can be taken except in accordance with the provisions of the  GATT 1994 , as 
interpreted by this Agreement."  We recall th at this reference to the provisions of the GATT 1994 has 
been interpreted by the Appellate B ody as referring to Article VI of the GATT 1994 .  We further recall 
that the Ad Note is an integr al part of Article VI of the GATT 1994 .  We therefore interpret these 
provisions to mean that the WTO Agreement s allow for the imposition of measures which are 
considered to be specific action against dumping prov ided they are in accordance with Article VI of 
the GATT 1994 , including its Ad Note.202  Accordingly, we are unable to accept that a measure which 
constitutes specific action against dumping in accord ance with the provisions of the Ad Note, can 
nevertheless be found inconsistent  with other provisions of the GATT 1994 .  For example, if we were 
to find that the Amended CBD violates the MFN provision of Article I of the GATT 1994, such a 
finding would, as a consequence, render inutile  the provision in Article 18.1 of the Anti-Dumping 
Agreement , and by reference, Article VI of the GATT 1994  and the Ad Note. 
7.160  We find additional support for our conclusion in the General Interpretative Note to Annex 1A  
of the WTO Agreement , which provides that in the event of conflict between a provision of the 
GATT 1994  and another Agreement of Annex 1A, the provi sion of the other Agreement prevails.  We 
have found that the Amended CBD constitutes sp ecific action against dumping in accordance with 
Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement , and thus, is consistent 
with Article 18.1 of the Anti-Dumping Agreement .  Therefore, our findings under the Anti-Dumping 
Agreement must prevail over any potential finding of viol ation under Articles XI, II, X:3(a), and I of 
the GATT 1994 .   
7.161  Finally, we consider the Panel's discussion in US – 1916 Act (Japan)  further  relevant to this 
issue.  After finding a violation of Article VI of the GATT 1994 , the Panel considered whether it must 
also analyse a claim under Article III:4 of the GATT 1994 .  It held that, in the case before it, 
                                                      
198 Panel Report, US – 1916 Act (Japan) , para. 6.281. 
199 Panel Report, Indonesia – Autos , para. 14.152. 
200 Panel Report, US – DRAMS , para. 6.92. 
201 Panel Report, US – Stainless Steel , para. 6.55. 
202 This finding is, of course, without prejudice to the operation and application of note 24 to 
Article 18.1 of the Anti-Dumping Agreement .  In this regard, we note and agree with the Appellate Body's 
finding in US  – Offset Act (Byrd Amendment)  (para. 262) that "an action that is not 'specific' within the meaning 
of Article 18.1 of the Anti-Dumping Agreement and of Article 32.1 of the SCM Agreement , but is nevertheless 
related to dumping or subsidisation, is  not prohibited by Article 18.1 of the Anti-Dumping Agreement or 
Article 32.1 of the SCM Agreement ."  Such action would be governed by other provisions of the GATT 1994 . WT/DS343/R 
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 Article VI addressed the "basic feature" of the measur e at issue more directly than Article III:4.  In 
doing so, the Panel referred to the international law principle lex specialis derogat legi generali in 
support of its reasoning.
203  The Panel did so by virtue of the Appellate Body's finding in EC – 
Bananas III  that:  
"Although Article X:3(a) of the GATT 1994  and Article 1.3 of the Licensing 
Agreement  both apply, the Panel, in our view, should have applied the Licensing 
Agreement  first, since this agreement deals specifically, and in detail, with the 
administration of import licensing procedures.  If the Panel had done so, then there would have been no need for it to a ddress the alleged inconsistency with 
Article X:3(a) of the GATT 1994 ."
204 
7.162  We agree that the principle of lex specialis  should apply in such circumstances.  Since 
Article VI of the GATT 1994 , including the Ad Note, "deals specifi cally, and in detail", with the issue 
of security for definitive anti-dumping duties, those provisions address the "basic feature" of the measure at issue more directly than the other GATT 1994  provisions cited by Thailand.  Article VI 
and the Ad Note therefore constitute lex specialis  that should prevail over the more general 
GATT 1994  provisions cited by Thailand. 
7.163  For the above reasons, we conclude  that it would not be  appropriate for us to proceed and rule 
on Thailand's claims under Articles I, II:1(a), the fi rst and second sentences of Article II:1(b), X:3(a), 
and XI:1 of the GATT 1994 , and we decline to do so . 
7. United States' defence under Article XX(d) of the GATT 1994  
7.164  Having found that the EBR constitutes "specific action against dumping" and that it is not a 
"reasonable security" under the Ad Note, and thus it is not "in accordance with the provisions of the  
GATT 1994 , as interpreted by the Anti-Dumping Agreement ", the Panel will proceed to examine the 
United States' defence under Article XX(d) of the GATT 1994 .  
(a) Main arguments of the United States 
7.165  The United States argues that the Amended CB D is justified under Article XX(d) of the 
GATT 1994  as a measure necessary to secure complia nce with United States anti-dumping and 
countervailing duty assessment laws.  According to the United States, the Amended CBD is necessary 
to secure compliance with 19 U.S.C. 1673e(1), wh ich governs the assessment of anti-dumping duties, 
as well as general customs regulations related to the payment of duties.  Specifically, according to the 
United States' argument, the Amended CBD is necessary to secure compliance with US laws 
governing revenue collection because it secures un secured liability arising from additional anti-
dumping or countervailing duties owed in excess of cash  deposits.  The United States has stated that it 
considers that problems of "significant potential un secured liability" and "significant risk of default" 
exist with respect to subject shrimp entries.
205  The United States submits that 19 U.S.C. 1673e(1) and 
the other relevant laws and regulations that authorise the Amended CBD are not themselves WTO-
inconsistent.  The United States also argues that no  reasonable alternative is available to ensure 
revenue collection.206   
7.166  The United States further argues that the Amende d CBD is consistent with the chapeau to 
Article XX.  In this regard, the United States submits that the Amended CBD does not constitute a 
                                                      
203 Panel Report, US – 1916 Act (Japan) , para. 6.269. 
204 Appellate Body Report, EC – Bananas III , para. 204. 
205 United States' first written submission, para. 68. 
206 United States' first written submission, paras. 69-70.  WT/DS343/R 
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 disguised restriction on international trade or a me ans of arbitrary or unjustifiable discrimination 
between countries where the same conditions prevail.   In support of this position, the United States 
submits that the measure applies to designated me rchandise subject to anti-dumping or countervailing 
duties regardless of origin, and applies to all c ountries subject to the anti-dumping order on subject 
shrimp.  In addition, the United States submits that bond amounts may be determined based on 
individualised risk assessments which are available to all importers/principals.  Finally, the United 
States emphasizes that the Amended CBD was publis hed on US Customs' web site when initially 
introduced.  The October 2006 Notice, which was later published in the Federal Register, is described  
by the United States as a complete statement of the measure's contents and how it would be applied, 
which allows importers to comment formally on the EBR and its administration, and presents the 
directive's objective as addressing revenue collection problems. 
(b) Main arguments of Thailand 
7.167  Thailand argues that the United States has not  met its burden under Article XX(d) of the 
GATT 1994  to demonstrate that the application of the EBR is necessary to secure compliance with US 
laws and regulations imposing anti-dumping duties.  Thailand notes in general that the United States 
has relied exclusively on the Basic Bond Requirement  as sufficient to secure compliance with its laws 
and regulations imposing anti-dumping duties in the overwhelming majority of antidumping duty 
cases (specifically, in 242 out of 248 cases, represen ting 98 per cent of anti-dumping orders according 
to Thailand).207  Thailand also argues, based on the fact s on record, that the United States cannot 
demonstrate that assessment rates for subject shrimp  are likely to significantly exceed the cash deposit 
rate established in the final de termination of the original dumping investigation.  Thailand also 
disputes the United States' assumption that subject Thai importers are more likely to default on 
payment of anti-dumping duties than other products subject to anti-dumping duties.  Accordingly, 
Thailand argues that the Basic Bond Requirement in  conjunction with cash deposit system and civil 
recovery proceedings constitutes both a sufficient a nd less restrictive alternative measure, thereby 
rendering ineffective the United States' argument th at  EBR is necessary to secure compliance. 
7.168  Thailand also argues that the EBR does not meet  the conditions set out in the chapeau to 
Article XX(d) because its application constitutes "arb itrary" or "unjustifiable" discrimination and a 
"disguised restriction on trade".  Thailand argues that  the actual objective of the EBR is to burden the 
shrimp import industry in order to restrict the import of foreign shrimp products into the United States.  Thailand seeks support for its position by th e fact that the EBR has only been applied to 
subject shrimp imports, and that the United States has not demonstrated that subject shrimp importers 
from Thailand present a comparatively greater risk of default or non-payment than importers from 
other countries.  Thailand also argues that the lack of any nexus between the objective of collection of 
United States revenue and the manner in which it was applied constitutes a disguised restriction on 
international trade in subject shrimp.  In this re gard, Thailand reiterates that the EBR has not been 
applied to entries of other products with estab lished histories of revenue collection problems. 
(c) Evaluation by the Panel 
7.169  Before examining whether the EBR is justified by Article XX(d) of the GATT 1994 , we recall 
that it is the United States who has the burden to prove to the Panel that this is the case.
208   
7.170  We will now look at the text of Article XX(d) and the chapeau of Article XX which provide: 
                                                      
207 Thailand's first written submission, para. 272. 
208 In US – Wool Shirts and Blouses , the Appellate Body held that " the burden of proof rests upon the 
party, whether complaining or defending, who asserts the affirmative of a particular claim or defence." 
Appellate Body Report, US – Wool Shirts and Blouses , p. 14. WT/DS343/R 
Page 70  
 
 "Subject to the requirement that such me asures are not applied in a manner which 
would constitute a means of arbitrary or unjustifiable discrimination between 
countries where the same conditions prev ail, or a disguised restriction on 
international trade, nothing in this Agre ement shall be construed to prevent the 
adoption or enforcement by any contracting party of measures: 
(d) necessary to secure compliance with laws or regulations which 
are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement of monopolies operated under paragraph 4 of Article II and Article  XVII, the protection of patents, 
trade marks and copyrights, and the prevention of deceptive 
practices[.]" 
7.171  We note that, in US – Gasoline , the Appellate Body concluded that the analysis of a measure 
under one of the paragraphs of Article  XX is a "two-tiered" approach: 
"In order that the justifying protection of  Article XX may be extended to it, the 
measure at issue must not only come under one or another of the particular exceptions  
-- paragraphs (a) to (j) – listed under Article  XX; it must also satisfy the requirements 
imposed by the opening clauses of Article XX.   The analysis is, in other words, two-
tiered: first, provisional justification by reason of characterisation of the measure under [in that case] XX(g); second, further appraisal of the same measure under the 
introductory clauses of Article XX ..."
209 
7.172  We agree and adopt as our own the Appellate B ody's reasoning.  Therefore, the Panel shall 
first look at whether the EBR is necessary to secure compliance with  the relevant provisions of US 
law that direct US Customs to assess and coll ect anti-dumping duties.  We will only proceed to 
analyse whether the EBR meets the requirements of the chapeau  to Article XX, i.e whether the EBR 
allows for "arbitrary or unjustifiable discrimin ation between countries where the same conditions 
prevail", or constitutes a "disguised restriction on intern ational trade", if we have first determined that 
the EBR has met the requirements under paragraph (d). 
(i) Whether the EBR is necessary to secure compliance with US laws and regulations as 
provided in Article XX(d) of the GATT 1994 
7.173  The Appellate Body has indicated that two elemen ts should be satisfied in order for a measure 
to be provisionally justified under paragraph (d) of Article XX: 
"For a measure ... to be justified provisiona lly under paragraph (d) of Article XX, two 
elements must be shown.  First, the measure must be one designed to 'secure 
compliance' with laws or regulations that are not themselves inconsistent with some 
provision of the GATT 1994 .  Second, the measure must be 'necessary' to secure such 
compliance.  A Member who invokes Article XX(d) as a justification has the burden of demonstrating that these two requirements are met."
210 
First element: Whether the EBR has been "designed" to secure compliance with US laws and 
regulations that are not in themselves WTO-inconsistent  
7.174  We shall therefore commence our analysis by examining whether the EBR has been 
"designed" to secure compliance with US laws and regulations that are not themselves inconsistent 
                                                      
209 Appellate Body Report, US – Gasoline , p. 22. 
210 Appellate Body Report, Korea – Various Measures on Beef , para. 157.  WT/DS343/R 
 Page 71 
 
 
 with the GATT 1994 .  A necessary step in this analysis is t hus to identify which are those US laws or 
regulations the compliance with which the EBR is ai med at securing, whether they are not themselves 
WTO-inconsistent, and whether the EBR is itsel f designed to secure compliance with the aim 
expressed in the relevant US laws or regulations.  
7.175  The United States claims that the Amended CBD secures compliance with 19 U.S.C. § 
1673e(a)(1), which governs assessment of anti-dumping duties and reads as follows: 
"Within 7 days after being notified by the Commission of an affirmative 
determination under section 1673d (b) of this  title, the administering authority shall 
publish an antidumping duty order which—  
(1) directs customs officers to assess an antidumping duty equal to 
the amount by which the normal value of the merchandise exceeds 
the export price (or the constructed export price) of the merchandise, within 6 months after the date on which the administering authority receives satisfactory information upon which the assessment may be based, but in no event later than—  
(A) 12 months after the end of the annual accounting period of the 
manufacturer or exporter within whic h the merchandise is entered, or 
withdrawn from warehouse, for consumption, or  
(B) in the case of merchandise not sold prior to its importation into 
the United States, 12 months after the end of the annual accounting period of the manufacturer or exporter within which it is sold in the 
United States to a person who is not the exporter of that 
merchandise." 
7.176  The United States further submits that the Amended CBD is necessary to ensure compliance 
with 19 C.F.R. § 113.13(c), which requires port di rectors to obtain bonds "adequate to protect the 
revenue and insure compliance with the law and regulations."
211   
7.177  Thailand submits that 19 U.S.C. § 1673e(a)(1) ex clusively does not require importers to pay 
duties, but in combination with 19 U.S.C. § 1673e (a)(3) instead directs US Customs to assess anti-
dumping duties.  19 U.S.C. § 1673e(a)(1) "... directs US Customs to assess anti-dumping duties ... ", and 19 U.S.C. § 1673e(a)(3) "... requires the de posit of estimated anti-dumping duties pending 
liquidation ... ".  Thailand considers that 19 U. S.C. § 1673 titled "Imposition of Antidumping Duties", 
more accurately refers to the United States' obliga tion to collect anti-dumping duties.  This provision 
states that USDOC shall "impose[] upon such merchandise an antidumping duty, in addition to any 
other duty imposed in an amount equal to the am ount by which the normal value exceeds the export 
price (or the constructed export price) for the me rchandise."  Thailand considers the obligation to 
collect anti-dumping duties is additionally reflected in USDOC implementing obligations.  19 C.F.R. § 351.212(b)(1) requires that "the Secretary will in struct the Customs Service to assess antidumping 
duties by applying the assessment rate to the entere d value of the merchandise".  Alternatively, 
19 C.F.R. § 351.211(c)(1) provides that the cash depos it rate will be assessed as the rate of final 
liability if an administrative review is not requested. 
7.178  Taking the parties' views into considerati on, in our view, 19 U.S.C. § 1673e(a)(1) in 
combination 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) encompass the United Stat es' obligation to collect anti-dumping duties.  
                                                     
 
211 United States' Responses to Second Set of Panel Questions, para. 58. WT/DS343/R 
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 Whereas 19 U.S.C. § 1673e(a)(1) directs customs o fficers to "assess" an antidumping duty, the 
obligations under 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) require that entries of merc handise subject to an anti-dumping order be subject 
to the imposition of antidumping duties.  As we mentioned, 19 U.S.C. § 1673 requires that USDOC  "impose[] upon such merchandise an antidumping duty, in addition to any other duty imposed in an 
amount equal to the amount by which the normal value exceeds the export price (or the constructed 
export price) for the merchandise"  19 C.F.R. § 351. 212(b)(1) requires that "the Secretary will instruct 
the Customs Service to assess antidumping duties by applying the assessment rate to the entered value 
of the merchandise".  Alternatively, 19 C.F.R. § 351.211(c)(1) provides that the cash deposit rate will 
be assessed as the rate of final liability if an admi nistrative review is not requested.  We note that 19 
U.S.C. § 1673e(a)(3) requires the deposit of " ... estimated  anti-dumping duties pending liquidation 
... ". 
7.179  Accordingly, the Panel provisionally concludes for the purpose of considering the United 
States' defence under Article XX(d), the law or regul ation at issue is 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), all of which together govern the final collection of anti-dumping or countervailing 
duties.  We do not consider it necessary to expand ou r discussion to include analysis of 19 U.S.C. § 
1673e(a)(3), governing the deposit of estimated antidum ping duties pending liquidation, or 19 U.S.C. 
§ 1673f, governing treatment of difference between  deposit of estimated antidumping duty and final 
assessed duty under antidumping duty order. 
7.180  The Panel must next consider for the purpo se of examining the United States' arguments 
under Article XX(d) whether 19 U.S.C. § 1673e(a)(1) r ead 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) are in themselves not inconsistent with any provision of the GATT 1994 .  When considering the relevant provisions of the 
GATT 1994  governing anti-dumping duties, the Pane l recognizes that Article VI:2 expressly 
recognizes Members' ability to levy anti-dumping duties where lawfully owed.  As we have 
established in Section VII.C.4, the Ad Note permits  Members to require reasonable security in a case 
of suspected dumping until a final determination of dumping is made in the assessment review.  The Panel further notes that Thailand has not expressly ch allenged any of these laws as inconsistent with 
any provision of the GATT 1994 .  Moreover, regardless of Thailand's expansion of what constitutes 
the relevant law enforced by the Amended CBD, the Panel does not interpret Thailand's commentary 
as a challenge to the right of the United States to collect anti-dumping or countervailing duties.  
Accordingly, the Panel concludes that, for the purpose of its analysis of the US defence under 
Article XX(d) of GATT 1994 , 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) are not in themselves inconsistent with any provision of the GATT 1994 . 
7.181  As a final preliminary matter, the Panel will next consider whether the Amended CBD, which 
authorises application of the EBR, has indeed b een designed to secure compliance with 19 U.S.C. § 
1673e(a)(1), 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).  We note that the August 2004 Amendm ent indicates that one of the goals of amending 
the bond directive is "ensuring [US Customs'] ab ility to collect the antidumping and countervailing 
duties at liquidation and ensuring that the revenue is protected".
212  The August 2005 Clarification 
states that the continuous bond guidelines were modi fied as "necessary in order to ensure the revenue 
is adequately protected".213  The October 2006 Notice explains: 
"Congress has provided [US Customs] authority to require security in order to ensure 
the payment of all duties determined to be due to the United States, including revenue 
                                                      
212 Exhibit THA-2, p. 2. 
213 Exhibit THA-4, p. 1.  WT/DS343/R 
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 collection gaps between estimated duty deposits and final assessed duties that the 
importer fails to satisfy."214 
7.182  We note that the stated goal of collecting "antidumping and countervailing duties at 
liquidation" or "final assessed duties" potentially includes both the collection of the amount of duties 
established during the final determination in the or iginal investigation as well as any increases in anti-
dumping duties that may arise in the period followin g a final determination but prior to assessment of 
final liability. 
7.183  In our view, the text of the instruments comprising the Amended CBD clearly indicates that 
the stated goals of the measure at issue align with the objectives that 19 U.S.C. § 1673e(a)(1), 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) are 
designed to secure the final collection of anti-dum ping or countervailing duties equal to the amount by 
which normal value of subject merchandise exceeds to export price of that merchandise.  Thus, for the 
purpose of examining the United States' arguments under Article XX(d), it is sufficient for the Panel 
to conclude that the Amended CBD which author ises the imposition of the EBR has indeed been 
designed to secure compliance with 19 U.S.C. § 1673e(a)(1), 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). 
Second element:  Whether the EBR is "necessar y to secure compliance with" 19 U.S.C. § 
1673e(a)(1), 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)  
7.184  Once we have established that the EBR has been designed to secure compliance with 19 
U.S.C. § 1673e(a)(1), 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), the WTO-compatibility of wh ich is not being contested, we will next examine 
whether the EBR is "necessary" to ensure such a compliance.   
7.185  In this regard, the United States argues th at the Amended CBD, which authorises the 
imposition of the EBR, is necessary to secure comp liance with US laws governing revenue collection 
because it secures unsecured liability arising from additional anti-dumping or  countervailing duties 
owed in excess of cash deposits.  In particular, th e United States argues that the application of the 
measure to subject shrimp importers was and remains necessary to secure against "significant potential unsecured liability" and "significant risk of  default" associated with merchandise entries.
215  
According to the United States, the Amended CBD w as issued in a year following defaults of more 
than $225 million on payment of anti-dumping duties,  which reached $629 million as of end of fiscal 
year 2006.216  The United States has estimated that the va lue of subject shrimp imports exceeds $2.5 
billion217 and thus poses a significant additional risk for uncollected revenue in the event that 
importer/principals were to default.  The United Stat es claims that the likelihood of default by subject 
shrimp importers, and importers/principals of agri culture/aquaculture merchandise more broadly, is 
significant due to the fact that such entities tend to be undercapitalised a nd discontinue operations 
before payment of final anti-dumping duty liability.218  With respect to agri culture/aquaculture anti-
dumping cases not including subject shrimp, US Customs concluded that anti-dumping duties 
increased 33 per cent of the time, did not change 11 per cent of the time, and declined 56 per cent of 
                                                      
214 Exhibit THA-5, p. 62278. 
215 United States' first written submission, para. 68. 
216 United States' first written submission, para. 12. 
217 United States' first written submission, para. 2. 
218 United States' first written submission, para. 14. WT/DS343/R 
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 the time.
219  In cases where anti-dumping duties increased, the United States claims that final liability 
for anti-dumping duties often exceeded the amount secured by cash deposit and ordinary basic bond.   
7.186  Thailand disputes the US' determination that s ubject shrimp importers' dumping margins are 
likely to increase and that subject shrimp importers present a heightened risk of default in comparison 
to importers of other products subject to anti- dumping orders.  Thailand submits that evidence does 
not support a finding that substantial increases in th e assessment rate were more likely to occur for 
subject shrimp than other products.  Thailand ar gues that the problems of the United States with 
collecting anti-dumping duties correlate almost exclusively to non-market economy cases, (in particular crawfish and garlic cases) as a result of  how dumping margins are calculated in non-market 
economies, surety bankruptcies, and exemptions fro m cash deposit requirements for new shippers of 
products subject to anti-dumping duties.
220  According to Thailand, these factors were determinative 
in the finding that assessment rates would increase in excess of cash deposit rates and that a higher 
incidence of default in payments would occur for ag riculture/aquaculture products.  In support of its 
position, Thailand cites to findings by the USCIT in NFI v. US  that the United States did not offer 
sufficient evidence to establish th at cash deposits would be insufficient to cover final rates of 
liquidation,221 or that significant numbers of subject shri mp importers are defau lting or have defaulted 
on any obligation to pay anti-dumping duties on their imports of shrimp.222  Thailand also cites to 
evidence on record which it claims  demonstrates that non-Chinese  agriculture/aquaculture cases 
accounted for only 4 per cent of total uncollected  duties while Chinese agri culture/aquaculture cases 
accounted for 69 per cent of total uncollected duties.223  Finally, Thailand claims that no basis for 
comparison exists that shrimp and other ag riculture/aquaculture merchandise share similar 
characteristics related to capitalization rates, history of customs duties payments, reliance on asset-
based financing, and levels of cash flow that w ould indicate a high risk of going out of business 
and/or being unable to pay final anti-dumping duty li ability.   Thailand submits that United States has 
only cited to one page in the Agency Record to  support its conclusion that agriculture/aquaculture 
importers which defaulted "were not heavily capitalized ", and this statement applies to crawfish and 
not subject shrimp224   
7.187  We first look at the ordinary meaning of the word "necessary": 
"[t]hat which is indispensable; an essential ...; ...[that] which is required for a given 
situation; ...[t]hat cannot be dispensed w ith or done without; requisite, essential, 
needful ...; [d]etermined by predestination or  natural processes, and not by free will; 
... resulting inevitably from the nature of things or of the mind itself ...; [i]nevitably 
determined or produced by a previous state of things ...".225     
7.188  The Appellate Body has already examined th e concept of "necessary" in the context of 
Article XX(d) of the GATT 1994  in Korea – Various Measures on Beef .  In this case, the Appellate 
Body concluded that, in order to be considered "necessary" to secure compliance, a measure does not 
need to be "indispensable", but should constitute so mething more than strictly "making a contribution 
to": 
                                                      
219 United States' first written submission, footnote 28. 
220 Thailand's first written submission, para. 281. 
221 Thailand's first written submission, para. 277, citing to NFI v. US , p. 55, Exhibit THA-9. 
222 Thailand's first written submission, para. 278, citing to NFI v. US , p. 54, Exhibit THA-9. 
223 Thailand's responses to Second Set of Panel Questions, para. 77 and footnote 59, citing to Exhibit 
THA-6, p. 17. 
224 Thailand's responses to Second Set of Panel Questions, para. 74. 
225 The New Shorter Oxford English Dictionary, L. Brown (ed.) (Clarendon Press, 1993), Vol. II, 
p. 3118.  WT/DS343/R 
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 "We believe that, as used in the context of Article XX(d), the reach of the word 
'necessary' is not limited to that which is 'indispensable' or of absolute necessity or 
inevitable to secure compliance certainly fu lfil the requirements of Article XX(d).  
But other measures, too, may fall within th e ambit of this exception.  as used in 
Article XX(d), the term 'necessary' refers, in our view to a range of degrees of 
necessity.  At one end of this continuum li es 'necessary' understood as 'indispensable'; 
at the other end, is 'necessary' taken to mean as 'making a contribution to'.  We consider that a 'necessary' measure is, in this continuum, located significantly closer 
to the pole of 'indispensable' than to  the opposite pole of simply 'making a 
contribution to'."
226 
7.189  The Appellate Body weighed additional factors in  evaluating the necessity of a measure, such 
as:  (i) the relative importance of the common inter ests or values that the law or regulation to be 
enforced is intended to protect; (ii) the extent to  which the measure contributes to the realization of 
the end pursued, the securing of compliance with the law or regulation at issue; and, (iii) the restrictive impact of the measure on imported goods.  In Korea – Various Measures on Beef  the 
Appellate Body stated: 
"It seems to us that a treaty interpreter assessing a measure claimed to be necessary to 
secure compliance of a WTO-consistent law or regulation may, in appropriate cases, take into account the relative importance of  the common interests or values that the 
law or regulation to be enforced is intende d to protect. The more vital or important 
those common interests or values are, the ea sier it would be to accept as 'necessary' a 
measure designed as an enforcement instru ment ... There are other aspects of the 
enforcement measure to be considered in evaluating that measure as 'necessary'. One 
is the extent to which the measure contributes to the realization of the end pursued, the securing of compliance with the law or  regulation at issue. The greater the 
contribution, the more easily a measure might be considered to be 'necessary'. 
Another aspect is the extent to which the compliance measure produces restrictive 
effects on international commerce,[footnote om itted] that is, in respect of a measure 
inconsistent with Article III:4, restric tive effects on imported goods. A measure with 
a relatively slight impact upon imported produc ts might more easily be considered as 
'necessary' than a measure with inte nse or broader restrictive effects ..."
227 
7.190  As pertains to this importance of the interest  which the EBR allegedly intends to protect, we 
consider that the assessment and collection of anti-dumping or countervailing duties carries 
significant importance, specifically in the context of  US efforts to enforce trade remedies permissible 
under the WTO agreements, and generally, for the purpose of securing collection of US Treasury revenue within the context of its retrospective duty assessment system.  It is in this regard that 
Article VI:1 of the GATT 1994  expressly recognizes WTO Members' ability to collect anti-dumping 
duties where lawfully owed.  It also stands to r eason that taking security logically serves the purpose 
of collecting the full amount of anti-dumping or  countervailing duties owed.  The United States 
argues that the Amended CBD which allows for the imposition of the EBR, secures an otherwise unsecured liability – any additional anti-dumping duties owed upon assessme nt that exceed cash 
deposits.
228  We agree that this would logically aid in  the collection of revenue.  Thailand does not 
seem to dispute that this is the case.229    
                                                      
226 Appellate Body Report, Korea – Various Measures on Beef , para. 161. 
227 Appellate Body Report, Korea – Various Measures on Beef , paras. 162-163. 
228 United States' first written submission, para. 68. 
229 See Exhibit THA-6, Exhibit 5, p. 6. WT/DS343/R 
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 7.191  As the EBR makes clear on its face, however, we are not dealing with a measure that is 
designed to secure the collection of anti-dumping du ties generally.  Instead, we are considering a 
measure designed to protect against the likelih ood of anti-dumping duties exceeding cash deposit 
rates.  We have explained earlier that there c ould only be an appropriate basis for taking such 
increased security under the Ad Note if a WTO Me mber properly determined that the rates of 
dumping provided for in the anti-dumping order were  likely to increase (such that the cash deposits 
provided for in the anti-dumping order would not pr ovide sufficient security for the relevant case of 
suspected dumping).  Notwithstanding that, we f ound that the United States had failed to properly 
establish that rates of dumping provided for in the anti-dumping order were likely to increase and therefore concluded that the United States had fa iled to demonstrate that the additional security 
required through the application of the EBR reasona bly correlated to any case of suspected dumping 
in excess of the case of dumping provided for in th e anti-dumping order.  Accordingly, we found that 
the additional security requirements resulting from th e application of the EBR were not "reasonable" 
within the meaning of the Ad Note.  In our view , without adequately establishing that anti-dumping 
duties are likely to increase above the cash deposit rat es, it does not logically follow that a security is 
necessary within the meaning of Article XX(d) of the GATT 1994 .  Given that the likelihood of 
increased anti-dumping duties has not been properly established by the United States, we do not see the need  to impose the EBR to secure  against such an outcome. 
(ii) Conclusion 
7.192  Therefore, in light of our findings that that th e United States failed to demonstrate that the 
additional security required through the applicati on of the EBR reasonably correlated to any case of 
suspected dumping in excess of the margin of dumpi ng provided for in the anti-dumping order, we 
cannot determine that the EBR as applied to shrimp  is in fact necessary within the meaning of 
Article XX(d) of the GATT 1994 .  Accordingly, we consider that the United States  has failed to 
establish that the EBR as applied to shrimp is jus tified as being necessary to secure compliance with 
19 U.S.C. § 1673e(a)(1), 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) or any other relevant laws. 
VIII.  CONCLUSIONS AND RECOMMENDATIONS 
8.1 In light of the above findings, we uphold Thailand's claims that the application of the EBR to 
subject shrimp from Thailand is inc onsistent with Article 18.1 of the Anti-Dumping Agreement,  and 
the Ad Note.  We reject  the United States' argument that the application of the EBR is justified under 
Article XX(d) of the GATT 1994 . 
8.2 We further uphold  Thailand's claim that the United States acted inconsistently with 
Article 2.4.2 of the Anti-Dumping Agreement  by using zeroing to calculate margins of dumping in 
respect of the Anti-Dumping Measure. 
8.3 In light of the above findings, we decline to rule separately on Thailand's claims that the 
application of the EBR to subject shrimp from Thailand  is inconsistent with Articles I, II:1(a), the first 
and second sentences of Article II:1(b), X:3(a), and XI:1 of the GATT 1994 . 
8.4 Under Article 3.8 of the DSU
, in cases where there is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie to cons titute a case of nullification or 
impairment of benefits under that agreement.  Accordingly, we concl ude that to the extent the United 
States has acted inconsistently with the provisions of the Anti-Dumping Agreement  and the 
GATT 1994 , it has nullified or impaired benefits accruing to Thailand thereunder.  
8.5 Article 19.1 of the DSU is explicit concerning the recommenda tion a panel is to make in the 
event it determines that a measure is in consistent with a covered agreement:  WT/DS343/R 
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 "[i]t shall recommend that the Member con cerned bring the measure into conformity 
with that agreement." (footnotes omitted) 
8.6 We therefore recommend that the United States bring its measures into conformity with its 
obligations under the Anti-Dumping Agreement  and the GATT 1994 . 
_______________