WT/DS404/R 
Page C-1 
 
 
   
 
ANNEX C 
 
 
ORAL STATEMENTS OF TH E PARTIES AT THE FIRST 
SUBSTANTIVE MEETING OF THE PANEL OR 
EXECUTIVE SUMMARIES THEREOF 
 
 
Contents Page 
Annex C-1 Executive Summary of the Opening Statement of Viet Nam at 
the First Meeting of the Panel C-2 
Annex C-2 Closing Statement of Viet Nam at the First Meeting of the Panel C-8 
Annex C-3 Executive Summary of the Opening Statement of the 
United States at the First Meeting of the Panel C-10 
Annex C-4 Closing Statement of the United States at the First Meeting of 
the Panel C-20 
 WT/DS404/R  
Page C-2 
 
 
  ANNEX C-1 
  
EXECUTIVE SUMMARY OF THE OPENING STATEMENT OF  
VIET NAM AT THE FIRST MEETING OF THE PANEL 
 
 I. OVERVIEW 
 
1. This Panel proceeding is essentially about lega l interpretations of various provisions of the 
Anti-Dumping Agreement.   
 2. First, it involves the question of whether the practice of zeroing as engaged in by the U.S. in 
determining the margins of dumping in repeated ad ministrative reviews is consistent with U.S. 
obligations under Article VI:1 of the GATT 1994 and Articles 2.1, 2.4.2, and 9.3 of the Anti-Dumping Agreement.  Second, it involves the question of whether a so-called "Vietnam-wide 
entity" rate based on adverse facts available is permitted under Articles 2, 6 and 9 of the 
Anti-Dumping Agreement.  Third, it involves the qu estion of whether an "all others" or "separate" 
rate applicable to non-reviewed respondents based  on zeroing applied in a prior segment of an 
antidumping proceeding is consistent with Articles 2. 4 and 9.4 of the Anti-Dumping Agreement.  This 
question raises two related issues:  one, is it reas onable to assume continued margins of dumping by 
non-reviewed respondents when the reviewed mandato ry respondents have demonstrated the absence 
of dumping since imposition of the anti-dumping order.   And two, if zeroing in periodic reviews is 
prohibited, then application of a rate based on zeroing for purposes of  the "all others" or "separate 
rate" must also be prohibited.  Fourth, this di spute involves the question of whether the exception 
provided in Article 6.10, which permits restricting the scope of an investigation or review to a sample 
of exporters/producers or those accounting for the largest volume of exports, allows authorities to 
continuously ignore other non-procedural obligati ons of the Anti-Dumping Agreement.  Fifth, it 
involves the question of whether a five-year sun set review to determine whether dumping is 
continuing or likely to recur under Article 11. 3 can be properly based on determinations in 
consecutive periodic reviews each of which is inco nsistent with the Anti-Dumping Agreement in the 
multiple ways described above.    II. THE PANEL'S ANALYTIC FRAM EWORK MUST BE INFORMED BY 
APPELLATE BODY PRECEDENT, TH E ACCEPTED RULES OF TREATY 
INTERPRETATION OF THE VIENNA CONVENTION, AND THE OBJECT AND 
PURPOSE OF SOVEREIGN ENTITIES IN ENTERING INTO AN 
INTERNATIONAL AGREEMENT OR TREATY 
 
3. The WTO Agreements define a set of right s and obligations which the signatories have 
agreed to follow.  The WTO Agreements define a rules based system of international trade with non-
discrimination as the core principle.  The dispute settlement system of the WTO "is a central element 
in providing security and predictability to the multilat eral trading system" and "serves to preserve the 
rights and obligations of Members."   
 
4. At paragraphs 67-70 of its First Written Submission, the United States suggests that the Panel 
in the instant proceeding is not bound by Appellate Body precedent and should conduct a de novo  
review of whether zeroing in periodic reviews is prohibited under the Anti-Dumping Agreement.  The 
logical conclusion of the U.S. position is that identical factual scenario s raised under the same 
provision of an agreement can result in different tr eatment.  Thus, zeroing can be applied to Viet Nam 
if this Panel disagrees with all Appellate Body pr ecedent, but cannot be applied to another country WT/DS404/R 
Page C-3 
 
 
  (or, indeed, in another dispute involving Viet Na m) if the Panel hearing that dispute agrees with 
Appellate Body precedent.  This undermines both the non-discrimination principle of the WTO and 
the object and purpose of the Dispute Settlement Unde rstanding to provide security and predictability.   
III. THE "CONTINUED USE OF CHALLENGED PRACTICES" IS  A MEASURE 
SUBJECT TO DISPUTE SETTLEMENT AND IS WITHIN THIS PANEL'S TERMS 
OF REFERENCE 
 
A. N EITHER THE DSU  NOR THE ANTI-DUMPING AGREEMENT PRECLUDE A MEMBER FROM 
CHALLENGING THE CONTINUED AND ONGOING USE OF A WTO-I NCONSISTENT PRACTICE  
 
5. With this measure, Viet Nam requests that the Panel consider the USDOC's use of certain 
practices at each segment of the shrimp antidum ping proceeding since imposition of the antidumping 
duty order.  Viet Nam's first written submission establishes a pattern of conduct by the USDOC that 
started with imposition of the antidumping duty orde r and continues to this moment.  The USDOC has 
given no indication of its intentions to revise th e conduct in future segments of this proceeding, 
necessitating inclusion of this measure.   
 6. The Appellate Body recently recognized a Panel' s duty to consider measures that evaluate an 
authority's continued and ongoing use of certain pr actices in the context of a single antidumping duty 
order.  Only through inclusion of this measure is  the complaining Member able to ensure that the 
decision of the Panel will be respected for those determinations already completed and for future 
determinations.  Failure to perm it this measure would lead to a multiplicity of litigation where an 
authority, such as the USDOC, does not revise its pr actices in subsequent de terminations to conform 
with a Panel's or the Appellate Body's findings.   
 
B. V IET NAM PROPERLY PROVIDED NOTICE IN THE PANEL REQUEST OF THE "CONTINUED USE 
OF CHALLENGED PRACTICES " MEASURE  
 7. Viet Nam identified the "continued use of ch allenged practices" measure in its Panel request 
in a manner consistent with Article 6.2.  Viet Na m included in the Panel request each segment of the 
proceeding that had at the time of the Panel request been initiated – the investigation, the four periodic 
reviews, and the initiation of the five-year sunset  review – to illustrate the continuous and ongoing 
nature of the challenged practices  since imposition of the antidumping duty order.  Viet Nam provided 
in the list those determinations completed prio r to Viet Nam's accession to the WTO and those 
segments not yet final to ensure that the Panel a nd Members understood Viet Nam's concerns with the 
continued use. 
 
IV. THE USDOC'S RELIANCE ON MARGINS OF DUMPING CALCULATED USING 
THE ZEROING METHODOLOGY IS INCONSISTENT WITH THE 
ANTI-DUMPING AGREEMENT   
 8. We wish to provide for the Panel at the out set a clear description of the zeroing claims being 
made in this dispute.  First, Viet Nam provide d in its first written subm ission substantial factual 
documentation establishing that the USDOC utilized it s zeroing methodology in the investigation and 
four completed periodic reviews.  Viet Nam also  advanced arguments based on the text of the 
Anti-Dumping Agreement – arguments that have been  repeatedly adopted by the Appellate Body – 
establishing that the USDOC's model zeroing and simp le zeroing methodologies are inconsistent with 
the Anti-Dumping Agreement.    
9. Viet Nam also provided in its first written  submission evidence that (1) the USDOC utilized 
the model zeroing methodology in the investigation to calculate margins of dumping for individually 
examined producers;  (2) the USDOC relied on these margins of dumping for the purpose of WT/DS404/R  
Page C-4 
 
 
  calculating the separate rate in the investigation;   and (3) the USDOC relied on the separate rate 
calculated and applied in the investigation when assigning the separate rate in the second and third 
administrative reviews.  Based on this series of indisputable facts, the USDOC's use of model zeroing in the investigation resulted in application of an  impermissibly high separate rate in the second and 
third administrative reviews.   
 
A. V
IET NAM HAS SHOWN AS A MATTER OF FACT AND AS A MATTER OF LAW THAT THE 
USDOC' S CONTINUED AND ONGOING USE OF THE ZEROING METHODOLOGY IS 
INCONSISTENT WITH THE GATT  1994  AND THE ANTI-DUMPING AGREEMENT  
 
1. As a Matter of Fact, the USDOC has Utilize d the Zeroing Methodology at All Segments 
of the Shrimp Antidumping Proceeding  
 
10. Viet Nam submits that the first written submission provided for the Panel overwhelming 
factual evidence on the USDOC's use of margins of dumping calculated using zeroing at each 
segment of the shrimp proceeding:  the investigation, the four completed periodic reviews, and the 
preliminary results of the five-year sunset review.    2. As a Matter of Law, the USDOC's Co ntinued and Ongoing Use of the Zeroing 
Methodology is Inconsistent with the United States' WTO Obligations 
 
(a) The Use of Model Zeroing in Original Investig ations is Inconsistent with the United States' 
WTO Obligations 
 
11. The crux of the debate is the proper interpreta tion of the concepts of "dumping" and "margins 
of dumping."  Article VI:1 of the GATT 1994 and Article 2.1 of the Anti-Dumping Agreement define 
these concepts in relation to the product under exam ination as a whole.  That is, "dumping" or a 
"margin of dumping" may only be found to exist fo r the product subject to investigation and not for a 
model, which is only a subset of the product under investigation.  Although the USDOC may 
undertake multiple comparisons using averaging gr oups or models, the results of the multiple 
comparisons at the sub-product or in termediate level are not "margins of dumping."  It is only on the 
basis of aggregating these "intermediate values" that an authority can establish margins of dumping 
for the product under investigation as a whole.   
 (b) The Use of Simple Zeroing in Periodic Review s is Inconsistent with the United States' WTO 
Obligations 
 12. Viet Nam now turns to the legal arguments on the use of zeroing in periodic reviews – the 
assessment phase of an antidumping proceeding – which build upon the interpretations discussed 
above on the concepts of "dumping" and "margin of dumping."  As in the case of model zeroing, 
Viet Nam is presenting to the Panel the exact legal reasoning that has been repeatedly adopted by the 
Appellate Body in multiple zeroing disputes.  Artic le 9.3 of the Anti-Dumping Agreement governs the 
assessment of final antidumping duties in a retrospective system and mirrors the language of 
Article VI:2 of the GATT 1994.  The article requires that "[t]he amount of the antidumping duty shall 
not exceed the margin of dumping as established unde r Article 2."  Thus, the margin of dumping 
determined for an exporter or producer operates as  a ceiling on the amount of antidumping duties that 
can be imposed on the entries of the subject merchandise.  It is important to tie the term "margin of 
dumping" as used in Article 9.3 with the interp retation of this same phrase discussed above.  As 
explained, Article 2.4.2 requires that the margin of dumping calculation take into consideration all 
transactions for the product as a whole, not merely  a subset.  It is only through aggregating all 
intermediate values that the authority can dete rmine the margin of dumping for the product;  
systematically excluding transactions that produce negative dumping margins ignores this 
requirement.  Viet Nam notes that the Appellate Body has recognized that this reasoning applies with WT/DS404/R 
Page C-5 
 
 
  equal force in the context of simple zeroing, wher e comparisons are made at a transaction specific 
level (as opposed to a model specific level).  Ju st as removing select models from the margin of 
dumping calculation produces a result that fails to acc ount for all comparable export transactions, so 
too does removing particular transactions.  Lastly, we observe that USDOC's assessment of zero or 
de minimis  rates to the mandatory respondents in the second and third administrative reviews is 
irrelevant for purposes of the "continued use of challenged practices" claim.   
 
13. Nevertheless, we believe that the United States ' "no harm no foul" argument is simply wrong.  
An exporter/producer that wishes to avoid the paymen t of antidumping duties must price differently to 
obtain a zero margin if zeroing is applied.  Th e application of zeroing puts a price constraint on 
respondents seeking to avoid or minimize antidumping duties.  
B. V
IET NAM HAS SHOWN AS A MATTER OF FACT AND AS A MATTER OF LAW THAT THE 
USDOC' S ASSESSMENT OF ALL-OTHERS RATES BASED ON MARGINS OF DUMPING 
CALCULATED USING ZEROING IN THE SECOND AND THIRD ADMINISTRATIVE REVIEWS IS 
INCONSISTENT WITH THE GATT  1994  AND THE ANTI-DUMPING AGREEMENT  
 14. As discussed in Viet Nam's first written subm ission, the USDOC's all-others assessment rate 
for the second and third administrative reviews ar e in actuality based on the final antidumping duty 
margins calculated in the original investigation,  namely, the weighted average of the antidumping 
duty rates determined for investigated companies.   Thus, as a matter of fact, the USDOC relied on 
margins of dumping calculated using zeroing to determ ine the all-others rate in the second and third 
administrative reviews.  As a matter of law, fo r the reasons explained above, the zeroing methodology 
is inconsistent with the Anti-Dumping Agreement. 
 
V. THE ALL-OTHERS RATES APPLIED IN THE SECOND AND 
THIRD ADMINISTRATIVE REVIEWS IMPERMISSIBLY RELY ON MARGINS OF 
DUMPING CALCULATED FROM A PREVIOUS SEGMENT OF THE PROCEEDING 
 
15. Separate and apart from the claim described a bove, Viet Nam submits that the all-others rates 
used in the second and third administrative review s impermissibly rely on rates calculated from a 
previous segment of the proceeding.  Article 9.4,  which guides authorities on the rate calculation for 
companies not individually examined, does not require use of a particular methodology.  The Appellate Body has concluded, however, that th e article does impose an obligation on authorities 
when calculating an all-others rate , even where all rates are zero, de minimis , or based on facts 
available.  This obligation stems from the underl ying purpose of the article, which demands that 
parties not individually examined not be prejudiced by the actions of other parties.  Thus, when 
confronted with the situation that exists here, the USDOC has an obligation to adopt a reasonable 
practice that does not subject the non-examined compan ies to unfair prejudice.  Viet Nam submits that 
the proper approach under Article 9.4 is relia nce on the margins of dumping calculated in the 
contemporaneous proceeding.  To rely on stale antidumping rates requires that the USDOC ignore all 
available evidence on the subject industry's response to the imposition of the antidumping order.   
 
VI. THE USDOC'S CALCULATION OF A "VIETNAM-WIDE ENTITY" RATE HAS NO 
BASIS IN THE ANTI-DUMPING AGREEMENT  OR VIET NAM'S PROTOCOL OF 
ACCESSION  
 
A. T
HE USDOC  HAS NO BASIS FOR APPLYING THE DISCRIMINATORY VIETNAM -WIDE ENTITY 
RATE TO CERTAIN VIETNAMESE PRODUCERS AND EXPORTERS  
 16. The USDOC's has assessed at each stage of this proceeding a highly punitive Vietnam-wide 
entity rate for producers or exporters that do not satis fy the USDOC's separate rate  criteria.  This rate WT/DS404/R  
Page C-6 
 
 
  has no foundation in the Anti-Dumping Agreement or  Viet Nam's Protocol of Accession.  As an 
initial matter, Viet Nam does not dispute the genera l principle that an authority may assign a single 
antidumping rate to multiple entities.  This issue is not before the Panel. 
17. At the time of accession, Viet Nam understood that certain concessions would be necessary to 
assuage the concerns of market economy countries that Viet Nam's economy was not sufficiently 
market based to allow for application of the anti dumping remedy.  Accordingly, Viet Nam agreed to 
the specific instances in which an administering au thority could treat Vietnamese entities differently 
than entities from other Member countries.  These specific instances are detailed in paragraph 527 of 
the Working Party Report and in Viet Nam's Protoc ol of Accession.  Neither document provides that 
an investigating authority may impose a rebuttable pr esumption that all exporters or producers operate 
under the control of the government.  There is simply no basis by which the USDOC can impose additional commitments in the form of discr iminatory and unjustified presumptions towards 
Vietnamese producers or exporters not likewise applied to the producers of other Member countries.  
 B. T
HE USDOC' S APPLICATION OF ADVERSE FACTS AVAILABLE TO THE VIETNAM -WIDE 
ENTITY RATE IS INCONSISTENT WITH ARTICLE 6.8 OF THE ANTI-DUMPING AGREEMENT  
 
18. The USDOC has no basis for its reliance on a f acts available rate pursuant to Article 6.8 for 
the Vietnam-wide entity in place of a properly calcula ted all-others rate pursuant to Article 9.4.  
Accordingly, the Vietnam-wide entity may only prop erly be assigned an all-others rate pursuant to 
Article 9.4. 
 
19. We would like to note the important f actual distinction between the second and third 
administrative reviews.  In the second admini strative review, the USDOC requested certain 
information from all exporters a nd producers on the quantity and valu e of U.S. exports of subject 
merchandise;  the Vietnam-wide entity's failure to provide this information, which the United States 
identified as "necessary information," purportedly jus tified use of the punitive adverse facts available 
rate pursuant to Article 6.8.  In the third admini strative review, however, th is information was never 
requested of any parties.  Nevertheless, the US DOC continued to apply the punitive adverse facts 
available rate pursuant to Article 6.8, concluding that the companies (the Vietnam-wide entity) failed 
to establish their independence from government cont rol.  There is a disconnect and inconsistency 
with the USDOC's explanations on the basis for the application of adverse facts pursuant to 
Article 6.8, as the United States went to great le ngths to explain that in the second administrative 
review, "Commerce did not punish parties for not meeting the criteria to receive an individual (or "separate") rate."
1  The results of the third administrative re view directly contradict this claim, and 
raise questions about the United States' apparent pos t hoc rationalization for th e application of adverse 
facts to the Vietnam-wide entity.    VII. THE USDOC'S LIMITED RESPONDENT SELECTION PRACTICE IS 
INCONSISTENT WITH ARTICLE 6.10 OF THE ANTI-DUMPING AGREEMENT 
 20. Finally, Viet Nam will briefly discuss the claims relating to the USDOC's practice of limiting 
the number of interested parties eligible for individual examination.  Article 6.10 of the 
Anti-Dumping Agreement requires as a general rule th at the administering authority shall determine 
the individual dumping margin for each known exporter or producer of the subject merchandise.  The 
Article does, however,  provide a limited exce ption where examining all known exporters or 
producers would be impracticable because of the large number of such parties.  Viet Nam submits that 
the issue before the Panel is whether this ex ception can override and render superfluous other 
provisions of the Anti-Dumping Agreement.  In creating a rule out of the exception, the USDOC has 
                                                      
1 U.S. FWS at para. 162. WT/DS404/R 
Page C-7 
 
 
  denied Vietnamese interested parties their rights under Articles 6.10, 9.3, 11.1 and 11.3 of the 
Anti-Dumping Agreement.   
21. The continued and ongoing limitations imposed  by the USDOC on the number of respondents 
results in the nullification of other provisions and principles in the Anti-Dumping Agreement.  This 
includes the protection of exporters and producers from paying an antidumping duty in excess of their 
margin of dumping pursuant to Article 9.3;  the abilit y of exporters and produ cers to obtain revocation 
of an order upon demonstration that they are no longer dumping pursuant to Article 11.1;  and the 
ability of exporters and producers to benefit from term ination of an order based on a demonstration of 
no likelihood of recurrence or continuation of dumping pursuant to Article 11.3.  
 
22. We would also like to comment on the US DOC's refusal in the shrimp antidumping 
proceeding to consider the submission of voluntar y responses, contrary to the clear language of 
Article 6.10.2.  That article requires that "[v]ol untary responses shall not be discouraged."  The 
USDOC has acted in direct conflict with this cl ear statement, refusing to consider requests for 
voluntary respondent treatment and refusing to cons ider complete submissions made by parties 
hoping for voluntary treatment from the USDOC. 
 
VIII. CONCLUSION 
 
23. After years of being assessed duties in excess of  the margins of dumping and being denied the 
opportunity to demonstrate the absence of dumpi ng, the Vietnamese expor ters and producers hope 
that this Panel will conclude that the U.S. has and continues to act in a manner inconsistent with its 
obligations under the Anti-Dumping Agreement and must  bring its actions into consistency with those 
obligations. 
 
24. Thank you for your patience and attention.  I look forward to answering your questions. WT/DS404/R  
Page C-8 
 
 
  ANNEX C-2 
  
CLOSING STATEMENT OF VIET NAM AT THE  
FIRST MEETING OF THE PANEL 
 
 
1. As we went through this firs t meeting with the Panel, I thou ght that the process worked very 
well and I think that we had a good dialogue, with th e third parties adding to that dialogue this 
morning.  What I want to come back to are just a few of the major points which I think are relevant.  
 
2. First, we have been discussing the exception to the rule contained in Article 6.10.  What I would like to make sure of is that we not miss th e forest for the trees on this issue, because in these 
sessions we tend to get so deep into the tress.  A couple of observations.  First, the limitation on the 
number of respondents should not be looked at in isolation from the rest of the Anti-Dumping Agreement.  There is an agreement, the agreem ent is affecting many foreign exporters, and the 
exception to the general rule has to be read in the context of the entire agreement, as well as the 
context of that rule.  Our concern is whether the exception provided in article 6.10 can be implemented in a way that ignores other obligations in  the agreement.  We can talk about what are the 
constraints on the U.S. or whether they can take  voluntary respondents.  The relevant question, 
however, is who has responsibility at the end of the da y to ensure there is compliance with the overall 
object and purpose of the agreement and the spec ific obligations of the Agreement outside of 
Article 6.10.  The point we are trying to make is not that the U.S. is required to investigate every 
exporter or producer, but that if the U.S. chooses no t to, it must determine how to do so while still 
fulfilling its other obligations under the agreement.  The U.S. can not use this exception to justify 
actions which are otherwise incons istent with the agreement.  
 
3. The other issue to consider with regard to th e exception to the general rule in Article 6.10 is 
the concern that if one reads the exception in isol ation and do not put a burden on the authorities to 
meet its other obligations under the agreement, authorities could use the exception to essentially 
override other obligations, crea ting an enormous loophole for authorities to use to avoid the 
obligations of the agreement.  
4. On the country-wide rate, the real issue is wh ether there is the authority in the agreement to 
apply an adverse facts available rate to companies simply because they are go vernment controlled.   
 
5. Going back to my earlier comment that justice delayed is justice denied, I want to give you a 
sense of what happens as a practical matter.  The U. S., justifiably under the agreements, only applies 
panel reports or AB reports prospectively.  When  a review is completed, the U.S. immediately 
liquidates those entries; once those entries are liquidated, they are gone forever and cannot be retrieved, regardless of whether a WTO decision against the method of calculation of duties has been 
made.  You can prevent liquidation only by appeali ng to the United States Court of International 
Trade (CIT).  If you have an appeal pending, the CIT will enjoin liquidation of those entries pending 
resolution of the litigation, a process that generally takes one to three years, assuming an appeal from 
the CIT to the Court of Appeals for the Federal Ci rcuit.  There is no provision under U.S. law to 
enjoin the liquidation of entries pending a WTO a ppeal.  So respondents have a one to three year 
window, if they are willing to go to U.S. courts a nd have a claim under U.S. law, to enforce a WTO 
report which disagrees with the action of the U.S. aut horities.  Our concern, which is why we look at 
the continued practices measure, is that often the WTO dispute settl ement and implementation process 
is completed too late for foreign respondent to get their duties back.  Thus, respondents have a WT/DS404/R 
Page C-9 
 
 
  wonderful moral victory, but at the end of the da y there is no actual benefit obtained from the WTO 
proceeding.  
 6. Finally, I want to mention Article 11 of the DSU.  There must be some security and 
predictability in the system.  When, as the EU  expressed it, there is a practice embedded in a 
particular proceeding, producers a nd exporters have to make a decision:  am I to assume that the 
practice will go on forever, or that somehow it will be  changed.  The issue is fundamental:  how does 
a company know, if it wants to avoid payment of dum ping duties, whether or not it is dumping.  We 
need the provisions of the agreement interpreted so that all parties understand the rules of the game.  
This makes it extraordinarily important that when pane ls confront questions of interpretation, that the 
panels understand and articulate th e interpretation in a manner which both the respondents and the 
authorities can understand and implement.  I know that  we have a number of complicated issues, such 
as the all others rate and the country-wide rate, and ask that the panel deal with each of these issues as 
thoroughly and completely as possible.    
7. Viet Nam would like to again thank the panel and the Secretariat for its continuing work on 
the issues being presented to it.  WT/DS404/R  
Page C-10 
 
 
  ANNEX C-3 
  
EXECUTIVE SUMMARY OF THE OPENING STATEMENT  
OF THE UNITED STATES AT  THE FIRST MEETING  
OF THE PANEL 
 
 
1. The U.S. First Written Submission provides a de tailed response to the arguments raised in 
Vietnam's First Written Submission.  Today we will highlight several important issues.  At the outset, it is important to have a clear understanding of exactly  what Vietnam is asking the Panel to do in this 
dispute.  Rather than advance an argument based  on the plain meaning of the rules agreed among the 
Members of the WTO, and accepted by Vietnam when  it acceded to the WTO in 2007, Vietnam asks 
this Panel to accept interpretations of those rul es that have little connection with how they are 
properly understood in light of their ordinary meaning,  read in context, and in light of the object and 
purpose of the agreements at issue.  In numerous in stances in this dispute, Vietnam asks the Panel to 
rewrite or ignore provisions of the WTO agreements and disregard key facts.  For example: 
 
 Vietnam asks the Panel to ignore the requirements of Article 6.2 of the DSU, and the 
Panel's own terms of reference, to overc ome the shortcomings of Vietnam's panel 
request, urging the Panel to make findings with respect to a so-called "measure" that 
Vietnam did not identify until its First Written Submission; 
 
 Vietnam asks the Panel to find that the Un ited States breached its WTO obligations 
by employing the zeroing methodology in review proceedings, despite the absence of any language in the covered agreements  imposing such a general prohibition of 
zeroing in reviews.  Moreover, Vietnam h as failed to demonstrate how it has been 
affected by any application of the "zeroing" methodology when, in fact, all calculated 
margins of dumping in the review proceedings subject to this dispute were zero or de minimis ; 
 
 Vietnam asks the Panel to disregard the non- market nature of Vietnam's economy and 
impose on WTO Members an obligation to calculate a dumping margin for any 
company that requests one, regardless of the company's business affiliations or the 
government's influence over the company's export activities, when no such obligation 
exists in the AD Agreement;  
 
 Vietnam invites the Panel to create a host of new obligations for WTO Members 
faced with large numbers of exporters or producers in antidumping proceedings, 
including a requirement to examine all companies without regard for the 
government's limited resources; a numerical  cap on the frequency with which a WTO 
Member may exercise the right to limit the examination; an extremely narrow 
definition of what constitutes "necessary in formation"; and additional requirements 
for the calculation of a ceiling rate for non- examined companies that simply have no 
support whatsoever in the text of the AD Agreement; 
 
 Vietnam argues that measures put into place prior to Vietnam's accession to the WTO 
– when, as Vietnam has recognized, th e United States "had no obligation to 
Viet Nam" – should retroactively be found inconsistent with the WTO Agreement 
because they continue to be applied, d espite the AD Agreement's express exemption 
of such measures from its application; WT/DS404/R 
Page C-11 
 
 
   And Vietnam asks the Panel to find, with respect to the so-called "continued use 
measure," that the United States has violated, or  is violating, or perhaps in the future 
will violate its WTO obligations, but Vietnam has failed to demonstrate, for any 
proceeding within the Panel's terms of refe rence, that the Unit ed States has acted 
inconsistently with any WTO obligations, and Vietnam certainly cannot establish a 
"string" of violations over an "extended period of time." 
 
2. In sum, Vietnam is asking the Panel to impose on the United States obligations found 
nowhere in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994  ("AD Agreement") or the General Agreement on Tariffs and Trade 1994  ("GATT 1994").  
If accepted, Vietnam's interpretations would ser iously undermine the ability of investigating 
authorities to conduct antidumping examinations, partic ularly when they are faced with incomplete 
information, uncooperative interested parties, and large numbers of respondent firms.  The 
United States thus respectfully urges th e Panel to reject Vietnam's claims. 
 
I. REQUESTS FOR PRELIMINARY RULINGS 
 
3. Investigation and First Administrative Review :  The United States appreciates the 
clarification in Vietnam's written response to the U. S. requests that Vietnam is not alleging that the 
original investigation or first administrative revi ew are within the Panel's terms of reference. 
However, given the inconsistency between the panel request and Vietnam's First Written Submission 
with regard to the measures at issue, it is important  to clarify the matter in dispute at the outset of 
these proceedings.  
4. Vietnam's written response to the U.S. prelimin ary ruling requests suggests that, "to the extent 
that these measures [the investigation and first admi nistrative review] served as the basis for measures 
applied after Vietnam's accession to the WTO and ar e inconsistent with U.S. obligations under the 
Agreement at that time, the consistency of the measur es in the investigation and first review with U.S. 
obligations after Vietnam's accession are relevant to the panel's inquiry."  Vietnam appears to 
formulate this issue incorrectly.  As Vietnam co ncedes, the United States "had no obligation to 
Viet Nam at the time it applied these measures."  Thus, "the consistency of the measures in the 
investigation and first review with U.S. obligations" is not relevant to  the panel's inquiry, either "after 
Viet Nam's accession" or at any other time. 
 
5. Article 18.3 of the AD Agreement strictly limits the application of the AD Agreement "to 
investigations, and reviews of exis ting measures, initiated pursuant to  applications which have been 
made on or after the date of entry into force for a Member of the WTO Agreement."  As the panel in  
US – DRAMS  explained, "pre-WTO measures do not beco me subject to the AD Agreement simply 
because they continue to be applied on or after the date of entry into force of the WTO Agreement for 
the Member concerned."2  
 
6. The two measures subject to this dispute are the final determinations in the second and third 
administrative reviews.  The Panel must assess whethe r those determinations – not the determinations 
made prior to Vietnam's WTO accession – are consiste nt with U.S. WTO obligations.  This is more 
than a mere "semantic" disagreement.  Thus, the Un ited States respectfully reiterates its request that 
the Panel find that the AD Agreement does not apply to the determinations ma de in the investigation 
and the first administrative review. 
 
7. In addition, the U.S. First Written Submission explained that the investigation is not within 
the Panel's terms of reference because it was not a subject of consultations.  The United States notes 
that Vietnam did not respond to the U.S. argument in  this regard in its wr itten response to the U.S. 
                                                      
2 US – DRAMS , para. 6.14. WT/DS404/R  
Page C-12 
 
 
  preliminary ruling requests.  The Panel should therefore find that the investigation is not within its 
terms of reference. 
 8. The "Continued Use of Challenged Practices" :  There is an additional inconsistency 
between Vietnam's panel request and Vietnam's Firs t Written Submission with regard to the measures 
at issue in this dispute.  Vietnam's First Writte n Submission identifies as one of the "measures at 
issue" in this dispute what it describes as "the c ontinued use of the challenged practices in successive 
antidumping proceedings under this order."  Howe ver, as explained in the U.S. First Written 
Submission, this so-called "measure" was not identif ied in Vietnam's panel re quest, and thus it is not 
within the Panel's terms of reference. 
 9. Vietnam's arguments in its written response to the U.S. preliminary ruling requests are 
unavailing.  First, Vietnam itself does not point to an y identification of such a "measure" in its panel 
request, but rather appears to argue that it was im plicit and the reader should infer such a measure 
from the identification of other, specific measures.   Article 6.2 of the DSU requires a complaining 
party to "identify the specific measures at issue."  Identifying certain specific measures does not mean 
that an additional, separate meas ure has also been identified.  
 
10. Vietnam may describe the measures it seeks to challenge in the manner and using the words 
that Vietnam chooses.  However, the description Viet nam presents in its panel request must "identify 
the specific measures at issue and provide a brie f summary of the legal basis of the complaint 
sufficient to present the problem clearly."   
 11. Vietnam's panel request individually id entified each proceeding related to shrimp 
antidumping duties that had at the time of the panel request been initiated – the investigation, each of 
the four periodic reviews, and the five-year sunset review.  Vietnam asserts that this list served "to 
illustrate the continuous and on going nature of the challenged practices since imposition of the 
antidumping duty order."  Contrary to this asserti on, however, the panel request expressly limits the 
measures at issue to the specific "determinations" iden tified in the list at the beginning of Section 2.  
Throughout the document, Vietnam's panel request limits itself to the application of laws and 
procedures in the determinations individually identif ied.  There is no indication in the panel request 
that Vietnam seeks to challenge a so-called "continued use" measure. 
 
12. Vietnam itself draws distinctions between the "as applied," "as such," and "continued use" concepts, asserting that a "[continued use] measure is certainly more broad than an 'as applied' 
measure, but narrower than a generally applicable 'as such' measure."  To the extent that such a 
"continued use" measure can even be deemed to ex ist – and the United States strongly disagrees that it 
can – since it "may fall in the cross-section" of pr eviously understood concepts, it is insufficient to 
identify a selection of "as applied" measures and e xpect that, through implication, a "continuing 
measure" will be understood to also be a subject of the dispute.  
13. The only evidence to which Vietnam points in addition to the list of "as applied" measures is 
the discussion in the panel request of the legal basis for Vietnam's claim against the "initiation" of the 
sunset review.  However, this simply serves to highlight the absence of any indication in the panel 
request that Vietnam intended to ch allenge a "continued use" measure.  
 
14. The issue before the Panel is not whether Vietnam used the precise language adopted by the 
European Communities in  US – Continued Zeroing .  The issue is whether Vietnam's panel request 
met the requirements of Article 6.2 of the DSU.  It did not.  Consequently, the United States 
respectfully requests that the Panel find that the so- called "continued use" meas ure is outside its terms 
of reference.  WT/DS404/R 
Page C-13 
 
 
  15. On the separate question of whether "con tinued use" can constitute a measure, the 
United States recognizes that, in  US – Continued Zeroing , "the Appellate Body held that the ongoing 
conduct constituted a measure with prospective effect."  The Unite d States has concerns with the 
Appellate Body's reasoning in that dispute, but believes that the reasoning of the panel in Upland 
Cotton  is sound.3   
 
16. We also explained in the U.S. First Written Submission that the "continued use of challenged 
practices" appears to be composed of an indeterm inate number of potential future measures that did 
not exist at the time of Vietnam's panel request  (and may never exist).  Thus, such so-called 
"continued use" could not be impa iring any benefits accruing to Vietnam, and therefore cannot be 
subject to WTO dispute settlement.  Furthermore, to the extent that the "continued use" measure 
consists of proceedings that had not resulted in final action to levy definitive antidumping duties or 
accept price undertakings at the time of the cons ultations request, Article 17.4 of the AD Agreement 
precludes dispute settlement with respect to such a measure.  These are additional reasons for the 
Panel to find that Vietnam's clai ms concerning the "continued use of challenged practices," including 
the fourth administrative review, the fifth administra tive review, and the sunset review, are not within 
its terms of reference.  II. VIETNAM'S CLAIMS REGARDING "ZEROING" ARE WITHOUT MERIT 
 
17. The U.S. First Written Submission begins by sta ting that "[t]his is not merely another zeroing 
dispute."  It is not.   
 18. Unlike in other disputes, in the second and th ird administrative reviews, which are the only 
measures properly before this Panel, zeroing, as a factual matter, had no impact on the margins of 
dumping determined for individually examined expor ters or producers, and the zeroing methodology 
was not used during the proceedings in order to de termine the separate rates applied to companies not 
individually examined.  
19. The prohibition of zeroing in administrative reviews, if one exists, is a prohibition against 
imposing antidumping duties in excess of the margin  of dumping.  That is the obligation in 
Article VI:2 of the GATT 1994 and Article 9.3 of  the AD Agreement.  All the calculated dumping 
margins in the second and third admi nistrative reviews were zero or de minimis .  Thus, as a factual 
matter, Vietnam has failed to demonstrate that the United States has acted inconsistently with these 
provisions of the WTO Agreement. 
 
20. It appears to the United States that the Panel can resolve this dispute based on these facts, and 
it is thus not necessary for the Panel to make any findings on the legal permissibility of zeroing 
generally. 
 21. On the question of the legal permissibility of  zeroing, we have no doubt that all here are 
aware of the Appellate Body reports that have found zeroing in reviews inconsistent with the 
requirements of the covered agreements.  The Un ited States has serious concerns about these 
Appellate Body reports and believes that they are incorrect.   
 22. It is a fundamental principle of the customar y rules of interpretation of public international 
law that any interpretation must address the text  of the agreement and may not impute into the 
                                                      
3 See US – Upland Cotton (Panel) , paras. 7.158-7.160;  see also US – Continued Zeroing (Panel) , 
para. 7.61 (finding that "the European Communities failed to identify the specific measure at issue in connection 
with its claims regarding the continued application of the 18 anti-dumping duties at issue.") ( reversed on 
appeal ). WT/DS404/R  
Page C-14 
 
 
  agreement words and obligations that are not there.4  Relying upon these past Appellate Body reports, 
Vietnam asks the Panel to interpret the AD Agreemen t to include a general prohibition of zeroing that 
is based upon the concept of "product as a whole."  Th at term cannot be found anywhere in the text of 
the AD Agreement or the GATT 1994.  In contrast to the Appellate Body, all dispute settlement 
panels that have addressed this question have agreed  with the United States that there is no prohibition 
of zeroing in proceedings beyond the original investigation.5 
 
23. The rights and obligations of WTO Members fl ow, not from panel or Appellate Body reports, 
but from the text of the covered agreements.  Ar ticle 11 of the DSU plainly requires each panel to 
make its own objective assessment of the matter befo re it, including an objective assessment of the 
facts and the applicability of and conformity with the relevant covered agreements.  Further, in 
settling disputes among Members, pursuant to Articles 3.2 and 19.2 of the DSU, WTO dispute 
settlement panels and the Appellate Body "cannot add to or diminish the rights and obligations 
provided in the covered agreements."  
24. The United States will not repeat today all of  our arguments concerning "zeroing," which we 
have explained in detail in the U.S. First Written S ubmission.  Should the Panel reach the question of 
the legal permissibility of "zeroing," however, we re iterate our respectful request that this Panel make 
its own objective assessment of the matter before it and refrain from adopting Vietnam's incorrect 
interpretation of the covered agreem ents.  We urge this Panel to re main faithful to the text of the 
AD Agreement and respectfully request that you find that the approach taken by the United States in 
the challenged proceedings rests upon a permissible interpretation in accordance with the customary 
rules of interpretation of public international law.    III. VIETNAM'S CLAIMS REGARDING THE "COUNTRY-WIDE" RATE ARE 
WITHOUT MERIT 
 
25. Vietnam's claims concerning the assessm ent rates Commerce determined for the 
Vietnam-wide entity in the second and third administrative reviews are without merit.  This is yet 
another instance of Vietnam asking the Panel to create new rules and obligations that have no basis in 
the covered agreements.  
26. As explained in the U.S. First Written Subm ission, the terms "exporter" and "producer" are 
not defined in the AD Agreement, and the ag reement does not establish any criteria for an 
investigating authority to examine in order to de termine whether a particular entity constitutes an 
"exporter" or "producer."  As a threshold ques tion in an antidumping pr oceeding, investigating 
authorities must identify the exporters and producers subject to examination.  This question must be 
addressed in all antidumping proceedings, both tho se involving market economies and those involving 
non-market economies. 
 27. As the panel in Korea – Certain Paper  found, depending on the facts of a given situation, an 
investigating authority may determine, consistent wi th Article 6.10 of the AD Agreement, that legally 
distinct companies should be treated as a singl e "exporter" or "producer" based upon their activities 
and relationships.  Thus, affiliated companies, such  as a parent company and its subsidiaries, may be 
collapsed and treated as a single entity.  Likewise, companies subject to government influence, in 
particular over their export activities, may be tr eated as a single entity and subject to a single 
antidumping rate. 
                                                      
4 India – Patents (AB) , para. 45. 
5 US – Stainless Steel (Mexico) (Panel) , paras. 7.61, 7.149;  US – Zeroing (Japan) (Panel) , 
paras. 7.216, 7.219, 7.222, 7.259;  US – Softwood Lumber V (Article 21.5) (Panel) , paras. 5.65, 5.66, 5.77;  US – 
Zeroing (EC) (Panel) , paras. 7.223, 7.284;  see also US – Continued Zeroing (Panel) , paras. 7.169 and n.131 
(explaining that the panel generally "found the reasoning of  the earlier panels on these issues to be persuasive"). WT/DS404/R 
Page C-15 
 
 
  28. In this case, the evidence on th e record demonstrated that the nature of Vietnam's economy, in 
particular the control exercised by the Governme nt of Vietnam over its economy, including decisions 
concerning pricing and exportation, justified Commer ce's determination that Vietnamese companies, 
in the absence of evidence demonstrating independe nce from such government control, were part of 
an entity that constitutes a single exporter or prod ucer subject to a single assessment rate.  This 
determination was consistent with  the meaning of the terms "exporter" and "producer," as they are 
used in Article 6.10 of the AD Agreement.  It is also consistent with the recognition by WTO 
Members at the time of Vietnam's accession to the WTO that Vietnam is continuing the process of 
transition towards a full market economy, and that mo re reforms are needed for Vietnam's economy to 
operate fully on market principles. 
 29. After Commerce determined that the Vietna m-wide entity was an individual exporter or 
producer, Commerce treated that entity just like any other exporter or producer being examined under 
Article 9 of the AD Agreement.  When the entity fa iled or refused to provide information requested, 
Commerce relied upon the facts available, consis tent with Article 6.8 and Annex II of the 
AD Agreement.  This is neither discriminatory tr eatment nor out of the ordinary, as Vietnam has 
suggested.    
30. Vietnam asks the Panel to create a new rule barring investigating authorities from taking into 
account the relationships between companies and th e influence of the government when identifying 
exporters or producers.  There is simply no textual basis for such a rule in  the AD Agreement.  Of 
additional concern, such a rule would undermine the effectiveness of antidumping remedies because 
related companies and companies influenced by  the government could circumvent antidumping 
measures by routing exports through companies with the lowest dumping margins to avoid paying 
antidumping duties and to avoid posting security to  guarantee payment.  Imposing such a new rule 
would seriously alter the balance of rights and oblig ations established in the AD Agreement, and that 
simply is not permitted by the DSU. 
 31. Vietnam further attempts to limit the ability of investigating authorities to rely on facts 
available by asking the Panel to narrowly define the term "necessary information" such that it 
encompasses only that information used to calculate dumping margins.  Again, there is no support in the text of the AD Agreement for Vietnam's position.  As the panel in Egypt – Steel Rebar  correctly 
found, "it is left to the discretion of an investigati ng authority, in the first instance, to determine what 
information it deems necessary for the conduct of its i nvestigation (for calculations, analysis, etc.) ...."  
In this case, the information that Commerce requested  was necessary in order to define the pool from 
which Commerce selected the largest exporters, and the information also represented the data 
necessary for determining a company's export price, once selected for individual examination.  Where 
companies failed or refused to provide this info rmation, Commerce necessarily relied upon the facts 
available to complete its analysis.  There is no justification for tying the hands of investigating 
authorities and preventing them from doing their work, which is what Vietnam is asking this Panel to do. 
 
IV. VIETNAM'S CLAIMS REGARDING LIMITING THE NUMBER OF 
RESPONDENTS SELECTED ARE WITHOUT MERIT 
 
32. Vietnam advances a number of claims con cerning Commerce's determinations to limit its 
examination under Article 6.10 of the AD Agreement.  Vietnam's claims amount to a broad-based 
attack on the right of WTO Members' investigating authorities to limit their examinations consistent 
with the AD Agreement.  Once again, Vietnam invites this Panel to create new obligations, restrict the 
rights of WTO Members, and alter the balance of rights and obligations established by the 
AD Agreement.  The Panel should decline Vietnam's invitation.  WT/DS404/R  
Page C-16 
 
 
  33. Article 6.10 of the AD Agreement allows Me mbers to determine individual margins of 
dumping for a reasonable  number of exporters and producers, a nd does not require the determination 
of an individual margin of dumping for all exporters and producers, where a large number of 
exporters and producers is involved.  The only c ondition for limiting an examination is that the 
number of exporters or producers must be so large as to make a determina tion of individual margins 
of dumping for all exporters or producers "impracticable."   
 
34. Article 6.10 does not define the term "imprac ticable."  The ordinary meaning of the term 
"impracticable" is "unable to be carried out or do ne; impossible in practice," or "incapable of being 
performed or accomplished by the means employed or at command."  Vietnam incorrectly argues, 
contrary to the panel's findings in EC – Salmon (Norway) , that a determination to limit an 
examination must be based solely upon the number of companies involved in the proceeding, without 
regard to an investigating authority's resources.  Article 6.10 permits an authority to limit its 
examination when it is impracticable to individually  examine all parties involved in an investigation 
because the authority lacks the resources to do so.   
 
35. Here, Commerce explained why it was necessar y to limit the examination, noting the large 
number of companies involved, and providing an anal ysis of Commerce's available resources.  Based 
upon this analysis, Commerce determined that it woul d be impracticable to individually examine all 
of the companies involved.  There simply is no merit to Vietnam's claim that Commerce improperly 
limited its examination. 
 
36. Vietnam also asks this Panel to add to th e AD Agreement a new rule imposing a numerical 
limit on the right of WTO Members to limit the examination, and to find that Commerce has 
surpassed that numerical limit.  Otherwise, in Vi etnam's view, "the exception" would become "the 
rule."  On its face, Article 6.10 of the AD Agreement contains no such numerical limitation.  Any 
time the conditions in Article 6.10 are satisfied  – that is, whenever the number of exporters, 
producers, importers or types of products involved is so large as to make individual dumping margin 
determinations for all companies "impracticable" – an  authority may limit its examination.  That is the 
rule to which the WTO Members, including Viet nam, agreed.  The Panel should again decline 
Vietnam's invitation to establish a different rule.    
37. Vietnam also alleges that Commerce acted inconsistently with Article 6.10.2 of the 
AD Agreement by not determining individual dumping margins for companies that voluntarily submitted necessary information.  Article 6.10.2 re quires an authority to determine an individual 
margin of dumping for such company only where the amount of companies involved is not so large as 
to make an individual determination for each co mpany that voluntarily submits information "unduly 
burdensome."  The investigating authority must determine, based on the number of companies 
involved and its own resources and capabilities, whethe r determining individual margins for voluntary 
respondents would be unduly burdensome or, in some instances, simply not possible.  
 
38. Here again, though, as a factual matter, ther e cannot have been any violation.  No company 
voluntarily provided the necessary information in the second and third administrative reviews.  Thus, 
Commerce could not have acted inconsistently with Article 6.10.2. 
 39. Vietnam makes claims under a number of other provisions concerning Commerce's 
determinations to limit its examination.  These ar e all addressed in detail in the U.S. First Written 
Submission.  All of these other claims, though, ar e dependent on Vietnam's primary claim that the 
United States acted inconsistently with Article 6.10.   As we have demonstrated, there is no merit to 
that claim. WT/DS404/R 
Page C-17 
 
 
  V. VIETNAM'S CLAIMS REGARDING THE SEPARATE RATE APPLIED TO 
COMPANIES NOT INDIVIDUALLY EXAMINED ARE WITHOUT MERIT 
 
40. When an investigating authority limits its  examination pursuant to Article 6.10 of the 
AD Agreement, as Commerce properly did in the second and third administrative reviews, the 
question arises, what assessment rate is to be applied to the non-examined companies?  On this 
question, Article 9.4 of the AD Agreement provides that the maximum antidumping duty that may be 
applied to non-examined companies is the wei ghted average margin of dumping determined for 
examined companies, excluding any zero and de minimis  margins, and margins based on facts 
available. 
 41. Article 9.4 does not specify what the maximum antidumping duty is that may be applied to 
non-examined companies when all th e rates determined for examined companies fall into one of the 
three categories that, by rule, must be disregarded in the calculation of the ceiling rate.  
 
42. Faced with this situation in the second and th ird administrative reviews, Commerce relied on 
either a weighted average of dumping margins calculated for exporters and producers individually 
examined in the most recently comple ted proceeding, excluding any zero and de minimis  margins and 
margins based on facts available, or a compan y-specific rate from a more recently completed 
proceeding where such a rate had been determined fo r a company.  In the absence of any obligation, 
the separate rates Commerce applied to non-examin ed exporters and producers in the second and 
third administrative reviews cannot be deem ed inconsistent with the Agreement. 
 43. Once again, however, Vietnam asks the Panel to create a new rule and require Commerce to 
"recalculate the all-others rate using a weighted-average of the individually reviewed 
exporters/producers for the contemporaneous phase of the proceeding."  Nothing in the text of 
Article 9.4 supports any such requirement.  In addition, Vietnam argues that the investigating 
authority should be required to exclude dumping ma rgins based on facts available from the weighted 
average, but include zero or de minimis  margins.  The self-serving nature of Vietnam's proposal is 
obvious, and Vietnam's position simply is not credible. 
 44. Also not credible is Vietnam's assertion that, because the separate rates applied to non-
examined companies had "no basis in the relevant period of review," Commerce's approach "unfairly 
prejudiced" the companies that were not individually examined.  However, it is in the nature of an 
antidumping duty determined pursuant to Article 9.4 for companies that were not individually 
examined that the rate applied will not be b ased on the actual commercial behaviour of the non-
examined companies.  Certainly, where contempor aneous dumping margins are determined and those 
margins are not zero, de minimis , or based on facts available, such margins must be used to calculate a 
ceiling per the terms of Article 9.4.  In the absen ce of such margins, Article 9.4 does not impose a 
ceiling.     
45. Vietnam also argues that the separate rates Commerce applied to companies that were not 
individually examined were inconsistent with  the covered agreements because the rates were 
calculated using the zeroing methodology.  As a factual matter, the zeroing methodology was not 
employed during the second and third administrativ e reviews when Commerc e applied the separate 
rates to companies that were not individually examined.   
 
46. The calculations that Commerce performed in th e investigation to determ ine the separate rates 
were not subject to any re-examination in the second and third administrative reviews.  Commerce 
made no new comparisons between the export price a nd the normal value.  Commerce simply applied 
a previously calculated rate to respondents that  demonstrated sufficient independence from the 
government during the second and third administrative reviews.   
 WT/DS404/R  
Page C-18 
 
 
  47. Vietnam's argument is dependent upon its clai m that Commerce acted inconsistently with the 
AD Agreement when it calculated margins of du mping based on the zeroing methodology in the 
original investigation.  As explained, that de termination was not subject to the AD Agreement and 
cannot have been inconsiste nt with the AD Agreement. 
 
48. Here again, Vietnam asks the Panel to ignor e the text of the AD Agreement, specifically the 
limitation of the application of the AD Agreem ent in Article 18.3.  Because Commerce simply 
continued to apply rates determined prior to the en try into force of the WT O Agreement for Vietnam, 
and did not utilize the zeroing methodology during second and third administrative reviews in the 
application of those rates, the Panel should rej ect Vietnam's zeroing-related claims against the 
separate rates Commerce app lied in the second and third administrative reviews. 
 VI. VIETNAM'S CLAIM WITH RESPECT TO THE CONTINUED USE OF 
CHALLENGED PRACTICES IS WITHOUT MERIT 
 49. Finally, Vietnam argues that Commerce "has utiliz ed the challenged practices in an original 
investigation, four consecutive administrative review s, and in the preliminary results of the ongoing 
sunset review," and this "continued use" is incons istent with various provisions of the AD Agreement 
and the GATT 1994.   
 50. Vietnam did not identify the "continued use of  the challenged practices" as a measure in its 
panel request, and thus no such measure is within the Panel's terms of reference.  The United States 
also has serious concerns about the Appellate Body's finding in  US – Continued Zeroing that 
"continued use" can constitute a measure subject to WTO dispute settlement.  In any event, however, 
Vietnam's argument is premised on its assertion that  such "continued use" constitutes an "ongoing 
conduct."  Even were this a cognizab le claim, once again the facts belie a conclusion that Vietnam has 
demonstrated the existence of such "ongoing conduct" in this dispute.   
 51. In  US – Continued Zeroing , the Appellate Body found that the record supported findings of 
inconsistency in only four of the eighteen cases challe nged.  As a factual matter, in the fourteen other 
cases, the record did not reflect that "the zeroi ng methodology was repeatedly used in a string of 
determinations made sequentially in periodic reviews and sunset re views over an extended period of 
time."  In each of the four cases where the Appellate  Body concluded that there was "a sufficient basis 
... to conclude that the zeroing methodology woul d likely continue to be applied in successive 
proceedings," the panel had found the following:  (1) the use of the zeroing methodology in the initial 
less than fair value investigation; (2) the u se of the zeroing methodology in four successive 
administrative reviews; and (3) reliance in a sun set review upon rates dete rmined using the zeroing 
methodology. 
 
52. In this dispute, Vietnam cannot demonstrat e a string of determinations over an extended 
period of time.  The original investigation, the firs t, fourth, and fifth administrative reviews, and the 
sunset review are not properly before the Panel a nd there can be no finding of inconsistency in 
connection with those proceedings.   
 
53. Additionally, Vietnam has failed to establish that "zeroing" had any impact on the margins of 
dumping calculated in the second and third admini strative reviews, and Vietnam has failed to 
establish as a factual matter that Commerce used  the zeroing methodology in connection with the 
application of a dumping margin to separate rate  respondents in those proceedings, or to the 
Vietnam-wide entity.  Hence, with respect to Comme rce's use of zeroing, Vietnam cannot establish "a 
string of determinations, made sequentia lly ... over an extended period of time."  
 54. Vietnam also seeks to expand the Appellate Body's reasoning in  US – Continued Zeroing 
beyond zeroing to encompass the other "challenged prac tices."  Vietnam's claims regarding the other WT/DS404/R 
Page C-19 
 
 
  "challenged practices" are w ithout merit, and Vietnam cannot esta blish "a string of determinations, 
made sequentially... over an extended period of time." 
 
VII. CONCLUSION 
 
55. As we demonstrated in the U.S. First Wr itten Submission and again this morning, Vietnam 
has pursued claims that are not within the Panel's terms of reference, advanced arguments that lack 
factual support, and invited the Panel to invent ne w obligations that have no basis in the covered 
agreements.  Consequently, for the reasons we have given, the United States respectfully requests that 
the Panel grant the U.S. preliminary ruling requests and reject Vietnam's claims that the United States 
has acted inconsistently with the covered agreements.  WT/DS404/R  
Page C-20 
 
 
  ANNEX C-4 
  
CLOSING STATEMENT OF THE UNITED STATES  
AT THE FIRST MEETING OF THE PANEL 
 
 
1. The United States has only a few brief closing comments.  This dispute, like all WTO 
disputes, is about the meaning of the covered agreem ents and the content of the obligations that WTO 
Members have accepted by joining the WTO.  Vietnam seeks to alter the meaning of the covered 
agreements by departing from the accepted rules of treaty interpretation and by inventing obligations 
found nowhere in the text of any covered agreement.   At the same time, Vi etnam seeks to avoid its 
own obligations to identify the specific measures at issue in the panel request, to present factual 
evidence that supports its claims, and to have its e xports subjected to the rules-based disciplines of the 
AD Agreement.  
2. The Panel is charged with making an obj ective assessment of the matter before it and 
clarifying the existing provisions of the covered ag reements in accordance with customary rules of 
interpretation of public international law.  Correct application of the customary rules of interpretation 
ensures the security and predictability of the multilateral trading system.   
 
3. At the beginning and at the end of this Panel's analysis is the text of the covered agreements.  
In its closing statement, Vietnam lamented that  our discussion over the past two days got "bogged 
down by the text."  Vietnam suggested that we "should not miss the forest for the trees."  The "trees" 
here, though, is the text of the covered agreements .  It is imperative that the Panel not miss these 
"trees."    
4. The question before the Panel is:  Does th e text require what Vietnam contends the 
United States is obligated to do?  For each claim Vietnam has made, the answer is no.  Vietnam has 
failed to establish that the United States has acted in consistently with any provision of any covered 
agreement.  There simply is no support, either in fact or in the text of the covered agreements, for 
Vietnam's claims.  
5. We would like to offer the Panel just two exam ples from this first m eeting, which we believe 
shed light on what Vietnam is attempting to do in this dispute.  First, Vietnam's discussion yesterday 
afternoon of the meaning of Article 9.4 of the AD Agre ement is a clear example of its attempts to add 
to the AD Agreement new rules that are unsupported by  the text and were never agreed by Members.  
Vietnam appears to agree with the United States th at when all the margins of dumping determined for 
examined exporters or producers are zero, de minimis , or based on facts available, pursuant to the 
express terms of Article 9.4 it is not possible to calculate a maximum for the amount of duty that may be applied to non-examined entities.  In such a case,  however, Vietnam posits that Article 9.4 imposes 
the following specific obligations on Members: 
 
 the antidumping duty applied must be based solely on calculated rates and may not be 
based upon or utilize the facts available; 
 
 the antidumping duty applied must be a calculated rate based on contemporaneous 
data (though, Vietnam appeared later to have conceded that this was not required in 
all cases); 
 WT/DS404/R 
Page C-21 
 
 
   if not contemporaneous, the rate applied must be recalculated and subject to scrutiny, 
even if at the time the prior rate was calculated, by rule it could not have been 
inconsistent with any obliga tion under the WTO agreements; 
 
 the antidumping duty applied may only be applied to "individual," non-examined 
firms, and not groups of firms identified as a single exporter or producer;  and 
 
 the antidumping duty applied is subject to  a reasonableness test, or an abuse of 
discretion test, or an "unbridled discreti on" test, or possibly all of these tests 
simultaneously. 
 
 During the afternoon session yesterday, Vietnam, at one time or another, asserted that 
Article 9.4 of the AD Agreement requires all of these things.  Not once, however, did Vietnam identify any text in Article 9.4 that establishes any of these requirements.  The explanation for this is 
simple:  there is no text in Article 9.4 that estab lishes any of these requirements.  Indeed, Article 9.4 
does not address the issue of how to calculate the rate to be applied.  Article 9.4 simply provides for a 
ceiling on that rate.  
 
6. Throughout Vietnam's First Written Submission, its opening statement at this hearing, and its 
responses to questions, Vietnam has presented arguments  that simply are divorced from the text of the 
covered agreements.  A second, striking example:  at paragraph 74 of Vietnam's opening statement, 
Vietnam asserted, with respect to Article 6.10.2 of the AD Agreement, that "the 'undue burden' 
standard discussed by the United States has no b asis in the Anti-Dumping Agreement."  The best 
response we can offer to this is the text of Article 6.10.2 itself:   
In cases where the authorities have limited th eir examination, as provided for in this 
paragraph, they shall nevertheless determin e an individual margin of dumping for any 
exporter or producer not initially selected who submits the necessary information in 
time for that information to be consider ed during the course of the investigation, 
except where the number of exporters or producers is so large that individual examinations would be unduly burdensome  to the authorities and prevent the timely 
completion of the investigation.  Vol untary responses shall not be discouraged. 
(emphasis added) 
 The words "unduly burdensome" are right there in the text.   
 
7. Throughout its claims and arguments, Viet nam is asking the Panel to read into the 
AD Agreement words that are not there, and read out of the AD Agreement words that are there.  This 
is wholly inconsistent with the rules of treaty in terpretation.  The text of  the covered agreements, 
which Vietnam seeks to alter or avoid, is determinativ e of the issues in this dispute.  If that text is 
properly interpreted, Vietnam's arguments must be rejected.  
 8. The United States recognizes that  the Panel is only at the beginni ng of its work.  We hope that 
the U.S. First Written Submission and our presentation over these past two days have been helpful for 
you.  We look forward to receiving the Panel's wr itten questions.  Once again, the United States 
thanks the Panel members for their time and careful attention to this matter. 
 
 
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