UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM REQUEST FOR THE ESTABLISHMENT OF A PANEL BY VIET NAM
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 18 January 2013
Document codes: WT/DS429/2/Rev.1
Complainant: Vietnam
Respondent: U.S.
Third parties: China, Ecuador, EU, Japan, Norway, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2, 9, 1  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 11  Anti-dumpingPart I, para. 1.2  Protocol of AccessionArt. 18  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – ANTI-DUMPING MEASURES ON
CERTAIN SHRIMP FROM VIET NAM
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY VIET NAM
Revision
 The following communication, dated 17 January 2013, from the delegation of Viet Nam to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 Upon instruction from my authorities, I wish to convey the request of the Government of
Viet Nam (“Viet Nam”) to the Dispute Settlement Body (the “DSB”) for the establishment of a
panel pursuant to Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 (the
“GATT 1994”), Articles 4 and 6 of the Understa nding on Rules and Procedures Governing the
Settlement of Disputes (the “DSU”), and Articl e 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 anti-dumping measures imposed by the United States on imports of certain
shrimp from Viet Nam.

 At the outset, Viet Nam observes that this is the second dispute settlement proceeding
concerning imports of certain shrimp from Viet Nam. Many of the issues raised in the present
request for the establishment of a panel were addressed by the panel in US – Anti-dumping
Measures on Certain Shrimp from Viet Nam (DS404). The DSB adopted that panel report on 2
September 2011. Despite the United States’ st atement that it would implement the DSB’s
recommendations and ruling in a reasonable period of time set to expire on 2 July 2012, the
recommendations and rulings have yet to be implemented as of the date of this request.
Notwithstanding this failure to implement, Viet Na m respectfully requests that the Panel in this
dispute consider the effect of the implemented recommendations and rulings, as it impacts the
issues in this dispute, including challenges concerning the United States Department of
Commerce’s final sunset review determinations.

1 CONSULTATIONS
 Pursuant to Article 4 of the Understanding on the Rules and Procedures Governing the
Settlements of Disputes (DSU) and Article XXII:1 of the General Agreement on Tariffs and Trade
1994 (GATT 1994), Viet Nam requested consultations with the United States (US) regarding
certain anti-dumping measures imposed by the United States on imports of certain shrimp from
Viet Nam. Viet Nam requested consultations with the United States on 20 February 2012, and the
request was circulated on 27 February 2012 as document WT/DS429/1, G/L/980, G/ADP/D91/1.

 Viet Nam and the United States held consultations on March 28, 2012 in Geneva. Those
consultations were held with the hope of reaching a mutually satisfactory solution. The parties at
consultations gained a better understanding of the issues under consideration, but did not reach a
resolution of the matter. Therefore, Viet Nam hereby requests that a panel be established
pursuant to Article 6 of the DSU and Article XXIII of the GATT 1994.

2 SUMMARY OF FACTS AND LEGAL BASIS OF COMPLAINT
 This request is, in particular but not exclusively, made with respect to:

(1) The imposition of anti-dumping duties and cash deposit requirements pursuant to the
final results of the United States Depart ment of Commerce’s (hereafter, “USDOC”)
fourth administrative review for the period from February 1, 2008 to January 31, 2009,
in Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final
Results and Partial Rescission of Antidumping Duty Administrative Review , 75 Fed.
Reg. 4771 (August 9, 2010);
(2) The fourth administrative review of Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam insofar as it did not revoke the anti-dumping duty order
with respect to certain respondents requesting or eligible for such revocation.
(3) The imposition of anti-dumping duties and cash deposit requirements pursuant to the
final results of the USDOC’s fifth administrative review for the period from February 1,
2009 through January 31, 2010, in Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Final Results and Final Partial Rescission of Antidumping
Duty Administrative Review, 76 Fed. Reg. 56158 (September 12, 2011);
(4) The fifth administrative review of Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam insofar as it did not revoke the anti-dumping duty order with
respect to certain respondents eligible for such revocation;
(5) The imposition of anti-dumping duties and cash deposit requirements pursuant to the
final results of the USDOC’s sixth administrative review for the period from February 1,
2010 through January 31, 2011, in Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Final Results and Final Partial Rescission of Antidumping
Duty Administrative Review, 77 Fed. Reg. 55800 (September 11, 2012);
(6) The sixth administrative review of Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam insofar as it did not revoke the anti-dumping duty order with
respect to certain respondents eligible for such revocation;
(7) The continued application of the practices and conduct described below, in any other
ongoing or future anti-dumping administrati ve reviews, and the preliminary and final
results thereof, related to the imports of certain frozen warmwater shrimp from Viet
Nam (DOC Case A-552-802), as well as any assessment instructions, cash deposit
requirements, and revocation determinations issued pursuant to such reviews;
(8) The final results Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam: Final Results of the First Five-year “Sunset” Review of the Antidumping Duty
Order, 75 Fed. Reg. 75965 (Dec. 7, 2010), in which the USDOC determined that
revocation of the anti-dumping duty order would be likely to lead to the continuation or
recurrence of dumping; and
(9) Section 129 of the Uruguay Round Agreements Act (“URAA”), 19 U.S.C. §3538, as
elaborated upon in the Statement of Administrative Action accompanying the URAA
and as implemented by the relevant United States authorities.
(a) Zeroing
i. Summary of Facts
 In each of the administrative reviews at issue, the USDOC has made use of the zeroing
methodology that has been repeatedly and consis tently held by the Appellate Body to be in
violation of US international obligations. Specifically, in making an average-to-average
comparison of export price and normal value, the USDOC does not allow non-dumped sales to
offset the amount of dumping found with respect to other sales. The USDOC has acknowledged in

each review use of this zeroing methodology in the administrative determinations. Therefore, the
dumping rate is in excess of the actual dumping engaged in by the respondents.

 These calculations and methodologies are applied pursuant, in particular, to the following
United States laws and regulations:

1. Tariff Act of 1930, as amended, Section 771(35)(A)
2. Implementing regulations of the USDOC, 19 C.F.R. § 351.408 and 351.414.
 The USDOC issued a “final modification” of its practice of zeroing in administrative reviews
on February 14, 2012 (77 FR 8101), but this modifica tion specifically excluded application of the
new practice to any of the completed annual reviews of the anti-dumping duty order on Certain
Frozen Warmwater Shrimp from the Socialist Republic of Vietnam including reviews completed
after that date, and the sunset review. Thus, th e margins of dumping calculated in the fourth,
fifth, and sixth administrative reviews, and used as the basis for the sunset review and other
determinations related to revocation, were all based on a WTO inconsistent methodology, as were
the margins of dumping determined in the second and third reviews.. As was the case in the
second and third administrative reviews, the marg ins of dumping properly calculated are zero or
de minimis.

ii. Legal Basis of Complaint
 Viet Nam considers the above-mentioned laws and procedures by the USDOC to be, as such
and as applied in a continued and ongoing basis, inconsistent with several provisions of the Anti-
Dumping Agreement, GATT 1994, and the Marrakesh Agreement. In original investigations,
periodic reviews, new shipper reviews, sunset reviews, and certain changed circumstances
reviews, USDOC's use of zeroing is inconsistent with:

1. Article 2 of the Anti-Dumping Agreement, including paragraphs 2.1, 2.4, and 2.4.2,
because the comparison made by the USDOC is inconsistent with the requirements of
Article 2 and those paragraphs of Article 2;
2. Article 9 of the Anti-Dumping Agreement, including paragraphs 9.1 and 9.3, because
the USDOC's use of the zeroing methodology results in the imposition of duties in
excess of the amount of dumping as determined pursuant to Article 2;
3. Paragraph 9.4 of Article 9 of the Anti-Dumping Agreement because the USDOC's use of
the zeroing methodology results in the imposition of duties for the all-other rate in
excess of the amount of dumping as determined pursuant to Article 2;
4. Article 1 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the GATT 1994
to the extent that the imposition and collection of the duties is inconsistent with the
Anti-Dumping Agreement;
5. For sunset reviews only, Article 11 of the Anti-Dumping Agreement, including
paragraphs 11.1, 11.2, 11.3 and 11.4 of the Anti-Dumping Agreement where likelihood
of continued dumping determinations are made using the zeroing methodology
inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement; and
6. Part I:2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662, 15
November 2006 and Paragraphs 254 and 255 of the Report of the Working Party on
Accession of Vietnam, WT/ACC/VNM/48, 26 October, 2006.
 Viet Nam also considers that USDOC's application of the above-mentioned laws and
procedures in the periodic and sunset reviews here at issue to be inconsistent with the following
provisions of the Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for the
same reasons set out above:

7. Articles 1, 2.1, 2.4, 2.4.2, 9.1, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement.

8. Article 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the Marrakesh
Agreement.
9. Articles VI:1 and VI:2 of the GATT 1994.
 Moreover, Viet Nam challenges the USDOC’s us e of the zeroing methodology in the original
investigation and the first, second, third, fourth, fifth, and sixth administrative reviews, (1) to the
extent that this practice impacted the USDOC’s revocation and five-year “sunset” review
determinations in the measures at issue and (2) to the extent that these determinations
demonstrate the USDOC’s continued and ongoing use of this practice throughout the full course of
the shrimp anti-dumping proceeding.

(b) Vietnam-Wide Entity Rate Based on Adverse Facts Available
i. Summary of Facts
 The USDOC has applied a Vietnam-wide entity rate based on adverse facts available
throughout the anti-dumping proceedings identified above. For countries identified as non-market
economy countries, the USDOC requires that companies not selected as mandatory respondents
apply for separate rates; those that fail to do so or do not meet the separate rate criteria are given
the "Vietnam-wide entity rate" as established by USDOC. Even a company that timely and fully
responds to the questions posed by USDOC will be assigned this Vietnam-wide entity rate if it does
not rebut the presumption established by USDOC: specifically, the company must establish that it
does not operate under the control of the government. If the company is successful, it will receive
a "separate rate," which is generally the weig hted average of the rates calculated for the
individually investigated respondents.

 Companies that do not receive a separate rate are assigned the Vietnam-wide entity rate. In
the proceedings at issue, the USDOC assigned a Vietnam-wide entity rate based entirely on
adverse facts available, even where companies responded timely and fully to the questionnaires
issued by USDOC. The USDOC did so on the basis that certain separate rate applicants did not
submit complete information and because the Viet namese government did not submit a response
on their behalf. The effect of this action is to assign highly prejudicial and unjustifiable rates to
companies that do everything in their control to comply with USDOC requests.

 These calculations and methodologies are applied pursuant, in particular, to the following
United States laws and measures:

1. Tariff Act of 1930, as amended, Sections 771(18)(C)(i), 776(a)(2), and 776(b);
2. Import Administration Antidumping Manual, Chapter 10, "Non-Market Economies."
ii. Legal Basis of Complaint
 In the anti-dumping proceedings at-issue, the United States applied the laws and
methodologies described above with regard to calculation of a Vietnam-wide entity rate, which Viet
Nam considers to be inconsistent, as such and as applied on a continued and ongoing basis, with
the obligations of the United States under the Anti-Dumping Agreement. Specifically, Viet Nam
considers these measures to be inconsistent with the following provisions of the Anti-Dumping
Agreement.

1. Articles 2 and 9 of the Anti-Dumping Agr eement because these Articles determine the
basis for calculation of anti-dumping margins and the collection of anti-dumping duties
and do not refer to the circumstances contemplated by the application of a Vietnam-
wide entity rate based on adverse facts available.
2. Article 6.8 and Annex II of the Anti-Dumping Agreement because USDOC relied on
adverse facts available for the calculation of the Vietnam-wide entity rate for entities
not granted a "separate rate." In so doing, the USDOC failed to adhere to the
provisions of the Agreement governing the use of adverse facts available, as the

presence of "state control" is not a relevant criteria for determining margins of
dumping or the application of adverse facts available.
3. Article 6.10 because the USDOC, in applying the Vietnam-wide entity rate to multiple
entities, failed in its obligation to determine individual margins of dumping. The only
exception to this requirement is where the USDOC relies on sampling, per the second
sentence of Article 6.10
4. Article 9, including paragraph 9.4, of the Anti-Dumping Agreement because the USDOC
has created a category of producers not contemplated in the Agreement. The
Agreement permits an authority to calculate a rate for individually investigated
producers, a rate based on facts available for individually investigated producers that
do not cooperate, and a separate, "all others" rate calculated based on the weighted
average margin of the individually investig ated producers. The "country-wide" rate
applied by USDOC does not adhere to these limitations.
5. Articles 6.10 and 9.2 which, in tandem, re quire calculation of individual dumping
margins except where the USDOC relies on its sampling methodology or to do so
would be impracticable. These provisions demonstrate that the USDOC has no basis
for its presumption that multiple entities constitute a single, Vietnam-wide entity.
6. Part I.2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662, 15
November 2006 and Paragraphs 527, 254 an d 255 of the Report of the Working Party
on Accession of Vietnam, WT/ACC/VNM/48, 27 October 2006 because the terms of
Vietnam's accession to the WTO do not permit the application of such a Vietnam-wide
entity rate unless otherwise provided for under the Anti-Dumping Agreement.
 Viet Nam also considers that USDOC's application of the above-mentioned laws and
procedures in the periodic reviews here at issue to be inconsistent with the following provisions of
the Anti-Dumping Agreement, GATT 1994, and the Marrakesh Agreement for the same reasons set
out above:

7. Article 18, including paragraphs 18.1, 18.3 and 18.4, of the Anti-Dumping Agreement
and Article XVI:4 of the Marrakesh Agreement.
8. Articles VI:1 and VI:2 of the GATT 1994.
 Moreover, Viet Nam challenges the treatment of the Vietnam-wide entity in the original
investigation and the first, second, third, fourth, fifth, and sixth administrative reviews, (1) to the
extent that this practice impacted the USDOC’s revocation and five-year “sunset” review
determinations in the measures at issue and (2) to the extent that these determinations
demonstrate the USDOC’s continued and ongoing use of this practice throughout the full course of
the shrimp anti-dumping proceeding.

(c) Limiting the Number of Respondents Selected for Full Investigation or Review
i. Summary of Facts
 The United States anti-dumping law requires as a general rule examination of each known
producer or exporter of subject merchandise. Beyond this general rule, the USDOC has the
authority to limit the investigation to a selected number of producers where investigation of all
known producers or exporters is not practicable.

 The USDOC has only investigated or reviewed the few largest exporters, with the exception
of new shipper reviews, throughout the proceedi ng at-issue, limiting to a substantial degree the
number of producers individually investigated or reviewed. The USDOC has limited the
respondents reviewed to the largest exporters in each of the administrative reviews that are
measures at issue, selecting for individual investigation in each instance a fraction of the
companies seeking individual review.

 Companies not selected for individual investigation or review because of the US authorities’
methodology have not been assigned their own anti-dumping rate, but instead receive either the
"separate rate" or the Vietnam-wide entity rate. The USDOC in the proceedings at issue have
declined to calculate an individual rate even where companies not individually investigated have
voluntarily submitted information so that USDOC may do so. The result is that companies not
presently engaging in dumping have not had and do not have the opportunity to receive a
dumping rate of zero or de minimis, because they never have the opportunity to be individually
investigated. Thus, companies not individually investigated, caused by USDOC's review of only the
largest exporters, are not eligible for revocation of the dumping order on an individual basis. The
USDOC will revoke an anti-dumping order where the exporter or producer has not engaged in
dumping for three consecutive years and there is a likelihood that they will not do so in the future.
Companies not individually investigated in these proceedings have no opportunity to establish
three consecutive years of de minimis dumping rates and will be forced to continue to pay
dumping rates even if they have not engaged in sales at less than fair value for more than three
consecutive years. In addition, any final duties re lated to imports from these companies are, have
been, or will be assessed duties in excess of the margin of dumping.

 These methodologies are applied pursuant, in pa rticular, to the following United States laws
and measures:

1. Tariff Act of 1930, as amended, Section 777A(c)(2)(B);
2. Implementing regulation of the USDOC, 19 C.F.R. § 351.204.
ii. Legal Basis of Complaint
 Because the United States has acted in the manner just described, Viet Nam considers the
proceedings to be inconsistent, as such and as applied on a continued and ongoing basis, with
certain WTO obligations. Viet Nam considers these actions to be inconsistent with the following
provisions of the Anti-Dumping Agreement and the Vienna Convention on the Law of Treaties:

1. Article 6, including paragraph 6.10, of the Anti-Dumping Agreement because the
USDOC has failed to determine an individual margin of dumping for each known
exporter or producer, without proper justification, at each stage of the proceedings.
2. Article 6, including paragraph 6.10.2 of the Anti-Dumping Agreement because the
USDOC has, without proper justification, refused to investigate respondents on the
basis of information voluntarily submitted and has refused voluntary responses.
3. Article 9, including paragraph 9.4, of the Anti-Dumping Agreement because the USDOC
has refused to apply individual duties or normal values to respondents that provided
the necessary information during the course of the investigation and has applied duties
to non-investigated respondents without any evidence of dumping by those non-
investigated respondents.
4. Article 11.1 of the Anti-Dumping Agreement because the USDOC's method of selecting
respondents requires anti-dumping duties to be imposed even in instances where the
producer or exporter is not dumping, wher e that producer has not been individually
selected for investigation.
5. Part I.2 of the Protocol of Accession of the Socialist Republic of Vietnam, WT/L/662, 15
November 2006 and Paragraphs 527, 254 an d 255 of the Report of the Working Party
on Accession of Vietnam, WT/ACC/VNM/48, 27 October 2006 because the terms of
Vietnam's accession to the WTO do not permit the application of such a country-wide
rate unless otherwise provided for under the Anti-Dumping Agreement.
6. Article 31 of the Vienna Convention on the Law of Treaties because the USDOC's
practice does not comport with the overall purpose and intent of the Anti-Dumping
Agreement, namely, the fair and effective imposition of anti-dumping duties so as to
prevent the sale of goods for less than fair value.

 Viet Nam also considers that USDOC's application of the above-mentioned laws and
procedures in the original investigation and periodic reviews here at issue to be inconsistent with
the following provisions of the Anti-Dumping Agreement, GATT 1994 , and the Marrakesh
Agreement for the same reasons set out above:

1. Article 18, including paragraphs 18.1, 18.3 and 18.4, of the Anti-Dumping Agreement
and Article XVI:4 of the Marrakesh Agreement.
2. Articles VI:1 and VI:2 of the GATT 1994.
 Moreover, Viet Nam challenges the use of limited respondent selection in the original
investigation and the first, second, third, fourth, fifth, and sixth administrative reviews, (1) to the
extent that this practice impacted the USDOC’s revocation and five- year “sunset” review
determinations in the measures at issue and (2) to the extent that these determinations
demonstrate the USDOC’s continued and ongoing use of this practice throughout the full course of
the shrimp anti-dumping proceeding.

(d) The United States Department of Commerce’s Sunset Review Determinations
i. Summary of Facts
 In sunset reviews, the United States Department of Commerce bases its determinations on
dumping margins calculated in a manner inconsistent with international obligations. A sunset
review determination focuses on whether the expiry of an anti-dumping duty order would be likely
to lead to continuation or recurrence of dumping. The USDOC makes this determination based
primarily on two factors. First, by using dumping margins previously calculated with the zeroing
methodology. In other words, the USDOC depends on dumping margins calculated in the original
anti-dumping investigation and/or subsequent admi nistrative reviews, in which negative dumping
margins had been zeroed, producing an artificially high dumping margin. Second, the USDOC
reviews the volume of imports of the product for the period before and the period after issuance of
the anti-dumping duty order. The USDOC will find that revocation is likely to lead to the
continuation of dumping where (1) dumping contin ued at a level above de minimis after issuance
of the order, (2) imports of the product ceased after issuance of the order, or (3) dumping was
eliminated and import volumes declined significantly. In reviewing import levels, the USDOC
considers the full year prior to initiation of the investigation.

 These methodologies are applied pursuant, in pa rticular, to the following United States laws
and measures:

1. Tariff Act of 1930, as amended, Sections 751 and 752;
2. the USDOC’s Policy Bulletin 98.3, “Policies Governing the Conduct of Five-Year
(“Sunset”) Reviews of Antidumping and Countervailing Duty Orders” (April 16, 1998),
63 Fed. Reg. 18871 (April 16, 1998).
ii. Legal Basis of Complaint
 Because the United States has acted in the manner just described, Viet Nam considers the
proceedings to be inconsistent with certain WTO obligations. Viet Nam considers these actions to
be inconsistent, as such and applied, with the following provisions of the Anti-Dumping Agreement
and GATT 1994:

1. Articles 11.1 and 11.3, to the extent that the sunset review determinations are based
on dumping margins that were calculated in a manner inconsistent with Articles 2.4.2
and 2.4 of the Anti-Dumping Agreement.
2. Articles 11.1 and 11.3, to the extent that the USDOC’s sunset determination did not
represent an objective or unbiased assessment of the facts before the authority and
was not supported by those facts.

3. Articles 1 and 11.1 of the Anti-Dumping Agr eement and Articles VI:1 and VI:2 of the
GATT 1994, to the extent that the USDOC’s sunset review determination resulted in
the continued imposition of anti-dumping duties beyond the period in which dumping
occurred.
(e) Revocation in the absence of any evidence of dumping
i. Summary of Facts
Beginning with the first review of the USDOC’s anti-dumping duty order on Certain Frozen
Warmwater Shrimp from Vietnam, there has been no evidence that any Vietnamese manufacturer
or exporter of subject merchandise has sold that merchandise to the United States below normal
value. All of the margins of dumping determined by the USDOC resulted from WTO inconsistent
practices, including zeroing in administrative reviews, imposing a WTO inconsistent practice of
requiring non-investigated companies to establish entitlement to the all others rate, and the
application of an adverse facts available rate to the so-called Vietnam-wide entity.
Section 351.222 of the Department of Commerce regulations, as in effect through the
conclusion of the sixth administrative review, prov ides for the Department to revoke anti-dumping
orders in whole or in part based on the absence of dumping. Historically, anti-dumping duty
orders have been revoked as to individual respondents based on the absence of dumping
demonstrated in consecutive annual reviews. All individually investigated respondents have
demonstrated the absence of dumping over a su stained period of time when the margins of
dumping are calculated in a WTO consistent manner. At least one individually investigated
company has demonstrated the absence of dumping in 3 or more consecutive reviews, while all
individually investigated respondents have demonstrated the absence of dumping in every review
in which they have been individually investigated. Thus, irrespective of the results of a WTO
consistent sunset review, the anti-dumping duty order should be revoked in part with respect to
individually investigated respondents having zero or de minimis margins of dumping in reviews
two through five and two through six, when the sixth review is completed.
The GOV notes that section 351.222 of the Department’s of Commerce’s regulations as in
effect through the conclusion of the sixth admini strative review was amended on May 21, 2012.
See 77 Fed. Reg. 29875. Under the new rule, applicable to any administrative review initiated on
or after June 20, 2012, individual exporters or prod ucers are not eligible for revocation of an anti-
dumping duty order even if they have received anti-dumping rates of zero for three consecutive
years. There is therefore no means by which individual exporters or producers can achieve
revocation of an anti-dumping duty order.
ii. Legal Basis of Complaint
 Viet Nam considers the above mentioned actions to be, as applied, inconsistent with several
provisions of the Anti-Dumping Agreement. Article 11.1 of the Anti-Dumping Agreement provides:
A n a n t i - d u m p i n g d u t y s h a l l r e m a i n i n f o r c e o n l y a s l o n g a s a n d t o t h e e x t e n t n e c e s s a r y t o
counteract dumping which is causing injury. In orde r to ensure that the obligations of Article 11.1
can be realized, Article 11.2 provides:

The authorities shall review the need for th e continued imposition of the duty, where
warranted, on their own initiative or, provided that a reasonable period of time has
elapsed since the imposition of the definitive anti-dumping duty, upon request by any
interested party which submits positive information substantiating the need for a
review. Interested parties shall have the right to request the authorities to examine
whether the continued imposition of the duty is necessary to offset dumping, whether
the injury would be likely to continue or recur if the duty were removed or varied, or
both. If, as a result of the review under this paragraph, the authorities determine that
the anti-dumping duty is no longer warranted, it shall be terminated immediately.
The obligations under Article 11.2 are in addition to the obligations to undertake a sunset
review set forth in Article 11.3. The continued application of anti-dumping measures to
respondents that have demonstrated the sustaine d absence of dumping is inconsistent with US
obligations under Articles 11.1 and 11.2.

(f) Section 129 of the Uruguay Round Agreements Act (“URAA”)
i. Summary of Facts
 Section 129 of the URAA is the mechanism by which the United States implements adverse
findings by the DSB. The law assigns responsibility to the United States Trade Representative, the
USDOC and the ITC for implementing adverse decisions in a manner consistent with US
international obligations.

 The law contains unambiguous language on the effect of a Section 129 determination. The
statute requires that “Determinations….shall apply with respect to unliquidated entries of the
subject merchandise that are entered or withdrawn from warehouse, for consumption on or
after…the date on which the Trade Representa tive directs the administering authority…to
implement that determination.” This understanding is confirmed by the Statement of
Administrative Action (“SAA”), which has been properly recognized as a definitive statement on
operation of the URAA. Indeed, the URAA itself states that “[t]he statement of administrative
action approved by the Congress under section 101(a) shall be regarded as an authoritative
expression by the United States concerning the interpretation and application of the {URAA} and
this Act in any judicial proceeding in which a question arises concerning such interpretation or
application.” The SAA is the most probative authority available fo r purposes of interpreting the
language of the URAA. The statute, on its own, is quite clear on the limited effect of Section 129
determinations for entries made pursuant to a measure at issue. The SAA reinforces this
limitation. The statute does not provide the Trade Representative, the USDOC or the CBP officials
responsible for assessment, with the discretion to adjust the final duty liability of unliquidated
entries.

 This practice is applied pursuant, in partic ular, to the following United States laws and
measures:

1. Section 129 of the URAA, codified as 19 U.S.C. § 3538;
2. the United States Statement of Administrative Action that accompanied the Uruguay
Round Agreements Act, H.R. Doc. No. 103-316, vol. 1.
ii. Legal Basis of Complaint
 Because the United States has acted in the manner just described, Viet Nam considers these
provisions to be inconsistent, as such, with certain WTO obligations. Viet Nam considers these
actions to be inconsistent with the following provisions of the Anti-Dumping Agreement and the
GATT 1994:

1. Article 1 of the Anti-Dumping Agreement, to the extent that an anti-dumping measure
is applied despite imposition of the duty pursuant to an investigation conducted in
violation of the GATT 1994 and the Anti-Dumping Agreement.
2. Article 9.2 of the Anti-Dumping Agreement, to the extent that the USDOC and other
relevant United States agencies continue to collect anti-dumping duties at a level
known to be in excess of the appropriate amount.
3. Article 9.3 of the Anti-Dumping Agreement, to the extent that the USDOC and other
relevant United States agencies continue to collect anti-dumping duties at a level that
exceeds the margin of dumping as established under Article 2.
4. Article 11.1 of the Anti-Dumping Agreement, to the extent that the anti-dumping duty
order remains in effect, and anti-dumping duties continue to be collected, beyond the
period necessary to counteract dumping.
5. Article 18.1 of the Anti-Dumping Agreement, to the extent that the continued
collection of duties amounts to an action that is performed without the authority
provided in the GATT 1994.

3 REQUEST
Viet Nam hereby respectfully requests that a panel be established, with the standard terms
of reference, by the Dispute Settlement Body purs uant to Articles 4.7 and 6 of the DSU, Article
XXIII of the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement.