Document: Executive Summary
Document codes: WT/DS404/R
Complainant: Vietnam
Respondent: U.S.
Third parties: China, EU, India, Japan, South Korea, Mexico, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.1, 2.4, 2.4.2, 9.1, 9.3, 1, 11.1, 11.3  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 18.1  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 18.3, 18.4, 6.8, 5.8, 9.4, 11  Anti-dumpingArt. I, II  GATT 1994Annex II, Art. 9  Anti-dumpingPart I, para. 1.2  Protocol of Accession

ANNEX B

EXECUTIVE SUMMARIES OF THIRD PARTIES'
WRITTEN SUBMISSIONS

Contents Page
Annex B-1 Executive Summary of the Third Party Written Submission of the
European Union
B-2
Annex B-2 Executive Summary of the Third Party Written Submission of
Japan
B-7
Annex B-3 Executive Summary of the Third Party Written Submission of
Republic of Korea
B-11
Annex B-4 Third Party Written Submission of Mexico B-13

ANNEX B-1

EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION OF THE EUROPEAN UNION

I. PRELIMINARY ISSUES RAISED BY THE U.S.

1. The EU considers that the Panel should reject the U.S. request for preliminary rulings. First,
the EU considers that to the extent that dumping ma rgins from the original investigation and the first
administrative review were used in subsequent reviews as the basis for calculating dumping margins
or imposing/collecting anti-dumping duties, the Panel is due to examine, as part of the evidence and
facts of this case, whether the U.S. applied zeroing in those measures. Second, the U.S. already tried
the argument that that "continued used of zeroing" is not a measure which can be subject to WTO
dispute settlement in US – Continued Zeroing (EC) and failed.

II. STANDARD OF REVIEW: THE ROLE OF THE PRECEDENT IN THIS DISPUTE

2. In US – Stainless Steel from Mexico the Appellate Body clarified the role of its previous
reports and indicated how panels should act in cases where the same legal issues arise
(paras 157-162). The EU fully agrees with these statements without reservation. WTO panels are
obliged to correctly apply the law; in the context of this dispute this also means that the Panel should
follow the rulings of the Appellate Body where th e Appellate Body has previously interpreted the
same legal questions. Otherwise, the security and predictability enshrined in Article 3.2 of the DSU
would be put in serious danger.

III. OVERVIEW OF THE CORE PROBLEM

3. The term "zeroing" – which does not appear in the ADA, may be considered something of a
misnomer, because it describes only part of the pr oblem: that is, the downward adjustment of the
relatively high export transactions; or, in other wo rds, the setting to zero of the negative amounts.
The heart of the matter, however, is the selection of the relatively low priced export transactions
per se, as a sub-category, as the only or preponderant b asis for the dumping margin calculation. This
has nothing to do with "offsets" or "credits".

4. This is not a new problem. It is discussed at length in Jacob Viner's Memorandum, and was
specifically addressed in the Uruguay Round negotiations, during which the Members were fully
informed of the issue and knew exactly what they we re talking about. After more than three years of
public negotiations, the problem was nicely summarised by the WTO secretariat: it was generally
considered that the practice of comparing a wei ghted average normal value with individual export
transactions was obviously unfair to exporters – particularly from developing countries – and required
amendment of the Tokyo Round AD Code; the U.S. explained that such a method was necessary to
reveal targeted dumping – that is, successive attacks on different parts of an importing market; the
consensus was that the Membership should try to find a solution to accommodate the legitimate
concerns of both sides. That compromise was the text of Article 2.4.2 of the ADA, as it stands today.

5. Looking at the overall design and architecture of Article 2.4.2, and reading its provisions
intelligently, in the light of the underlying econom ic realities that the legal rules are intended to
address and respond to – that is, the real world, it is clear that there are only three sub-categories of
clustered low priced export transactions that it is permissible to respond to: those clustered by

purchaser, region or time. These categories broadly correspond to typical market definition
parameters: they make economic sense.

6. Thus, it is not permissible, and it is not fair, to pick up low priced export transactions
clustered by model. The U.S. has acknowledged as much. This is clear from the term "all" in the first
sentence of Article 2.4.2, and the definition of dump ing in Article 2.1 of the ADA and Article VI:1 of
the GATT 1994 in terms of the product; read toge ther with the absence in the targeted dumping
provisions of any reference to a sub-category by model. Thus, the relevant provisions, and
particularly the normal rule and the exception, are read harmoniously, so as to give meaning – both
legal and economic – to all the treaty terms.

7. In exactly the same way, it is not possible to pick up low priced export transactions per se as a
sub-category. There is no reference to any such sub-category in the provisions on targeted dumping.
To accept such a proposition would be to render the targeted dumping provisions useless; and to
negate the compromise, negotiated and agreed by all the WTO Members (in return for other
concessions), to which we have just referred. The pr oof of this is that for some 15 years the U.S. has
simply ignored the targeted dumpi ng requirements, content to continue doing exactly what it was
doing before, based on its own unilatera l interpretation of Article 2.4.2. The further proof of this is
that, by its own assertion, the U.S. sought the inser tion of the phrase "the existence of margins of
dumping during the investigation phase" (the "Phrase ") precisely with the intention of side-stepping
the compromise and the obligations that we have just outlined. This is a highly significant point that
bears repetition: the entire U.S. position is premised on the implied admission that the overall design
and architecture of Article 2.4.2 is to be interpre ted in the manner advocated by the EU in previous
cases.

8. We turn, therefore, to the Phrase "the existence of margins of dumping during the
investigation phase", added – behind closed doors – after some three and a half years of public
negotiations. According to the U.S., this means that the obligations in Article 2.4.2 do not apply to
the re-calculation of dumping margins in assessment pr oceedings. Rather, the U.S. is completely free
to choose the methodology to be used for calcula ting a contemporaneous dumping margin and finally
collecting duties. Since the results of the first retrospective assessment proceeding are applied with
effect from the date on which duties were first im posed, this would negate entirely the compromise
enshrined in Article 2.4.2.

9. In the view of the EU, assuming Members ne gotiate in full knowledge of the 1969 Vienna
Convention on the Law of the Treaties (the "Vienna Convention"), it may reasonably be assumed that
they negotiate in good faith, just as they agree that the terms of the ADA are to be interpreted in good
faith. In such negotiations, the EU would neither e xpect nor accept that what is clearly given, after
lengthy debate, with one hand (t hat is, agreement not to use asymmetry absent targeted dumping)
would be surreptitiously entirely taken away with the other hand. The U.S. position reflects what
might be termed the "last minute" "spanner in the wo rks" theory of international negotiation – a tactic
that, in the view of the EU, is hardly suited to a multilateral organisation with 153 Members,
including many developing countries.

10. However, assuming for the sake of argument, th at such negotiation tactics are permissible, the
EU would like to draw the Panel's very close atten tion to what a Member forfe its when it adopts such
an approach. First, most obviously, the Member chooses to leave no trace of its intended unilateral
interpretation in the preparatory work. Second, a nd in similar vein, the Member chooses not to offer
any explanation to its negotiating partners – many of whom are developing countries – as to what the
object and purpose of such a provision might be. This is particularly problematic when the
subsequent unilateral interpretation flies in the face of the overall design and architecture of the ADA.
Especially when there is no object and purpose capab le of explaining why, on the basis of identical
data, the mere act of collection should inflate the dumping margin many times over – a proposition

that is "manifestly absurd or unreasonable" within the meaning of the Vienna Convention – both in
legal terms and in economic terms. Third, and in similar vein, the Member chooses to forego any
attempt to reconcile conflicting context with its intended unilateral interpretation. The Panel may thus
note that of the various elements of the interpretiv e rule in the Vienna Convention, by the U.S.' own
choice, there is only one that stands between the U.S. and failure: the supposed ordinary meaning of
the Phrase.

11. We believe we have previous ly amply demonstrated – and we do so again below – that the
ordinary meaning of the Phrase is not that advocated by the U.S.. We believe that, for the U.S., the
term "investigation" was key in its intended unilatera l interpretation. In fact, we have an express
admission of this in the U.S. Statement of Administrative Action (SAA), which accompanied the
adoption of the U.S. Uruguay Round Agreements Act, and which contains the words ("not reviews").
Obviously, the drafter of the SAA well appreciated th at these words are not contained in Article 2.4.2
of the ADA, and do not result from a proper interpre tation of that provision, which is precisely why
they were inserted in the SAA in an attempt at ex post rationalisation – an attempt doomed to fail, as
subsequent WTO litigation has demonstrated.

12. The discussion could stop here. But there are a multitude of other interpretative points
against the U.S. First, the grammatical structure of the Phrase, in which the term "during … phase" is
grammatically linked to a period of time in which margins exist (an investigation period) as opposed
to one in which they are established (as the U.S. would have it). This both confirms the EU
interpretation and precludes the U.S. interpretation. Second, the defined term "margin of dumping"
has the same meaning throughout the ADA, and must inform the meaning of the Phrase – there being
no support in the text for the view that the definition should change at the moment of final collection.
Third, the overall design and architecture of Article 2.4.2, as outlined above. It is particularly
significant in this respect that the EU position r eads the normal rule referring to the investigation
period in counterpoint to the exceptional rule perm itting a response to time based targeted dumping.
Thus, once again, the EU advances a harmonious read ing of all the treaty terms, which makes legal
and economic sense of all of them. Fourth, the nume rous references in Article 2 to "investigations",
which are considered, even in U.S. municipal law, to refer to all types of investigations, including
assessment proceedings. Fifth, the rule in Ar ticle 9.3 that the amount assessed cannot exceed the
dumping margin – with an express cross-reference to all of Article 2. Sixth, the absence of any object
and purpose argument capable of supporting the U.S. position. Seventh, the preparatory work, as
outlined above … And the list goes on.

13. Finally, the U.S. turns to some other genera l arguments, equally without merit. First, the
so-called "mathematical equivalence" argument, wh ich is obviously vitiated by a simple intellectual
error: something can perfectly well be fair as a response to targeted dumping, but unfair absent
targeted dumping. Second, the argument derived fr om Article 9(4)(ii) and the so-called "variable
duty" or prospective normal value. This provision concerns sampling, and insofar as it implies the
possibility that one of the measures that could be imposed pursuant to Article 9.2 ADA could be a
variable duty, it equally implies that any such duty is ultimately subject to final assessment or refund
under Article 9.3, with dumping margins re-calcula ted in accordance with all of the provisions of
Article 2. This is completely logical. It plugs th e gap that would otherwise arise in the refund system
under Article 9.3.2, in which final liability cannot , by definition, increase. The only option for
Members operating such systems who are fearful of ta rgeted dumping is a variable duty, with refund
in the event that the feared targeted dumpi ng does not materialise. The proposition that
Article 9(4)(ii) in any way contradicts any of the in terpretative points that we have already outlined is
thus without merit. Third, the proposition that because, in the U.S., assessment proceedings are
importer driven, this should change the analysis. This practical assertion is without merit. The ADA
responds to international price discrimination by exporters; and it is a matter of elementary accounting
to calculate final liabilities for importers, whils t respecting the ceiling fixed by the amount of
dumping practiced by an exporter.

14. If all of the interpretative elements in th e Vienna Convention support the position of the EU
and Vietnam, and disprove the position of the U.S ., the U.S. interpretation cannot be said to be
"permissible" within the meaning of Article 17.6 of the ADA.

IV. VIETNAM-WIDE RATE

15. The European Union considers that Article 6. 10 of the ADA allows for the determination of a
single margin of dumping per producer and thus pe rmits to combine separate entities into a single
supplier which is the actual source of the alleged price discrimination. The fact that Vietnam is a
non-market economy country, and issue which clearly arises from its Protocol of Accession, is very
relevant for the proper identification of the actu al supplier in the present case. Indeed, in a
non-market economy country, the State control over the means of production and State intervention in
the economy, including international trade, impl y that all the means of production and natural
resources belong to one entity, the State. All imports from non-market economy countries are
therefore considered to emanate from a single supplier, the State. The State (in this case, Vietnam) in
this sense can be considered as one supplier whose dumping behaviour can be identified and
addressed in accordance with the di sciplines in the ADA. In view of the State's control over
international trade, it would not be relevant to name exporting companies which do not act
independently from the State separately since th ey collectively constituted one single supplier or
exporting entity, i.e., the State. The application of a single duty rate then also becomes necessary to
avoid circumvention of the duties (i.e., the channelling of exports through the supplier with the lowest
duty rate). As also evidenced by the U.S., Vi etnam as a non-market economy country, meets these
concerns. Consequently, in the EU's view, Article 6.10 of the ADA allows investigating authorities to
consider the State in cases of non-market economy countries as an "exporter" or "producer" and, thus,
a single dumping margin for the State and its export branches can be calculated.

V. ALL OTHERS RATE

16. Whether the USDOC applied zeroing in the or iginal investigation and/or any subsequent
reviews is a factual matter that the Panel has to determine on the basis of the evidence provided by
Vietnam. If the Panel concludes that the US DOC used zeroing when determining the dumping
margins in the context of those anti-dumping pro ceedings, the use of those dumping margins and the
application of those rates in subsequent dete rminations amount to a new and separate measure
attributable to the U.S. which is subject to this Panel's proceedings.

17. Moreover, the European Union considers th at, even assuming that Article 9.4 of the ADA
contains a lacuna and, thus, does not provide any specific methodology for the calculation of a margin
of dumping to be applied to non-investigated comp anies when the only margins calculated during the
investigation are either zero or de minimis or calculated pursuant to Article 6.8, such a silence does
not imply that no obligation is imposed on WTO Members when calculating "all others" rates in those
circumstances. In this respect, the European Union invites the Panel to examine whether, looking at
the ADA as a whole, the methodology used by the U.S. was reasonable in view of the specific
circumstances of the case.

VI. LIMITATIONS IN THE NUMBER OF RESPONDENTS

18. The European Union considers that, since Article 6.10 is procedural in nature, it applies in the
context of review proceedings. Moreover, th e European Union consid ers that, in cases where
investigating authorities have limited their ex amination in accordance with Article 6.10, second
sentence, they are also required to consider requ ests for individual examination, "except where the
number of exporters or producers is so large that individual examinations would be unduly
burdensome to the authorities and prevent the timel y completion of the investigation". The exception
is defined by reference to a large number of exporte rs or producers, as a condition for the application

of the exception. The exception is justified on the basis that individual examination would be unduly
burdensome to the authorities and would prevent the timely completion of the investigation. In the
EU's view, it is for the Panel to verify whether th ese elements were present in view of the specific
facts of the case.

ANNEX B-2

EXECUTIVE SUMMARY OF THE THIRD PARTY
WRITTEN SUBMISSION OF JAPAN

I. INTRODUCTION

1. Japan's written submission focuses on two of the issues raised by Viet Nam: (i) the use of the
zeroing procedures by the United States Department of Commerce ("USDOC") 1; and (ii) the
USDOC's determination of "all others" rates. 2 In both respects, the United States appears to act
inconsistently with its WTO obligations.3

II. THE USE OF ZEROING PROCEDURES IS INCONSISTENT WITH MEMBERS'
OBLIGATIONS UNDER THE AD AGREEMENT AND THE GATT 1994

2. Viet Nam has challenged the USDOC's use of zeroing to determine margins of dumping for
selected respondents in the second and third ad ministrative reviews, as well as the USDOC's
continued use 4 of the so-called "zeroing" procedur es in successive segments of the ongoing
proceeding pertaining to Certain Frozen Warmwater Shrimp from Viet Nam (including subsequent
administrative reviews and the five-year sunset review). 5 Viet Nam has also asked the Panel to
examine the USDOC's use of zeroing in the original investigation and first administrative review to
the extent they are relevant to the challenged measures. 6 Japan agrees with Viet Nam that the use of
zeroing in administrative reviews is inconsiste nt with Article 2.4 and Article 9.3 of the
AD Agreement, and Article VI:2 of the GATT 1994.

3. The consequences of zeroing in the measures at issue are precisely the same as the
consequences of zeroing addressed in many previous WTO disputes. First, by excluding all negative
comparison results, the USDOC makes a "dumping" de termination that disregards an entire category
of the export transactions making up the "product" – namely, those low-priced export transactions that
generate the negative comparison r esults. "Dumping" is, therefore, not determined for the " product"
as defined by the investigating authority, but for a sub-part of it.

4. In EC – Bed Linen , US – Softwood Lumber V , US – Zeroing (EC) , US – Softwood
Lumber V (21.5), US – Zeroing (Japan) , US – Stainless Steel (Mexico) , and US – Continued
Zeroing (EC), the Appellate Body ruled that a partial determination of this type, taking account of just
some comparison results, is inconsistent with th e definition of "dumping" in Article 2.1 of the

1 See Viet Nam's First Written Submission, Section VI.A.
2 See Viet Nam's First Written Submission, Section VI.C.
3 Viet Nam also raises two other i ssues: (i) calculation of the country-wide rate; and (ii) sampling. See
Viet Nam's First Written Submission, Sections VI.B a nd VI.D. In this submission, Japan does not offer
comments on these other two elements of the measures at issue.
4 Japan does not further address this "continued use" measure in the present submission, but notes that
the Appellate Body has considered the continued use of the zeroing methodology in successive proceedings to
be susceptible to challenge in WTO dispute settlement. See Appellate Body Report, US – Continued Zeroing
(EC), paras. 175-185.
5 See Viet Nam's First Written Submission, Section IV.
6 See Viet Nam's First Written Submission, Section IV.

AD Agreement, and Article VI of the GATT 1994, because it is not made for the "'product' as
a whole".7

5. Second, zeroing means that an affirmative "dumping" determination is much more likely to be
made than not.
8 The reason is that the positive comparison results included in the determination relate
to export transactions with prices that are lower than normal value; in sharp contrast, the excluded
negative results relate to export transactions with prices higher than normal value. The export
transactions selected for inclusion in the determinati on, therefore, relate to the sub-part of the product
that is the most likely to generate an affirmative dumping determination.

6. As a result, zeroing can produce a "dumping" determination where, in fact, the product as a
whole is not dumped.9 The exclusion of negative comparison results also "inflates" the amount of any
"dumping" determination that is made.10

7. Thus, zeroing systematically prejudices the interests of foreign producers and exporters
because the negative comparison results that are favo rable to them are purposefully set aside by the
USDOC. As a result, the Appellate Body has held that the maintenance and use of zeroing procedures
involve an "inherent bias" and "distortion" in the comparison of export price and normal value.
11 This
is the very antithesis of the "fair comparison" required by Article 2.4 of the AD Agreement.

8. For these reasons, the United States' zeroing procedures, and anti-dumping measures adopted
using these procedures, have been found to be inco mpatible with Articles 2.4 and 2.4.2, 9.3, 9.5
and 11.3 of the AD Agreement in a series of previous disputes.
12

9. In the current dispute, the United States rep eats the interpretive stance it has now taken in a
string of previous Zeroing disputes. The arguments relied upon by the United States have been
refuted by the complainants and third parties in previous disputes, and rejected by the Appellate Body.
Japan urges the Panel to reject the United States' ar guments that the use of zer oing is not inconsistent
with the AD Agreement and the GATT 1994.

III. THE "ALL OTHERS" RATES APPLIED BY THE USDOC IN THE SECOND AND
THIRD ADMINISTRATIVE REVIEWS ARE INCONSISTENT WITH THE
UNITED STATES' OBLIGATIONS UNDER THE AD AGREEMENT

10. Viet Nam challenges the USDOC's determinations of the "all others" rate in the second and
third administrative reviews as inconsistent with Article 9.4 of the AD Agreement .13 Based on
Viet Nam's and the United States' description of th e facts, Japan understands that the USDOC did not
calculate "all others" rates but a pplied the "all others" rate determin ed in the original investigation

7 See, e.g., Appellate Body Report, EC – Bed Linen , para. 53; Appellate Body Report, US – Softwood
Lumber V , para. 99; Appellate Body Report, US – Zeroing (EC) , para. 126; Appellate Body Report, US –
Softwood Lumber V (21.5), paras. 87 and 89; Appellate Body Report, US – Zeroing (Japan), para. 115.
8 Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 140-142; Appellate Body Report,
US – Corrosion-Resistant Steel Sunset Review, para. 135.
9 Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 140-142; Appellate Body Report,
US – Corrosion-Resistant Steel Sunset Review, para. 135.
10 Appellate Body Report, EC – Bed Linen, para. 55; Appellate Body Report, US – Softwood Lumber V,
para. 101; and Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 135.
11 See Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 140-142; Appellate Body
Report, US – Corrosion-Resistant Steel Sunset Review , paras. 134-135; and Appellate Body Report, EC – Bed
Linen, para. 55.
12 See, e.g., Appellate Body Report, US – Zeroing (Japan) , para. 190; Appellate Body Report, US –
Zeroing (EC), para. 263; Appellate Body Report, US – Softwood Lumber V, para. 183.
13 Viet Nam's First Written Submission, Section VI.C.

using "model zeroing" to non-investigated respondents in the second and third administrative reviews.
Pursuant to U.S. law 14, the USDOC considered this to be a "reasonable" approach. Japan addresses
three points.

A. A
N INVESTIGATING AUTHORITY IS OBLIGATED TO UPDATE THE "ALL OTHERS" RATE IN AN
ADMINISTRATIVE REVIEW BASED ON THE DUMPING MARGINS DETERMINED FOR
RESPONDENTS SELECTED IN THAT REVIEW PURSUANT TO ARTICLE 9.4 OF THE
AD AGREEMENT

11. With regard to this first question, in Japan's view, an investigating authority is obliged,
pursuant to Article 9.4 of the AD Agreement , to update the "all others" rate to be applied to
non-selected respondents based on the dumping marg ins determined for the selected respondents
when it conducts an administrative review and selects respondents to be investigated in that review.

12. Article 9.4 does give rise to an obligation to update th e "all others" rate when an investigating
authority decides to conduct an administrative revi ew because it establishes the general rule that an
investigating authority must determine the ceiling for the "all others" rate based on "the weighted
average margin of dumping established with respect to the selected exporters or producers".
15 If an
investigating authority makes a new selection of exporters and producers in an administrative review,
and determines new margins for them, Article 9.4 requi res that the "all others" rate be based on the
updated margins for the selection made.

13. Under Article 9.4., Members are entitle d to impose an "all others" rate on non-examined
exporters, on the grounds that individually examined producers are engaged in dumping. Thus, if the
examined producers are dumping and subject to an ti-dumping duties, the non-examined producers are
also deemed to be dumping and subject to such du ties. However, if the individually examined
producers are no longer dumping and no longer subject to anti-dumping duties, there is no rational
basis to presume that non-examined exporters are dumping or to impose anti-dumping duties on them
alone.

14. Further, if the "all others" rate were not up dated to reflect the latest situation when
individually determined rates in a given administrative review were all zero or de minimis, then the
level of the "all others" rate would be greater than the level required to offset the level of dumping
most recently determined, which would be contrary to Article 11.1 of the AD Agreement which
establishes the principle that anti-dumping duties "shall remain in force only as long as and to the
extent necessary to counteract dumping".
16

B. A
N INVESTIGATING AUTHORITY DOES NOT HAVE UNLIMITED DISCRETION IN DETERMINING
AN "ALL OTHERS" RATE IF ALL SELECTED RESPONDENTS IN AN ADMINISTRATIVE REVIEW
RECEIVE RATES THAT ARE EXPLICITLY TO BE EXCLUDED PURSUANT TO ARTICLE 9.4

15. Next, Japan turns to the second question, whic h considers what methodologies are available
to an investigating authority for determining the "a ll others" rate, if all the individually investigated
respondents in an administrative review receive rates that are explicitly to be excluded in determining
the ceiling for the "all others" rate pursuant to Artic le 9.4. The Appellate Body has not stated the
bounds of an investigating authority's obligations u nder Article 9.4 in determining an "all others" rate
when the lacuna exists.

14 See Viet Nam's First Written Submission, para. 230.
15 Emphasis added.
16 Emphasis added.

16. The case at hand appears to fall within the lacuna in Article 9.4 because, in the second and
third administrative reviews, each of the rates de termined by the USDOC for the selected respondents
was zero or de minimis. Japan submits that the investigating authority's obligation under Article 9.4
requires it to apply an "all others" rate of zero in the second and third administrative reviews. In
Japan's view, this would be the only reasonable out come, because none of the individually examined
exporters was found to be engaged in dumping. Thus, in Japan's view, the United States acted
inconsistently with its obligations under Article 9.4 by applying the "all others" rate from the original
investigation in the second and third administrati ve reviews, where the respondents selected for
investigation all received zero or de minimis rates.

C. I F AN INVESTIGATING AUTHORITY IS ENTITLED TO RELY ON AN "ALL OTHERS" RATE
DETERMINED IN AN EARLIER PROCEEDING PURSUANT TO ARTICLE 9.4, THAT RATE MUST BE
BASED ON WTO-CONSISTENT MARGINS OF DUMPING

17. With regard to the third question, Japan submits that, if the Panel determines that an
investigating authority may apply the "all others" ra te determined in an original investigation to
non-selected respondents in administrative reviews when the lacuna in Article 9.4 is triggered, such
"all others" rate must be based on WTO-consistent margins of dumping. That is, if the "all others" rate
from the original investigation was calculated b ased on WTO-inconsistent margins of dumping, the
"all others" rate violates Article 9.4.

18. Yet, this is precisely what the United States has done in the second and third administrative
reviews in this case. In Japan's view, this is neither "reasonable" nor consistent with the
United States' obligations under the AD Agreement or the GATT 1994. Rather, the United States
must re-calculate the "all others" rate from the original investigation without using "model zeroing" if
it is to apply it in subsequent administrative reviews.

19. The United States contends that it is entitled to rely on margins of dumping established in the
original investigation because the original investig ation was initiated pursuant to an application made
before Viet Nam's accession to the WTO.
17 This argument is without merit. The administrative
reviews at issue, and the all others rate, are subject to the disciplines of the AD Agreement, a fact that
the United States does not dispute. Therefore, in these administrative reviews, and in setting the
revised all others rate, the United States may no t rely on "margins of dumping" established in a
WTO-inconsistent manner, irrespective of when these margins were first established.

17 See U.S. First Written Submission, paras. 169-175.

ANNEX B-3

EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION OF THE REPUBLIC OF KOREA

I. INTRODUCTION

1. This third party submission is presented by the Government of the Republic of Korea
("Korea") with respect to certain aspects of the First Written Submissions by Viet Nam dated
20 August 2010 and by the United States of America dated 13 September 2010.

II. ARGUMENTS

A. T
HE CLEAR IDENTIFICATION OF THE FOURTH ADMINISTRATIVE REVIEW AND THE SUNSET
REVIEW MADE IN THE PANEL REQUEST SHOULD BE TAKEN INTO ACCOUNT IN PRELIMINARY
RULING ON THE CONTINUED USE OF CHALLENGED PRACTICES.

2. In this dispute, Vietnam contests the "con tinued use of challenged practices" clearly and
strongly in its first written submission, while the United States argues that the "continued use of
challenged practices" was not identified in Vietnam' s Panel Request, and it would appear to apply to
an indeterminate number of potential future measur es, and thus is not with in the Panel's Terms of
Reference.1

3. Although Vietnam did not use the term "conti nued use of challenged pr actices" in its Panel
Request, Korea notes that the Panel should review ca refully whether it could find a description in the
Panel Request that is sufficient to indicate the natu re of the "continued use of challenged practices".
Especially, Korea would like to emphasize that th e Fourth Administrative Review and the Sunset
Review, which seem to be parts of the "continued use of challenged practices", are inarguably within
Vietnam's Panel Request. Korea views that above-m entioned measures, as either components of the
"continued use of challenged practices" or as indepe ndent measures at issue, are subject to this
dispute.

B. T HE PANEL SHOULD FIND THAT THE PRACTICE OF "ZEROING" IN ADMINISTRATIVE REVIEWS IS
INCONSISTENT WITH ARTICLE 9.3 OF THE ANTI-DUMPING AGREEMENT AND ARTICLE VI:2 OF
THE GATT 1994

4. Korea considers the United States' arguments on United States' practice of zeroing in
administrative reviews unconvincing, and believes that the Panel should find that the United States'
practice of zeroing is inconsistent with the Anti-Dumping Agreement.

5. Specifically, the United States argues in its fi rst submission that the concept of "dumping"
and "margin of dumping" have a mean ing in relation to individual transaction, that is to say, dumping
may occur in a single transaction and dumping which occurs with respect to one transaction does not
need to be mitigated by the occurrence of anothe r transaction made at a non-dumped price. However,
the Appellate Body has explicitly rejected the United States' arguments that "dumping" and

1 U.S. First Written Submission, para. 87.

"margin of dumping" can be found to exist at th e level of individual transactions in ruling the
USDOC's practice of zeroing in periodic administrative reviews.2

6. The Appellate Body, in analyzing the con cept of "dumping" and "margin of dumping," has
examined the context in other provisions of the Anti-Dumping Agreement , such as
Articles 5.8, 6.10, 9.5 as well as the concept of injurious dumping, and concluded that the
Anti-Dumping Agreement does not refer to "dumping" and "margin of dumping" as existing at the
level of individual transactions. The argument by the United States is simply not compatible with the
rulings and reasoning of the Appellate Body's decisions.

7. Furthermore, the United States also argues that the term "product" used in Article 2.1 of the
Anti-Dumping Agreement and Article VI of the GA TT 1994 does not refer exclusively to "product as
a whole" and thus, the relevant provision does not require margins of dumping to be established on an
aggregate basis for the "product as whole". This argument is contrary to the Appellate Body's
reasoning in United States – Final Dumping Determination on Softwood Lumber from Canada
3, in
which the Appellate Body held that "margin of dumping" could only be established for the product
under investigation as a whole.4

8. Considering the Appellate Body's reasoning, Korea is unable to find that the USDOC's
zeroing methodology in the assessment proceedings rests on a permissible interpretation of the
Anti-Dumping Agreement and WTO-consistent.

III. CONCLUSION

9. For the reasons stated above, Korea respectfully requests that the Panel find the United States'
practice of zeroing as used in the administrativ e reviews in anti-dumping proceedings concerning
imports of certain shrimp from Vietnam to be inconsistent with the Anti-Dumping Agreement.

2 See US – Continued Existence and Application of Zeroing Methodology, Appellate Body Report,
3 See United States – Final Dumping Determination on Softwood Lumber from Canada, Appellate
Body Report, WT/DS264/AB/R, 11 August 2004, paras. 92 to 93.
4 Id. para. 99.

ANNEX B-4

THIRD PARTY WRITTEN SUBMISSION OF MEXICO

I. INTRODUCTION

1. This third party submission is presented by the Government of Mexico ("Mexico") with
respect to certain aspects of the United States – Anti-Dumping Measures on Certain Shrimp from
Viet Nam (WT/DS404). The issues addressed in this su bmission are contained in the First Written
Submission of the Socialist Republic of Viet Nam 1 and the First Written Submission of the
United States of America.2

2. As a World Trade Organization ("WTO") member likewise seeking compliance by the
United States with its WTO obligations in relatio n to the practice of "zeroing" in anti-dumping
("AD") duty "administrative reviews" 3 and related measures by the U.S. Department of Commerce
("USDOC"), Mexico has a systemic interest in the proper interpretation and application of the various
provisions of Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 (the " Anti-Dumping Agreement "), the General Agreement on Tariffs and Trade 1994
("GATT 1994"), and the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU"). Mexico appreciates this opportunity to participate in this proceeding and present
its views to the Panel.

3. Mexico will limit its response to issues of broader systemic concern. In particular, Mexico
will address: (1) the proper and important role of established Appellate Body precedent in subsequent
panel reviews dealing with identical issues; (2) the Anti-Dumping Agreement's clear preclusion of
zeroing in administrative reviews, as confirmed repeatedly by the Appellate Body; (3) the
appropriateness of Vietnam's challenge to the c ontinued use of zeroing as ongoing conduct subject to
WTO dispute settlement; (4) the appropriateness of Vietnam's challenge to zeroed rates incorporated
in measures within this Panel's term s of reference; and (5) the role of panel requests, as opposed to
consultations requests, in determining a panel's terms of reference.

II. THE PANEL SHOULD FOLLOW ESTABLISHED PRECEDENT OF THE
APPELLATE BODY

4. The zeroing methodology presented for review in this dispute has been ruled WTO-
inconsistent time and time again.
4 The First Written Submission of the United States raises no new
substantive arguments in defense of the zeroing measu re that have not been fully addressed in other
proceedings. Instead, the United States requests this Panel ignore the long line of consistent Appellate
Body rulings in this area and to chart a course of its own. This Panel should reject that invitation and
should adhere to the established WTO jurisprude nce – not only because the prior Appellate Body

1 First Written Submission of the Socialist Republic of Viet Nam, United States – Anti-Dumping
Measures on Certain Shrimp from Viet Nam , WT/DS404, 20 August 2010 ("Viet Nam First Written
Submission").
2 First Written Submission of the United States of America, United States – Anti-Dumping Measures
on Certain Shrimp from Viet Nam, WT/DS404, 13 September 2010 ("U.S. First Written Submission").
3 Period reviews, in the parlance of the Anti-Dumping Agreement, are referred to as "administrative
reviews" under U.S. law. These terms are used interchangeably throughout this third party submission.
4 See Appellate Body Report, US – Zeroing (EC) , para. 263; Appellate Body Report, US – Zeroing
(Japan), paras. 123-127, 190; Appellate Body Report, US – Stainless Steel from Mexico , para. 133; Appellate
Body Report, US – Continued Zeroing, para. 316.

decisions were correctly decided, but because there are strong system ic reasons to adhere to this
consistent body of law.

5. In an effort to distance itself from the long-lin e of contrary Appellate Body jurisprudence, the
United States argues that "[w]hile prior adopted pa nel and Appellate Body reports create legitimate
expectations among WTO Members, the Panel in this dispute is not bound to follow the reasoning set
forth in any Appellate Body Report." 5 The United States continues, "while the dispute settlement
system serves to resolve a particular dispute, and to clarify agreement provisions in the context of
doing so, neither panels nor the Appellate Body can adopt authoritative interpretations that are
binding with respect to another dispute." 6 However, this "does not mean that subsequent panels are
free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate
Body reports that have been adopted by the DSB," 7 and the United States vastly underplays the
important role of prior consistent rulings in future WTO disputes where the same issues have been
addressed by the Appellate Body.

6. As recognized both by WTO panels and the Appellate Body, there are important systemic
reasons for following the decisions of the Appellate Body in previous disputes when issues already
decided are presented again to a new panel. The Appellate Body has expressed its deep concern about
the implications of a panel ignoring prior Appella te Body reports on the same issues before it as
follows:

Dispute settlement practice demonstrates that WTO Members attach
significance to reasoning provided in previous panel and Appellate
Body reports. Adopted panel and Appellate Body reports are often
cited by parties in support of lega l arguments in dispute settlement
proceedings, and are relied upon by panels and the Appellate Body in
subsequent disputes. In addition, when enacting or modifying laws
and national regulations pertaining to international trade matters,
WTO Members take into account the legal interpretation of the
covered agreements developed in adopted panel and Appellate Body
reports. Thus, the legal interpretation embodied in adopted panel and
Appellate Body reports becomes part and parcel of the acquis of the
WTO dispute settlement system. Ensuring "security and
predictability" in the dispute settlement system, as contemplated in
Article 3.2 of the DSU, implies that, absent cogent reasons, an
adjudicatory body will resolve the same legal question in the same
way in a subsequent case.
In the hierarchical structure contemplated in the DSU, panels and the
Appellate Body have distinct roles to play. In order to strengthen
dispute settlement in the multilateral trading system, the Uruguay
Round established the Appellate Body as a standing body. Pursuant
to Article 17.6 of the DSU, the Appellate Body is vested with the
authority to review "issues of la w covered in the panel report and
legal interpretations developed by the panel". Accordingly,
Article 17.13 provides that the Appellate Body may "uphold, modify
or reverse" the legal findings and conclusions of panels. The creation
of the Appellate Body by WT O Members to review legal
interpretations developed by pane ls shows that Members recognized

5 U.S. First Written Submission, para. 68.
6 Id., para. 70.
7 Appellate Body Report, US – Stainless Steel from Mexico, para. 158 (citations omitted).

the importance of consistency and stability in the interpretation of
their rights and obligations under the covered agreements. This is
essential to promote "security and predictability" in the dispute
settlement system, and to ensure the "prompt settlement" of disputes.
The Panel's failure to follow previously adopted Appellate Body
reports addressing the same issues undermines the development of
a coherent and predictable body of jurisprudence clarifying
Members' rights and obligations under the covered agreements as
contemplated under the DSU . Clarification, as envisaged in
Article 3.2 of the DSU, elucidates the scope and meaning of the
provisions of the covered agreemen ts in accordance with customary
rules of interpretation of public international law. While the
application of a provision may be re garded as confined to the context
in which it takes place, the relevance of clarification contained in
adopted Appellate Body reports is not limited to the application of a
particular provision in a specific case.
We are deeply concerned about the Panel's decision to depart from
well-established Appellate Body jurisprudence clarifying the
interpretation of the same legal issues. The Panel's approach has
serious implications for the proper functioning of the WTO dispute
settlement system, as explained above.
8
7. In another dispute, the Appellate Body succi nctly summarized the same point, stating that
"following the Appellate Body's conclusions in earli er disputes is not only appropriate, but is what
would be expected from panels, especially where the issues are the same."9

8. This understanding of the significance of prior Appellate Body rulings to subsequent disputes
involving the same issues has also been emphasized specifically within the context of the U.S. zeroing
methodology at issue in this dispute. In US – Zeroing (EC) , the Appellate Body observed that
"[a]lthough previous Appellate Body decisions are not strictly speaking binding on panels, there
clearly is an expectation that panels will follow su ch decisions in subsequent cases raising issues that
the Appellate Body has expressly addressed. The Appe llate Body has stated that adopted Appellate
Body reports should be taken into account where they are relevant to any dispute."10

9. As explained in greater detail below, the s ubstance of Vietnam's zeroing claims have been
considered and affirmed in a long line of cons istent prior Appellate Body decisions. The
United States does not offer in its Written Submi ssion any new substantive arguments not already
rejected in previous proceedings. Accordingly, this Panel should adopt the reasoning from those prior
decisions and hold (yet again) the United States' zeroing methodology, including as applied in
administrative reviews and "sunset" reviews, in violation of the Anti-Dumping Agreement and the
GATT 1994.

8 Id., paras 160-162 (emphasis added).
9 Appellate Body Report, OCTG from Argentina , para. 188; see also Appellate Body Report, US –
Certain Shrimp and Shrimp Products (Malaysia)(21.5) , para. 109 ("[I]n taking into account the reasoning in an
adopted Appellate Body Report – a Report, moreover, that was directly relevant to the Panel's disposition of the
issues before it – the Panel did not err. The Panel was correct in using our findings as a tool for its own
reasoning.").
10 Panel Report, US – Zeroing (EC), para. 7.30.

III. THE UNITED STATES' ZEROING METHODOLOGY IS INCONSISTENT WITH
THE ANTI-DUMPING AGREEMENT

10. The United States' application of its zer oing methodology in administrative reviews has
repeatedly been held by the Appellate Body to violate the Anti-Dumping Agreement . The
United States asks this Panel to ignore establishe d precedent on the exact issue presented in this
dispute based on its erroneous theory that margins of dumping can be calculated at the transaction
level. This repeatedly rejected theory, which the United States potentially plans to employ to avoid its
WTO obligation not to zero, should be rejected yet again by this Panel. Moreover, the United States'
application of zeroing is not some how rendered consistent with the Anti-Dumping Agreement by
virtue of USDOC calculating certain dumping margins as zero or de minimis . Prior to addressing
these issues, however, Mexico will first highlight th e irrelevance of Article 17.6(ii) on which the
United States relies.
A. T HE UNITED STATES' EMPHASIS ON ARTICLE 17.6(II) IS MISPLACED IN THIS DISPUTE

11. Article 17.6(ii) of the Anti-Dumping Agreement is not relevant to this dispute, despite claims
by the United States to the contrary. Article 17.6(ii) provides:

the panel shall interpret the releva nt provisions of the Agreement in
accordance with customary rules of interpretation of public
international law. Where the panel finds that a relevant provision of
the Agreement admits of more than one permissible interpretation,
the panel shall find the authorities' me asure to be in conformity with
the Agreement if it rests upon one of those permissible
interpretations.
12. The United States seizes on the second sentence to suggest that it somehow renders zeroing
permissible under the Anti-Dumping Agreement . The United States is misguided about how
Article 17.6(ii) operates.

13. According to the United States, "[t]he ve ry premise underlying Article 17.6(ii) is that
two distinct interpretations can be permissible simu ltaneously: one that would render the measure at
issue consistent with the AD Agreement, and a nother that would render the measure at issue
inconsistent with the AD Agreement."
11

14. If an interpretation "would render the measure at issue inconsistent with the AD Agreement,"
nothing in Article 17.6(ii) makes that interpretati on permissible. Article 17.6(ii) never renders an
inconsistent measure permissible. Rather, Article 17.6(ii) merely clarifies that two interpretations
may both be "permissible" and consistent with a Member's obligations under the Agreement.
Accordingly, the second sentence only becomes relevant when application of the customary rules of
interpretation of international law yield more than one permissible interpretation.

15. As discussed in greater detail in the following section, the interpretation of the Anti-Dumping
Agreement advanced by the United States in this proceeding, in particular, is one that has repeatedly
been held impermissible based on application of the rules of in terpretation of international law, which
are embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties ("VCLT"). 12
Because the U.S. interpretation of the Anti-Dumping Agreement as allowing zeroing has always been
rejected for being impermissible under the language, context, and purpose of the treaty, the provision
in Article 17.6(ii) is irrelevant to this dispute.

11 U.S. First Written Submission, para. 66.
12 See Appellate Body Report, US – Hot-Rolled Steel from Japan, para. 57.

B. Z EROING IS UNQUESTIONABLY PROHIBITED IN ADMINISTRATIVE REVIEWS AND "SUNSET"
REVIEWS

16. Mexico would like to state very plainly that the United States raises no new issues that have
not already been squarely addressed by the Appellate Body. In short – the Anti-Dumping Agreement
prohibits the use of zeroing in any anti-dumpi ng proceeding and under any comparison method,
including those challenged here.
13 The Appellate Body has confirmed this fact no fewer than
five times, rejecting each of the United States' arguments raised here in the process.
17. Mexico has already challenged the same methodology employed by the United States under
the AD order on certain shrimp from Vietnam. In that dispute, the Appellate Body definitively ruled
that simple zeroing is "as such, inconsistent with Article VI:2 of the GATT 1994 and Article 9.3 of
the Anti-Dumping Agreement." 14 This ruling only confirmed the Appellate Body's ruling in US –
Zeroing (EC) that the zeroing methodology used by USDOC in administrative reviews is inconsistent
with the Anti-Dumping Agreement .15 Furthermore, the Appellate Body in US – Zeroing (Japan)
likewise found that zeroing in administrative reviews was "as such" and "as applied" inconsistent with
Articles VI:1 and VI:2 of the GATT 1994, and Articles 2.4 and 9.3 of the Anti-Dumping Agreement.16
The Appellate Body reconfirmed this ruling twice more in 2009 in US – Continued Zeroing and US –
Zeroing (Japan)(21.5) .17 This issue has been adequately addressed and resolved by the Appellate
Body.

18. In fact, one member of the Panel issued a separate concurring opinion in US – Continued
Zeroing to express frustration with the United States' recalcitrance, stating:

In matters of adjudication, there must be an end to every great
debate. The Appellate Body exists to clarify the meaning of the
covered agreements. On the question of zeroing it has spoken
definitively. Its decisions have been adopted by the DSB. ...
Whatever the difficulty of interpreting the meaning of "dumping", it
cannot bear a meaning that is both export-specific and transaction-
specific. ... One must prevail. The Appellate Body has decided the
matter. At a point in every debate, there comes a time when it is
more important for the system of dispute resolution to have a
definitive outcome, than further to pick over the entrails of battles
past. With respect to zeroing, that time has come.
18
19. As the member alluded to in the p assage above, and as the United States admits 19, the crux of
the argument on zeroing is whether "dumping" and "mar gins of dumping" are concepts that can have
meaning at the transaction-specific level, as the Unite d States suggests, or if they only have meaning
with reference to the "product as a whole," as Vietnam contends.

20. The Appellate Body has explained in no uncerta in terms that Vietnam's position is correct and
that the United States' interpretation is not permissible within the context of the Anti-Dumping
Agreement:

13 See Appellate Body Report, US – Zeroing (Japan), paras. 123-127, 190.
14 Appellate Body Report, US – Stainless Steel from Mexico, para. 133.
15 Appellate Body Report, US – Zeroing (EC), para. 263.
16 See Appellate Body Report, US – Zeroing (Japan), para. 190(c).
17 See Appellate Body Report, US – Continued Zeroing , para. 316; Appellate Body Report, US –
Zeroing (Japan)(21.5), paras. 195, 197.
18 Appellate Body Report, US – Continued Zeroing, para. 312.
19 See U.S. First Written Submission, para. 117.

A product under investigation may be defined by an investigating
authority. But "dumping" and "margins of dumping" can be found to
exist only in relation to that product as defined by that authority.
They cannot be found to exist for only a type, model, or category of
that product. Nor, under any comparison methodology, can
"dumping" and "margins of dumpin g" be found to exist at the
level of an individual transaction . Thus, when an investigating
authority calculates a margin of dumping on the basis of multiple
comparisons of normal value and export price, the results of such
intermediate comparisons are not, in themselves, margins of
dumping. Rather, they are merely "inputs that are [to be] aggregated
in order to establish the margin of dumping of the product under
investigation for each exporter or producer."
20
21. The Appellate Body has also been equally clear in refuting the United States argument, raised
again here, that the Anti-Dumping Agreement 's preclusion of zeroing is limited to original
investigations.21 Importantly, the Appellate Body has recogni zed that the definition of a product must
remain consistent through all stages of an inves tigation, and furthermore, that the concepts of
"dumping," "injury," and "margin of dumping" ar e interlinked and should be considered and
interpreted in a coherent and consistent manner for all parts of the Anti-Dumping Agreement.22 Based,
in part, on these premises, the Appellate Body concluded as follows:

We fail to see a textual or contextual basis in the GATT 1994 or the
Anti-Dumping Agreement for treating transactions that occur above
normal value as "dumped", for purposes of determining the existence
and magnitude of dumping in the original investigation, and as "non-
dumped", for purposes of assessing the final liability for payment of
anti-dumping duties in a period review. If as a consequence of
zeroing, the results of certain comparisons are disregarded only for
purposes of assessing final liability for payment of anti-dumping
duties in a periodic review, a mismatch is created between the
product considered "dumped" in the original investigation and the
product for which anti-dumping duties are collected. This is not
consonant with the need for consis tent treatment of a product at the
various stages of anti-dumping duty proceedings.
23
22. Even though the United States acknowledges that "[t]he Appellate Body has taken the view
that the definition of 'dumping' may only be interpre ted as applying at the 'level of the product under
consideration,' not individual export transactions," the United States nevertheless requests that this
Panel ignore the prior Appellate Body rulings a nd endorse the United States' transaction-specific
interpretation.

23. To avoid still more futile rounds of dis pute settlement at the WTO, this Panel should
reconfirm not only that zeroing is absolutely prohibited in all antidum ping proceedings, including
administrative reviews and sunset reviews, but that "dumping" and "margins of dumping" are
inherently aggregate concepts that apply exclusively to products as a whole under the Anti-Dumping
Agreement.

20 Appellate Body Report, US – Zeroing (Japan), para. 115 (emphasis added).
21 See U.S. First Written Submission, para. 111.
22 See Appellate Body Report, US – Stainless Steel from Mexico , para. 106; Appellate Body Report,
US – Continued Zeroing, para. 284.
23 Appellate Body Report, US – Continued Zeroing, para. 285.

24. In summary, the United States offers nothing mo re than rehashed arguments that have been
roundly rejected by the Appellate Body.

C. T HE UNITED STATES' CALCULATION OF ZERO OR DE MINIMIS RATES FOR INDIVIDUALLY
EXAMINED RESPONDENTS IN ADMINISTRATIVE REVIEWS DOES NOT RENDER ITS ZEROING
METHODOLOGY COMPLIANT WITH THE ANTI-DUMPING AGREEMENT

25. Despite its continued use of zeroing to cal culate the margins of dumping for individually
examined respondents in the second and third admini strative reviews, the United States argues that it
did not act inconsistently with Article VI :2 of the GATT 1994 and Article 9.3 of the Anti-Dumping
Agreement because zero or de minimis margins were calculated for all such respondents.24 Given that
no antidumping duties were assessed, the United Stat es reasons, it is not possible that antidumping
duties in excess of the margins of dumping were imposed, as prohibited by Article 9.3. The
United States ignores, however, the clear requirement in Article 9.3 that a margin be established
consistent with Article 2 (i.e. without zeroing).

26. The United States is correct that, under Article 9.3 of the Anti-Dumping Agreement , a
Member is prohibited from imposing an antidumpi ng duty in excess of the margin of dumping as
established in Article 2. Pursuant to Articles 9. 3.1 and 9.3.2, a Member is required to refund any
duties in excess of the actual margin of dumping determined under Article 2. A Member is, thus,
required to first calculate the margin of dumping for the relevant exporter(s) during the period of
review consistent with Article 2 (Step 1), and to then compare this amount to the total amount of
duties actually collected (Step 2). To the extent the latter is greater than the former, the Member must
provide refunds within the time allotted in Articles 9.3.1 and 9.3.2.

27. If the amount of duties actually collected on im ports from a particular exporter or exporters is
zero, it cannot exceed the actual margin of dumping. 25 Mexico therefore agrees that where no duties
are collected from an importer, as is the case wi th respect to the imports from the individually
examined respondents in the second and third ad ministrative reviews here, no violation of
Article 9.3.1 or 9.3.2 would exist. However, ev en where no duties are actually collected, the use of
zeroing in the calculation of the margin of dumping would still violate Article 9.3.

28. Specifically, the use of zeroing would violate th e obligation in the chapeau of Article 9.3 that
requires a Member to calculate a margin of dumpi ng "as established under Article 2" (Step 1 above).
As the Appellate Body has repeatedly affirmed, ze roing cannot be used to calculate a margin of
dumping under Article 2, including in periodic reviews.

29. Accordingly, a Member that used zeroing h as failed to calculate a "margin of dumping as
established under Article 2," regardless of whether any antidumping duties were actually collected on
the basis of that margin calculation. Accordingl y, USDOC's undisputed use of zeroing to calculate
the margins of dumping for individually examined respondents in the second and third administrative
reviews still violates the Anti-Dumping Agreement.

24 U.S. First Written Submission, para. 109.
25 Theoretically, zero duties collected would be great er than a negative margin of dumping, but a
Member is not required to provide refunds for sales above normal value. See Appellate Body Report, US –
Stainless Steel from Mexico, para. 113 n. 237; Appellate Body Report, US – Zeroing (Japan), para. 155 n. 363;
Appellate Body Report, US – Zeroing (EC), para. 131 n. 234.

IV. THE CONTINUED USE OF THE ZEROING PROCEDURES BY THE
UNITED STATES IS PROPERLY CHALLENGED AND SUBJECT TO PANEL
REVIEW IN THIS DISPUTE

30. The United States is also misguided in its request for a preliminary ruling that Vietnam's
challenge to the continued use of U.S. zeroing pr ocedures fails because it purports to include "future
measures." The United States argues that Vietna m appears to be challenging "an indeterminate
number of potential future measures," and that "[m]easu res that are not yet in existence are not within
a panel's term [sic] of reference under the DSU."
26 As the Appellate Body has confirmed, the
United States' position is flawed because it fails to recognize administrative reviews as segments of
the same proceeding and because it erroneously assumes that all future conduct is beyond the reach of
the WTO dispute settlement process.

31. The United States would like this tribunal to treat an AD order as series of autonomous and
independent measures. For the United States, a de finitive AD original determination would be an
independent measure from the first subsequent administrative review, which would be itself
independent from the second review, and so on with r espect to the third, fourth, and even after the
sunset review. Following the United States' sugges tion would mean that an application of a practice
in the original final determination that violates the Anti-Dumping Agreement, such as zeroing, would
be independent from the application of the same practice in the first administrative review, and
subsequent reviews. In the eyes of the United States, the AD order would be a series of
one-year-hit-and-run measures outside the scope of WTO dispute settlement.

32. The United States' only support for its contention is the panel report in United States –
Upland Cotton.
27 The United States' reliance on Upland Cotton is misplaced. In Upland Cotton, the
Panel found that payments under the Agricultural Assi stance Act of 2003 (the "Act") were not within
the Panel's terms of reference because the Act w as not enacted until after the panel request. As a
result, consultations were not sought or held on the payments under the Act. The Panel also
specifically "noted[d] that the cott onseed payments for each year were ad hoc appropriations, each
with a separate legal basis, which did not follow a single model." 28 The Panel further found that the
relevant section "did not amend or modify any existing or previous programme. Unlike Public
Law 107-25, it did not provide for assistance under an earlier law, it did not define the recipients as
those who had previously received assistance an it was not implemented by an existing regulation." 29
The Panel thus concluded that "[t]his evidence discl oses the existence of separate and legally distinct
cottonseed payment programmes for crops in different years rather than a single cottonseed payment
programme."30

33. In contrast, in this dispute Vietnam cha llenges the continued application of zeroing in
periodic reviews and "sunset" revi ews conducted as stages of a c ontinuous proceeding involving the
imposition, assessment, and collection of duties under the same AD order. In fact, USDOC's own
regulations regard administrative reviews as "segme nts" in one single proceeding beginning on the
date the anti-dumping petition is filed a nd continuing until the AD order is revoked.
31 Therefore,
Vietnam has every right to challenge in this di spute USDOC's continued use of zeroing in successive
proceedings under a single AD order.

26 U.S. First Written Submission, para. 96.
27 Id.
28 Panel Report, US – Upland Cotton, para. 7.162 (citations omitted).
29 Id., para. 7.165 (citations omitted).
30 Id., para. 7.167.
31 See 19 C.F.R. § 351.102(40),(47).

34. The Appellate Body endorsed just such a challenge in US – Continued Zeroing , where it
concluded that "continued use of the zeroing met hodology in successive proceedings in which duties
resulting from the 18 anti-dumping duty orders are ma intained, constitute 'measures' that can be
challenged in WTO dispute settlement." 32 The Appellate Body noted that the complaining Member,
"in seeking an effective resolution of its dispute with the United States, is entitled to frame the subject
of its challenge in such a way as to bring the ongoing conduct, regarding the use of the zeroing
methodology in [the case], under the scrutiny of WTO dispute settlement."33

35. In arriving at its conclusion, th e Appellate Body reasoned as follows:

As discussed, we are of the view that it can be discerned from the
panel request, read as a whole, that the measures at issue consist of
an ongoing conduct, that is, the use of the zeroing methodology in
successive proceedings in each of the 18 cases whereby anti-dumping
duties are maintained. The prospec tive nature of the remedy sought
by the European Communities is c ongruent with the fact that the
measures at issue are alleged to be ongoing, with prospective
application and a life potentially stretching into the future.
Moreover, it is not uncommon for remedies sought in WTO dispute
settlement to have prospective eff ect, such as a finding against laws
or regulations, as such, or a subsidy programme with regularly
recurring payments.

We see no reason to exclude ongoing c onduct that consists of the use
of the zeroing methodology from challenge in WTO dispute
settlement. The successive determinations by which duties are
maintained are connected stages in each of the 18 cases involving
imposition, assessment, and collection of duties under the same anti-
dumping duty order. The use of the zeroing methodology in a string
of these stages is the allegedly unchanged component of each of the
18 measures at issue. It is with respect to this ongoing conduct that
the European Communities brought its challenge, seeking its
cessation.
34
36. With respect to the AD order on certain shrimp from Vietnam, USDOC has applied zeroing at
every stage and has given no indication that it will change its approach in future stages. The
United States erroneously claims that Vietnam ca nnot establish a sequential st ring of determinations
over a period of time sufficient to justify a finding that zeroing would likely continue to be applied in
successive proceedings.
35 The United States reasons that this is so because: 1) the first, fourth, and
fifth administrative reviews are not within the Panel' s terms of reference; 2) zeroing did not impact
the individually examined respondents in the second a nd third administrative reviews; and 3) zeroing
arguably was not used to calculate the margin s for respondents not individually examined ( i.e. those
subject to a separate rate or the country-wide rate) in the second and third administrative reviews.36

32 See Appellate Body Report, US – Continued Zeroing, para. 185.
33 Id., para 181.
34 Appellate Body Report, US – Continued Zeroing, paras 171 and 181.
35 See U.S. First Written Submission, para. 219.
36 See id.

37. Even putting aside whether the United States' three premises are correct, an established and
sequential pattern can be established on this reco rd because, as a factual matter, USDOC applied
zeroing in every one of those reviews. Even if Vietnam's accession date precludes a WTO panel from
issuing legal rulings with respect to the first admi nistrative review, this Panel is not required to
pretend that, as a factual matter, that proceeding ne ver occurred. Therefore, this Panel has every
reason to believe, based on evidence of USDOC's c onsistent practice up to this point, that zeroing is
likely to continue in successive proceedings under the AD order on certain shrimp from Vietnam.
38. It is the ongoing conduct of the United Stat es in continuing to use zeroing in successive
determinations by which anti-dumping duties are app lied and maintained that Vietnam is challenging
as "ongoing conduct" here. Vietnam is entitled to fra me its challenge in way that subjects this
ongoing conduct to the scrutiny of WTO dispute settle ment. Accordingly, the United States' request
for a preliminary ruling in this respect should be denied.

V. THE ZEROED "SEPARATE RATES" INCORPORATED BY THE UNITED
STATES IN THE SECOND AND THIRD ADMINISTRATIVE REVIEWS ARE
PROPERLY CHALLENGED AND SUBJEC T TO PANEL REVIEW IN THIS
DISPUTE

39. The United States argues that "to the exte nt that Commerce relied on dumping margins
calculated during the investigation in later assessm ent reviews, the use of such margins in an
assessment review cannot result in a finding that the determination in the investigation is inconsistent
with Article 2.4.2 of the AD Agreement."
37 The United States relies on th is reasoning to suggest that
this Panel cannot review the "separate rates" determined in the second and third administrative
reviews, which merely adopted a weighted-average margin of dumping calculated using zeroing in the
original investigation. The United States misconstrues Vietnam's challenge in this regard.

40. As Mexico understands it, Vietnam is not seeking a finding that the determination in the
investigation is inconsistent with the Anti-Dumping Agreement . Such a finding would, in theory,
result in revocation of the AD order and would aff ect the assessment of duties on imports during the
period of investigation.

41. Rather, Vietnam is challenging the "separate ra te" (or "all-others rate") as determined in the
second and third administrative reviews, and there is no question that these reviews are properly
subject to review by this Panel.
38 The separate rates in these reviews are distinct determinations
published in by USDOC in the Federal Register and bear no obvious (or usua l) relationship to rates
determined in the original investigation. It is the United States that chose to incorporate data from the
original investigation to reach its determinations in these reviews and, regardless of whether that
decision was reasonable and WTO-consistent, it certainly cannot shield the United States'
determinations in the second and third administrative reviews from the scrutiny of this Panel.

42. Accordingly, this Panel should review Vietna m's challenge to the separate rates determined
by USDOC in the second and third administra tive reviews. And b ecause these rates were
unquestionably calculated through the use of zeroing, they should be rejected as unreasonable and
inconsistent with the Anti-Dumping Agreement.

38 See Viet Nam First Written Submission, paras. 208, 210.

VI. THE ORIGINAL INVESTIGATION IS NOT EXCLUDED FROM THIS PANEL'S
TERMS OF REFERENCE BY VIRTUE OF THE CONSULTATIONS BETWEEN
VIETNAM AND THE UNITED STATES

43. The United States argues that the original i nvestigation resulting in the AD Order on certain
shrimp from Vietnam is not subject to this Panel's terms of reference. The United States relies, in
part, on Vietnam's request for consultations.
39 The United States places undue emphasis on the
request for consultations and ignores Vietnam's request for the establishment of a panel.

44. Previous panels and the Appe llate Body have specifically highlighted that "a WTO panel's
terms of reference are governed by the complain ing Member's panel request, as opposed to it its
consultations request."40 Thus, the United States is incorrect in its suggestion that the consultations
request sets the matter in stone, thereby limiting wh at can properly be raised before this Panel. 41 As
the Appellate Body has noted, "the purpose of consulta tions is to clarify the facts of the situation and
to arrive at a mutually agreed solution." 42 Neither "Articles 4 and 6 of the DSU, [n]or paragraphs 1
to 4 of Article 4 of the SCM Agreement , require a precise and exact identity between the specific
measures that were the subject of consultations a nd the specific measures iden tified in the request for
the establishment of a panel."43

45. The Panel in United States – Continued Zeroing made clear that that, "as long as the
consultations request and the panel request concern the same matter, or dispute, claims raised in
connection with measures identified in the complain ing Member's panel request would fall within a
panel's terms of reference even if those precise measures were not identified in the consultations
request."44 Vietnam clearly cited USDOC's original inv estigation determination in its panel request.
The United States errs by failing to acknowledge or address this inclusion in the panel request, which
determines this Panel's proper terms of reference.

VII. CONCLUSION

46. Mexico appreciates the opportunity to par ticipate in these proceedings, and to present its
views to the Panel.

47. For the foregoing reasons, Mexico respectfully urges the Panel to find, consistent with
established Appellate Body precedent, that "dumpi ng" and "margin of dumping" are inherently
aggregate concepts that cannot exist on a transaction-specific basis, and thus, zeroing in
administrative reviews and sunset reviews is precluded by the Anti-Dumping Agreement and the
GATT 1994. Mexico requests that the Panel furthe r find that the United States' continued use of
zeroing in subsequent proceedings is properly subject to review by this Panel, as are zeroed rates
incorporated in measures within this Panel's terms of reference.