Document: WT/DS404/R Page D-1 ANNEX D ORAL STATEMENTS OF THIRD PARTIES OR EXECUTIVE SUMMARIES THEREOF Contents Page
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 D

ORAL STATEMENTS OF THIRD PARTIES OR
EXECUTIVE SUMMARIES THEREOF

Contents Page
Annex D-1 Third Party Oral Statement of China D-2
Annex D-2 Third Party Oral Statement of the European Union D-4
Annex D-3 Third Party Oral Statement of India D-8
Annex D-4 Third Party Oral Statement of Japan D-12
Annex D-5 Third Party Oral Statem ent of the Republic of Korea D-14

ANNEX D-1

THIRD PARTY ORAL STATEMENT OF CHINA

 China appreciates this opportunity to provide its views on two matters arising in this dispute.

I. INCONSISTENCY REGARDING THE COUNTRY-WIDE RATE PRACTICE

 China takes the view that the Country-Wide Ra te practice, as a result of the "Separate Rate
Application" practice adopted by the United States, is inconsistent with the AD Agreement.

 When determining antidumping rates for comp anies in economies that are not treated as
market economy by the United States, the USDOC requires that non-investigated companies first
satisfy some established criteria, i.e., Separate Rate Application, in order to receive a margin based on
the weighted average of the rates for the indi vidually investigated respondents, namely, by
establishing "an absence of central government control, both in law and in fact, with respect to
exports". Otherwise, what they receive woul d be a "country-wide rate" base on adverse facts
available.

 This is substantially differed from the USDOC 's practice for determ ining antidumping rates
for companies in market economies. In an antidumping proceeding involving a market economy
country, companies not individually investigated ar e assigned an "all-others" rate, which is based on
the weighted-average margins for the firms individually investigated.

 By adopting the Separate Rate Application practice, the United States introduces additional
requirement differentiating market economy and non-m arket economy, which is not provided in the
AD Agreement.

 According to the first sentence of Article 6.10 of the AD Agreement, it is clear that the
investigating authorities must, "as a rule", calcu late an individual dumping margin for each known
exporter or producer of the product under investig ation. The second sentence introduces an exception
to the principle laid out in the first sentence, i.e., where the number of exporting producers is so large
as to make the determination of an individual dum ping margin impracticable, investigating authorities
may limit their examination "by using samples". The Wording of Article 6.10 suggests that sampling
is the sole exception to the rule of individual margins.

 According to Article 6.10, there should be only two categories of respondents before the
investigating authorities, 1) those "samples" that are investigated and assigned individual rates, and
2) those not selected and assigned an "all-others" rate. The provisions of the AD Agreement never
requires non-selected companies to first demonstrate that they should be assigned an "all-others" rate.

 The United States argues that it is proper for the USDOC to consider that the Vietnam-Wide
entity as an exporter or producer under investigation. There is no legal basis for this argument.
Under the test applied by the panel in Korea-Certai n Paper, the investigating authorities have to show
that there is sufficiently close structural and comme rcial relationship between individual producers to
justify treating them as a single entity. If this ca nnot be demonstrated, the authorities, pursuant to the
first sentence of Article 6.10, must treat each legal entity as a separate producer/exporter, and
calculate individual dumping margins for each of them.

 In this case, China does not believe that the "sufficiently close stru ctural and commercial
relationship" exists.

II. ZEROING

 It is well-settled by the Appellate Body and panels that the practice of zeroing employed by
the United States, either in original investigations or in periodic reviews, is inconsistent with the WTO
obligations of the United States. China requests that the Panel recommend that the United States
bring its measures into conformity with its oblig ations under the relevant covered agreements of
the WTO.

 There are also some Chinese shrimp comp anies suffering from the related measures on
shrimp from China by United Stat es. China keeps on requesting the United States to recalculate the
antidumping rates for the affected Chinese exporti ng producers of shrimp, but has no substantial
result. China urges the United States to provide a pack age solution to this issue so as to fully bring its
measures into conformity with its obligations under the relevant covered agreement of the WTO.

 China thinks that it is not enough for the US DOC to modify its methodology in original
antidumping investigations with respect to the calcu lation of the weighted-average dumping margin.
According to the current practice of the USDOC, the relevant antidumping rates of the companies
assigned any antidumping rates before January 2007 cannot be recalculated retrospectively.

 China requests the United States to recalculate the antidumping rates also for such Chinese
companies, including those exporting producers of shrimp in China.

 For the stated reasons above, China requests that the Panel find that the U.S. measures at issue
violate relevant provisions of the AD Agreemen t and that the Panel recommend to the Dispute
Settlement Body to request that the U.S. bring its measures into conformity with its obligations under
the AD Agreement and the GATT 1994.

 Thank you for your attention.

ANNEX D-2

THIRD PARTY ORAL STATEMENT OF
THE EUROPEAN UNION

1. The European Union makes this third party oral statement because of its systemic interest in
the correct and consistent interp retation and application of the Anti-Dumping Agreement and the
Understanding on Rules and Procedures Govern ing the Settlement of Disputes (DSU) . The European
Union would like to briefly comment on the four main substantive issues in the current proceedings.

I. ZEROING

2. None of the issues in relation to the use of zeroing by the United States raised in this
proceeding are new. Vietnam's claims appear to be supported by a consistent body of reasoning and
findings, contained in all previous reports issued by panels and the Appellate Body, most recently in
EC – Continued Zeroing. Further, the United States has not ra ised anything new in its argumentation
to defend its zeroing methodologies and practices.

3. The European Union's oral statement on this matter will therefore be brief. In its written
submission the European Union set out at length the reasons why in its view, this Panel should follow
the findings and conclusions contained in previous pa nel and Appellate Body reports on zeroing. It is
beyond dispute that the practice of zeroing in an ti-dumping cases has been contested many times in
WTO dispute settlement proceedings. The Appellate Bo dy in particular has adjudicated on the issues
raised in this case frequently, including in cases involving different variations of zeroing, both in
original investigations and revi ew investigations, in different factual circumstances and between
different parties.

4. The United States does not contest this, but argues that this Panel should not follow these
prior Appellate Body reports. Further, the United States explicitly invites this Panel to re-apply
findings and follow the reasoning contained in panel re ports that have been rejected and overturned –
in many cases more than once – by the Appellate Body, in reports which have subsequently been
adopted by the DSB. The European Union submits that the suggestion by the United States that,
according to Article 11 of the DSU this Panel should be free to de part from adopted Appellate Body
reports on issues of law and legal in terpretations relating to the covere d agreements, is misguided. It
is rather the opposite. The Appellate Body itself h as addressed this very question in several cases,
notably in US – Stainless Steel from Mexico, and thus the U.S. proposition should be rejected.

5. On the substance, the European Union has set out its views in its written submission, and has
only a few comments in this oral statement, on two specific aspects of the U.S. written submission.

6. First, zeroing has nothing to do with "offsets" or "credits". The key issue and the fundamental
problem raised by the U.S. methodology is th e selection of the relatively low priced export
transactions per se , as a sub-category, as the only or preponderant basis for the dumping margin
calculation, regardless of whether or not they are clustered by purchaser, region or time. This does
not reflect the compromise set out in the text of Article 2.4.2 of the Anti-Dumping Agreement. It is
clear that according to Article 2.4.2 of the Anti-Dumping Agreement there are only three sub-
categories of clustered low priced export transacti ons that it is permissible to respond to: those
clustered by purchaser, region or time. Thus, it is not permissible, and it is not fair, to pick up low-
priced export transactions clustered by model or per se, as the U.S. zeroing methodology does. This
is also clear from the term "all" in the first sente nce of Article 2.4.2, and the definition of dumping in

Article 2.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 in terms of the
product as a whole; read together with the absence in the targeted dumping provisions of any
reference to a sub-category by model or low-priced transactions per se. Thus, the relevant provisions,
and particularly the normal rule and the exception, are read harmoniously, so as to give meaning –
both legal and economic – to all the treaty terms.

7. Second, the United States continues to re ly on the legally erroneous proposition that the
disciplines of Article 2.4.2 of the Anti-Dumping Agreement are excluded from retrospective
assessment proceedings. In this respect, we believe that the Panel does not n eed to enter into this
issue. Confronted with the same argument by th e United States, the Appellate Body has repeatedly
found that Article VI of the GATT 1994 and Articles 2.1 and 9.3 of the Anti-Dumping Agreement
require that the dumping margin must be established on the basis of the product under investigation as
a whole. In any event, should the Panel enter into this discussion, we invite the Panel to take into
account the analysis set out in our written submission.

II. VIETNAM-WIDE RATE

8. Moving on to the Vietnam-wide rate issue, the European Union considers that the
Anti-Dumping Agreement permits the calculation of dumping margins and the imposition of
anti-dumping duties on a country-wide basis in cases of imports from non-market economy countries,
such as Vietnam. Vietnam's references to the types of anti-dumping margins contemplated by
Articles 2, 6 and 9 of the Anti-Dumping Agreement are unavailing. In fact, Vietnam does not seem to
indicate the particular provision which the United States violates when calculating a Vietnam-wide
duty rate. In the EU's view, several provisions in the Anti-Dumping Agreement , in particular
Articles 6.10, 9.2 and 9.4, when read together, speak against Vietnam's claim.

9. First, Article 6.10, first sentence contains a general principle or preference for the calculation
of dumping margins on an individual basis, rather than a strict obligation to do so in each and every
case.

10. Second, Article 6.10, second sentence cannot be interpreted as meaning that sampling is the
only exception to the alleged general rule. In practi ce, there are more situations where the calculation
of dumping margins cannot be carried out on an in dividual basis: for example, when investigating
authorities cannot identify the relevant producer and actual source of dumping; or where the
information colleted and verified in the course of the investigation leads to identical dumping margin
results for all suppliers.

11. Third, the WTO case law interpreting Artic le 6.10 as not requiring the determination of
dumping margins for each legal entity in all cases furt her permits the determination of one dumping
margin for related companies as a whole, as a single supplier and the actual source of the alleged price
discrimination.

12. Fourth, Article 9.2 of the Anti-Dumping Agreement permits the imposition of anti-dumping
duties on a country-wide basis also in the par ticular case of imports from non-market economy
countries.
1 Indeed, absent market economy conditions, the State is considered the actual supplier and
the "source" of the alleged price discrimination, and any "amounts" collected from the State or its

1 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review , para. 150 ("Article 9.2 refers
to the imposition of 'an anti-dumping duty ... in respect of any product', rather than the imposition of a duty in
respect of individual exporters or producers. We ag ree that this reference in Article 9.2 informs the
interpretation of Article 11.3. (…) Therefore, Article 9.2 confirms our initial view that Article 11.3 does not
require investigating authorities to make their likelihood determination on a company-specific basis").

export branches (i.e., companies which do not act de jure or de facto independently from the State) is
"appropriate".
13. Fifth, in any event, the third sentence of Article 9.2 of the Anti-Dumping Agreement also
permits the imposition of duties on a country-wide b asis when there are several suppliers and it is
"impracticable" to specify individual anti-dumping duties per supplier. The notion of "impracticable"
implies "something which is not feasible in practice" or "something which cannot be done for
practical reasons". In other words, suppliers cannot be specified by name and duties cannot be
imposed on an individual basis because of "practical" reasons ( i.e., it would render those duties
ineffective, not feasible or not suited for being used for a particular purpose, i.e., offsetting or
preventing dumping from the actual supplier, that being the State in non-market economy countries).

14. Sixth, Article 9.4 of the Anti-Dumping Agreement cannot be the only exception to the
individual imposition of duties because, by defin ition, that would deprive the third sentence of
Article 9.2 of the Anti-Dumping Agreement of any meaning. In fact, this interpretation would make
that sentence (and particularly the term "imprac ticable") redundant and unnecessary, contrary to the
principle of effectiveness in treaty interpretation
2, since the only exception would already be
mentioned in Article 9.4.

15. Therefore, the European Union considers that , whilst not taking a position on the facts of this
case and, in particular on the U.S. methodol ogy to calculate dumping margins and impose
anti-dumping duties on the Vietnam-wide entity, the Anti-Dumping Agreement permits the imposition
of anti-dumping duties on a country-wide basis in cases of imports from non-market economy
countries.

III. ALL OTHERS RATE

16. With respect to Vietnam's claims against th e U.S. calculation of the "all others" rate, the
European Union recalls that, as the Appellate Body has noted, the absence of guidance in Article 9.4
on what particular methodology to follow does not im ply an absence of any obligation with respect to
the "all others" rate applicable to non-investigat ed exporters where all margins of dumping for the
investigated exporters are either zero, de minimis, or based on facts available.

17. The European Union has not encountered in its practical experien ce a case where all the
dumping margins found for the companies within the sample were zero/ de minimis or based on facts
available. However, the European Union consider s that, when all the results found for the sampled
companies are zero/ de minimis, the same result should be extrapolat ed to "all others" thus leading to
the non imposition of measures. In contrast, if some dumping margins are zero/ de minimis and some
others are based on facts available, a reasonable method should be followed in order to impose duties
on "all others" as well, for example, by taking into account the level of cooperation of exporting
producers. In this respect, the European Union i nvites the Panel to examine whether the methodology
used by the U.S. was reasonable in view of the specific circumstances of the case.

IV. LIMITATIONS IN THE NUMBER OF RESPONDENTS

18. Finally, as regards Vietnam's claims on the USDOC's limitations in the number of
respondents examined in each of the anti-dumping pro ceedings at issue and the continued denials of
requests by individual respondents to be individua lly examined, the European Union refers to the
exception contained in Article 6.10, second sentence. If the number of exporters or producers is so
large that individual examinations would be undul y burdensome to the authorities and prevent the
timely completion of the investigation, investig ating authorities are not required to individually

2 Appellate Body Report, US – Gasoline, p. 23, DSR 1996:I, at 21.

examine all known exporters or producers outside the samp le. It is for the Panel to verify whether the
facts of the case show that this was the case.

 Mr. Chairman, Members of the Panel, the Europ ean Union stands ready to participate further
in the discussion and answer any questions that this Panel may have. Thank you for your attention.

ANNEX D-3

THIRD PARTY ORAL STATEMENT OF INDIA

 India would like to thank the panel for providing an opportunity to present its views as a third
party in this dispute.

1. The issue of zeroing is of extreme systemic importance to the multilateral trading system. It
is a matter of regret that the United States continues to apply the "zeroing" methodology for
determining anti-dumping margins despite the well settled position of its de nouncement by numerous
reports of Panels and the Appellate Body that u se of this zeroing methodology is inconsistent with
Articles 2.4, 2.4.2, 9.3, 9.5 and 11.3 of the Anti-Dumping Agreement (ADA). The Appellate Body in
US – Zeroing (Japan), in US – Zeroing (EC), US – Softwood Lumber V has held that the United States
zeroing procedures, and anti-dumping measures adopted using these procedures, are inconsistent with
Articles 2.4 and 2.4.2, 9.3, 9.5 and 11.3 of the ADA.

2. Mr. Chairman, India believes that Members w ill eventually come to realize the futility of
pursuing the use of "zeroing". India is deeply concerned at the impact of the prolonged use of this
methodology on the credibility and predictability of the multilateral dispute settlement system. In
view of the settled jurisprudence by the Appellate Body, India believes that the panel will reiterate
that the practice of "zeroing" by any WTO Member in the original investigation, or during periodic or
administrative reviews and sunset reviews is in consistent with Member s' WTO obligations under
the ADA.

I. INTRODUCTION

3. Vietnam challenges three meas ures at issue and four practices adopted by the U.S. in this
dispute that relate to the imposition by the United States of antidumping duties under the USDOC's
antidumping duty order involving certain frozen and canned warm water shrimp from Viet Nam.

4. The U.S. practices under challenge are: (i) the use of zeroing to calculate antidumping
margins, (ii) the application of a country-wide rate to certain respondents not individually investigated
or reviewed, (iii) the all-others rate calculated and applied to certain other non-investigated or
non-reviewed respondents, and (iv) the repeated refusal by the USDOC to review individual
respondents requesting such a review and thus de termining margins for only a limited selection of
respondents.

 Mr Chair we will confine our statement in respect of two of the challenged practices;

5. Vietnam has claimed that each of these practic es limits the ability of Vietnamese exporters
and producers to prove the absence of dumping, resu lting in the continuation of an antidumping order
for companies that have in fact gone to great lengths to alter their conduct to eliminate dumping.

6. India understands that Vietnam has challenge d the USDOC's use of zeroing to determine
margins of dumping for selected respondents in th e second and third administrative reviews and the
USDOC's continued use of the so called zeroing pro cedures in successive segments of the continuing
proceedings of certain frozen warm water shrimp from Viet Nam (including subsequent administrative
reviews and the five year sunset review) .Vietnam also requests the Panel to examine the USDOC's
use of zeroing in the original investigation and firs t administrative review to the extent they are
relevant to the challenged measures.

7. Vietnam challenges the U.S. practices as inc onsistent with United States obligations under
Article VI of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Agreement").
Vietnam alleges that the USDOC has relied on, and continues to rely on, the above-listed practices for
each stage of the antidumping proceeding.

A. C LAIM OF USE OF ZEROING IN THESE PROCEEDINGS AS INCONSISTENT WITH UNITED STATES
WTO OBLIGATIONS

8. Vietnam challenges the USDOC's zeroing, as a pplied, in two administrative reviews and its
continued use in subsequent phases of this antidumping proceeding. Vietnam states that the
USDOC's Final Determination in the original invest igation stated in explicit terms that the USDOC
utilized the model zeroing and acknowledged the u se of the same zeroing methodology that was at
issue in the US – Softwood Lumber V dispute. Vietnam states that as the USDOC stated plainly in the
determinations, the zeroing methodology has been applied in each phase of this antidumping
proceeding.

9. Vietnam, thus, challenges the USDOC's u se of the zeroing methodology in the original
investigation to determine the "all- others" rate in the subsequent ad ministrative reviews. It alleges
that the USDOC relied on the margin calculated in the original investigation for purposes of assigning
rates in subsequent administrative reviews. Thus, the USDOC's use of the zeroing methodology has a
direct relationship with the measures at-issue in th is dispute. The USDOC's use of zeroing at the
investigation phase produced a higher assessment and cash deposit rate for exports in the subsequent
reviews than would have existed but for use of the WTO-inconsistent zeroing calculation.

10. India states that in the c ase the U.S. has used the zeroing methodology in the original
investigation it would lead to an inflated dumping ma rgin rate. This would be in conflict with the
well settled WTO jurisprudence wherein zeroing has been held to be inconsistent with the provisions
of the WTO Agreements. As per Vietnam's clai m, the use of such zeroing methodology in the
original investigation to determine the "all others " rate in subsequent administrative reviews would
also lead to inflated rates and be inconsistent with the WTO Agreements. The Appellate Body in US
– Zeroing (Japan) , has, ruled that the "maintenance" of zer oing procedures in original investigations
and administrative reviews is incons istent with Article 2.4 of the ADA. It states that "[I]n a review
proceeding under Article 9.3.1, the authority is required to ensure that the total amount of
anti-dumping duties collected from all the importers of that product does not exceed the total amount
of dumping found in all sales made by the exporter or foreign producer, calculated according to the
margin of dumping established for that exporter or foreign producer without zeroing. The AB held in
US – Zeroing (EC) that the zeroing methodology, as applied by the USDOC in the administrative
reviews at issue, is inconsis tent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of
the GATT 1994. The AB in US – Stainless Steel (Mexico) found that the use of zeroing by the
USDOC in administrative reviews was in consistent with Article 9.3 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994.

11. On a reading of the opening clause of Article 2.1 of the ADA, the Appellate Body has also
ruled that the definition of "dumping" "applies to the entire ADA including the provisions governing
administrative reviews such as in US – Zeroing (Japan) ; US – Softwood Lumber V , and US –
Corrosion-Resistant Steel Sunset Review.

12. India has consistently opposed the use of the zeroing method in calculating dumping margins
from its initial dispute initiated against the EC as zer oing is inconsistent with Article 2.4.2 of the
ADA.
1 India states that it is important that this Panel reiterates and reinforces the conclusion that

1 DS141 (EC – Bed Linen)

practice of zeroing as stated above is "as such" in consistent with the obligations under GATT, 1994,
Anti-Dumping Agreement and the Agreement for Esta blishing the WTO as consistently held by the
Panels and Appellate Body in sev eral reports. Any other conclusion would result in the purported
continuance of the zeroing practice, which not only inflates dumping margins, but also detracts from
the obligation to undertake an objective examination of the impact of dumped imports and ascribes
dumping even in cases where no dumping may exist. India urges that in the interest of judicial
economy and fairness, the Panel should follow the judicial well settled position and find that the
zeroing used in this proceeding by the USDOC, violates United States' obligations under the
WTO Agreement.

B. C LAIMS OF INCONSISTENCY REGARDING THE ALL OTHERS RATE

13. Vietnam states that the USDOC generally calculates the all others rate based on the weight-
average of the weighted average margins of the firms individually examined excluding those margins
that are zero, de minimis or based on facts available. Vietnam states that the all others rate applied in
the second and third administrative reviews was b ased on the "All others rate" in the original
investigation. In turn, the "all others" rate from the original investigation was determined by taking
the weighted average of margins of dumping determ ined for individually investigated respondents in
the original investigation using "model zeroing".

14. Vietnam argues that Article 2.4.2 requires that a fair comparison shall be made between the
export price and the normal value. Anti dumping margins that do not adhere to Article 2 are
construed to be WTO inconsistent and must be recalculated.

15. Article 9.4 require that these anti dumping ma rgins calculated in a manner consistent with
Article 2 serve as a basis for the administrating authority's calculation of the All Others rate. Thus, the
weighted average of dumping for those companies in dividually examined is the ceiling for the margin
of dumping to be applied to the All Others Rate.

16. India would, thus, support the view that margins of dumping determined in original
investigations using zeroing are inconsistent among others with Articles 2.4 and 2.4.2 of the ADA and
that an "all others" rate calculated by using WTO inconsistent model zeroing in the original
investigation violates Article 9.4 of the ADA. Theref ore, the "all others rate" applied in the second
and third administrative reviews is inconsistent with Article 9.4 of the ADA.

17. In Appellate Body Report, US – Hot-Rolled Steel , it has been held that Article 9.4 simply
identifies a maximum limit, or ceiling, which investigating authorities ' shall not exceed ' in
establishing an 'all others' rate". The AB has also held that, although Article 9.4 addresses the
calculation of the ceiling for the "all others" rate, as opposed to the "all others" rate itself, it does not
provide unlimited discretion to investigating authorit ies when no ceiling can be calculated due to the
lacuna in Article 9.4.

 We quote:

"[W]e do not agree with the Panel's statemen t that, in situations where all margins of
dumping are either zero, de minimis, or based on facts available, Article 9.4 "simply
imposes no prohibition, as no ceiling can be calculated." In our view, the fact that all
margins of dumping for the investigated ex porters fall within one of the categories
that Article 9.4 directs investigating author ities to disregard, for purposes of that
paragraph, does not imply that the investigating authorities' discretion to apply
duties on non-investigated exporters is unboun ded. The lacuna that the Appellate
Body recognized to exist in Article 9.4 is one of a specific method. Thus, the absence
of guidance in Article 9.4 on what particular methodology to follow does not imply an

absence of any obligation with respect to the "all others" rate applicable to
non-investigated exporters where all marg ins of dumping for the investigated
exporters are either zero, de minimis, or based on facts available."
18. However, the Appellate Body has not stated the bounds of an investigating authority's
obligations under Article 9.4 in determining an "all others" rate when the lacuna exists.

19. In India's view, a point for consideration is whether Article 9.4 of the ADA require a
mandatory obligation on the Investigating Authorit y to make a fresh or updated determination in a
review on the basis of respondents selected in the re view. In the case that no such obligation exists
then the investigating authority may apply the uncha nged "All Others rate" calc ulated in the original
investigations as the USDOC has done as claimed by Vietnam in the present case. India would like to
submit to the Panel that the language used in Article 9.4 suggest that the All Others rate be based on
the weighted average margin of dumping calculated for "selected" exporters or producers. In an
administrative review, if the investigating aut hority has made a new selection of exporters and
producers and calculates new margins for them, then a reading of Article 9.4 may suggest that the
margin of dumping be based on the new "selected" exporters or producers.

20. It appears that the dispute at hand falls within the lacuna described above. Further, it has been
held that in such matters, the discretion with the investigating authorities to apply duties on non
investigated exporters is not unbounded and does no t imply an absence of any obligation with respect
to the all others rate applicable to non investigated exporters.2

21. A point for consideration for the Panel, maybe whether it is incongruous that if the
individually examined producers are no longer dumping (as in the second and third administrative
reviews in the present dispute) and not paying anti dumping duties on their imports, should there be a
rationale (on the basis of rates calculated in the original investigation) to impose duties on non
examined exporters during the same period. It has been held in US – Hot-Rolled Steel and US –
Zeroing (EC) (21.5) that the purpose of Article 9.4 is to "pre vent" exporters that were not selected for
participation in the review from being "prejudiced".

22. In view of the lacuna in Article 9.4 as stated above, India would therefore, urge the Panel to
examine the consistency of U.S. measures as regard s determination of "all others rate" with its
obligations under Article 9.4 of the ADA.

 We would like to end our submission with tha nking the panel again for providing us with is
opportunity.

2 US – Zeroing (EC) (21.5) (ABR).

ANNEX D-4

THIRD PARTY ORAL STATEMENT OF JAPAN

1. Japan appreciates the opportunity to present its views as a third party in this important
dispute. The views expressed today and in our written submission are based on Japan's systemic
interest in the sound interpretation of the legal obliga tion at issue. In this statement, Japan would like
to briefly tough upon the following three points: (1 ) the issue of zeroing in administrative reviews;
(2) whether the United States' application of the "a ll others" rates are inconsistent with members'
obligations under the Anti-Dumping Agreement; and (3) Viet Nam's claims of inconsistency
regarding the country-wide rate with the Anti-Dumping Agreement.

2. First, Japan will not reiterate its arguments set out in our third party submission here. Suffice
it to say that all of the relevant legal issues involved over the WTO-inconsistency of the zeroing
methodology in the context of administrative view s have been thoroughly and fully examined and
already resolved by the Appella te Body based on well-reasoned analyses in the previous zeroing
disputes. Japan agrees with the Viet Nam that the use of zeroing in administrative reviews is
inconsistent with Article 2.4 and Article 9.3 of th e Anti-Dumping Agreement, and Article VI:2 of the
GATT 1994.

3. Second, as stated in Japan's written submission, Japan is of the view that the USDOC's
determinations of "all others" rate in the second and third administrativ e reviews is inconsistent with
its obligation under Article 9.4 of the Anti-Dumping Agreement. Japan considers that the USDOC is
obliged to determine a contemporaneous "all others " rate in an administrative review based on the
dumping margins determined for respondents selected in that review. If the USDOC finds that the
each of the rates determined for th e selected respondents was zero or de minimis , then the only
reasonable outcome is to apply "all others" rate of zero, because none of the exporters individually
examined for that period was found to be engaged in dumping. There is no basis to assume that
during the same period, non-examined exporters should be subject to anti-dumping duties. Even if the
panel determines that an investigating authority ma y apply the "all others" rate determined in an
original investigation to non-selected exporters in ad ministrative reviews, such all other rate must be
based on WTO-consistent margins of dumping. The ad ministrative reviews and the all others rate at
issue are subject to the disciplines of the Anti- Dumping Agreement, and the term "margins of
dumping" in Article 9.4 refers to margins of dumping that are WTO-consistent at the time when they
are used to calculated the all other rate.

4. Third, Japan wishes to offer a few observations to Viet Nam's claims of inconsistency
regarding the "country-wide" rate with the An ti-Dumping Agreement. The first sentence of
Article 6.10 of the Anti-Dumping Agreement estab lishes a general obligation to determine an
individual dumping margin for each known exporter or producer concerned. Viet Nam argues that the
"country-wide" rate to exporters of subject merchandise that did not meet "separate rate criteria" was
not permitted under the Viet Nam's Protocol of Accession or the Anti-Dumping Agreement.
1
The U.S., in contrast, argues that the rate was a ssigned to those companies that had not established
that they are free from government influence, part icularly in their export activities, and thus are
reasonably considered to be parts of one entity that the USDOC has identified as an "exporter" or
"producer".2

1 See Viet Nam's First Written Submission, Section VI.B.
2 See U.S. First Written Submission, Section V.C.

5. Japan considers that the Anti-Dumping Ag reement allows investigating authorities to
calculate a single dumping margin for "legally dis tinct entities" to the extent that they can be
considered a single "exporter" or "producer" in th e sense of the first sentence of Article 6.10,
However, as explained by the panel in Korea – Certain Paper, the treatment of legally distinct entities
as a single exporter or producer is allowed only in the case where "the structural and commercial
relationship between the companies in questions is sufficiently close to be considered as a single
exporter or producer."3

6. This question becomes particularly pertin ent in a case like this where non-market economy
involves because of a particular role the government plays in non-market economy. Therefore, Japan
requests that the panel pay special attention to the role of the government of Viet Nam in its economy
in examining whether the exporters or producers to which the "country-wide" rate is applied have
structural and commercial relationship between themselves and the government.

7. This concludes Japan's oral statement. Jap an thanks for this opportunity. Japan would
welcome any questions you may have.

3 See Panel Report, Korea – Certain Paper, para. 7.161 – 7.162.

ANNEX D-5

THIRD PARTY ORAL STATEMENT OF
THE REPUBLIC OF KOREA

1. The Republic of Korea ("Korea") appreciates this opportunity to present its views on key
issues included in Korea's third party submission.

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

2. First, in this dispute, Vietnam contests the "continued use of 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.

3. Korea finds that "continued use of challenge d practices" is not a mere potential future
measure as alleged by the United States. Rather , that is an ongoing use of zeroing practice in
successive proceedings of a certain anti-dumping case, which has some similarity with the measure in
the US – Continued Zeroing case.

4. With respect to whether it was properly iden tified in Vietnam's Panel Request, Korea notes
that the Panel should review carefully whether it co uld find a description in the Panel Request that is
sufficient to indicate the nature of the "continued use of challenged practices". Especially, Korea
would like to emphasize that the Fourth Administrative Review and the Sunset Review, which seem
to be parts of the "continued use of challenged practices", are inarguably within Vietnam's Panel
Request. Korea is of the view that above-mentioned measures, as either components of the
"continued use of challenged practices" or as indepe ndent measures at issue, are subject to this
dispute.

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

5. Regarding the United States' practice of zeroing in administrative reviews, Korea is of the
view that the Panel should find that the Unite d States' practice is inconsistent with the Anti-Dumping
Agreement.

6. The United States argues the measures at is sue rest on a permissible interpretation of
Anti-Dumping Agreement, and thus, they are WTO-consistent. Specifically, the United States asserts
that the concept of "dumping" and "margin of dum ping" have a meaning in relation to individual
transaction, that is to say, dumping may occur in a single transaction and dumping which occurs with
respect to one transaction does not need to be mitigated by the occurrence of another transaction made
at a non-dumped price. However, the Appellate Body has explicitly rejected the United States'
arguments that "dumping" and "margin of dumping" can be found to exist at the level of individual
transactions in a previous ruling regarding the USDOC's practice of zeroing in periodic administrative
reviews.

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

8. Korea is of the view that the argument by the United States is simply not compatible with the
rulings and reasoning of the aforementioned Appellate Body's decisions. Korea is unable to find any
reason for the Panel to see the USDOC's zeroing me thodology in the assessment proceedings rests on
a permissible interpretation of the Anti-Dumping Agreement , although the Panel should make an
objective assessment of the matter before it.

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