Document: WT/DS404/R Page A-1 ANNEX A EXECUTIVE SUMMARIES OF THE FIRST WRITTEN SUBMISSIONS OF THE PARTIES 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 A

EXECUTIVE SUMMARIES OF THE FIRST WRITTEN
SUBMISSIONS OF THE PARTIES

Contents Page
Annex A-1 Executive Summary of the First Written Submission of
Viet Nam
A-2
Annex A-2 Executive Summary of the First Written Submission of the
United States
A-11
Annex A-3 Response of Viet Nam to the United States' Request for
Preliminary Rulings
A-21

ANNEX A-1

EXECUTIVE SUMMARY OF THE FIRST
WRITTEN SUBMISSION OF VIET NAM

I. INTRODUCTION

1. Viet Nam's First Written Submission in US – Anti-Dumping Measures on Certain Shrimp
from Viet Nam provides the factual context and legal argum ents challenging certain practices used by
the United States Department of Commerce ("USDOC") in the ongoing antidumping proceedings
involving certain shrimp products from Viet Nam. Each of these practices limits the ability of
Vietnamese exporters and producers to prove the abse nce of dumping, resulting in the continuation of
an antidumping order for companies that have in fa ct gone to great lengths to alter their conduct to
eliminate dumping.

2. Specifically, the four claims set forth in the First Written Submission challenges practices
that, as applied, are inconsistent with Unite d 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"): (1) the use of zeroing
to calculate antidumping margins, (2) the application of a country-wide rate to certain respondents not
individually investigated or reviewed, (3) the all- others rate calculated and applied to certain other
uninvestigated or unreviewed respondents, and (4) the repeated refusal by the USDOC to review
individual respondents requesting such a review a nd thus determining margins for only a limited
selection of respondents. The USDOC has relied on, and continues to rely on, the above-listed
practices for each stage of the antidumping proceeding.

II. THE MEASURES AT ISSUE

3. The three measures at issue in this dispute relate to the imposition by the United States of
antidumping duties under the USDOC's antidumping duty order involving certain frozen and canned
warmwater shrimp from Viet Nam (case number A-552-802). The USDOC issued its final
determination of sales at less than fair value for the original investigation on 8 December 2004, and
subsequently published an amende d determination and antidumping dut y order on 1 February 2005.
Since imposition of the antidumping duty order, USDOC has completed four periodic reviews, issued
a preliminary determination in the fifth periodic re view, and issued a preliminary determination in a
Five-Year ("Sunset") review.

4. Viet Nam's date of accession to the World Tr ade Organization is 11 January 2007. Two of
the above-referenced determinations in the shrimp proceedings have been initiated and completed
subsequent to Viet Nam's accession and prior to the re quest for consultations in this dispute. Thus,
the measures at issue are the second and third administrative reviews made pursuant to the
antidumping duty order, and the c ontinued use of the challenged pr actices in successive antidumping
proceedings under this order. The second admi nistrative review of antidumping duties covered
entries during the period from 1 February 2006 th rough 31 January 2007, and the final results were
published on 9 September 2008. The third ad ministrative review covered entries from
1 February 2007 to 31 January 2008, and the final results were published on 15 September 2009.
5. The third measure is the continued use of the practices challenged in the above-referenced
claims in successive segments of the proceeding under the shrimp antidumping order. This includes
the fourth administrative review, the fifth administ rative review, and the five-year (sunset) review.

Consistent with the Appellate Body's interpretation of the Agreement and the Understanding on Rules
and Procedures Governing the Settlement of Disputes , the USDOC's actions in connection with these
practices constitute "ongoing conduc t" that is subject to consider ation by the reviewing panel.
Judicial economy and fundamental fairness require inclusion of this measure because the USDOC has
given no indication that it intends to alter these practices in any future segment of this proceeding.

6. The particular factual situation of this dispute also makes relevant the USDOC's
determination in the original investigation and the final results of the first administrative review.
Although not measures, these determinations are impor tant for the Panel to review and understand
because of their impact on the measures that are at issue in this dispute.

III. FACTS

7. The claims raised for the three measures at issue involve four practices adopted and used by
the USDOC at each stage of the proceeding: (1) the use of zeroing; (2) application of a country-wide
rate; (3) the chosen calculation method for the all- others rate; and (4) th e limited selection of
respondents subject to individual review.

A. T
HE USDOC'S ZEROING METHODOLOGY

8. The USDOC calculates the margin of dumpi ng based on a comparison of normal value and
United States export price or constructed export pr ice. Normal value in proceedings involving a
nonmarket economy country is based on the producer 's factors of production, which include
individual inputs for raw materials, labor, and energy based on the actual production experience of the
individual respondent. The USDOC relies on surroga te values to determine the price at which the
factors of production would be acquired in a market setting, relying on a specific surrogate country for
this exercise. In the case of Viet Nam, this surrogate country has been Bangladesh. The USDOC then
applies ratios for overhead, selling, general and admini strative expenses, and profit to the calculation.
The resulting normal value is compared to the export price or constructed export, which is the price at
which the product is first sold to an unaffiliated purchaser.

9. The comparison of normal value and pri ce is made between products of similar
characteristics. That is, within the broad categor y of subject merchandise – certain frozen and canned
warmwater shrimp – are many sub-categories with differing key characteristics, as determined by the
USDOC. Each of these sub-categories, or "models" under USDOC terminology, is assigned a control
number ("CONNUM") by the USDOC.

10. In original investigations, the USDOC u tilizes "model zeroing," where each sales transaction
is weight-averaged by CONNUM, and each weighted-a verage model is compared to the normal value
for that CONNUM; the results of these intermediate calculations for each CONNUM are then
aggregated to determine the overall margin of dumping. Positive dumping in the intermediate
calculation occurs when the normal value exceed s the average export price of an individual
CONNUM; negative dumping occurs when the averag e export price exceeds normal value. Zeroing
arises in instances of negative dumping, where th e USDOC eliminates the results of that specific
CONNUM before calculating the overall weighted dumping margin for the exporter: any instances of
negative dumping are set to zero, as opposed to a llowing the negative dumping to offset the positive
dumping.

11. The overall margin is calculated using only the CONNUMs that produce a positive dumping
margin. The USDOC creates a fraction to calcu late the overall dumping margin, using as the
numerator the total amount of dumping by model, based only on margins that were positive at the
intermediate, model-specific stage of comparison. For models with negative dumping, the USDOC
ignores the results, thereby inflating the numerator by an amount equal to the excluded negative

comparison results. The denominator of the fraction is the total value of all export transactions for all
models under investigation. Expressing this fraction as a percentage results in the "weighted average
dumping margin" for the investigation, which for companies selected for individual investigation
serves as the cash deposit rate for entries made after publication of the antidumping order. For
companies not individually investigated that sa tisfy the USDOC's separate rate criteria (further
discussion below), the USDOC will generally take the weight-average of the weighted-average
margins of the firms individually investig ated, excluding margins that are zero, de minimis, or based
on adverse facts available. Thus, the model zer oing methodology similarly impacts the antidumping
margin for these companies.

12. It cannot be reasonably argued that the USDOC did not use model zeroing in the investigation
at issue in this dispute. Viet Nam provides subs tantial documentation demonstrating that the USDOC
used a methodology identical to the methodology previously considered by the Appellate Body in
US – Softwood Lumber V . The USDOC's Issues and Decision Memorandum, which accompanies
publication of the final determination, states in e xplicit terms that intermediate model comparisons
that produced negative dumping margins were not permitted to offset model comparisons that
produced positive dumping margins, effectively ignoring these sales made by the respondents,
regardless of the amount of volume involved. Fu rther, Viet Nam provides the actual computer
program outputs and logs for two of the mandatory respondents in the investigation, pinpointing the
exact lines in the programming that execute the zeroing methodology.

13. In administrative reviews, the USDOC engag es in simple zeroing, which differs with the
above method for calculating antidumping margins onl y in the comparison that is made at the
intermediate step. In administrative reviews, individual export transactions are compared with a
contemporaneous weighted-average normal value; the amount by which normal value exceeds the
export price is the dumping margin for that expor t transaction. As with model zeroing, these
intermediate comparisons may produce either positi ve or negative dumping margins; once again,
comparisons that produce a negative dumping margin are ignored for purposes of calculating the
overall dumping margin. Instead of zeroing by m odel, as with model zeroing, the USDOC here
zeroes by individual export transaction. The result is similar, in that the total amount of dumping
reflected in the numerator is inflated by an amount equal to the excluded negative differences.

14. As stated above, it cannot reasonably be disput ed that the USDOC engaged in simple zeroing
in the administrative reviews considered in this di spute. In each completed administrative review, the
USDOC has confirmed in its Issues and Decision Me morandum that it did not permit the intermediate
negative dumping margins to offset the intermed iate positive dumping margins when calculating the
overall antidumping margin. The computer program logs and outputs provided by Viet Nam, which
are in fact the logs and outputs released by th e USDOC following completion of the administrative
reviews, further substantiate this fact.

B. T
HE USDOC'S COUNTRY-WIDE RATE PRACTICE

15. The USDOC practice for determining antidumping margins for Vietnamese companies not
individually reviewed differs substantially from the practice for market economy countries. In the
shrimp proceedings, the USDOC creates two categories of companies not individually reviewed:
those assigned an "all-others" rate (in USDOC terminol ogy this is called a "separate rate"), consistent
with the Agreement; and those assigned what is called a "Vietnam-wide" rate.

16. Companies wanting to receive the all-others rate must satisfy the USDOC's separate rate
criteria. This requires that companies not individually reviewed submit to the USDOC a "separate
rate application" or a "separate rate certification", to establish the absence of government control, both
in law and in fact, with respect to exports. Co mpanies must present evidence to satisfy the criteria
established by the USDOC to prove the absence of gove rnment control. Companies that satisfy the

criteria will typically receive a rate based on the we ighted average of the rates individually calculated
for the mandatory respondents, excluding rates that are zero, de minimis, or based on facts available.
Companies that do not satisfy the USDOC's criteri a receive the Vietnam-wide rate, a punitive rate
based on adverse facts available. The result of this practice is grossly inflated margins for companies
that are unable to satisfy the unjustified criteria established by the USDOC.

17. In these antidumping proceedings, companies that do not satisfy the separate rate criteria have
been assigned a Vietnam-wide rate of 25.76 per cent for the first, second, third, and fourth
administrative reviews. In contrast, the rate for companies that satisfied the separate rate criteria
was 4.57 percent for the first, second, and third admi nistrative review, and 4.27 percent for the fourth
administrative review.

C. USDOC'
S LIMITED SELECTION OF MANDATORY RESPONDENTS AND APPLICATION OF THE
"ALL-OTHERS" RATE TO RESPONDENTS NOT INDIVIDUALLY REVIEWED

18. The United States antidumping law sets forth the general requirement that all exporters
seeking individual investigation or review have the opportunity to do so. The law provides a limited
exception to this general rule where doing so would be impracticable because of the large number of
exporters or producers requesting investigation or review.

19. At each segment of this antidumping proceeding, the USDOC has severely limited the
number of companies that it individually reviews. Following initiation of the investigation and
administrative reviews, the USDOC issues a respondent selection memorandum in which
two determinations are made: whet her it would be practicable to individually examine all companies
and, if not, the number and specific identity of those companies for which examination will take
place. The USDOC has individually examined between two and four companies at each phase of this
antidumping proceeding, despite requests for review that consistently exceed 30 companies. In each
memorandum, the USDOC provides the identical ra tionale for limiting the number of companies
examined: that the office conducting the review ha s a significant workload, that the office does not
anticipate receiving additional resources to conduc t the review, and therefore, it would be
impracticable to review more than the stated number of companies.

20. The non-selection of a company for individual review can have significant ramifications for
that company. In the second and third administrative reviews, all companies selected for individual
examination received rates that there were either zero or de minimis. Because the USDOC typically
excludes from the all-others rate calculation zero and de minimis rates, the USDOC in both instances
relied on the results of the first administrative revi ew, which in turn relied on calculations from the
original investigation. The USDOC relied on a prior phase of the proceeding to assign a margin for
companies not individually reviewed in a subsequent review. The fact that in both cases the
companies selected as mandatory respondents received a zero or de minimis margin was ignored in
determining the rate for the non-individually reviewed companies eligible to receive the all-others
rate.

21. The limited selection of respondents also adve rsely impacts a company's ability to prove the
absence of dumping and have an antidumping duty order revoked. A company not afforded the
opportunity to participate in administrative reviews likewise does not have the opportunity to establish
that it no longer engages in dumping. United Stat es law, consistent with Article 11.1 of the
Agreement, provides for revocation of an antidumping duty order where a company has been found to
not dump for three consecutive years. Yet, by refu sing to individually examine all companies seeking
review, the USDOC severely limits the number of companies that qualify for revocation under this
provision, making the law irrelevant for most companies seeking revocation.

IV. CLAIMS AND ARGUMENTS

A. C
LAIMS OF INCONSISTENCY REGARDING ZEROING

22. The Appellate Body has stated repeatedly and resoundingly that the issue of zeroing in
antidumping proceedings is a settled matter: th e zeroing methodology is inconsistent with the
Agreement in both investigations and administrative review s. In the interest of judicial economy and
fairness, the Panel should adhere to the guidance of the Appellate Body and find the zeroing used in
this proceeding by the USDOC, identical in substa nce to the zeroing previously considered by the
Appellate Body, to violate United States obligations under the Agreement.

1. The Use of Zeroing in the Original Investigation of this Proceeding Is Inconsistent with
United States WTO Obligations

(a) Article VI of the GATT 1994 and Article 2.1 of the Agreement define "dumping" and "margin
of dumping" with regard to the product as a whole

23. The GATT 1994 and the Agreement both define the concepts of "dumping" and "margin of
dumping" with regard to the product under investigat ion as a whole, not models or categories that are
subsets of the product. First, Article VI:1 of the GATT 1994 defines dumping as when "products of
one country are introduced into the commerce of anot her country at less than the normal value of the
products," referring to the product as a whole, not subsets.

24. Second, Article 2.1 of the Agreement, which based on the terms of the provision applies to the
entire Agreement, defines "dumping" for purposes of the Agreement with clear reference to the
"product" that is subject to the proceeding. Th e Appellate Body has repeatedly understood this
definition to preclude a finding of dumping for any subcategory of the product under review.
Additional articles of the Agreement and GATT 1994 provide contextual support for this
interpretation: Article 9.2 discusses the imposition of an antidumping duty with respect to a
"product"; Article 6.10 states that the investigati ng authority shall calculate an "individual margin of
dumping for each exporter or producer concerne d of the product under investigation"; and
Article VI:2 of the GATT 1994 provides that "in order to offset or prevent dumping, a contracting
party may levy on any dumped product an antidumping duty not greater in amount than the margin of
dumping in respect of that product."

25. Thus, although an investigating author ity may undertake multiple comparisons using
averaging groups or models, the results of the multip le comparisons at the sub-level are not "margins
of dumping." Rather, those results reflect only inte rmediate calculations made by an investigating
authority in the context of establishing margins of dumping for the product under investigation.

(b) Zeroing is Prohibited Under Article 2.4.2 of the Agreement

26. The model zeroing methodology is inco nsistent with Article 2.4.2 of the Agreement because it
fails to consider the results of all export tran saction comparisons for purposes of calculating a final
dumping margin. The Article requires that where the administering authority makes a weighted
average to weighted average compar ison for purposes of calculating the margin of dumping, as it did
in the shrimp original investigation, the weighted average normal value is to be compared to "a
weighted average of prices of all comparable expor t transactions." As shown above, the "margin of
dumping" for which Article 2.4.2 provides the method of calculation refers to the margin of dumping
for the product as a whole , not a subset of the product. The requirement of Article 2.4.2 that "all
comparable export transactions" be compared necessar ily means that all transactions for that product
be factored into the final calculation, and is not merely a reference to the intermediate, model-based
calculations.

27. By disregarding or treating as zero the interm ediate comparisons for product models where
the net export prices exceed normal value, the USDOC 's use of zeroing in investigations necessarily
fails to account for "all comparable export transacti ons." The zeroing methodology systematically
excludes export transactions that Article 2.4.2 requir es be included in the final margin calculation.
The Appellate Body and numerous pa nels have repeatedly found this ac tion to violate Article 2.4.2 of
the Agreement.

2. The Use of Zeroing in Periodic Reviews is Inconsistent with United States WTO
Obligations

28. As the discussion above illustrates, Article IV:1 of the GATT 1994 and Article 2.1 of the
Agreement define "dumping" and "margin of dumping" with regard to the subject product as a whole.
As recognized by the Appellate Body, this definition is applicable to the entire Agreement, per the
opening line of Article 2.1.

29. Article 9.3 of the Agreement governs the assessment of final antidumping duties and thus
bears on the USDOC's use of simple zeroing in administrative reviews. The Article does not mandate
use of a particular methodology for calculation of final assessment, but does require that the "amount
of the antidumping duty shall not exceed the marg in of dumping as established under Article 2."
Thus, the margin of dumping, calculated pursuant to Article 2, serves as a ceiling to the amount of
antidumping duties that may be collected in the a ssessment phase. Additionally, as is clear from the
reference to Article 2, the "margin of dumping" in Article 9.3 must likewise be calculated on the basis
of all transactions for the product as a whole, not merely a subset of the transactions for that product.

30. The USDOC's model zeroing methodology does not take into consideration all transactions
for the product, treating as zero and disregarding those intermediate comparisons where export price
of an individual transaction exceeds normal value. By doing so, the calculation necessarily results in
dumping margins that are higher than would be true if all export transactions were taken into account,
i.e., higher than the dumping margins would be for the product as a whole.

31. The GATT 1994 and the Agreement require that where the administering authority makes
multiple comparisons at an intermediate stage, all intermediate comparisons must be aggregated,
including comparisons that produce both negative and positive dumping margins. As has been
repeatedly construed by the Appellate Body and prio r panels, this action violates Article VI:2 of the
GATT 1994 and Article 9.3 of the Agreement.

B. C
LAIMS OF INCONSISTENCY REGARDING THE COUNTRY-WIDE RATE

32. As discussed above, the USDOC's practice for calculating the antidumping margins for
companies not individually investigated or reviewed differentiates between companies that satisfy the
USDOC's separate rate criteria and those that do not. Yet, the USDOC has no authority under the
Agreement or Viet Nam's Accession Protocol to the WT O to assign the highly punitive Vietnam-wide
rate to companies in this proceeding.

33. The Agreement contemplates that an administering authority may apply only three types of
antidumping margins. An administering authority may not go beyond the types of margins provided
for in the Agreement, as identification of the three types of margins in the Agreement necessarily
limits the practices and methodologies available to an authority. To allow an authority to deviate
beyond the provided methods for calculation woul d render meaningless the parameters set for
application of those margins. Specifically, the express terms of Articles 2, 6, and 9 of the Agreement
limit the types of margins to be applied.

34. Article 2 defines dumping and provides the framework for how an administering authority
may determine the existence and extent to which an individually investigated company may be
engaged in dumping.

35. Article 6.8 provides that an administering authority may calculate rates for individually
examined companies on the basis of facts available. The plain language of Article 6.8, as interpreted
by the Appellate Body, makes clear that a margin th at is based on facts available may only be applied
to companies individually examined by the administer ing authority. Article 6.8 provides that facts
available may only be used where an "interested party" does not provide "necessary information" to
the authority. The Appellate Body has explicitly clarified that non-examined companies are not
"interested parties" within the context of Article 6.8, precluding application of that Article to those
entities.

36. Furthermore, an administering authorit y does not, by definition, request "necessary
information" from companies not individually examin ed. Necessary information is that which is
necessary to calculate an antidumping margin. A lthough an administering authority may request
information beyond this, only the failure to provide necessary information triggers the application of
Article 6.8. This fact renders this provision inapplicable to companies not individually examined.

37. Article 9.4 is the final type of antidumping margin contemplated by the Agreement and
provides for calculation of a single all-others ra te for companies not individually examined.
Article 9.4 sets the parameters for margins to be applied where examination has been limited pursuant
to Article 6.10 of the Agreement. The Article is clear that an administering authority may not apply to
non-examined companies an antidumping margin th at exceeds the weighted average margin of
dumping for companies individually review ed, excluding margins that are zero, de minimis or based
on facts available. Application of a margin beyond this limit violates the basic and clear terms of
Article 9.4.

38. Viet Nam's Protocol of Accession ("Protocol ") confirms that the USDOC has no basis for
applying this discriminatory rate to Vietnamese producers and exporters. The Protocol, through
reference to the Report of the Working Party on the Accession of Viet Nam, identifies the entire
universe of situations in which an administer ing authority may deviate from the terms of the
Agreement. While the Protocol provides certain speci al rules applicable to Viet Nam during a
transition period, it contains no exception for the calculation of the margins of dumping for companies
not individually investigated or reviewed.

39. The USDOC has no authority to deviate from the Agreement and apply the Vietnam-wide rate
to certain Vietnamese companies. The Vietnam-wi de rate does not comply with the requirements of
Articles 2, 6.8, or 9.4, and is not otherwise contemplated by the Agreement or Viet Nam's Protocol.

C. C
LAIMS OF INCONSISTENCY REGARDING THE ALL-OTHERS RATE

40. As discussed above, the USDOC impermissi bly applied both an a ll-others rate and a
Vietnam-wide rate to companies not individually ex amined. For purposes of the all-others rate, the
USDOC generally calculates the all-others rate base d 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. Two actions taken by the USDOC with regard to calculation of the
all-others rate in the second and third administrative reviews are inconsistent with United States WTO
obligations.
41. First, the USDOC's use of weighted averag e margins for individually examined companies
that were calculated using the zeroing methodology is inconsistent with Articles 2.4 and 9.4 of the
Agreement. Article 9.4 requires that antidumping margin s, calculated in a manner consistent with

Article 2, serve as the basis for determining the ce iling antidumping margin for the all-others margin.
As set forth above in paragraph 20 above, the all-others rate applied in the second and
third administrative reviews was in fact based on the final antidumping margins of the original
investigation. As discussed in paragraph 12 ab ove, the USDOC utilized model zeroing to calculate
the rates for individually inves tigated companies in the original investigation; as discussed in
paragraphs 26 and 27 above, use of this methodology is inconsistent with Article 2.4 of the
Agreement. Accordingly, the all-others rate applied in the second and third administrative reviews is
inconsistent with Article 9.4 of the Agreement.

42. Furthermore, the USDOC's determination to base the all-others rate on the results of a
previous proceeding is inconsistent with Article 9.4 of the Agreement. While Article 9.4 states that an
administering authority may not use rates that are zero, de minimis, or based on facts available when
calculating the ceiling of the all-others rate, the Appe llate Body has made clear that an administering
authority does not operate with complete discreti on where the individually reviewed companies all
receive an antidumping duty of zero, de minimis, or based on facts available.

43. The Appellate Body's interpretation comports with the purpose of this provision of the
Agreement: companies not individually examined should not be prejudiced by the actions of others.
Companies that have been denied the opportunity for individual examination should not be subjected
to a higher rate when the ability to participate has been removed through no fault of their own. The
administering authority has an obligation to adop t a reasonable practice that does not subject the
non-investigated companies to unfair prejudice. Vi et Nam submits that the USDOC's practice in the
second and third administrative reviews is prejudicial to these companies, as it relies on results that
have no basis in the relevant review.

44. Article 9.4 does not prohibit the use of zero or de minimis rates for purposes of calculating the
all-others rate; the prohibition only extends to calculating the ceiling of the all-others rate. Consistent
with this understanding, the USDOC must adopt a reasonable approach that both complies the
ordinary meaning of Article 9.4 and the purpose of that provision.

D. C LAIMS OF INCONSISTENCY REGARDING LIMITING THE NUMBER OF RESPONDENTS SELECTED
FOR FULL INVESTIGATION OR REVIEW

45. Article 6.10 of the Agreement requires as a general rule that the administering authority shall
determine an individual dumping margin for each known exporter or producer of the subject
merchandise. The Article goes on to provide a limit ed exception to this requirement where doing so
would be impracticable because of the large number of producers or exporters. The issue before the
Panel is whether this exception shou ld override other provisions of the Agreement and the object and
purpose of the Agreement. In creating a rule out of the exception, the USDOC has denied Vietnamese
companies their rights available under Articles 6.10, 9.3, 11.1, and 11.3.

46. It is difficult to conceive that in entering into the Agreement the parties intended to include an
exception to a general rule which ultimately woul d become the rule. Even more probative of the
proper interpretation of the Article 6.10 exception is that its repeated and continued application
essentially nullifies other provisions and principles in the Agreement. This includes: (1) the
protection of exporters and producers from paying an antidumping duty in excess of their margin of
dumping pursuant to Article 9.3; (2) the ability of exporters and producers to obtain revocation of an
order upon a demonstration that they are no longer dumping pursuant to Article 11.1; and (3) the
ability of exporters and producers to benefit from term ination of an order based on a demonstration of
no likelihood of recurrence or continuation of the dumping pursuant to Article 11.3.
47. Viet Nam submits that the object and purpose of the Agreement further supports this
interpretation. Because antidumping measures are a mechanism by which the tariff benefits of WTO

Members can be nullified, the application of these pr ocedures is disciplined by detailed rules intended
to avoid jeopardizing the tariff benefits without an adequate basis. Thus, the Agreement puts specific
limits on the form (Article 18.1) , duration (Articles 11.1 and 11.3 ) and amount (Article 9.3) of
antidumping measures, and provides a mechanism to both review the need for continuation of the
duties (Article 11.2) and the amount of the duties (Article 9). Read in the context of the WTO
Agreement and the GATT 1994, the Agreement would thus appear to have two broad objects and
purposes, one being the establishment of precise limits on the form, duration, and amount of any
antidumping duties imposed. Indeed, the Agreement specifically contemplates the possibility that
companies subject to the antidumping measures will cease dumping. Yet, in refusing to provide
individual exporters and producers the opportunity for review, the USDOC has frustrated one of the
basic objects and purposes of the Agreement. It cannot be that the exception to an Article can trump
not only the general rule contained in the provision , but also frustrate the functions of other Articles
and the overall purpose of the Agreement.

V. CONSEQUENTIAL VIOLATIONS OF WTO OBLIGATIONS

48. As a result of the aforementioned prac tices, the USDOC has committed consequential
violations that strike at the very core principl es of antidumping measures. Namely, that antidumping
duties are company-specific and should not be levied in excess of the amount of the margin of
dumping of a particular exporter or producer, a nd that the duties should be terminated upon
demonstration that dumping is no longer occurring.

49. The claims made by Viet Nam in this dispute re late to practices that have had very significant
and very real effects on the Vietnamese companie s impacted by the antidumping proceeding. These
companies and this industry in Viet Nam serve as a model for adjusting sales practices to ensure
compliance with the antidumping law in the United States. For the reasons set forth above, the
USDOC's practices impermissibly foreclose the ab ility of these companies to benefit from these
changes.

ANNEX A-2

EXECUTIVE SUMMARY OF THE FIRST WRITTEN
SUBMISSION OF THE UNITED STATES

I. INTRODUCTION

1. This is not merely another zeroing dispute. Zeroing, as a factual matter, had no impact on the
margins of dumping determined for individually ex amined exporters or producers in the challenged
proceedings, and it was not used during the proceedi ngs in order to determine any other assessment
rates applied. Beyond its unfounded zeroing clai ms, Vietnam seeks to undermine the ability of
investigating authorities to conduct antidumping examinations when faced with incomplete
information, uncooperative interested parties, and large numbers of respondent firms. Ultimately,
Vietnam asks this Panel to read obligations into the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 ("AD Agreement") and the General Agreement on
Tariffs and Trade 1994 ("GATT 1994"), notwithstanding the fact that there is no textual basis for such
obligations. This Panel should make an objective assessment of the matter before it and refrain from
adopting Vietnam's interpretations.

2. Vietnam also challenges a number of "measures" that are not properly before the Panel. The
United States requests that the Panel grant the reque sts for preliminary rulings with respect to these
"measures."

II. GENERAL PRINCIPLES

3. The complaining party bears the burden of pr oving that a measure is inconsistent with the
obligations in a covered agreement. In a dispute involving the AD Agreement, a panel must also take
into account the standard of review set forth in Ar ticle 17.6(ii) of the AD Agreement, which confirms
that there are provisions of the Agreement that "admit [] of more than one permissible interpretation."
Where that is the case, and where the investigating authority has relied upon one such interpretation, a
panel is to find that interpretation to be in conformity with the Agreement.

4. Article 11 of the Dispute Settlement Unders tanding ("DSU") requires a panel to make an
objective assessment of the matter before it, including an objective assessment of the facts and the
applicability of and conformity with the relevant covered agreements. The Appellate Body has
explained that the matter includes both the facts of the case (and the specific measures at issue in
particular) and the legal claims raised.

5. Articles 3.2 and 19.2 of the DSU mandate th at the findings and recommendations of a panel
or the Appellate Body, and the recommendations and rulings of the Dispute Settlement Body
("DSB"), cannot add to or diminish the rights and obligations provided in th e covered agreements.
While prior adopted panel and A ppellate Body reports create legitimate expectations among WTO
Members, the Panel is not bound to follow the reas oning set forth in any Appellate Body report. The
rights and obligations of the Members flow, not from panel or Appellate Body reports, but from the
text of the covered agreements.

III. REQUESTS FOR PRELIMINARY RULINGS

6. The Investigation: Pursuant to Article 18.3 of the AD Agreement, the original antidumping
investigation of shrimp from Vietnam is not subject to the AD Agreement. The investigation was

initiated pursuant to an application made before 11 January 2007, the date on which the WTO
Agreement entered into force for Vietnam. Conse quently, determinations made by Commerce in the
course of the investigation are not subject to the provisions of the AD Agreement and may not be
reviewed by this Panel.

7. In addition, the investigation was not incl uded in Vietnam's request for consultations.
Article 4.4 of the DSU provides that a request for c onsultations must state the reasons for the request,
"including identification of the measure at issu e and an indication of the legal basis for the
complaint." Article 4.7 of the DSU provides that a complaining party may request establishment of a
panel only if "the consultations fa il to settle a dispute." Article 17. 4 of the AD Agreement states that
a Member may only refer "the matter" to the DSB following a failure of consultations to achieve a
mutually agreed solution, and final action by the administering authorities of the importing Member to
levy definitive antidumping duties or to accept price undertakings. Because Vietnam failed to include
the investigation in its consultations request, th e shrimp antidumping investigation is outside the
Panel's terms of reference.

8. The First Administrative Review : Like the investigation, the first administrative review
was initiated prior to Vietnam's accession to the WTO. Per the terms of Article 18.3 of the
AD Agreement, the application of the AD Agreemen t is strictly limited "to investigations, and
reviews of existing measures, initiated pursuant to ap plications which have been made on or after the
date of entry into force for a Member of the WT O Agreement" (emphasis added). Accordingly, for
the same reasons given with respect to the i nvestigation, the AD Agreement does not apply to
Commerce's determination in the first administrative review.

9. The "Continued Use of Challenged Practices" : The "continued use of challenged
practices" is not a "measure" within the Panel's terms of reference. Article 6.2 of the DSU requires
that a panel request "identify the specific measures at issue and provide a brief summary of the legal
basis of the complaint sufficient to present the pr oblem clearly." Vietnam' s panel request limits the
measures at issue to the particular determinations identified therein and fails to identify the "continued
use of challenged practices" as a measure at issue in this dispute. Vietnam' s panel request here is
distinguishable from the EC's request in US – Continued Zeroing ; Vietnam's panel request fails to
identify the "continued use of challenged practices" at all. Because the panel request defines the
jurisdiction of a panel, the "continued use of challe nged practices" is outside th e Panel's jurisdiction.
The component proceedings of the "continued use" m easure are outside the Panel's terms of reference
as well, because Vietnam is attempting to expand the scope of the proceedings it identified in its panel
request.

10. Additionally, this purported "measure" is not subject to WTO dispute settlement because it
appears to be composed of an indeterminate number of potential future measures. It is impossible for
Members to consult on a measure that does not ex ist, and a non-existent measure cannot meet the
requirement of Article 4.2 of the DSU that the measure be "affecting" the operation of a covered
agreement. In US – Upland Cotton , the panel found that a measure that had not yet been adopted
could not form part of its terms of reference, noting that such a "measure" could not have been
impairing any benefits because it was not in existen ce at the time of the panel request. Furthermore,
Article 17.4 of the AD Agreement provides that a Member may refer "the matter" to dispute
settlement only if consultations have failed to resolv e the dispute and "final action" has been taken by
the administering authorities of the importing Memb er to levy definitive antidumping duties or to
accept price undertakings. At the time of Vietnam' s panel request, the alleged "continued use of the
challenged practices" did not invol ve a final action to levy definitive antidumping duties or accept
price undertakings.

IV. VIETNAM'S CLAIMS REGARDING ZEROING ARE WITHOUT MERIT

11. Vietnam argues that Commerce's "use of zeroing" in the original investigation is inconsistent
with U.S. WTO obligations. The investigation is not within the Panel's terms of reference and was
not subject to the AD Agreement, so Commerce's de termination therein cannot be found inconsistent
with Article 2.4.2 of the AD Agreement. To the extent 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 de termination in the investigation is inconsistent
with Article 2.4.2 of the AD Agreement. Furtherm ore, the use of dumping margins from the original
investigation in later assessment pr oceedings cannot itself be found inc onsistent with Article 2.4.2 of
the AD Agreement, since Article 2.4.2 is limited by its terms to the "investigation phase."

12. Vietnam contends that the use of zeroing in the second and third administrative reviews to
calculate dumping margins applied to individually examined respondents was inconsistent with the
WTO Agreements. Vietnam has not explained how the margins of dumping calculated for the
individually examined firms were affected by "zeroing." Commerce calculated either a zero or
de minimis margin of dumping for every company individually examined in the second and third
administrative reviews. Given the zero and de minimis dumping margins, and that no antidumping
duties were assessed based on "zeroing," it is not po ssible that antidumping duties were imposed that
exceeded the margins of dumping, so there can be no violation of the obligations in Article VI:2 of the
GATT 1994 or Article 9.3 of the AD Agreement.

13. In addition, the text and context of the rele vant provisions of the AD Agreement, interpreted
in accordance with customary rules of interpreta tion of public international law, do not support a
general prohibition of zeroing that would apply in the context of assessment proceedings. The
methodology used by Commerce to calculate antid umping duties in the assessment proceedings in
question rests on a permissible interpretation of the AD Agreement and is WTO-consistent.

14. In US – Softwood Lumber V (AB) , the Appellate Body found that the exclusive textual basis
for an obligation to account for such non-dumping in calculating margins of dumping appears in
connection with the obligation in Article 2.4.2 that "the existence of margins of dumping during the
investigation phase shall normally be established on the basis of a comparison of a weighted average
normal value with a weighted average of pr ices of all comparable export transactions ...." This
particular text of Article 2.4.2 applies only w ithin the limited context of determining whether
dumping exists in the investigation phase when using the average-to-average comparison
methodology in Article 2.4.2.

15. If Vietnam is correct that there is a general prohibition of zeroing that applies in all
proceedings and under all comparison methodologies, the meaning ascribed to "all comparable export
transactions" by the Appellate Body in US – Softwood Lumber V would be redundant of the general
prohibition of zeroing. The Appellate Body recognized the need to avoid such redundancy in US –
Zeroing (Japan) . There, the Appellate Body reinterpreted "all comparab le export transactions" to
relate solely to all transactions within a m odel, and not across models of the product under
investigation. However, this is inconsistent with the reasoning in US – Softwood Lumber V (AB).

16. Subsequent to US – Softwood Lumber V (AB), several panels examined whether the obligation
not to "zero" when making average-to-average co mparisons in an investigation extended beyond that
context. In making an objective assessment of the matter, these panels determined that the customary
rules of interpretation of public international la w do not support a reading of the AD Agreement that
expands the zeroing prohibition beyond average-to-avera ge comparisons in an investigation. This
Panel should likewise find that, at a minimum, it is permissible to interpret the AD Agreement as not
prohibiting zeroing outside the context where the interpretation of "all comparable export
transactions" articulated in the Appellate Body report in US – Softwood Lumber V is applicable.

17. Vietnam's claims depend on interpreting "mar gins of dumping" and "dumping" as relating
exclusively to the "product as a whole." The term "p roduct as a whole" does not appear in the text of
the AD Agreement. The panel in US – Zeroing (Japan) explained, "'[T]here is nothing inherent in the
word 'product[]' (as used in Article VI:1 of the GATT 1994 and Article 2.1 of AD Agreement) to
suggest that this word should preclude the possibility of establishing margins of dumping on a
transaction-specific basis ....'" The panel in US – Softwood Lumber V (Article 21.5) explained, "an
analysis of the use of the words product and products throughout the GATT 1994, indicates that there
is no basis to equate product with 'product as a whole'.... Thus, for example, when Article VII:3 of the
GATT refers to 'the value for customs purposes of any imported product', this can only be interpreted
to refer to the value of a product in a particular import transaction."

18. Vietnam also has not demonstrated any inc onsistency with Article 9.3 of the AD Agreement
nor Article VI:2 of the GATT 1994. Vietnam ar gues that the antidumping duty has exceeded the
margin of dumping established under Article 2. Th is argument depends entirely on a conclusion that
Vietnam's preferred interpretation of the "margi n of dumping," which precludes any possibility of
transaction-specific margins of dumping, is the only perm issible interpretation of this term as used in
Article 9.3 of the AD Agreement. However, an tidumping duties are assessed on individual entries
resulting from those individual transactions. The ob ligation set forth in Article 9.3 – to assess no
more in antidumping duties than the margin of dum ping – is similarly applicable at the level of
individual transactions. All panels that have examined this issue – in US – Zeroing (EC) , US –
Zeroing (Japan) , and US – Stainless Steel (Mexico) – have agreed with this interpretation. These
panels' understanding of Article 9.3 of the AD Agreement is, at a minimum, a permissible
interpretation of the provision.

V. VIETNAM'S CLAIMS REGARDING THE "COUNTRY-WIDE" RATE ARE
WITHOUT MERIT

19. Vietnam argues that Commerce's assignment of a margin of dumping to the Vietnam-wide
entity in the second and third administrative reviews was inconsistent with various obligations under
the AD Agreement. Vietnam incorrectly refers to the assignment of an assessment rate to the
Vietnam-wide entity as an assignment of a "country-w ide" rate. The premise of Vietnam's argument
is factually incorrect: Commerce did not assign a "c ountry-wide" rate. The Vietnam-wide entity rate
was assigned to those companies that had not established that they are free from government
influence, particularly in their export activities, and thus are reasonably considered to be parts of one
entity that Commerce has identified as an "expor ter" or "producer" under Article 6.10 of the
AD Agreement.

20. Article 6.10 requires an investigating authorit y to determine an individual margin of dumping
for each known "exporter" or "producer" of the pr oduct under investigation, unless this is not
practicable. Prior to assigning an individual dumpi ng margin, however, the authority must identify
whether an entity is an "exporter" or "producer ." The AD Agreement does not define the terms
"exporter" or "producer," nor does it establish criteria for an investigating authority to examine in
order to determine whether a particular entity constit utes an "exporter" or "producer." Therefore, an
authority is permitted to determine, based upon the facts on the record, whether a given entity
constitutes an "exporter" or "producer" as a condition precedent to calculating an individual dumping
margin for that entity. Depending on the facts of a given situation, an investigating authority may
determine that legally distinct companies should be treated as a single "exporter" or "producer" based
upon their activities and relationships. The reasoning of the panel in Korea – Certain Paper supports
this interpretation of Article 6.10 of the AD Agreement.
21. An inquiry into the relationship between companies and the reality of their respective
commercial activities is also relevant in the contex t of exporters from a non-market economy. As the
term suggests, in a non-market economy, governme nt influence on the economy interferes with the

full functioning of market principles. Due to this distortion, prices in a non-market economy cannot
be used in antidumping calculations because they do not sufficiently reflect demand conditions or the
relative scarcity of resources. In other words, th ere is an absence of the demand and supply elements
that separately and collectively make a market-based price system work. During Vietnam's accession
negotiations, Members expressed concern about the in fluence of the Government of Vietnam on its
economy and how such influence could affect co st and price comparisons in antidumping duty
proceedings.

22. Commerce's 2002 inquiry into the non-market nature of Vietnam's economy confirmed that
the Government of Vietnam maintains significant control over the Vietnamese economy. During the
antidumping duty investigation on frozen fish f illets from Vietnam, Commerce investigated and
analyzed the extent of government influen ce on the Vietnamese economy for the purpose of
determining whether Vietnam should be cla ssified as a non-market economy in Commerce's
antidumping proceedings. Commerce incorporated by reference and relied on the analysis in the fish
fillets investigation when it determined that Vi etnam continues to be a non-market economy for the
purposes of the determinations challenged in this di spute. Thus, as one of the first steps in the
administrative reviews at issue, Commerce determ ined whether the particular companies being
examined were sufficiently free fro m government control so that, inter alia, their export prices were
not being set by the government. In order to make this determination, Commerce required each
company to submit information demonstrating th e company's independence from government control
regarding export activities. If Commerce had previ ously determined that a company was entitled to
an individual rate, then that co mpany needed only submit a certification that its status had not
changed. However, if a company could not dem onstrate that it was sufficiently free from government
influence, Commerce considered that company inelig ible for an individual (or "separate") rate.
Instead, that company was identified as be ing part of the Vietnam-wide entity, i.e., the entity that is
presumed to control the export activities of the companies that compose it.

23. Contrary to Vietnam's claim, this is not a discriminatory practice. Commerce collects similar
information in market economy cases to identify ea ch company's affiliates, including information
regarding percentage of ownership and ultimate decision making authority. If the data indicate that
companies are affiliated and the relationships are sufficiently close so as to allow one company to
influence another, Commerce treats the companies as a single entity.

24. The non-market economy entity is treated just like any other "exporter" or "producer" being
examined under Article 9 of the AD Agreement. If the non-market economy entity does not provide
information requested, the authority may rely upon the facts available pursuant to Article 6.8 and
Annex II of the AD Agreement. In the second admi nistrative review, numerous interested parties
determined to be part of the Vietnam-wide entity failed to provide necessary information requested by
Commerce. Thus, Commerce had to rely upon the f acts available. Neither Article 6.8 nor Annex II
requires investigating authorities to limit the applica tion of facts available to "individually examined
exporters/producers."

25. Vietnam further attempts to limit the ability of investigating authorities to rely on facts
available by arguing that "necessary information" should be narrowly understood as only that
information which is used to calculate dumping ma rgins. There is no basis in the text of the
AD Agreement for such a limitation. Vi etnam's reliance on the panel report in Argentina – Ceramic
Tiles is misplaced; that panel was not examining the definition of the term "necessary information" in
Article 6.8. Vietnam also mischaracterizes the finding of the panel in Egypt – Steel Rebar . That
panel found that "it is left to the discretion of an investigating authority, in the first instance, to
determine what information it deems necessary for the conduct of its investigation (for calculations,
analysis, etc.) ...." Regardless, the information that Commerce requested was necessary in order to
define the pool from which Commerce selected th e largest exporters, and the information also

represented the data necessary for determining a co mpany's export price, once selected for individual
examination.

26. It is important to emphasize that, in the second administrative review, the Vietnam-wide
entity received a rate based upon the facts available because of the non-cooperation of several of the
parties that make up that entity. In fact, every pa rty under review that was identified as being part of
the Vietnam-wide entity failed to cooperate by not responding to a request for necessary information,
i.e., the quantity and value questionnaires. As a result, the rate assigned to each of the companies that
were identified as being part of the Vietnam-wide entity would also have been based upon the facts
available even if they each had been assigned an indi vidual rate. That is, cons istent with Article 6.8
and Annex II of the AD Agreement, each of these companies would have been assigned a rate based
entirely upon the facts available because they failed to cooperate with the investigation by refusing to
provide necessary information.

27. In the third administrative review, many of the companies under review did not provide
information to demonstrate that their export activ ities were independent of government control.
Accordingly, Commerce determined that they we re part of the single Vietnam-wide entity and
determined an appropriate rate to apply to entries from this entity. Commerce applied to the Vietnam-
wide entity the same rate applied to it in the most recently comp leted proceeding, because this was
"the only rate ever determined for the Vietnam-wide entity in this proceeding."

VI. VIETNAM'S CLAIMS REGARDING THE "ALL OTHERS RATE" ARE WITHOUT
MERIT

28. Vietnam claims that the sepa rate rates applied by Commerce to certain exporters or producers
in the challenged determinations are inconsistent with Articles 2.4 and 9.4 of the AD Agreement
because 1) the rate was calculated using the zeroi ng methodology, and 2) the rate was a weighted
average of dumping margins calculated during the or iginal investigation rather than a weighted
average of dumping margins calculated during the particular administrative reviews.

29. Vietnam's argument is dependent upon its clai m that Commerce acted inconsistently with the
AD Agreement when it employed the zeroing methodology in the original investigation. Commerce's
determination of the separate rate for non-examined exporters and producers in the investigation,
which Vietnam refers to as the "all-others rate," was made prior to the entry into force of the WTO
Agreement with respect to Vietnam. Thus, that determination was not subject to the AD Agreement
and cannot have been inconsistent with Article 2.4 of the AD Agreement.

30. In addition, the separate rates determined in the original investigation do not become subject
to the AD Agreement simply because they continued to be applied on or after the date of entry into
force of the WTO Agreement for Vietnam. Artic le 18.3 of the AD Agreement provides that "the
provisions of this Agreement shall apply to inv estigations, and assessment proceedings of existing
measures, initiated pursuant to applications which ha ve been made on or after the date of entry into
force for a Member of the WTO Agreement." In US – DRAMS, the panel analyzed Article 18.3 of the
AD Agreement, and reasoned that "[P]re-WTO measures do not become subject to the AD Agreement
simply because they continue to be applied on or after the date of entry into force of the WTO
Agreement for the Member concerned."

31. The calculations that Commerce performed in th e investigation to determine the separate rates
"were not subject to any re-examination" in th e second and third assessment proceedings. Commerce
made no new comparisons between the export price a nd the normal value. Commerce simply applied
a previously calculated rate from the investigati on, or a prior proceeding, to respondents that
demonstrated sufficient independence from the government during the second and third administrative
reviews. Therefore, as in US – DRAMS, the separate rates determined in the original investigation, and

applied in the second and third administrative review s, did not become subject to the AD Agreement
simply because they continued to be applied after th e date of entry into force of the WTO Agreement
for Vietnam.

32. In addition to its arguments related to zeroing, Vietnam asserts that the rate Commerce
applied to companies that were not individually examined in the second and third administrative
reviews "unfairly prejudiced" such companies, and fo r this reason was inconsistent with Article 9.4 of
the AD Agreement. Vietnam misunderstands th e requirements of Article 9.4 and has not
substantiated its claim that Commerce acted inconsis tently with that provision. The Appellate Body
explained in US – Hot-Rolled Steel that, on its face, Article 9.4 expressly requires an investigating
authority to disregard zero or de minimis margins, or margins based on facts available, when
determining a dumping margin ceiling for non-ex amined exporters or producers based on the
weighted average margin of dumping of the examin ed exporters or producers. Vietnam correctly
notes the possibility that "[i]n certain situations, ... the individually examined exporters/producers may
all receive an antidumping duty of zero, de minimis , or based on facts ava ilable, the three margins
explicitly prohibited by Article 9.4 from calculation of the guiding ceiling." That is the case here. In
the absence of rates that could be used to ca lculate a weighted average consistent with the
requirements of Article 9.4, Commerce determined that it would be appropriate to rely on either a rate
calculated during the original investigation, wh ich was a weighted average of dumping margins
calculated for exporters and producers individually examined in that proceeding, excluding any zero
and de minimis margins and margins based on facts available, or a company-specific rate from a more
recently completed proceeding where such a rate had been determined for a company.

33. In US – Zeroing (EC) (21.5) , while the Appellate Body recognized that Article 9.4 is silent
regarding this situation, it ne vertheless found that Article 9.4 includes some, notably undefined,
obligation relating to the calculation of the rate for non-examined companies. Respectfully, the
United States believes that the Appellate Body w as incorrect. The Appellate Body did not opine on
any "specific alternative methodologies to calculat e the maximum allowable 'all others' rate in
situations where all margins of dumping calcula ted for the examined exporters fall into the
three categories to be disregarded ..." nor di d it articulate a legal standard for assessing the
consistency of an investigating authority's action with the "obligation" in Article 9.4 in such
situations. Hence, the Appellate Body report in US – Zeroing (EC) (21.5) offers the Panel no
guidance for its analysis of the consistency with Article 9.4 of the methodology applied by Commerce
in the second and third administrative review.

34. In the absence of any legal standard or de fined obligation, it is not clear how the separate
rates Commerce applied to non-examined exporters and producers in the second and
third administrative reviews could be deemed inco nsistent with Article 9.4. Commerce applied a
reasonable method of determining dumping margins that was reflective of the range of commercial
behaviour demonstrated by exporte rs and producers of the subject merchandise during a very recent
period and provided a reasonable security going forward for the payment of antidumping duties for
those companies that were not individually examined.

35. Vietnam criticizes the "application of an anti dumping margin that has no basis in the relevant
period of review" and proposes that Commerce should be required to "recalculate the all-others rate
using a weighted-average of the individually re viewed exporters/producers for the contemporaneous
phase of the proceeding." Vietnam appears to be arguing that Commerce violated Article 9.4 of the
AD Agreement by acting consistently with the expl icit prohibition in Article 9.4 against using zero
and de minimis margins to determine the ceiling for the dumping margin to be applied to non-
examined exporters and producers. Vietnam's ar gument is internally incoherent and cannot be
accepted.

VII. VIETNAM'S CLAIMS REGARDING LIMITING THE NUMBER OF
RESPONDENTS SELECTED ARE WITHOUT MERIT

36. Vietnam argues that Commerce's determinations to limit its examination in each of the
proceedings at issue are inconsistent with the AD Agreement. Vietnam misconstrues the
AD Agreement obligations. Article 6.10 of th e AD Agreement allows Members to determine
individual margins of dumping for a reasonable number of exporters and producers, and does not
require the determination of an individual margin of dumping for all exporters and producers, where a
large number of exporters and producers is involve d. The only condition for limiting an examination
is that the number of exporters or producers must be so large as to make a determination of individual
margins of dumping for all exporters or producers "impracticable."

37. Article 6.10 does not define the term "imprac ticable." The ordinary meaning of the term
"impracticable" is "unable to be carried out or done ; impossible in practice," or "incapable of being
performed or accomplished by the means employed or at command." Vietnam incorrectly argues,
contrary to the panel's findings in EC – Salmon (Norway) , that a determination to limit an
examination must be based solely upon the number of companies involved in the proceeding, without
regard to an investigating authority's resources. Article 6.10 permits the limiting of an examination
when an authority does not have the resources to individually examine all parties involved in an
investigation. Here, Commerce e xplained why it was necessary to limit the examination, noting the
large number of companies involved, and providing an analysis of Commerce's available resources.
Based upon this analysis, Commerce determined th at it would be impracticable to individually
examine all of the companies involved.

38. Vietnam further suggests that there is a limit to the number of times an authority may limit its
examination, and that Commerce h as surpassed that limit and turned the exception into the rule.
Article 6.10 of the AD Agreement contains no such limitation. Any time the Article 6.10 conditions
are satisfied, an authority may limit its examination.

39. Vietnam asserts that, by limiting its examination in the proceedings at issue, Commerce
denied particular companies the opportunity, pursuant to a U.S. regulation, to have the antidumping
order revoked with respect to their exports. Vietna m argues that this violated Article 11.1 of the
AD Agreement. This claim is entirely depende nt on Vietnam's claim under Article 6.10 of the
AD Agreement, which, as explained above, is withou t merit. Additionally, Vietnam misunderstands
the meaning of Article 11.1. As the Appellate Body has confirmed, Article 11.1 does not impose any
independent or additional obliga tions on Members, so Commerce's determinations cannot violate
Article 11.1. Furthermore, the obligations in Article 11 apply to the antidumping duty order as a
whole, not as applied to individual compani es. As the Appellate Body found in U.S. —
Corrosion-Resistant Steel Sunset Review , "the duty" referenced in Article 11.3 is imposed on a
product-specific (i.e., order-wide) basis, not a company-specific basis. To the extent that Vietnam's
claim rests on an alleged obligation to revoke the antidumping duty order on shrimp with respect to
certain individual companies, that claim must fail.

40. Vietnam argues that Commerce violated Ar ticle 11.3 of the AD Agreement because, in
declining to individually examin e all companies requesting review in every proceeding at issue,
Commerce has prevented these companies from demonstrating an absence of dumping, which
Vietnam contends is the basis for determining whether to continue the order. The sunset review of the
shrimp antidumping order, i.e., the Article 11.3 review, is not within the Panel's terms of reference.
The sunset review has not yet been completed and, consequently, there is no determination for the
Panel to review. In any event, Article 11.3 pr ovides that a definitive antidumping duty must be
terminated after five years unless the authorities determine that "the expiry of the duty would be likely
to lead to continuation or recurrence of dumping a nd injury." The focus of a sunset review is on
future behaviour, i.e., whether dumping and injury are likely to continue or recur in the event of

expiry of the duty, not whether or to what extent dumping or injury currently exists. Contrary to
Vietnam's assertion, Commerce's sunset review dete rmination is not based solely upon the existence
of dumping margins in administrative reviews. Pa rties are permitted to place any information they
choose on the administrative record of the su nset review. Vietnam's argument relies on a
mischaracterization of the analysis Commerce performs in a sunset review.

41. Vietnam alleges that Commerce acted in consistently with Article 6.10.2 of the
AD Agreement by not determining individual dumping margins for companies that voluntarily
submitted necessary information. Commerce could not have acted inconsistently with Article 6.10.2
because no company voluntarily provided the necessary information in the second and third
administrative reviews such that any obligation under that provision was triggered.

42. In the fourth administrative review, which is not within the Panel' s terms of reference,
two companies requested voluntary respondent status and submitted what they purported was the
necessary information. Commerce determined that it could only individually examine
two companies. This determination was made ba sed upon the large number of companies involved in
the proceeding, as well as Commerce's resource constrai nts. Article 6.10 permits the limitation of an
examination when the number of companies invol ved is so large as to make an individual
determination for each company impracticable. Article 6.10.2, on the other hand, requires an
authority to determine an individual margin of dumping for each company that voluntarily submits
necessary information, unless the amount of companies involved is so large as to make an individual
determination for each company that voluntaril y submits information "unduly burdensome."
Commerce explained that it could individually exam ine only two companies, and, more than being
"unduly burdensome," it was impossible to examin e any more. Thus, Commerce's decision not to
determine individual dumping margins for these two companies was consistent with Article 6.10.2.

VIII. VIETNAM'S CLAIM WITH RESPECT TO THE CONTINUED USE OF
CHALLENGED PRACTICES IS WITHOUT MERIT

43. Vietnam submits that "the USDOC has utili zed the challenged practices in an original
investigation, four consecutive administrative review s, and in the preliminary results of the ongoing
sunset review" and argues that this is inconsistent with various provisions of the AD Agreement and
the GATT 1994. As explained above, the "continued use of the challenged practices" is not a measure
within the Panel's terms of reference. In any event, Vietnam's argument is premised on its assertion
that such "continued use" constitutes an "ongoing conduct." Even were this a cognizable claim, the
facts belie a conclusion that any such "ongoing conduct" exists or is likely to continue.

44. The United States has serious concerns about the rationale articulated by the Appellate Body
in the US – Continued Zeroing dispute. Vietnam incorrectly asserts that the facts of this case are
"virtually identical" to the cases found to be inconsistent in that dispute. In US – Continued Zeroing ,
the Appellate Body found that the record supporte d findings of inconsistency in only four of the
eighteen cases challenged, i.e., where "the zeroing methodology was repeatedly used in a string of
determinations made sequentially in periodic reviews and sunset re views over an extended period of
time." Each of the four cases where the Appellate Body concluded that there was "a sufficient basis
for [the Appellate Body] to conclude that the zeroing methodology would likely continue to be
applied in successive proceedings" included: (1) th e use of the zeroing methodology in the initial less
than fair value investigation; (2) the use of the zeroing methodology in four successive administrative
reviews; and (3) reliance in a sunset review upon rates determined using the zeroing methodology.
45. The facts in this dispute do not support a conclusion that the challenged practices "would
likely continue to be applied in successive proceedings ." The original investigation, the first, fourth,
and fifth administrative reviews, and the sunset revi ew are not within the Panel's terms of reference
and there can be no finding of inconsistency in co nnection with those proceedings. Additionally,

Vietnam has failed to establish that "zeroing" had any impact on the margins of dumping calculated in
the second and third administrative reviews, and Viet nam has failed to establi sh as a factual matter
that Commerce used the zeroing methodology in connection with the application of a dumping margin
to separate rate respondents in those proceedings, or to the Vietnam-wide entity. Hence, with respect
to Commerce's use of zeroing, Vietnam cannot establish "a string of determinations, made
sequentially... over an extended period of time."

46. Vietnam seeks to expand the Appellate Body's reasoning in US – Continued Zeroing beyond
zeroing to encompass the other "challenged practices ." As demonstrated above, though, Vietnam's
claims regarding the other "challenged practices" are without merit, and thus Vietnam cannot
establish "a string of determinati ons, made sequentially... over an extended period of time" with
respect to those "challenged practices" either.

IX. CONCLUSION

47. The United States respectfully requests that th e Panel grant the U.S. requests for preliminary
rulings and reject Vietnam's claims that the Unite d States has acted inconsistently with the covered
agreements.

ANNEX A-3

RESPONSE OF VIET NAM TO THE UNITED STATES'
REQUEST FOR PRELIMINARY RULINGS

I. INTRODUCTION

1. With this submission, Viet Nam respectfu lly provides its response to the requests for
preliminary rulings asserted in the United St ates' first written submission, received on
13 September 2010. Viet Nam does so consistent with the communication received from the Panel on
22 September 2010, requesting that a response be filed by Viet Nam no later than 4 October 2010.

2. Viet Nam limits its discussion in this submi ssion to the arguments raised in Section V.A of
the United States' first written submission. Sp ecifically, Viet Nam addresses the following requests
for preliminary rulings:

 The investigation is not subject to the AD Agreement, nor is it within the Panel's
terms of reference
1;

 The first administrative review is not subject to the AD Agreement because it was
initiated pursuant to an application made pr ior to the entry into force of the WTO
Agreement for Viet Nam2;

 The "continued use of challenged practices " is not within the Panel's terms of
reference.3

3. As an initial matter, Viet Nam does not alle ge that the original investigation or first
administrative review are within the Panel's terms of reference, except to the extent that the results of
these segments of the proceeding bear on the resu lts of those segments of the proceeding which
occurred after Viet Nam's accession to the WTO.
4 The issue here is one of semantics not substance.
Whether or not the measures imposed as a result of the initial investigation and first administrative
review were consistent with U.S. WTO obligations at the time the measures were applied is irrelevant
in that the U.S. had no obligation to Viet Nam at the time it applied these measures. However, the
measures and their consistency with U.S. WTO obligati ons are relevant to the extent that they were
the basis of measures applied by the U.S. after Vi et Nam's accession to the WTO. As such, whether
one characterizes these measures as being within the terms of reference of the panel or as simply
being the factual predicate to support the claims related to the second and subsequent periodic reviews
which clearly are within the panel's terms of reference is a matter of semantics not substance. The
panel's inquiry into the second and subsequent reviews necessarily has to include what was done in
the original investigation and first review because these actions bear directly on what was done in the
second and subsequent administrative reviews.
4. Viet Nam does take strong exception, however, to the United States' claim that the "continued
use of challenged practices" measure is not within th e Panel's terms of reference. Viet Nam submits

1 First Written Submission of the United States of America at p. 16 (hereafter, "United States FWS").
2 Id. at p. 20.
3 Id. at p. 21.
4 First Written Submission of the Socialist Republic of Viet Nam at para. 101 (hereafter, "Viet Nam's
First Written Submission").

that the request made for a preliminary ruling on th is issue is little more than strategic gamesmanship
on the part of the United States and an effort to distract the Panel from the important substantive
issues that are of concern in this dispute. Accord ingly, Viet Nam respectfully requests that the Panel
deny the request made by the United States and perm it for resolution the "continued use of challenged
practices" measure.

II. VIET NAM ASSERTS THAT THE FINAL RESULTS OF THE INVESTIGATION AN
THE FIRST ADMINISTRATIVE REVIEW ARE WITHIN THE PANEL'S TERMS
OF REFERENCE ONLY INSOFAR AS THE RESULTS OF THESE SEGMENTS OF
THE PROCEEDING BEAR ON SUBSEQUENT REVIEWS AFTER VIET NAM'S
ACCESSION TO THE WTO

5. The United States claims in its first written su bmission that the final results of neither the
investigation nor the first administrative review are within the Panel's terms of reference.
5 Viet Nam
stated at paragraph 101 of the first written submissi on that "the measures at issue are the second and
third administrative reviews made pursuant to the Shrimp order, and the continued use of the
challenged practices in successive antidum ping proceedings u nder this order." 6 Accordingly,
Viet Nam does not consider the investigation or the first administrative review to be within the Panel's
terms of reference, insofar as Viet Nam is not claiming that the panel can find these measures
inconsistent with U.S. obligations at the time the me asures were applied. However, to the extent that
these measures served as the basis for measures app lied after Viet Nam's accession to the WTO and
are inconsistent with U.S. obligations under the Agreement at that time, the consistency of the
measures in the investigation and first review with U.S. obligations after Viet Nam's accession are
relevant to the panel's inquiry.

6. Although not within the Panel's jurisdicti on, the United States Department of Commerce's
(hereafter, "USDOC") actions in the investigati on and first administrative review segments of the
ongoing shrimp proceeding are critical to the Panel' s understanding and analysis of the measures at
issue. As explained in Viet Nam's first writte n submission, the factual circumstances of this
antidumping proceeding are unique because the USDOC 's actions in the investigation directly
impacted the results of the second and third administ rative reviews, the measur es at issue. Thus, the
investigation is relevant to the extent that it illu strates how the USDOC calculated the separate rates
assessed in the second and third administrative reviews.

7. Viet Nam refers the Panel to paragraphs 76, 87, and 88 of Viet Nam's FWS. To make clear
the relevance of the investigation and the first admi nistrative review to the measures at issue, we
provide a concise timeline that focuses exclusively on the USDOC's method for assigning the separate
rate at each segment of the shrimp proceeding:

 1 February 2005: Final De termination of Investigation and Antidumping Order:

Separate rate respondents assigned a ra te of 4.57 percent based on the
weight-average of the weighted-average margins for the firms
individually investigated. The USDOC calculated the margins of
dumping for the individually investigated producers using the model
zeroing methodology.
7

5 United States FWS at paras. 76-86.
6 Viet Nam's First Written Submission at para. 101.
7 Viet Nam's First Written Submission at paras. 40-46 and Exhibits cited therein.

 12 September 2007: Final Results of First Administrative Review:

Because the individually reviewed companies received assessment
rates that were zero or de minimis , for the separate rate the USDOC
assigned the separate rate from the investigation, 4.57 percent.
8 Again,
this rate was derived using marg ins of dumping calculated with the
USDOC's model zeroing methodology.

 9 September 2008: Final Results of Second Administrative Review:

Because the individually reviewed companies received assessment
rates that were zero or de minimis , for the separate rate the USDOC
assigned the separate rate from the i nvestigation. Thus, the separate
rate was 4.57 percent. 9 Again, this rate was derived using margins of
dumping calculated with the USDOC's model zeroing methodology.

 15 September 2009: Final Results of Third Administrative Review:

Because the individually reviewed companies received assessment
rates that were zero or de minimis , for the separate rate the USDOC
assigned the separate rate from the i nvestigation. Once again, the
separate rate was 4.57 percent, which was derived using margins of
dumping calculated with the USDOC's model zeroing methodology.
10

8. The above timeline illustrates (1) why Viet Nam includes in its first written submission
extensive background and discussion on the investiga tion segment of the proceeding, and (2) why the
Panel must closely evaluate the USDOC's use of the zeroing methodology in the investigation.
Viet Nam provided substantial doc umentation in the first written s ubmission demonstrating that the
USDOC relied on the model zeroing methodology to calculate the margin of dumping for the
individually investigated companies.
11 These calculated margins of dumping were the only basis for
the USDOC's calculation of the separate rate in the investigation. Thus, use of the zeroing
methodology directly impacted the separate rate assigned in the investigation.

9. The same separate rate assigned in the inves tigation and first administrative review was also
assigned in the second and third administrative reviews, the measures at issue in this proceeding. As
such, because the methodology for determini ng the separate rates assigned in the second and
third administrative reviews was derived from the original investigation, understanding the calculation
of the separate rate in the initial investigation is essential to understanding the basis of the separate
rate assigned in the second and third administrative reviews.

10. In sum: Viet Nam does not challenge here the final determination of the investigation.
Rather, Viet Nam challenges the final results of the second and third administrative reviews, which
rely on the investigation's determination. The fi nal results of the second and third administrative
reviews were both initiated subsequent to Viet Nam's date of Accession and completed prior to
Viet Nam's request for consultations in this dispute.

8 Exhibit Viet Nam-11.
9 Exhibit Viet Nam-15.
10 Exhibit Viet Nam-19.
11 Viet Nam's First Written Submission at paras 40-46; Exhibits Viet Nam -33, -42, and -43.

III. THE "CONTINUED USE OF CHALLENGED PRACTICES" IS A MEASURE
SUBJECT TO DISPUTE SETTLEMENT AND IS WITHIN THE PANEL'S TERMS
OF REFERENCE

11. The Panel should deny the United States' request that the Panel make a preliminary ruling that
the USDOC's continued use of the challenged practices does not constitute a measure in this dispute.
The United States advances two arguments in support of this claim: that the measure purports to
include future measures that are not subject to dispute settlement and that the measure was not
identified in the Panel request. The United States' arguments should be dismissed.

A. T
HE APPELLATE BODY HAS RECENTLY CONSIDERED AND REJECTED THE UNITED STATES'
ARGUMENT THAT A "CONTINUED USE OF CHALLENGED PRACTICES" MEASURE CANNOT BE
CONSIDERED BY A PANEL

12. The United States contends that the "continue d use of challenged practices" cannot be subject
to dispute settlement. Citing a 2005 panel report, the United States claims that this measure
encompasses future determinations and, as a result, these future determinations cannot be within the
Panel's terms of reference under the Understanding on Rules and Procedures Governing the
Settlement of Disputes (hereafter, "DSU").
12 The United States' interpretation of this exact issue was
recently addressed and directly rejected by the Appellate Body.

13. As an initial matter, it has long been recognized that Article 3.3 of the DSU and Articles 17.3
and 17.4 of the Agreement allow for "not only measures consisting of acts that apply to particular
situations, but also those consisting of acts setti ng forth rules or norms that have general and
prospective application."
13 These measures are oftentimes referred to as "as such" claims. The
Appellate Body's analysis in US – Continued Zeroing recognized the artificial distinction made
between "as such" and "as applied" claims, refusing to accept the United States' interpretation that
"as such" may be prospective in na ture, while "as applied" may not. 14 The "as such" and "as applied"
concepts are simply constructs of the disput e settlement system and have no basis in binding
agreements. Thus, a measure may fall in the cross-section of these concepts, as is the case of
practices that are ongoing and cont inuous through the course of one particular proceeding. Such a
measure is certainly more broad than an "as applied" measure, but narrower than a generally
applicable "as such" measure. 15 The continuing measure stems from a single antidumping duty order
and encompasses the use of the challenged practi ce over a sustained period of time, across the
imposition, assessment, and collection segments of the proceeding. 16 Although not of general
application like an "as such" claim, a continui ng measure ensures predic tability and accountability
with regard to the order at issue. The Appella te Body properly recognized that the inability to
challenge the continued and ongoing use of a practice would lead to a multiplicity of litigation if
authorities simply reverted to use of the WTO-inc onsistent practices in segments of the proceeding
occurring subsequent to resolution by the DSB.

14. The Appellate Body in US – Continued Zeroing (EC) concluded that "the continued use of the
zeroing methodology in successive proceedings in which duties resulting from the 18 antidumping

13 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, adopted 9 January 2004,
DSR 2004:I, 3 at para. 81.
14 Appellate Body Report, United States – Continued Existence and Application of Zeroing
Methodology, WT/DS350/AB/R, adopted 19 February 2009 at para. 179.
15 Appellate Body Report, US – Continued Zeroing at para. 180.
16 Id. at para. 181.

duty orders are maintained, constitute 'measures' that can be challenged in WTO dispute settlement."17
In considering the United States' arguments in that case with regard to Article 6.2 specifically, the
Appellate Body discerned the following:

The prospective nature of the remedy sought by the European Communities is
congruent 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
effect, such as a finding against laws or regulations, as such, or a subsidy programme
with regularly recurring payments.
18
15. In reaching this conclusion, however, the A ppellate Body placed important restrictions on the
circumstances required to establish the "continued u se" of a practice. The Appellate Body limited
application of the "continued use" measure to onl y those proceedings "where the Panel ha[d] made
clear findings of fact concerning the use of the zeroing methodology, without interruption, in different
types of proceedings over an extended period of time ."19 The panel is to consider whether a "density
of factual findings" exist to show that the practic e has been used in succes sive proceedings under the
same antidumping duty order.20 Thus, continued use cannot be established where a practice is used in
only a single segment of the proceeding; logically , this fails to establish that an authority has
repeatedly and continuously relied on the practice throughout a particular proceeding.21

16. To exemplify this continued use, the A ppellate Body identified a single antidumping
proceeding in which (1) simple zeroing was used in four consecutive periodic reviews, and (2) the
sunset review relied on the margin from the orig inal investigation, which was calculated using
zeroing. The Appellate Body concluded that "[ t]his string of determin ations demonstrates the
continued use of the zeroing methodology in successive proceedings…"
22

17. As was done in the US – Continued Zeroing (EC) , Viet Nam has shown a string of
determinations demonstrating the continued use of the challenged practices in successive proceedings.
Viet Nam has demonstrated the following:

 Zeroing: The USDOC utilized mode l zeroing in the investigation 23; simple zeroing
in the four completed periodic reviews 24; and margins of dumping calculated using
zeroing were used for purposes of the preliminary results of the ongoing sunset
review.25

 Vietnam-wide rate: The USDOC assigned a rate to a "Vietnam-wide entity" in the
investigation and in the four completed periodic reviews.26

 Limited Respondent selection: The USDOC impermissibly limited the section of
individually examined respondents in the investigation and in the five periodic
reviews for which mandatory respondents have been selected.27

17 Id. at para. 185.
18 Id. at para. 171.
20 Id. at para. 191.
21 Id. at para. 193.
22 Id. at para. 184.
23 Viet Nam's First Written Submission at paras. 42-46 and exhibits cited therein.
24 Viet Nam's First Written Submission at paras. 47-51 and exhibits cited therein.
25 Exhibit Viet Nam-25.
26 Viet Nam's First Written Submission at paras. 62-69 and exhibits cited therein.

18. Viet Nam acknowledges that the investigati on and the first administrative review were
completed prior to Viet Nam's accession. Viet Nam submits that this fact is irrelevant for purposes of
this analysis. The concern in this instance is whether the USDOC has engaged in the above-discussed
practices on an ongoing and continual basis across different segments of the proceeding. The
USDOC continues to rely on these practices in all segments under the shrimp antidumping order and
has shown zero inclination to alter course. To en sure predictability that future segments of the
proceeding are conducted in a manner consistent with United States WTO obligations, Viet Nam
respectfully requests that the Panel consider the "continued use of challenged practices" measure in
this dispute.

B. V IET NAM IDENTIFIED THE "CONTINUED USE OF CHALLENGED PRACTICES" IN THE PANEL
REQUEST

19. The United States claims that because Viet Nam did not include in the panel request the
precise language employed by the European Commun ities in a panel request made in an entirely
different proceeding, Viet Nam did not properly id entify the "continued use of challenged practices"
measure. Viet Nam submits that because the panel request identified the ongoing measure in a
manner consistent with Article 6.2 of the DSU, the Panel should deny the United States' claims and
accept the "continued use of challenged practices" as a measure in this dispute.

20. In relevant part, Article 6.2 of the DSU provi des that "the request for establishment of a panel
shall ... identify the specific measure s at issue and provide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly."
28 Viet Nam understands the United States
argument to be that Viet Nam's panel request did not identify the "continued use of challenged
practices" measure, making no claim on the adequacy of the legal basis for the request.

21. The specificity requirement of Article 6.2 serves two purposes: it "forms the basis for the
terms of reference of the panel" and "serves the due process objectives of notifying respondents and
potential third parties of the nature of the dispute and of the parameters of the case to which they must
begin preparing a response."
29 Determining conformity with Ar ticle 6.2 and these general purposes
must be based on the panel request "read as a whole."30

22. The general purposes of Article 6.2, and the lens through which they are considered, are
necessarily informed by the context prov ided by related provisions of the DSU. 31 Article 3.3 of the
DSU calls for the "prompt settlement" of disputes among Members, such that "the DSU must be
interpreted so as to promote the prompt settlement of disputes, without adopting a reading of DSU
provisions that would prolong disputes unnecessarily…" 32 Article 9 is also instructive, embodying
"the DSU's philosophy of resolving all related issues together…." 33 It would contravene the clear
intent of Articles 3 and 9 to require later resoluti on of an issue substantively identical to a matter
presently before a panel.

27 Viet Nam's First Written Submission at paras. 78-86 and exhibits cited therein.
28 Article 6.2, DSU.
29 Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews –
Recourse to Article 21.5 of the DSU by Japan, WT/DS322/AB/RW, adopted 31 August 2009 at para. 108.
30 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina , WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, 3257 at
para. 169.
31 Panel Report, European Communities – Regime for the Importation, Sale and Distribution of
Bananas, Complaint by Guatemala and Honduras , WT/DS27/R/GTM, WT/DS27/R/HND, adopted
25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 695 at para. 7.32.
32 Panel Report, EC – Bananas III (Guatemala and Honduras) at para. 7.32.
33 Panel Report, EC – Bananas III (Guatemala and Honduras) at para. 7.32.

23. The Appellate Body and prev ious panels recognize these cons iderations when determining
whether a panel request satisfies the due process objectives of Article 6.2. In Argentina – Safeguard
Measures on Imports of Footwear , for example, the panel considered whether subsequent
modifications of a definitive measure, which were not explicitly mentioned in the request, fall within
the meaning of Article 6.2. Analyzing prior panel in terpretations of Article 6.2, the panel agreed that
"the requirements of Article 6.2 could be met in the case of a legal act that is subsidiary to or so
closely related to a measure specifically identified, that the responding party can reasonably be found
to have received adequate notice of the scope of the claims asserted by the complaining party." 34 The
panel's reasoning, applied in a safe guard context, is of general app lication. The panel was cognizant
of the danger in expanding a panel's terms of refe rence, but concluded that parties could reasonably
assume that subsequent modifications of a defi nitive measure would necessarily be included within
the panel's terms of referen ce given the logical connection. 35 This is particularly true where the
substantive issues being considered remain the same in the subsequent actions.

24. Viet Nam's panel request provided the United St ates and third parties with clear notice that
Viet Nam would challenge the USDOC's use of the de fined practices in all proceedings related to the
shrimp antidumping duty order. In the panel request, Viet Nam identified every segment of the
proceeding that is a direct product of the shrimp antidumping duty order. Indeed, Viet Nam identified
each segment of the shrimp proceeding that had at the time of the panel request been initiated – the
investigation, each of the four periodic reviews, a nd the initiation of the five-year sunset review – to
illustrate the continuous and on going nature of the challenged practices since imposition of the
antidumping duty order. Inclusion of the determina tions completed prior to Viet Nam's accession to
the WTO (the investigation and the first administra tive review) and those segments not yet final (the
fourth administrative review and the five-year sunset review) provided clear notice that Viet Nam was
concerned with the ongoing nature of these practices. Viet Nam specifically included the preliminary
determination of the fourth administrative review and the initiation of the five-year sunset review to
ensure that the Panel and Members understood Viet Nam's concerns with the continued use of the
USDOC practices in those segments of the shrimp antidumping proceeding.
36

25. If the balance of the Request for the Establishment of a Panel by Viet Nam provides
insufficient notice of Viet Nam's concern about continued and ongoing practices by the USDOC, the
portion of the request relating to the ongoing sunset review plainly establishes Viet Nam's concerns
regarding continued and ongoing practices:

Because of the circumstances described above with regard to the original
investigation and the subsequent reviews, including USDOC's use of zeroing, the use
of a country-wide rate, and the responde nt selection methodology which prevented
certain producers and exporters from having the opportunity to receive individual
rates, the ongoing sunset review is inconsistent with the Anti-Dumping Agreement .
Each of these practices has a substantial and possibly determinative impact on the
USDOC's sunset review determination because of the effect on the dumping margins
calculated during the administrative reviews. Accordingly, Viet Nam considers as a

34 Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear ,
WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 at para. 8.35, citing Panel Report, Japan –
Measures Affecting Consumer Photographic Film and Paper , WT/DS44/R, adopted 22 April 1998,
DSR 1998:IV, 1179 at para. 10.10.
35 Panel Report, Argentina – Footwear (EC) at para. 8.45 ("… the subsequent resolutions do not
constitute entirely new safeguard measures in the sens e that they were based on a different safeguard
investigation, but are instead modifications of the legal form of the original definitive measure, which remains
in force in substance and which is the subject of the complaint.").
36 Viet Nam notes that the fifth administrative review, discussed in Viet Nam's First Written
Submission, had not been initiated at the time of Viet Nam's panel request.

consequence of the inconsistencies set fort h in Sections a-c above that the USDOC
sunset review is inconsistent with Articles 11.2 and 11.3 of the Agreement.
26. Thus, Viet Nam has expressed its concerns clear ly about the complained of practices in each
segment of the proceeding and the cumulative effect of these practices on the sunset review and
ongoing reviews in addition to the effects on completed reviews.

27. It is not clear how Viet Nam could have more plainly identified its concern with the ongoing
nature of these practices (by listing each segment of the proceeding) and the continued use of these
practices (by identifying the segments that have not yet reached a final determination). Viet Nam
acknowledges that it did not use the precise language adopted by the European Communities in US –
Continued Zeroing , as noted repeatedly by the United States. This fact is irrelevant. The issue is
whether Viet Nam's panel request provided the part ies with notice of its concern with the continued
use of these practices. As the panel reasoned in Argentina – Safeguard Measures on Imports of
Footwear, Viet Nam's clear identification of the defi nitive antidumping duty places parties on notice
for subsequent determinations made in connection with the antidumping duty. Each of the segments
listed in Viet Nam's panel request – the periodic reviews and the five-year sunset review – are
intimately connected with one another and the an tidumping order; but for the antidumping order,
these segments would not occur.

28. Of added importance is that the United Stat es makes no argument that it did not have notice
of the substantive claims associated with the "cont inued use of challenged practices" measure. The
claims set forth in Viet Nam's panel request pertai n to zeroing, application of a Vietnam-wide rate,
calculation of the all-others rate, and the res pondent selection process. The "continued use of
challenged practices" measure does not expand upon these claims. There is no meaningful distinction
substantively between the arguments set forth by Vi et Nam, the United States, or third parties on the
specified claims, whether in relation to the second and third administrative review or the "continued
use of challenged practices" measure. Denial of th e United States' request ha s negligible substantive
impact on the issues considered in this dispute.

IV. CONCLUSION

29. On the basis of the above, Viet Nam submits as follows:

 Viet Nam makes no claim that the investig ation or first administrative review are
within the Panel's terms of reference other than as the factual predicate for its claim
that zeroing was applied in the second and third administrative reviews, thus the
United States' requests with regard to those segments are moot;

 Viet Nam properly and adequately iden tified the "continued use of challenged
practices" measure in the panel request of this dispute; and

 The Appellate Body has recognized that th e "continued use of challenged practices"
measure is susceptible to DSB resolution.

30. Accordingly, Viet Nam respectfully requests that the Panel deny the request made by the
United States with respect to the "continued use of challenged practices" measure and proceed to
consider the merits of the claims raised.