UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM
Document: Report of the Panel
Date: 11 July 2011
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

UNITED STATES – ANTI-DUMPING MEASURES ON
CERTAIN SHRIMP FROM VIET NAM

Report of the Panel

I. INTRODUCTION
A. ESTABLISHMENT AND COMPOSITION OF THE PANEL
1.1 On 1 February 2010, Viet Nam requested cons ultations with the United States pursuant to
Article 4 of the Understanding on Rules and Pro cedures Governing the Settlement of Disputes (the
"DSU"), Article XXII:1 of the General Agreemen t on Tariffs and Trade 1994 (the "GATT 1994"),
and Articles 17.2 and 17.3 of th e Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (the "An ti-Dumping Agreement") with regard to
determinations in the U.S. anti-dumping proceedings on Certain Frozen Warmwater Shrimp from
Vietnam (hereafter " Shrimp"), and certain related actions, laws, regulations, administrative
procedures, practices and methodologies of the United States.1
1.2 On 7 April 2010, Viet Nam requested, pursu ant to Article XXIII:1 of the GATT 1994,
Articles 4 and 6 of the DSU, and Article 17.4 of the Anti-Dumping Agreement, that the Dispute
Settlement Body ("DSB") establish a panel.2
1.3 At its meeting on 18 May 2010, the DSB establishe d a panel in accordance with Article 6 of
the DSU to examine the matter referred to the DSB by Viet Nam in document
1.4 The Panel's terms of reference are the following:
"To examine, in the light of the relevant provisions of the covered agreements cited
by the parties to the dispute, the matter referred to the DSB by Viet Nam in document
 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements."
1.5 On 14 July 2010, Viet Nam requested the Dire ctor-General to determine the composition of
the Panel, pursuant to paragraph 7 of Article 8 of the DSU. This paragraph provides:
"If there is no agreement on the panelists within 20 days after the date of the
establishment of a panel, at the request of either party, the Director-General, in
consultation with the Chairman of the DSB and the Chairman of the relevant Council
or Committee, shall determine the com position of the panel by appointing the
panelists whom the Director-General considers most appropriate in accordance with
any relevant special or additional rules or procedures of the covered agreement or
covered agreements which are at issue in th e dispute, after consulting with the parties
to the dispute. The Chairman of th e DSB shall inform the Members of the
composition of the panel thus formed no later than 10 days after the date the
Chairman receives such a request."
1.6 On 26 July 2010, the Director-General accordingly composed the Panel as follows3:
 Chairman: Mr. Mohammad Saeed

 Members: Ms Deborah Milstein
 Mr. Iain Sandford

1 WT/DS404/1. See Annex G-1.
2 WT/DS404/5. See Annex G-2.
3 WT/DS404/6.

1.7 China, the European Union, India, Japan, Korea, Mexico and Thailand reserved their rights to
participate in the Panel proceedings as third parties.
B. PANEL PROCEEDINGS
1.8 Following consultation with the parties, the Panel adopted its working procedures (including
additional procedures for the protection of busine ss confidential information) and timetable on
20 August 2010.
1.9 On 13 September 2010, as part of its first written submission, the United States submitted
requests for preliminary rulings. In its requests, th e United States argued that certain of the measures
challenged by Viet Nam are outside the terms of reference of this Panel, are not subject to the
Anti-Dumping Agreement, and/or are not subject to WTO dispute settlement because they purport to
include future measures. The Panel's rulings on these requests are set forth in its findings below.
1.10 The Panel met with the parties on 20, 21 Oct ober and on 14, 15 December 2010. It met with
the third parties on 21 October 2010. The Panel issued its Interim Report to the parties on
7 April 2011. The Panel issued its Final Report to the parties on 19 May 2011.
II. FACTUAL ASPECTS
2.1 The present dispute concerns the imposition of anti-dumping ("AD") duties in the U.S.
proceedings on Shrimp. The U.S. Department of Commerc e ("USDOC") initiated the original
investigation in January 2004, issued an anti- dumping duty order in February 2005, and has since
undertaken periodic reviews and a sunset review.
2.2 Specifically, Viet Nam makes claims with respect to the USDOC's final determinations in the
second and third administrative reviews under the Shrimp anti-dumping order, and with respect to the
"continued use", by the USDOC, of certain practices in successive proceedings under the same order.4
The "practices" challenged by Viet Nam are the following5:
(a) The USDOC's use of zeroing in the calculation of dumping margins;
(b) The application of a "country-wide rate" b ased on adverse facts available to certain
Vietnamese exporters or producers that could not establish that they act
independently from the Vietnamese Gove rnment in their commercial and sales
operations;
(c) The USDOC's limitation of the number of exporters or producers selected for
individual investigation or review.
2.3 In addition, Viet Nam makes cl aims with respect to the "all others" rate applied by the
USDOC in the second and third administrative reviews.
2.4 Finally, Viet Nam also makes claims with respect to the USDOC's "zeroing methodology", as
such.6

4 Viet Nam's first written submission, para. 101; Viet Nam's second written submission, para. 1.
5 Viet Nam's first written submission, paras. 1-15; Viet Nam's second written submission, para. 2.
6 See infra section VII.B for a more detailed overview of the measures and claims at issue in this
dispute.

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. VIET NAM
3.1 Viet Nam requests the Panel to find that7:
(a) The application of zeroing to individually -investigated respondents in the second and
third administrative reviews, and its continue d application in the subsequent reviews,
is inconsistent with Articles 9.3, 2.1, 2.4.2, and 2.4 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994.
(b) The USDOC's zeroing methodology is, as such , inconsistent with Article 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
(c) The use of margins of dumping determined using the zeroing methodology to
calculate the "all others" rate in the sec ond and third administrative reviews is, as
applied, inconsistent with Articles 9.4, 9.3, 2.4.2 and 2.4 of the Anti-Dumping
Agreement.
(d) Application of an "all others" rate that fails to consider the results of the individually-
investigated respondents in the contem poraneous proceeding and produces an anti-
dumping duty prejudicial to companies not selected for individual investigation is, as
applied in the second and third administrative reviews, inconsistent with Articles 9.4,
17.6(i), and 2.4 of the Anti-Dumping Agreement.
(e) The application of an anti-dumping duty based on adverse facts available to the
Vietnam-wide entity in the second and third administrative reviews, and its continued
application in subsequent revi ews, is inconsistent with Articles 6.8, 9.4, 17.6(i) and
Annex II of the Anti-Dumping Agreement.
(f) The USDOC's determinations in the second and third administrative reviews, and on
a continuing basis, to limit the number of individually-investigated respondents such
that they restrict certain substantive rights under the Anti-Dumping Agreement is
inconsistent with Articles 6.10, 6.10.2, 9.3, 11.1, and 11.3 of the Anti-Dumping
Agreement.
3.2 Viet Nam requests that the Panel recommend that the United States immediately bring the
relevant measures into conformity with its ob ligations under Article VI of the GATT 1994 and the
Anti-Dumping Agreement.
8
B. UNITED STATES
3.3 The United States requests that the Panel grant its requests for preliminary rulings and reject
Viet Nam's claims that the United States has acted inconsistently with the covered agreements.9
IV. ARGUMENTS OF THE PARTIES
4.1 The arguments of the parties are set out in their written submissions and oral statements to the
Panel and their answers to questions. Executive summaries of the parties' written submissions, and

7 Viet Nam's second written submission, para. 144.
8 Viet Nam's second written submission, para. 146.
9 United States' first written submission, para. 222; United States' second written submission, para. 167.

their oral statements, or executive summaries thereof, are attached to this Report as annexes (see List
of Annexes, pages vi-vii).
V. ARGUMENTS OF THE THIRD PARTIES
5.1 The arguments of the third parties are set out in their written submissions and oral statements.
Third parties' written submissions and oral statements, or executive summaries thereof, are attached to
this Report as annexes (see List of Annexes, pages vi-vii).10
VI. INTERIM REVIEW
A. INTRODUCTION
6.1 On 7 April 2011, the Panel submitted its Interim Report to the parties. On 21 April 2011, the
parties submitted written requests for review of precise aspects of the Interim Report. On
5 May 2011, Viet Nam submitted written comments on the United States' requests for interim review.
The United States did not comment on Viet Nam's requests for review.
6.2 As explained below, the Panel has modified asp ects of its findings in light of the parties'
comments where it considered appropriate. Du e to these changes, the numbering of certain
paragraphs and footnotes in the Final Report has changed from the Interim Report.
B. VIET NAM'S REQUESTS FOR REVIEW OF PRECISE ASPECTS OF THE INTERIM REPORT
6.3 Viet Nam suggests that the Panel make a number of clerical changes to the Interim Report to
correct typographical errors and to add a reference to an exhibit in a footnote. We have amended the
Interim Report to address Viet Nam's suggestions.
C. UNITED STATES' REQUESTS FOR REVIEW OF PRECISE ASPECTS OF THE INTERIM REPORT
6.4 The United States takes issue with the statement in paragraph 7.14 of the Interim Report
(unchanged in the Final Report) that when zeroing is applied, negative comparison results "are not
taken into consideration in calcu lating the overall margin of dumping". The United States considers
that negative comparison results are, in fact, take n into consideration when zeroing is applied.
However, the United States argues, these negative co mparison results are considered to be valued at
zero. In addition, the United States submits that zeroing affects only the comparison results that are
aggregated in the numerator of the dumping margin calculation. The United States notes that the
value of all sales is aggregated in the denominator of the dumping margin calculation. The
United States requests that the Panel amend para graph 7.14 accordingly. For similar reasons, the
United States requests that the Pa nel amend paragraph 7. 93, paragraph 7.111 (subject to its other
request in respect of this paragraph, discussed below), footnote 113 to paragraph 7.80 (footnote 114 in
the Final Report), and footnote 168 to paragraph 7.114 (footnote 172 in the Final Report) to reflect the
fact that zeroing sets the value of any negative compar ison results to zero, rather than "disregard[ing]"
or "discard[ing]" such results.
6.5 Viet Nam opposes these U.S. request s. Viet Nam considers that the Interim Report correctly
describes the effects of the zeroing methodology. Furthermore, Viet Nam notes that the Interim
Report does not comment on the use of sales in the denominator to calculate the final dumping
margin, but rather on the failure to use the negative comparison results in calculating the numerator.

10 China, India and Thailand did not submit third-party written submissions. Mexico and Thailand did
not make third-party oral statements.

6.6 The Panel does not agree with the United States' suggestion that the Interim Report
improperly describes the zeroing methodology. First, the Panel fails to see any distinction, from a
mathematical point of view, betw een "disregard[ing]" a number in the aggregation of a series of
numbers, and setting that number at zero. Second, the Panel considers that the changes suggested by
the United States would not add to the factual accu racy of its description of the zeroing methodology
applied by the United States. The evidence before th e Panel – in particular Exhibit Viet Nam-33, the
accuracy of which the United States does not contest – is to the effect that the programming
instructions applied by the USDOC exclude nega tive comparison results from the calculation of the
dumping margin, not that they set them zero. Inci dentally, the Panel notes that the United States is
not requesting any modification to paragraph 7.78 of the Interim Report (unchanged in the Final
Report), which summarizes the relevant portions of this exhibit. For this reason, the Panel declines to
amend paragraphs 7.14, 7.93, 7.111, footnote 113 (114 in the Final Report) to paragraph 7.80, and
footnote 168 (172 in the Final Report) to paragraph 7.114 as requested by the United States.
6.7 In addition, we agree with Viet Nam that our description of the zeroing methodology focuses
on whether all comparison results are taken into account in the numerator, and that it does not suggest
that certain sales are disregarded in the denominator. Nevertheless, the Panel has added a new
footnote (footnote 115) to make it clear that zer oing does not affect the denominator when the
USDOC calculates the dumping margin as a percentage.
6.8 The United States requests that the Panel am end paragraph 7.75 of the Interim Report
(unchanged in the Final Report). The United States submits that while it did not contest the accuracy
of the evidence submitted by Vi et Nam with respect to the USDOC's use of zeroing in the
proceedings at issue, it argued that given the zero and de minimis margins of dumping calculated in
the administrative reviews at issue, Viet Nam fa iled to demonstrate that the USDOC assessed any
duties in excess of the margin of dumping. Viet Nam opposes the U.S. request. Viet Nam considers
that the language that the United States proposes to add summarizes the United States' legal argument,
and has no relevance to the factual question of whether the USDOC applied zeroing in the
proceedings at issue, which is the question addressed in the paragraphs at issue. The Panel notes that
the United States did not at any time during its proceedings challenge Viet Nam's allegation that the
USDOC used zeroing in the proceedings at issue. For this reason, the Panel considers that
paragraph 7.75 accurately reflects the United States' arguments in these proceedings. Furthermore, as
Viet Nam notes, paragraph 7.75 concerns the question whether the USDOC used zeroing in the
proceedings at issue (rather than whether or not duties were assessed). Finally, the language
suggested by the United States is already included in paragraph 7.82 and footnote 114 of the Interim
Report (footnote 116 of the Final Report). For this reason, we do not consider it necessary to amend
paragraph 7.75 as requested by the United States. Nonetheless, to ensure greater clarity, we have
inserted, in a new footnote, a reference to this paragraph and footnote.
6.9 The United States requests that we reflect, in paragraph 7.103 of the Interim Report
(unchanged in the Final Report), its argument that Vi et Nam for the first time made arguments with
respect to its "as such" claim against the "zeroi ng methodology" in response to a written question of
the Panel. Viet Nam opposes the change proposed by the United States. Viet Nam notes that the
United States proposes adding language in the section summarizing the United States' legal
arguments, but that the paragraph that the United States suggests adding does not explain or
summarize any legal argument made by the United St ates. Rather, Viet Nam submits, the paragraph
merely identifies the timing of events during the co urse of the Panel proceedings. We have added a
new footnote to this paragraph to reflect the argument of the United States in respect of this issue.
6.10 The United States submits that paragraphs 7.11 1 and 7.122 of the Interim Report (unchanged
in the Final Report) incorrectly state that the content of the alleged norm, and whether it is attributable
to the United States, is not in dispute. Moreover, the United States argues that since these statements
form an essential part of the basis for the Panel's conclusion in paragraph 7.122 with respect to

Viet Nam's "as such" claim agains t the "zeroing methodology", the Panel's conclusion in respect of
that claim cannot be sustained and the relevant findings should be stricken from the Report.
Viet Nam opposes this U.S. request on the ground that the sentences of concern to the United States
are found in a section discussing the Panel's evaluation, not a section devoted a summary of U.S.
arguments, and that the United States has not comm ented on any improper inclusion or omission in
the section summarizing its arguments. In addition, Viet Nam submits that the Panel is correct that
the United States did not offer any substantive argu ment on either the content of the alleged norm or
attribution of the norm to the United States. Th e Panel has amended paragr aphs 7.111 and 7.122 to
ensure that they accurately reflect the United St ates' arguments on this issue. Specifically, the
relevant paragraphs now reflect the United States' statement, in its second wr itten submission, that
Viet Nam has failed to provide evidence to establish the content of the alleged norm, and that it is
attributable to the United States. We have amende d paragraph 7.222 to reflect the Panel's view that
Viet Nam has effectively established these two criteria. For this reason, the Panel has not modified its
finding with respect to the existence of the "zer oing methodology" as a rule or norm of general and
prospective application.
6.11 The United States submits that paragraph 7.113 of the Interim Report (unchanged in the Final
Report) does not accurately reflect its position with respect to the evidence put forward by Viet Nam
in support of its "as such" claim. The United States indicates that while it did not contest the accuracy
of the evidence presented, it did contest that su ch evidence was sufficient to establish that the
challenged measure is inconsistent with the provi sions of the Agreement. The Panel has amended
paragraph 7.113 as suggested by the United States.
6.12 The United States suggests that paragraphs 7.242 a nd 7.248 of the Interim Report be deleted.
The United States submits that contrary to what th ese paragraphs suggest, it did not argue that the
Working Party Report on Viet Nam's accession permits an investigating authority to apply a rate to a
non-market economy entity that is not consistent with the requirements of Article 9.4 of the
Anti-Dumping Agreement. Viet Nam opposes this U.S. request, as it considers that paragraph 7.242
accurately reflects the arguments made by the United States with respect to the rate applied to the
Vietnam-wide entity. We have amended the Interim Report to address the United States' concerns.
6.13 The United States also suggests that the Panel make a number of clerical changes to the
Interim Report to correct typographical errors. In some instances, the Unite d States also suggests
modifying the language used in the Report in orde r to enhance its clarity. In the absence of any
objection by Viet Nam, we have amended the Interim Report to address these suggestions.
D. OTHER CHANGES FROM THE INTERIM REPORT
6.14 In addition to the typographical and other non-subs tantive errors identified by the parties, we
have also made a number of changes to the Report to improve its readability or ensure its accuracy.
VII. FINDINGS
A. RELEVANT PRINCIPLES REGARDING TREATY INTERPRETATION , THE APPLICABLE STANDARD
OF REVIEW, AND BURDEN OF PROOF
1. Standard of review
7.1 Article 11 of the DSU provides the standard of review applicable in WTO panel proceedings
in general. This provision im poses upon panels a comprehensive ob ligation to make an "objective
assessment of the matter", both factual and legal. Article 11 of the DSU provides, in relevant part:

"The function of panels is to assist th e DSB in discharging its responsibilities under
this Understanding and the covered agreements. Accord ingly, a panel should make
an objective assessment of the matter before it, including an objective assessment of
the facts of the case and the applicability of and conformity with the relevant covered
agreements, and make such other findi ngs as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements."
7.2 Further, Article 17.6 of the Anti-Dumping Agreement sets forth a special standard of review
applicable to disputes under the Anti-Dumping Agreement. It provides:
"(i) in its assessment of the facts of the matter, the panel shall determine whether
the authorities' establishment of the facts was proper and whether their
evaluation of those facts was unbiased and objective. If the establishment of
the facts was proper and the evaluation was unbiased and objective, even
though the panel might have reached a different conclusion, the evaluation
shall not be overturned;
(ii) the panel shall interpret the rele vant provisions of the Agreement in
accordance with customary rules of interpretation of public international law.
Where the panel finds that a relevant provision of the Agreement admits of
more than one permissible interpretati on, the panel shall find the authorities'
measure to be in conformity with the Agreement if it rests upon one of those
permissible interpretations."
7.3 Taken together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement
establish the standard of review we will apply with respect to the factual and the legal aspects of the
present dispute.
2. Rules of treaty interpretation
7.4 Article 3.2 of the DSU requires us to apply cust omary rules of public international law on the
interpretation of treaties. It is generally accepted that these rules can be found in Articles 31-32 of the
Vienna Convention on the Law of Treaties of 1969 ("Vienna Convention"). Article 31(1) of the
Vienna Convention provides:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and
purpose."
7.5 Under the Anti-Dumping Agreement, the Panel is generally to follow the same rules of treaty
interpretation as in any other dispute. Howe ver, under Article 17.6(ii) of the Anti-Dumping
Agreement (cited above), where a relevant provision of the Anti-Dumping Agreement admits of more
than one permissible interpretation, a panel h as to uphold a measure that rests upon one of those
permissible interpretations. The A ppellate Body has indicated that Article 17.6(ii) contemplates a
sequential analysis. The Appellate Body explained that:
"The first step requires a panel to apply th e customary rules of interpretation to the
treaty to see what is yielded by a conscientious application of such rules including
those codified in the Vienna Convention . Only after engaging this exercise will a
panel be able to determine whether the second sentence of Article 17.6(ii) applies."
11

11 Appellate Body Report, US – Continued Zeroing, para. 271. (emphasis original)

3. Burden of proof
7.6 The general principles regarding the allocati on of the burden of proof in WTO dispute
settlement require that a party claiming a violation of a provision of a WTO agreement by another
Member assert and prove its claim. In US – Wool Shirts and Blouses the Appellate Body stated that:
"… we find it difficult … to see how any system of judicial settlement could work if
it incorporated the proposition that the mere assertion of a claim might amount to
proof. It is, thus, hardly surprising that va rious international tribunals, including the
International Court of Justice, have gene rally and consistently accepted and applied
the rule that the party who asserts a fact, whether the claimant or the respondent, is
responsible for providing proof thereof. Also, it is a generally-accepted canon of
evidence in civil law, common law, and, in f act, in most jurisdictions, that the burden
of proof rests upon the party, whether complaining or defending, who asserts the
affirmative of a particular claim or defen ce. If that party ad duces evidence sufficient
to raise a presumption that what is claimed is true, the burden then shifts to the other
party, who will fail unless it adduces sufficient evidence to rebut the presumption".
12
7.7 Furthermore, in Canada – Dairy (Article 21.5 – New Zealand and US II) the Appellate Body
stated that:
"… as a general matter, the burden of proof rests upon the complaining Member. That
Member must make out a prima facie case by presenting sufficient evidence to raise a
presumption in favour of its claim. If the complaining Member succeeds, the
responding Member may then seek to rebut this presumption. Therefore, under the
usual allocation of the burden of proof, a responding Member's measure will be
treated as WTO- consistent, until sufficient evidence is presented to prove the
contrary."13
7.8 A prima facie case is one which, in the absence of effective refutation by the other party,
requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie case.14
Viet Nam, as the complaining party, must make a prima facie case of violation of the relevant
provisions of the WTO agreements it invokes, which the United States must refute. We also note,
however, that it is generally for each party asserting a fact, whether complainant or respondent, to
provide proof thereof. In this respect, therefore, it is also for the United St ates to provide evidence
supporting the facts which it asserts.
B. INTRODUCTION TO THE PANEL'S FINDINGS – FACTUAL BACKGROUND
7.9 Viet Nam requests the Panel to find that the Un ited States acted inconsistently with its
obligations under the GATT 1994 and the Anti-Dumpi ng Agreement by reason of certain actions of
the USDOC in its proceedings concerning imports of Shrimp from Viet Nam. As noted above, Viet
Nam's claims pertain to:
(a) The USDOC's zeroing methodology, as such, and as applied in the proceedings at
issue.

12 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
13 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US II) , para. 66.
(emphasis original)
14 Appellate Body Report, EC – Hormones, para. 104.

(b) The USDOC's decisions, in the proceedings at issue, to limit the number of
individually-examined companies.
(c) The "all others" rate imposed by the USDOC in the proceedings at issue.
(d) The rate assigned by the USDOC to the Vi etnam-wide entity in the proceedings at
issue.
7.10 Before we proceed to analyse Viet Nam's clai ms, we consider it useful to provide a brief
overview of relevant USDOC practices. We th erefore provide, in this introductory section,
background information on: (i) the U.S. retrospective duty assessment system; (ii) zeroing; (iii) the
USDOC's procedures for the selection of companies fo r individual examination; (iii) the USDOC's
assignment of margins of dumping to respondents not individually examined. In addition, we also
provide a brief summary of the USDOC's determinations in the Shrimp proceedings.
7.11 The summary of relevant facts in this section reflects our unde rstanding of those facts before
us which are not in dispute and is without prejudice to our legal findings in subsequent sections of this
Report. To the extent that there is a disagreement between the parties with respect to a relevant fact
before us, we address that controversy in the relevant section below.
1. Relevant USDOC practices in anti-dumping proceedings
(a) The U.S. retrospective anti-dumping system
7.12 The United States operates what is referred to as a "retrospective" duty assessment system.
Under this system, an anti-dumping duty liability arises, and a security (in the form of a cash deposit)
is collected at the time of importation, but duties are not assessed at that time. The U.S. authorities
15
determine the amount of dumping that actually took place, and the amount of duties actually due, at a
later date, in the context of a periodic, or "admin istrative", review. Interested parties may request
such a review once a year, during the anniversary month of the order, to determine the amount of
duties – if any – owed on entries made during the previous year. 16 In an administrative review, the
USDOC assesses the importer's liability for anti-du mping duties on a retrospective and transaction-
specific basis. The USDOC calculates an importer-s pecific duty assessment rate, which is applied to
the value of the importer's imports to determine the correct total amount of duties owed; if no review
is requested, the duty is assessed at the rate established for the cash deposits. In addition, the USDOC
also determines an exporter-specific margin of dumpi ng, which is used to derive a new cash deposit
rate applicable to imports from that exporter going forward.17
7.13 Five years after the publication of an anti-dumping duty order, the U.S. authorities conduct an
expiry ("sunset") review to determine whether revo cation of the order would be likely to lead to a
continuation or recurrence of dumping and injury . Specifically, the USITC determines whether
revocation of the order would be likely to lead to the continuation or recurrence of material injury
whereas the USDOC determines whether revocation of the order would be likely to lead to a

15 Three agencies of the U.S. Go vernment are involved in anti-dumping proceedings: the U.S.
Department of Commerce ("USDOC") determines the existence and level of dumping by foreign
exporters/producers, while the U.S. International Tr ade Commission ("USITC") determines whether the U.S.
domestic industry is materially injured or threatened with material injury by reason of the dumped imports. U.S.
Customs and Border Protection ("USCBP") is responsible for the collection of duties.
16 The period of time covered by the review is normally twelve months; however, in the case of the
first administrative review, the period of time may extend to a period of up to 18 months in order to cover all
entries that may have been subject to provisional measures.
17 United States' first written submission, paras. 15-24; Viet Nam's first written submission,
paras. 24-39.

continuation or recurrence of dumping. In making this "likelihood-of-dumpi ng" determination, the
USDOC takes into consideration the dumping margin s established in the original investigation and
administrative reviews, as well as the volume of impor ts for the periods before and after the issuance
of the anti-dumping order.18
(b) "Zeroing" in the calculation of margins of dumping
7.14 Generally, the existence of dumping is determined by comparing prices of sales by the
exporter to the importing country ("export price") to the price of sales of the same product in the
exporter's domestic market ("normal value") during a reference period. Dumping exists if the export
price is less than the normal value.19 The issue of zeroing arises when ever multiple such comparisons
between the export price and the normal value are perfo rmed and then need to be aggregated. In such
cases, some comparisons may reflect export prices below normal value (i.e. dumping), while others
may reflect the opposite (export prices above normal value). Zeroing is the practice, when performing
the aggregation of multiple comparisons, of treati ng the results of comparisons where export prices
are above normal value as "zero" (treating them as "undumped" rather than assigning them a negative
value). Thus, when zeroing is applied, negative co mparison results are not taken into consideration in
calculating the overall margin of dumping and are not permitted to offset the results of comparisons
where export prices are below normal value.
7.15 Viet Nam makes claims with respect to the alleged use by the USDOC of zeroing in the
context of original investigations and of periodic reviews. Viet Nam alleges, first, that the USDOC
applied "model zeroing" in calculating margins of dum ping in the original investigation. Viet Nam
describes the USDOC's "model zeroing" methodolog y as follows: In calculating the margins of
dumping of individually-investigated exporters in the original investigation, the USDOC makes
model-specific intermediate comparisons of the weighted average export price to the weighted
average normal value ("weighted-average-to-we ighted-average" comparisons). Where the
intermediate comparison produces a negative dumping margin for a particular model, the USDOC
refuses to allow the negative dumping margin for that model to offset positive dumping margins
calculated for other models. Thus, Viet Nam subm its, when aggregating the dumping margin for all
models, the USDOC only includes those models that produced a positive dumping margin; the
negative dumping margins are set to zero and have no impact on the overall dumping margin.20
7.16 Viet Nam also makes claims with respect to "simple zeroing" in the context of periodic
reviews. Viet Nam submits that in periodic reviews, the USDOC compares the export price of
individual transactions to a weighted average nor mal value for comparable merchandise ("weighted-

18 USDOC Determinations in Recently Completed Sunset Reviews, Exhibit Viet Nam-64; Preliminary
Determination and Issues and Decision Memorandum in the Sunset Review, Exhibit Viet Nam-25. Where not
otherwise specified, all references to USDOC determinations in the "original investigation", an "administrative
review" or the "sunset review" are to the relevant USDOC determinations in the Shrimp proceedings.
19 In investigations involving products from countries which it categorizes as non-market economies,
the USDOC calculates the normal value on the basis of surrogate values taken from countries which it considers
to be "market economies" rather than on the basis of the prices or costs of production actually incurred by the
investigated producer. Specifically, for each export er/producer, the USDOC relies on the quantities of the
factors of production used by the expo rter/producer concerned (e.g., labour, raw materials, energy) based on its
actual production experience. The US DOC values each such factor of pr oduction on the basis of prices
prevailing in the "surrogate" "market economy". The USDOC then applies ratios for overhead, selling, general
and administrative expenses, and profit to the calculati on resulting from the multipli cation of each respondent's
factors of production by the surrogate price. In the Shrimp proceedings, the USDOC co nsidered that Viet Nam
is a non-market economy and selected Bangladesh as th e relevant surrogate country. (Viet Nam's first written
submission, para. 26 and USDOC 2009 Anti-Dumping Manual Chapter 10, Non-Market Economies, Exhibit
Viet Nam-31, p. 7).
20 Viet Nam's first written submission, paras. 29-32.

average-to-transaction" comparison). Viet Nam expl ains that the USDOC then aggregates the results
of these comparisons to calculate the reviewed company's overall dumping margin. Viet Nam alleges
that in doing so, the USDOC disregards, or "zeroes", all negative comparison results, where the export
price is higher than the normal value.21
(c) USDOC procedures with respect to the selection of respondents
7.17 United States law sets forth a general requi rement that the USDOC shall determine an
individual margin of dumping for each known exporter or producer. 22 Similar to Article 6.10 of the
Anti-Dumping Agreement, however, U.S. law provides an exception to this general rule: If it is "not
practicable" to make individual dumping margin de terminations because of the large number of
exporters or producers involved in the investigati on or review, the USDOC may determine individual
margins of dumping "for a reasonable number of expor ters or producers" by limiting its examination
to: (i) a statistically-valid sample of exporters, prod ucers, or types of products; or (ii) exporters and
producers "accounting for the largest volume of th e subject merchandise from the exporting country
that can be reasonably examined". 23 In the proceedings at issue, the USDOC limited its examination
to the latter.24
7.18 The USDOC selects exporters/producers for individual examination in the context of an
administrative review as follows: On the anniversary month of the publication of the anti-dumping
order, the USDOC publishes a notice informing inte rested parties – whether U.S. domestic producers
or importers or foreign exporters – of the possibility to request an administrative review of individual
producers and exporters covered by the order. The USDOC next publishes a notice of initiation, in
which it lists all companies for which a review has been requested. The USDOC then analyses
importation data for these companies using either data collected by the USCBP or questionnaire
responses submitted by the companies, providing the quantity and value of their exports of the
product under consideration during the period under review. The USDOC subsequently issues a
"Respondent Selection Memorandum" in which it dete rmines (1) whether individual examination of
all companies for which a review has been reque sted would be practicable and (2) if not, the
companies selected for individual examination for the relevant review ("mandatory respondents").
U.S. law provides companies not sel ected for individual examination the opportunity to be "voluntary
respondents", i.e. to come forward and submit to the USDOC the data necessary for the calculation of
an individual dumping margin. While the USDOC h as a general obligation to determine individual
margins for such "voluntary respondents", it ma y also refuse to do so where this would be
impracticable.
25

21 Viet Nam's first written submission, paras. 36-38.
22 19 U.S.C. § 1677f-1(c)(1), Exhibit Viet Nam-52.
23 19 U.S.C. § 1677f-1(c)(2), Exhibit Viet Nam-52.
24 See infra section VII.E.
25 19 C.F.R. §351.204(d)(1) and (2) (Exhibit Viet Nam-53).

(d) The USDOC's assignment of dumping margins to exporters not individually examined26
7.19 The USDOC's practice for imposing anti-dum ping duties on imports from companies not
individually examined differs depending on whether the imports originate from a country which the
USDOC considers to be a "market economy", or one which the USDOC treats as a "non-market
economy". In the proceedings at issue, the US DOC considered that Viet Nam is a non-market
economy.
27
7.20 In proceedings involving imports from non-market economies, the USDOC applies a
rebuttable presumption that all companies within the country are essentially operating units of a single
government-wide entity and, thus, should receive a single anti-dumping duty rate. 28 Exporters
wishing to rebut that presumption must file an application and demonstrate the absence of government
control, both de jure and de facto, over their export activities, pursuan t to a set of criteria established
by the USDOC. 29 The "separate rate" respondents which satis fy these criteria are eligible to receive
an individual margin. Where the investigating au thority has limited its examination, they either
receive an individual margin, if selected for indivi dual examination, or an "all others" rate, if not
selected for individual examination.
7.21 The "all others" rate30 applied to non-selected respondents is generally based on the weighted
average margins of dumping of the individually exam ined respondents, excluding rates that are zero,
de minimis rates or rates entirely based on facts availabl e. The all others rate is updated in each
administrative review in order to reflect the individual dumping margins calculated in the review.31
7.22 The USDOC Anti-Dumping Manual does not expl ain how the NME-wide rate is to be
calculated, other than to mention that the NME-wide rate determined in the original investigation may
be based on adverse facts available, "if, for exampl e, some exporters that are part of the NME-wide
entity do not respond to the antidumping questionnaire", adding that "[i]n many cases, the Department
concludes that some part of the NME-wide entity has not cooperated in the proceeding because those
that have responded do not account for all imports of subject merchandise." 32 The Manual further
indicates that "occasionally", the NME-wide rate "may be changed" through an administrative review.
This happens when (i) the USDOC is reviewing th e NME entity because the USDOC is reviewing an

26 The USDOC uses the terms "exporter(s)", "company (ies)" and "respondent(s)" interchangeably. For
this reason, we also use these terms interchangeably in discussing the entities in respect of which anti-dumping
duties are assessed. Of relevance to this issue, the USDOC Anti-Dump ing Manual, Chapter 10, Non-Market
Economies indicates that the USDOC makes "separate rate" determinatio ns (explained below) and assigns anti-
dumping duties with respect to exporters. The Anti-Dumping Manual furthe r indicates that the exporter-
specific "separate rate" applied by the USDOC – whether individual margin or "all others" rate – is also specific
to those producers that supplied the exporter during the period of investigation. The Anti-Dumping Manual
refers to these as "combination rates" "because such rates apply to specific combinations of exporters and one or
more producers" and explains that "[t]he cash-depos it rate assigned to an exporter will apply only to
merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the
POI." (USDOC Anti-Dumping Manual, Chapter 10, Non-Market Economies, Exhibit Viet Nam-31, p. 5).
27 We use the term "non-market economy" and the acronym "NME" to refer to the USDOC's own use
of these term and acronym. In doing so, we express no opinion on the WTO-consistency of the USDOC's
classification of certain countries, including Viet Nam, in such a category.
28 USDOC Anti-Dumping Manual, Chapter 10, Non-Market Economies, Exhibit Viet Nam-31, p. 3.
29 USDOC "Separate Rate" Application Used by the USDOC in Investigations Involving Imports from
Viet Nam, Exhibit Viet Nam-50.
30 The USDOC refers to the "all others" rate applied to such respondents as the "separate rate". To
avoid confusion, in our findings, we usually prefer the term "all others" rate.
31 See, infra section VII.F.
32 USDOC Anti-Dumping Manual, Chapter 10, Non-Market Economies, Exhibit Viet Nam-31, pp. 7-8.

exporter that is part of that entity; and (ii) one of the calculated margins for a respondent is higher
than the current NME-wide rate.33
2. USDOC determinations in the Shrimp proceedings
7.23 Below is a summary of the successive pr oceedings conducted by the USDOC under the
Shrimp anti-dumping order. This summary is without prejudice to the Panel's analysis of whether any
or all of these proceedings are within the Panel's term s of reference. We note, in this respect, that
Viet Nam acceded to the WTO on 11 January 2007, meaning that certain of the USDOC proceedings
mentioned here were initiated or completed prior to Viet Nam's accession. We further note that
Viet Nam submitted its request for the establishment of a panel on 7 April 2010, i.e. before certain of
the USDOC determinations listed below.34
(a) Original investigation
7.24 The USDOC initiated on 20 January 2004 an an ti-dumping investigation on certain frozen
and canned warmwater shrimp from, inter alia , Viet Nam. 35 On 8 December 2004, the USDOC
published its final dete rmination in the original investigation 36, and on 1 February 2005, the USDOC
published the anti-dumping order. 37 In the investigation, the USDOC treated Viet Nam as a
non-market economy. The USDOC de termined that it was impracticab le to individually examine all
the Vietnamese exporters/producers of the product under consideration. The USDOC selected for
individual examination the four respondents accounting for the largest volume of exports during the
period of investigation. Three of these "mandato ry respondents", Camimex, Minh Phu and Minh Hai,
cooperated with the investigation. For each of them, the USDOC calculated an individual dumping
margin ranging from 4.30 to 5.24 per cent. The US DOC applied to the separate rate respondents not
selected for individual examination a rate equal to the weighted average of the three individual
margins of dumping, 4.57 per cent. Finally, th e USDOC applied to those exporters which it
considered had not demonstrated entitlement to a separ ate rate a Vietnam-wide rate of 25.76 per cent.
The USDOC determined this rate on the basis of adverse facts available.38
(b) First administrative review
7.25 The first administrative review covered imports of frozen warmwater shrimp from Viet Nam
during the period 16 July 2004 to 31 January 2006. The USDOC issued its final determination in that
review on 12 September 2007. The USDOC determined that it was impracticable to individually
examine all Vietnamese companies covered by the review and selected three Vietnamese respondents

33 USDOC Anti-Dumping Manual, Chapter 10, Non-Market Economies, Exhibit Viet Nam-31, pp. 7-8.
34 Viet Nam indicates that the second and third administrative reviews were initiated and completed
subsequent to Viet Nam's accession to the WTO on 11 January 2007 (Viet Nam's first written submission,
para. 101). Indeed, these two admini strative reviews are the only ones which were completed after Viet Nam's
accession and before the submission by Viet Nam of its request for the establishment of a panel.
35 Notice of Initiation of the Original Investigation, Exhibit Viet Nam-03.
36 Final Determination and Issues and Decision Memorandum in the Original Investigation, Exhibit
Viet Nam-06.
37 Amended Final Determination in the Original Investigation and Anti-Dumping Duty Order, Exhibit
Viet Nam-07; Preliminary Determination in the Original Investigation, Exhibit Viet Nam-05. While the
USDOC initiated an investigation on certain frozen and canned warmwater shrimp, the anti-dumping order was
imposed only in respect of frozen warmwater shrimp, reflecting the USITC's negative injury determination with
respect to imports of canned warmwater shrimp from Viet Nam.
38 Respondent Selection Memorandum in the Original Investigation, Exhibit Viet Nam-04; Final
Determination and Issues and Decision Memorandum in the Original Investigation, Exhibit Viet Nam-06;
Amended Final Determination in the Original Inve stigation and Anti-Dumping Duty Order, Exhibit
Viet Nam-07.

for individual examination. Only one of these respondents, Fish One, cooperated. The USDOC
calculated a margin of zero per cent for Fish One. The USDOC again applied a rate of 25.76 per cent
to the Vietnam-wide entity. Since the rates for mandatory respondents included only Fish One's zero
rate and the Vietnam-wide rate, which was entirely based on adverse facts available, the USDOC
applied the same "all others" rate which it had applied in the original investigation, i.e. 4.57 per cent.39
(c) Second administrative review
7.26 The USDOC's final determination in the sec ond administrative review, covering imports
during the period 1 February 2006 to 31 January 2007, was issued on 9 September 2008. The
USDOC again determined that it was impracticab le to individually examine all Vietnamese
exporters/producers. It selected two companies, Minh Phu and Camimex, for individual examination.
The USDOC calculated a margin of zero per cent for Camimex and a margin of 0.01 per cent
(de minimis) for Minh Phu. Since all individual margins were zero or de minimis , the USDOC
applied to most "separate rate" respondents not individually examined the same 4.57 per cent "all
others" rate which it had applied in the original investigation and the first administrative review.
Where a more recent individual margin was on the record for a company, the USDOC applied that
rate to the company concerned. The USDOC thus attributed zero rates to both Fish One and Grobest
and a 4.30 per cent rate to Seaprodex. The USDOC also applied the same Vietnam-wide rate of
25.76 per cent that it had applied in the original investigation and first administrative review.
40
(d) Third administrative review
7.27 The USDOC's final determination in the third administrative review, covering imports during
the period 1 February 2007 to 31 January 2008, was issued on 19 September 2009. The USDOC
again determined that it was impracticable to individually examine all Vietnamese
exporters/producers. It selected three comp anies, Minh Phu, Camimex and Phuong Nam, for
individual examination, and calculated a de minimis margin for each of these companies, ranging
between 0.08 per cent and 0.43 per cent. The USDOC adopted the same approach with respect to the
"all others" rate as in the second administrative review , applying an "all others" rate of 4.57 per cent,
except where a more recent individual margin was on the record for a company. The USDOC also
applied the same Vietnam-wide rate of 25.76 per cent rate it had applied in previous proceedings.41
(e) Fourth administrative review
7.28 The USDOC's final determination in the four th administrative review, covering imports
during the period 1 February 2008 to 31 January 2009, was issued on 9 August 2010. The USDOC
selected two companies for individual examination, Minh Phu and Nha Trang. It calculated a
dumping margin of 2.96 per cent for Minh Phu and a dumping margin of 5.58 per cent for Nha Trang.

39 Notice of Initiation of the First Administra tive Review and New Shipper Review, Exhibit
Viet Nam-08; Respondent Selection Memorandum in the First Administrative Review, Exhibit Viet Nam-09;
Preliminary Determination in the First Administrative Re view, Exhibit Viet Nam-10; Final Determination and
Issues and Decision Memorandum in the First Administrative Review and New Shipper Review, Exhibit
Viet Nam-11. In addition, the USDOC applied a rate of zero to Grobest, a "new shipper" of the product under
consideration.
40 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12; Respondent
Selection Memorandum in the Second Administrative Review, Exhibit Viet Nam-13; Preliminary
Determination in the Second Administrative Review, Exhibit Viet Nam-14; Final Determination and Issues and
Decision Memorandum in the Second Administrative Review, Exhibit Viet Nam-15.
41 Notice of Initiation of the Third Administrative Review, Exhibit Viet Nam-16; Respondent
Selection Memorandum in the Third Administrative Revi ew, Exhibit Viet Nam-17; Preliminary Determination
in the Third Administrative Review, Exhibit Viet Nam-18; Final Determination and Issues and Decision
Memorandum in the Third Administrative Review, Exhibit Viet Nam-19.

The USDOC applied as "all others" rate the we ighted average of these margins of dumping,
i.e. 4.27 per cent. In addition, the USDOC app lied to the Vietnam-wide entity the same 25.76 per
cent rate as in previous proceedings.42
(f) Fifth administrative review
7.29 The USDOC's fifth administrative revi ew, covering imports during the period
1 February 2009 to 31 January 2 010, was initiated on 9 April 2010. 43 It was ongoing at the time of
the Panel's proceedings. The USDOC selected three companies for individual examination,
Minh Phu, Nha Trang and Camimex.44
(g) Sunset review
7.30 The USDOC on 4 January 2010 initiated a five-year "sunset" review of the Shrimp
anti-dumping order. On 6 August 2010 the USDOC pr eliminarily determined that revocation of the
order would be likely to lead to continuation or recurrence of dumping at margins of dumping ranging
from 4.30 per cent to 25.76 per cent, corresponding to the margins of dumping calculated for various
Vietnamese companies in the orig inal investigation. On 7 Dece mber 2010, the USDOC issued its
final likelihood-of-dumping determination, in which it confirmed these conclusions.45
C. TERMS OF REFERENCE
1. Introduction
7.31 Before addressing the substance of Viet Nam's claims, we first consider a number of issues
pertaining to whether certain measures are properly before the Panel.
7.32 Viet Nam seeks "as applied" findings with respect to three measures: the USDOC's
determination in the second administrative re view, the USDOC's determination in the
third administrative review, and the "continued use of challenged practices" in the successive Shrimp
proceedings.46 In addition, Viet Nam seeks findings with respect to the WTO-consistency, as such, of
the U.S. "zeroing methodology".47

42 Notice of Initiation of the Fourth Administrative Review, Exhibit Viet Nam-20; Respondent
Selection Memorandum in the Fourth Administrative Review, Exhibit Viet Nam-21; Preliminary Determination
in the Fourth Administrative Review, Exhibit Viet Nam-22; Final Determination and Issues and Decision
Memorandum in the Fourth Administrative Review, Exhibit Viet Nam-23. We note that at the time of
Viet Nam's panel request, the USDOC had not yet issued its final determination in the fourth administrative
review.
43 Notice of Initiation of the Fifth Administrative Review, Exhibit Viet Nam-26. We note that at the
time of Viet Nam's panel request, the USDOC had not yet initiated the fifth administrative review.
44 Respondent Selection Memorandum in the Fifth Administrative Review, Exhibit Viet Nam-27.
45 Notice of Initiation of the Sunset Review, Exhib it Viet Nam-24, and Preliminary Determination and
Issues and Decision Memorandum in the Sunset Review, Exhibit Viet Nam-25. Viet Nam did not submit the
USDOC's final likelihood-of-dumping determination as an exhibit but provided a reference to the Federal
Register Notice of that determination (Viet Nam's opening oral statement at the second meeting of the Panel,
footnote 46 to para. 52, citing to Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam:
Final Results of the Five-Year "Sunset" Review of the Antidumping Duty Order , 75 Fed. Reg. 75965,
7 December 2010, available at http://ia .ita.doc.gov/frn/summary/vietnam/2010-30664.txt). We note that the
documents submitted by Viet Nam only pertain to the USDOC's likelihood-of-dumping determinations, and that
at the time of Viet Nam's panel request, the USDOC had only initiated the sunset review.
46 Viet Nam's first written submission, para. 101; Viet Nam's second written submission, para. 144.
47 Viet Nam's second written submission, para. 144.

7.33 The United States made requests for preliminar y rulings with respect to certain of the
measures challenged by Viet Nam in the context of its "as applied" claims. Specifically, the
United States requests that we find that the following measures are not within our terms of reference:
(a) the USDOC's final determination in the original investigation;
(b) the USDOC's final determination in the first administrative review; and
(c) the measure characterized by Viet Na m as the "continued use of challenged
practices".48
7.34 We first address the United States' request pertaining to the USDOC determinations in the
original investigation and first administrative review.
2. U.S. request for a preliminary ruling with respect to the USDOC determinations in the
original investigation and first administrative review
7.35 The United States requests that we find that the USDOC's final determinations in the original
investigation and in the first administrative review, which are both identified as "measures" at issue in
Viet Nam's panel request, do not fall within our term s of reference. In support of its request, the
United States argues that the original investiga tion was initiated and completed before Viet Nam's
accession to the WTO, and that the first administ rative review was initiated prior to Viet Nam's
accession to the WTO. As a result, the United St ates argues, the Anti-Dumping Agreement does not
apply to these determinations. 49 Moreover, the United States argues that the original investigation
was not included in Viet Nam's request for consultations, which it considers to be a prerequisite for its
inclusion in the panel request and, and therefore, our terms of reference.50
7.36 Viet Nam indicates that it does not consider the USDOC's determinations in the original
investigation and the first administrative review to be "measures at issue" and does not request that we
make any findings with respect to the WTO-consistency of these determinations. 51 This being the
case, we see no need to address the U.S. request for preliminary rulings with respect to these
two determinations.
7.37 We note, however, that Viet Nam considers that the USDOC's actions in the original
investigation impact upon the WTO-consistency of the USDOC determinations in the subsequent
proceedings conducted by the USDOC under the Shrimp anti-dumping order. 52 This, Viet Nam

48 United States' first written submission, paras. 71-98.
49 United States' first written submission, paras. 76-80 and 85-86; United States' opening oral
statement at the first meeting of the Panel, paras. 6- 12; United States' second written submission, para. 135.
The United States relies, in this respect, on Article 18.3 of the Anti-Dumping Agreement, which provides as
follows:
"Subject to subparagraphs 3.1 and 3.2, the pr ovisions of this Agreement shall apply to
investigations, and reviews of existing measures, initiated pursuant to applications which have
been made on or after the date of entry into force for a Member of the WTO Agreement."
50 United States' first written submission, paras. 81-84; United States' second written submission,
para. 136; United States' response to Panel question 8.
51 Viet Nam's response to the United States' request for preliminary rulings, paras. 3, 5-10. In fact, the
United States itself recognizes that Viet Nam requests no findings with respect to these two determinations.
(United States' first written submission, footnote 65 to para. 84 and footnote 69 to para. 86; United States'
response to Panel question 8).
52 Viet Nam's response to the United States' request for preliminary rulings, para. 3. Viet Nam indicates
that it considers that the USDOC's determinations in the original investigation and the first administrative
review are not within our terms of reference "except to the extent that the results of these segments of the

argues, is because the USDOC in the second and thir d administrative reviews applied an "all others"
rate based on dumping margins calculated with zeroing in the original investigation. 53 We address
this argument of Viet Nam in section VII.F below, in our analysis of Viet Nam's claims with respect
to the "all others" rate.
3. U.S. request for a preliminary ruling with respect to the "continued use of challenged
practices" measure
(a) Introduction
7.38 As we have noted above, in its submissions to the Panel, Viet Nam identifies as one of the
measures at issue in this dispute the "continued u se of challenged practices" in successive "segments"
of the Shrimp anti-dumping proceeding. Viet Nam explains that this measure concerns a continued
and ongoing conduct on the part of the USDOC, encompassing the use of three of the challenged
practices (zeroing, Vietnam-wide rate, limitation of the number of respondents individually examined)
in successive proceedings under the Shrimp anti-dumping order.54 This includes not only proceedings
that have been completed, but also ongoing and future ones, and therefore includes a prospective
element.55 Viet Nam explains that the measure it chal lenges is similar to the one challenged by the
European Communities in US – Continued Zeroing , which concerned an ongoing conduct with
prospective effect.56
7.39 The United States requests that we preliminar ily determine that this "continued use of
challenged practices" measure does not fall within our terms of reference. The United States argues
that this "continued use" measure is not a "measure " within the Panel's terms of reference as: (i) it
was not "identified" as a "measure at issue" in Vi et Nam's request for the establishment of a panel,
pursuant to Article 6.2 of the DSU 57; and (ii) it is not a measure that is cognizable in WTO dispute
settlement because it purports to include future measures. 58 Viet Nam asks us to reject the
U.S. request for a preliminary ruling and to proceed to consider the merits of its claims in respect of
that measure.59
7.40 We examine each of the United States' arguments in turn, starting with the U.S. argument that
Viet Nam's panel request failed to identify the "c ontinued use of challenged practices" measure as a
measure at issue in this dispute.

proceeding bear on the results of those segments of the proceeding which occurred after Viet Nam's accession to
the WTO".
53 Viet Nam's response to the United States' request for preliminary rulings, paras. 6-10.
54 Viet Nam's response to the United States' request for preliminary rulings, paras. 13-18; Viet Nam's
second written submission, para. 2; Viet Nam's response to Panel question 1.
55 Viet Nam's first written submission, para. 104. Vi et Nam specifies that the "continued use" measure
includes the fourth administrative review, the fifth admi nistrative review, as well as the sunset review. The
fifth administrative review was ongoing but not yet completed at the time of the drafting of this Report, whereas
the USDOC issued a final likelihood-of-dumping determina tion in the context of the sunset review during the
course of the Panel's proceedings. See supra section VII.B.2.
56 Viet Nam's first written submission, paras. 98-99, 104-105 and 294-295; Viet Nam's response to the
United States' request for preliminary rulings, paras. 13-18; Viet Nam's response to Panel question 1.
57 United States' first written submission, paras. 88-95; United States' opening oral statement at the
first meeting of the Panel, paras. 13-19.
58 United States' first written submission, paras. 96-98; United States' opening oral statement at the
first meeting of the Panel, paras. 20-22; United States' response to Panel question 12; United States' second
written submission, paras. 157-159.
59 Viet Nam's response to the United States' request for preliminary rulings, paras. 4, 30.

(b) Whether Viet Nam's panel request identifies the "continued use of challenged practices" as a
"measure at issue" as required under Article 6.2 of the DSU
(i) Main arguments of the parties
 United States
7.41 The United States asserts that Viet Nam's panel request identifies, as the measures at issue in
this dispute, each proceeding under the Shrimp order that had already been initiated at the time of the
panel request. Thus, the United States argues, Viet Nam's panel request limits the measures at issue to
these determinations, and nowhere indicates that Viet Nam seeks to challenge a so-called "continued
use" measure. The United States argues that Vi et Nam would have the Panel infer from the
identification of a selection of "as applied" measures that a "continuing measure" is also a subject of
the dispute. The United States considers that such an inference is not permissible. The United States
notes that by contrast, the Europ ean Communities' panel request in US – Continued Zeroing
specifically and explicitly identified the "continued a pplication" of the anti-dumping duties at issue as
a measure at issue.
 In addition, the United States submits that not only is the "continued use" measure
itself beyond the scope of Viet Nam's panel request, but the components that Viet Nam asserts are part
of that "continued use" measure are themselv es beyond the scope of the panel request. The
United States submits in this respect that Viet Nam includes the fourth and fifth administrative
reviews and the sunset review within the "conti nued use" measure whereas Viet Nam's panel request
only includes the preliminary results of the fourth administrative review and the initiation of the
sunset review and makes no mention of the fifth administrative review.60
7.42 In addition, the United States rejects Viet Nam' s argument that the measures identified in the
panel request are closely related to the "continue d use" measure. The United States argues in this
respect that Viet Nam's reliance on the reports of the Japan – Film and Argentina – Footwear panels,
which both concerned measures not identified in the panel request, is inconsistent with its position
that the "continued use" measure was identified in its panel request and is in any event inapposite.61
 Viet Nam
7.43 Viet Nam considers that it properly and ad equately identified the "continued use of
challenged practices" measure in its panel request. Viet Nam asserts that its panel request identified
its concern with the ongoing nature and the continue d use of the challenged practices by identifying
each segment of the proceeding that had been initiate d at the time of its panel request. Viet Nam
argues that it specifically included segments not yet finalized to ensure that the Panel and Members
understood that it was concerned with the ongoi ng nature of the USDOC practices at issue. 62
Viet Nam argues that the findings of the Appellate Body in US – Continued Zeroing provide a useful
framework for determining whether a complainan t challenging a "continued use" measure has
complied with Article 6.2. Viet Nam submits that consistent with the Appellate Body's findings in
that dispute, its panel request included: (i) the identification of the anti-dumping order, which places
the Panel and parties on notice for challenges to determinations that fl ow from imposition of the
order; (ii) the most recently completed phases of the proceeding, which in forms parties that the

60 United States' first written submission, para. 88-94; United States' opening oral statement at the first
meeting of the Panel, paras. 14-17; United States' response to Panel question 4; United States' second written
submission, para. 137. The United States clarifies that it is not taking the position that Viet Nam was required
to use, in its panel request, the same language used by the European Communities in US – Continued Zeroing .
(United States' opening oral statement at the first meeting of the Panel, para. 18).
61 United States' second written submission, paras. 146-153.
62 Viet Nam's response to the United States' request fo r preliminary rulings, paras. 24, 27; Viet Nam's
opening oral statement at the first meeting of the Panel, para. 28.

conduct is continuing and has not ceased; and (iii) that the claimed violations have occurred at
multiple phases since imposition of the order.63
7.44 Viet Nam also argues that the requirement to identify the measu res at issue under Article 6.2
must be informed by the context provided by other provisions of the DSU, namely Article 3.3 of the
DSU, which calls for the "prompt settlement of di sputes", and Article 9, which Viet Nam submits
embodies "the DSU's philosophy of resolving all related issues together." 64 Moreover, Viet Nam
contends that the reports of the panels in Japan – Film and Argentina – Footwear stand for the
general proposition that the identification of a measu re in the panel request suffices to place within a
panel's terms of reference measures that are "subsidia ry to", or "closely related" to that measure, or
subsequent determinations made in connection with that measure. Viet Nam argues that its
identification of the Shrimp anti-dumping order in its panel re quest placed parties on notice for
subsequent determina tions under that order. 65 Viet Nam also argues that the "continued use of
challenged practices" measure does not expand upon the claims set forth in its panel request and that,
as a result, denial of the United States' request w ould have a negligible substantive impact on the
issues considered in this dispute.66
(ii) Main arguments of the third parties
7.45 Korea invites the Panel to review Viet Nam's pa nel request to see whether it can find in that
request a description that is sufficient to indicat e the nature of the "continued use of challenged
practices", even though Viet Nam did not use th ese precise terms in its panel request. Moreover,
Korea considers that the clear identification of th e fourth administrative review and of the sunset
review as measures at issu e in Viet Nam's panel request should be taken into account, given that both
measures are part of the "continued use of challenged practices".67
(iii) Evaluation by the Panel
7.46 Article 6.2 of the DSU provides, in relevant part:
"The request for the establishment of a pane l shall be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly." (emphasis added)
7.47 In US – Continued Zeroing, the Appellate Body summarized the jurisprudence with respect to
Article 6.2 as follows:
"There are two main requirements under Article 6.2 of the DSU, namely, the
identification of the specific measures at i ssue, and the provision of a brief summary
of the legal basis of the complaint. T ogether, these elements comprise the 'matter
referred to the DSB', which forms the basi s for a panel's terms of reference under

63 Viet Nam's response to Panel question 4 (referring to Appellate Body Report, US – Continued
Zeroing, para. 166).
64 Viet Nam's response to the United States' request fo r preliminary rulings, para. 22 (referring to Panel
Report, EC – Bananas III (Guatemala and Honduras), para. 7.32).
65 Viet Nam's response to the United States' request fo r preliminary rulings, paras. 23-24, 27 (referring
to Panel Report, Argentina – Footwear, paras. 8.35-8.45); Viet Nam's response to Panel question 6 (referring to
66 Viet Nam's response to the United States' request for preliminary rulings, para. 28.
67 Korea's third-party written submission, paras. 6-7; Korea's third-party oral statement, para. 4.

Article 7.1 of the DSU. These requirem ents are intended to ensure that the
complainant 'present[s] the problem clearly' in the panel request." 68
7.48 The Appellate Body, in the same decision, also observed that the requirements in Article 6.2
of the DSU serve a dual purpose:
"First, as a panel's terms of reference are established by the claims raised in panel
requests, the conditions of Article 6.2 serve to define the jurisdiction of a panel.
Secondly, the terms of reference, and the request for the establishment of a panel on
which they are based, serve the due process objective 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."
69
7.49 The Appellate Body indicated in the same d ecision that to ensure that these purposes are
fulfilled, "[s]uch compliance must be 'demonstrated on the face' of the panel request, read 'as a
whole'".70
7.50 The United States' arguments pertain to the first requirement under Article 6.2, namely the
identification of the specific measures at issue. We note, with respect to this requirement, that a
measure may be identified either by its form (e.g. name, number, date and place of promulgation of a
law or regulation, etc.) or by its substance (e.g. by providing a narrative description of the nature of
the measure). 71 The Appellate Body has indicated in US – Continued Zeroing that "although a
measure cannot be identified without some indication of its contents, the identification of a measure
within the meaning of Article 6.2 need be framed only with sufficient particularity so as to indicate
the nature of the measure and the gist of what is at issue".72 The Appellate Body further indicated that
"so long as each measure is discernable in the panel request, the complaining party is not required to
identify in its panel request each challenged measure independently from other measures in order to
comply with the specificity requirement in Article 6.2 of the DSU".73
7.51 We agree with the abovementioned guidance fro m the Appellate Body and various panels.
With this guidance in mind, we now c onsider whether Viet Nam's panel request 74 identifies the
"continued use of challenged practices" as a measure at issue in this dispute. In doing so, we note that
Viet Nam has referred extensively to the Appellate Body's findings in US – Continued Zeroing in
explaining the nature and scope of the "continued use of challenged practices" measure. In fact,
Viet Nam has defined its "continued use" measure primarily in relation to the measure at issue in US –
Continued Zeroing.

68 Appellate Body Report, US – Continued Zeroing, para. 160. (footnotes omitted)
69 Appellate Body Report, US – Continued Zeroing, para. 161.
70 Appellate Body Report, US – Continued Zeroing , para. 161 (citing to Appellate Body Report, US –
Carbon Steel , para. 127 and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews ,
para. 169, in turn quoting Appellate Body Report, US – Carbon Steel, para. 127).
71 Panel Report, Canada – Wheat , para. 6.10, subpara. 36; Panel Report, China – Audiovisual
72 Appellate Body Report, US – Continued Zeroing , para. 169. The Appellate Body made this
comment when explaining the difference between the identification of the specific measure(s) at issue pursuant
to Article 6.2 and a demonstration of the existence of these measure(s). The Appe llate Body explained that an
examination regarding the specificity of a panel request does not entail substantive consideration as to what
types of measures are susceptible to challenge in WTO dispute settlement. For this reason, the Appellate Body
"reject[ed] the proposition that an examination of the sp ecificity requirement under Article 6.2 of the DSU must
involve a substantive inquiry as to the existence and precise content of the measure." (Idem).
73 Appellate Body Report, US – Continued Zeroing, para. 170.
74 WT/DS404/5, Annex G-2.

7.52 In US – Continued Zeroing, the European Communities made claims in respect of an ongoing
conduct, which the Appellate Body described as the USDOC's "use of the zeroing methodology in
successive proceedings in each of the 18 cases [at issue] whereby anti-dumping duties are
maintained."75 The European Communities' panel request indicated that the measures at issue
included, in addition to individual determinations:
"The continued application of, or the application of the specific anti-dumping duties
resulting from the anti-dumping orders enumer ated from I to XVIII in the Annex to
the present request as calculated or mainta ined in place pursuant to the most recent
administrative review or, as the case may be, original proceeding or changed
circumstances or sunset review proceedi ng at a level in excess of the anti-dumping
margin which would result from the correct application of the Anti-Dumping
Agreement (whether duties or cash deposit rates or other form of measure)."
76
7.53 The Appellate Body found that the language of the European Communities' panel request was
sufficient to identify a "continued use" measure, cons istently with the requirements of Article 6.2 of
the DSU. In particular, it found that through this language, the European Communities' panel request
had properly identified the "continued application of the 18 duties" as a measure at issue.77
7.54 Viet Nam explains that simila r to the measure at issue in US – Continued Zeroing , the
"continued use" measure it challenges in the pr esent dispute has both present and prospective
components in the sense that it consists in the a pplication of three of the four USDOC practices
challenged by Viet Nam in both comple ted and future proceedings under the Shrimp anti-dumping
order.78
7.55 The findings of the Appellate Body in US – Continued Zeroing clarify the Appellate Body's
view that measures of the type of the "continued use" measure might properly be challenged in WTO
dispute settlement proceedings. 79 However, the mere fact that a particular measure is capable of
WTO challenge does not mean that it necessarily falls w ithin a panel's terms of reference. Rather, as
explained above, we must still establish whether or not Viet Nam's panel request actually identifies
the "continued use of challenged practice" as a "measure at issue".
7.56 Having examined Viet Nam's panel request cons istent with the guidance and principles set
out above, we are bound to conclude that Viet Na m's panel request does not identify the "continued
use of challenged practices" as a measure at issue. Viet Nam's panel request contains no indication
that it sought to place any measure in the form of an ongoing conduct on the part of the USDOC, or
any future USDOC determinations under the Shrimp anti-dumping order, before the Panel.
7.57 First, in this respect, we note that on its face, the only measures that Viet Nam's panel request
identifies as "measures at issue" are those specifically referred to in the introductory paragraph to
Section 2 of the panel request, namely the USDOC's fi nal determinations in the original investigation
and in the first, second and third administrative re views, the USDOC's preliminary determination in

75 Appellate Body Report, US – Continued Zeroing, para. 171.
76 Appellate Body Report, US – Continued Zeroing, para. 163.
77 Appellate Body Report, US – Continued Zeroing, paras. 159-174.
78 See supra, para. 7.38 and Viet Nam's first written submission, para. 104. Viet Nam explains that the
USDOC's use of the practices at issu e in successive proceedings under the Shrimp anti-dumping order "is
conclusive evidence, per the Appellate Body's guidance in US – Continued Zeroing , that the USDOC will
continue to engage in this conduct in the future." (Viet Nam's response to Panel question 55).
79 We note that in US – Continued Zeroing , the European Communities challenged the USDOC's
ongoing conduct in proceedings under several anti-dumping orders, whereas in the instant dispute, Viet Nam's
claims pertain to the USDOC's actions in proceedings under a single order.

the fourth administrative review, and the USDOC's notice of initiation of the sunset review. The
introductory paragraph to Section 2 of Viet Nam's panel request reads as follows:
"Summary of Facts and Legal Basis of Complaint
 The specific measures at issue are the anti-dumping order and subsequent
periodic reviews conducted by the United States Department of Commerce (USDOC)
on certain frozen and canned warmwater sh rimp from Viet Nam. The following
determinations constitute the measures at issue:
1. Final Determination of Sales at Less Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp from th e Socialist Republic of Vietnam , 69 Fed. Reg.
71005 (5 Dec. 2004)
2. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic
of Vietnam: Final Results of the First Antidumping Duty Administrative Review and
First New Shipper Review, 72 Fed. Reg. 52052 (12 Sept. 2007)
3. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic
of Vietnam: Final Results and Final Partial Rescission of Antidumping Duty
Administrative Review, 73 Fed. Reg. 52273 (9 Sept. 2008)
4. Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic
of Vietnam: Final Results and Final Partial Rescission of Antidumping Duty
Administrative Review, 74 Fed. Reg. 47191 (15 Sept. 2009)
5. Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam:
Preliminary Results, Partial Rescission, and Request for Revocation, in Part, of the
Fourth Administrative Review, 75 Fed. Reg. 12206 (15 March 2010), including denial
of all requests for revocation.
6. Initiation of Five-Year ("Sunset") Review , 75 Fed. Reg. 103
(4 January 2010)."
7.58 The sentence that introduces the list of de terminations, which reads "The following
determinations constitute the measures at issue", in our view provides a strong indication that the
panel request is limited to these determinations.
7.59 We recall that a measure at issue can be identified not only by its form, but also by a narrative
description of the nature of the measure. With this in mind, we obser ve that, in addition to setting out
the six segments of the Shrimp proceedings as constituting "the measures at issue", Viet Nam also
describes the "zeroing methodology" as a measure in relation to which it makes "as such" claims.
80
However, beyond identifying the zeroing methodolog y as a measure subject to "as such" claims,
Viet Nam's panel request contains no language that would indicate an intention to include future
segments of the anti-dumping proceedings as measures at issue within the Panel's terms of reference
or that would otherwise identify a "prospective com ponent" of the alleged continued use measure. As
can be seen from the list of measures contained in the introductory paragraph to Section 2 of the panel

80 In this regard, we observe that later in its panel request, Viet Nam speaks of a "zeroing methodology"
which it describes as having certain characteristics and certain bases. Although Viet Nam does not include this
zeroing methodology in its list purporting to constitute the measures at issue in this proceeding, reading the
panel request as a whole, we are comfortable that Viet Nam has identified the zeroing methodology as a
measure at issue, consistent with the requirements of Article 6.2 of the DSU. In addition, the United States has
not argued that this measure is not properly within our terms of reference.

request, Viet Nam's panel request only includes meas ures in existence or ongoing at the date of the
request – as exemplified by th e reference to the USDOC's preliminary determination in the fourth
administrative review or the USDOC's initiation of a sunset review – without any reference to
upcoming developments in respect of these proceedings. 81 Nothing in the panel request justifies
inferring from the inclusion of partially-completed measures that Viet Nam sought to challenge a
measure consisting of the USDO C's continuing and ongoing use of certain practices in the
proceedings under the Shrimp anti-dumping order.82
7.60 For the foregoing reasons, we are unable to agr ee with Viet Nam that either the introductory
paragraph to Section 2 of its panel request or the listing of USDOC determinations as of the date of
the panel request identified the "continued use of challenged practices" measure consistent with the
requirements of Article 6.2 of the DSU. 83 We also note Viet Nam's argument that language in the
section of the panel request concerning the "Sunset Review" "established Viet Nam's concerns

81 Consistent with this, in each of the sections of the panel request laying out its legal claims
("Zeroing", "Country-Wide Rate Based on Facts Available", "Limiting the Number of Respondents Selected for
Full Investigation or Review" and "Sunset Review") Viet Nam refers to the "USDOC's application of the
above-mentioned laws and procedures in the original investigation and periodic reviews here at issue "
(emphasis added) or similar references to USDOC ac tions "[i]n the antidumping proceedings at-issue".
(Viet Nam panel request, WT/DS404/5, p. 3, chapeau to paras. 9-11 (zeroing claims); p. 4, chapeau to
paras. 14-17, and p. 5, chapeau to pa ras. 18-19 ("country-wide rate"); p. 6, chapeau to paras. 27-28 (limitation
of the number of respondents)).
82 We note the United States' argume nt that through the "continued us e" measure, Viet Nam seeks to
extend the scope of that list to include the final determinations in the sunset review and the fourth administrative
review and the initiation of the fifth administrative review . We agree with the United States that there is no
basis in the panel request – whether independent identifi cation of these determinations or identification of a
"continued use" measure comprising them – to consider that these determinations are properly before the Panel.
83 The Panel asked Viet Nam the following question (Panel question 3):
"(to Viet Nam) In paragraph 160 of its Report in US – Continued Zeroing, the Appellate Body
stated that the requirements to identify the sp ecific measures at issue and to provide a brief
summary of the legal basis of the complaint under Article 6.2 of the DSU are "intended to
ensure that the complainant 'present[s] the problem clearly.'" Further, in para. 161 of its
Report in the same dispute, the Appellate Body, referring to its previous decisions, said that
compliance with Article 6.2 of the DSU must be demonstrated "on the face" of the panel
request, read "as a whole".
Bearing in mind that we must read Viet Nam' s panel request "as a whole", where, on the face
of the panel request does Viet Nam identify the "continued use" measure in a manner that
presents the problem clearly."

Viet Nam answered that it:
"... presented the "continued use" measure in the opening line of Section 2 of the Panel
Request, stating, "[t]he specific measures at issue are the anti-dumping order and subsequent
periodic reviews conducted by the United States Department of Commerce (USDOC) on
certain frozen and canned warmwater shrimp from Viet Nam." The sentence does not include
the limitation of "completed" or "initiated" periodic reviews, plainly suggesting Viet Nam's
concern with any future periodic review in which the USDOC continues to engaged in the
challenged actions.
The Panel Request next identifi ed every segment of the proceed ing that is a direct product,
thus far, of the shrimp antidumping duty order to further clarify Viet Nam's concern with the
ongoing nature of certain claims raised in the request. The determinations completed prior to
Viet Nam's accession to the WTO and those segments not yet final were included for this
purpose, illustrating that these violations continue to occur. Viet Nam's request made every
effort to present as clearly as possible that the USDOC has continued to engage in the conduct
throughout each segment of th e antidumping proceeding ste mming from imposition of the
shrimp antidumping order."

regarding continued and ongoing practices". 84 The relevant paragraph of Viet Nam's panel request
reads as follows:
"The USDOC initiated a sunset review for these antidumping proceedings on
4 January 2010. ... Because of the circumstan ces 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 th e respondent 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 ad ministrative reviews. Accordingly,
Viet Nam considers as a consequence of the inconsistencies set forth in Sections a-c
above that the USDOC sunset review is in consistent with Articles 11.2 and 11.3 of
the Agreement."85
7.61 We read this paragraph as reflecting Viet Nam' s intention to place the (then ongoing) sunset
review within our terms of reference, and as expr essing its concern with the cumulative effect of the
challenged practices on that sunset review . In other words, the measure at issue in this paragraph
appears to be the sunset review itself, not some continuing practice of the USDOC.86
7.62 Viet Nam has been unable to identify any othe r language in its panel request that would
identify the "continued use" measure as a measure at issue. It w as incumbent upon Viet Nam, if it
wished to include a measure of the type which it ha s described in its submissions, to include in its
panel request at least some indication that it was challenging not only USDOC determinations in
completed proceedings under the Shrimp anti-dumping order, but also an ongoing conduct on the part
of the USDOC, including USDOC actions in future proceedings under the order.
7.63 We recall that Viet Nam has referred extens ively to the Appellate Body's findings in US –
Continued Zeroing. We note that unlike Viet Nam's pane l request, the European Communities' panel
request in US – Continued Zeroing case referred not only to the definitive duties under each of the
anti-dumping orders at issue, and to the most re cent determinations under these orders, but also
explicitly indicated the European Co mmunities' intent to place before the panel a measure in the form
of an ongoing conduct, which it defined as the "con tinued application" of the 18 duties at issue. 87
Viet Nam was not required to formulate its panel requ est by using terms identical or similar to those
used by the European Communities in US – Continued Zeroing . However, the European
Communities' formulation of the "c ontinued application" measure in US – Continued Zeroing
illustrates how a party may include a measure of this type in its panel request. 88 In contrast to that
panel request, Viet Nam's panel request in the inst ant case does not signal – either directly, or even

84 Viet Nam's response to the United States' request for preliminary rulings, para. 25.
85 Viet Nam's panel request, p. 7 "(d) Sunset Review".
86 We note, however, Viet Nam's indication in its response to Panel question 9 that it is not pursuing
any claims in respect of the USDOC's determinations in the context of the sunset review.
87 See supra, paras. 7.52-7.53.
88 A recent illustration of a panel finding that a "c ontinued use" measure was identified in a panel
request in a manner meeting the requirements of Artic le 6.2 of the DSU is the report of the panel in US –
Orange Juice (Brazil) . The panel in US – Orange Juice (Brazil) found that Brazil's panel request in that case
was sufficiently precise to satisfy the requirements of Article 6.2 of the DSU. Brazil challenged a measure
which it had described as follows in its panel request: "The continued use of the U.S. 'zeroing procedures' in
successive anti-dumping proceedings, in relation to the anti-dumping duty order issued in respect of imports of
certain orange juice from Brazil." (Panel Report, US – Orange Juice (Brazil) , paras. 7.38-7.41). The report of
the US – Orange Juice (Brazil) panel was issued shortly before the issuance of our Interim Report and had
neither been appealed nor adopted at the time of the issuance of our Final Report to the parties.

indirectly, independently or in combination with other measures – any intention to place within the
Panel's terms of reference a measure in the form of an ongoing conduct on the part of the USDOC,
extending into the future. In sum, we reach the view that no "continued use" measure is discernable
from Viet Nam's panel request.
7.64 In addition, we note that Viet Nam's request for consultations did identify a "continued use"
measure, albeit in words that differ from those used by Viet Nam in its submissions to the Panel.
Paragraph 3 of Viet Nam's request for consultations reads, in relevant part:
"Vietnam believes that the United States has acted inconsistent with its WTO
obligations specified in paragraph 2 above by applying so-called 'zeroing' in the
determination of the margins of dumping in the reviews cited in paragraph 1 above,
by repeatedly and consistently, failing to provide most Vietnamese respondents
seeking a review an opportunity to demonstrate the absence of dumping by being
permitted to participate in a review, and by requiring companies to demonstrate their
independence from government control and a pplying an adverse facts available rate
to companies failing to do so in all reviews. Vietnam further believes that the US has
an established practice with respect to ea ch of these issues and will, therefore,
continue to act inconsistent with its WTO obligations relatin g to these issues in
ongoing and future reviews , including the five year review provided under
Article 18.1 of the Antidumping Agreement."89
7.65 The fact that the reference to a measure of this type in the consultations request was omitted
from the panel request, and not replaced with other similar textual references to a "continued use"
measure, or other measure taking the form of an ongoing conduct, confirms the view that the
"continued use" measure was excluded from the text of Viet Nam's panel request.90
7.66 Finally, Viet Nam also argues that measures not identified in a panel request may nonetheless
fall within the panel's terms of reference where they are "subsidiary or closely related to" those
measures explicitly identified in the panel request. 91 In support of this argument, Viet Nam cites to
the findings of the panels in Japan – Film and Argentina – Footwear.
7.67 We do not consider that the findings of the Japan – Film and Argentina – Footwear panels
assist Viet Nam in the present case. Viet Nam is not arguing that the "continued use" measure is an
amendment to the specific measures explicitly in cluded in the panel request, as was the case in
Argentina – Footwear . Nor can Viet Nam argue that the re lationship between the "continued use"
measure and the specific determinations included in its panel request is similar to the relationship
between a basic framework law and implementing me asures provided for in that law, or between
two documents of a same series, as was the case in Japan – Film . 92 More importantly, the key

89 Viet Nam's request for consultations, WT/DS404/1 (reproduced in Annex G-1), p. 3, para. 3.
(emphasis added). Viet Nam confirmed during oral questioning and in its response to Panel question 2 that the
closing sentence of this paragraph should be understood as a reference to a "continued use" measure.
90 As a further contrast between the two requests, we note that the consultations request indicates
Viet Nam's intention to launch consultations with respec t not only to determinations already rendered by the
USDOC (Viet Nam's request for consultations, p. 1, paras. 1(a)-(d)), but also with respect to what at that time
were future measures, e.g. the prelim inary and final results of "any administrative reviews or other reviews"
under the Shrimp order published "after the date of this request for consultations" (request for consultations,
p. 2, para. 1(e)) as well as any USDOC determination on remand from the US Court of International Trade
(request for consultations, p. 2, para. 1(f)).
91 We note the United States' argument that this lin e of argument is at odds with Viet Nam's position
that its panel request does identify the "continued use" measure.
92 The Japan – Film panel considered that where a basic frame work law dealing with a narrow subject
matter is specified in a panel request, implementing "meas ures" might be considered as effectively included in

rationale underlying the findings of the Japan – Film and Argentina – Footwear panels under
Article 6.2 was their view that certain measures are so closely related to the measure identified
explicitly in the panel request that identificati on of the latter provides sufficient notice that the
complainant intends to challenge the former. 93 Accepting Viet Nam's arguments would effectively
mean that a "continuing measure" is implicitly includ ed in a panel's terms of reference whenever an
individual determination is challe nged. Yet we do not consider that the identification of specific
instances of application of a given "practice" provides sufficient notice to the respondent and third
parties that the complainant intends to make cl aims in respect of the responding Member's ongoing
use of that same practice. Rather, as Viet Nam's own arguments demonstrate, measures in the form of
an ongoing conduct are markedly different from indivi dual manifestations of that conduct in specific
instances.94 For this reason, one would expect the complainant to identify such a measure explicitly in
its panel request.95
7.68 In sum, after examining it as a whole, in light of the language used by Viet Nam therein, and
taking as context Viet Nam's request for consultati ons, we conclude that Viet Nam's panel request
fails to identify the "continued use of challenged prac tices" as a measure at issue. For this reason, we
find that a measure consisting of the "continued use of challenged practices" is not within our terms of
reference.
(c) Whether the "continued use of challenged practices" measure is amenable to WTO challenge
7.69 Given our conclusion that the "continued use" measure does not fall within our terms of
reference because it is not identified as a "measure at issue" in Viet Nam's panel request, we do not
need to examine the United States' request for a preliminary ruling that the "continued use" measure is
a measure of a type that may not be challenged be fore a WTO dispute settlement panel. We recall,
though, that the Appellate Body found in US – Continued Zeroing that the continued application of
certain anti-dumping duties could be challenged in WTO dispute settlement proceedings.96

the panel request, in particular where the basic frame work law "specifies the form and circumscribes the
possible content and scope of implementing 'measures'". Panel Report, Japan – Film , paras. 10.8, 10.13. In
addition, the panel considered that a report which was part of the same series of reports as one which had been
explicitly included among the measures listed in the panel request fell within its terms of reference. Id.,
para. 10.14. At issue in Argentina – Footwear was whether subsequent modifications of the definitive
safeguard measure identified as the measure at issue in the panel request also fell within the panel's terms of
reference. The panel considered that it was the measures in their substance rather than the legal acts in their
original or modified legal forms that were most re levant for its terms of reference. Panel Report, Argentina –
Footwear, para. 8.40.
93 See also Panel Report, EC – Fasteners (adoption/appeal pending), para. 7.38:
"It is now well established that a measure whic h is not identified in the complainant's panel
request may nonetheless fall within a panel's terms of reference if it is sufficiently closely
related to the measures identified in the pane l request, such that the respondent can be found
to have had adequate notice of the nature of the claims that the complainant might raise during
the panel proceedings". (footnote omitted)
94 Viet Nam argues that "continuing measures" fall in the "cross-section" between the measures that are
the subject of "as such" claims and thos e that are the subject of "as applied" claims, adding that measures in the
form of an ongoing practice are narrow er than the former, but broader than the latter. (Viet Nam's response to
the United States' request for preliminary rulings, para. 13, referring to Appellate Body Report, US – Continued
Zeroing, para. 180).
95 We add that, were Viet Nam correct on this point, there would have been no need for the Appellate
Body to examine the issue of the identification of the "continued application" measure in US – Continued
Zeroing.
96 See supra, para. 7.55.

4. Conclusion with respect to the measures at issue in this dispute
7.70 We recall that, with respect to its "as applied" claims, Viet Nam only seeks to place before the
Panel the USDOC's determinations in the second a nd third administrative reviews and the "continued
use" measure.97 In response to a question from the Panel, Viet Nam confirmed that "[i]f the Panel
determines that the 'continued use' measure does not fa ll within its terms of reference, then the second
administrative review and third administrative review are the only measures to which Viet Nam's
claims of violations apply." 98 We further recall that Viet Nam ma kes "as such" claims in respect of
another measure, the U.S. "zeroing methodology". 99 We have concluded that the "continued use"
measure does not fall within our terms of reference. In consequence, the measures at issue in the
instant dispute are the USDOC's determinations in the second and third administrative reviews and the
U.S. "zeroing methodology".
D. VIET NAM'S CLAIMS WITH RESPECT TO ZEROING
1. Introduction
7.71 Viet Nam requests that we find100:
(a) that simple zeroing, "as applied" in the second and third administrative reviews, is
inconsistent with Articles 9.3, 2.1, 2.4. 2, and 2.4 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994101; and
(b) that the USDOC's zeroing methodology is, as su ch, inconsistent with Article 9.3 of
the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.102
7.72 We examine each claim in turn, starting with Viet Nam's "as applied" claim.
2. Zeroing "as applied" in the administrative reviews at issue
(a) Introduction
7.73 Viet Nam requests that we find that the USDOC 's use of simple zeroing to calculate the
margins of dumping of individually-examined r espondents in the second and third administrative
reviews is inconsistent with Articles 9.3, 2.1, 2. 4.2 and 2.4 of the Anti-Dumping Agreement and with
Article VI:2 of the GATT 1994. We will first consid er whether Viet Nam has demonstrated that the
USDOC applied zeroing in these two administrative revi ews. If we are satisfied that Viet Nam has
met its burden of establishing its factual allegations in this respect, we will next consider whether, in
doing so, the USDOC violated the provisions cited by Viet Nam.

97 See supra, para. 7.32.
98 Viet Nam's response to Panel question 7. We understand Viet Nam's response as only addressing the
measures before the Panel with respect to Viet Nam's "as applied" claims.
99 In supra, footnote 80, we explain why, in our view, this measure falls within our terms of reference.
100 We have already found that the "continued use of challenged practices" measure does not fall within
our terms of reference and for this reason do not consider Viet Nam's claims in respect of that measure. We
consider Viet Nam's claims and arguments with respect to the alleged use by the USDOC of margins calculated
with zeroing to calculate the "all others" rates in section VII.F below.
101 Viet Nam's second written submission, para. 144(1) ; Viet Nam's opening oral statement at the
second meeting, para. 59(1).
102 Viet Nam's second written submission, para. 144(2) ; Viet Nam's opening oral statement at the
second meeting, para. 59(2).

(b) Whether the USDOC applied zeroing in the administrative reviews at issue
(i) Main arguments of the parties
 Viet Nam
7.74 Viet Nam submits that consistent with its practice in administrative reviews 103, the USDOC
engaged in "simple zeroing" in the calculation of the margins of dumping for individually-examined
exporters in the administrative reviews at issue.104
 United States
7.75 The United States does not contest Viet Nam' s allegation that the USDOC used simple
zeroing in the administrative reviews at issue.105
(ii) Evaluation by the Panel
7.76 We now proceed to determine on the basis of the evidence submitted by Viet Nam whether
the USDOC used "simple zeroing" in the calculatio n of individual margins in the second and third
administrative reviews.
7.77 First, Viet Nam provides the Panel with pr intouts of the USDOC's computer programme
"logs" and "outputs" showing the application of zeroing for two Vietnamese respondents selected for
individual review in each of the second and the third administrative reviews, i.e. Minh Phu and
Camimex.106 The "logs" provide the computer programming language to execute the desired
operations on the data, and show how the programme processed th e data. The "outputs" provide
sample dumping calculations and sample prints of databases that are run through the programme.107
7.78 Viet Nam also submits an affidavit by a trade analyst, Mr. Michael Ferrier, explaining the
USDOC's use of zeroing in the original investigation and administrative reviews. 108 The affidavit

103 For a summary of Viet Nam's description of "simple zeroing", as allegedly used by the USDOC, see
supra para. 7.16.
104 Viet Nam's first written submission, paras. 47-51. Because of its claims in respect of the "continued
use" measure, Viet Nam submits evidence with resp ect to the use of simple zeroing in each of the
four administrative reviews under the Shrimp anti-dumping order. In this section of our findings, we only
consider the evidence pertaining to the second and third administrative reviews.
105 As we note infra, para. 7.82 and footnote 116, the United States' arguments focus on the fact that in
the measures at issue, the USDOC calculated zero and de minimis margins of dumping, and as a result did not
assess any duties in respect of imports from selected respondents.
106 USDOC Computer Programme Log for Minh Phu in the Second Administrative Review,
Exhibit Viet Nam-36; USDOC Computer Programme Log for Camimex in the Second Administrative Review,
Exhibit Viet Nam-37; USDOC Computer Programme Log for Minh Phu in the Third Administrative Review,
Exhibit Viet Nam-38; USDOC Computer Programme Log for Camimex in the Third Administrative Review,
Exhibit Viet Nam-39; Computer Programme Output for Minh Phu in the Second Administrative Review,
Exhibit Viet Nam-44; Computer Programme Output for Camimex in the Second Administrative Review,
Exhibit Viet Nam-45; Computer Programme Output for Minh Phu in the Third Administrative Review,
Exhibit Viet Nam-46; Computer Programme Output for Camimex in the Third Administrative Review,
Exhibit Viet Nam-47.
107 Affidavit by Michael Ferrier, Exhibit Viet Nam-33, para. 9.
108 Affidavit by Michael Ferrier, Exhibit Viet Nam-33 . The affidavit states that Mr. Ferrier is an
international trade analyst with a law firm and formerly worked for the USDOC where, according to his
affidavit, he analyzed computer responses of respondents, input the information from these responses into the
USDOC's programme for determining anti-dumping duty margins, and calculated these margins. The affidavit
also indicates that the "logs" and "outputs" were released by the USDOC to counsel for Minh Phu and

directs the Panel's attention to certain lines of computer code in the "logs" that implement the
instruction to disregard negative comparison results in the calculation of the total anti-dumping duties
of a reviewed exporter. 109 The affidavit further explains that corroboration for this removal by the
computer programme of any comparison result of zero or below (i.e. comparisons for which the
export price exceeds normal value) can be found in the "outputs" for Minh Phu and Camimex. These
outputs record, for each of these two Vietnamese compan ies, the volume and value of sales that were
below normal value, as well as the volume an d value of each producer's total sales to the
United States during the review period. 110 Finally, the affidavit also identifies the programming lines
that exclude any comparison result below zero in the calculation of the importer-specific assessment
rate.
7.79 Viet Nam also provides the Panel with the Issues and Decision Memoranda that accompany
each of the USDOC's final determinations in the administrative reviews at issue. The memoranda
confirm the USDOC's use of zeroing in these reviews. In the memorandum to the second
administrative review, the USDOC states that it "has continued to deny offsets to dumping based on
export transactions that exceed the normal value in this review".
111 In the memorandum to the third
administrative review, the USDOC writes that "in the event that any of the export transactions
examined in this review are found to exceed nor mal value, the amount by which the price exceeds
normal value will not offset the dumping found in respect of other transactions."112
7.80 We recall that where a party adduces evidence su fficient to raise a presumption that what it
claims is true, the burden shifts to the other party, who will fail unless it adduces evidence to rebut
that presumption.113 In the present instance, Viet Nam has put forward sufficient evidence to lead us
to the view that, as Viet Nam alleges, the USDO C used simple zeroing in the calculation of the
dumping margins of individually-examined exporters/p roducers. In the absence of any arguments or
evidence on the part of the United States to rebut the presumption established by Viet Nam 114, we are
satisfied that the USDOC used simple zeroing in its calculation of the margins of dumping of
individually-examined producers in the second and third administrative reviews.115

Camimex. We note that in referring to Exhibit Viet Nam-33, we use the term "affidavit" which has been used in
the exhibit and by the parties, without any comment on the status of the document as a matter of U.S. municipal
law.
109 Affidavit by Michael Ferrier, Exhibit Viet Na m-33, paras. 27-56; Viet Nam's first written
submission, para. 48.
110 According to the figures provided , in each of two administrative reviews, the vast majority of
Minh Phu's and Camimex' U.S. sales (in terms of both value and volume) were excluded because the export
price was equal to or above normal value.
111 Issues and Decision Memorandum for the Fi nal Determination in the Second Administrative
Review, Exhibit Viet Nam-15, pp. 13-14.
112 Issues and Decision Memorandum for the Final Determination in the Third Administrative Review,
Exhibit Viet Nam-19, p. 13. See also, infra paras. 7.115-7.116 for a more detailed discussion of the content of
the Issues and Decision Memoranda.
113 See, supra paras. 7.6-7.8.
114 In its response to Panel question 54, para. 6, the United States comments on the Ferrier affidavit
(Exhibit Viet Nam-33). The United States indicates that "[t]he evidence contained in Exhibit Viet Nam-33 does
not appear to be factually incorrect." The USDOC does not comment on other evidence submitted by Viet Nam
in support of its allegation.
115 We note that the USDOC places the amount re sulting from the aggregation of the various
comparison results in the numerator when calculating the margins of dumping as a percentage of the total value
of export transactions. The issue before us relates to this inclusion of comparison results in the numerator.
Zeroing does not affect the denominator: the USDOC includes the value of all export transactions in the
denominator of the equation.

(c) Whether the USDOC's application of zeroing in the administrative reviews at issue is
inconsistent with the provisions cited by Viet Nam
(i) Introduction
7.81 We now proceed to consider whether the USDOC 's application of zeroing to calculate the
margins of dumping of selected respondents in the two periodic reviews at issue was inconsistent with
the United States' obligations under the covered agreements.
7.82 As we discuss below, this is not the first time U.S. practices in relation to zeroing have come
before a WTO panel. The facts be fore us are unusual, however, in that all of the margins of dumping
in the second and third administrative reviews were either zero or de minimis. This raises the question
whether the use of zeroing is WTO-inconsistent, even though no duties are actually assessed with
respect to the selected respondents.116
7.83 Viet Nam makes claims of violation under Articles 9.3, 2.1, 2.4.2, and 2.4 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994. 117 We examine each of Viet Nam's
claims, starting with the alleged violation of Article 2.4 of the Anti-Dumping Agreement.118
(ii) Viet Nam's claim under Article 2.4 of the Anti-Dumping Agreement
 Main arguments of the parties
 Viet Nam
7.84 Viet Nam asserts that the "fair comparison" la nguage in the first sentence of Article 2.4
creates an independent obligation for the investigatin g authority to make a "fair comparison" between
export price and normal value. 119 Viet Nam argues that the use of a zeroing methodology in periodic
reviews violates this obligation, particularly as it systematically eliminates certain transactions from
the comparison. Viet Nam notes that the Appellate Body has found that zeroing is inconsistent with
Article 2.4 because it distorts the prices of certain export transactions, since export transactions made
at prices above normal value are not considered at th eir real value, and because it artificially inflates
the magnitude of dumping, resulting in higher margins of dumping and making a positive
determination of dumping more likely. 120 Viet Nam argues that the violation of Article 2.4 resides in

116 The United States argues that given the zero and de minimis dumping margins, Viet Nam has not
demonstrated that the USDOC assessed any duties with respect to imports from the selected respondents
(United States' first written submission, paras. 106-109 and United States' second written submission, para. 31).
Viet Nam admits that under the U.S. procedures for the conduct of administrative reviews, if an exporter obtains
a zero margin or a de minimis margin, it necessarily follows that as a result of that same review, no importer will
be assessed any duties in respect of imports from that exporter (Viet Nam's response to Panel question 50). In
light of these clarifications from the parties, we consider it an undisputed fact that no duties were assessed with
respect to the selected respondents as a result of the two administrative reviews at issue.
117 Viet Nam's second written submission, para. 144(1).
118 We recall that a panel is entitled to structure its analysis in the manner most appropriate to facilitate
the analysis of the issues pres ented to it. (Panel Report, US – Zeroing (EC) , para. 7.13; Panel Report, US –
Zeroing (Japan), para. 7.14 and footnote 641; see also Appellate Body Report, US – Zeroing (EC) (Article 21.5
– EC), para. 277).
119 Viet Nam's response to Panel question 51 (citing to Appellate Body Report, US – Zeroing (EC) ,
para. 146).
120 Viet Nam's second written submission, paras. 28- 30; Viet Nam's response to Panel questions 17
and 51 (citing to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135; Appellate
Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , paras. 138-140 and 142; and Appellate Body
Report, US – Zeroing (Japan), paras. 146-147); Viet Nam's closing oral statement at the second meeting of the
Panel, para. 8.

this unfair comparison. Viet Nam therefore considers that the use of zeroing to calculate dumping
margins in the periodic reviews at issue is inconsis tent with Article 2.4 notwithstanding the fact that
the calculations produced zero and de minimis margins.121
 United States
7.85 The United States argues that Article 2.4 concerns the issue of the comparability of the export
price and normal value, including the need for any adjustments, prior to the investigating authority
conducting the comparison between the two. Thus , the United States argues, Article 2.4 does not
speak to the issue of how the results of these comparisons are to be treated and does not require their
aggregation. As a consequence, Article 2.4 does not prohibit zeroing.
122 The United States argues
that the Appellate Body's statements, in prior disput es, that zeroing is inconsistent with Article 2.4
were either dependent on findings of violation under Article 2.4.2 or Article 9.3, or pertained to
zeroing in different contexts.123 In addition, the United States argu es, where the ma rgins of dumping
calculated are zero or de minimis, they cannot be characterized as "artificially inflated" or "inherently
unfair" and zeroing does not lead to the collec tion of duties in excess of the dumping margin under
Article 9.3 of the Anti-Dumping Agreement.124
7.86 The United States argues that higher or lower dumping margins are not inherently fair or
unfair, and therefore a methodology cannot be said to be unfair merely because it produces higher
margins. The United States submits that the te xt of Article 2.4 does not resolve whether any
particular assessment of anti-dumping duties exceed s the margin of dumping because Article 2.4 does
not resolve whether "dumping" and "margins of dumping" are concepts that apply to individual
transactions. Thus, the text of Article 2.4 does not re solve whether zeroing is "fair" or "unfair". The
United States submits that a number of panels have rejected the expa nsive interpretation of the "fair
comparison" requirement advocated by Viet Nam.
125
 Main arguments of the third parties
 India
7.87 India urges the Panel follow the Appellate Body 's prior decisions on the issue of zeroing.
India notes that the Appellate Body has ruled in US – Zeroing (Japan) that zeroing in the context of
periodic reviews is inconsistent with the "fair comparison" requirement in Article 2.4.
126

121 Viet Nam's response to Panel question 51; Viet Nam's comments on the United States' response to
Panel question 49 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 137).
122 United States' second written submission, paras. 21-29. United States' opening oral statement at the
second meeting of the Panel, paras. 16-18; United States' comments on Viet Nam's response to Panel
question 51.
123 United States' second written submission, paras. 30-37 (referring to Appellate Body Report, US –
Zeroing (Japan) , para. 168, Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) ,
para. 142; and Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 135-138);
United States' response to Panel question 49.
124 United States' second written submission, paras. 31-32.
125 United States' second written submission, paras. 34 -37 and United States' opening oral statement at
the second meeting of the Panel, paras. 19-23 (referring to Panel Report, US – Zeroing (Japan) , para. 7.155,
7.158; Panel Report, US – Softwood Lumber V (Article 21.5 – Canada), para. 5.74; Panel Report, US – Zeroing
(EC), para. 7.260).
126 India's third-party oral statement, paras. 10, 12; India's response to Panel question 2 (referring to
Appellate Body Report, US – Zeroing (Japan), paras. 167-169).

 Japan
7.88 Japan argues that the use of zeroing violates Article 2.4 of the Anti-Dumping Agreement
irrespective of its impact, because by using zeroing, th e investigating authority fails to carry out a fair
comparison, irrespective of the outcome of that comparison. 127 Japan asserts that the Appellate Body
has held that there is an inherent bias in a zeroing methodology and that as a way of calculating
margins, the zeroing methodology "cannot be describ ed as impartial, even-handed, or unbiased",
because it necessarily excludes any negative comparisons results.128
 K o r e a
7.89 Korea argues that it is now settled that zeroing makes an investigating authority methodically
fail to take into account all export transactions fo r the product as a whole, and therefore inevitably
leads to an "unfair comparison."
129
 Evaluation by the Panel
7.90 Viet Nam alleges that the USDOC's use of zeroing in the second and third administrative
reviews violates the "fair comparison" requirement set forth in the first sentence of Article 2.4 of the
Anti-Dumping Agreement. This sentence provides:
"A fair comparison shall be made between the export price and the normal value."
7.91 The Appellate Body has previously indicated that the use of zeroing to calculate dumping
margins is inherently inconsistent w ith this "fair comparison" requirement. 130 We refer in this regard
to the findings of the Appellate Body in US – Corrosion Resistant Steel Sunset Review , US –
Softwood Lumber V (Article 21.5 – Canada) , and US – Zeroing (Japan) . We note, in particular, the
findings of the Appellate Body in US – Softwood Lumber V (Article 21.5 – Canada) that:
"First, the use of zeroing under the transaction-to-transaction comparison
methodology when aggregating the transaction-specific comparisons for purposes of
calculating the 'margins of dumping', distorts the prices of certain export transactions
because export transactions made at prices above normal value are not considered at
their real value. The prices of these expor t transactions are artificially reduced when
zeroing is applied under the transaction-to-transaction comparison methodology. As
the Appellate Body explained in the original dispute, '[z]eroing means, in effect, that
at least in the case of some export transactions, the export prices are treated as if they
were less than what they actually are.'
Secondly, the use of zeroing in the transaction-to-transaction comparison
methodology, as in the weighted average-to -weighted average methodology, tends to

127 Japan's third-party written submission, para. 49; Japan's third-party oral statement, para. 2; Japan's
response to Panel question 3.
128 Japan's third-party written submission, paras. 30-31, 49; Japan's response to Panel question 3
(referring to, inter alia, to Appellate Body Report, US – Zeroing (Japan) , para. 146, in turn quoting Appellate
Body Report, US – Softwood Lumber V (Article 21.5 – Canada), para. 142; and to Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 135).
129 Korea's response to Panel question 2.
130 Regarding the U.S. argument concerning the scope of the first sentence of Article 2.4 (described,
supra para 7.85), we note that the Appellate Body has already confirmed that the first sentence of Article 2.4
creates an independent obligation, the scope of which is not exhausted by the remainder of that provision (see,
e.g. Appellate Body Report, US – Zeroing (EC) , para. 146, affirming, on this point, the interpretation of the
panel in the same dispute, paras. 7.253-7.258; and Appellate Body Report, EC – Bed Linen, para. 59).

result in higher margins of dumping. As the Appellate Body underscored in US –
Corrosion-Resistant Steel Sunset Review, the use of zeroing:
... will tend to inflate the margins calculated. Apart from inflating
the margins, such a methodology co uld, in some instances, turn a
negative margin of dumping into a positive margin of dumping. ...
Thus, the inherent bias in a zeroing methodology of this kind may
distort not only the magnitude of a dumping margin, but also a
finding of the very existence of dumping."131
7.92 The Appellate Body concluded that:
"... the use of zeroing under the transac tion-to-transaction comparison methodology
artificially inflates the magnitude of dumping, resulting in higher margins of dumping
and making a positive determination of du mping more likely. This way of
calculating cannot be described as impartia l, even-handed, or unbiased. For this
reason, we do not consider that the calculation of 'margins of dumping', on the basis
of a transaction-to-transaction comparison that uses zeroing, satisfies the 'fair
comparison' requirement within the meaning of Article 2.4 of the Anti-Dumping
Agreement."
132
7.93 We agree with the above reasoning of the Appellate Body, and adopt it as our own. Even in
cases where no anti-dumping duties are assessed, the application of zeroing distorts the prices of
certain export transactions, because export transact ions made at prices above normal value are not
considered at their real value. Indeed, Viet Na m has demonstrated that, in the two administrative
reviews at issue, the USDOC disregarded the resu lts of the export price/normal value comparison for
the vast majority of the selected respondents' export transactions.133 In doing so, the USDOC, without
any justification under the Anti-Dumping Agreement, effectively reduced the export prices for the
relevant export transactions, treating these prices as e qual to the normal value, even though in reality
they were not.
7.94 Since it is an integral part of the price co mparison undertaken by the USDOC, we consider
that the USDOC's artificial reduction of the expor t price of transactions in the second and third
administrative reviews is sufficient to render the price comparison inconsistent with the first sentence
of Article 2.4, even though no anti-dumping duties are ultimately assessed.
7.95 Furthermore, as the Appellate Body underscored in US – Corrosion-Resistant Steel Sunset
Review, there is an inherent bias in the zeroing methodology, because it tends to artificially inflate the
dumping margins calculated. 134 The clear implication of the A ppellate Body's approach is that
zeroing is incompatible with the requirement of a "fair comparison" under Article 2.4 of the
Anti-Dumping Agreement, irrespective of whether duties are actually assessed.

131 Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada), paras. 139-140 (citing to
Appellate Body Report, US – Softwood Lumber V, para. 101 and US – Corrosion-Resistant Steel Sunset Review,
132 Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 142. See also
Appellate Body Report, US – Zeroing (Japan), paras. 146 and 167-169.
133 See supra footnote 110.
134 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135, cited supra
para. 7.91.

7.96 For these reasons, we reject the United States ' argument that where the margins of dumping
calculated are zero or de minimis, as they are here, there can be no violation of Article 2.4.135
7.97 On the basis of the foregoing, we conclude that the United States acted inconsistently with
Article 2.4 of the Anti-Dumping Agreement as a result of the USDOC's use of zeroing to calculate the
dumping margins of individually-examined exporters in the second and third administrative reviews.
(iii) Viet Nam's claims of violation under Articl es 9.3, 2.1, and 2.4.2 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994
7.98 In addition to its claim under Article 2.4, Viet Nam also considers th at the USDOC's use of
zeroing in the second and third administrative review s violates Articles 9.3, 2.1, and 2.4.2 of the
Anti-Dumping Agreement, and Article VI:2 of the GATT 1994.
7.99 The United States asks us to reject Viet Nam's claims under these provisions. The
United States argues, inter alia, that the prohibition of zeroing in periodic reviews under Article 9.3 of
the Anti-Dumping Agreement and Article VI:2 of th e GATT 1994, if there is one, is triggered by the
imposition of duties in excess of the margin of dumping, such that there can be no violation when no
duties are assessed136; that Article 2.1 of the Anti-Dumping Agreement is purely definitional and does
not impose any independent obligati on upon the investigating authority 137; and that Article 2.4.2 of
the Anti-Dumping Agreement applies only in the context of original investigations, and imposes no
obligation with respect to periodic reviews.
138
7.100 In US – Shirts and Blouses , the Appellate Body stated that "a panel need only address those
claims which must be addressed in or der to resolve the matter at issue". 139 The Appellate Body has
also stated in Australia – Salmon that "[a] panel has to address those claims on which a finding is
necessary in order to enable the DSB to make su fficiently precise recommendations and rulings so as
to allow for prompt compliance by a Member with those recommendations and rulings."140
7.101 We have already found that the USDOC's use of zeroing in the calculation of the margins of
dumping of selected respondents in the second and thir d administrative reviews was inconsistent with
Article 2.4 of the Anti-Dumping Agreement. Finding a violation of any of the other provisions
invoked by Viet Nam would add nothing to the resolution of this dispute, nor would it aid in any
potential implementation. Accordingly, we consider it appropriate to exercise judicial economy in
respect of Viet Nam's claims under Articles 9.3, 2.1, and 2.4.2 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994.

135 United States' response to Panel question 49, para. 3. We note that shortly before we issued our
interim report, another panel issued its Report in whic h it arrived at a similar conclusion. See Panel Report,
US – Orange Juice (Brazil) (adoption/appeal pending), paras. 7.137-7.161.
136 United States' first written submission, paras. 104 , 106-109; United States' opening oral statement
at the first meeting of the Panel, para. 26; United States' response to Panel questions 14 and 19; United States'
second written submission, paras. 7-10; United States' opening oral statement at the second meeting of the
Panel, paras. 7-8.
137 United States' second written subm ission, paras. 21-37 and 49-54; United States' opening oral
statement at the second meeting of the Panel, para. 11 (referring to Appellate Body Report, US – Zeroing
(Japan), para. 140).
138 United States' second written submission, paras. 38-48; United States' opening oral statement at the
second meeting of the Panel, paras. 12-14; United States' comments on Viet Nam's response to Panel
questions 52 and 53A.
139 Appellate Body Report, US – Shirts and Blouses, p. 19.
140 Appellate Body Report, Australia – Salmon, para. 223.

3. Zeroing "as such"
(a) Introduction
7.102 We now consider Viet Nam's claims with respect to the U.S. "zeroing methodology".
Viet Nam argues that the zeroing methodology is a rule or norm of general and prospective
application that may be subject to an "as such" cl aim, even though it is not set forth in any written
document.141 Viet Nam requests us to find that this rule or norm, insofar as it relates to the calculation
of dumping margins in periodic reviews is, as such, inconsistent with Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994.142
7.103 The United States asks us to reject Viet Nam's claims. While the United States does not deny
that unwritten rules or norms of ge neral and prospective application may be challenged "as such", the
United States submits that Viet Nam has failed to establish as a matter of fact, based on the evidence
put forward in this proceeding, that the alle ged zeroing methodology cons titutes a norm of general
and prospective application.143
7.104 Viet Nam's claims raise issues regarding the circumstances in which an unwritten rule or
norm of general and prospective application may be challenged in WTO dispute settlement
proceedings. While it is now established 144 that such measures are susceptible to challenge, the
Appellate Body has indicated that their unwritten na ture means that panels must exercise particular
care in determining whether or not the complaining Member has properly established their existence.
Accordingly, we will first examine whether or not Viet Nam has properly established the existence of
the zeroing methodology as a rule or norm of general and prospective application. If we find
Viet Nam has properly established the existence of such a measure as a matter of fact, we will then
evaluate the parties' arguments concerning the WTO-consistency of that measure.

141 See, e.g. Viet Nam's second wr itten submission, para. 20; Viet Na m's opening oral statement at the
second meeting of the Panel, para. 10; Viet Nam's response to Panel question 54B; Viet Nam's comments on
the United States' response to Panel question 50(ii). While Viet Nam requests findings in respect of the "zeroing
methodology", in its arguments, Viet Nam interchangeably uses the terms "zeroing methodology" and "zeroing
procedures". In our findings, we use the term "zeroing methodology" used by Viet Nam in its request for
findings.
142 Viet Nam's second written submission, para. 144( 2). Viet Nam notes that the Appellate Body, in
US – Zeroing (Japan) , para. 88, affirmed the finding of the panel in that case that "'zeroing procedures' under
different comparison methodologies, and in different stages of the anti-dumping proceedings, do not correspond
to separate rules or norms, but simply reflect different manifestations of a single rule or norm". (Viet Nam's
second written submission, para. 18). That said, we note that Viet Nam's requests for findings are limited to the
application of that methodology in the context of U.S. administrative reviews and that Viet Nam's arguments
focus on the precise context of the use of the weighted-average-to-transaction comparison methodology in such
reviews.
143 The United States notes that Viet Nam's first written submission made no reference to any "as such"
claim and that during oral questioning in the first meeting of the Panel, Viet Nam indicated that it was not
pursuing an "as such" claim in this dispute. The United States submits that Viet Nam for the first time
articulated the bases of its "as such" claim against th e zeroing methodology in response to a written question
from the Panel (Panel question 11). (United States' second written submission, para. 11).
144 See, e.g. Appellate Body Report, US – Zeroing (EC), paras. 192-193.

(b) Whether Viet Nam has established the existence of the zeroing methodology as a rule or norm
of general and prospective application
(i) Main arguments of the parties
 Viet Nam
7.105 Viet Nam submits that prior panels and th e Appellate Body have concluded that the
U.S. zeroing methodology is an established norm or practice that may be subject to an as such
claim.145 Viet Nam asserts that the zeroing procedures, as described in the affidavit it submitted as
Exhibit Viet Nam-33, are unchanged from the procedur es that were found to constitute a general rule
or norm in these past disputes. 146 Viet Nam argues that the Panel may take judicial notice of the facts
underlying these findings by previous panels and the Appellate Body of the existence of the zeroing
methodology as a rule or norm of general and prospec tive application. Viet Nam submits that doing
so would be consistent with the objective of Ar ticle 3.2 of the DSU of achieving security and
predictability in the mulilateral trading system. Further, Viet Nam argues that doing so would be
consistent with the approach adopted by the US – Shrimp (Ecuador) and US – Antidumping Measures
on PET Bags panels. Viet Nam argues that these panels re lied on the facts as set forth in prior reports
to establish the facts in the dispute before them. Thus, Viet Nam considers that citation to the report
of a previous panel is sufficient to place the factua l findings and the legal conc lusions related to such
factual findings on the record of this proceeding.147
7.106 In any event, Viet Nam considers that it has met its burden of proof with respect to the
existence of the zeroing methodology. Viet Nam notes that it has provided, in the Ferrier affidavit
(Exhibit Viet Nam-33), a detailed analysis of the zeroing methodology to calculate dumping margins
generally and as used by the USDOC in the specific context of the Shrimp anti-dumping
proceedings.
148 Viet Nam further cites to statements ma de by the USDOC in the four administrative
reviews conducted by the USDOC in the Shrimp anti-dumping proceedings, in which the USDOC
sought to justify its practice of zeroing with lang uage that confirms its general and systematic
application of this practice. 149 Thus, Viet Nam argues, all eviden ce on the record of this proceeding
indicates the systematic application of zeroing in administrative reviews.150
7.107 Viet Nam further submits that the establishment of the relevant facts is not wholly the
responsibility of the complaining party. Viet Nam co nsiders that it has met its burden of establishing
a prima facie case of the existence of the zeroing methodology as a general rule or norm. As a result,
Viet Nam submits, the burden of proof has shifted to the United States. Viet Nam argues that the

145 Viet Nam's second written submission, para. 18 and Viet Nam's comments on the United States'
response to Panel question 50(ii) (referring to Panel and Appellate Body Reports, US – Zeroing (Japan) and
Panel and Appellate Body Reports, US – Stainless Steel (Mexico ); Viet Nam's comments on the United States'
response to Panel question 50(ii).
146 Viet Nam's opening oral statement at the second meeting of the Panel, para. 10.
147 Viet Nam's response to Panel question 54A; Viet Nam's comments on the United States' response to
Panel question 50A (referring to Panel Report, US – Shrimp (Ecuador) , para. 7.28; and Panel Report, US –
Anti-Dumping Measures on Polyethylene Carrier Bags from Thailand, para. 7.7).
148 Viet Nam's comments on the United States' response to Panel question 50(i).
149 Viet Nam's comments on the United States' response to Panel question 50(iii) (referring to Issues
and Decision Memorandum for the Final Determination in the First Administrative Review, Exhibit
Viet Nam-11, pp. 15-16; Issues and Decision Memorandum for the Final Determination in the Second
Administrative Review, Exhibit Viet Nam-15, pp. 13-14; Issues and Decision Memorandum for the Final
Determination in the Third Administrative Review, Exhibit Viet Nam-19, pp. 12-13; Issues and Decision
Memorandum for the Final Determination in the Fourth Administrative Review, Exhibit Viet Nam-23,
pp. 33-34).
150 Viet Nam's response to Panel question 50(iii).

United States fails to submit any evidence to rebut Vi et Nam's case. Viet Nam asks the Panel to treat
the United States' silence in this respect as an acknowledgment that no such evidence exists.151
 United States
7.108 The United States argues that Viet Nam has not placed before the Panel sufficient evidence to
support a finding as to the existence of the alle ged zeroing methodology as a measure which may be
challenged "as such" before a WTO panel consiste nt with the findings of the Appellate Body in US –
Zeroing (EC) .152 The United States notes that Viet Nam cites to prior panel and Appellate Body
reports with respect to the "zeroing methodology". The United States asserts that argument regarding
another dispute, or mere citation to the findings of another panel or the Appellate Body, is insufficient
to place such facts before the Panel. The United States notes that in US – Continued Zeroing , the
Appellate Body indicated that factual findings in pr ior disputes regarding the existence of the zeroing
methodology as a rule or norm are not binding in subsequent disputes. 153 The United States argues
that while in US – Continued Zeroing the Appellate Body indicated that evidence adduced in one
proceeding and admissions made in respect of the same factual question about the operation of an
aspect of municipal law may be submitted as evid ence in another proceeding, it is necessary to
actually adduce the evidence and point to any such admissions, which Viet Nam has not done with
respect to the existence of the alleged zeroing methodology.154
7.109 The United States submits that th e evidence presented by Viet Nam to the Panel falls short of
the evidence described by the Appe llate Body in previous disputes. 155 The United States argues that
the present Panel has before it evidence of, at mo st, the alleged application of "zeroing" in
four administrative reviews of one product, an "expert opinion" that does not even purport to
demonstrate the existence of the "zeroing methodol ogy" as a measure of general and prospective
application attributable to the United States, a nd portions of the USDOC's Anti-Dumping Manual that
are not relevant to the question of zeroing and do not include the "standard computer programs" used
by the USDOC to calculate dumping margin. The United States argues that this evidence does not
establish "systematic application" of zeroing in ad ministrative reviews and that the absence of any
evidence to that effect on the reco rd before the Panel supports a conc lusion that Viet Nam has failed
to establish such a systematic application.156
(ii) Evaluation by the Panel
7.110 In US – Zeroing (EC), the Appellate Body indicated that "a panel must not lightly assume the
existence of a 'rule or norm' constituting a measure of general and prospective application, especially
when it is not expressed in the form of a written document". 157 The Appellate Body reasoned that the

151 Viet Nam's response to Panel questions 54A and 54B; Viet Nam's comments on the United States'
response to Panel questions 49 (ii) and (iv).
152 United States' second written submission para. 16; United States' opening oral statement at the
second meeting of the Panel, para. 27; and United States ' response to Panel question 54(iii) (all referring to
Appellate Body Report, US – Zeroing (EC), paras. 196-198).
153 United States' second written subm ission para. 19; United States' opening oral statement at the
second meeting of the Panel, para. 28; United States' re sponse to Panel question 54A; United States' comments
on Viet Nam's response to Panel question 54A (all referring to Appellate Body Report, US – Continued Zeroing,
para. 190).
154 United States' opening oral statement at the second meeting of the Panel, para. 28, comments on
Viet Nam's response to Panel questions 54A and 54B; see also response to Panel question 54A.
155 United States' response to Panel question 54(iii) (referring to the Appellate Body Reports on US –
Zeroing (EC) and US – Zeroing (Japan)).
156 United States' response to Panel question 54(iii).
157 Appellate Body Report, US – Zeroing (EC), para. 196.

existence and content of such a rule or norm may be more uncertain than wh ere the rule or norm is
expressed in the form of a written document.158 The Appellate Body observed that:
"... when bringing a challenge against such a 'rule or norm' that constitutes a measure
of general and prospective application, a complaining party must clearly establish,
through arguments and supporting evidence, at least that the alleged 'rule or norm' is
attributable to the responding Member; its precise content; and indeed, that it does
have general and prospective application. It is only if the complaining party meets
this high threshold, and puts forward suffici ent evidence with respect to each of these
elements, that a panel would be in a position to find that the 'rule or norm' may be
challenged, as such. This evidence may include proof of the systematic application of
the challenged 'rule or norm'. Particular ri gour is required on the part of a panel to
support a conclusion as to the existence of a 'rule or norm' that is not expressed in the
form of a written document. A panel must carefully examine the concrete
instrumentalities that evidence the existence of the purported 'rule or norm' in order to
conclude that such 'rule or norm' can be challenged, as such."159
7.111 The above reasoning was applied by the panels in US – Zeroing (Japan) and US – Stainless
Steel (Mexico).160 Like those panels, we are guided by the above reasoning of the Appellate Body. In
the present instance, the parties' disagreement focuses on whether the evidence before the Panel
properly establishes that the zeroing methodology is a rule or norm of general and prospective
application. We note that the United States argue s that Viet Nam has pointed to no evidence and
made no argument that would "clearly establish" that the alleged rule or norm is attributable to the
United States, and the precise content of that norm. 161 We disagree. In our view, Viet Nam has
presented evidence sufficient to establish both the content of the norm, and that it is attributable to the
United States. First, we note that the United St ates has not contested the content of the alleged norm
– i.e. that the USDOC, in calculating dumping margins in the context of periodic reviews, disregards
any intermediate comparison result where the export price is equal to, or greater, than the normal
value – as described by Viet Nam in its submissions and supporting e xhibits. Second there can in our
view be no question that if there is a norm, it is attr ibutable to the United States. We recall that the
USDOC forms part of the United States Government a nd that Viet Nam alleges that the norm at issue
finds application in connection with the application by the United States of its anti-dumping law.162
7.112 With guidance from relevant case law 163, we consider that the zeroing methodology may be
found to have general and prospec tive application if the USDOC is shown to have a deliberate policy
of applying that methodology, going beyond the si mple repetition of the application of that
methodology in specific cases.164 Given the unwritten nature of the alleged rule or norm at issue, our
conclusions in this respect may rest on inferences drawn from evidence in the form, inter alia , of

158 Appellate Body Report, US – Zeroing (EC), para. 197.
159 Appellate Body Report, US – Zeroing (EC), para. 198. (emphasis original, footnote omitted)
160 Panel Report. US – Zeroing (Japan), paras. 7.47-7.59; Panel Report, US – Stainless Steel (Mexico),
paras. 7.28-7.42 and 7.84-7.97. The findings of the US – Zeroing (Japan) panel with respect to the existence of
a rule or norm of general and prospective application were upheld in Appellate Body Report, US – Zeroing
(Japan), para. 88. The findings of the US – Stainless Steel (Mexico) panel on the issue were not appealed.
161 United States' second written submission, paras. 17-20.
162 Viet Nam's response to Panel question 54B.
163 We refer in this regard to the reports of the panels and the Appellate Body in US – Zeroing (EC) and
US – Zeroing (Japan) , and the report of the panel in US – Stainless Steel (Mexico) . To be clear, we consider
these findings relevant to determine the legal framework that we must apply in examining Viet Nam's factual
assertions and claims; however, we do not consider that the factual findings of these prior panels and the
Appellate Body alleviate Viet Nam's burden of establishing, before us, that the U.S. zeroing methodology is a
norm of general and prospective application.
164 Panel Reports, US – Zeroing (Japan), para. 7.52; US – Stainless Steel (Mexico), paras. 7.40, 7.95.

expert opinions, statements by the authorities con cerned, or other evidence which indirectly supports
the view that the application by the authorities of the methodology at issue reflects a "deliberate
policy".165
7.113 We now turn to consider the eviden ce placed on our record by Viet Nam. 166 In this respect,
we first note Viet Nam's reliance on the USDOC's use of zeroing in each of the anti-dumping
proceedings undertaken pursuant to the Shrimp order. Evidence submitted by Viet Nam – the
accuracy of which is not contested by the United States – demonstrates that the USDOC applied
"simple zeroing" not only in the second and third administrative reviews, but also in each of the
additional administrative reviews conducted under the Shrimp order.167
7.114 Viet Nam also submits to the Panel evidence to the effect that the USDOC applies zeroing in
all anti-dumping proceedings where it is required to ca lculate a margin of dumping. In particular, the
Ferrier affidavit submitted by Viet Nam includes a general overview of th e standard programming
used by the USDOC, which indicates that the USDOC uses a standard computer programme in
calculating margins of dumping, and that the USDOC consistently includes instructions to disregard
negative comparison results in this programme. 168 We note that the United States objects that the

165 Our evaluation of the evidence before us is guided by the Appellate Body's indication that panels
should engage in a cumulative evaluation of the evidence. The Appellate Body stated that a panel has a duty,
under Article 11, "to evaluate evidence in its totality, by which we mean the duty to weigh collectively all of the
evidence and in relation to each other, even if no piece of evidence is by itsel f determinative of an asserted fact
or claim". (Appellate Body Report, US – Continued Zeroing, para. 336).
166 We note that Viet Nam invites us to take judicial notice of the findings of prior panels and of the
Appellate Body as to the existence and WTO-inconsistency of the U.S. "zeroing methodology", in particular
those in US – Zeroing (Japan) and US – Stainless Steel (Mexico) , in which the U.S. zeroing methodology, as it
relates to the use of the weighted-average-to-transaction comparison method ("simple zeroing") in periodic
reviews was found to be WTO-inconsistent. (Viet Nam' s second written submission, para. 19; Viet Nam's
response to Panel question 11). Viet Nam argues that we should apply an approach similar to that of the panels
in US – Shrimp (Ecuador) and US – Anti-Dumping Measures on PET Bags . We note, though, that while the
complainants in these disputes were allowed to rely on prior legal findings regarding the WTO-inconsistency of
an identical measure in an earlier proceeding, the comp lainants were not dispensed from establishing, as a
matter of fact, the existence of that measure. In addition, we note that the Appellate Body has cautioned, in
US – Continued Zeroing , that findings of facts in one dispute are not binding in another dispute. (Appellate
Body Report, US – Continued Zeroing, para. 190).
167 Viet Nam refers us to the Issues and Decision Memoranda in each of the four administrative reviews
completed under the Shrimp order. In each of these Memoranda, the USDOC states that it does not, in the
review at issue, allow the amount by which the price exceeds normal value in certain transactions to offset the
amount of dumping found in respect of other transactions. (Issues and Decision Memorandum for the Final
Determination in the First Administrative Review, Exhibit Viet Nam-11, p. 15; Issues and Decision
Memorandum for the Final Determination in the Second Administrative Review, Exhibit Viet Nam-15, p. 14;
Issues and Decision Memorandum for the Final Determination in the Third Administrative Review, Exhibit
Viet Nam-19, p. 13; Issues and Decision Memorandum for the Final Determination in the Fourth
Administrative Review, Exhibit Viet Nam-23, p. 35; al l are quoted in Viet Nam's first written submission,
para. 47). In addition, Viet Nam also provides computer programme outputs and logs of the USDOC's dumping
margin calculations for individually examined respondents in the administrative reviews at issue. In addition to
the logs and outputs discussed above, paras. 7.77-7.78, pertaining to the USDOC's calculations in the second
and third administrative reviews, Viet Nam also provides the logs and outputs for individual respondents in the
fourth administrative review. (Viet Nam's first written submission, para. 48, referring to Computer Programme
Log with respect Minh Phu in the Fourth Administrative Review, Exhibit Viet Nam-41; Computer Programme
Output with respect to Minh Phu in the Fourth Administrative Review, Exhibit Viet Nam-49; Computer
Programme Log with respect Nha Trang in the Fourth Administrative Review, Exhibit Viet Nam-69; Computer
Programme Output with respect to Nha Trang in the Fourth Administrative Review, Exhibit Viet Nam-70).
168 See Exhibit Viet Nam-33, paras. 6-7:
"The structure and language of the computer programming the USDOC uses to derive the
overall weighted-average dumping margin are basically the same in an original investigation

Ferrier affidavit "does not even purport to be an 'expert opinion' demonstrating the existence of the
'zeroing methodology' as a measure of general a nd prospective application attributable to the
United States", but that, rather, "it is, as stated in paragraph 8 thereof, merely an analysis of 'the
USDOC's computer programs used to determine the antidumping duty margins ... in the original
investigation and the second, third, and fourth administrative reviews". 169 We are not persuaded by
the United States' argument. In our view, the precise purpose for which the affidavit was prepared has
no bearing on the probative value of Mr. Ferrier's evidence. 170 Thus, even though the Ferrier affidavit
may have been prepared with a focu s on the application of zeroing in the Shrimp proceedings, we
have identified extracts from the affidavit that addr ess the standard programme generally used by the
USDOC, and therefore the use of zeroing in the calculation of margins of dumping more generally. 171
We note that the United States has not contested the accuracy of Mr. Ferrier's statement with respect
to the standard programme generally used by the USDOC.172
7.115 Significant evidence of the general and prospec tive nature of the zeroing methodology is also
found in a number of statements made by the USDOC in the Issues and Decision Memoranda
accompanying the final determinations in the four completed administrative reviews of the Shrimp
order. We consider that these statements demonstrate that the USDOC maintains a practice of zeroing
in administrative reviews, going beyond the simple application of zeroing in individual instances, and
that this practice reflects a deliberate policy. For instance, the Issues and Decision Memorandum
accompanying the USDOC's final determination in the second administrative review states that,
outside the context of weighted-average-to-weighted -average comparisons in original investigations,
the USDOC interprets the definition of "dumping ma rgin" in the U.S. anti-dumping statute to mean
that:
"a dumping margin exists only when nor mal value is greater than export or
constructed export price. As no dumping ma rgins exist with respect to sales where
normal value is equal to or less than export or constructed export price, the
Department will not permit these non-dumped sales to offset the amount of dumping
found with respect to other sales."
173

and administrative reviews, although minor differences in language occur. These differences
do not, however, affect the language and procedures used to implement what is commonly
referred to as 'zeroing'.
The programming language addresses many aspects of the dumping margin calculation. The
manner and order in which procedures and calculations are executed by the USDOC's
programs are intrinsically linked to the U.S. antidumping laws and the USDOC's policies
interpreting those laws. The USDOC cannot alter the structure of key components of the
calculation procedures in the standard computer programs without risking violating its laws or
changing its policies interpreting those laws."
169 United States' response to Panel question 54(i), para. 6. The United States makes a similar
argument in para. 17 of its second written submission.
170 We note that the Appellate Body has indicated in the past that panels are entitled to examine all
evidence placed on the record before them, including evidence submitted by the defending party, regardless of
the purpose of the party introducing the evidence. See Appellate Body Report, Korea – Dairy, paras. 136-137.
In Korea – Dairy , the Appellate Body rejected an argument of Korea that the panel in that dispute had
impermissibly relied on evidence submitted by Korea, for a purpose other than that for which Korea had
submitted the evidence, and used it to reach conclusions contrary to Korea's interests.
171 Affidavit by Michael Ferrier, Exhibit Viet Nam-33, paras. 6-7, cited supra footnote 168.
172 To be clear, we do not view any line of computer code as a practice or methodology in itself, but
consider that the consistent presence of a line of computer code to discard negative comparison results can be
regarded as manifestation of a zeroing practice maintained by the USDOC.
173 Issues and Decision Memorandum for the Fi nal Determination in the Second Administrative
Review, Exhibit Viet Nam-15, p. 13.

7.116 The Memorandum adds that the U.S. Court of A ppeals for the Federal Ci rcuit "has held that
this is a reasonable interpretation of the stat ute". The abovementioned Issues and Decision
Memorandum further explains, in reaction to argume nts by Vietnamese interested parties citing to
WTO precedents finding that the zeroing methodolog y employed by the USDOC in periodic reviews
is WTO-inconsistent, that WTO reports are without effect under U.S. law, unless and until they have
been adopted pursuant to the specified U.S. statutory scheme. The Memorandum further provides that
"[w]hile the Department has modified its calcula tion of weighted-average dumping margins when
using average-to-average comparisons in antidumping investigations, the Department has not adopted
any other modifications concerning any other me thodology or type of proceeding, such as
administrative reviews." The USDOC then concludes that, consistent with its interpretation of the
U.S. anti-dumping statute, the USDOC continued to "deny offsets" in its final determination in the
periodic review at issue. 174 Similar statements appear in the Issues and Decision Memoranda
accompanying the USDOC's final determinations in each of the other administrative reviews under
the Shrimp order.175
7.117 In our view, the import of these statements extends beyond the administrative reviews of the
Shrimp order. The general references to interpretation of the applicable statute, and the calculation of
margins of dumping under that statute, indicate th at whenever the USDOC calculates a margin of
dumping in the context of administrative reviews, the USDOC will never allow non-dumped sales to
offset the amount of dumping with respect to othe r sales. In other words, the USDOC will always
apply zeroing.
7.118 We recall the Appellate Body's indication that a panel should not lightly assume the existence
of a rule or norm constituting a measure of general and prospective application, particularly where the
rule or norm at issue is not expressed in writte n form, and that a complaining party making a
challenge against such a measure "must clearly establish" (our emphasis), inter alia, that the alleged
"rule or norm" does have general and prospective application. 176 The Appellate Body itself has
indicated that the complaining party bringing such a challenge faces a "high threshold".177
7.119 In our view, the evidence put forward by Viet Nam meets the "high threshold" referred to by
the Appellate Body in US – Zeroing (EC). This evidence in our view demonstrates that the USDOC's
application of zeroing in administrative reviews ex tends well beyond the mere repetition of a practice
in specific cases and rather substantiates Viet Nam's allegation that the USDOC maintains a deliberate
policy to this effect.

174 Issues and Decision Memorandum for the Fi nal Determination in the Second Administrative
Review, Exhibit Viet Nam-15, pp. 13-14.
175 See Issues and Decision Memorandum for the Final Determination in the First Administrative
Review, Exhibit Viet Nam-11, p. 16, wh ich states that "[b]ecause no change has yet been made with respect to
the issue of 'zeroing' in administrative reviews, the Department has continued with its current approach to
calculating and assessing antidumping duties in this administrative review"; Issues and Decision Memorandum
for the Final Determination in the Third Administrative Review, Exhibit Viet Nam 19, pp. 12-13, cited in part in
Viet Nam's first written submission, para. 49; Issues and Decision Memorandum for the Final Determination in
the Fourth Administrative Review, Exhibit Viet Na m-23, pp. 33-35. See al so Issues and Decision
Memorandum for the Final Determination in the Original Investigation, Exhibit Viet Nam-06, p. 11, which
primarily pertains to the USDOC zeroing "methodology" as it applies to original investigations, but in which the
USDOC nevertheless mentions the application of that methodology in the context of administrative reviews
("... in the context of an administrative review, the Fe deral Circuit has affirmed the Department's statutory
interpretation which underlies this methodology as reasonable."). Although only the second and third
administrative reviews are "measures at issue" upon which we must pronounce, documents issued by the
USDOC in other proceedings under the Shrimp order may serve as evidence of Viet Nam's factual assertions
concerning the existence of the alleged "zeroing methodology".

7.120 Mindful of the rules governing the allocation of the burden of proof and of the Appellate
Body's indication that panels should exercise partic ular care in examining the evidence supporting the
existence of an unwritten norm, we nevertheless expressly sought the view of the United States on the
evidence before us. 178 Although we provided the United States with an opportunity to identify any
evidence that might rebut the evidence submitted by Viet Nam in support of its claim that the USDOC
zeroing methodology is a rule or norm of general and prospective application, the United States
declined to put forward any such evidence. 179 This being the case, we conclude that Viet Nam has
established that the U.S. zeroing methodology is a norm which may be challenged "as such."
7.121 We emphasize that we reach this conclusion so lely on the basis of th e evidence placed before
us. We note, however, that our conclusion as to the f acts before us is consistent with that reached by
panels and the Appellate Body in prior decisions in which they have found that the United States
maintains a norm of general and pr ospective application by virtue of which it applies the zeroing
methodology in performing dumping margins calcula tions, notably in the context of using the
weighted-average-to-transaction methodology in periodic reviews.180

178 We are, in particular, guided by the Appellate B ody's indication that "[p]articular rigour is required
on the part of a panel to support a conclusion as to the existence of a 'rule or norm' that is not expressed in the
form of a written document" and that, "[a] panel must carefully examine the concre te instrumentalities that
evidence the existence of the purported 'rule or norm' in order to conclude that such 'rule or norm' can be
challenged, as such". Appellate Body Report, US – Zeroing (EC), para. 198. (emphasis original)
179 We asked the United States "What evidence is ther e on the record that mi ght support a conclusion
that there is not a systematic application of zeroing in administrative reviews?" (Panel question 54(iii)). The
United States answered that "Vietnam has the burden to offer evidence sufficient to substantiate its claim, and
Vietnam has failed to put forward the requisite evidence to support an as such claim with respect to the so-called
'zeroing methodology.'" The United States also argued that it is insufficient for Viet Nam to rely on the facts,
rationale, and findings in other disputes and that the evidence presented by Viet Nam "falls far short of the
evidence as described by the Appellate Body in US – Zeroing (EC) and US – Zeroing (Japan) ." The
United States also argued that the ev idence before the Panel does not es tablish a "systematic application of
zeroing in administrative reviews."
We also asked the following question to the United States: "If the Panel were to find that Viet Nam has
discharged its initial burden of establishing that the 'zeroing methodology' constitutes a rule or norm that may be
challenged 'as such', the onus would shift to the United Stat es to refute the existence of that measure. What
evidence would the United States rely on to do so?" (Panel question 54 (iv)). The United States answered that:
"The U.S. response would depend upon how Vietnam established that the 'zeroing
methodology' constitutes a rule or norm that may be challenged 'as such.' Because Vietnam
has not done so in this dispute, it is unclear how the United States would refute the existence
of such a measure or norm, and we are not in a position to speculate on our response to
evidence that Vietnam has not presented to the Panel.
Hypothetically, if the Panel were to determine that Vietnam has discharged its initial burden
of establishing that the 'zeroing methodology' constitutes a rule or norm that may be
challenged 'as such,' the United States could respond, for example, by supplying evidence that
calls into question whether Vietnam's evidence in fact supports that conclusion."
The rest of the United States' answer concerns th e WTO-consistency of the zeroing methodology, in
the event that the Panel found that Viet Nam has established the existence of that measure.
180 Because we are of the view that the evidence discussed above suffi ces to meet the criteria set forth
by the Appellate Body in US – Zeroing (EC) , we need not consider the other evidence cited by Viet Nam, in
particular the USDOC's Anti-Dumping Manual. In any event, we agree with the United States that on their face,
the chapters of the USDOC Anti-Dumping Manual subm itted by Viet Nam relate only to the USDOC's NME
methodology and to sunset reviews (United States' response to Panel question 54(iii)). For the same reason, we
need not decide whether Exhibit Vi et Nam-74, a recent Notice issued by the USDOC seeking comments from
interested parties on a proposed rule change, is admissible evidence, given its late submission by Viet Nam
(USDOC, "Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin and Assessment
Rate in Certain Antidumping Duty Proceedings" (28 December 2010), Exhibit Viet Nam-74).

7.122 In light of the foregoing, we uphold Viet Nam's arguments that the U.S. zeroing methodology
has general and prospective application. Since, as indicated above, we are satisfied that Viet Nam has
established the content of that rule or norm and th at it may be attributed to the United States, we
conclude that Viet Nam has properly establishe d the existence of the zeroing methodology as a
measure that may be challenged "as such." We now turn to Viet Nam's claim that the zeroing
methodology measure is as such WTO-inconsistent.
(c) Whether the zeroing methodology is inconsis tent, as such, with Article 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994
7.123 Viet Nam claims that the USDOC's zeroing methodology is, as such, inconsistent with
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT.181
7.124 The United States asks us to reject Viet Nam's claims.
(i) Main arguments of the parties
 Viet Nam
7.125 Viet Nam argues that the Appellate Body h as repeatedly found zeroing in administrative
reviews to be inconsistent w ith the Anti-Dumping Agreement. 182 In particular, Viet Nam notes, the
Appellate Body twice held that the precise zeroing methodology at issue in this dispute is
inconsistent, as such, with Articles 9.3 of the Anti-Dumping Agreement and VI:2 of the
GATT 1994.183 Viet Nam considers that the findings of the Appellate Body in previous disputes are
determinative in this dispute and that the Panel should follow these precedents. 184 Viet Nam submits
that while recognizing the need to reach decisions on a dispute-specific basis, the Appellate Body has
made clear that following its decisions in prior disputes "is not only appropriate, but is what would be
expected from panels, especially where the issues are the same". 185 Viet Nam further argues that
Article 3.2 of the DSU requires security and predic tability in the dispute settlement process and that
refusing to recognize prior determinations involving id entical factual situations would frustrate these
goals.186
7.126 Relying on these precedents, Viet Nam argues th at Articles VI of the GATT 1994 and 2.1 of
the Anti-Dumping Agreement both define "dumping" and "margin of dumping" with regard to the
product under investigation as a whole, and not in rela tion to models or categories that are subsets of
the product. Viet Nam considers that the U.S. zeroing methodology does not produce a margin of
dumping based on all intermediate comparisons and th erefore fails to calculate a margin of dumping
for the product as a whole. Viet Nam further argues that the arguments raised by the United States in
this dispute – that dumping may be found at the i ndividual, transaction level and that a margin of
dumping need not be calculated for the product as a w hole, have been repeatedly rejected by the

181 Viet Nam's second written submission, paras. 17-21 and 144(2); Viet Nam's opening oral statement
at the second meeting of the Panel, para. 59(2).
182 Viet Nam's first written submission, paras. 11 5-120, 151-157 and Viet Nam's second written
submission, para. 11 (referring to Appellate Body Reports in US – Zeroing (EC) , para. 133; US – Zeroing
(Japan) (Article 21.5 – Japan), paras. 195 and 197).
183 Viet Nam's second written submission, paras. 11 and 19 (referring to Appellate Body Report, US –
Zeroing (Japan), paras. 166, 169; and Appellate Body Report, US – Stainless Steel (Mexico), paras. 133-136).
184 Viet Nam's second written submission, para. 20; Viet Nam response to Panel question 55.
185 Viet Nam's first written submission, para. 119 (citing Appellate Body Report, US – Oil Country
186 Viet Nam's opening oral statement at the second meeting of the Panel, paras. 11, 57.

Appellate Body. 187 Viet Nam recalls that Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994 explicitly provide that margins of dumping may not be greater than
the margin of dumping for the product as a whole. This, Viet Nam argues, means that where the
administering authority makes use of multiple comparis ons at an intermediate stage, it must aggregate
the results of all intermediate comparisons, in cluding negative comparison results, for purposes of
calculating the margin of dumping. Viet Nam argues that by systematically disregarding negative
comparison results, the USDOC's simple zeroing practice necessarily results in dumping margins that
are greater than the margins for the product as a whole.188
 United States
7.127 The United States argues that the text of the Anti-Dumping Agreement, interpreted in
accordance with the customary rul es of interpretation, does not support a general prohibition of
zeroing that would apply in the context of assessme nt proceedings under Article of the 9.3 of the
Anti-Dumping Agreement and that at a mini mum, the USDOC's methodology to calculate
anti-dumping duties in administrative reviews rests on a permissible interpretation of the
Anti-Dumping Agreement under Article 17.6(ii) of the Agreement.
189
7.128 Specifically, the United States argues that Viet Nam's claims depend on interpreting the terms
"margins of dumping" and "dumping" as relating exclusively to the "product as a whole". The
United States argues that there is no basis in Ar ticle VI of the GATT 1994 or in the Anti-Dumping
Agreement for such a proposition. The United States argues that "dumping" as defined under
Article 2.1 of the Anti-Dumping Agreem ent is a transaction-specific concept.
190 The United States
further argues that the obligation set forth in Ar ticle 9.3 – to assess no more in anti-dumping duties
than the margin of dumping – is similarly applicable at the level of individual transactions. The
United States notes that in Viet Nam's view, a Member breaches Article 9.3 and Article VI:2 of the
GATT by failing to provide offsets, because Memb ers are required to calculate dumping margins on
an exporter-specific basis for the "product as a whole" and, consequently, a Member is required to
aggregate the results of all "intermediate comparis on results". The United States argues that so long
as the margin of dumping is understood to apply at the level of individual transactions there is no
tension between the exporter-specific concept of dumping as a prici ng behaviour and the
importer-specific remedy of payment of anti-dumping duties. The United States adds that it is only
when an obligation to aggregate transactions under Article 9.3 is improperly inferred that any
perception of conflict arises.
191
7.129 The United States invites the Panel to make an objective assessment of the matter before it,
reach the same conclusion as the panels in US – Zeroing (EC) , US – Zeroing (Japan) , and US –

187 Viet Nam's second written submission, paras. 40-47 (referring to Appellate Body Report, US –
Softwood Lumber V, para. 93; Appellate Body Report, US – Stainless Steel (Mexico), paras. 99, 106; Appellate
Body Report, US – Zeroing (Japan) , para. 115; Appellate Body Report, US – Zeroing (EC) , paras. 127, 132;
Appellate Body Report, US – Continued Zeroing , para. 283). While this is not totally clear from Viet Nam's
submissions, we understand Viet Nam to make these arguments not only with respect to its "as applied" claims,
but also with respect to "as such" claims. See also Viet Nam's first written submission, paras. 121-128.
188 Viet Nam's first written submission, paras. 144- 157 (referring to Appellate Body Reports on US –
Zeroing (EC), US – Zeroing (Japan) , US – Stainless Steel (Mexico) , US – Continued Zeroing , US – Zeroing
(Japan) (Article 21.5 - Japan)).
189 United States' first written submission, paras. 110-116; United States' second written submission,
para. 13. In para. 13 of its second written submission, th e United States incorporates by reference its arguments
in paras. 110-138 of its first written submission, which it made in response to Viet Nam's "as applied" claim.
We therefore reproduce these arguments here and take them into consideration in our analysis.
190 United States' first written submission, paras. 117-123; United States' second written submission,
paras. 51-53.
191 United States' first written submission, paras. 117-138.

Stainless Steel (Mexico) , which agreed with the interpretation it puts forward, and reject Viet Nam's
claims.192
(ii) Main arguments of the third parties
7.130 Every one of the third parties that commented on Viet Nam's claims under Article 9.3 of the
Anti-Dumping Agreement and Article VI:2 of th e GATT 1994 – China, European Union, India,
Japan, Korea, and Mexico – supports Viet Nam's arguments and invites the Panel to follow the
reasoning of the Appellate Body in prior disputes in which it has found zeroing in periodic reviews to
be inconsistent with these provisions.193
(iii) Evaluation by the Panel
7.131 Viet Nam's claim against the zeroing methodology, as such, is based on Article 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Article 9.3 of the Anti-Dumping
Agreement reads:
"The amount of the anti-dumping duty shall not exceed the margin of dumping as
established under Article 2."
7.132 Article VI:2 of the GATT 1994 provides:
"In order to offset or prevent dumping, a contracting party may levy on any dumped
product an anti-dumping duty not greater in amount than the margin of dumping in
respect of such product. For the purposes of this Article, the margin of dumping is
the price difference determined in accordance with the provisions of paragraph 1."
7.133 Although formulated differently, Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994 impose similar obliga tions. Both provide that the amount of the
anti-dumping duty shall not exceed the margin of dumping.
7.134 The parties' arguments regarding the WTO-consistency of the U.S. zeroing methodology raise
a number of important issues of treaty interpretation, the most fundamental of which is whether the
"margin of dumping" referred to under Articles 9.3 a nd VI:2 must be calculated for the "product as a
whole", and in respect of an exporter (Viet Na m's position), or whether it may be calculated on a
transaction-specific basis (the United States' position). These issues raised by Viet Nam's claims are,
however, not novel. The Appellate Body has had the opportunity to consider these issues of
interpretation in several prior WTO dispute settlement proceedings.
7.135 In these prior cases, the Appellate Body has consiste ntly held that "dumping", as this term is
defined under the Anti-Dumping Agreement and un der Article VI:1 of the GATT 1994, necessarily
relates to the product under consideration as a whole, and not to individual export transactions.
Consequently, the Appellate Body has found that the "margin of dumping" must necessarily be
determined on the basis of all export transactions of a given exporter. Thus, if the investigating
authority conducts multiple comparisons for individu al transactions or for groups of transactions, it
must aggregate the results of all such intermed iate comparisons, including those where the export

192 United States' first written submission, paras. 115- 116; United States' opening oral statement at the
first meeting of the Panel, paras. 28-31.
193 China's third-party oral statement, pp. 2-3 (thi s statement contains no paragraph numbering);
European Union's third-party written submission, paras. 6-168; European Union's third-party oral statement,
paras. 2-7; India's third-party oral statement, para s. 1-2 and 8-12; Japan's third-party written submission,
paras. 8-50; Japan's third-party oral statement, para. 2; Korea's third-party written submission, paras. 9-16;
Korea's third-party oral statement, paras. 5-9; Mexico's third-party written submission, paras. 4-29.

price exceeds the normal value". 194 Related to this, the Appellate Body has consistently held that
dumping necessarily is an exporter-specific concept. 195 Thus, the Appellate Body has indicated that
dumping can only be determined for the exporte r, and in connection with the product under
consideration as a whole, rather than on a transaction-specific basis.
7.136 The Appellate Body has found that these defin itions of "dumping" and of the "margin of
dumping" apply throughout the Agreement, including un der Article 9.3, and under Article VI:2 of the
GATT 1994. Therefore, the Appellate Body has r easoned, the "margin of dumping" calculated in
accordance with Article 2 – in relation to the ex porter, and in connecti on with the product under
consideration as a whole – operates as a ceiling for the total amount of anti-dumping duties that can
be levied on the entries of the subject merchandise from that exporter. Thus, if the investigating
authority chooses to undertake multiple comparisons at an intermediate stage, it is not allowed to take
into account the results of only some of these comparisons, while disregarding others.196
7.137 On this basis, the Appellate Body has found that "simple zeroing" in periodic reviews – as it
is applied by the USDOC – is inconsistent with Article 9.3 of the Anti-Dumping Agreement and with
Article VI:2 of the GATT 1994. The Appellate Body has held that zeroing results in the levy of an
amount of anti-dumping duty that exceeds an exporte r's margin of dumping. This, the Appellate
Body has explained, is because when the USDOC applies simple zeroing in periodic reviews, the
USDOC compares the prices of individual export transactions against monthly weighted average
normal values, and disregards the amounts by which the export prices exceed the monthly weighted
average normal values when aggregating the results of the comparisons to calculate the cash deposit
rate for the exporter and the duty assessment rate for the importer concerned. 197 We note, however,
that the Appellate Body has made it clear that its rulings with respect to zeroing in periodic reviews
concern the amount of anti-dumping duty that can be levied in accordance with Article 9.3 of the
Anti-Dumping Agreement, and not the issue of how th is amount is to be collected from the importers.
Specifically, the Appellate Body has clarified that the prohibition of simple zeroing in periodic
reviews does not preclude Members from carrying out an importer-specific inquiry to determine the
duty liability, as long as the duty collected does not exceed the exporter-specific margin of dumping
established for the product under consideration as a whole.198
7.138 In the present dispute, the United States asser ts that the Anti-Dumping Agreement and the
GATT 1994 do not prohibit zeroing in the context of periodic reviews. In particular, the United States
argues that it is possible to interpret the terms or concepts of "dumping" and "margin of dumping" as

194 Appellate Body Report, US – Softwood Lumber V , paras. 92-100; US – Zeroing (EC) , para. 126;
Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 122; Appellate Body Report,
US – Zeroing (Japan) , paras. 108-110, 115, 151; Appellate Body Report, US – Stainless Steel (Mexico) ,
paras. 97-99; Appellate Body Report, US – Continued Zeroing, paras. 276-287.
195 Appellate Body Report, US – Zeroing (EC), paras. 128-129; Appellate Body Report, US – Zeroing
(Japan), paras. 111-112, 150; Appellate Body Report, US – Stainless Steel (Mexico) , paras. 83-95; Appellate
Body Report, US – Continued Zeroing, paras. 282-283.
196 Appellate Body Report, US – Zeroing (EC) , para. 130; Appellate Body Report, US – Zeroing
(Japan), paras. 155-156; Appellate Body Report, US – Stainless Steel (Mexico) , para. 96; Appellate Body
Report, US – Continued Zeroing, paras. 286-287, 314.
197 Appellate Body Report, US – Zeroing (EC), paras. 132-135; Appellate Body Report, US – Zeroing
(Japan), paras. 155, 166; Appellate Body Report, US – Stainless Steel (Mexico) , paras. 133-139; Appellate
Body Report, US – Continued Zeroing , paras. 315-316. The Appellate Body has also noted that if zeroing in
periodic reviews were allowed under Article 9.3 of the Anti-Dumping Agreement, this would allow Members to
circumvent the prohibition under Article 2.4.2 on zeroing in original investigations. (See, e.g. Appellate Body
Report, US – Stainless Steel (Mexico), para. 109).
198 Appellate Body Report, US – Zeroing (EC) , para. 131; Appellate Body Report, US – Zeroing
(Japan), para. 156; Appellate Body Report, US – Stainless Steel (Mexico) , paras. 111-114; Appellate Body

referring not only to the product as a whole, but also to specific export transactions. The
United States also rejects the notion that dumping is necessarily an exporter-specific concept, and
argues that dumping may also be determined for individual importers. While we have carefully
reviewed and considered these arguments of the Un ited States, we note that the Appellate Body has
considered, and rejected, these very same arguments in prior dispute settlement proceedings. Indeed,
in two such prior cases – US – Zeroing (Japan) and US – Stainless Steel (Mexico) – the Appellate
Body found that zeroing in the context of admini strative reviews is, as such, inconsistent with
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.199
7.139 In considering the merits of the parties' arguments, and performing our own objective
assessment of the matter at hand, we are mindful of the Appellate Body's view that "[f]ollowing the
Appellate Body's conclusions in ear lier disputes is not only appropriate, it is what would be expected
from panels, especially where the issues are the same" and that "[t]his is also in line with a key
objective of the dispute settlement system to provi de security and predictability to the multilateral
trading system."200
7.140 We further recall that, in US – Stainless Steel (Mexico) , the Appellate Body considered that
failure by the panel in that case to follow previ ously adopted Appellate Body reports addressing the
same issues undermined the development of a c oherent and predictable body of jurisprudence
clarifying Members' rights and obligations under the covered agreements as contemplated under the
DSU.201 We also note the concurring opinion expressed in the Appellate Body Report in US –
Continued Zeroing that, on the question of zeroing, the A ppellate Body has spoken definitively, the
Appellate Body's decisions have been adopted by the DSB, and the membership of the WTO is
entitled to rely upon these outcomes.202
7.141 We recall that the findings of the Appellate Body in US – Zeroing (Japan) and US – Stainless
Steel (Mexico) discussed above 203 addressed the very same questi on which is now before us, i.e. the
consistency with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 of
the zeroing methodology, as such, in the context of administrative reviews. Following an objective
assessment of the matter, and a thorough review of the abovementioned reasoning expressed by the
Appellate Body, we agree with that reasoning and adopt it as our own.
7.142 Based on the foregoing considerations, we find that the U.S. zeroing methodology, as such, as
it relates to the use of simple zeroing in periodic reviews, is inconsistent with the United States'
obligations under Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
E. VIET NAM'S CLAIMS CONCERNING THE LIMITA TION OF THE NUMBER OF SELECTED
RESPONDENTS
1. Introduction
7.143 Viet Nam makes a number of claims in relation to the limitation by the USDOC of the
number of Vietnamese respondents for which it determined an individual dumping margin in the
second and in the third administrative reviews. Viet Nam requests that we find that:

199 Appellate Body Report, US – Zeroing (Japan) , para. 166; Appellate Body Report, US – Stainless
Steel (Mexico), para. 134.
200 Appellate Body Report, US – Continued Zeroing, para. 362.
201 Appellate Body Report, US – Stainless Steel (Mexico), para. 161.
202 Appellate Body Report, US – Continued Zeroing , para. 312. We note, however, that the Appellate
Body has not had to pronounce itself on the consistency with the Anti-Dumping Agreement and the GATT 1994
of zeroing as applied in the context of the use of the weighted average-to-transaction methodology to address
"targeted dumping" pursuant to the second sentence of Article 2.4.2 of the Anti-Dumping Agreement.
203 Supra, para. 7.138.

"The USDOC's determinations in the sec ond and third administrative reviews ... to
limit the number of individually investigat ed respondents such that they restrict
certain substantive rights under the Anti-Du mping Agreement is inconsistent with
Articles 6.10, 6.10.2, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement"204
7.144 Viet Nam's claims concern the USDOC's app lication of Articles 6.10 and 6.10.2 of the
Anti-Dumping Agreement. These Articles provide, in relevant part:
"6.10 The authorities shall, as a rule, determ ine an individual margin of dumping for
each known exporter or producer concerned of the product under investigation. In
cases where the number of exporters, producers, importers or types of products
involved is so large as to make such a determination impracticable, the authorities
may limit their examination either to a reasonable number of interested parties or
products by using samples which are statis tically valid on the basis of information
available to the authorities at the time of the selection, or to the largest percentage of
the volume of the exports from the country in question which can reasonably be
investigated.

6.10.2 In cases where the authorities have limited their examination, as
provided for in this paragraph, they shall nevertheless determine an
individual margin of dumping for any exporter or producer not initially
selected who submits the necessary inform ation in time for that information
to be considered during the course of the investigation, except where the
number of exporters or producers is so large that individual examinations
would be unduly burdensome to the authorities and prevent the timely
completion of the investigation. Voluntary responses shall not be
discouraged."
7.145 Viet Nam also alleges a violation of Artic les 9.3, 11.1 and 11.3 of the Anti-Dumping
Agreement. Article 9.3 provides that:
"The amount of the anti-dumping duty shall not exceed the margin of dumping as
established under Article 2."
7.146 Articles 11.1 and 11.3 provide that:
"11.1 An anti-dumping duty shall remain in force only as long as and to the extent
necessary to counteract dumping which is causing injury."
"11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a da te not later than five years from its
imposition (or from the date of the most recent review under paragraph 2 if that
review has covered both dumping and injury , or under this paragraph), unless the
authorities determine, in a review initiated before that date on their own initiative or
upon a duly substantiated request made by or on behalf of the domestic industry
within a reasonable period of time prior to that date, that the expiry of the duty would

204 Viet Nam's second written submission, para. 144(6); Viet Nam's first written submission, para. 235.
Viet Nam makes similar claims in respect of the "con tinued use of challenged practices" measure. We have
already determined that this measure is not within our terms of reference.

be likely to lead to continuation or recurrence of dumping and injury. 205 The duty
may remain in force pending the outcome of such a review."
7.147 In each of the proceedings it conducted under the Shrimp anti-dumping order, including in the
second and third administrative reviews, the USDO C limited the number of Vietnamese respondents
for which it determined an individual margin of dum ping. In each instance, the USDOC determined
that it was impracticable to exam ine all respondents for which an administrative review had been
requested and determined to limit its examination to "...exporters and prod ucers accounting for the
largest volume of the subject merchandise from the exporting country that can be reasonably
examined". In the second administrative review , the USDOC determined that it could reasonably
investigate two Vietnamese exporters, accounting for 34 per cent of the total exports of exporters
seeking individual review.
206 In the third administrative review, the USDOC selected three
respondents for individual review. 207 The USDOC explained its decision to limit the number of
respondents with almost identical language in both administrative reviews. The USDOC considered
that:
"In selecting respondents for review, the Depa rtment carefully considers its resources
including its current and anticipated work load and deadlines coinciding with the
segment in question. After careful cons ideration of our resources, we believe
[conclude]208 that it would not be practicable in this review to examine all
producers/exporters of the subject merchandise for whom a review was requested [for
which we have a request for review]. AD/CVD Operations Office 9, the office to
which the administrative review is assigne d, does not have the resources to examine
all such exporters/producers. This o ffice is conducting numerous concurrent
antidumping proceedings which place a constraint on the number of analysts that can
be assigned to this case. Not only do these other cases present a significant workload,
but the deadlines for a number of the cases coin cide and/or overlap with deadlines in
this antidumping proceeding. In addition, because of the significant workload
throughout Import Administration, we do not anticipate receiving any additional
resources to devote to this antidumping proceeding.
Therefore, after careful consideration of our resources, we believe that it would not be
practicable in this administrative review to examine all producers/exporters of subject
merchandise for whom a review has been requested. In light of our resource
constraints, we believe it is practicable to examine two [three] of these companies."
209
7.148 Of relevance to Viet Nam's claims, U.S. law provides an opportunity for individual exporters
or producers to seek revocation of the anti-dumping orde r on an individual basis. The relevant U.S.
regulations, 19 C.F.R. §351.222, provide that in making a determination whether to revoke an anti-

205 When the amount of the anti-dumping duty is assessed on a retrospective basis, a finding in the most
recent assessment proceeding under subpar agraph 3.1 of Article 9 that no duty is to be levied shall not by itself
require the authorities to terminate the definitive duty. (original footnote)
206 Exhibit Viet Nam-13, Respondent Selection Memorandum in the Second Administrative Review.
207 Exhibit Viet Nam-17, Respondent Selection Memorandum in the Third Administrative Review.
The USDOC's Respondent Selection Memorandum in the Third Administrative Review does not indicate what
percentage of Viet Nam's exports of shrimp to the United States, or of the exports of respondents seeking
review, these three respondents accounted for.
208 The underlined text is that of the Respondent Selection Memorandum in the Second Administrative
Review; the text in square brackets is that of the Respondent Selection Memorandum in the Third
Administrative Review.
209 Respondent Selection Memo in the Second Administrative Review, Exhibit Viet Nam-13, pp. 3-4,
quoted in Viet Nam's first written submission, para. 238; and Respondent Selection Memo in the Third
Administrative Review, Exhibit Viet Nam-17, pp. 2-3.

dumping order in part, the USDOC is to take into account, inter alia, whether the exporter or producer
concerned has sold the product under considerati on at undumped prices for at least three consecutive
years.210 In the proceedings at issue, certain Vietnamese exporters sought company-specific
revocations of the anti-dumping order. In their requests for revocation, certain of these companies
requested that the USDOC assign them an individu al margin of dumping. More details on these
requests are provided below.
7.149 Also of relevance to Viet Na m's claims is the fact that the USDOC, when conducting its
likelihood-of-dumping determination in the context of a sunset review, takes into consideration the
margins of dumping established in the original investigation and in administrative reviews.211
7.150 Viet Nam challenges two aspects of the USDOC's actions in the determinations at issue:
First, Viet Nam considers that the USDOC applied Article 6.10 in a manner that deprived Vietnamese
respondents of substantive rights under Article 6.10 it self and under Articles 9.3, 11.1 and 11.3 of the
Anti-Dumping Agreement. Second, Viet Nam argu es that the USDOC acted inconsistently with
Article 6.10.2 of the Anti-Dumping Agreement by discouraging Vietnamese exporters from
submitting voluntary responses, and by refusing to consider such voluntary responses when they were
made. We consider each in turn.
2. Viet Nam claims under Articles 6.10, 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement
(a) Introduction
7.151 We first consider Viet Nam's claims unde r Articles 6.10, 9.3, 11.1 and 11.3 of the
Anti-Dumping Agreement.
7.152 Viet Nam claims that the USDOC applied the limited examination exception provided for in
Article 6.10 in a manner that deprived Vietnamese exporters and producers of substantive rights (that
depend on the existence of individual margins) under Articles 6.10 212, 9.3, 11.1 and 11.3 of the
Anti-Dumping Agreement.213
7.153 The United States asks us to reject Viet Nam's claims.
(b) Main arguments of the parties
(i) Viet Nam
7.154 Viet Nam argues that the USDOC has effectively turned the general rule in the first sentence
of Article 6.10 (i.e. that an individual margin shoul d be determined for each exporter/producer) into
an exception, and the exception under the same provision into a general rule. 214 According to
Viet Nam, the USDOC's repeated use of limited ex aminations renders the individual margin rule
provided for in the first sentence of Article 6.10, and additional requirements in Articles 9.3, 11.1

210 19 C.F.R. § 351.222, "Revocation of orders; termination of suspended investigations", Exhibit
Viet Nam-56.
211 See, supra para. 7.13.
212 Viet Nam at times includes, and at other times, omits, Article 6.10 itself from the list of provisions,
or rights or principles which the USDOC's application of the Article 6.10 exception infringes upon.
213 Viet Nam's second written submission, para. 119.
214 Viet Nam's first written submissi on, paras. 238, 255. Viet Nam argues that the USDOC applies the
exception provided for under Article 6.10 as a rule, and vice versa, not only in the Shrimp proceeding, but in
virtually every other recent investigation or review. Vi et Nam's first written submission, para. 269 (referring to
Exhibit Viet Nam-65, List of Ten Most Recently Co mpleted USDOC Administrative Review Results (as of
12 August 2010)).

and 11.3 that are dependent on the existence of indi vidual margins, meaningless. Viet Nam contends
that an authority cannot use the exception provided in Article 6.10 to avoid that authority's obligations
under other provisions of the Agreement.
7.155 With respect to Article 9.3, Viet Nam argu es that the USDOC's refusal to individually
examine certain respondents means that the USDOC fa ils to ensure that the amount of duties assessed
on these respondents does not exceed their margin of dumping. 215 Viet Nam interprets Article 11.1 as
providing a self-standing right for an individual exporter/producer to obtain a company-specific
revocation of the order upon a showing that it has ceased dumping. Viet Nam argues that non-
selected Vietnamese respondents are prevented fro m exercising their rights under this provision and
under the U.S. regulation providing for company-specific revocations. This, Viet Nam argues, is
because in the absence of individual margins of dumping, non-selected respondents are unable to
demonstrate that they have ceased dumping.
216 Viet Nam argues that the USDOC is also required,
under Article 11.3, to make company-specific likelihood-of-dumping determinations, using each
respondent's individual margin of dumping, and that under U.S. law and practice, in order to obtain a
termination of the order in the context of a sunset review, respondents must demonstrate that they
have ceased dumping and that their exports to the Un ited States have continued at levels comparable
to those in the period preceding the order. 217 Viet Nam considers that the USDOC's refusal to
determine an individual margin for each res pondent means that these respondents are unable to
demonstrate the absence of dumping, and are therefore unable to meet the relevant standard in the
context of a sunset review.218
7.156 Viet Nam asserts that it is the responsibility of the authority to apply the exception in
Article 6.10 in a manner which is c onsistent with the authority's obligations under other provisions of
the Anti-Dumping Agreement. Viet Nam argues th at, to do so, the authority may be required to
deviate from standard practices applied in pro ceedings in which the authority does not limit its
investigation. Viet Nam argues that the USDOC made no effort in the proceedings at issue to balance
its right to conduct limited examinations with the interests and rights of Vietnamese respondents to
have duties assessed based on individual margins and to obtain a company-specific review in order to
demonstrate the absence of dumping. Viet Nam asserts that in these proceedings, the Vietnamese
respondents suggested an alternative which would have allowed the USDOC to determine individual
margins of dumping for those companies requesting them with limited additional effort given the
small variations in normal value between companies in an NME context. According to Viet Nam, the
same objective could have been achieved by applying to non-selected respondents the zero and
de minimis margins calculated for the selected respondents.
219

215 Viet Nam's opening oral statement at the first m eeting of the Panel, para. 71; Viet Nam's second
written submission, paras. 120, 132.
216 Viet Nam's first written submission, paras. 260, 283; Viet Nam's ope ning oral statement at the first
meeting of the Panel, para. 72; Viet Nam's second wr itten submission, paras. 121, 130; Viet Nam's opening
oral statement at the second meeting of the Panel, paras. 42-49; Viet Nam's response to Panel questions 45-48.
217 Viet Nam's first written submission, para . 262 (citing to USDOC Anti-Dumping Manual,
Chapter 25, Sunset Reviews, pp. 7-8, and Chapter 10 , Non-Market Economies, Exhibit Viet Nam-31; and
Five Most Recently Completed Sunset Review Determinations, Exhibit Viet Nam-64); Viet Nam's opening oral
statement at the first meeting of the Panel, para. 73 (c iting to Preliminary Results of Sunset Review and Issues
and Decision Memorandum, Exhibit Viet Nam-25); Viet Nam's response to Panel question 45; Viet Nam's
second written submission, paras. 121-122.
218 Viet Nam's first written submission, para. 261-263 , 284; Viet Nam's second written submission,
paras. 122, 131.
219 Viet Nam's first written submission, paras. 25 3-254; Viet Nam's second written submission,
para. 137; Viet Nam's response to Panel question 65.

(ii) United States
7.157 The United States asserts that there is no limit to the number of times that an investigating
authority may limit its examination. Rather, th e United States submits, Article 6.10 permits the
investigating authority to limit its examinati on whenever the conditions for doing so are met,
i.e. where the number of exporters/producers mak es determinations of individual margins for all
exporters/producers "impracticable."220 The United States notes that Viet Nam is not alleging that the
USDOC violated Article 6.10 by failing to select the largest number of exporters/producers that
"reasonably" could be examined, and that Viet Nam is also not arguing that the USDOC should have
or could have investigated all respondents requ esting reviews in each of the reviews. Thus, the
United States argues, Viet Nam has provided no basi s to support its claim that the United States acted
inconsistently with any obligation under Article 6.10.221
7.158 The United States considers that Viet Nam's cl aims under provisions other than Article 6.10
are necessarily dependent on its claim under that pr ovision. The United States submits that it cannot
be found to have acted inconsistently with one pr ovision of the Anti-Dumping Agreement due to the
proper exercise of its rights under a separate provision of the same Agreement. 222 The United States
also argues that the obligations under the other prov isions cited by Viet Nam are unrelated to an
investigating authority's determination to limit its examination and to the application of anti-dumping
duties to companies not individually examined.223
7.159 The United States addresses each provision cite d by Viet Nam as follows: Firstly, the
United States argues that Viet Nam's interpretation of Article 9.3 reads the second sentence of
Article 6.10, and all of Article 9.4, out of th e Anti-Dumping Agreement. The United States argues
that there could, in the proceedings at issue, be no connection between the anti-dumping duty assigned
to non-selected respondents and these respondents' ma rgin of dumping, given that no margin of
dumping was determined for these respondents.224
7.160 Secondly, the United States argues that Article 11.1 does not impose any independent or
additional obligation on Members, but merely in forms Articles 11.2, which Viet Nam does not
invoke, and 11.3. The United States further submits that the obligations in Article 11 apply to the
anti-dumping order as a whole, and do not concer n the particular anti-dumping duties applied to
individual companies. The United States submits that, even assuming, arguendo, that there were an
obligation under Article 11 to provide compa ny-specific opportunities for revocation, under
Article 11.4 of the Agreement, the provisions of Ar ticle 6.10, authorizing the authority to limit its
examination, would also apply to such a review . The United States further notes that Viet Nam's
arguments focus on the U.S. regulation permitting the revocation of an anti-dumping order with
respect to an individual company. The United St ates argues that there is no obligation under the
Anti-Dumping Agreement to revoke an order on a company-specific basis, let alone an obligation to
do so where the exporter receives thr ee successive zero margins, and th at it cannot be found to have

220 United States' first written submission, paras. 194- 195; United States' opening oral statement at the
first meeting of the Panel, para. 43.
221 United States' first written submission, para. 193-19 ; United States' opening oral statement at the
first meeting of the Panel, para. 42; United States' response to Panel questions 39-41; United States' second
written submission, paras. 117-119; United States' opening oral statement at the second meeting of the Panel,
paras. 82-84; United States' comments on Viet Nam's response to Panel question 64.
222 United States' second written submission, para. 127; United States' opening oral statement at the
second meeting of the Panel, paras. 95-95; United States' comments on Viet Nam's response to Panel
question 64.
223 United States' opening oral statement at the second meeting of the Panel, para. 92.
224 United States' opening oral statement at the second meeting of the Panel, para. 94.

acted inconsistently with the Anti-Dumping Agreem ent for failing to take action that the Agreement
does not require.225
7.161 Thirdly, the United States argues that the sunset review under the Shrimp anti-dumping order
(i.e. the Article 11.3 review) is not within the Panel' s terms of reference and that for this reason,
Viet Nam's claim under Article 11.3 fails. In addition, the United States argues that the USDOC does
not necessarily base its sunset review determinations solely upon the existence of dumping margins in
administrative reviews, noting that interested pa rties are permitted to place any information they
choose on the record.226
7.162 In addition, the United States rejects Viet Nam's suggestion that the USDOC could have
employed alternative methodologies to assign individual margins to more exporters. The
United States submits that the Anti-Dumping Agreement imposes no obligation in this respect. In any
event, the United States submits, the methodologies suggested by Viet Nam would not have allowed
the calculation of margins of dumping for non-selected exporters.227
(c) Evaluation by the Panel
7.163 Before proceeding with our evaluation, we recall that the first sentence of Article 6.10 of the
Anti-Dumping Agreement provides that, "as a rule, the investigating authority shall determine an
individual margin of dumping for each known export er or producer". To do so, the investigating
authority would have to individually examine each known exporter or producer. As a result of the
difficulty of performing individual examinations of all known exporters and producers in certain
cases, the second sentence of Article 6.10 provides for an exception to the rule set forth in the first
sentence. In particular, the investigating authorit y may limit the scope of its examination "[i]n cases
where the number of exporters, producers, importers or types of products involved is so large as to
make such [individual] determinati on[s] impracticable." In such cases of limited examination, the
authority must examine either "a reasonable numbe r of interested parties or products by using
samples", or "the largest percentage of the volum e of the exports from the country in question which
can reasonably be investigated".
7.164 In examining Viet Nam's claims, we note that Viet Nam is not challenging the USDOC's
decision to conduct limited examinations in the second and third administrative reviews. 228 In other
words, Viet Nam is not challenging the USDOC's determination that it was "impracticable" to
examine all known exporters and producers. Nor is Viet Nam challenging the number of exporters or
producers which the USDOC included in its limited sa mple. Instead, Viet Nam is claiming that the
USDOC's repeated use of limited examination in the second and third administrative reviews caused
the USDOC to undermine the rights of exporters and producers provided for in other provisions of the
Anti-Dumping Agreement that are dependent on each exporter or producer having individual margins
of dumping.
7.165 Since Viet Nam is not claiming that the USDOC 's use of limited examinations in the second
and third administrative reviews was inconsistent with the second sentence of Article 6.10, we

225 United States' first written submission, para. 199-203; United States' response to Panel questions 45
and 47; United States' second written submission, paras. 129-132; United States' opening oral statement at the
second meeting of the Panel, para. 97.
226 United States' first written submission, paras. 204-208.
227 United States' second written submission, paras. 121-122; United States' response to Panel
question 41; United States' opening oral statement at the second meeting of the Panel, para. 85; United States'
comments on Viet Nam's response to Panel question 65.
228 Viet Nam's response to Panel question 64; Viet Nam's opening oral statement at the first meeting of
the Panel, para. 75; Viet Nam's second written submissi on, paras. 119 and 135; and Viet Nam's opening oral
statement at the second meeting of the Panel, para. 50.

proceed on the basis that the USDOC's use of limite d examinations in those reviews was consistent
with the abovementioned criteria set forth in that pr ovision. Accordingly, we understand Viet Nam's
argument to be that, even though the USDOC undert ook limited examinations in a manner consistent
with the second sentence of Article 6.10, the USDOC violated other provisions of the Anti-Dumping
Agreement because, in undertaking limited examinat ions, the USDOC failed to provide non-selected
respondents with individual margins of dumping.
7.166 We are not persuaded by Viet Nam's claims. In our view, the use of limited examinations is
governed exclusively by the second sentence of Artic le 6.10. Viet Nam has not identified any other
provision in the Anti-Dumping Agreement governing th e use of limited examina tions. In particular,
Viet Nam has not identified any text in either the first sentence of Article 6.10, or Articles 9.3, 11.1
and 11.3, concerning the use of limited examinations.
7.167 Viet Nam's claims are premised on the view that Articles 9.3, 11.1 and 11.3 of the
Anti-Dumping Agreement require the de termination of individual margins 229, notwithstanding the
legitimate use of a limited examination. To in terpret these other provisions of the Anti-Dumping
Agreement in this way would render the second sentence of Article 6.10 meaningless. Indeed,
Viet Nam would effectively have us interpret the fi rst sentence of Article 6.10, and Articles 9.3, 11.1
and 11.3 of the Anti-Dumping Agreement, in isolation, as if the second sentence of Article 6.10 did
not exist. There is no doubt that, generally, there is a preference for individual margins to be
determined for each known exporter and producer. This is the very essence of the first sentence of
Article 6.10. However, the exception provided for in the second sentence of Article 6.10 makes it
clear that, despite the general preference for indi vidual margins, investigating authorities need not
determine individual margins for all known exporters and producers in all cases. Since neither the
first sentence of Article 6.10, nor Articles 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement, impose
any additional restrictions on the use of limited exam inations, there is no basis for us to find that the
USDOC's legitimate (i.e. consistent with the s econd sentence of Article 6.10) use of limited
examinations is inconsistent with those provisions.
7.168 For the foregoing reasons, we reject Viet Nam's claims of violation of Articles 6.10, 9.3, 11.1,
and 11.3 of the Anti-Dumping Agreement.
3. Claims under Article 6.10.2 of the Anti-Dumping Agreement
(a) Introduction
7.169 Viet Nam claims that the USDOC in the second and third administrative reviews acted
inconsistently with the U.S. obligations under Article 6.10.2 of the Anti-Dumping Agreement.
Article 6.10.2 provides as follows:
"In cases where the authorities have limited th eir examination, as provided for in this
paragraph, they shall nevertheless determine an individual margin of dumping for any
exporter or producer not initially selected who submits the necessary information in
time for that information to be consider ed during the course of the investigation,
except where the number of exporters or producers is so large that individual

229 The parties disagree whether, irrespective of the use of limited examinations, some or all of these
provisions require the determination of individual margins. We need not address this issue, since in any event
the second sentence of Article 6.10 provides expressly th at individual margins need not be determined in all
cases.

examinations would be unduly burdensome to the authorities and prevent the timely
completion of the investigation. Voluntary responses shall not be discouraged."230
7.170 Viet Nam's arguments in support of its cl aim(s) under Article 6.10.2 evolved during the
course of the Panel's proceedings. At first, Viet Nam only argued that the USDOC failed to comply
with the standard set out under the first sentence of Article 6.10.2 of the Anti-Dumping Agreement
because voluntary responses made by non-selected parties were rejected by the USDOC. 231 I n i t s
subsequent submissions, Viet Nam also clai med that the USDOC had discouraged voluntary
responses, contrary to the requirement in the s econd sentence of Article 6.10.2 that "[v]oluntary
responses shall not be discouraged".
7.171 The United States opposes Viet Nam's claims under both the first and second sentences of
Article 6.10.2.
(b) Main arguments of the parties
(i) Viet Nam
 Arguments with respect to the first sentence of Article 6.10.2
7.172 Viet Nam argues that Article 6.10.2 imposes a different test, and requires a distinct
determination, than the determination to limit the investigation under Article 6.10. Viet Nam argues
that the relevant consideration under Article 6. 10.2 is the number of voluntary responses, not the
overall number of exporters and produ cers subject to the duty. Viet Nam argues that rejection of
voluntary responses can only take place in exceptional circumstances. 232 In its first written
submission, Viet Nam argued that the USDOC acte d inconsistently with this requirement under
Article 6.10.2 by repeatedly rejecting voluntary r esponses in the context of the USDOC's decision to
limit the number of individually investigated or reviewed respondents and not on the basis of the
number of voluntary respondents and the incremental workload entailed in reviewing the number of
voluntary respondents involved.233 Viet Nam later clarified that it considers that the USDOC acted in
violation of Article 6.10.2 in refusing to consider a request for voluntary response treatment submitted
by Fish One in the third administrative review. Vi et Nam asserts that counsel for Fish One met with
the USDOC to request inclusion of its client as a mandatory respondent following the selection of
exporters and producers for individual examination and to inform the USDOC that it would provide
all necessary documents to the USDOC with the inte ntion of demonstrating the absence of dumping.
Viet Nam indicates that Fish One renewed this request in a letter of 28 October 2008, again informing
the USDOC that it would provide any necessary info rmation to obtain an individually calculated
margin of dumping.234

230 We note, in addition that the last sentence of Article 9.4 reads: "The authorities shall apply
individual duties or normal values to imports from any exporter or producer not included in the examination
who has provided the necessary information during the course of the investigation, as provided for in
subparagraph 10.2 of Article 6."
231 Viet Nam's first written submission, para. 287.
232 Viet Nam opening oral statement at the first meeting of the Panel, para. 74; Viet Nam's response to
Panel questions 37-38; Viet Nam's second written submission, para. 123.
233 Viet Nam's first written submission, paras. 285-288.
234 Viet Nam's response to Panel question 42 and Viet Nam's sec ond written submission, paras. 129
and 134, all referring to Fish One's "Request for the Department to Comply with its Regulations Regarding
Revocation of Antidumping Duty Orders", Exhibit Viet Nam-62, p. 6.

 Arguments with respect to the second sentence of Article 6.10.2
7.173 Viet Nam argues that the last sentence of Article 6.10.2 imposes an obligation – that the
authority's actions not deter a company from submitting voluntary responses – that is distinct from the
obligation in the first sentence of Article 6.10.2 that the authority consider voluntary responses.
Viet Nam argues that this requirement in the fina l sentence of Article 6.10.2 addresses the conduct of
the authority even prior to submission of a voluntary response or a formal request for treatment as a
voluntary response. Viet Nam argues that discouragi ng behaviour in violation of this obligation may
take the form of either action or inaction on the pa rt of the authority. Viet Nam provides, as example
of the latter, the hypothetical case of an aut hority that passively complied with a regulation
prohibiting the acceptance of voluntary responses.
235
7.174 Viet Nam argues that the standard applied by the USDOC under Article 6.10 forecloses the
possibility of voluntary responses and thus "constructively" discourages such voluntary responses:
Viet Nam argues that where the USDOC determines that it would be impracticable to individually
investigate all exporters and producers, in virt ually no instances could the USDOC later accept a
voluntary respondent under the "undue burden" standa rd in the first sentence of Article 6.10.2.
Viet Nam explains that the USDOC's Respondent Selection Memoranda in the second and third
administrative reviews indicated that it did not ha ve the resources to examine more than two or
three companies. Viet Nam reasons that an aut hority's statement that it cannot and will not examine
more than an identified number of companies will dissuade companies from seeking examination on a
voluntary respondent basis as these companies will lack any reason to believe that the authority would
consider examination of a submitted response.236
7.175 In addition, Viet Nam argues that the USDOC's ac tions in the treatment of certain requests by
Vietnamese exporters/producers in the administrati ve reviews at issue "discouraged" voluntary
responses. Viet Nam asserts that in the third admi nistrative review, Fish One, one of the Vietnamese
exporters, requested treatment as voluntary res pondent and offered to provide the USDOC all
necessary information to calculate an individual margin of dumping. Viet Nam argues that Fish One
made repeated efforts, through formal meetings with the USDOC and formal submissions to the
USDOC, to gain some assurances that data s ubmitted to the USDOC would be accepted by the
USDOC for purposes of the anti-dumping margin calcu lation. Viet Nam further asserts that the
USDOC refused to directly address this request and to provide an answer to Fish One until forced to
do so in the preliminary determination. Viet Nam submits that completing a full questionnaire
response requires significant financial and time commi tments and that under the circumstances that
prevailed in the proceedings at issue, a rationa l business actor would be discouraged from completing
a full anti-dumping questionnaire response.237

235 Viet Nam's response to Panel question 67.
236 Viet Nam's opening oral statement at the first mee ting of the Panel, para. 74; Viet Nam's response
to Panel question 43; Viet Nam's second written submis sion, paras. 123 and 133; Viet Nam's opening oral
statement at the second meeting of the Panel, para. 40. In its first written submission, Viet Nam relied on a
statement made by the United States in its first written su bmission, para. 214. Later, in its response to Panel
question 67, Viet Nam cited to statements of the USDOC in the Respondent Selection Memoranda in the
proceedings at issue (Respondent Selection Memoran dum in the Second Administrative Review, Exhibit
Viet Nam-13, p. 4; and Respondent Selection Memorandum in the Third Administrative Review, Exhibit
Viet Nam-17, p. 3).
237 Viet Nam's second written submission, para. 138; Viet Nam's opening oral statement at the second
meeting of the Panel, para. 41; Viet Nam response to Panel question 68.

(ii) United States
 Arguments with respect to the first sentence of Article 6.10.2
7.176 The United States argues that the USDOC could not have acted inconsistently with the
requirements of the first sentence of Article 6.10.2 in the second and third administrative reviews, as
no exporter or producer made the voluntary submis sion of "necessary information" that would have
triggered the application of that provision. The United States explains that in the second
administrative review, no company requested voluntar y respondent status. The United States notes
that in the third administrative review, one co mpany requested voluntary respondent status, but
subsequently did not submit any data.238
 Arguments with respect to the second sentence of Article 6.10.2
7.177 The United States argues that there is no basis for Viet Nam's assertion that the USDOC acted
inconsistently with the last sentence of Article 6. 10.2. The United States argues that Viet Nam offers
no evidence of so-called "discouraging behaviour" ot her than the USDOC's determinations that it was
impracticable to examine all respondents, which the United States argues are consistent with the
requirements of Article 6.10. The United States rejects as unfounded Viet Nam's assertion that the
United States clarified that the USDOC will ne ver consider voluntary respondents where it has
already limited the number of respondents individually examined. The United States argues that no
such clarification can be found in the record of the administrative reviews at issue. The United States
further notes that the USDOC has, in the past , accepted and relied on vol untary submissions to
determine dumping margins on numerous occasions. The USDOC did so, for example, when one of
the exporters initially selected for individual examin ation withdrew its request, or the exporter ceased
cooperating with the examination, in which case it became practicable to individually investigate
another respondent. The United States argues that Viet Nam's interpretation of the phrase "shall not
be discouraged" would deprive Members of the right to limit the examination under Article 6.10. In
particular, the United States argues, under Viet Nam's proposed interpretation, an investigating
authority, in order to act consistently with Ar ticle 6.10.2 and not impliedly "discourage" voluntary
responses, would need to preserve its ability to acce pt and consider voluntary responses, and to do so
would be required to act inconsistently with Artic le 6.10, by examining some percentage of the
volume of exports that is less than the largest percen tage that can reasonably be examined in order to
reserve additional resources for possible voluntar y responses. The United States argues that the
USDOC cannot be found to have acted inconsiste ntly with one provision of the Anti-Dumping
Agreement by virtue of its proper application of another provision of the same Agreement.
239
7.178 Furthermore, the United States argues that the ob ligation in the last sentence of Article 6.10.2
is framed as a prohibition on action on the part of the authorities. The United States argues that the
USDOC took no action to discourage voluntary responses in the second and third administrative
reviews. The United States notes that Viet Nam of fers as evidence only one letter from the record of
the third administrative review which, in the U.S. opinion, fails to show any action taken by the
USDOC to discourage a voluntary response by Fish One or any other company. The United States
argues that in that letter, Fish One is not asking to be treated as a voluntary respondent, but is asking
for a revocation review, and, if required by the US DOC to obtain such a review, to be selected as a

238 United States' first written submission, paras. 210- 214; United States' opening oral statement at the
first meeting of the Panel, paras. 44-45; United States' response to Panel questions 37-38 and 42; United States'
second written submission, paras. 123-126; United States ' opening oral statement at the second meeting of the
Panel, para. 88; United States' response to Panel question 67.
239 United States' opening oral statem ent at the second meeting of the Panel, para. 89; United States'
response to Panel questions 43, 67; United States' comments on Viet Nam's response to Panel questions 67-68.
The United States cites, as evidence, the Preliminary Determination in the Administrative Review on Certain
Activated Carbon from the Peoples' Republic of China, Exhibit US-8.

mandatory respondent. The United States argues th at this letter does not reference a possible
voluntary submission of a full questionnaire. Furtherm ore, the United States argues that even if Fish
One had sought some indication of the USDOC's intent early in the proceeding, the USDOC's
inability to respond at that time with any commitm ent one way or the other cannot be viewed as
discouraging.
(c) Main arguments of the third parties
(i) European Union
7.179 The European Union considers that both the overall number of exporte rs involved and the
number of voluntary responses is relevant under Ar ticle 6.10.2. The European Union does not,
however, take a position on whether the requirements of Article 6.10.2 were met in view of the
specific facts before the Panel.240
(d) Evaluation by the Panel
7.180 We begin by addressing Viet Nam's claim under the first sentence of Article 6.10.2.
(i) Viet Nam's claim under the first sentence of Article 6.10.2
7.181 In cases where an investigating authority's examin ation is limited to certain selected exporters
or producers, consistent with Article 6.10, the fi rst sentence of Article 6.10.2 provides that the
authority shall nevertheless also determine indi vidual margins of dumping for non-selected exporters
or producers that "submit[] the necessary informatio n in time for that information to be considered
during the course of the investigation", unless the authority determines that the number of exporters or
producers is so large that individual examinati ons would be unduly burdensome and prevent timely
completion of the investigation. Thus, the applica tion of the first sentence of Article 6.10.2 is only
triggered if non-selected exporters or producers ma ke so-called voluntary responses. If no such
voluntary response is submitted, there is no obligation on the investigating authority to take any action
under the first sentence of Article 6.10.2.
7.182 At the first substantive meeting, the United St ates asserted that the application of the first
sentence of Article 6.10.2 was never triggered in th e second or third administrative reviews, since in
neither of those reviews did any Vietnamese respondent make the requisite voluntary response. 241
During oral questioning by the Panel at the first s ubstantive meeting, Viet Nam confirmed that no
Vietnamese respondents had submitted voluntary responses pursuant to the first sentence of
Article 6.10.2. Furthermore, in response to a written question from the Panel inviting Viet Nam to
"provide any relevant information with respect to the submission of voluntary responses", Viet Nam
failed to identify any instance in the second or third reviews where voluntary responses had been
submitted by Vietnamese exporters or producers.242
7.183 In light of the absence of any evidence indi cating that any voluntary response was ever
submitted by non-selected exporters or producers in the second or third administrative reviews, we
find that the obligations in the first sentence of Artic le 6.10.2 were never triggered in those reviews.
Accordingly, we reject Viet Nam's claim that the USDOC acted inconsistent with the first sentence of
Article 6.10.2.

240 European Union's third-party written submission, paras. 187-188; European Union's response to
Panel question 15.
241 United States' opening oral statement at the first meeting of the Panel, para. 45.
242 Viet Nam's response to Panel question 42.

(ii) Viet Nam's claim under the second sentence of Article 6.10.2
7.184 We recall that the second sentence of Article 6. 10.2 provides that "[v]oluntary responses shall
not be discouraged". While the parties disagree on the precise meaning of the term "discourage", and
the issue of whether or not "discouragement" requir es active conduct on the part of the investigating
authority, we consider that the facts of the present case do not require us to explore this legal issue in
any detail.
7.185 Viet Nam formulated its claim under the second sen tence of Article 6.10.2 somewhat late in
the Panel process. 243 In order to fully understand the factual basis for Viet Nam's claim, after the
second substantive meeting, the Pa nel asked Viet Nam to "explain what evidence Viet Nam has
placed on the record to substantiate a claim under the last sentence of Article 6.10.2". 244 In response,
Viet Nam cited to:
"the standard applied by the USDOC for the selection of mandatory respondents in
support of the claim made under the last sentence of Article 6.10.2. The standard
applied by the USDOC to limit the number of respondents selected for review
violates Article 6.10.2 of the Anti-Dumping Agreement by foreclosing the possibility
of voluntary respondent treatment and thus dissuading companies from attempting to
participate as voluntary respondents. As noted, the USDOC's respondent selection
memoranda in the second and third administrative reviews explained that it would not
be 'practicable to examine' more than two or three companies, respectively. In other
words, the USDOC determined and expressly stated that it did not have the resources
to examine more than two or three compani es. An authority's explicit statement that
it cannot and will not examine more than th e identified number of companies will of
course dissuade companies from seeking examination on a voluntary respondent
basis. The company lacks any reason to be lieve that the authority would consider
examination of a submitted response where all evidence indicates the contrary."
245
7.186 Thus, as evidence of the alleged discouragement of voluntary responses, Viet Nam cites to the
fact that the USDOC determined that it would no t be practicable to examine more than two or
three exporters or producers in the second and third administrative reviews. Despite the very direct
nature of the Panel's request, Viet Nam does not cite to any other evidence indicating that the USDOC
discouraged voluntary responses.246
7.187 We recall that, in accordance with Article 6.10 of the Anti-Dumping Agreement, an authority
may limit its examination in cases where the number of exporters, producers, importers or types of
products involved is so large as to make [individu al margin] determination[s] impracticable". The
USDOC availed itself of this right in the second and third administrative reviews. The justification
for doing so was provided for in the Respondent Selection Memoranda. In the memoranda, the
USDOC discusses its resource constraints, and concludes "that it would not be practicable in this

243 Viet Nam's second written submission, para. 133.
244 Panel question 68.
245 Viet Nam's response to Panel question 68, para. 82.
246 We note that the Respondent Selection Memorandum in the Original Investigation (Exhibit
Viet Nam-04) contains a section addr essing whether the USDOC should investigate voluntary respondents, in
the event that it were to receive voluntary responses. The USDOC indicates that it would not be in a position to
individually examine companies other than the four mandatory respondents, unless some of these mandatory
respondents decided not to cooperate in the investigation. We note that Viet Nam does not rely on this
memorandum or any statement of the USDOC contained therein. In any event, Viet Nam makes no request for
findings in respect of the original investigation, which it accepts is outside our terms of reference.

review" to individually examine all producers and expor ters, and that, in light of resource constraints,
"it is practicable to examine two [or three] of these companies".247
7.188 We recall that Viet Nam has not alleged that the USDOC failed to meet the substantive
criteria of Article 6.10 in limiting its examination. In other words, Viet Nam has not challenged the
USDOC's determination that it would not be practicable to examine all exporters and producers in the
second and third administrative reviews. For this r eason, there is no basis for the Panel to conclude
that the USDOC limited its examination in a manner inconsistent with Article 6.10.
7.189 In our view, the USDOC's legitimate exercise of its right to limit its examination under
Article 6.10 cannot suffice, in and of itself, to constitute evidence of a violation of the second
sentence of Article 6.10.2. That is to say, the US DOC's determination that it would not be practicable
to investigate all exporters and producers cannot constitute evidence that the USDOC discouraged
voluntary responses.
7.190 We stress that Viet Nam has adduced no ot her evidence of alleged discouragement of
voluntary responses by the USDOC. In its second written submission, Viet Nam asserted that the
USDOC had initially refused to respond to a request for treatment as a voluntary respondent by Fish
One, a non-selected exporter, in the third administrati ve review. Viet Nam appeared to allege that the
USDOC's initial refusal to respond to Fish One's re quest could be construed as "discouragement" of
voluntary responses. Fish One's alleged request for voluntary respondent treatment was submitted as
Exhibit Viet Nam-62. In response to a question from the Panel regarding the evidence needed to
make out a claim under the second sentence of Article 6.10.2, the United States asserted:
"In the second and third administrative reviews, Commerce took no action to
discourage voluntary responses. Indeed, we note that Vietnam does not cite to any
record evidence from the second administrative review with regard to this claim.
Vietnam offers as evidence only one letter fro m the record of the third administrative
review, dated October 8, 2008. In that lette r, the respondent party at issue, Fish One,
is not asking to be treated as a voluntary respondent, but is asking for a specific
revocation review, and, if required by Co mmerce to obtain such a review, to be
selected as a mandatory respondent. This letter does not reference a possible
voluntary submission of a full questionnaire, concluding as follows: "Fish One
stands ready, even now, to full y participate in this review as a mandatory respondent
and take the same time as the other mandatory respondents to answer the
questionnaires." Fish One, to be treated as a voluntary respondent, needed to actually
submit the necessary information by the app licable deadlines. Even if Fish One had
sought some indication of Commerce's intent early in the proceeding, Commerce's
inability to respond at that time with any commitment one way or the other cannot be
viewed as discouraging. This evidence by Vietnam fails to show any action taken by
Commerce to discourage a voluntary response by Fish One or any other company."
248
7.191 In its Comments on the United States' Respon se, Viet Nam did not challenge the U.S.
interpretation of Fish One's alleged request for vol untary respondent treatment. Upon examination of
the relevant document, we see no reason to disagr ee with the United States' interpretation of Fish
One's request. In particular, we see no reason to treat that request as evid ence that Fish One sought

247 Respondent Selection Memorandum in the Second Administrative Review, Exhibit Viet Nam-13,
pp. 3-4, and Respondent Selection Memorandum in the Third Administrative Review, Exhibit Viet Nam-17,
pp. 2-3, quoted supra para. 7.147.
248 United States' response to Panel question 67, para. 63 (citing to Fish One's "Request for the
Department to Comply with its Regulations Regarding Revocation of Antidumping Duty Orders", Exhibit
Viet Nam-62, pp. 7-8). (emphasis original)

treatment as a voluntary respondent in the third administrative review. Instead, the relevant document
details Fish One's attempts to be treated as a manda tory respondent. In these circumstances, we do
not consider that the document submitted as Exhi bit Viet Nam-62 supports Viet Nam's claim under
the second sentence of Article 6.10.2.
7.192 For the above reasons, we reject Viet Nam's claim under the second sentence of Article 6.10.2
of the Anti-Dumping Agreement.
F. VIET NAM'S CLAIMS CONCERNING THE "ALL OTHERS " RATES APPLIED TO NON -SELECTED
EXPORTERS
1. Introduction
7.193 We now turn our attention to Viet Nam's claims with respect to the "all others" rates applied
by the USDOC in the second and third administrative reviews.249
7.194 Article 9.4 of the Anti-Dumping Agreement im poses disciplines with respect to the rate
which an investigating authority may apply to non- selected exporters/producers, in a case in which it
has limited its examination pursuant to the sec ond sentence of Article 6.10 of the Agreement. 250 The
rate so established is referred to as the "all others" rate. Article 9.4 provides, in relevant part:
"When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
(i) the weighted average margin of dumping established with respect to
the selected exporters or producers or,

provided that the authorities shall disregard for the purpose of this paragraph any zero
and de minimis margins and margins established under the circumstances referred to
in paragraph 8 of Article 6."
7.195 As can be seen from its text, Article 9.4 does not prescribe any specific method that WTO
Members must use in establishing an "all others" rate that is applied to exporters or producers that are
not individually examined. Rather, Article 9.4 simply provides that any "all others" anti-dumping
duty shall not exceed a certain maximum or ceiling. In other words, Article 9.4 provides for the
maximum allowable rate that may be applied. Sub- paragraph (i) of Article 9.4 states the general rule
that this maximum allowable "all others" rate is equal to the weighted average of the margins of
dumping established with respect to individually-exam ined exporters. However, the clause beginning
with "provided that" qualifies this general rule. It mandates that, "for the purpose of this paragraph",
investigating authorities shall disregard zero and de minimis margins of dumping, as well as "margins

249 As previously noted, in the determinations at issue, the USDOC refers to the "all others" rate
applied to such respondents as the "separate rate". In our findings, however, we use the terminology "all others"
rate.
250 Article 9.4 applies only "[w]hen the authorities have limited their examination in accordance with
the second sentence of paragraph 10 of Article 6", i.e. with respect to duties imposed on imports from
cooperating exporters that have made themselves k nown to the investigating authorities. Consequently,
Article 9.4 does not govern the duties applied in respect of exporters that have not yet exported the product and
exporters that have not come forward to the investigating authorities. See Panel Report, EC – Salmon (Norway),
para. 7.431; Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.159; Panel Report, US – Zeroing
(EC) (Article 21.5 – EC), footnote 916.

established under the circumstances referred to in paragraph 8 of Article 6", i.e. margins of dumping
established on the basis of facts available.251
7.196 Article 9.4 of the Anti-Dumping Agreement does not explicitly address how the maximum
allowable "all others" rate should be calculated when each of the margins of the selected exporters is
zero, de minimis, or based on facts available. The Appellate Body has referred to this as a lacuna in
Article 9.4. In US – Hot Rolled Steel , the Appellate Body explained that the lacuna arises because
"while Article 9.4 prohibits the use of certain margins in the calculation of the ceiling for the 'all
others' rate, it does not expressly address the issue of how that ceiling should be calculated in the
event that all margins are to be excluded from the calculation, under [these] prohibitions". 252 T h e
principal question raised by Viet Nam's claims is that of the disciplines, if any, that govern the
imposition of the "all others" rate in such a situa tion. This question arises because, as we explain
below, all respondents selected for individual ex amination in the second and third administrative
reviews received a zero or a de minimis margin of dumping.
7.197 In its preliminary determination in the second administrative review, the USDOC noted that
its practice in administrative reviews is to apply the provision of U.S. law concerning the calculation
of the "all others" rate in original investigations. This provision instructs the USDOC to assign an "all
others" rate equal to the weighted average of the rates of selected respondents, excluding zero and
de minimis margins and margins based entirely on adverse facts available. The USDOC noted that it
had preliminarily determined de minimis margins of dumping for both selected respondents,
Minh Phu and Camimex. The USDOC decided to apply to the 27 "separate rate" companies not
selected for individual examination an "all others " rate equal to the weighted average of these
individual margins, i.e. a de minimis rate, but invited interested parties to comment on the
methodology it should apply in its final determination.
253
7.198 In its final determination, the USDOC noted that it had received comments from interested
parties. The USDOC also indicated that U.S. law contemplated that it may use an average of the zero,
de minimis and total facts available rates determined in an investigation and that in the review at issue,
it had assigned margins based on adverse facts availabl e to the 35 companies it considered to be part
of the Vietnam-wide entity. The USDOC noted howev er that it had available information that would
not be available in an original investigation, na mely rates from prior administrative and new shipper
reviews. The USDOC further noted that it had, in another case, assigned an "all others" rate based on
the weighted average of zero and de minimis rates, but noted that in that case, there had been no rates
based entirely on adverse facts available. 254 In view of these considerations and of the comments
received from interested parties, and because th e circumstances were unchanged from those in the
first administrative review, the USDOC considered that a "reasonable method" was to assign the

251 The Appellate Body has found that this includes margins established in totality or in part on the
basis of facts available. Appellate Body Report, US – Hot Rolled Steel, para. 122.
252 Appellate Body Report, US – Hot Rolled Steel, para. 126. (emphasis original)
253 Preliminary Determination in the Second Administrative Review, Exhibit Viet Nam-14, pp. 12133
and 12135-12136. The USDOC invited interested parties to address, in particular, the following factors:
"(a) The Department has limited its examination of respondents ... (b) [U.S. law] provides
that, with some exceptions, the all-others rate in an investigation is to be calculated excluding
any margins that are zero, de minimis or based entirely on facts available, and (c) the
[Statement of Administrative Action] states that with respect to the calculation of the
all-others rate in such cases, 'the expected method will be to weight-average the zero and de
minimis margins and margins determined pursuant to the facts available, provided that volume
data is available. However, if this method is not feasible, or if it results in an average that
would not be reasonably reflective of potential dumping margins for non-investigated
exporters or producers, Commerce may use other reasonable methods.''
254 Final Determination in the Second Administrative Review, pp. 52274-52275, and Issues and
Decision Memo, pp. 18-20, Exhibit Viet Nam-15.

4.57 per cent "all others" rate applied in the original investigation and first administrative review. The
USDOC considered that this constituted "a reasona ble method which is reflective of the range of
commercial behaviour demonstrated by exporters of the subject merchandise during a very recent
period"255 and that "there is no reason to find that it is not reasonably reflective of potential dumping
margins for the non-selected companies". 256 However, where a separate rate respondent had received
an individual margin in a prior proceeding (e.g. as a selected respondent in the original investigation
or first administrative review), the USDOC applied that rate to the respondent. As a result, the
USDOC assigned the following rates: (i) a rate of zero to both Grobest and to Fish One as the
individual rate most recently calculated for each of these companies; (ii) a rate of 4.30 per cent to
Seaprodex, as the individual rate most recently calcu lated for that company; and (iii) a general "all
others" rate of 4.57 per cent to the other "separate rate" companies, which formed the vast majority of
non-selected respondents.
257
7.199 The USDOC calculated margins of dumping above de minimis for all three selected
companies in its preliminary determination in the th ird administrative review. As a result, in that
preliminary determination, the USDOC assigned to th ese companies an "all others" rate equal to the
weighted average of these margins, 4.26 per cent. 258 However, the USDOC revised these individual
margins in its final determination. As a result, all individual margins of dumping became de minimis.
The USDOC indicated that it "must, again, look to other reasonable means to assign separate rate
margins to non-reviewed companies eligible for a separate rate in th is review" and determined, like in
the second administrative review, that "a reasonable method" was to assign to non-selected companies
the most recent rate calculated for them, i.e., the 4. 57 per cent "all other" rate initially applied in the
original investigation. As in the second admi nistrative review, however, the USDOC also applied
"individual" rates to companies for which it had prev iously determined an individual margin. As a
result, it applied a rate of zero to both Grobest and Fish One, and a rate of 4.30 per cent to
Seaprodex.259
7.200 Viet Nam's claims pertain to the 4.57 per cent "all others" rate applied by the USDOC to most
non-selected respondents in both reviews. Viet Nam requests that we find that:
(a) The use of margins of dumping determined using the zeroing methodology to
calculate the all others ("separate") rate in the second and third administrative reviews
is, as applied, inconsistent with Articles 9. 4, 9.3, 2.4.2 and 2.4 of the Anti-Dumping
Agreement.260
(b) The application of an all others ("separate") rate that fails to consider the results of
the individually-investigated respondents in the contemporaneous proceeding and
produces an anti-dumping duty prejudicial to companies not selected for individual
investigation is, as applied in the sec ond and third administrative reviews,
inconsistent with Articles 9.4, 17.6(i), and 2.4 of the Anti-Dumping Agreement.
261
7.201 The United States asks us to reject Viet Nam's claims.

255 Final Determination in the Second Administrative Review, p. 52275, Exhibit Viet Nam-15; see also
Issues and Decision Memo in the Second Administrative Review, p. 19, also Exhibit Viet Nam-15.
256 Issues and Decision Memo in the Second Administrative Review, p. 19, Exhibit Viet Nam-15.
257 See Final Determination in the Second Administrative Review, pp. 52274-52275, and Issues and
Decision Memo, pp. 19-20. Exhibit Viet Nam-15.
258 Preliminary Determination in the Third Administrative Review, Exhibit Viet Nam-18,
pp. 10016-10017.
259 See Final Determination in the Third Administrative Review, Exhibit Viet Nam-19,
pp. 47195-47196.
260 Viet Nam's second written submission, para. 144(3).
261 Viet Nam's second written submission, para. 144(4).

7.202 Thus, Viet Nam challenges the "all others" rate applied in the second and third administrative
reviews on two grounds – the USDOC's reliance on dumping margins calculated with zeroing and its
reliance on dumping margins calculated in a prior pr oceeding, where all individual margins in the
current proceeding are zero or de minimis – and under five distinct provisions of the Anti-Dumping
Agreement, Articles 9.4, 9.3, 2.4.2, 2.4 and 17.6(i).
7.203 We first examine Viet Nam's claims under Artic le 9.4, before addressing Viet Nam's claims
under the other provisions it cites. In addressing Viet Nam's claims under Article 9.4, we first focus
on Viet Nam's argument that the USDOC impermissibly, under that provision, relied on dumping
margins calculated with the use of zeroing.
2. Whether the USDOC's reliance on dumping margins calculated with zeroing in
establishing the "all others" rate applied in the second and third administrative reviews
is inconsistent with Article 9.4 of the Anti-Dumping Agreement
(a) Main arguments of the parties
(i) Viet Nam
7.204 Viet Nam asserts that the USDOC used "mode l zeroing" under the weighted-average-to-
weighted-average comparison methodology to calcu late the dumping margins of selected respondents
in the original investigation.
262 Viet Nam argues that, as the Appellate Body has repeatedly found,
and as the United States has conceded in other disputes, the USDOC's model zeroing methodology
does not produce a dumping margin for the product as a whole and as a result is inconsistent with
Article 2.4.2. 263 In its first written submission, Viet Nam argues that Article 9.4 requires that
dumping margins calculated in a manner consistent with Article 2 serve as the basis for the
administering authority's calculation of the "all others" rate. 264 In its second written submission,
Viet Nam further argues that as a result of its u se of the model zeroing methodology, the USDOC's
original investigation produced margins of dumpi ng for the selected respondents in excess of these
respondents' margins of dumping, as properly calculate d. Viet Nam argues that an "all others" rate
based on zeroing necessarily overstates the margin of dumping as properly calculated under Article 2
and therefore by definition exceeds the (properly cal culated) weighted average margin of dumping for
mandatory respondents, and therefore violates the requirements of Article 9.4.265
7.205 Viet Nam responds to the argument of the United States that the Panel should not consider the
actions of the USDOC in the original investiga tion because it was completed prior to Viet Nam's
accession to the WTO. Viet Nam clarifies that it is not requesting the Panel to make findings in
respect of the USDOC's determinations in the original investigation.
266 Viet Nam argues that the final
results of the original investigation remain releva nt only because of the actions taken by the USDOC
in subsequent proceedings. Vi et Nam also submits that under the reasoning advocated by the
United States, the USDOC could continue to apply i ndefinitely WTO-inconsistent determinations, so
long as the determinations remained unchanged sin ce Viet Nam's accession to the WTO. Viet Nam
also submits that the United States' citation to US – DRAMS is incongruent with the facts of the
present dispute, where, in the second and third admi nistrative reviews, the USDOC fully investigated
the issue of the "all others" rate, and issued separat e new determinations in this respect, distinct from
those made in the original investigation. Viet Nam notes that by contrast, in US – DRAMS, the scope

262 Viet Nam's first written submission, paras. 40-46, 141-143, 208-215.
263 Viet Nam's first written submission, paras. 12 0, 129-139; Viet Nam's second written submission
paras. 52-53.
264 Viet Nam's first written submission, para. 209.
265 Viet Nam's second written submission, paras. 50-54 and 60-62.
266 Viet Nam's response to the United States' request for preliminary rulings, para. 3.

determination was never re-examined after the origin al investigation and was passively re-applied in
subsequent stages of the proceeding.267
(ii) United States
7.206 The United States argues that the "all others" ra tes imposed by the USDOC in the second and
third administrative reviews could not be found to be inconsistent with Ar ticle 9.4. This, the
United States contends, is because Article 9.4 does not prescribe any methodology for assigning a rate
to non-selected companies, and neither Article 9.4 nor any other provision of the Anti-Dumping
Agreement specify the maximum rate in a situation where all the dumping margins calculated for
selected companies fall into the th ree categories to be disregarded. The United States considers that
the Appellate Body erred when, in US – Zeroing (EC) (Article 21.5 – EC) , it reversed the finding of
the panel that Article 9.4 imposes no obligation rega rding the maximum "all others" rate that may be
applied in such a situation. Th e United States further notes that th e Appellate Body in that dispute
provided no indication as to what specific methodologies could be used or what legal standard would
apply in assessing the consistency of an investiga ting authority's actions with Article 9.4 in a lacuna
situation.268
7.207 The United States further argues that Article 9.4 of the Anti-Dumping Agreement does not
prohibit zeroing and that even if the challenged me asures were found to be in consistent with other
provisions of the Agreement, that would not mean th at, as a consequence, they are also inconsistent
with Article 9.4.269 The United States adds that Viet Nam's claims of violation are dependent on the
Panel finding that the "all others" rates applied in the second and third administrative reviews were
inconsistent with the covered agr eements when they were originally calculated. The United States
notes, however, that the WTO Agreement did not apply between the United States and Viet Nam at
the time of the original investigation, meaning that the "all others" rate calculated in the original
investigation could not be WTO-inconsistent at the time it was calculated. Moreover, the
United States argues that the Agreement does not a pply to the "all others" rates determined in the
second and third administrative reviews because in those reviews, the USDOC merely continued to
apply the rate determined in the original investiga tion, prior to the entry into force of the Agreement
for Viet Nam. The United States relies for this argument on the findings of the panel in US –
DRAMS. The US – DRAMS panel found that pursuant to Artic le 18.3, the Anti-Dumping Agreement
only applies to those parts of a pre-WTO measur e that are included in the scope of a post-WTO
review. The United States asserts that the USDOC made no dumping margin calculations in the
second and third administrative reviews in order to determine the "all others" rate, and did not
recalculate or otherwise re-examine the "all others" ra te applied in the original investigation. As a
result, the United States argues, USDOC also did not use zeroing during these reviews and cannot be
found to have acted inconsistently with the U.S. obligations under the Anti-Dumping Agreement.
270

267 Viet Nam's second written submission para. 62; Viet Nam's response to Panel question 18.
268 United States' first written submission, paras. 176-184, 187; United States' opening oral statement
at the first meeting of the Panel, paras. 49-51; United States' opening oral statemen t at the second meeting of
the Panel, paras. 31-33; United States' response to Panel questions 20 and 21.
269 United States' opening oral statement at the second meeting of the Panel, para. 32.
270 United States' first written submission, paras. 99-103 and 168-175; United States' opening oral
statement at the first meeting of the Panel, paras. 6-10, 54-58; United States' second written submission,
paras. 21-48 and 63-76 and 83-89; United States' opening oral statement at the second meeting of the Panel,
paras. 31-50, and 65-66. The United States cites to the Panel Report on US – DRAMS, paras. 6.14, 6.16.

(b) Main arguments of the third parties
(i) European Union
7.208 The European Union rejects the United States' suggestion that the reasoning of the panel in
US – DRAMS applies in the present case. The European Union explains that the issue before the
Panel in the present dispute concerns the use of the "all others" rate in actions taken by the
United States after Viet Nam's accession, not whether those "all others " rates continue after
Viet Nam's accession. The European Union argues th at if the Panel concludes that the USDOC used
zeroing when determining the dumping margins in th e original investigation, the use of those
dumping margins and the application of the "all ot hers" rates from the original investigation in
subsequent determinations amount to a new and separate measure which is subject to the present
panel proceedings.271
(ii) India
7.209 India considers that the second and third admi nistrative reviews are measures in their own
right, distinct from the original investigation, and that the findings of the US – DRAMS panel can be
distinguished from the facts and circumstances of the present dispute. India agrees with Viet Nam
that an "all others" rate calculated by using WT O-inconsistent "model zeroing" in the original
investigation violates Article 9.4 of the Anti-Du mping Agreement. For this reason, Viet Nam
considers the "all others rate" applied in the second and third administrative reviews is inconsistent
with Article 9.4.272
(iii) Japan
7.210 Japan submits that the "all others" rate must always – even in a lacuna situation – be based on
WTO-consistent margins of dumping. Japan consider s that this conclusion follows from the text of
Article 9.4, and that the term "m argins of dumping" in Article 9.4 refers to margins of dumping that
are WTO-consistent at the time when they are used to calculate the "all others" rate. In Japan's view,
it is the determination of the "all others" rate in the second and third administrative reviews that is
rendered WTO-inconsistent, not the determinations of the dumping margins in the original
investigation. For this reason, Japan rejects the U.S. argument that the "all others" rates applied in the
second and third administrative reviews are shielded from review because they are based on margins
that were calculated in the original investigation.273
(iv) Mexico
7.211 Mexico considers that the "all others" rates determined by the USDOC in the second and third
administrative reviews are distinct determinati ons from the rates determined in the original
investigation and are properly subject to review by the Panel. Mexico submits that the reasoning of
the US – DRAMS panel does not apply in the present disput e. Mexico reasons that unlike the product
scope in an anti-dumping proceeding, which is determ ined only once in the original investigation, the
"all others" rate changes in each administrative review. Thus, Mexico submits that the "all others"
rates applied in the two reviews at issue are subj ect to the disciplines of the Agreement, and the

271 European Union's third-party written submission, paras. 179-180; European Union's response to
Panel questions 5-6.
272 India's third-party oral statement, paras. 9-10, 13-16; India's response to Panel question 6.
273 Japan's third-party written submission, paras. 70-79; Japan's third-party oral statement, para. 3;
Japan response to Panel question 7.

United States may not rely on dumping margins established in a WTO-inconsistent manner,
irrespective of the fact that the margins were established in the original investigation.274
(c) Evaluation by the Panel
7.212 We first consider Viet Nam's argument that re liance by an investigating authority on margins
of dumping calculated with zeroing in the determination of an "all others" rate is inconsistent with the
disciplines of Article 9.4, irrespective of the fact that all the margins determined for selected exporters
are zero, de minimis, or based on facts available.275
7.213 We find guidance in the WTO jurisprudence with r espect to sunset reviews. In particular, we
note the findings of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review , in which
the Appellate Body found that should investigati ng authorities choose to rely upon dumping margins
in making a likelihood-of-dumping determina tion under Article 11.3 of the Anti-Dumping
Agreement, the margins of dumping relied upon must be ones that were calculated consistently with
Article 2 of the Agreement. 276 The Appellate Body added that "[w]e see no other provisions in the
Anti-Dumping Agreement according to which Members may calculate dumping margins". 277 We read
these statements of the Appellate Body as standing fo r a more general proposition that any "margin of
dumping" calculated or relied upon by an investigati ng authority in the context of the application of
the disciplines of the Agreement must be calculate d consistently with Article 2 and its various
paragraphs. Of relevance to this question, we further note that the Appellate Body has repeatedly held
that the definition of the phrase "margin of dumping" under Article 2.1 applies to the entire
Agreement.278 Accordingly, we consider that any individual margin of dumping which the
investigating authority relies upon in determining th e maximum allowable "all others" rate must of
necessity have been calculated in confor mity with the provisions of Article 2. 279, 280 This is true
irrespective of whether or not all individual margins are zero, de minimis or based on facts available.
7.214 We observe that this conclusion is consistent with the statemen ts of the Appellate Body in
US – Zeroing (EC) (Article 21.5 – EC) , in which it commented on the disciplines that apply under
Article 9.4 in a lacuna situation. The panel in that case had found that, in a lacuna situation,

274 Mexico's third-party written submission, paras. 39-42; Mexico's response to Panel question 6.
275 We note that neither party questions the applicability of Article 9.4 of the Anti-Dumping Agreement
in the context of periodic reviews. Accordingly, our findings below proceed on the assumption that Article 9.4
governs the imposition of "all others" rates in the context of U.S. administrative reviews.
276 Appellate Body Report , US – Corrosion-Resistant Steel Sunset Review , para. 127, cited with
approval in Appellate Body Report, US – Zeroing (Japan) , para. 183, Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), para. 390.
277 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 127.
278 We refer to our summary of the Appellate Body's jurisprudence on this issue, supra para. 7.136.
279 While authorities have the right to apply "all others" rates that are less than the maximum allowable
amount, few authorities do so in practi ce (outside of the context of the le sser-duty rule). For this reason,
investigating authorities generally do not make separate determinations of (i) the maximum allowable rate, and
(ii) the rate that will actually be applied. Instead, auth orities generally simply determine the "all others" rate to
be applied. In our view, a determination of the maximum allowable "all others" rate is always implicit in such a
determination, since the "all others" rate applied by the authority must necessarily be equal to or below the
maximum allowable "all others" rate. In other words, an authority that determines an "all others" rate of x per
cent implicitly determines that the maximum allowable "all others" rate is at least x per cent.
280 We also see confirmation for our interpretation of Article 9.4 in the Appellate Body's interpretation
of Article 9.3, of which Article 9.4 is an exception. The Appellate Body has found that the margin of dumping
established for an exporter in accordance with Article 2 operates as a ceiling for the total amount of
anti-dumping duties that can be levied on the entries of the subject merchandise from that exporter. See, e.g.
Appellate Body Report, US – Zeroing (EC) , para. 130; Appellate Body Report, US – Zeroing (Japan) ,
paras. 155-156; Appellate Body Report, US – Stainless Steel (Mexico), para. 96; Appellate Body Report, US –
Continued Zeroing, paras. 286, 314 (discussed, supra, para. 7.137).

"Article 9.4 simply imposes no prohibition, as no ceiling can be calculated" and that, as a
consequence, "there would be no legal basis for a pa nel to conclude that the 'all others' rate actually
established is inconsistent with Article 9.4". 281 The Appellate Body disagreed. The Appellate Body
indicated that, notwithstanding the lacuna, Article 9.4 nevertheless imposes certain residual
disciplines. In particular, the Appellate Body found that:
"[T]he fact that all margins of dumping for the investigated exporters fall within one
of the categories that Article 9.4 directs investigating authorities to disregard, for
purposes of that paragraph, does not imply that the investigating authorities'
discretion to apply duties on non-investigat ed exporters is unbounded. The lacuna
that the Appellate Body recognized to ex ist in Article 9.4 is one of a specific method.
Thus, the absence of guidance in Article 9.4 on what particular methodology to
follow does not imply an absence of any oblig ation with respect to the "all others"
rate applicable to non-investigated expor ters where all margins of dumping for the
investigated exporters are either zero, de minimis, or based on facts available."
282
7.215 Although the Appellate Body did not elaborate on the nature of the boundaries that might
apply to the investigating authority's discretion in the lacuna situation 283, we note the Appellate
Body's view that some form of boundary neverthel ess applies. We interpret the Appellate Body's
statement in US – Zeroing (EC) (Article 21.5 – EC) to mean that if an investigating authority limits its
investigation and applies an "all others" rate to non-selected exporters, its discretion in doing so is not
unlimited. In our view, one limitation under Article 9.4 is that the margins of dumping which are
used to establish the maximum allowable "all others" rate must be ones which, at the time the "all
others" rate is applied, conform to the disciplines of the Agreement.
7.216 In the present dispute, Viet Nam alleges th at the USDOC relied upon margins of dumping
calculated with the use of zeroing in determining the "all others" rate applied in each of the measures
at issue. We recall that the Appellate Body has consistently found that the use of zeroing renders
"margins of dumping" inconsistent with Article 2 of the Anti-Dumping Agreement. Specifically, the
Appellate Body has found that "model zeroing", as it was applied by the USDOC, is inconsistent with
Article 2.4.2 of the Anti-Dumping Agreement. 284 Significantly in our view, the United States has not
taken issue with Viet Nam's argument that zeroing is inconsistent with that provision. We also recall
our earlier findings that the application of simple zer oing in a periodic review renders the comparison
inconsistent with the first sentence of Article 2.4. 285 For the same reasons, we are of the view that the
use of "model zeroing" in the context of an origin al investigation would be inconsistent with that
same provision.286
7.217 Based on the foregoing considerations, we consid er that an investigating authority that
determines the maximum allowable "all others" rate on the basis of dumping margins calculated with
the use of zeroing acts inconsistently with Article 9.4. We now examine Viet Nam's factual allegation

281 Panel Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 8.283. (emphasis original, footnote
omitted)
282 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 453. (emphasis original)
283 In US – Zeroing (EC) (Article 21.5 – EC), the Appellate Body considered that as the parties had not
suggested specific alternative methodologies to calculate the maximum allowable "all others" rate, and that as
the measures at issue were no longer in effect, it did not need to make findings concerning the
European Communities' claim under Article 9.4.
284 See, e.g. Appellate Body Report, US – Softwood Lumber V, para. 102.
285 See supra, paras. 7.93-7.97.
286 In addition, we note that the findings of the Appellate Body in US – Softwood Lumber V
(Article 21.5 – Canada) , on which we rely in our findings under Article 2.4, pertained to the use of zeroing
under the transaction-to-transaction methodology in original investigations.

that the USDOC, in the administrative reviews at issue, imposed an "all others" rate determined on the
basis of dumping margins calculated using "model zeroing".
7.218 Before doing so, however, we note the United States' argument that, as a result of Article 18.3
of the Anti-Dumping Agreement 287, the "all others" rates applied in the second and third
administrative reviews are not subject to the di sciplines of the Agreement because they were
calculated in the original investigation, which was initiated and completed prior to Viet Nam's
accession to the WTO. The United States contends th at these "all others" rates do not become subject
to the Anti-Dumping Agreement merely because they continued to be applied on or after the date of
entry into force of the WTO Agreement for Viet Nam.
7.219 We note, first, that despite some ambiguity in the formulation of its claims and arguments,
Viet Nam has clarified that it is not requesting us to make any findings in respect of the rates
determined by the USDOC in the original investigati on. Rather, Viet Nam explains that it is seeking
findings only with respect to the USDOC's final de terminations in the second and third administrative
reviews.
288 It is not in dispute that the USDOC's de terminations in these two administrative reviews
are subject to the disciplines of the Anti-Dumping Agreement.
7.220 The United States argues that, because the "all others" rate was never recalculated, the
USDOC never revisited its decision to apply that all others rate. According to the United States, the
USDOC merely continued to apply the "all others" rate initially applie d in the original investigation
during the second and third administrative reviews. The United States relies, in particular, on the
findings of the panel in US – DRAMS . That panel, applying Article 18.3 to the facts before it,
considered that the scope of application of the Agreement was determined by the scope of post-WTO
reviews, such that the Agreement only applied to those parts of a pre-WTO measure that were covered
by a post-WTO review. According to the United States, because the USDOC merely continued to
apply the "all others" rate from the original investigation, which pre-dated Viet Nam's accession to the
WTO, in the period following Viet Nam's accession to the WTO, the "all others" rate is not subject to
WTO review.
7.221 We are unable to accept the United States' argument which, in our view, is not supported by
the findings of the panel in US – DRAMS. In US – DRAMS , the determination at issue – that of the
product coverage of the Anti-Dumping measures at issue – was determined once, before the entry into
force of the WTO Agreement, and never subsequently reconsidered. By contrast, the evidence before
us shows that the USDOC made a new and distinct "all others" rate determination in each of the
administrative reviews which are before us. We note in particular that, in its preliminary
determination in the second administrativ e review, the USDOC initially applied a de minimis
"all others" rate that reflected the weighted aver age of the selected respondents' dumping margins.
The USDOC then invited interested parties to co mment on the methodology that it should apply in its
final determination and, on the basis of those comme nts, eventually decided to apply the "all others"
rate calculated and applied in the original investigation. 289 These facts squarely contradict the
suggestion by the United States that the USDOC merely continued to apply the "all others" rate from
the original investigation in the two reviews at issu e. On the contrary, they show that in the second
administrative review the USDOC actively considered and analysed the question of which "all others"
rate to apply and, on the basis of the specific margins calculated in that review, made a new

287 Article 18.3 provides, in relevant part, that the provisions of the Anti-Dumping Agreement "shall
apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been
made on or after the date of entry into force for a Member of the WTO Agreement."
288 See supra, section VII.C.
289 Preliminary Determination in the Second Admini strative Review, Exhibit Viet Nam-14; and Final
Determination and Issues and Decision Memorandum in the Second Administrative Review, Exhibit
Viet Nam-15, discussed supra paras. 7.197-7.198.

determination in which it decided to apply the sa me "all others" rate whic h it had applied in the
original investigation. The mere fact that the "a ll others" rate ultimately applied was not recalculated
does not change the extent of the analysis inherent in the USDOC's new determination to continue to
apply that rate. In the third administrative revi ew, the USDOC preliminary determined an "all others"
rate of 4.26 per cent. 290 Only when the margins of examined exporters were revised in the final
determination did a " lacuna situation" present itself, in response to which the USDOC decided to
apply the "all others" rate from the original inves tigation. Again, this shows that in the third
administrative review, the USDOC gave full and rene wed consideration to the question of the "all
others" rates to be applied.
7.222 In sum, the evidence before us shows that th e "all others" rates applied in each of the
administrative reviews at issue were subject to fu ll consideration by the USDOC in each case. The
"all others rate" applied by the USDOC in each inst ance was a direct result of the margins calculated
by the USDOC in that review. It is only because the USDOC dete rmined that all such margins could
not relied upon that the USDOC decided to apply the same "all others" rate as had been applied in the
original investigation. Accordingly, the United States' citation to the findings of the panel in US –
DRAMs is inapposite.
7.223 For these reasons, we reject the United States' argument that the "all others" rates applied by
the USDOC in the second and third administrative re view are shielded from challenge under the Anti-
Dumping Agreement by virtue of Article 18.3.
7.224 Turning to the substance of Viet Nam's claim, we recall that the "all others" rate of 4.57 per
cent initially applied by the USDOC in the original investigation, and later applied again in the
administrative reviews at issue, was the weighted av erage of the individual margins calculated for the
three selected respondents in that investigation. 291 Viet Nam argues that the USDOC had, in the
original investigation, applied "model zeroing" in calculating these margins of dumping. 292 Viet Nam
supports this allegation with evidence similar to that which it provided in support of its claim that the
USDOC applied "simple zeroing" in the calcula tion of individual margins in the second and third
administrative reviews: Viet Nam provides th e Panel with the USDOC's programming logs and
computer programme outputs with respect to Mi nh Phu and Camimex, two Vietnamese respondents
selected for individual examination in the investigation. 293 Viet Nam also again relies on the Ferrier
affidavit, which describes how the computer pr ogramme used by the USDOC in the original
investigation implemented the US DOC's model zeroing methodology. 294 The affidavit identifies
certain lines of computer code in the "logs" that implement the instruction to disregard negative
comparison results in the calculation of the total anti-dumping duties of the selected respondents. The
affidavit also refers to the "outputs", which corr oborate this removal by the computer programme of
any comparison result of zero or below.

290 Preliminary Determination in the Third Administrative Review, Exhibit Viet Nam-18; and Final
Determination in the Third Administrative Review, Exhibit Viet Nam-19, discussed supra, para. 7.199.
291 Final Determination in the Original Investigation, p. 71009 and Issues and Decision Memorandum,
pp. 28-29, Exhibit Viet Nam-06; Amended Final Dete rmination in the Original Investigation, Exhibit
Viet Nam-07, pp. 5153-5154.
292 Viet Nam's first written submission, paras. 29-32; Viet Nam's second written submission, para. 58.
See supra, para. 7.15 for Viet Nam's description of the U.S. "model zeroing" methodology.
293 Viet Nam's first written submi ssion, para. 45, referring to USDOC Computer Programme Log for
Minh Phu in the Original Investigation, Exhibit Viet Nam-34; USDOC Computer Programme Log for
Camimex in the Original Investigation, Exhibit Viet Nam-35; Computer Programme Output for Minh Phu in
the Original Investigation, Exhibit Viet Nam-42; Computer Programme Output for Camimex in the Original
Investigation, Exhibit Viet Nam-43.
294 Ferrier affidavit, Exhibit Viet Nam-33, paras. 11-26. This is the same affidavit discussed
supra,para. 7.78.

7.225 Finally, Viet Nam also refers us to the I ssues and Decision Memorandum published with the
final results of the original investigation, in which the USDOC indicates that, in calculating the
margins of dumping of individually investigated exporters:
"[W]e made model-specific comparisons of weighted average export prices with
weighted-average normal values of compar able merchandise. ... We then combined
the dumping margins found based upon these comparisons, without permitting
non-dumped comparisons to reduce the dumping margins found on distinct models of
subject merchandise, in order to calculate the weighted-average dumping margin".295
7.226 The United States neither seeks to rebut Viet Nam's assertion that the USDOC applied model
zeroing in the original investigation, nor provi des any evidence contradicting the evidence put
forward by Viet Nam. In th ese circumstances, we are satisfi ed that the evidence submitted by
Viet Nam establishes that the USDOC: (i) applie d model zeroing when calculating the margins of
dumping for selected respondents in the original i nvestigation, and (ii) in the second and third
administrative reviews, determined the maximum a llowable "all others" rate on the basis of these
margins of dumping, which had been calculated with zeroing in the original investigation. In doing
so the USDOC implicitly determined that the maxi mum allowable "all others" rate could be based on
dumping margins calculated with zeroing.
7.227 Since, in the second and third administrative revi ews, the USDOC applied an "all others" rate
(and therefore implicitly also a maximum allowabl e "all others" rate) on the basis of margins of
dumping that had been calculated with zeroing in the original investigation, we find that the USDOC
acted inconsistently with Article 9.4 of the Anti-Dumping Agreement in these reviews.
296
3. Viet Nam's argument with respect to th e USDOC's reliance on margins of dumping
from a prior proceeding and Viet Nam's claims under Articles 2.4, 2.4.2, 9.3, 17.6(i) of
the Anti-Dumping Agreement
7.228 We recall Viet Nam's second argument under Ar ticle 9.4, namely that the USDOC acted
inconsistently with the United States' obligations under that provision because it imposed, in the
second and third administrative reviews, an "all othe rs" rate determined on the basis of margins of
dumping that had been calculated in a prior proceeding, which "all others" rate was prejudicial to
non-selected respondents. Moreover, we recall that in addition to its claims under Article 9.4,
Viet Nam makes claims of viola tion under Articles 9.3, 2.4.2, 2.4 and 17.6(i) of the Anti-Dumping
Agreement.
297

295 Issues and Decision Memorandum in the Original Investigation, Exhibit Viet Nam-06, p. 12, cited
by Viet Nam in its first written submission, para. 43 and in its second written submission, para. 57. We note
that the evidence submitted by Viet Na m shows that subsequent to the origin al investigation in this proceeding,
the USDOC altered its anti-dumping methodology in orig inal investigations: The USDOC announced, in a
notice published on 27 December 2006 that going forward, it would "no longer make average-to-average
comparisons in investigations without prov iding offsets for non-dumped comparisons." ( Antidumping
Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation;
Final Modification , 27 December 2006, Exhibit Viet Nam-66, cited in Viet Nam's first written submission,
para. 34)
296 Our findings concern the USDOC's reliance on dumping margins calculated not in accordance with
Article 2 of the Anti-Dumping Agreement to establish the "all others" rate applied in each of the administrative
reviews here at issue. We are not, however, making any findings with respect to the consistency, with the U.S.
obligations under the Anti-Dumping Agreement, of the USDOC's actions and determinations in the original
investigation. Nor should our findings be read as sugge sting that those actions and determinations were subject
to the disciplines of the Anti-Dumping Agreement.
297 See, supra para. 7.200.

7.229 We are of the view that our findings above that the United States acted inconsistently with its
obligations under Article 9.4 of the Anti-Dumping Agreement suffice to resolve the dispute between
the parties with respect to the measures at issue. In our view, making additional findings under the
same provision or making findings under other provisions of the Anti-Dumping Agreement would not
contribute to the resolution of the dispute betw een the parties or assist in any potential
implementation. For these reasons, we do not consid er Viet Nam's argument that the United States
acted inconsistently with Article 9.4 by virtue of the USDOC's application of an "all others" rate "that
fails to consider the results of the individuall y-investigated respondents in the contemporaneous
proceeding and produces an antidumping duty prejudi cial to companies not selected for individual
investigation", and we exercise judicial economy in respect of Viet Nam's claims under Articles 9.3,
2.4.2, and 2.4 of the Anti-Dumping Agreement.
7.230 With respect to Article 17.6(i), as the United States notes 298, Viet Nam's panel request makes
no reference to this provision. For this reason, we consider that Viet Nam's claim of violation of
Article 17.6(i) of the Anti-Dumping Agreement is not within our terms of reference.
G. VIET NAM'S CLAIMS CONCERNING THE RATE ASSIGNED TO THE VIETNAM-WIDE ENTITY
7.231 Viet Nam challenges the rate assigned to the Vietnam-wide entity in the second and third
administrative reviews. Viet Nam's claims concern (i) the USDOC's failure to assign to the
Vietnam-wide entity an "all others" rate, and (ii) th e assignment instead to the Vietnam-wide entity of
a rate based on facts available. Viet Nam's claims are based on Articles 6.8, 9.4, 17.6(i), and
Annex II, of the Anti-Dumping Agreement.
7.232 The United States asks us to reject Viet Nam's claims.
1. Introduction
7.233 Before addressing Viet Nam's claims, we first set out the relevant facts in light of which the
issues raised by Viet Nam's claims must be examined.
7.234 We recall that, in the two reviews at issue, th e USDOC limited its examination in the manner
provided for in the second sentence of Article 6. 10 of the Anti-Dumping Agreement, because of the
large number of firms involved.
299 The second sentence of Article 6.10 provides:
"In cases where the number of exporters, produ cers, importers or types of products
involved is so large as to make such a determination impracticable, the authorities
may limit their examination either to a reasonable number of interested parties or
products by using samples which are statis tically valid on the basis of information
available to the authorities at the time of the selection, or to the largest percentage of
the volume of the exports from the country in question which can reasonably be
investigated."
7.235 Thus, while the second sentence of Article 6.10 a llows authorities to limit the scope of their
examination, that provision also ensures that, in cases where authorities do so, a minimum number of
exporters or producers (or "respondents") ar e nevertheless examined individually. 300 Whereas the
maximum anti-dumping rate to be applied to selected exporters is determined by their individual
margins of dumping (in accordance with Article 9.3 of the Anti-Dumping Agreement), the question

298 United States' second written submission, para. 75.
299 See, supra para. 7.147.
300 We refer to those respondents selected for indivi dual examination as "selected" respondents. We
refer to those respondents not selected for individual examination as "non-selected" respondents.

arises as to the maximum allowable amount of any "all others" rate assigned to non-selected
exporters. This issue is addressed by the relevant part of Article 9.4 in the following terms:
"When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
(i) the weighted average margin of dumping established with respect to
the selected exporters or producers,
…
provided that the authorities shall disregard for the purpose of this paragraph any zero
and de minimis margins and margins established under the circumstances referred to
in paragraph 8 of Article 6. …"
7.236 As noted above, the USDOC limited its examin ations in the second and third administrative
reviews in the manner envisaged by the second se ntence of Article 6.10. Having done so, the
USDOC was therefore required to select a minimum number of respondents for individual
examination.
7.237 We recall that the USDOC treat ed Viet Nam as a non-market economy. As a result, the
USDOC applied a rebuttable presumption that all sh rimp exporting companies are controlled by the
Government of Viet Nam, such that they may be treated as operating units of a single, government-
controlled, Vietnam-wide entity, rather than i ndividual exporters in their own right. Exporting
companies that could establish their eligibility for a separate rate, on the basis of their independence
from government control, were either selected for individual examination, or assigned the "all others"
rate (we refer to these companies as "separate ra te" companies). All remaining exporting companies
(which we refer to as "non-separate rate" compani es) were subject to the rate assigned to the
Vietnam-wide entity. In other words, the "all others" rate was only assigned to separate rate
respondents, excluding therefore the Vietnam-wide entit y and its constituent parts. In this regard, the
USDOC's notice of initiation of the second administrative review stated that "[o]nly those respondents
with separate rate status will be included in the group receiving the weighted-average margin
calculated from the selected respondents."
301
7.238 In the second administrative review, the USDOC selected two separate rate companies for
individual examination. The USDOC selected three separate rate companies for individual
examination in the third administrative review. The USDOC did not select any non-separate rate
companies for individual examination. The rates assigned to the selected (separate rate) respondents
were based on their individual margins of dumping (all of which were zero or de minimis). Other
separate rate respondents received an "all others " rate of 4.57 per cent. All non-separate rate
respondents received the Vietnam-wide entity rate, se t at 25.76 per cent on the basis of facts available
(i.e. the highest rate calculated in the petition that could be corroborated).302
7.239 We begin by examining Viet Nam's claim under Article 9.4 of the Anti-Dumping Agreement,
which concerns the USDOC's failure to assign an "all others" rate to the Vietnam-wide entity. After
reviewing the text of that provision, we consider the possible impact of the Working Party Report of
Viet Nam's Accession to the WTO. We also cons ider whether, because all the margins of dumping
for individually examined respondents in the sec ond and third administrative reviews were zero or
de minimis, the USDOC could be considered to have vi olated any obligations under Article 9.4 in

301 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17100.
302 United States' first written submission, para. 160.

those reviews. We subsequently examine whether the USDOC was entitled to assign a facts available
rate to the Vietnam-wide entity, instead of an "a ll others" rate, because of non-cooperation by certain
exporting companies treated as operating units of the Vietnam-wide entity.
7.240 We recall that the USDOC conducted limited examinations, as envisaged by the second
sentence of Article 6.10. It is for this reason that the issue of whether or not the USDOC should have
assigned an "all others" rate, i.e. a rate for non-selected respondents, to the Vietnam-wide entity
arises. It is also for this reason that issues regarding alleged non-coopera tion by respondents at the
sample selection stage arise.
2. The USDOC's failure to assign the "all others" rate to the Vietnam-wide entity, viewed
in light of Article 9.4 of the Anti-Dumping Agreement
(a) Main arguments of the parties
(i) Viet Nam
7.241 Viet Nam's basic argument is that Article 9.4 governs the rate that should be applied to all
companies not selected for individual examination, whether or not they are eligible for a separate rate.
Viet Nam's argument is based on the word "any" in the second line of Article 9.4. Viet Nam
interprets the use of this word to mean that Article 9.4 governs the assessment of anti-dumping duties
to "any" company not selected for indi vidual examination, without exception. 303 Viet Nam contends
that Article 9.4 is absolute, in the sense that , where an investigating authority has limited its
examination, it must calculate an anti-dumping duty for all companies not individually investigated,
irrespective of any question of their eligibility for a se parate rate, that is no greater than the weighted
average margin of dumping of the selected companies, excluding rates that are zero, de minimis, or
based on facts available.
(ii) United States
7.242 In response, the United States notes that, in the second and third administrative reviews, the
margins of dumping calculated for the two selected respondents were zero or de minimis . The
United States asserts that Article 9.4 does not provide for any maximum allowable "all others" rate in
such a lacuna situation.304 According to the United States, therefore, the USDOC could not be found
to have violated Article 9.4 in the second or third administrative reviews.
(b) Main arguments of the third parties
7.243 While some third parties expressed the view that the USDOC was entitled to treat separate
legal entities as part of the Vietnam-wide entity, pr ovided the structural and commercial relationship
between the State and exporting companies was properly examined, only China addressed whether or
not the USDOC was entitled not to have applied an "all others" rate to the Vietnam-wide entity.
China argues that the rate applied to the Vietnam-wi de entity is inconsistent with Article 9.4 because
non-investigated exporters should necessarily receive the "all others" rate. China argues that the
provisions of the Anti-Dumping Agreement never require non-selected companies to first demonstrate
that they should be assigned an "all-others" rate.305

303 Viet Nam's second written submission, para. 110; Viet Nam's response to Panel question 27,
para. 74.
304 The United States makes this argumen t, for example, at para. 78 of its opening oral statement at the
second meeting of the Panel.
305 China's third-party oral statement, pages 1-2.

(c) Evaluation by the Panel
7.244 As indicated above, we begin by considering the text of Article 9.4, which is set forth above.
(i) The text of Article 9.4
7.245 On its face, the text of Article 9.4 seems clear in requiring that, in the context of limited
examinations envisaged by the second sentence of Article 6.10, any rate assigned to non-selected
respondents should not exceed the maximum allowable amount provided for in that provision. This
suggests that any exporter not selected for indivi dual examination should be assigned an "all others"
rate that does not exceed that maximum allowable am ount. There is nothing in the text of Article 9.4
suggesting that authorities are entitled to render app lication of an "all others " rate conditional on the
fulfilment of some additional requirement.306
(ii) Article 9.4 in light of Viet Nam's Protocol of Accession and the Working Party Report
7.246 In its first written submission, the United States asserts that:
"During Vietnam's accession negotiations , Members expressed concern about the
influence of the Government of Vietnam on its economy and how such influence
could affect cost and price comparisons in antidumping duty proceedings.
Paragraph 254 of the Working Party Report reflects the concern among Members that
government influence may create special di fficulties in determining cost and price
comparability in the context of antidumpi ng and countervailing duty investigations,
and that a strict comparison with Vietnamese costs and prices might not always be
appropriate. Indeed, the Working Party Report indicates that a dumping comparison
using domestic costs and prices in Vietnam is not required for imports from Vietnam
unless and until investigated producers demonstrate that market conditions exist in
the industry producing the like product. In light of the Working Party Report and the
commitments made therein, Members are free to determine that, absent a
demonstration to the contrary by Vietnamese producers, government influence will
prevent market principles from functioning in the Vietnamese industry manufacturing
the product under investigation."
307
7.247 Initially, we had understood the United States to argue that, because government influence
over the Vietnam-wide entity prevented that entity from functioning on the basis of market principles,
the USDOC was allowed by the provisions of the Working Party Report on the Accession of
Viet Nam to the WTO ("Working Party Report") not to a pply an "all others" rate to that entity. At the
interim review, however, the United States clarifie d that, to the extent its argument relied on the
Working Party Report, it was only as confirmation of the permissibility of treating the Vietnam-wide
entity as a single exporter or producer. Accordingl y, the United States does not rely on the Working
Party Report to argue that the provisions thereof a llowed the USDOC not to apply an "all others" rate
to the Vietnam-wide entity. Nevertheless, as e xplained below, certain provisions of the Working
Party Report address the application of the Anti-Dumping Agreement in the context of anti-dumping

306 The additional requirement to which we refer concerns the separate rate criterion, whereby
application of an "all others" rate was made dependent on eligibility for separate rate status ("Only those
respondents with separate rate status will be include d in the group receiving the weighted-average margin
calculated from the selected respondents." (Notice of Initiation of the Second Administrative Review, Exhibit
Viet Nam-12, p. 17100)). For present purposes, we do no t consider it necessary to examine in greater detail the
substantive basis for the distinction made by the US DOC between separate rate and non-separate rate
respondents, including in particular the question of whether or not the USDOC was entitled to presume state
control of shrimp exporting companies absent their showing of separate rate status.
307 United States' first written submission, para. 146. (emphasis original)

proceedings involving imports from non-market economies. For this reason, it is appropriate for us to
consider the interpretation of Article 9.4 in light of the Working Party Report.
7.248 Viet Nam submits that there is nothing in Viet Nam's Protocol of Accession, including the
Working Party Report, that would provide for an alternative interpretation of Article 9.4 in the context
of imports from NME countries. Viet Nam contends that neither the Protocol of Accession nor the
Working Party Report provide any basis for di fferential treatment to a company because of
government ownership.308
7.249 We note that, in negotiating Viet Nam's accession to the WTO, some Members did identify
certain difficulties that might arise in anti-dumping proceedings involving imports from Viet Nam
because that country had not yet transitioned to a fu ll market economy. In this regard, we note that
paragraph 254 of the Working Party Report provides:
"Several Members noted that Viet Nam was continuing the process of transition
towards a full market economy. T hose Members noted that under those
circumstances, in the case of imports of Vietnamese origin into a WTO Member,
special difficulties could exist in determining cost and price comparability in the
context of anti-dumping investigations and countervailing duty investigations. Those
Members stated that in such cases, the importing WTO Member might find it
necessary to take into account the possibility that a strict comparison with domestic
costs and prices in Viet Nam might not always be appropriate."
309
7.250 Paragraph 255 of the Working Party Report explains that, in light of such difficulties:
"The representative of Viet Nam confirmed that, upon accession, the following would
apply − Article VI of the GATT 1994, the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping
Agreement") and the SCM Agreement shall apply in proceedings involving exports
from Viet Nam into a WTO Member consistent with the following:
(a) In determining price comparability under Article VI of the
GATT 1994 and the Anti-Dumping Agreement, the importing WTO
Member shall use either Vietnamese prices or costs for the industry
under investigation or a methodology that is not based on a strict
comparison with domestic prices or costs in Viet Nam based on the
following rules:
(i) If the producers under investigation can clearly show
that market economy conditions prevail in the industry
producing the like product with regard to the manufacture,
production and sale of that product, the importing WTO
Member shall use Vietnamese prices or costs for the industry
under investigation in determining price comparability;
(ii) The importing WTO Member may use a
methodology that is not based on a strict comparison with
domestic prices or costs in Viet Nam if the producers under
investigation cannot clearly show that market economy
conditions prevail in the industry producing the like product

308 Viet Nam's second written submission, para. 95.
309 Working Party Report, WT/ACC/VNM/48, para. 254.

with regard to manufacture, production and sale of that
product."310
7.251 Thus, because of difficulties resulting from the fa ct that Viet Nam was still continuing the
process of transition towards a full market economy , Members agreed that investigating authorities
need not necessarily calculate normal value on the basis of domestic prices in Viet Nam, as would
otherwise be required by Article 2 of the Anti-Du mping Agreement. However, we see nothing in
paragraphs 254 and 255 of the Working Party Report , or any other provision thereof, indicating that
the interpretation and/or application of any ot her provision of the Anti-Dumping Agreement,
including Article 9.4, should be modified to accommodate any special difficulties that might arise in a
proceeding involving imports from Viet Nam. In particular, there is nothing in the Working Party
Report indicating that an investigating authority is entitled to render application of an "all others" rate
subject to some additional require ment not provided for in Article 9.4. Furthermore, whereas sub-
paragraphs (i) and (ii) of paragr aph 255 allow an investigating aut hority to modify its investigation
depending on whether "producers under investigati on" can or cannot "clearly show that market
economy conditions prevail" in the relevant indust ry, the investigating authority may only do so in
respect of price comparability. Sub-paragraphs (i) and (ii) of paragraph 255 do not allow an
investigating authority to assign "all others" rates to non-selected respondents on the basis of whether
or not market conditions prevail. Accordingl y, the Working Party Report has no bearing on our
evaluation of Viet Nam's claim under Article 9.4 of the Anti-Dumping Agreement.
7.252 We next consider the United States' argum ent regarding the fact that a so-called lacuna
situation arose in the second and third administrative reviews.
(iii) The application of Article 9.4 in a lacuna situation
7.253 With regard to the United States' argument that the USDOC could not be found to have
violated Article 9.4 because that provision does not provide for any maximum allowable "all others"
rate in cases where the margins of a ll selected exporters are either zero, de minimis, or based on facts
available, the text of Article 9.4, interpreted in the light of Viet Nam's Protocol of Accession and the
accompanying Working Party Report, provides no lega l basis for the USDOC not to have applied an
"all others" rate to the Vietnam-wide entity. T hus, in those factual circumstances in which a
maximum allowable "all others" rate may be dete rmined pursuant to Article 9.4(i), there is no
question that an "all others" rate should have been applied to both selected and non-selected
respondents. The Panel acknowledges that where all margins calculated for individually examined
exporters/producers are zero or de minimis , or result from application of facts available, it is not
possible to determine the ceiling which the "all othe rs" rate shall not exceed. It does not follow,
however, from this lacuna that a Member is entitled to differentia te, in terms of the application of an
all others rate, between expor ters/producers that qualify for separate rate treatment and
exporters/producers that fail to qualify for such treat ment and are treated as part of the Vietnam-wide
entity. If such differentiation is not permissible in cases where Articles 9.4(i) permits the calculation
of the maximum allowable "all others" rate, it is unclear why such differentiation would be
permissible in lacuna situations.
311 The Panel recalls in this respect that the Appellate Body has

310 Working Party Report, WT/ACC/VNM/48, extract fr om para. 255. We note that, according to
para. 2 of Part I of the Protocol on the Accession of Viet Nam to the WTO (WT/ L/662), the commitments set
forth in para. 527 of the Working Party Report, which include para. 255 thereof, shall be an integral part of the
WTO Agreement. It is appropriate, therefore, that we read Article 9.4 of the Anti-Dumping Agreement in
conjunction with para. 255 of the Working Party Report.
311 Furthermore, we observe that the USDOC stated in its notice of initiation of the
second administrative review that "[o]nly those responden ts with separate rate status will be included in the
group receiving the weighted-average margin calculated fro m the selected respondents" (Notice of Initiation of
the Second Administrative Review, Exhibit Viet Nam-12, p. 17100). Even outside of a lacuna situation,
therefore, the USDOC still would not have applied an "all others" rate to the Vietnam-wide entity.

specifically rejected the argument that Article 9.4 imposes no obligations in lacuna situations.
Specifically, as we have noted above, in US – Zeroing (EC) (Article 21.5 – EC) the Appellate Body
found that:
"[T]he fact that all margins of dumping for the investigated exporters fall within one
of the categories that Article 9.4 directs investigating authorities to disregard, for
purposes of that paragraph, does not imply that the investigating authorities'
discretion to apply duties on non-inves tigated exporters is unbounded. The lacuna
that the Appellate Body recognized to ex ist in Article 9.4 is one of a specific method.
Thus, the absence of guidance in Article 9.4 on what particular methodology to
follow does not imply an absence of any oblig ation with respect to the "all others"
rate applicable to non-investigated expor ters where all margins of dumping for the
investigated exporters are either zero, de minimis, or based on facts available."312
7.254 We consider that our finding in response to th e abovementioned U.S. ar gument is consistent
with this finding by the Appellate Body. We note that the Appellate Body's finding does not concern
the scope of respondents that should be assigned an "all others" rate. In other words, it does not
suggest that the existence of the lacuna situation allows an investigating authority to not assign an "all
others" rate to "non-investigated exporters" that wo uld otherwise have been assigned such rate. The
Appellate Body's finding merely concerns the maxi mum allowable rate that may be assigned to the
non-selected respondents.
(iv) Summary
7.255 We have examined the text of Article 9.4, read in light of certain provisions of the Working
Party Report. We have also considered the fact th at, in the reviews at issu e, the margins of selected
respondents were zero or de minimis. Our analysis indicates that the USDOC's decision not to apply
an "all others" rate to the Vietnam-wide entity is inconsistent with Article 9.4 of the Anti-Dumping
Agreement.
7.256 We next consider the parties' arguments concerning Article 6.8 of the Anti-Dumping
Agreement, and the potential relevance of that provision to our analysis under Article 9.4.
3. The USDOC's treatment of the Vietnam-wide enti ty viewed in light of Article 6.8 of the
Anti-Dumping Agreement
(a) Main arguments of the parties
(i) Viet Nam
7.257 Viet Nam invokes Article 6.8 and Annex II as the basis for an affirmative claim against the
USDOC's decision to assign a facts available rate to the Vietnam-wide entity. Viet Nam claims that
the USDOC was not entitled to apply facts availabl e in the second and third administrative reviews,
because the USDOC failed to comply with the requirem ents of Article 6.8. In particular, Viet Nam
submits that respondents did not fail to provide info rmation that was "necessa ry" within the meaning
of Article 6.8. In addition, Viet Nam submits th at Article 6.8 only applies in respect of respondents
selected for individual examination, and therefore ha s no application in respect of the rate applied to
non-selected respondents.
7.258 Furthermore, Viet Nam submits that the USDOC 's attempt to bring its actions within the
ambit of Article 6.8 and paragraph 7 of Annex II of the Anti-Dumping Agreement by reliance on the

312 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 453. (emphasis original)

so-called quantity and value questionnaires is disinge nuous. According to Viet Nam, the application
of the Vietnam-wide rate had nothing to do with whether or not quantity and value information was
provided by certain respondents. Rather it ha d to do with whether individual entities had
demonstrated the absence of government control over their export activities. 313 Viet Nam therefore
denies that Article 6.8 could justify the non-applicati on of an "all others" rate to the Vietnam-wide
entity. According to Viet Nam, the obligations in Article 9.4 are absolute, and therefore independent
of the application of the Article 6.8 facts availa ble mechanism in respect of non-cooperation at the
sample selection stage.
(ii) United States
7.259 The United States denies that the USDOC fa iled to comply with the requirements of
Article 6.8. The United States also argues that, in cases of non-cooperation by respondents at the time
that the authority selects respondents for individual examination (in cases where the authority's
examination is limited under Article 6.10), the aut hority is entitled to apply a facts available rate,
rather than an "all others" rate, irrespective of th e requirements of Article 9.4. The United States
asserts that "[o]therwise, for example, if a company were aware that is was dumping at a high level
and it was one of the largest exporters to the Un ited States of subject merchandise, it would have no
incentive to respond to the quantity and value questi onnaire because it would receive a lower rate by
not cooperating".
314
(b) Evaluation by the Panel
7.260 We begin by addressing the parties' arguments regarding the interaction between Articles 6.8
and 9.4.
(i) Interaction between Articles 9.4 and 6.8
7.261 The USDOC found that 35 exporting companies had failed to respond to the USDOC's
"quantity and value" ("Q&V") ques tionnaire. According to the USDOC, that data was necessary in
order for the USDOC to determine which respondents to select for individual examination. The
United States contends that, as a result of such non-cooperation, the USDOC was entitled to apply a
facts available rate to the Vietnam-wide entity instead of an "all others" rate.
7.262 Article 6.8, which regulates the use of facts available, provides:
"In cases in which any interested party refuses access to, or otherwise does not
provide, necessary information within a reasonable period or significantly impedes
the investigation, preliminary and final de terminations, affirmative or negative, may
be made on the basis of the facts available. The provisions of Annex II shall be
observed in the application of this paragraph."
7.263 Regarding Viet Nam's argument that the Article 6.8 facts available mechanism does not apply
in respect of non-selected respondents, we note that the first sentence of Article 6.8 envisages the use
of facts available in cases of non-cooperation by "any" interested party. The reference to
non-cooperation by "any" interested party suggests that Article 6.8 is of broad application. There is
nothing in the text of Article 6.8 to suggest that the facts available mechanism only applies in respect
of non-cooperation by a limited categor y of interested parties. In particular, there is no indication in
the text to suggest that, in cases of limited examin ation (under Article 6.10), Article 6.8 only allows

313 Viet Nam's opening oral statement at the second meeting of the Panel, para. 34.
314 United States' first written submission, para. 160.

the use of facts available in respect of those inte rested parties that were selected for individual
examination, as alleged by Viet Nam.
7.264 We recall that the USDOC purported to find non-cooperation at the time it sought to select
respondents for individual examination. In principle, if a respondent fails to provide information that
the investigating authority needs to determine th e composition of the sample in cases of limited
examination, the authority is unable to establis h whether that respondent should be selected for
individual examination, or placed in the resi dual category of non-selected respondents and assigned
the all-others rate. In other words, the investiga ting authority would not be able to determine whether
or not the non-cooperating respondent should be sel ected or non-selected for the purpose of applying
Article 9.4. In these factual circumstances, we acknowledge that it would not necessarily be
unreasonable for an investigating authority to assign a facts available rate to those respondents that
failed to cooperate at the sample selection stage, provided the requirements of Article 6.8 are fulfilled.
7.265 We need not reach a firm conclusion on this issue, though, since we are not persuaded that the
reason the USDOC did not assign an "all others" rate to the Vietnam-wide entity was non-cooperation
by constituent parts of the Vietnam-wide entity at the sample selection stage. In this regard, we are
struck by the fact that, already in its notice of initiation of the second administrative review, the
USDOC had stated that "[o]nly those respondents with separate rate status will be included in the
group receiving the weighted-average margin calculated from the selected respondents." 315 T h i s
statement indicates that, even before any questionna ire had been issued, and before any issue of non-
cooperation could have arisen, the USDOC had already resolved not to apply an "all others" rate to
the Vietnam-wide entity. We conclude from this st atement that, even if the exporting companies had
cooperated fully with the USDOC, the Vietnam-wide entity still would not have been assigned an "all
others" rate.316 In these circumstances, we do not consider that there is any reasonable basis on which
the USDOC could subsequently refer to non-coop eration by non-separate rate respondents as the
reason for not having applied an "all others" rate to the Vietnam-wide entity.317
7.266 As a result, there is not strictly any need for us to examine whether or not the USDOC's
application of the Article 6.8 facts available mechanism met the requirements of that provision. We
shall address this issue, though, in case the Appe llate Body might disagree with our conclusion on
appeal.

315 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17100.
316 In our view, this is a reflection of the fact th at, under the U.S. regime for anti-dumping proceedings
involving non-market economies, the Vietnam-wide entity, as a non-separate rate respondent, will inevitably be
assigned the Vietnam-wide entity rate, rather than an "all others" rate calculated on the basis of the margins of
dumping of separate rate respondents selected for individual examination. We note that, as the USDOC
explained in its Notice of Initiation of the Second Administrative Review (p. 17099), "[i]t is the Department's
policy" to assign a single anti-dumping duty rate to non-separate respondents. This statement of USDOC policy
is consistent with the USDOC's Anti-Dumping Manual, whic h also states that "[t]hos e exporters that do not or
cannot demonstrate that they are separate from th e government-wide entity receive the NME-wide rate"
(USDOC Anti-Dumping Manual, Chapter 10, Exhibit Viet Nam-31, Section III.A, page 3). The USDOC's Anti-
Dumping Manual clearly distinguishes between the "NME-wide rate", addressed at Section IV of Chapter 10 of
the Manual, and the "Separate Rates" (assigned to sepa rate rate respondents), addressed at Section III of
Chapter 10 of the Manual. See also our discussion of the USDOC's exclusion of non-separate rate respondents
from selection for individual review, below at paras. 7.272-7.273. The USDOC effectively operates parallel
systems for determining duties in anti-dumping dumping proceedings involving imports from non-market
economies: one for separate rate respondents, and one for the remaining non-separate rate respondents.
317 We agree in this regard with the finding by the panel in Guatemala – Cement II that: "Although
there are certain consequences (under Article 6.8) for in terested parties if they fail to cooperate with an
investigating authority, in our view such consequences only arise if the investigating authority itself has acted in
a reasonable, objective and impartial manner." (Panel Report, Guatemala – Cement II, para. 8.251)

(ii) Whether the USDOC complied with the disciplines of Article 6.8 in applying a facts available
rate to the Vietnam-wide entity
7.267 Viet Nam claims that the USDOC's use of f acts available to determine the dumping rate
applied to the Vietnam-wide entity in the second administrative review was inconsistent with
Article 6.8 and Annex II of the Anti-Dumping Agreement. 318 Viet Nam contends that the Q&V data
requested by the USDOC was not "necessary", such that the failure of entities to provide that
information could not justify the use of facts availa ble. Viet Nam submits that information is only
"necessary" if it is needed to determine a margin of dumping for a selected exporter or producer.
Viet Nam also asserts that the fact that the Q& V data requested by the USDOC was not "necessary"
in the second administrative review is demonstrated by the fact that the USDOC did not need to
request that data in the third administrative revi ew, but instead obtained that data from another U.S.
Government agency.
7.268 The United States asks the Panel to reject Viet Nam's arguments. The United States contends
that the information sought by the USDOC from the 35 exporting companies was "necessary", and
that the USDOC complied with all the requirements of Article 6.8 in assigning a facts available rate to
the Vietnam-wide entity.
7.269 As explained above, we are examining whethe r or not the USDOC fulfilled the criteria of
Article 6.8 when assigning a facts available rate to the Vietnam-wide entity. As a result of differences
in the factual circumstances of the second and third administrative reviews, we address each review
separately, starting with the second.
 Second administrative review
7.270 In the second administrative review, the USDOC applied a facts available rate to the
Vietnam-wide entity on the basis of non-coopera tion by both the Vietnam-wide entity, and the
35 exporting companies subject to the Vietnam-wide entity rate. (Neither the Vietnam-wide entity,
nor any of the 35 exporting companie s found to constitute that entity, ha d been selected for individual
examination.) In its preliminar y determination, the USDOC found that the 35 exporting companies
had failed to respond to the USDOC's Q&V and separa te rate questionnaires, or the follow-up letters
sent by the Department. 319 In its final determination, the USDOC found that the 35 exporting
companies had failed to respond only to the USDOC's Q&V questionnaire.320
7.271 We recall that the text of Article 6.8 is set forth at paragraph 7.262 above. In accordance with
the first sentence of Article 6.8, determinations may be made on the basis of facts available "[i]n cases
where any interested parts refuses access to, or otherwise does not provide, necessary information".
We shall begin by examining whether or not the USDOC properly found that the 35 exporting

318 We note that, in its request for the establishment of a panel, Viet Nam refers to the application of the
facts available Vietnam-wide entity rate to companies that "responded timely and fully to the questionnaires
issued by USDOC" (WT/DS404/5, Annex G-2, page 4). In its response to Panel question 27 (para. 72),
Viet Nam also refers to the possibility of a (cooper ative) company providing information to the USDOC
indicating that the company is not independent of go vernment control, and ther efore receiving the facts
available Vietnam-wide entity rate. However, Viet Nam has not produced any evidence indicating that any such
cooperative company was assigned the Vietnam-wide entity rate based on facts available. Rather, the evidence
on the record regarding the second administrative review indicates that all 35 exporting companies subject to the
facts available Vietnam-wide entity rate were found not to have responded to the USDOC's request for Q&V
data.
319 Preliminary Determination in the Second Administrative Review, Exhibit Viet Nam-14, p. 12131.
(footnotes omitted)
320 Final Determination in the Second Administrative Review, Exhibit Viet Nam-15, p. 52275.
(footnote omitted)

companies treated as constituent parts of the Viet nam-wide entity had failed to provide "necessary"
information, in the form of Q&V data.
7.272 The USDOC alleged that Q&V data was "nec essary" in order for the USDOC to select
respondents for individual examination. As explained above, it would not necessarily be
unreasonable for an investigating authority to assign a facts available rate to those respondents that
failed to cooperate at the sample selection stage, provided the requirements of Article 6.8 are fulfilled.
One consideration in this regard would be whethe r or not the investigating authority had properly
designated information that alle gedly non-cooperative respondents failed to provide as "necessary"
within the meaning of Article 6.8. As to whethe r or not the Q&V data requested by the USDOC was
properly designated by the USDOC as "necessary", we recall that the USDOC stated in its notice of
initiation of the second administrative review that "[b]ecause the Department intends to select the
mandatory respondents by selecting the exporters /producers accounting for the largest volume of
subject merchandise exported to the United States du ring the period of review, the Department will
require all potential respondents to demonstr ate their eligibility for a separate rate." 321 We consider
this statement in light of the USDOC's assertion in the notice of initiation of the first administrative
review that it would "allow only those respondents w ith separate rate status to be included in the
sampling pool."322 We further recall the USDOC's assertion, earlier in its notice of initiation of the
second administrative review, that "[i]t is the Department's policy" to assign all non-separate rate
respondents the NME-wide rate. 323 Taken together, we consider that these various statements by the
USDOC make it clear that non-separate rate res pondents would not be selected for individual
examination.
7.273 This observation is supported by the distincti on drawn between separate rate respondents and
non-separate rate respondents in Chapter 10 of the USDOC's Anti-Dumping Manual ("Manual") 324,
which addresses USDOC procedures in respect of anti-dumping proceedings involving non-market
economies. Section III of Chapter 10 of the Manu al deals with "Separate Rates". Part G of
Section III explains how the USDOC selects separat e rate respondents for individual examination in
cases where it will conduct a limited examination. Section IV of Chapter 10 of the Manual deals with
"The NME-Wide Rate". There is no explanation in that Section of how the USDOC might select non-
separate rate respondents for individual examination. Instead, Section IV st ates that the NME-wide
rate "may be based on adverse facts available if, for example, some exporters that are part of the
NME-wide entity do not respond to the antidumping qu estionnaire." Section IV further provides that
"[i]n many cases, the Department concludes that some part of the NME-wide entity has not
cooperated in the proceeding because those that have responded do not account for all imports of
subject merchandise." Thus, while Section III (Part G) of the Manual explains how separate rate
respondents might be selected for individual examination, Section IV merely explains that the
(NME-wide entity) rate assigned to non-separate ra te respondents is often based on facts available. 325

321 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17100.
322 Notice of Initiation of the First Administrative Review, Exhibit Viet Nam-08, p. 17818. Although
the first administrative review is not on e of the measures at issue, we cons ider it appropriate to consider this
evidence as factual context for our re view of the USDOC's treatment of n on-selected respondents in the second
and third administrative reviews.
323 Notice of Initiation of the Second Administrative Review, Exhibit Viet Nam-12, p. 17099. This
statement of USDOC policy is consistent with Chapte r 10 of the USDOC's Anti-Dumping Manual ("Manual"),
which also states that "[t]hose exporters that do not or cannot demonstrate that th ey are separate from the
government-wide entity receive the NME-wide rate" (USDOC Anti-Dumpi ng Manual, Exhibit Viet Nam-31,
Section III.A, p. 3).
324 We note that Viet Nam has not advanced any cl aims against the USDOC's Manual "as such". We
do not consider that the ab sence of any claim "as such " should preclude our consideration of the Manual as
evidence in the context of Viet Nam's "as applied" claims.
325 The Panel asked the United States how the USDOC would calculate the rate applied to the
Vietnam-wide entity if: (i) the USDOC applied sampling but the Vietnam-wide entity was not selected for

The absence of any discussion of the potential selection of non-separate rate respondents for
individual examination in Section IV of the Manual is a reflection, we believe, of the fact that that
such respondents would not be selected for individual examination.
7.274 In light of these factors, ta ken together, we consider th at the USDOC had determined 326 that
non-separate rate respondents would not be selecte d for individual examination in the second
administrative review before any question of non-cooperation by non-selected respondents could have
arisen.327 In these circumstances, we do not consider th at the USDOC could properly have designated
Q&V data from non-separate rate respondents as "necess ary" in the meaning of Article 6.8 of the
Anti-Dumping Agreement. Thus, the USDOC's appli cation of facts available as a result of exporting
companies' failure to provide that data could not have justified the use of facts available under that
provision. Accordingly, the USDOC's application of a facts available rate to the Vietnam-wide entity
in the second administrative review was not cons istent with Article 6.8 of the Anti-Dumping
Agreement.328 In view of this finding, it is not necessary for us to consider Viet Nam's claim under
Annex II of the Anti-Dumping Agreement.
 Third administrative review
7.275 The United States asserts that the USDOC did not apply a facts available rate to the
Vietnam-wide entity in the third administrative revi ew. Instead, the United States asserts that the
USDOC "applied to the Vietnam-wide entity the sa me rate applied to it in the most recently
completed proceeding, because this was 'the only rate ever determined for th e Vietnam-wide entity in
this proceeding.'"329
7.276 Viet Nam notes the USDOC's decision to "assign[] the entity's current rate and only rate ever
determined for this entity in this proceeding" 330. According to Viet Nam, left unsaid in the USDOC's
decision is the fact that the only rate ever app lied to the Vietnam-wide entity was based upon adverse

individual examination; (ii) the use of facts available was not justified in respect of the Vietnam-wide entity;
and (iii) a lacuna situation did not arise (Panel question 63C). The United States replied:
"We would note that the factual situation described in the Panel’s question was not present in
either the second or third administrative revi ew. In any event, Co mmerce determines the
appropriate dumping rate to apply on a case-by-case basis, based on the particular facts and
circumstances before it, and the arguments of the parties presen ted in proceeding.
Accordingly, the United States is not in a position to speculate, in the absence of specific facts
and arguments presented in the context of a particular case, on what determinations
Commerce might make under such hypothetical circumstances."
326 We asked the United States certain questions regarding the USDOC's treatment of non-separate rate
respondents (questions 29, 61 and 63). The U.S. replie s indicate that the USDOC is not precluded in U.S. law
from selecting non-separate respondents for individual examination. Viet Nam's claim concerns the USDOC's
application of U.S. law, rath er than the U.S. law as such. Accordingly, our analysis need not consider the legal
possibility that the USDOC might have selected non-separate rate respondents for individual examination.
Instead, we focus on the fact that, in the second administrative review, the USDOC has determined not to do so.
327 Viet Nam has not raised any claim under Article 6.10 of the Anti-Dumping Agreement regarding
the USDOC's failure to consider non-separate rate respondents for individual review. However, the absence of
any Article 6.10 claim does not preclude us from considering this issue when evaluating the USDOC's finding
of non-cooperation by non-separate rate respondents.
328 In view of this finding, we need not addr ess Viet Nam's argument that the USDOC could not
properly have found non-cooperation by the Vietnam-wide entity on the basis of non-cooperation by its
constituent parts (for example, Viet Nam's response to Panel question 35, para. 88).
329 United States' first written submission, para. 164. (footnote omitted)
330 Viet Nam's opening statement at the second mee ting of the Panel, para. 29 (citing to Preliminary
Determination in the Third Administrative Review, Exhibit Viet Nam-18, pp. 10009, 10014 (unchanged in Final
Determination)).

facts available. Viet Nam asserts th at the fact that the USDOC had pr eviously applied the rate to the
Vietnam-wide entity does not alter the facts available nature of the rate.
7.277 The USDOC did not explicitly apply a facts available rate in the third administrative review.
This is because, unlike in the second administra tive review, the USDOC did not seek any Q&V data
from any exporting entity in the third administra tive review. Instead, the USDOC obtained the Q&V
data it considered necessary for the purpose of selecting exporters for individual examination from the
USCBP. If we were to take a formalistic approa ch regarding the third administrative review, we
would conclude that the rate assigned to the Vietnam-wide entity in that review was not based on facts
available. This is because there was no indicati on by the USDOC, at any time, that it was applying
facts available. Under this approach, the questi on of the interaction between Articles 6.8 and 9.4
would not arise.
7.278 However, in performing our objective assessment of the matter, we consider it appropriate to
take a less formalistic view of the USDOC's actions in the third administrative review. In this respect,
we agree with Viet Nam's assertion 331 that there are essentially three types of rate that may be
assigned under the Anti-Dumping Agreement: an individu al rate consistent with Article 2, an "all
others" rate consistent with Article 9.4, or a facts available rate c onsistent with Article 6.8. The
United States has not characterised the rate as signed to the Vietnam-wide entity in the third
administrative review as a rate determined unde r either Article 2 or 9.4 of the Anti-Dumping
Agreement. Nor is there any evidence on the record to suggest that this was the case. Since the rate is
not assigned under Articles 2 or 9.4, the only other basis under the Anti-Dumping Agreement for
applying that rate would be Article 6.8 (which would result in a facts available rate).
7.279 Furthermore, although there was no formal a pplication of facts available in the third
administrative review, the rate ultimately assigned to the Vietnam-wide entity was exactly the same as
the rates that had previously been assigned in the original investigation and preceding administrative
reviews, and those rates had been determined on the basis of facts available. In these circumstances,
we consider it appropriate to treat the 25.76 per cen t rate assigned to the Vietnam-wide entity in the
third administrative review as a facts available rate, founded on the same determination of
non-cooperation made by the USDOC in the second admini strative review. To fail to treat this rate as
a facts available rate would elevate form over subs tance, and ignore the true factual circumstances
surrounding the assignment of that rate.
7.280 Regarding the application of the criteria set forth in Article 6.8 to what we consider to have
been in substance a facts available rate assigned in the third administrative review, we note that the
USDOC did not request Q&V data from any exporting entity in that review.
332 I n t h e s e
circumstances, there is no basis for any valid finding of non-cooperation, and therefore no basis for
any valid application of facts available in the sense of Article 6.8. For this reason, we find that the
rate assigned to the Vietnam-wide entity in the thir d administrative review was not consistent with
Article 6.8 of the Anti-Dumping Agreement.333
4. Conclusion
7.281 We recall our analysis under Article 9.4, whic h indicates that the USDOC's decision not to
apply an "all others" rate to the Vietnam-wide entit y is inconsistent with that provision. We have

331 Viet Nam's first written submission, paras. 164-187. The United States has not contested
Viet Nam's description of the three types of rate that may be applied under the Anti-Dumping Agreement.
332 See USDOC Respondent Selection Memorandum in the Third Administrative Review, Exhibit
Viet Nam-17.
333 In view of this finding, it is not necessary for us to consider Viet Nam's claim under Annex II of the
Anti-Dumping Agreement.

considered whether our analysis of Article 9.4 should be modified on the basis of the USDOC's
application of an Article 6.8 facts available rate to the Vietnam-wide entity. In light of the fact that
the USDOC had decided not to apply an "all others " rate to the Vietnam-wide entity before any
question of non-cooperation could ha ve arisen, and in light of our findings that the USDOC in any
event failed to comply with the requirements of Ar ticle 6.8, we see no reason to do so. Accordingly,
we conclude that the USDOC's failure to assign an "a ll others" rate to the Vietnam-wide entity in the
second and third administrative reviews is incons istent with Article 9.4 of the Anti-Dumping
Agreement. In light of our analysis under Article 6.8, we also conclude that the USDOC's assignment
of a facts available rate to the Vietnam-wide entity in the second administrative review and a rate that
is in substance a facts available rate in the thir d administrative review is not consistent with
Article 6.8 of the Anti-Dumping Agreement.
5. Viet Nam's claims under Article 17.6(i) of the Anti-Dumping Agreement
7.282 While a certain ambiguity remains in this r espect, Viet Nam appears to seek findings of
inconsistency under Article 17.6(i) of the Anti-Dumpi ng Agreement in relation to the rate assigned to
the Vietnam-wide entity.334 As the United States notes335, Viet Nam's request for the establishment of
a panel336 does not provide for any claim under this provision. For this reason, insofar as Viet Nam
can be understood to be making a claim under Article 17.6(i) of the Anti-Dumping Agreement, we
find that any such claim falls outside our terms of reference.
H. VIET NAM'S "CONSEQUENTIAL CLAIMS"
7.283 Viet Nam makes "consequential claims" of viol ation under Articles 9.3, 11.1 and 11.3 of the
Anti-Dumping Agreement. 337 Under these "consequential claims", Viet Nam argues that the
USDOC's actions with respect to the conduct challenged under its other claims – zeroing,
"country-wide" rate, limitation of the number of sel ected respondents and "all ot hers" rate – will have
a consequential impact on the USDOC's sunset review, such that the USDOC could not reach a final
sunset review determination consiste nt with the Anti-Dumping Agreement. 338, 339 The United States

334 Viet Nam's second written submission, para. 144(5).
335 United States' second written submission, para. 75.
336 WT/DS404/5, Annex G-2.
337 Viet Nam's first written submission, paras. 28 9-291; Viet Nam's second written submission,
paras. 142-143. We note that Viet Nam did not include these claims in the list of requests for findings included
in its second written submission.
338 For instance, Viet Nam explained that:
"Viet Nam's consequential claim asserts that the USDOC's conduct in the completed
administrative reviews is such that the USDO C cannot reach a final determination in the
five-year sunset review that is consistent with the requirements of the Anti-Dumping
Agreement. Specifically, the US DOC's conduct with regard to zeroing, the limited selection
of mandatory respondents, the all others rate calculation methodology, and the treatment of
the Vietnam-wide entity renders it impossible for the USDOC to comply with the
Anti-Dumping Agreement. As a consequence of the USDOC's ac tions with respect to these
practices, the final determination of the five year sunset review will violate United States
WTO obligations.
The factual basis for the claim is the resulting impact of the USDOC's actions on the ongoing
five-year sunset review, demonstrated by th e rules and practices that govern a USDOC
five-year sunset review determination." (Viet Nam's response to Panel question 13(ii),
paras. 24-25)
339 In its opening oral statement at the second meeting of the Panel, Viet Nam provides a reference to
the Federal Register Notice of the USDOC's final likelih ood-of-dumping determination, made in the context of
the sunset review, in which the USDOC concludes that revocation of the anti-dumping order is likely to lead to
continuation or recurrence of dumping (Viet Nam's opening oral statement at the second meeting of the Panel,
footnote 46 to para. 52, citing to Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam:

argues, commenting on Viet Nam's consequential clai ms, that the final determination in the sunset
review is not a measure within our terms of reference. 340 We note that Viet Nam has not argued that
the sunset review does fall within our terms of refere nce. Viet Nam has also confirmed that it is not
pursuing any claims with respect to the sunset review other than as part of its claims on the "continued
use" measure341, which, we have determined, is not within our terms of reference.342
7.284 In light of the foregoing, we find that Viet Na m's "consequential" claims pertain to a measure
not within our terms of reference. For this reason, we make no findi ngs with respect to Viet Nam's
"consequential" claims of violation under Ar ticles 9.3, 11.1 and 11.3 of the Anti-Dumping
Agreement.
VIII. CONCLUSIONS AND RECOMMENDATION
A. CONCLUSIONS
8.1 For the reasons set out in the foregoing sections of this Report, we conclude as follows:
(a) A measure consisting of the "continued use of challenged practices" is not within our
terms of reference.
(b) The United States acted inconsistently with Article 2.4 of the Anti-Dumping
Agreement as a result of the USDOC's application of the zeroing methodology to
calculate the dumping margins of selected respondents in the second and third
administrative reviews under the Shrimp anti-dumping order; we exercise judicial
economy in respect of Viet Nam's claims th at the United States acted inconsistently
with Articles 9.3, 2.1, and 2.4.2 of the Anti-Dumping Agreement and Article VI:2 of
the GATT 1994.
(c) The U.S. zeroing methodology, as such, as it re lates to the use of simple zeroing in
administrative reviews, is inconsistent with the United States' obligations under
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
(d) Viet Nam has not established that the USDOC's decisions to limit its examinations in
the second and third administrative reviews ar e inconsistent with Articles 6.10, 9.3,
11.1, and 11.3 of the Anti-Dumping Agreement.
(e) Viet Nam has not established that the Unite d States acted inconsistently with its
obligations under the first sentence of Ar ticle 6.10.2 of the Anti-Dumping Agreement
in the second and third administrative reviews.

Final Results of the Five-Year "Sunset" Review of the Antidumping Duty Order , 75 Fed. Reg. 75965,
7 December 2010, available at http://ia .ita.doc.gov/frn/summary/vietnam/2010-30664.txt). In the same oral
statement, Viet Nam argues that th e challenged USDOC practices have, therefore, effectively resulted in a
sunset review determination which is inconsistent with the United States' obligations under Article 11.3 of the
Anti-Dumping Agreement.
340 United States' comments on Viet Nam's response to Panel question 69.
341 Viet Nam's response to Panel question 9, para. 15.
342 Moreover, we note that while Viet Nam's "consequential claims" appear to be very closely related to
the "continued use" measure, Viet Nam has indicated that it considers them to be distinct and that it maintains
its "consequential claims" regardless of our determination with respect to whether the "continued use" measure
falls within our terms of reference. Viet Nam's response to Panel questions 13(iii) and 69.

(f) Viet Nam has not established that the Unite d States acted inconsistently with its
obligations under the second sentence of Article 6.10.2 of the Anti-Dumping
Agreement in the administrative reviews at issue.
(g) The United States acted inconsistently with its obligations under Article 9.4 of the
Anti-Dumping Agreement as a result of the USDOC's imposition, in the second and
third administrative reviews, of an "all others" rate determined on the basis of
margins of dumping calculated with zeroing; we exercise judicial economy
in respect of Viet Nam's claims unde r Articles 9.3, 2.4.2, and 2.4 of the
Anti-Dumping Agreement.
(h) Viet Nam's claims of violation under Article 17.6(i) of the Anti-Dumping Agreement
in relation to the "all others" rate are not within our terms of reference.
(i) The USDOC's failure to assign an "all others " rate to the Vietna m-wide entity in the
second and third administrative reviews is inconsistent with Article 9.4 of the
Anti-Dumping Agreement.
(j) The USDOC's assignment of a facts available rate to the Vietnam-wide entity in the
second administrative review and a rate that is in substance a facts available rate in
the third administrative review is not consistent with Article 6.8 of the
Anti-Dumping Agreement.
(k) Viet Nam's claims of violation under Article 17.6(i) of the Anti-Dumping Agreement
in relation to the rate assigned to the Viet nam-wide entity are not within our terms of
reference.
(l) Viet Nam's "consequential" claims of viol ation under Articles 9.3, 11.1 and 11.3 of
the Anti-Dumping Agreement relate to a measure that is not within our terms of
reference and we make no findings in respect of these claims.
B. R
ECOMMENDATION
8.2 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed
under a covered agreement, the action is considered prima facie to constitute a case of nullification or
impairment of benefits under that agreement. Accordingly, we concl ude that to the extent that the
United States has acted inconsistently with certain provisions of the Anti-Dumping Agreement and of
the GATT 1994, it has nullified or impaired benefits accruing to Viet Nam under these agreements.
8.3 Pursuant to Article 19.1 of the DSU, having found that the United States has acted
inconsistently with provisions of the Anti-Du mping Agreement and of the GATT 1994 as set out
above, we recommend that the United States bring its measures into conformity with its obligations
under those Agreements.