UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM AB-2015-1
Document: Report of the Appellate Body
Date: 7 April 2015
Document codes: WT/DS429/AB/R
Complainant: Vietnam
Respondent: U.S.
Third parties: China, Ecuador, EU, Japan, Norway, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2, 9, 1  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 11  Anti-dumpingPart I, para. 1.2  Protocol of AccessionArt. 18  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – ANTI-DUMPING MEASURES ON
CERTAIN SHRIMP FROM VIET NAM
AB-2015-1
Report of the Appellate Body

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Anti-Dumping Agreement Agreement on Implementa tion of Article VI of the General Agreement
on Tariffs and Trade 1994
Corus Staal opinion United States Court of International Trade, Corus Staal BV v.
United States et al., 515 F.Supp.2d 1337, Slip Op. 07-140, Court No.
07-00270 (19 September 2007), Opinion of Judge Judith M. Barzilay
(Panel Exhibit VN-36)
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement
of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
NAFTA North American Free Trade Agreement
NME non-market economy
NME-wide entity rate an anti-dumping rate applied by the USDOC, which is assigned to
certain producers/exporters who do not demonstrate sufficient
independence from government control in anti-dumping proceedings
involving imports from NMEs
Panel Report Panel Report, United States – Anti-Dumping Measures on Certain
Shrimp from Viet Nam,
SAA Uruguay Round Agreements Act, Statement of Administrative Action,
H.R. Doc. No. 103-316 (1994), reprinted in 1994 USCAAN 3773,
4040; Public Law No. 103-465, 108 Stat. 4809 (1994), codified
under United States Code, Title 19, Section 3501
Section 123 of the URAA a mechanism for US authorities to make changes in USDOC (or other
agency) regulations or practices to render them consistent with DSB
recommendations and rulings, codified under United States Code,
Title 19, Section 3533 (Panel Exhibit US-10)
Section 129 of the URAA a mechanism used by US authorities to implement DSB
recommendations and rulings concerning anti-dumping and
countervailing duty actions, codified under United States Code,
Title 19, Section 3538 (Panel Exhibit VN-31)
Section 129(c)(1) Section 129(c)(1) of the Uruguay Round Agreements Act, codified
under United States Code, Title 19, Section 3538
Shrimp USDOC anti-dumping proceedings in Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam, Case No. A-522-802
SLA 2006 Softwood Lumber Agreement between the Government of Canada
and the Government of the United States of America (12 October
2006), contained in documents WT/DS236/5, WT/DS247/2,
WT/DS257/26, WT/DS264/29, WT/DS277/20, and WT/DS311/2
SLA 2006 Notification United States – Reviews of Countervailing Duty on Softwood Lumber
from Canada, Notification of Mutually Agreed Solution (12 October
2006), contained in documents WT/DS236/5, WT/DS247/2,
WT/DS257/26, WT/DS264/29, WT/DS277/20, and WT/DS311/2
Tembec opinion US Court of International Trade (USCIT) in Tembec, Inc. et al. v.
United States et al., 441 F. Supp. 2d 1302, Slip Op. 06-109, Court
No. 05-00028 (21 July 2006), Opinion per curiam (Panel Exhibit
VN-37)
URAA Uruguay Round Agreements Act, Public Law No. 103-465, 108 Stat.
4838, codified under United States Code, Title 19, Section 3538
USCBP US Customs and Border Protection

Abbreviation Description
USCIT United States Court of International Trade
USDOC United States Department of Commerce
USITC United States International Trade Commission
USTR United States Trade Representative
Viet Nam-wide entity rate a single anti-dumping duty rate imposed on all companies within
Viet Nam
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6,
16 August 2010
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

PANEL EXHIBITS CITED IN THIS REPORT
Exhibit No. Description
US-10 Section 123 of the Uruguay Round Agreements Act, codified under United States
Code, Title 19, Section 3533
US-18 USDOC, Purified Carboxymethylcellulose from the Netherlands: Preliminary Results
of Antidumping Duty Administrative Review and Preliminary Intent to Rescind,
United States Federal Register, Vol. 77, No. 149 (2 August 2012),
pp. 46024-46030
US-19 USDOC, Certain Pasta from Italy: Notice of Preliminary Results of Antidumping
Duty Administrative Review, Preliminary No Shipment Determination and
Preliminary Intent to Revoke Order, in Part, United States Federal Register,
Vol. 77, No. 150 (3 August 2012), pp. 46377-46385, unchanged in Vol. 78, No. 27
(8 February 2013), pp. 9364-9366
US-20 USDOC, Purified Carboxymethylcellulose from Finland; Notice of Preliminary
Results of Antidumping Duty Administrative Review, United States Federal
Register, Vol. 77, No. 152 (7 August 2012), pp. 47036-47043
US-80 Miscellaneous Trade and Technical Corrections Act of 2004, Public Law No. 108-429
(3 December 2004), Title II, Section 2006(a), 118 Stat. 2434, 2597 (partial
document)
VN-05 USDOC, Notice of Amended Final Determination of Sales at Less Than Fair Value
and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam, United States Federal Register, Vol. 70, No. 20
(1 February 2005)
VN-24 US Department of Commerce 2009 Antidumping Manual, Chapter 10, Non-Market
Economies
VN-31 Section 129 of the Uruguay Round Agreements Act, codified under United States
Code, Title 19, Section 3538
VN-32 Section 101(a)(2) of the Uruguay Round Agreements Act, codified under
United States Code, Title 19, Section 3511(a)(2)
VN-33 Section 102(d) of the Uruguay Round Agreements Act, codified under United States
Code, Title 19, Section 3512(d)
VN-34 Excerpts from Vol. 1 of the Uruguay Round Agreements Act, Statement of
Administrative Action, H.R. Doc. No. 103-316 (1994)
VN-36 United States Court of International Trade, Corus Staal BV v. United States et al.,
Slip Op. 07-140, Court No. 07-00270 (19 September 2007), Opinion of Judge
Judith M. Barzilay
VN-37 United States Court of International Trade, Tembec, Inc. et al. v. United States
et al., Slip Op. 06-109, Court No. 05-00028 (21 July 2006), Opinion per curiam
VN-42 Summary chart of USDOC determinations issued under Section 129(c)(1) and
certain United States Federal Register USDOC Section 129 determinations
VN-55 USDOC, Antidumping Proceedings: Calculation of the Weighted-Average Dumping
Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final
Modification, United States Federal Register, Vol. 77, No. 30 (14 February 2012),
pp. 8101-8114

CASES CITED IN THIS REPORT
Short Title Full Case title and citation
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded
Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV,
p. 1527
Canada – Wheat Exports and
Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat
and Treatment of Imported Grain, WT/DS276/AB/R, adopted
27 September 2004, DSR 2004:VI, p. 2739
Chile – Price Band System
(Article 21.5 – Argentina)
Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the
DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007,
DSR 2007:II, p. 513
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile
Parts, WT/DS339/AB/R / WT/DS340/AB/R/ WT/DS342/AB/R, adopted
12 January 2009, DSR 2009:I, p. 3
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts,
WT/DS339/R / WT/DS340/R / WT/DS342/R / Add.1 and Add.2, adopted
12 January 2009, upheld (WT/DS339/R) and as modified (WT/DS340/R /
WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R /
WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, p. 119
China – Rare Earths Appellate Body Reports, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum, WT/DS431/AB/R / WT/DS432/AB/R /
WT/DS433/AB/R, adopted 29 August 2014
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R / WT/DS395/R / WT/DS398/R / Add.1 and Corr.1,
adopted 22 February 2012, as modified by Appellate Body Reports
WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, DSR 2012:VII,
p. 3501
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology Products, WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III,
p. 933
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed
Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1,
DSR 2008:I, p. 3
EC and certain member States –
Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States
– Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R,
adopted 1 June 2011, DSR 2011:I, p. 7
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, p. 9
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of
Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX,
p. 4391
Korea – Commercial Vessels Panel Report, Korea – Measures Affecting Trade in Commercial Vessels,
WT/DS273/R, adopted 11 April 2005, DSR 2005:VII, p. 2749
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the
European Communities, WT/DS136/R and Corr.1, adopted 26 September
2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R,
DSR 2000:X, p. 4593

Short Title Full Case title and citation
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
US – Carbon Steel (India) Appellate Body Report, United States – Countervailing Measures on Certain
Hot-Rolled Carbon Steel Flat Products from India, WT/DS436/AB/R,
adopted 19 December 2014
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and
Application of Zeroing Methodology, WT/DS350/AB/R, adopted
19 February 2009, DSR 2009:III, p. 1291
US – Corrosion-Resistant Steel
Sunset Review
Appellate Body Report, United States – Sunset Review of Anti-Dumping
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan,
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3
US – Countervailing and
Anti-Dumping Measures
(China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R and Corr.1,
adopted 22 July 2014
US – Countervailing Measures on
Certain EC Products
Appellate Body Report, United States – Countervailing Measures
Concerning Certain Products from the European Communities,
WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, p. 5
US – Gambling Appellate Body Report, United States – Measures Affecting the
Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R,
adopted 20 April 2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII,
p. 5475)
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain
Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted
23 August 2001, DSR 2001:X, p. 4697
US – Oil Country Tubular Goods
Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Oil Country Tubular Goods
Sunset Reviews
(Article 21.5 – Argentina)
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina – Recourse to
Article 21.5 of the DSU by Argentina, WT/DS268/AB/RW, adopted
11 May 2007, DSR 2007:IX, p. 3523
US – Section 129(c)(1) URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round
Agreements Act, WT/DS221/R, adopted 30 August 2002, DSR 2002:VII,
p. 2581
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974,
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp
from Viet Nam, WT/DS404/R, adopted 2 September 2011, DSR 2011:X,
p. 5301
US – Shrimp II (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp
from Viet Nam, WT/DS429/R and Add.1, circulated to WTO Members
17 November 2014
US – Softwood Lumber II United States – Provisional Anti-Dumping Measures on Imports of Certain
Softwood Lumber from Canada, DS247
US – Softwood Lumber III United States – Preliminary Determinations with Respect to Certain
Softwood Lumber from Canada, DS236
US – Softwood Lumber IV United States – Final Countervailing Duty Determination with Respect to
Certain Softwood Lumber from Canada, DS257
US – Softwood Lumber V United States – Final Dumping Determination on Softwood Lumber from
Canada, DS264
US – Softwood Lumber VI United States – Investigation of the International Trade Commission in
Softwood Lumber from Canada, DS277
US – Softwood Lumber VII United States – Review s of Countervailing Duty on Softwood Lumber from
Canada, DS311

Short Title Full Case title and citation
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003,
DSR 2003:VII, p. 3117
US – Upland Cotton
(Article 21.5 – Brazil)
Appellate Body Report, United States – Subsidies on Upland Cotton –
Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted
20 June 2008, DSR 2008:III, p. 809
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Wheat Gluten from the European Communities,
WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, p. 717
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of
Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23
May 1997, and Corr.1, DSR 1997:I, p. 323
US – Zeroing (EC)
(Article 21.5 – EC)
Appellate Body Report, United States – Laws, Regulations and
Methodology for Calculating Dumping Margins ("Zeroing") – Recourse to
Article 21.5 of the DSU by the European Communities, WT/DS294/AB/RW
and Corr.1, adopted 11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (EC)
(Article 21.5 – EC)
Panel Report, United States – Laws, Regulations and Methodology for
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the
DSU by the European Communities, WT/DS294/RW, adopted 11 June
2009, as modified by Appellate Body Report WT/DS294/AB/RW,
DSR 2009:VII, p. 3117
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441
US – Zeroing (Japan)
(Article 21.5 – Japan)
Panel Report, United States – Measures Relating to Zeroing and Sunset
Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/RW,
adopted 31 August 2009, upheld by Appellate Body Report
WT/DS322/AB/RW, DSR 2009:VIII, p. 3553

APPELLATE BODY

United States – Anti-Dumping Measures on
Certain Shrimp from Viet Nam

Viet Nam, Appellant
United States, Appellee

China, Third Participant
Ecuador, Third Participant
European Union, Third Participant
Japan, Third Participant
Norway, Third Participant
Thailand, Third Participant
AB-2015-1

Appellate Body Division:

Graham, Presiding Member
Bhatia, Member
Van den Bossche, Member

1 INTRODUCTION
1.1. Viet Nam appeals certain issues of law and legal interpretations developed in the
Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam
1
(Panel Report). The Panel was established to consider a complaint by Viet Nam 2 with respect to
certain anti-dumping measures imposed by the United States in the context of the
US anti-dumping proceedings in Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam
3 (Shrimp), as well as with respect to certain US laws, and methodologies and practices of
the US Department of Commerce (USDOC).
1.2. The USDOC initiated its Shrimp investigation in January 2004 and issued an anti-dumping
order in February 2005. 4 At the time of the Panel proceedings, the USDOC had completed seven
administrative reviews and conducted a first sunset review in which it determined that revocation
of the anti-dumping duty order would likely lead to the continuation or recurrence of dumping.
5 In
the Shrimp proceedings, the USDOC designated Viet Nam as a non-market economy (NME). For
this reason, the USDOC applied a rebuttable presumption that all companies within Viet Nam are
essentially operating units of a single government-wide entity and, thus, should receive a single
anti-dumping duty rate (Viet Nam-wide entity ra te). Vietnamese producers/exporters had to pass
a "separate rate test" to receive a rate that was separate from the Viet Nam-wide entity rate.
Those producers/exporters that did not establish that they were separate from the Viet Nam-wide
entity received the Viet Nam-wide entity rate.
6
1.3. The factual aspects of this dispute are set forth in greater detail in paragraphs 2.1 to 2.8 of
the Panel Report.
1.4. Before the Panel, Viet Nam made claims with respect to the USDOC's final determinations in
the fourth, fifth, and sixth administrative reviews under the Shrimp anti-dumping order. Viet Nam
also made claims with respect to the USDOC's likelihood-of-dumping determination in the context
of the sunset review.7 Additionally, Viet Nam brought "as such" claims with respect to the following
measures:

1 WT/DS429/R, 17 November 2014.
2 Request for the Establishment of a Panel by Viet Nam, WT/DS429/2, revised on 17 January 2013
in WT/DS429/2/Rev.1, and subsequently corrected in WT/DS429/Rev.1/Corr. 1 (in French) and Corr. 2
(in English and Spanish).
3 USDOC Case No. A-552-802.
4 USDOC, Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping
Duty Order: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, United States Federal
Register, Vol. 70, No. 20 (1 February 2005) (Panel Exhibit VN-05).
5 Panel Report, para. 2.4.
6 Panel Report, para. 2.5.
7 Panel Report, para. 2.9.

a. the USDOC's "simple zeroing methodology"8 as applied in administrative reviews;
b. the USDOC's practice with respect to the rate that is assigned to certain
producers/exporters that do not demonstrate sufficient independence from government
control – the NME-wide entity rate – in anti-dumping proceedings involving imports from
NMEs; and
c. Section 129(c)(1) of the US Uruguay Round Agreements Act
9 (URAA).10
1.5. The Panel Report was circulated to Members of the World Trade Organization (WTO) on
17 November 2014.11 In its Report, the Panel found that:
a. Viet Nam had failed to establish that the simple zeroing methodology used by the
USDOC in administrative reviews is a measure of general and prospective application
that can be challenged "as such". Therefore, the Panel found that Viet Nam had not
established that the USDOC's simple zeroing methodology in administrative reviews is
inconsistent "as such" with Article 9.3 of the Agreement on Implementation of Article VI
of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and
Article VI:2 of the General Agreement on Tariffs and Trade 1994 (GATT 1994)
12;
b. the United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994 as a result of the USDOC's application of the simple
zeroing methodology to calculate the dumping margins of mandatory respondents in the
fourth, fifth, and sixth administrative reviews under the Shrimp anti-dumping order13;
c. the practice or policy whereby, in NME proceedings, the USDOC presumes that all
producers/exporters in the NME country belong to a single, NME-wide entity and assigns
a single rate to these producers/exporters is inconsistent "as such" with the
United States' obligations under Articles 6.10 and 9.2 of the Anti-Dumping Agreement14;
d. the United States acted inconsistently with Articles 6.10 and 9.2 of the Anti-Dumping
Agreement as a result of the USDOC's application, in the fourth, fifth, and sixth
administrative reviews under the Shrimp anti-dumping order, of a rebuttable
presumption that all companies in Viet Nam belong to a single, Viet Nam-wide entity and
the assignment of a single rate to that entity15;
e. Viet Nam had failed to establish the existence of a measure with respect to the manner
in which the USDOC determines the NME-wide entity rate, in particular, concerning the
use of facts available. Therefore, the Panel found that Viet Nam had not established that
the alleged measure is inconsistent "as such" with Articles 6.8 and 9.4 and Annex II to
the Anti-Dumping Agreement
16;
f. the United States acted inconsistently with Article 9.4 of the Anti-Dumping Agreement as
a result of the USDOC's application to the Viet Nam-wide entity of a duty rate exceeding

8 The Panel noted Viet Nam's description of the "simple zeroing methodology" as the methodology by
which the USDOC, when calculating dumping margins on the basis of a comparison of a weighted-average
normal value to individual export transactions, disregards negative comparison results. (Panel Report, fn 19 to
para. 2.10 (referring to Viet Nam's first written submission to the Panel, para. 54))
9 Public Law No. 103-465, 108 Stat. 4838, codified under United States Code, Title 19, Section 3538
(2000).
10 Panel Report, para. 2.10.
11 The Panel Report included, as an integral part thereof, the Panel's Preliminary Ruling of
26 September 2013. In its Preliminary Ruling, the Panel addressed the United States' request of 31 July 2013
that the Panel find that certain measures and claims referenced in Viet Nam's panel request were not properly
within the Panel's terms of reference. (See Panel Report, paras. 1.9-1.10) The Panel's Preliminary Ruling is
included as Annex A-3 to the Panel Report.
12 Panel Report, para. 8.1.a.
13 Panel Report, para. 8.1.b.
14 Panel Report, para. 8.1.c.
15 Panel Report, para. 8.1.d.
16 Panel Report, para. 8.1.e.

the ceiling applicable under that provision in the fourth, fifth, and sixth administrative
reviews under the Shrimp anti-dumping order17;
g. Viet Nam had failed to establish that the rate applied by the USDOC to the
Viet Nam-wide entity, in the fourth, fifth, and sixth administrative reviews under the
Shrimp anti-dumping order, is inconsistent with Article 6.8 and Annex II to the
Anti-Dumping Agreement18;
h. Viet Nam had failed to establish that Section 129(c)(1) of the URAA (Section 129(c)(1))
precludes implementation of recommendatio ns and rulings of the Dispute Settlement
Body (DSB) with respect to prior unliquidate d entries. Therefore, the Panel found that
Viet Nam had not established that Section 129(c)(1) is inconsistent "as such" with
Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement
19;
i. the United States acted inconsistently with Article 11.3 of the Anti-Dumping Agreement
as a result of the USDOC's reliance on WTO-inconsistent margins of dumping or rates in
its likelihood-of-dumping determination in the first sunset review under the Shrimp
anti-dumping order
20;
j. the United States acted inconsistently with Article 11.2 of the Anti-Dumping Agreement,
in the fourth and fifth administrative reviews under the Shrimp anti-dumping order, as a
result of its treatment of requests for revocation made by certain Vietnamese
producers/exporters that were not being indi vidually examined. The Panel did not make
any findings with respect to Viet Nam's corresponding claim under Article 11.1 of the
Anti-Dumping Agreement
21; and
k. the United States acted inconsistently with Article 11.2 of the Anti-Dumping Agreement
as a result of the USDOC's reliance on WTO-inconsistent margins of dumping in its
determination, in the fourth administrative review, not to revoke the Shrimp
anti-dumping order with respect to Minh Phu, and with respect to its determination, in
the fifth administrative review, not to revoke the Shrimp anti-dumping order with
respect to Camimex. The Panel did not make any findings with respect to Viet Nam's
corresponding claim under Article 11.1 of the Anti-Dumping Agreement.
22
1.6. On 6 January 2015, Viet Nam notified the DSB, pursuant to Articles 16.4 and 17 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), of its
intention to appeal certain issues of law and certain legal interpretations developed by the Panel
and filed a Notice of Appeal
23 and an appellant's submission pursuant to Rule 20 and Rule 21,
respectively, of the Working Procedures for Appellate Review 24 (Working Procedures). Viet Nam's
appeal is limited to the Panel's finding that Viet Nam had failed to establish that Section 129(c)(1)
precludes implementation of recommendations and rulings of the DSB with respect to prior
unliquidated entries, and the Panel's consequential finding that Viet Nam had not established that
Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the
Anti-Dumping Agreement.
25 On 26 January 2015, the United States filed an appellee's
submission.26 On 29 January 2015, China, the European Union, and Japan each filed a third
participant's submission.27 On the same day, Norway notified its intention to appear at the oral
hearing as a third participant. 28 On 26 February 2015, Ecuador and Thailand each notified its
intention to appear at the oral hearing as a third participant.29

17 Panel Report, para. 8.1.f.
18 Panel Report, para. 8.1.g.
19 Panel Report, para. 8.1.h.
20 Panel Report, para. 8.1.i.
21 Panel Report, para. 8.1.j.
22 Panel Report, para. 8.1.k.
23 WT/DS429/5 (attached as Annex 1 to this Report).
24 WT/AB/WP/6, 16 August 2010.
25 Panel Report, para. 8.1.h.
26 Pursuant to Rule 22 of the Working Procedures.
27 Pursuant to Rule 24(1) of the Working Procedures.
28 Pursuant to Rule 24(2) of the Working Procedures.
29 Pursuant to Rule 24(4) of the Working Procedures.

1.7. The oral hearing in this appeal was scheduled for 2 March 2015. On 27 January 2015, the
Division received a letter from the United States requesting that the date of the oral hearing be
changed due to certain logistical difficulties faced by the United States in securing reasonable hotel
accommodation in Geneva during the week of 2 March 2015. On 29 January 2015, having
considered the United States' request and comments received from Viet Nam and China, the
Division informed the participants and third participants of its decision that the circumstances
outlined by the United States did not, in this particular case, amount to "exceptional
circumstances" that would result in "manifest unfai rness" within the meaning of Rule 16(2) of the
Working Procedures. Therefore, the Division decide d not to change the date of the oral hearing.
The Procedural Ruling is attached as Annex 2 to this Report.
1.8. The oral hearing in this appeal was held on 2 March 2015. The participants and third
participants made oral statements and respon ded to questions posed by the Members of the
Appellate Body Division hearing the appeal.
2 ARGUMENTS OF THE PARTICIPANTS AND THIRD PARTICIPANTS
2.1 Claims of error by Viet Nam – Appellant
2.1. Viet Nam claims that the Panel acted inconsistently with Article 11 of the DSU because its
interpretation and analysis of Section 129(c)(1) was not based on an objective assessment of the
provision and its broader statutory context. Theref ore, Viet Nam requests the Appellate Body to
reverse the Panel's conclusion and recommendation in paragraph 8.1.h of the Panel Report and to
complete the legal analysis and find that Section 129(c)(1) is inconsistent "as such" with
Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement.
30
2.2. Viet Nam contends that the Panel did not commit a simple error that had no bearing on its
assessment. Rather, the Panel's errors led the Panel wrongly to forgo any consideration of the
applicability and conformity of the measure at issue – Section 129(c)(1) – with the relevant
covered agreements. Viet Nam highlights two such alleged errors.
2.3. First, Viet Nam claims that the Panel adopted an incorrect standard of review and
misinterpreted the operation of US law. In doing so, the Panel departed from established principles
of interpretation. In particular, the Panel erred in determining that it would not consider whether
Section 129(c)(1) is inconsistent with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the
Anti-Dumping Agreement unless Viet Nam co uld show that Section 129(c)(1) precludes
WTO-consistent implementation "with respect to all prior unliquidated entries".
31 According to
Viet Nam, the Panel's framework suggests that "as such" claims require that a measure result in
WTO-inconsistent action not merely in some instances but, rather, in all instances in which it is
applied. Therefore, the Panel was in error. Viet Nam adds that the Panel cited no legal basis for its
analytical approach and, therefore, failed to offer "reasoned and adequate explanations and
coherent reasoning" as required by Article 11 of the DSU.
32
2.4. Viet Nam submits that the Panel's analytical framework also indicates that the Panel
misunderstood operational aspects of the US retrospective duty assessment system, as well as the
object and purpose of Section 129 of the URAA33 as distinguished from other measures and actions
that might result in WTO-consistent action in relation to some prior unliquidated entries. In
Viet Nam's view, the Panel appears to have concluded that Section 129 redeterminations are
available to address entries made after the im plementation by the US Trade Representative
(USTR), while other measures are available to address all other prior unliquidated entries.
Viet Nam argues that, as a matter of WTO implementation, Section 129 sets forth the legal
authority under US law for the USDOC to issue a new, second determination to replace a

30 Viet Nam's appellant's submission, paras. 5 and 12.
31 Viet Nam's appellant's submission, para. 42. (emphasis original) Before the Panel, Viet Nam used the
term "prior unliquidated entries" to describe imports made prior to the date on which the relevant Section 129
determination takes effect and for which there is no definitive assessment of anti-dumping duty liability as of
that date (i.e. the final duty rate and duty have not yet been established). (Panel Report, fn 329 to
para. 7.237)
32 See Viet Nam's appellant's submission, paras. 46-48 (referring to Appellate Body Reports, US –
Corrosion-Resistant Steel Sunset Review, para. 82; and US – Upland Cotton (Article 21.5 – Brazil), fn 618 to
para. 293).
33 Codified under United States Code, Title 19, Section 3538 (Panel Exhibit VN-31).

WTO-inconsistent determination. For Viet Nam, the question for the Panel should have been
whether the other measures, which "might" allow WTO-consistent action in relation to prior
unliquidated entries, may be applied in all circumstances with respect to such entries or whether
certain unliquidated entries may only be reached by a redetermination – i.e. the type of
redetermination authorized by Section 129. Viet Nam contends that the Panel's analysis reflects a
misunderstanding concerning the operation of the US retrospective duty assessment system, as
well as the role of Section 129 in relation to other provisions of US law.
34
2.5. In making this argument, Viet Nam contends that there are three distinct categories of prior
unliquidated entries under the US retrospective duty assessment system. Category 1 entries are
those for which administrative determinations have been issued before the Section 129
implementation date. Category 2 entries are those for which no administrative determination has
been issued prior to the Section 129 implementati on date. Category 3 entries are those entered
after the Section 129 implementation date. Viet Nam contends that the effect of Section 129
determinations is limited to Category 3 entries because of Section 129(c)(1). Viet Nam
acknowledges that the other mechanisms put forward by the United States "might" have some
bearing on Category 2 entries that have not yet been subject to a final administrative
determination. However, in Viet Nam's view, the Panel disregarded the fact that Section 129 is the
only provision of US law that addresses the situations in which a WTO determination of
inconsistency requires a redetermination of an already issued determination. Hence, while it
"might" be possible to render WTO-consistent results for prior unliquidated entries covered by
Category 2 that still require an administrative determination, this does not address the fate of
Category 1 entries. Viet Nam submits that the Panel ignored these distinctions.
35
2.6. Viet Nam challenges the adequacy of the Panel's examination of the alternative means of
implementing DSB recommendations and rulings put forward by the United States. In particular,
Viet Nam disagrees with the Panel's acceptance of the argument by the United States that the
US Congress may adopt new legislation or amend ex isting legislation in a manner that will mean
prior unliquidated entries are liquidated pursuant to a WTO-consistent methodology. 36 For
Viet Nam, the fact that a WTO-inconsistency can be remedied through future legislation does not
in any way address the issue of whether existing legislation is WTO-inconsistent. Viet Nam
stresses that, under this rationale, no WTO-inconsistent practice could ever be found to be
inconsistent "as such" because new legislation to eliminate the WTO-inconsistent practice would
always be an available mechanism to cure the inconsistency. Hence, Viet Nam asserts that the
Panel's reference to US legislation must be dismissed.
2.7. Viet Nam acknowledges that, depending on the effective date of the change in regulation or
practice pursuant to Section 123 of the URAA
37, prior unliquidated entries could benefit from the
change in the regulation or practice if those prior unliquidated entries have not yet been subject to
a final determination in an investigation or review. However, there is no authority under
Section 123 for the USDOC to issue redeterminations applying the change in regulation or practice
to entries that have already been subject to a final determination in an investigation or review.
That is the sole domain of Section 129, which prohibits the application of a redetermination to
prior unliquidated entries. Thus, while the USDOC might theoretically issue a redetermination
under Section 123, the result is "meaningless" since Section 129(c)(1) prohibits application of the
results of the redetermination to prior unliquidated entries.
2.8. Further, Viet Nam contends that, while there is the possibility of applying the new, changed
WTO-consistent methodology to prior unliquidated entries that have not yet been subject to a
review, prior unliquidated entries already subject to a final determination in an investigation or
review are not eligible for a subsequent annual review. Rather, for these entries to benefit from a
new WTO-consistent methodology, Viet Nam insists that it is necessary for the USDOC to make a
redetermination, and the only authority for such a redetermination is the authority under
Section 129 of the URAA.

34 Viet Nam's appellant's submission, paras. 51-54.
35 Viet Nam's appellant's submission, paras. 55-57.
36 Viet Nam's appellant's submission, paras. 57-58 (referring to Panel Report, para. 7.265).
37 Section 123 of the URAA is a mechanism for US authorities to make changes in USDOC (or other
agency) regulations or practices to render them consistent with DSB recommendations and rulings (codified
under United States Code, Title 19, Section 3533 (Panel Exhibit US-10)).

2.9. In respect of the second alleged error, Viet Nam argues that the Panel erred because it failed
to engage in a proper interpretive analysis of Section 129(c)(1) in the light of well-established
principles of objective statutory interpretation. Had the Panel employed these principles, it may
have viewed Section 129(c)(1) differently. Upon confronting silence in the statutory text with
respect to prior unliquidated entries, the Panel effectively ended its analysis. In the view of
Viet Nam, the Panel: (i) did not objectively seek to understand that silence through a closer
examination of the context; (ii) applied the same f l a w e d a p p r o a c h t o t h a t s i l e n c e i n r e v i e w i n g
authoritative guidance on the measure at issue; (iii) misconstrued USCIT judicial opinions; and
(iv) did not undertake a holistic examination of th e interpretive evidence before it. These errors
prevented the Panel from appreciating the broader significance of Section 129(c)(1) in terms of
how the USDOC treats prior unliquidated entries, as well as the overall intent and effect of
Section 129(c)(1) on USDOC actions generally. Hence, according to Viet Nam, the Panel acted
inconsistently with its obligations under Article 11 of the DSU.
2.10. Viet Nam acknowledges that the Panel took the correct interpretive approach of first
considering the statutory text of Section 129(c)(1) to determine whether its meaning was clear on
the face of the text itself. On its face, Section 129(c)(1) explicitly limits any legal effect given to a
Section 129 determination in relation to unliquidated entries in existence at the time that the USTR
directs implementation by the administering author ity. However, the Panel found significance in
what Section 129(c)(1) did not explicitly say, specific ally, that it was silent as to the fate of prior
unliquidated entries. Viet Nam contends that the Panel's analytical approach focused on discerning
whether the text of Section 129(c)(1) requires or precludes any particular action with respect to
prior unliquidated entries.
38 Viet Nam argues that the Panel's conclusion that "Section 129 does
not, on its face, have any effect with respect to prior unliquidated entries" was the result of a
faulty analytical approach and, therefore, was not objective.
39
2.11. While Viet Nam accepts that "the statutory text of Section 129 'does not, by its express
terms, require or preclude any particular action with respect to prior unliquidated entries,' it does
not 'necessarily [follow] that Section 129(c)(1) cannot be found to preclude implementation of
DSB recommendations and rulings with resp ect to such prior unliquidated entries.'"
40 For
Viet Nam, silence or omission in a statute is not a basis, in and of itself, for finding a statute to be
clear on its face. Viet Nam contends that the Panel found to the contrary, at the very outset of its
analysis, and that this finding impaired what remained of its consideration of the meaning of
Section 129(c)(1). Viet Nam submits that the Panel had already reached its conclusion as to the
meaning of the provision, and, therefore, its continued examination of the context, judicial
opinions, and the history of application of the provision at issue presented by Viet Nam was not
conducted on the basis of informing a conclusion, but of reconfirming a conclusion already
rendered. In Viet Nam's view, this approach to the text was not objective and, therefore, was
inconsistent with Article 11 of the DSU.
2.12. Viet Nam adds that it presented the Panel with the broader context and limitations of the
URAA under which Section 129 was enacted in terms of the relationship between US federal law
and the United States' WTO obligations. In particular, Viet Nam put forward Section 102(a) of the
URAA
41, the Statement of Administrative Action 42 (SAA), the USDOC's characterization of
Section 129 of the URAA 43, the United States' Charming Betsy doctrine 44, two US Court of
International Trade (USCIT) judicial opinions addressing Section 129 determinations 45, and
documentation of administrative actions under Section 129.46 According to Viet Nam, this evidence

38 Viet Nam's appellant's submission, para. 74 (referring to Panel Report, paras. 7.257 and 7.259).
39 Viet Nam's appellant's submission, para. 76 (quoting Panel Report, para. 7.259).
40 Viet Nam's appellant's submission, para. 76 (quoting Panel Report, para. 7.259).
41 Codified under United States Code, Title 19, Section 3512(d) (Panel Exhibit VN-33).
42 Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316 (1994),
reprinted in 1994 USCAAN 3773, 4040 (Public Law No. 103-465, 108 Stat. 4809 (1994), codified under
United States Code, Title 19, Section 3501) (Panel Exhibit VN-34).
43 Panel Exhibit VN-42, p. 71937.
44 Viet Nam's first written submission to the Panel, para. 226 (referring to Panel Report, US –
Section 129(c)(1) URAA, para. 3.79 and fn 32 thereto, in turn referring to Murray v. Schooner Charming Betsy,
6 US (2 Cranch) 64, 118 (1804)).
45 USCIT, Corus Staal BV v. United States et al., Slip Op. 07-140, Court No. 07-00270
(19 September 2007), Opinion of Judge Judith M. Barzilay (Panel Exhibit VN-36); USCIT, Tembec, Inc. et al. v.
United States et al., Slip Op. 06-109, Court No. 05-00028 (21 July 2006), Opinion per curiam (Panel Exhibit
VN-37).
46 Panel Exhibit VN-42.

illustrated a consistent pattern of failure to extend the effects of implementation to prior
unliquidated entries. For Viet Nam, this context should have informed the Panel's analysis,
consistent with accepted interpretive practices, but it did not.
2.13. Viet Nam further contends that the Panel misconstrued the USCIT's judicial opinions upon
which Viet Nam relied. With respect to the opinion in Corus Staal BV v. United States
47 (Corus
Staal opinion), Viet Nam contends that, under Section 129, any implementation is prospective, and
a Section 129 determination is not a basis for relief from WTO-inconsistent duties on entries made
before that implementation date, even for those entries that have not yet been liquidated. 48 Thus,
in Viet Nam's view, the USCIT expressly confirmed that Section 129 requires the United States to
engage in precisely the type of implementati on that the Appellate Body criticized in US – Zeroing
(Japan) (Article 21.5 – Japan) . Viet Nam recalls the Appellate Body's explanation that
"WTO-inconsistent conduct must cease completely, even if it is related to imports that entered the
implementing Member's territory before the reason able period of time expired. Otherwise, full
compliance with the DSB's recommendations and rulings cannot be said to have occurred." 49 Yet,
according to Viet Nam, the Panel dismissed the probative value of the Corus Staal opinion, not for
the significance of what the USCIT expressly said, but for the purported significance of what it did
not expressly say. In this regard, Viet Nam highlights that the Panel found it "'noteworthy' that in
Viet Nam's 'description of these US court rulings it purports to rely on, Viet Nam does not actually
assert that Section 129 precludes refunds of duties with respect to prior unliquidated entries.'"50
2.14. As regards the opinion in Tembec v. United States51 (Tembec opinion), Viet Nam noted the
USCIT's finding that "section 129 cannot be read to imply authority for the USTR to order the
implementation of a section 129(a) determination that does not result in at least partial revocation
of a related [anti-dumping], [countervailing duty], or safeguards order." 52 Viet Nam argues that
the Panel incorrectly declined to accept the textual and contextual guidance Viet Nam claimed was
present in Tembec v. United States because "[t]he Court expressly avoided deciding the issue of
whether relief in the form of refunds of cash depo sits would be available following issuance of a
Section 129 determination containing a finding of threat of material injury replacing a prior, WTO-
inconsistent, finding of present injury." 53 For Viet Nam, this was not an objective examination
consistent with Article 11 of the DSU, but a "tailored analysis" to support the Panel's conclusion at
the outset that the meaning of Section 129(c)(1) was clear on its face.
54
2.15. In the light of the foregoing, Viet Nam submits that the Panel addressed the contextual
evidence put forward by Viet Nam, if at all, by means of individual elimination. According to
Viet Nam, the Panel's conclusion that "the pattern of Section 129 decisions could not 'in and of
itself' demonstrate that USDOC legally cannot 'extend the benefits of implementation' (to use
Viet Nam's formulation) to prior unliquidated entries, or that 'it does not establish' that
Section 129(c)(1) has that effect", is not objective.
55 Viet Nam alleges that the Panel's approach is
not based on a holistic assessment of all of the evidence presented to it and is, therefore, not
consistent with the objective principles of statutory interpretation. Viet Nam contends that the
Panel examined individual pieces of evidence, finding that they failed to contradict its prior
conclusion, rather than examining the eviden ce as a whole and assessing how each piece
reinforced the other. Had the Panel considered th e contextual elements before it in unison, or
holistically, it might have reached a different conclusion as to the meaning of Section 129(c)(1).
Viet Nam claims that the Panel acted inconsistently with its obligations under Article 11 of the DSU
by failing to do so.
2.16. Viet Nam explains that, given the erroneous analysis by the Panel of the application and
effect of Section 129(c)(1), the Panel did not address whether Section 129(c)(1), as properly
understood and interpreted, is WTO-inconsiste nt "as such". Viet Nam suggests that the

47 Panel Exhibit VN-36.
48 Viet Nam's appellant's submission, para. 91 (referring to Corus Staal opinion (Panel Exhibit VN-36),
p. 17).
49 Viet Nam's appellant's submission, para. 91 (quoting Appellate Body Report, US – Zeroing (Japan)
(Article 21.5 – Japan), para. 161).
50 Viet Nam's appellant's submission, para. 92 (quoting Panel Report, para. 7.268).
51 Panel Exhibit VN-37.
52 Viet Nam's appellant's submission, para. 94 (quoting Tembec opinion (Panel Exhibit VN-37), p. 13).
53 Viet Nam's appellant's submission, para. 97 (quoting Panel Report, fn 398 to para. 7.269).
54 Viet Nam's appellant's submission, para. 98.
55 Viet Nam's appellant's submission, para. 105 (quoting Panel Report, para. 7.264).

Appellate Body has the information necessary to complete the legal analysis based on a correct
understanding and interpretation of Section 129(c)(1). Therefore, Viet Nam requests the
Appellate Body to complete the legal analysis and find that, in specific circumstances, prior
unliquidated entries will always be denied the benefits of WTO implementation because of
Section 129(c)(1), and not because of the operation of other provisions of US law. Based on this
finding, Viet Nam requests the Appellate Body to find further that Section 129(c)(1) is inconsistent
"as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement by requiring the
USDOC to make administrative review determinatio ns and to assess anti-dumping duties on prior
unliquidated entries after the USTR directs implementation, notwithstanding that the elements
needed for the United States to make a finding of injurious dumping and to levy duties against
those entries as provided in the original determination are no longer present.
2.17. More specifically, Viet Nam claims that Section 129(c)(1) is inconsistent "as such" with
Article 9.2 of the Anti-Dumping Agreement because it prohibits the imposition and collection of the
appropriate amount of anti-dumping duties on prior unliquidated entries and only permits the
imposition and collection of the appropriate amount of anti-dumping duties on entries made after
the USTR implementation date.
56
2.18. Viet Nam further claims that Section 129(c)(1) is inconsistent "as such" with Article 9.3 of
the Anti-Dumping Agreement because it precludes the USDOC from pursuing a refund action for
prior unliquidated entries, even though such refund action is mandated by Article 9.3. According to
Viet Nam, any Section 129 determination is effective only from the USTR implementation date,
which excludes prior unliquidated entries.
2.19. In addition, Viet Nam alleges that Section 129(c)(1) is inconsistent "as such" with
Article 11.1 of the Anti-Dumping Agreement becaus e it requires continued application (to prior
unliquidated entries) of anti-dumping duties even though the anti-dumping order has been
revoked as a result of a USDOC finding of no dumping or subsidization, or a finding by the
US International Trade Commission (USITC) of no injury. Yet, pursuant to Article 11.1,
anti-dumping duties may not be imposed in the absence of positive evidence of dumping or injury,
the objective conditions required to impose an anti-dumping duty.
2.20. Finally, Viet Nam suggests that, consistent with the findings of prior panel findings, any
violation of Article VI of the GATT 1994 or other provisions of the Anti-Dumping Agreement results
in a violation of Article 1 of the Anti-Dumping Agreement.
57 Similarly, Article 18.1 of the
Anti-Dumping Agreement prevents WTO Members from taking any specific action against dumping
of exports from another Member except in acco rdance with the provisions of the GATT 1994, as
interpreted by the Anti-Dumping Agreement. Hence, Viet Nam argues that, as Section 129(c)(1) is
inconsistent "as such" with Articles 9.2, 9.3, and 11.1 of the Anti-Dumping Agreement, it is also
inconsistent "as such" with Articles 1 and 18.1 of the Anti-Dumping Agreement.
2.2 Arguments of the United States – Appellee
2.21. The United States argues that Viet Nam has failed to establish that the Panel breached its
duty under Article 11 of the DSU when it found that Section 129(c)(1) does not prevent the
United States from implementing recommendations and rulings by the DSB, including with regard
to prior unliquidated entries.
2.22. As regards the nature of Viet Nam's claim under Article 11 of the DSU, the United States
considers that the interpretation of the scope of the measure at issue under US municipal law is
one of the facts to be assessed by a panel in the course of the proceedings. Having determined the
facts, the panel must then proceed to employ th ose facts in addressing the legal issues of the
applicability and conformity of the measure at issue with the covered agreements, including any
necessary interpretations of the covered agreements. For these reasons, the United States agrees

56 Viet Nam's appellant's submission, para. 115 (referring to Panel Report, EC – Salmon (Norway),
para. 7.704).
57 Viet Nam's appellant's submission, para. 120 (referring to Panel Report, US – 1916 Act (EC),
para. 6.208).

with Viet Nam that the type of arguments raised by Viet Nam involve a claim under Article 11 of
the DSU.58
2.23. However, the United States disagrees with Viet Nam's assertion that it has shown that the
Panel breached its duty under Article 11 of the DSU. 59 According to the United States, Viet Nam
cannot support a claim under Article 11 of the DSU – alleging a failure to make an objective
assessment of the factual record – based on evid ence that was not on the record in the Panel
proceedings.60
2.24. The United States adds that the mere fact that the Panel did not explicitly refer to
Viet Nam's evidence of Category 1 entries in its reasoning is insufficient to support Viet Nam's
claim of a violation under Article 11 of the DSU.
61 In any event, the United States notes that the
distinction between Category 1 entries and other entries was not made before the Panel. Hence,
Viet Nam cannot contend that the Panel breached Article 11 of the DSU by not considering new
arguments on facts that were never presented to the Panel.
2.25. The United States also disagrees with Viet Nam's argument that the Panel applied an
incorrect legal standard for the assessment of an "as such" claim, suggesting that Viet Nam takes
the Panel's statements out of context. According to the United States, the Panel did not purport to
set out a general standard of review for an "as such" claim. Rather, the Panel was properly
engaged in a careful examination of Viet Nam's own theory, namely, that Section 129(c)(1)
prevented the WTO-consistent treatment of prior unliquidated entries. Thus, in order to address
Viet Nam's claim that Section 129(c)(1) "serves as an absolute legal bar to any refund of duties" 62
for prior unliquidated entries, the United States stresses that the Panel was within its discretion to
rely on the impact of Section 123 of the URAA on certain types of entries (i.e. prior unliquidated
entries for which no administrative review determination has been issued), which is wholly
unaffected by Section 129(c)(1). This, combined with the fact that Viet Nam presented "no
rationale" to the Panel as to why Section 129(c)(1) would serve as an "express prohibition" of
WTO-consistent action to only a unique subset of prior unliquidated entries, disproves Viet Nam's
theory and provides the proper context for th e section of the Panel Report highlighted by
Viet Nam. The United States also highlights that Viet Nam challenged only Section 129(c)(1), and
not other provisions of US law and their impact on the ability of the United States to implement
DSB recommendations and rulings. As such, the United States contends that Viet Nam cannot
seek, on appeal, to expand the Panel's terms of reference to include an examination of other
means that might allow WTO-consistent action in relation to prior unliquidated entries and their
alleged shortcomings.
2.26. The United States disputes Viet Nam's contention that Section 129 of the URAA is the
"exclusive authority to implement adverse WTO determinations by means of a new administrative
determination".
63 The United States also disagrees with Viet Nam's claim that, "because
Section 129(c)(1) '[o]n its face, … explicitly limits any legal effect given a Section 129
determination in relation to [prior] unliquidated entries' Section 129(c)(1) is inconsistent with
Articles 1, 9.2, 9.3, 11.1, and 18.1 of the [Anti-Dumping] Agreement." 64 Instead,
Section 129(c)(1) addresses the implementation of a determination made under Section 129 in
response to DSB recommendations and rulings to unliquidated entries of the subject merchandise
entered on or after the date that the USTR directs implementation. According to the United States,
Section 129(c)(1) does not speak to other actions that the United States may take to comply with
DSB recommendations and rulings.

58 United States' appellee's submission, paras. 8-14 (referring to Appellate Body Reports, China – Rare
Earths, paras. 5.173-5.174; US – Countervailing and Anti-Dumping Measures (China), para. 4.101; US –
Carbon Steel, paras. 143 and 146; China – Auto Parts, para. 225; and Panel Report, US – Section 301 Trade
Act, para. 7.18).
59 United States' appellee's submission, paras. 14 and 17.
60 United States' appellee's submission, para. 18 (referring to Viet Nam's appellant's submission,
para. 18 and fn 11 thereto (quoting Yule Kim, Statutory Interpretation: General Principles and Recent Trends,
Congressional Research Service (31 August 2008), p. 2)).
61 United States' appellee's submission, para. 51 (referring to Appellate Body Report, EC – Fasteners
(China), para. 442).
62 United States' appellee's submission, para. 91 (quoting Panel Report, fn 348 to para. 7.243).
(emphasis added by the United States)
63 United States' appellee's submission, para. 27 (quoting Viet Nam's appellant's submission, para. 82).
64 United States' appellee's submission, para. 27 (quoting Viet Nam's appellant's submission, para. 73).

2.27. The United States also points out that Viet Nam accepts that the statutory text of
Section 129 supports the Panel's finding that the fa ct that "Section 129 may be the only explicit
statutory provision governing the effective date of US Government determinations to implement
DSB recommendations and rulings in our view cannot justify an interpretation of the statute … that
is unsupported by its terms." 65 Nor does the text indicate that Section 129 is the exclusive
mechanism for implementing DSB recommendations and rulings. Hence, for the United States,
Viet Nam's conclusory argument does not support a finding that the Panel made an egregious
error, breaching its duty under Article 11 of the DSU.
2.28. In sum, the United States argues that the Panel's conclusion that Section 129(c)(1) does
not preclude WTO-consistent treatment of prior unliquidated entries rests upon the plain meaning
of the text of Section 129(c)(1), a proper understanding of the statutory scheme in which
Section 129(c)(1) operates, as well as findings regarding the SAA, US practice, and decisions from
US domestic courts. The Panel's conclusion was also consistent with the panel report in US –
Section 129(c)(1) URAA.
2.29. Hence, the United States refutes Viet Nam's claim that the Panel committed egregious error
when it purportedly ended its analysis after finding "silence" in Section 129(c)(1) regarding prior
unliquidated entries. To the contrary, the Panel found that the United States could address (and, in
fact, has addressed) prior unliquidated entries though other mechanisms, thereby negating
Viet Nam's claim that Section 129(c)(1) precludes the United States from implementing
DSB recommendations and rulings with respect to prior unliquidated entries.
66 Thus, Viet Nam's
arguments that the Panel failed to make an objective assessment under Article 11 of the DSU
should fail.
2.30. In further support of its position, the United States contends that the phrase in the SAA –
"relief available under subsection 129(c)(1)" – that Viet Nam relies on does not indicate that this
relief would be exclusive. Rather, the SAA "plainly" indicates that relief under Section 129 is not
necessarily exclusive, acknowledging that there may be ways to implement DSB recommendations
and rulings besides through Section 129, such as through an administrative review.
67 The
United States, therefore, submits that the Panel was correct in concluding that "[n]othing in the
SAA suggests that Section 129(c)(1) concerns itself with in any way, or itself has any effect on,
prior unliquidated entries."
68
2.31. According to the United States, the fact that, in the SAA, Congress explained that
Section 129 provides the USDOC with authority to ensure compliance as to a particular set of
entries does not mean that Congress sought to preclude WTO-consistent action with respect to
prior unliquidated entries. Moreover, the fact th at only Congress and the executive branch of the
US Government can implement DSB recommendations and rulings does not provide support for
Viet Nam's claim that Section 129(c)(1) precludes WTO-consistent action as to prior unliquidated
entries.
2.32. The United States contends further that US practice does not support Viet Nam's claim.
First, Viet Nam's examples show only how Section 129 has been applied and do not reflect the
other options that the United States may have to implement DSB recommendations and rulings.
Second, the USDOC has modified its treatment of prior unliquidated entries in "numerous
instances".
69 The United States emphasizes that the Panel objectively assessed this information
and correctly concluded that US practice does not establish that the US Government is precluded
from affording WTO-consistent treatment to prior unliquidated entries.
70
2.33. The United States also avers that the Panel properly found that Viet Nam misrepresented
the decisions of the USCIT, adding that these decisions do not support Viet Nam's claim that the
Panel committed egregious error. The United States points out that the passages cited by

65 United States' appellee's submission, para. 30 (quoting Panel Report, para. 7.259). (underlining
added by the United States)
66 United States' appellee's submission, paras. 34-35 (referring to Panel Report, paras. 7.255
and 7.266).
67 United States' appellee's submission, paras. 59-62 (referring to SAA (Panel Exhibit VN-34),
pp. 1025-1026).
69 United States' appellee's submission, para. 70 (referring to Panel Exhibits US-18, US-19, and US-20).
70 United States' appellee's submission, paras. 71-72 (referring to Panel Report, paras. 7.263-7.264).

Viet Nam from the USCIT's Corus Staal opinion and, in particular, the statement that "revocation
of an anti-dumping order [under Section 129] a pplies prospectively on a date specified by the
USTR", does not say that Section 129(c)(1) prevents WTO-consistent liquidation of prior
unliquidated entries.
71 Similarly, the United States contends that Viet Nam's reliance on the
USCIT's Tembec opinion is based on a "fundamental misunderstanding" of the scope of
determinations implemented pursuant to Section 129. 72 The United States asserts that the Panel
correctly found that only determinations made and implemented under Section 129 are within the
scope of Section 129(c)(1). In the view of the United States, the Panel correctly recognized that
the USCIT's Tembec opinion merely confirms that Section 129 has limited effects and does not
suggest that Section 129(c)(1) precludes US authorities from implementing with respect to prior
unliquidated entries.
73
2.34. The United States submits that the Panel conducted a holistic analysis and properly
considered other US measures in its analysis. In particular, the United States points to the other
mechanisms by which it could comply, and has complied, with DSB recommendations and rulings
with respect to prior unliquidated entries. According to the United States, this disproves Viet Nam's
claim that Section 129(c)(1) is a "legal bar" to the WTO-consistent treatment of prior unliquidated
entries.
74 In this respect, and in response to questioning at the oral hearing, the United States
observed that there is an inherent tension between Viet Nam's focus on the need for the
United States to do a redetermination and the DSU, which states that the withdrawal of the
WTO-inconsistent measure is the preferred outcome.
2.35. Additionally, the United States highli ghts Section 123 of the URAA, explaining that
Section 123(g) addresses changes in agency regulations or practice to render them consistent with
DSB recommendations and rulings. The United St ates argues that the adoption of a change
pursuant to Section 123 could result in WTO-consistent determinations in administrative reviews
covering prior unliquidated entries. For example, the date on which a change is implemented
under Section 123 could be before the implemen tation date of a determination made under
Section 129. The United States insists that it has afforded WTO-consistent treatment to prior
unliquidated entries, as the Panel found, and as Viet Nam's own evidence in this dispute
demonstrates.75 The United States points out that Viet Nam concedes on appeal that, "under
certain factual scenarios, actions under … distinct provisions of U.S. law may intersect between the
amendment of a regulation or practice under Se ction 123 on the one hand, and the application of
the amended regulation or practice in the context of a Section 129 proceeding on the other."
76
According to the United States, this undermines the basis for Viet Nam's claimed error, as it
recognizes that Section 129(c)(1) does not "serve as an absolute legal bar" vis-à-vis prior
unliquidated entries.
77
2.36. The United States disagrees with Viet Nam's assertion that Section 123 and administrative
reviews cannot reach prior unliquidated entries for which an administrative determination has
already been issued, i.e. Category 1 entries. The United States also contests Viet Nam's argument
that the existence of Category 1 entries prov es the WTO-inconsistency of Section 129(c)(1),
highlighting that Section 129(c)(1) makes no distinction between what Viet Nam calls Category 1
and Category 2 entries.
2.37. The United States further opposes the premise of Viet Nam's distinction between Category 1
and Category 2 entries. The United States submits that, while Viet Nam considers Category 1
entries to be entries for which the administrative review process is completed, it fails to
acknowledge that, where there has been an initial administrative determination, the prior
unliquidated entries remain unliquidated for the very reason that the entries are subject to
domestic litigation, and domestic litigation may result in further administrative proceedings. The

71 United States' appellee's submission, para.79 (quoting Viet Nam's appellant's submission, para. 90, in
turn quoting Corus Staal opinion (Panel Exhibit VN-36), p. 17).
72 United States' appellee's submission, para. 86.
73 United States' appellee's submission, para. 86 (referring to Panel Report, paras. 7.259, 7.262,
and 7.269, in turn referring to Panel Report, US – Section 129(c)(1) URAA, paras. 6.53 and 6.80).
74 United States' appellee's submission, paras. 38-39 (referring to Viet Nam's appellant's submission,
para. 45).
75 United States' appellee's submission, paras. 39-41 (referring to Panel Report, paras. 7.265-7.266;
and Panel Exhibits US-10, US-18, US-19, US-20, VN-42, and VN-55).
76 United States' appellee's submission, para. 42 (quoting Viet Nam's appellant's submission, para. 25).
77 United States' appellee's submission, para. 42.

United States explains that, under the US system, courts generally do not modify administrative
determinations but, rather, if a challenge is successful, remand the matter for further
administrative proceedings. The United States asserts that Viet Nam's acknowledgement of the
availability of WTO-consistent treatment "in the context of a judicial remand" is fatal to Viet Nam's
"artificial" category distinctions, and provides no basis for a finding that the Panel somehow erred
in not finding such distinctions within the ambit of Section 129(c)(1).
78
2.38. Even so, with respect to alternative mean s of implementation of DSB recommendations and
rulings, the United States contends that it may afford WTO-consistent treatment to prior
unliquidated entries through legislation. The US Congress may enact legislation that achieves
compliance with respect to prior unliquidated entries, either through an act aimed directly at
specific unliquidated entries, or through a change in the anti-dumping law that would impact
unliquidated entries, for example, through the administrative review process, much like a
Section 123 determination. The United States asserts that the fact that legislation can and has
brought the United States into compliance with DSB recommendations and rulings is directly at
odds with Viet Nam's central assertion, that Section 129(c)(1) is the sole mechanism by which the
United States can come into compliance with DSB recommendations and rulings and, therefore,
precludes the United States from bringing a measure into compliance with some future
DSB recommendation and ruling vis-à-vis prior unli quidated entries. The United States clarifies
that its argument is not that Section 129(c)(1) is WTO-consistent because Congress can change
Section 129 so that it applies to prior unliquidated entries. Rather, the United States submits that,
where action is to be taken in relation to prior unliquidated entries that are not addressed by
action taken pursuant to administrative or other mechanisms, such action could be taken by
means of legislation. The United States highlights that it did in fact take this route for
implementation in the US – 1916 Act disputes.
79
2.39. The United States submits that Sect ion 123 and congressional action are only two
mechanisms within a larger domestic scheme by which the United States maintains the discretion
to bring itself into compliance with DSB recommendations and rulings. Thus, Viet Nam's attempts
to have the Appellate Body analyse Section 129(c)(1) in isolation from other parts of this domestic
scheme should be rejected. For the United States, the insistence by Viet Nam that the Panel
should have engaged in a limited inquiry and ignored other relevant US laws is a position that is
inconsistent with the basic principles under which the DSB examines "as such" challenges to
Members' measures.
2.40. The United States stresses that the Panel properly found that Viet Nam had failed to
establish its factual allegation that Section 129(c)(1) precludes implementation with respect to
prior unliquidated entries. Thus, Viet Nam has no basis for any claim that the Panel committed
egregious error in its objective assessment of Viet Nam's factual assertions. Accordingly, the
United States posits that there is no occasion for the Appellate Body to complete the legal analysis
with respect to Viet Nam's claim that Section 129(c)(1) is inconsistent "as such" with Articles 1,
9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement.
2.41. In any event, the United States considers that Viet Nam's argument regarding completion of
the legal analysis fails for three reasons. First, although Viet Nam contends that Section 129(c)(1)
is inconsistent "as such" with the Anti-Dumping Agreement, that Agreement does not contain any
implementation obligations, and any claims vis-à-vis the DSU would be outside the terms of
reference applicable to this dispute. Second, the application of the correct standard for "as such"
claims demonstrates that Section 129(c)(1) does not mandate WTO-inconsistent action. Third,
Viet Nam's argument impermissibly speculates as to how the United States will respond in the
future to DSB recommendations and rulings.
2.42. With respect to the first reason, the United States asserts that Section 129 governs certain
procedures for implementation of DSB recommendations and rulings, while the provisions of the
Anti-Dumping Agreement cited by Viet Nam do not contain any affirmative obligations with respect
to implementation of DSB recommendations and rulings. According to the United States, in the

78 United States' appellee's submission, paras. 52-54 (referring to Viet Nam's appellant's submission,
paras. 1 and 66; and United States' response to Panel question No. 68).
79 United States' appellee's submission, para. 46 and fn 88 thereto (quoting Miscellaneous Trade and
Technical Corrections Act of 2004, Public Law No. 108-429 (3 December 2004), Title II, Section 2006(a),
118 Stat. 2434, p. 2597 (Panel Exhibit US-80), where the US Congress repealed the Act of 8 September 1916).

anti-dumping context, the DSU is the only WTO agreement that addresses Members' obligations
regarding implementation. Hence, Viet Nam's "as such" claim with regard to Section 129(c)(1)
involves a "fundamental mismatch" between the content of Section 129(c)(1) and the types of
obligations cited as the basis for the asserted "as such" WTO breach.
80 Consequently, the
United States requests the Appellate Body to reject Viet Nam's argument that Section 129(c)(1)
breaches obligations under the Anti-Dumping Agreement.
2.43. Secondly, the United States points out that panels and the Appellate Body have determined
whether a measure is inconsistent "as such" with a Member's obligations by examining whether
the measure in question either necessitates a breach of those obligations or precludes a Member
from operating in a WTO-consistent manner.
81 Applying such an analytical approach to the facts
and measure at issue in this dispute, and assuming arguendo that Section 129(c)(1) is the
exclusive means of implementation with respect to certain prior unliquidated entries, the
United States emphasizes that nothing in Sect ion 129(c)(1) requires a breach of the covered
agreements. Rather, the discretion afforded to the USTR not to request that a Section 129
determination be initiated or not to direct that a Section 129 determination be implemented itself
presupposes that the USTR could select another means for implementation in a particular dispute,
such as seeking action by the US Congress. If the USTR were not to seek such alternative action in
a particular dispute, it is that action (or inaction) that would potentially result in a failure to
implement DSB recommendations and rulings. Citing past panel and Appellate Body reports
82, the
United States submits that the analytical approach underlying the mandatory/discretionary
distinction illustrates that Section 129(c)(1) is not inconsistent "as such" with the
Anti-Dumping Agreement because the USTR has the discretion: (i) not to use Section 129 to
implement DSB recommendations and rulings; and (ii) not to implement Section 129
determinations (for example, if there happen to be so-called Category 1 entries).
2.44. As regards the third reason, the United States argues that Viet Nam speculates that the
United States will choose to undertake any future implementation exclusively by means of
Section 129 of the URAA. The United States highlight s that a claim based on a prediction of how a
Member will operate in the future in response to DSB recommendations and rulings is a claim that
is based on speculation and, thus, fails. Although the United States has established in advance two
mechanisms (i.e. Sections 123 and 129) that it may utilize to comply with DSB recommendations
and rulings, that does not in any way diminish the ability of the United States to choose another
means, or create another mechanism, at such time as there are relevant DSB recommendations
and rulings. For the United States, Viet Nam's position is "incoherent and untenable", as it would
require the Appellate Body to make a finding now as to precisely how the United States will
implement DSB recommendations and rulings in the future.
83
2.3 Arguments of the third participants
2.3.1 China
2.45. With respect to Viet Nam's claim that the Panel breached its duty under Article 11 of the
DSU, China submits that the Panel overlooked the context in which Section 129(c)(1) operates,
which, in turn, affected its treatment of the inte rpretative guidance provided in the SAA and the
application of Section 129 of the URAA.
2.46. China posits that Article 11 of the DSU requires a panel to conduct an objective and detailed
examination of the content and meaning of the statutory provisions at issue and, for this purpose,
undertake a holistic assessment of all relevant elements, including, inter alia, the text and context
of the statutory provisions, consistent application of such provisions, and relevant legal
interpretation given by domestic courts. A panel is also required to base its finding with respect to

80 United States' appellee's submission, para. 101.
81 United States' appellee's submission, para. 102 (referring to Appellate Body Report, US – Carbon
82 United States' appellee's submission, paras. 103-104 (quoting Appellate Body Report, US – Carbon
Steel (India), para. 4.483; and referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset
Reviews (Article 21.5 – Argentina), para. 121; and Panel Reports, China – Raw Materials, paras. 7.776, 7.783,
7.786, and 7.796; and EC – IT Products, paras. 7.113-7.115).
83 United States' appellee's submission, para. 113.

the meaning of municipal law on a sufficient evidentiary basis, and to provide reasoned and
adequate explanations.84
2.47. China contends that, while the Panel conducted an examination of most of the evidence put
forward by Viet Nam, as well as the relevant arguments of the United States, the Panel isolated
Section 129(c)(1) from its context. China acknowledges that the Panel was correct in indicating
that Viet Nam challenged only Section 129(c)(1) in this dispute. However, the meaning and legal
effect of this provision should be ascertained in its context. In this regard, China recalls that
Viet Nam presented to the Panel Sections 102(a)(1) and 102(a)(2) of the URAA, and argued that
these provisions confirm that Section 129 is the exclusive authority under US law for the
United States to comply with adverse DSB ru lings concerning trade remedy measures. China
asserts that the Panel should have examined the meaning of these provisions as well as their
relation to Section 129. However, China notes that there is no discussion of these two provisions in
the Panel Report. China considers that the Panel's overlooking of the context and, in particular,
Sections 102(a)(1) and 102(a)(2) significantly un dermines its conclusion regarding the meaning
and effect of Section 129(c)(1).
85 Likewise, China is of the view that the Panel's reading of the SAA
and its views regarding the application of Section 129 were affected by the Panel's overlooking of
the context of Section 129(c)(1).
2.48. According to China, it may be sufficient for a complainant to establish that the measures
under an "as such" challenge will necessarily lead to WTO-inconsistent conduct in certain
instances. Given that it is undisputed that Section 129(c)(1) forecloses implementation of
Section 129 determinations with respect to prior unliquidated entries, and Viet Nam appears to
have demonstrated that there are certain prior unliquidated entries for which the DSB
recommendations and rulings can only be implem ented under Section 129, China considers that
Viet Nam has established the preclusive effect of Section 129(c)(1) and discharged its burden of
proof.
2.49. China opines that the Panel appeared to have required Viet Nam, in order to succeed in its
"as such" claims, to demonstrate that Section 129(c)(1) precludes implementation of
DSB recommendations and rulings with respect to the entirety of prior unliquidated entries.
86
China relies on past Appellate Body reports to assert that it is not necessary for a complainant to
establish that the measures under an "as such" challenge necessarily lead to WTO-inconsistent
conduct in all instances or in every case.
87 Rather, it may be sufficient if the complainant can
establish that such measures will necessarily lead to WTO-inconsistent conduct in certain future
instances. For China, given that Section 129(c)(1) precludes implementation in respect of prior
unliquidated entries, the answer to the question of whether Section 129(c)(1) necessarily
precludes implementation of DSB recommendatio ns and rulings in respect of some prior
unliquidated entries depends on the answer to the question of whether Section 129 is the sole
legal authority for the United States to implement DSB recommendations and rulings for all prior
unliquidated entries. It appears to China that the answer to the latter question is "yes" based on
its reading of Section 123 of the URAA, its understanding of the mandate of the USDOC to conduct
a subsequent administrative review with respect to prior unliquidated entries in accordance with
DSB recommendations and rulings, and its consideration that the United States' arguments that it
may implement DSB recommendations and rulings through legislation and judicial remand are
"unpersuasive".
88 Therefore, since Section 129(c)(1) forecloses implementation of Section 129
determinations as to prior unliquidated entries, China submits that this provision precludes
implementation of DSB recommendations and rulings with respect to Category 1 entries. This, in
China's view, suffices to discharge the burden of proof for an "as such" claim.

84 China's third participant's submission, paras. 7-9 (referring to Appellate Body Reports, US – Carbon
Steel (India), para. 4.445; US – Countervailing and Anti-Dumping Measures (China), para. 4.101; US – Carbon
85 China's third participant's submission, paras. 11-13 (referring to Panel Report, paras. 7.258-7.259;
Viet Nam's first written submission to the Panel, paras. 224-226; and Section 102(d) of the URAA (Panel
Exhibit VN-33)).
86 China's third participant's submission, para. 16 (referring to Panel Report, para. 7.266).
87 China's third participant's submission, paras. 17-18 (referring to Appellate Body Reports, US – Oil
Country Tubular Goods Sunset Reviews, para. 172; US – Corrosion-Resistant Steel Sunset Review, para. 93;
and US – Countervailing Measures on Certain EC Products, fn 334 to para. 159).
88 China's third participant's submission, paras. 23-24.

2.50. China disagrees with the United States' argument that the Anti-Dumping Agreement does
not contain any implementation obligations, and that any claims vis-à-vis the DSU would be
outside the terms of reference applicable to this dispute. Instead, China considers that "it is not
inappropriate" to invoke the Anti-Dumping Agreement as a legal basis to challenge
Section 129(c)(1).
89
2.51. China submits that there are two levels of obligations under the WTO legal system. First, in
accordance with Articles II:2 and XVI:4 of the Marrakesh Agreement Establishing the World Trade
Organization (WTO Agreement) and Article 3.3 of the DSU, the WTO Agreement and the
Multilateral Trade Agreements annexed thereto are binding on all WTO Members, and each
Member has the obligation to ensure the conformity of its laws, regulations, administrative
procedures, and other measures with the covered agreements. Second, as required by
Articles 19.1, 21.1, and 21.3 of the DSU, when the DSB adopts a panel or Appellate Body report
that has found a measure to be inconsistent with a covered agreement and has recommended that
the Member concerned bring the measure into co nformity with that agreement, the Member
concerned has the obligation to comply with the recommendations and rulings of the DSB. China
posits that these two obligations are not mutually exclusive, but overlap in certain circumstances.
The obligation to conform to the covered agreements is a fundamental obligation applying to all
WTO Members all the time, while the obligation to comply with the DSB recommendations and
rulings is a derived obligation applying to a Member concerned when the DSB recommends it to do
so. In other words, the Member concerned bears both obligations simultaneously. In China's view,
by failing to comply with DSB recommendations and rulings immediately or within a reasonable
period of time, the Member concerned not only viol ates the obligation under the provisions of the
DSU, but also remains in violation of the obligation under the relevant covered agreement, such as
the Anti-Dumping Agreement.
90
2.3.2 European Union
2.52. The European Union considers that the underlying substantive issue in this case concerns
the manner in which Members must comply with a DSB ruling that a measure imposing
anti-dumping duties is WTO-inconsistent, an d a DSB recommendation that the measure be
brought into conformity with the Anti-Dumping Ag reement. Specifically, the issue relates to the
temporal aspects of compliance. For the European Union, this question was already decided by the
Appellate Body in the compliance proceedings br ought by the European Union and Japan against
the United States in the zeroing cases.91
2.53. The European Union observes that WTO law does not require Members to enact general
measures pertaining to implementation, nor does it require the putting in place of a mechanism to
comply with DSB recommendations and rulings, or to bring a measure into conformity with
WTO obligations. According to the European Union, the only obligation on Members is to ensure
the conformity of their laws, regulations, and administrative procedures with their obligations as
provided in the WTO Agreement, and, in principle, this can be achieved with or without such a
general measure. However, if a Member chooses to enact such a general measure, then it must be
WTO-consistent. In particular, it must "ensure" conformity and compliance with respect to all the
relevant compliance parameters: the territories of the exporting and importing Members; the
measures at issue; the products at issue; the enterprises at issue; the duties at issue; and, of
particular relevance in this case, the temporal scope of compliance.
92
2.54. In the view of the European Union, Section 129(c)(1) is not a measure that ensures
"conformity and compliance" with the United States' WTO obligations as provided under the
covered agreements.93 This is because Section 129(c)(1) does not identify "final liquidation" as the
relevant event that governs its application; in stead, it identifies the relevant event as

89 China's third participant's submission, para. 4.
90 China's third participant's submission, paras. 27-29 (referring to Appellate Body Report, US – Zeroing
(Japan) (Article 21.5 – Japan), para. 213(b); and Panel Report, US – Zeroing (Japan) (Article 21.5 – Japan),
paras. 7.154-7.155 and 7.188-7.190).
91 European Union's third participant's submission, paras. 10-14 (referring to Appellate Body Reports,
US – Zeroing (EC) (Article 21.5 – EC); and US – Zeroing (Japan) (Article 21.5 – Japan), paras. 154-187).
92 European Union's third participant's submission, paras. 21 and 26 (referring to Article XVI:4 of the
WTO Agreement and Article 18.4 of the Anti-Dumping Agreement).
93 European Union's third participant's submission, para. 23.

"import[ation]".94 For Section 129(c)(1) to ensure "conformity and compliance", importation would
have to be a proxy for final liquidation. For example, if final liquidation would always occur one
month after importation, then importation could be a proxy for final liquidation, provided that the
date fixed by the USTR would always be one month prior to the end of the reasonable period of
time. However, it appears to the European Union that Section 129(c)(1) provides for no such
relationship, the period during which final li quidation may be delayed and/or suspended by
"municipal [court] injunction"
95 being variable and uncertain. Therefore, the measure at issue does
not ensure conformity and compliance.
2.55. The European Union provides the following scenario to further illustrate its point. On
31 December 2014, the DSB finds that US law provid ing for zeroing in each of the five types of
anti-dumping investigations foreseen in the Anti-Dumping Agreement (original, newcomer,
interim, sunset, assessment, or refund) is WTO-inconsistent, as well as instances of the application
of such law. The United States decides to comply immediately, with effect from 1 January 2015, as
regards to both "as such" and "as applied" findings. The date fixed by the USTR is 1 January 2015.
All imports entering after that date are not subject to zeroing. Compliance is ensured for these
imports. But what about imports prior to 1 January 2015? Absent any other compliance measure,
they will be liquidated with zeroing, even when final liquidation occurs after 1 January 2015. In
this event, the European Union considers that compliance will not have been achieved.
2.56. The European Union considers that the way in which the Panel framed the question,
following the arguments of Viet Nam, is not the mo st appropriate. Rather than asking whether or
not the measure requires WTO-inconsistent action or precludes WTO-consistent action, a more
appropriate question would have been whether or not the measure ensures conformity in the
specific context of compliance. Referring to pa st Appellate Body reports, the European Union
suggests that, while the so-called mandatory/discretionary distinction is a useful analytical tool, it
is not to be mechanistically applied.
96 The same is true for the "as such"/"as applied" distinction.
The European Union asserts that the question of "as such" consistency or inconsistency is better
assessed by taking into account the precise wording of the relevant WTO obligation – here, the
obligation to ensure conformity in the specific context of compliance.
2.57. The European Union also considers that the Panel's approach of reasoning that the measure
at issue simply does not speak to the fate of prior unliquidated entries is "unsatisfactory".
97 The
European Union suggests that "a more reasonable and balanced approach would entail looking at
the whole system, and understanding the role that the measure at issue has to play, in the real
world, when it comes to the US approach to this specific temporal compliance issue." 98 In the view
of the European Union, a better question to ask wo uld be whether or not the measure at issue, in
taking the date of import as the date of reference, ensures conformity and compliance.
2.58. The European Union adds that the issue of an "interpretation in conformity rule" – in
US municipal law, the Charming Betsy doctrine – is relevant to the question of the reception of
WTO law into the municipal law of any WTO Member, and, specifically, to the way in which the
so-called mandatory/discretionary analytical tool is to be applied – that is, in a non-mechanistic
way. The European Union opines that, because, in US municipal law, the URAA is considered to
override the Charming Betsy doctrine, this should have been a pertinent consideration for the
Panel. For the European Union, absent an "interpretation in conformity rule" in US law,
Section 129(c)(1) cannot escape a finding of "as such" inconsistency, based on a mechanistic
application of the so-called mandatory/discretionary analytical tool.
2.59. While the European Union requests the A ppellate Body to address the reasoning employed
by the Panel, the European Union nevertheless invites the Appellate Body to reject Viet Nam's
appeal, because Viet Nam did not make claims under either Article XVI:4 of the WTO Agreement
or Article 18.4 of the Anti-Dumping Agreement.

94 European Union's third participant's submission, para. 23.
95 European Union's third participant's submission, para. 23.
96 European Union's third participant's submission, para. 27 (referring to Appellate Body Reports, US –
Corrosion-Resistant Steel Sunset Review, para. 93; and US – Continued Zeroing, para. 179).
97 European Union's third participant's submission, para. 28.
98 European Union's third participant's submission, para. 28.

2.3.3 Japan
2.60. Japan observes that the Panel appears to have taken the position that a complainant would
not establish a prima facie case for its "as such" claim when the measure can be applied in a
WTO-consistent manner in some cases, irrespective of its application in other cases, that could
result in a WTO-inconsistency. However, Japan agrees with Viet Nam's argument that evidence
showing that the United States may apply its implementation measures to "some prior
unliquidated entries" does not provide a sufficient basis to reject Viet Nam's "as such" claim.
Referring to prior panel and Appellate Body report s, Japan notes that, by definition, an "as such"
claim challenges laws, regulations, or other in struments of a Member that have general and
prospective application, asserting that a Member's conduct, not only in a particular instance that
has occurred but in future situations as well, will necessarily be inconsistent with that Member's
WTO obligations.
99 Thus, in Japan's view, when a panel is confronted with an "as such" challenge
to a measure adopted by a Member, the panel is required to examine whether a certain aspect of
the challenged measure would necessarily lead to a conduct that is inconsistent with the Member's
WTO obligations.
2.61. For Japan, an analysis based on the three different categories of unliquidated entries put
forward by Viet Nam appears to indicate that a WTO-inconsistency related to a certain category of
unliquidated entries would not be relieved by Section 129(c)(1). Japan also takes note of the three
routes that the Panel considered could implemen t DSB recommendations and rulings with respect
to prior unliquidated entries.
100 However, Japan does not understand how these routes relieve the
prior unliquidated entries in Category 1. Japan emphasizes that the mere fact that the
United States applied the implementation measure to some unliquidated entries under other
provisions of US law does not deny Viet Nam's "as such" claim. A measure against which an
"as such" claim is made does not need to mandate a Member to take, or not to take, certain action
in all cases in order to answer the substantive question of whether the measure is inconsistent
"as such" with particular obligations under a covered agreement.
101 In this case, the issue is
whether or not Section 129(c)(1) would necessarily produce WTO-inconsistent results with regard
to a certain category of prior unliquidated entries. As such, Japan does not understand why the
Panel concluded that Viet Nam had failed to establish the "as such" claim that Section 129(c)(1)
precludes implementation with respect to those entries.
2.62. Japan contends that, to the extent that Viet Nam demonstrated that Section 129(c)(1)
precludes the USDOC from implementing appropriate measures to a certain category of prior
unliquidated entries to comply with DSB recomme ndations and rulings, and, thus, necessarily
leads to non-compliance with respect to those entries, Viet Nam appears to have satisfied its
obligation to establish its prima facie case that Section 129(c)(1) is inconsistent "as such" with the
United States' obligation to comply fully with DSB recommendations and rulings. However, Japan
notes that Viet Nam claims that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2,
9.3, 11.1, and 18.1 of the Anti-Dumping Agr eement. Japan suggests a careful scrutiny of
Viet Nam's claim, especially because Section 129 of the URAA does not itself impose any
anti-dumping duties or otherwise constitute administrative agencies' redeterminations. In Japan's
view, Section 129 simply authorizes the USDOC to undertake a redetermination to render its
previous actions consistent with DSB recommendations and rulings.
102
2.63. For Japan, based on the evidence on record, Section 129 is the exclusive avenue pursuant
to which the USDOC may bring its anti-dumping measures into conformity with the
Anti-Dumping Agreement. Japan further submits that Section 129 does not allow the USDOC to
bring its treatment of Category 1 prior unliquidated entries into conformity with the
Anti-Dumping Agreement. Thus, Japan considers that Section 129(c)(1) precludes the USDOC
from implementing a measure to comply with DSB recommendations and rulings with respect to

99 Japan's third participant's submission, para. 5 (referring to Appellate Body Report, US – Oil Country
Tubular Goods Sunset Reviews, para. 172; and Panel Reports, China – Auto-Parts, para. 7.540; and EC – IT
Products, para. 7.113).
100 Japan's third participant's submission, para. 8 (referring to Panel Report, para. 7.265, in turn
referring to United States' response to Panel question No. 29, paras. 100-106).
101 Japan's third participant's submission, para. 10 (referring to Appellate Body Report, US – Corrosion
102 Japan's third participant's submission, para. 13 and fn 22 thereto.

Category 1 prior unliquidated entries, from which anti-dumping duties found to be
WTO-inconsistent and subject to DSB recommendations and rulings may not be collected.103
2.64. In Japan's view, the United States' arguments concerning three alternative means available
in the United States to implement DSB recommendations and rulings are either irrelevant to or
insufficient for the examination of the WTO-consistency of Section 129 "as such". The question is
whether the provisions of Section 129 will necessa rily be inconsistent with the United States'
WTO obligations. According to Japan, new legislation in the future is a different and separate
measure from the measure in question. Japan points out that the possibility of the enactment of a
new law upon request of the USTR, instead of the application of the existing law, does not preclude
the use of the dispute settlement mechanism to ex amine the WTO-consistency of the existing law.
Indeed, such future legislative actions would be equivalent to implementation actions to bring
Section 129 into compliance with the United States' WTO obligations. If such further legislative
actions are admitted as an effective defence against "as such" claims, no "as such" claims could be
reviewed in dispute settlement proceedings, because any measure would be justified on such a
basis. Such a result is against the very aim of the dispute settlement mechanism "to secure a
positive solution to a dispute", as set out in Article 3.7 of the DSU. Japan adds that neither
Section 123 of the URAA, nor subsequent administrative reviews, would allow the USDOC to
implement its WTO-consistent measure with respec t to Category 1 entries. Accordingly, actions
taken pursuant to Section 123 would not mitigate the WTO-inconsistency of Section 129 because
they cannot be used to implement DSB recommendat ions and rulings with respect to Category 1
entries.
2.3.4 Norway
2.65. At the oral hearing, Norway opined that the Appellate Body should complete the legal
analysis and find that Section 129(c)(1) is inconsistent "as such" with the United States'
WTO obligations. Norway recalled that Article 21.3 of the DSU requires Members to comply with
DSB recommendations and rulings immediately, or, if immediate compliance is impracticable,
within a reasonable period of time. Refe rring to the Appellate Body report in US – Zeroing (Japan)
(Article 21.5 – Japan) , Norway argued that WTO-inconsistent conduct must cease completely by
the end of the reasonable period of time at th e latest, irrespective of the date on which the
imports at issue entered the territory of the implementing Member.
2.66. Norway suggested that, even if Section 129(c)(1) is a general measure, it must be in
conformity with WTO law. Norway is not certain how Section 129(c)(1) can ensure conformity and
compliance with regard to imports entering prior to the expiration of the reasonable period of time,
given that the provision focuses on the date of importation rather than the date of final liquidation,
which, according to Norway, is the relevant reference according to WTO jurisprudence.
Furthermore, Norway understands that Section 129(c)(1) establishes no relationship between
importation and final liquidation, which, in Norway's view, could have made the situation different.
For Norway, these factors suggest that Section 129(c)(1) could be "as such" WTO-inconsistent.
2.3.5 Thailand
2.67. At the oral hearing, Thailand pointed out that Article 21.3 of the DSU requires Members to
comply with DSB recommendations and rulings immediately, or, if immediate compliance is
impracticable, within a reasonable period of time. Thailand added that all conduct that is found to
be WTO-inconsistent by the panel and the Appellate Body must cease by the end of the reasonable
period of time at the latest, irrespective of the date on which the imports at issue entered the
territory of the implementing Member. In the spec ific context of anti-dumping measures, Thailand
requested the Appellate Body to give full effect to the principle that implementing Members may
not continue to collect WTO-inconsistent dumping duties on entries that are liquidated after the
end of the reasonable period of time.

103 Japan's third participant's submission, paras. 15-17 (referring to Appellate Body Report, US –

3 ISSUES RAISED IN THIS APPEAL
3.1. The following issues are raised in this appeal:
a. whether the Panel acted inconsistently with Article 11 of the DSU in finding that
Viet Nam had not established that Section 129(c)(1) of the US Uruguay Round
Agreements Act 104 (URAA) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1,
and 18.1 of the Anti-Dumping Agreement;
b. if the Appellate Body reverses the Panel's finding that Viet Nam has not established that
Section 129(c)(1) of the URAA is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1,
and 18.1 of the Anti-Dumping Agreement, wh ether the Appellate Body should complete
the legal analysis; and
c. if the Appellate Body completes the legal analysis, whether the Appellate Body should
find that Section 129(c)(1) of the URAA is inconsistent "as such" with the United States'
obligations under the provisions identified by Viet Nam.
4 ANALYSIS OF THE APPELLATE BODY
4.1 Introduction
4.1. As an initial matter, we note that Viet Nam's appeal of the Panel Report is limited in scope,
focusing on the Panel's analysis of Section 129(c)(1) of the URAA (Section 129(c)(1)). Before
addressing Viet Nam's claims of error, we provide a brief overview of the United States' system for
the assessment and collection of anti-dumping du ties, and of Section 129(c)(1), the measure at
issue in these appellate proceedings.105
4.2. As noted by the Panel, the United States operates a "retrospective" system for the
assessment of anti-dumping duties. 106 In general terms, under that system, there is a time lag
between calculations of estimated anti-dumping du ty rates, the collection of cash deposits on
imports on the basis of those estimated rates, and the liquidation (final settlement) of the
anti-dumping duties actually owed on imports for which the deposits have been collected. The
process begins with an anti-dumping investigation and continues after the US Department of
Commerce (USDOC) has found imports to be dumped and the US International Trade Commission
(USITC) has found the relevant US industry to be injured because of dumped imports. At this
point, the USDOC issues an "anti-dumping order" directing the US Customs and Border Protection
(USCBP) to collect, from importers, cash deposits at rates equal to the margin of dumping
calculated during the investigation, for subject imports that enter on or after the date of the
order.
107 Since the margins of dumping (and the injury) found during the investigation are based
on imports during a past period, the cash deposits serve as estimates of what actual dumping will
be during the period following the anti-dumping order. At the end of the first year following the
issuance of the anti-dumping order, and at the end of each year thereafter, interested parties may
request the USDOC to conduct an "administrative review" of their imports during each particular
year. In these reviews, the USDOC recalculates the margins of dumping for imports (for which a
review has been requested) that entered during the year under review. The dumping margins
calculated during each review, which are based on actual imports during the 12-month period
reviewed, become the "final" duty rates for those imports.
108
4.3. As noted by the Panel, liquidation of impo rts subject to final duty rates may be delayed by
challenges before US courts where "parties may obtain an injunction against liquidation for the

104 Public Law No. 103-465, 108 Stat. 4838, codified under United States Code, Title 19, Section 3538.
105 Further details in this regard are provided in the Panel Report, paras. 2.1-2.10 and 7.238-7.240.
106 Panel Report, para. 2.2.
107 Margins of dumping may differ among individual exporters, according to whether they participated in
the investigation and information provided about their prices and costs.
108 In the case of the first administrative review, this period of time may extend to up to 18 months in
order to cover all entries that may have been subject to provisional measures.

duration of the court proceeding."109 As we understand it, either side may appeal findings made in
an anti-dumping investigation or an administrative review to the US Court of International Trade
(USCIT). The findings of that court may, in turn, be appealed to higher courts. The courts may,
inter alia, remand the investigation or administrative review to the USDOC for further findings.
Also, the USDOC may, after litigation has begun, request that an investigation or review be
remanded to it for further findings. Thus, a pe riod of a few months to several years may pass
between issuance of the anti-dumping order and liquidation, depending on whether administrative
reviews are requested and whether litigation is pursued.
4.4. In the present case, in February 2005, the USDOC issued an anti-dumping order regarding
imports of certain frozen and canned warmwater shrimp from Viet Nam.
110 The order, inter alia,
provided the USCBP with the authority to collect anti-dumping duty deposits for all such shrimp
from Viet Nam at the time of importation. At the time of the Panel proceedings in the present case,
the USDOC had completed seven administrative reviews in which it had calculated the total
amount of duties owed for imports (entries) of the subject merchandise during each review
period.
111 According to Viet Nam, some of these entries remain unliquidated.112
4.5. Regarding the measure at issue in thes e appellate proceedings, the Panel noted that
Section 129 of the URAA sets forth a mechanism with respect to the implementation of DSB
recommendations and rulings concerning anti-dumping and countervailing duty actions.
Section 129(c)(1), the specific subparagraph challenged by Viet Nam, addresses the question of
when revised determinations made pursuant to that mechanism (Section 129 determinations) take
effect.
113 Section 129(c)(1) provides that Section 129 determinations apply to entries made on or
after the date on which the US Trade Representative (USTR) directs the USDOC to revoke the
order in totality or in part (in the case of a USITC Section 129 determination), or the date on
which the USTR directs the USDOC to implement a Section 129 determination (in the case of a
USDOC Section 129 determination).
114 Section 129 of the URAA stipulates, in relevant part:
§ 3538 Administrative action following WTO panel reports
(a) Action by the United States International Trade Commission
(1) Advisory report
If a dispute settlement panel finds in an interim report under Article 15 of the Dispute
Settlement Understanding, or the Appellate Bo dy finds in a report under Article 17 of
that Understanding, that an action by the International Trade Commission in
connection with a particular proceeding is not in conformity with the obligations of the
United States under the Antidumping Agreement, the Safeguards Agreement, or the
Agreement on Subsidies and Countervailing Measures, the Trade Representative may
request the Commission to issue an advisory report on whether title VII of the Tariff
Act of 1930 or title II of the Trade Act of 1974, as the case may be, permits the
Commission to take steps in connection with the particular proceeding that would
render its action not inconsistent with the findings of the panel or the Appellate Body

109 Panel Report, para. 2.3 (referring to Viet Nam's first written submission to the Panel, paras. 30-33
and 215-216, in turn referring to Panel Report, US – Section 129(c)(1) URAA, paras. 2.5-2.8 and fns 10 and
11; United States' first written submission to the Panel, paras. 8-10; and United States' response to Panel
question No. 68).
110 USDOC, Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping
Duty Order: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, United States Federal
Register, Vol. 70, No. 20 (1 February 2005) (Panel Exhibit VN-05).
111 Panel Report, para. 2.4.
112 Viet Nam's appellant's submission, para. 64.
113 Panel Report, para. 7.238.
114 For ease of reference, the Panel referred to these dates as the "implementation date". (Panel Report,
para. 7.238) At footnote 334 to this paragraph, the Panel noted that the USTR has the authority to order
implementation of all USDOC Section 129 determinations and to direct the USDOC to implement a revised
USITC Section 129 determination by revoking the order in whole or in part. However, the USTR does not have
the authority to order implementation of a USITC Section 129 determination that does not result in at least
partial revocation of the order. (Panel Report, fn 334 to para. 7.238 (referring to the discussion of the decision
of the USCIT in Tembec, Inc. et al. v. United States et al., 441 F. Supp. 2d 1302, Slip Op. 06-109, Court No.
05-00028 (21 July 2006), Opinion per curiam (Panel Exhibit VN-37)))

concerning those obligations. The Trade Representative shall notify the congressional
committees of such request.
…
(4) Commission determination
Notwithstanding any provision of the Tariff Act of 1930 … or title II of the Trade Act of
1974 … if a majority of the Commissioners issues an affirmative report under
paragraph (1), the Commission, upon the written request of the Trade Representative,
shall issue a determination in connection with the particular proceeding that would
render the Commission's action described in paragraph (1) not inconsistent with the
findings of the panel or Appellate Body. The Commission shall issue its determination
not later than 120 days after the request from the Trade Representative is made.
…
(6) Revocation of order
If, by virtue of the Commission's determin ation under paragraph (4), an antidumping
or countervailing duty order with respect to some or all of the imports that are subject
to the action of the Commission described in paragraph (1) is no longer supported by
an affirmative Commission determination under title VII of the Tariff Act of 1930 … or
this subsection, the Trade Representative may, after consulting with the congressional
committees under paragraph (5), direct the administering authority to revoke the
antidumping or countervailing duty order in whole or in part.
(b) Action by administering authority
(1) Consultations with administering authority and congressional
committees
Promptly after a report by a dispute settlement panel or the Appellate Body is issued
that contains findings that an action by the administering authority in a proceeding
under title VII of the Tariff Act of 1930 ... is not in conformity with the obligations of
the United States under the Antidumping Agreement or the Agreement on Subsidies
and Countervailing Measures, the Trade Representative shall consult with the
administering authority and the congressional committees on the matter.
(2) Determination by administering authority
Notwithstanding any provision of the Tariff Act of 1930 … the administering authority
shall, within 180 days after receipt of a written request from the Trade
Representative, issue a determination in connection with the particular proceeding
that would render the administering authority's action described in paragraph (1) not
inconsistent with the findings of the panel or the Appellate Body.
(3) Consultations before implementation
Before the administering authority implements any determination under
paragraph (2), the Trade Representative shall consult with the administering authority
and the congressional committees with respect to such determination.
(4) Implementation of determination
The Trade Representative may, after consul ting with the administering authority and
the congressional committees under paragrap h (3), direct the administering authority
to implement, in whole or in part, the determination made under paragraph (2).

(c) Effects of determinations ; notice of implementation
(1) Effects of determinations
Determinations concerning title VII of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.]
… that are implemented under this section shall apply with respect to unliquidated
entries of the subject merchandise (as defined in section 771 of that Act [19 U.S.C.
1677]) that are entered, or withdrawn from warehouse, for consumption on or after—
(A) in the case of a determination by the Commission under subsection (a)(4), the
date on which the Trade Representative directs the administering authority
under subsection (a)(6) to revoke an order pursuant to that determination, and
(B) in the case of a determination by the administering authority under
subsection (b)(2), the date on which the Trade Representative directs the
administering authority under subsection (b)(4) to implement that
determination.
115
4.2 Arguments before the Panel and the Panel's findings
4.6. Before the Panel, Viet Nam argued that Section 129 of the URAA is the "exclusive authority"
under US law for implementation of DSB recommendations and rulings "where implementation can
be achieved by a new administrative determination without the need for statutory or regulatory
amendment."
116 According to Viet Nam, "by providing that the determination takes effect only with
respect to unliquidated entries made on or after the implementation date, Section 129(c)(1)
prohibits the refund of duties" with respect to what Viet Nam described as "prior unliquidated
entries".
117 On this basis, Viet Nam asserted that Section 129(c)(1) is inconsistent "as such" with
Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement.118
4.7. The United States countered that Viet Nam's claims are based on the assumption that
implementation of DSB recommendations and rulin gs would necessarily be effectuated through
Section 129, to the exclusion of other means of implementation. The United States further pointed
out that US authorities have in the past assessed and liquidated prior unliquidated entries in a
WTO-consistent manner by using other implementation mechanisms available to the
United States.
119
4.8. The Panel began by examining whether Viet Nam had established that Section 129(c)(1)
precludes implementation of DSB recommendations an d rulings with respect to "prior unliquidated
entries"120, before considering whether Section 129(c)(1) is inconsistent "as such" with
Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. The Panel recalled, with
respect to the latter, that Viet Nam had relied on the finding of the Appellate Body in US – Zeroing
(Japan) (Article 21.5 – Japan) to argue that "the relevant date to assess implementation of DSB
recommendations and rulings is the date on which the duty is assessed or collected, and that any
action for the assessment or collection of duties af ter the expiry of the reasonable period of time
must conform to the DSB's recommendations and rulings, irrespective of the date of

115 Section 129 of the URAA, codified under United States Code, Title 19, Section 3538 (Panel
Exhibit VN-31). The Panel noted that the USDOC is the "administering authority" referred to in Section 129.
116 Panel Report, para. 7.243 (referring to Viet Nam's first written submission to the Panel, paras. 211
and 224-225; and opening statement at the first Panel meeting, para. 28).
117 Panel Report, para. 7.243 (referring to Viet Nam's first written submission to the Panel,
paras. 211-252). Before the Panel, Viet Nam used the term "prior unliquidated entries" to describe imports
made prior to the date on which the relevant Section 129 determination takes effect and for which there is no
definitive assessment of anti-dumping duty liability as of that date (i.e. the final duty rate and duty have not
yet been established). (Panel Report, fn 329 to para. 7.237)
118 Panel Report, para. 7.243 (referring to Viet Nam's first written submission to the Panel,
paras. 211-252).
119 Panel Report, para. 7.248 (referring to United States' first written submission to the Panel,
paras. 96-97 and 109-112).
120 Panel Report, para. 7.257.

importation."121 Viet Nam had relied on this finding to argue that, when a US anti-dumping
determination is found to be WTO-inconsistent, the United States must implement the resulting
DSB recommendations and rulings with respect to any entries that remain unliquidated as of the
expiration of the reasonable period of time.
122
4.9. Beginning with the text of Section 129(c)(1), the Panel observed that Section 129(c)(1) sets
out when revised determinations made pursuant to Section 129 take effect. The Panel noted that
Section 129(c)(1) defines those determinations in terms of which entries are affected, providing
that a Section 129 determination "shall apply with respect to unliquidated entries of the subject
merchandise … that are entered, or withdrawn from warehouse, for consumption on or after" the
date on which the USTR directs the USDOC to implement the determination.
123 Noting that
"Section 129 does not, on its face," address prior unliquidated entries, the Panel considered that it
"necessarily follows that Section 129(c)(1) cannot be found to preclude implementation of DSB
recommendations and rulings with respect to such prior unliquidated entries." 124 The Panel added
that the fact that "Section 129 may be the only explicit statutory provision governing the effective
date of US Government determinations to implement DSB recommendations and rulings … cannot
justify an interpretation of the statute that is unsupported by its terms."125
4.10. In this respect, the Panel recalled the view of the panel in US – Section 129(c)(1) URAA
that:
… it may well be the case that because Section 129(c)(1) limits the application of
Section 129 determinations to entries that take place on or after the implementation
date, prior unliquidated entries would remain subject to other provisions of
US anti-dumping or countervailing duty laws which might, for instance, require the
USDOC to assess definitive duties with respect to these prior unliquidated entries on
the basis of an old, WTO-inconsistent me thodology, or might preclude the USDOC
from assessing duties with respect to such entries on the basis of the new,
WTO-consistent methodology, but that, in such instances, it would not be because of
Section 129(c)(1) that the USDOC would be required to take, or be precluded from
taking, such actions, but because of those other provisions of US law.126
The Panel agreed with the view of the panel in US – Section 129(c)(1) URAA, and recalled that its
mandate in this dispute is limited to examining the WTO-consistency of Section 129(c)(1).127

4.11. Looking at elements beyond the text of Section 129(c)(1), the Panel noted Viet Nam's
reliance on a sentence in the Statement of Administrative Action128 (SAA) that, "[u]nder 129(c)(1),
if implementation of a WTO report should result in the revocation of an antidumping or
countervailing duty order, entries made prior to the date of the USTR's direction would remain
subject to potential duty liability." 129 In this regard, the Panel considered that the SAA "does not
contradict" the Panel's reading of Section 129(c)(1) 130; rather, "it merely confirms ... that
implementation through Section 129 determinations only has effects with respect to entries that

121 Panel Report, para. 7.257 (referring to Appellate Body Reports, US – Zeroing (EC) (Article 21.5 –
EC), paras. 286-355; US – Zeroing (Japan) (Article 21.5 – Japan), paras. 153-197; and Panel Reports, US –
Zeroing (EC) (Article 21.5 – EC), paras. 8.164-8.218; US – Zeroing (Japan) (Article 21.5 – Japan),
paras. 7.139-7.155).
122 Panel Report, para. 7.257.
123 Panel Report, para. 7.259 (quoting Section 129 of the URAA (Panel Exhibit VN-31)). (emphasis
added by the Panel)
124 Panel Report, para. 7.259. In this respect, the Panel agreed with the conclusion reached by the panel
in US – Section 129(c)(1) URAA that Section 129(c)(1) "does not, by its express terms, require or preclude any
particular action with respect to prior unliquidated entries". (Panel Report, para. 7.259 (quoting Panel Report,
126 Panel Report, para. 7.260 (referring to Panel Report, US – Section 129(c)(1) URAA, fn 112 to
127 Panel Report, para. 7.260.
128 Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316 (1994),
reprinted in 1994 USCAAN 3773, 4040 (Public Law No. 103-465, 108 Stat. 4809 (1994), codified under
United States Code, Title 19, Section 3501) (Panel Exhibit VN-34).
129 Panel Report, para. 7.261 (quoting Viet Nam's second written submission to the Panel, para. 66, in
turn referring to SAA (Panel Exhibit VN-34)).
130 Panel Report, para. 7.262.

are made after the implementation date." 131 Therefore, the Panel found that nothing in the SAA
suggests that Section 129(c)(1) concerns itself with, or has any effect on, prior unliquidated
entries.
132
4.12. As regards Viet Nam's argument that the application of Section 129 by the US authorities to
date "reveals a systematic and consistent refusal by the USDOC to issue liquidation instructions
that would extend the results of its Section 129 determinations to prior unliquidated entries" 133,
the Panel considered that the application of Section 129(c)(1) to date suggests that the
US Government, "following a Section 129 proceeding resulting in a determination to revoke or
modify an anti-dumping order, typically has not extended the effect of that decision to prior
unliquidated entries". 134 Nevertheless, the Panel failed to see how the "pattern" alleged by
Viet Nam would, in and of itself, demonstrate that the USDOC "legally cannot 'extend the benefits
of implementation' … to prior unliquidated entries". 135 The Panel emphasized, in particular, that the
"pattern" alleged by Viet Nam does not establish that the US Government is precluded from
implementing DSB recommendations and rulings by Section 129(c)(1), which was the only
provision of US law challenged by Viet Nam. For this reason, the Panel disagreed with Viet Nam's
assertion that the "consistent pattern" of the US Government not extending the effect of
Section 129 determinations to prior unliquidated entries suggests "recognition that Section 129
demands such treatment as a matter of U.S. law".
136
4.13. Moreover, the Panel noted the United States' explanation that "the USDOC can 'implement'
DSB recommendations and rulings with respect to prior unliquidated entries." 137 In particular, the
Panel noted the United States' argument that: (i) the US Congress may adopt new legislation or
amend existing legislation such that prior unliquidated entries are liquidated pursuant to a
WTO-consistent methodology; (ii) the US Administration can use Section 123 of the URAA 138 to
amend a WTO-inconsistent USDOC practice, and, in setting the effective date of the modification,
can effectively "implement" with respect to prior unliquidated entries; and (iii) the USDOC can
adopt a WTO-consistent methodology in a subseque nt administrative review to "implement" with
respect to prior unliquidated entries. 139 The Panel also noted that the United States had identified
instances in which the US Government has used certain of the above-mentioned approaches to
"implement" DSB recommendations and rulings with respect to prior unliquidated entries.140 In the
light of the arguments and evidence put forward by the United States, the Panel considered that
the United States had effectively demonstrated that, where a Section 129 determination is
"implemented" with respect to entries made after that determination, and an administrative review
is conducted with respect to prior unliquidated en tries, the appropriate authority (the USDOC or
the USITC) may, in that subsequent administrati ve review, act in accordance with the relevant
DSB recommendations and rulings. In the view of the Panel, the fact that the US authorities have
proceeded in this manner "disproves" Viet Nam's argument that the United States is generally

131 Panel Report, para. 7.262.
132 Panel Report, para. 7.262. Like the panel in US – Section 129(c)(1) URAA, the Panel noted that the
SAA affirmatively states that "prior unliquidated entries" would remain subject to potential duty liability and
that it is conceivable that administrative reviews would be conducted with respect to "prior unliquidated
entries", as well as that administrative reviews would be made with respect to such entries on the basis of a
WTO-inconsistent determination. Also like that panel, the Panel considered that such actions, if taken, would
not be taken because they were required by Section 129(c)(1), but because they were required or allowed
under other provisions of US law. (Panel Report, fn 378 to para. 7.262 (referring to Panel Report, US –
Section 129(c)(1) URAA, para. 6.110))
133 Panel Report, para. 7.263 (quoting Viet Nam's first written submission to the Panel, para. 257).
134 Panel Report, para. 7.264.
136 Panel Report, para. 7.264 (quoting Viet Nam's first written submission to the Panel, para. 264; and
referring to Viet Nam's opening statement at the first Panel meeting, para. 34).
137 Panel Report, para. 7.265 (referring to United States' response to Panel question No. 29,
paras. 100-106).
138 Section 123(g)(1) establishes a mechanism for US authorities to make changes in USDOC (or other
agency) regulations or practice in order to render them consistent with DSB recommendations and rulings.
Under that provision, the regulation or practice at issue may be amended, rescinded, or otherwise modified
upon the fulfilment of a series of procedural steps. (Panel Report, para. 7.241 and fn 338 thereto) As the Panel
noted, pursuant to Section 123(g)(4), Section 123(g) does not apply to any regulations or practices of the
USITC.
139 Panel Report, para. 7.265 (referring to United States' response to Panel question No. 29,
paras. 100-106).
140 Panel Report, para. 7.266 (referring to United States' first written submission to the Panel,
para. 120).

precluded from implementing DSB recommendations and rulings with respect to prior unliquidated
entries.141
4.14. Finally, referring to the opinion of the USCIT in Corus Staal BV v. United States 142 (Corus
Staal opinion), the Panel said it did not understand the USCIT in that case to have suggested that
Section 129 of the URAA, itself, precludes the refund of prior unliquidated duties. The Panel added
that it does not follow from the fact that Section 129 does not provide for such refunds that it
therefore operates to preclude them, as Viet Nam had alleged. For the Panel, in the absence of
Section 129(c)(1), Section 129 would simply be without any definition of the temporal scope of
application of Section 129 determinations. In the view of the Panel, this does not demonstrate that
Section 129(c)(1) prohibits the refund of ca sh deposits on prior unliquidated entries.
143 Similarly,
the Panel found that the opinion of the USCIT in Tembec v. United States144 (Tembec opinion), to
which Viet Nam had referred, does not suggest that Section 129(c)(1) precludes the US authorities
from "implementing" with respect to prior unliquidated entries.145
4.15. On the basis of its analysis, the Panel found that Viet Nam had failed to establish that
Section 129(c)(1) precludes "extending the benefits of implementation" to prior unliquidated
entries.146 The Panel explained that, in reaching this conclusion, it had taken into consideration the
text of Section 129(c)(1), the SAA, the US Government's application of Section 129(c)(1) in the
years since it was adopted, and the USCIT's opinions cited by Viet Nam.147
4.16. In the light of the above, the Panel found that Viet Nam had failed to establish that
Section 129(c)(1) precludes "extending the benefits of implementation" to prior unliquidated
entries, and concluded, therefore, that Viet Nam had not established that Section 129(c)(1) is
inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement.
148
4.3 Review of the Panel's analysis of Viet Nam's claims concerning Section 129(c)(1)
4.17. Viet Nam claims that the Panel acted inconsistently with its obligations under Article 11 of
the DSU on two grounds. First, Viet Nam contends that the Panel erred by applying an incorrect
analytical framework whereby it determined that it would not consider whether Section 129(c)(1)
is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement
unless Viet Nam could establish that Section 129(c)(1) precludes implementation of DSB
recommendations and rulings with respect to all prior unliquidated entries.
149 Second, Viet Nam
asserts that the Panel failed to conduct a holistic assessment in ascertaining the meaning of
Section 129(c)(1).
150 We consider Viet Nam's arguments in turn.
4.3.1 Whether the Panel applied an incorrect analytical framework
4.18. As noted above, Viet Nam claims that the Panel required it to demonstrate that
Section 129(c)(1) precludes implementation of DSB recommendations and rulings with respect to
all prior unliquidated entries of the subject merchandise. 151 For Viet Nam, the Panel's approach
was flawed because the fact that the United States might apply a different mechanism to
implement DSB recommendations and rulings in some circumstances does not answer the question
of whether Section 129(c)(1) precludes implementation in other circumstances.
152 Further,
Viet Nam posits that the approach adopted by the Panel reflects an erroneous understanding of the
United States' duty assessment system and the statutory context in which Section 129(c)(1)

141 Panel Report, para. 7.266.
142 USCIT, Corus Staal BV v. United States et al., 515 F.Supp.2d 1337, Slip Op. 07-140, Court
No. 07-00270 (19 September 2007), Opinion of Judge Judith M. Barzilay (Panel Exhibit VN-36).
143 Panel Report, para. 7.268.
144 USCIT, Tembec, Inc. et al. v. United States et al., 441 F. Supp. 2d 1302, Slip Op. 06-109, Court
No. 05-00028 (21 July 2006), Opinion per curiam (Panel Exhibit VN-37).
145 Panel Report, para. 7.269 (referring to Tembec opinion (Panel Exhibit VN-37)).
146 Panel Report, para. 7.270.
147 Panel Report, para. 7.270.
148 Panel Report, paras. 7.271-7.272.
149 Viet Nam's appellant's submission, paras. 41-42 and 47-48 (referring to Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 82).
150 Viet Nam's appellant's submission, paras. 43 and 105.
151 Viet Nam's appellant's submission, para. 42.
152 Viet Nam's appellant's submission, para. 51.

operates. Viet Nam criticizes, in particular, the Panel's alleged failure to appreciate that there is a
subset of prior unliquidated entries that "might only be addressed" by a Section 129
determination.
153 On appeal, Viet Nam refers to this subset of prior unliquidated entries that have
been subject to a final determination in an investigation or review as "Category 1 entries".154
4.19. We disagree with Viet Nam to the extent that it argues that the Panel rejected Viet Nam's
claims on the basis that Viet Nam had not demonstrated that Section 129(c)(1) precludes
implementation of DSB recommendations and rulings with respect to all prior unliquidated entries.
Instead, as we see it, the Panel responded to the argument that Viet Nam had made, that is, that
Section 129(c)(1) "serves as an absolute legal bar to any refund of duties [for] prior unliquidated
entries" and sets out an "express prohibition against duty refunds for prior unliquidated entries".
155
Thus, the Panel examined whether Viet Nam had established that Section 129(c)(1), in and of
itself, precludes implementation of DSB recommendations and rulings with respect to prior
unliquidated entries, rather than requiring Viet Nam to show that Section 129(c)(1) precludes
implementation of DSB recommendations and rulings in all circumstances.
4.20. Viet Nam suggests that the Panel held the view that, in order to demonstrate that a
measure is WTO-inconsistent "as such", a complainant is required to show that the measure
results in WTO-inconsistent action not merely in some instances but, rather, in all instances in
which it is applied. In support of its contention, Viet Nam refers to paragraph 7.266 of the Panel
Report, where the Panel found that "[t]he United States identifies instances in which a modification
to USDOC practice … was effected through a Section 129 determination as well as a Section 123
rule modification, which itself was applied in subsequent administrative reviews with respect to
some prior unliquidated entries."
156 The Panel found further that the fact "[t]hat the United States
authorities proceeded in this fashion in [the Panel's] view disproves Viet Nam's argument that the
United States Government is in some general way precluded from 'implementing' DSB
recommendations and rulings with respect to prior unliquidated entries." 157 According to Viet Nam,
the Panel cited no legal basis for its approach in terms of how "as such" challenges must be
framed or analysed and, consequently, the Panel's reasoning, in this regard, lacks coherence to a
degree that falls short of the standard required under Article 11 of the DSU.
158
4.21. We recall that the Panel's assessment focused on whether Section 129(c)(1), itself,
precludes implementation of DSB recommendations and rulings with respect to prior unliquidated
entries. Contrary to what Viet Nam argues, we do not view the above statements of the Panel as
articulating a general legal standard for the establishment of an "as such" claim. Rather, we read
the Panel's analysis in paragraph 7.266 of the Pane l Report to focus on the evidence produced by
the United States regarding alternative means of implementing DSB recommendations and rulings
in respect of some prior unliquidated entries. As we understand it, the Panel found this evidence to
undermine Viet Nam's assertion that Section 129(c)(1) "in some general way" serves as a legal
bar precluding implementation of DSB recommendations and rulings in respect of prior
unliquidated entries.
159 While Viet Nam may not agree with the Panel's assessment of the
relevance of such evidence, this, in itself, does not mean that the Panel committed legal error
amounting to a violation under Article 11 of the DSU.
160 In any event, evidence that the
United States can implement DSB recommendations and rulings by using different means of
implementation, and has done so 161, would appear to have been sufficient for the Panel to
conclude that, contrary to what Viet Nam had argued, Section 129(c)(1) does not, itself, preclude
implementation of DSB recommendations and rulings with respect to prior unliquidated entries.

153 Viet Nam's appellant's submission, para. 54.
154 Viet Nam's appellant's submission, paras. 56-57. Conversely, Viet Nam appears to accept that "other
measures and actions" might result in WTO-consistent action in relation to some prior unliquidated entries.
(Viet Nam's appellant's submission, para. 42)
155 Panel Report, para. 7.243 and fn 348 thereto (quoting Viet Nam's first written submission to the
Panel, paras. 213 and 233).
156 Viet Nam's appellant's submission, para. 46 (quoting Panel Report, para. 7.266 (fns omitted)).
(emphasis added by Viet Nam)
157 Viet Nam's appellant's submission, para. 46 (quoting Panel Report, para. 7.266). (emphasis added
by Viet Nam)
158 Viet Nam's appellant's submission, para. 46 (quoting Panel Report, para. 7.266).
159 Panel Report, para. 7.266.
160 Appellate Body Reports, China – Rare Earths, para. 5.226; EC – Fasteners (China), para. 442.
161 Panel Report, para. 7.266.

4.22. Further, we note that the United States, in its response to Viet Nam's arguments on appeal,
asserts that Viet Nam's submissions to the Panel made "no mention of so-called Category 1
entries", and that "Vietnam cannot seriously conten d that a panel breaches Article 11 of the DSU
– by failing to make an objective assessment of the matter – by not considering new arguments on
facts never presented to the panel."
162
4.23. We recall that an appellant must identify specific errors regarding the objectivity of the
panel's assessment, and that "it is incumbent on a participant raising a claim under Article 11 on
appeal to explain why the alleged error meets t h e s t a n d a r d o f r e v i e w u n d e r t h a t p r o v i s i o n . "163
Moreover, a prima facie case must be based on evidence and legal arguments put forward by the
complaining party in relation to each of the elements of the claim. A complaining party may not
"simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency". 164
Nor may a complaining party simply allege facts without relating them to its legal arguments. 165
That being the case, we recall that a WTO panel generally enjoys discretion freely to use
arguments submitted by the parties, or to develop its own legal reasoning to support its
findings.
166
4.24. Bearing this in mind, we note that Viet Na m did not specifically argue before the Panel that
Section 129(c)(1) precludes implementation of DSB recommendations and rulings in respect of
"Category 1 entries". Nonetheless, it claimed th at Section 129(c)(1) precludes implementation
with respect to prior unliquidated entries and is, th erefore, inconsistent "as such" with Articles 1,
9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. Hence, in order to make an objective
assessment of the matter before it, the Panel was required to examine whether Viet Nam had
demonstrated that Section 129(c)(1) necessarily operates , at least in certain circumstances, to
preclude implementation of DSB recommendations and rulings.
4.25. Our reading of the Panel Report suggests that the Panel was not persuaded that Viet Nam
had demonstrated that Section 129(c)(1) precludes implementation of DSB recommendations and
rulings in any circumstance. For example, the Panel found that:
[t]he United States identifies instances in which a modification to USDOC practice
(with respect to the USDOC's use of the ze roing methodology) was effected through a
Section 129 determination as well as a Section 123 rule modification, which itself was
applied in subsequent administrative review s with respect to some prior unliquidated
entries.
167
4.26. The Panel added that Viet Nam "does not di spute the accuracy of the examples cited by the
United States, but merely contests their relevance". 168 The Panel also noted Viet Nam's argument
that the examples cited by the United States ar e "WTO-consistent action by coincidence" and a
mere "consequence of the normal operation of US law in that the rule had been changed through
Section 123 action, and the USDOC only followed the modified rule in administrative reviews
subsequent to the date of implementation of the Section 129 determination, thereby affecting prior
unliquidated entries."
169 Although not challenged by Viet Nam, the Panel considered Section 123 of
the URAA also to be relevant to its examination of Viet Nam's claims.170 We note, in this regard, as
did the Panel, that Section 123(g)(1) establishes a mechanism for US authorities to make changes
in USDOC (or other agency) regulations or practice in order to render them consistent with DSB

162 United States' appellee's submission, para. 55.
163 Appellate Body Reports, China – Rare Earths, para. 5.178 (quoting Appellate Body Report, EC –
164 Appellate Body Report, US – Gambling, para. 140 (referring to Appellate Body Report, Canada –
Wheat Exports and Grain Imports, para. 191).
165 Appellate Body Report, US – Gambling, para. 140 (referring to Appellate Body Report, Japan –
Apples, para. 159, in turn quoting Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I,
p. 335).
166 See Appellate Body Report, US – Gambling, para. 282.
170 Panel Report, para. 7.241 (referring to Section 123 of the URAA, codified under the United States
Code, Title 19, Section 3533 (Panel Exhibit US-10)).

recommendations and rulings. Under that provision, the regulation or practice at issue may be
amended, rescinded, or otherwise modified upon the fulfilment of a series of procedural steps.171
4.27. To us, there appears to be a tension between Viet Nam's assertion that Section 129(c)(1)
precludes implementation of DSB recommendations and rulings with respect to prior unliquidated
entries, on the one hand, and Viet Nam's recognition that alternative mechanisms available to the
United States may result in WTO-consistent action, on the other hand. Indeed, Viet Nam does not
dispute that the United States can liquidate entries of the subject merchandise consistently with its
WTO obligations, and that it has done so.
172 This would appear to undermine Viet Nam's argument
that Section 129(c)(1), in itself, precludes implementation of DSB recommendations and rulings.
4.28. The United States has explained that "Section 123 and congressional action are but two
mechanisms within a larger domestic scheme by which the United States maintains the discretion
to bring itself into compliance with DSB recommendations and rulings", and that "Section 129 is
but one tool in a toolbox by which the United States can implement DSB recommendations and
rulings."
173 By way of example, the United States refers to its authority to "enter into agreements
with Members to settle WTO disputes". 174 The United States refers specifically to its negotiation of
the Softwood Lumber Agreement with Canada175 (SLA 2006), as well as to the resulting liquidation
of "so-called Category 1 entries without duties" and the retroactive revocation of certain orders at
issue.176 The notification of a mutually agreed solution 177 indicates that Canada and the
United States "reached a mutually agreed solution to the matters raised by Canada in the above-
referenced disputes", referring to six WTO disputes between Canada and the United States
regarding trade in softwood lumber, as well as disputes adjudicated by North American Free Trade
Agreement (NAFTA) panels.
178 Additionally, we note the United States' clarification that it can
liquidate Category 1 entries through the mechan ism of a judicial remand. The United States
explains that, in the context of a judicial remand, the USDOC has the discretion to modify the
applicable margins or even revoke an anti-dumping or countervailing duty order. 179 The
United States further argues that the USDOC enjoys wide discretion to request that its
determinations be voluntarily remanded.
180 In addition, at the oral hearing, the United States
highlighted that the Category 1 entries that were subject to administrative proceedings in the US –
Shrimp (Viet Nam) dispute 181 were liquidated in a WTO-consistent manner in the context of a
judicial remand.
4.29. In the light of the above, we do not agree with Viet Nam that the Panel applied an incorrect
analytical framework that required Viet Nam to show that Section 129(c)(1) precludes
implementation of DSB recommendations and rulings with respect to all prior unliquidated entries.

171 Panel Report, para. 7.241. As the Panel noted, pursuant to Section 123(g)(4), Section 123(g) does
not apply to any regulations or practices of the USITC. See supra, fn 138.
172 Panel Report, para. 7.266.
173 United States' appellee's submission, para. 57.
174 United States' appellee's submission, para. 54.
175 Softwood Lumber Agreement between the Government of Canada and the Government of the
United States of America (12 October 2006) (SLA 2006), contained in documents WT/DS236/5, WT/DS247/2,
WT/DS257/26, WT/DS264/29, WT/DS277/20, and WT/DS311/2.
176 United States' appellee's submission, para. 54 (referring to SLA 2006, contained in documents
WT/DS236/5, WT/DS247/2, WT/DS257/26, WT/DS264/29, WT/DS277/20, and WT/DS311/2).
177 United States' appellee's submission, para. 54 (referring to United States – Reviews of Countervailing
Duty on Softwood Lumber from Canada, Notification of Mutually Agreed Solution (12 October 2006) (SLA 2006
Notification), contained in documents WT/DS236/5, WT/DS247/2, WT/DS257/26, WT/DS264/29,
WT/DS277/20, and WT/DS311/2).
178 SLA 2006 Notification, p. 1. The six above-referenced disputes are: US – Preliminary Determinations
with respect to Certain Softwood Lumber from Canada (DS236); US – Provisional Anti-Dumping Measures on
Imports of Certain Softwood Lumber from Canada (DS247); US – Final Countervailing Duty Determination with
respect to Certain Softwood Lumber from Canada (DS257); US – Final Dumping Determination on Softwood
Lumber from Canada (DS264); US – Investigation of the International Trade Commission in Softwood Lumber
from Canada (DS277); and US – Reviews of Countervailing Duty on Softwood Lumber from Canada (DS311).
Moreover, the Termination of Litigation Agreement under Annex 2A to the SLA 2006 refers to the settlement of
the issues raised in "the following actions", among them a "NAFTA Chapter 11 claim of Tembec Inc., Tembec
Industries Inc. and Tembec Industries Inc. v. United States of America (collectively "Tembec")".
179 See also United States' appellee's submission, para. 54 (referring to United States' response to Panel
question No. 68, para. 64).
180 United States' appellee's submission, fn 98 to para. 54.
181 WT/DS404/R.

4.3.2 Whether the Panel conducted a holistic assessment of Section 129(c)(1)
4.30. Viet Nam's second contention under Article 11 of the DSU is that the Panel failed to conduct
a holistic assessment in ascertaining the meaning of Section 129(c)(1).
4.31. With regard to a panel's duties in construing the meaning of municipal law, the
Appellate Body has explained that, "[a]lthough it is not the role of panels or the Appellate Body to
interpret a Member's domestic legislation as such, it is permissible, indeed essential, to conduct a
detailed examination of that legislation in assessing its consistency with WTO law."
182 The
Appellate Body has also found that, "[a]s part of their duties under Article 11 of the DSU, panels
have the obligation to examine the meaning and scope of the municipal law at issue in order to
make an objective assessment of the matter before it."
183
4.32. In respect of the types of elements that ar e required to be considered in order to establish
the content and meaning of munici pal law, the Appellate Body has clarified that, in some cases,
the text of the relevant legislation may suffice. In other cases, the complainant will also need to
support its understanding of the content and meaning of the measure at issue with evidence
beyond the text, such as evidence of consistent application of the measure, pronouncements of
domestic courts, and the writings of recognized scholars. 184 Furthermore, the Appellate Body has
held that, "in ascertaining the meaning of municipal law, a panel should undertake a holistic
assessment of all relevant elements, starting with the text of the law and including, but not limited
to, relevant practices of administering agencies." 185 An examination of such elements, including
legal interpretations given by domestic courts or domestic administering authorities, may inform
the question of whether a measure is consistent with a WTO Member's obligations under the
covered agreements. In respect of the burden of proof, the Appellate Body has clarified that "[t]he
party asserting that another party's municipal law, as such, is inconsistent with relevant treaty
obligations bears the burden of introducing evidence as to the scope and meaning of such law to
substantiate that assertion."
186
4.33. The Panel began its assessment of whether Section 129(c)(1) precludes implementation of
DSB recommendations and rulings with respect to pr ior unliquidated entries by examining the text
of that provision. Thereafter, the Panel examin ed the SAA, evidence put forward by Viet Nam
regarding the application of Section 129(c)(1) by the USDOC, alternative means of implementing
DSB recommendations and rulings with respect to prior unliquidated entries put forward by the
United States, and USCIT judicial opinions relied on by Viet Nam. We address Viet Nam's
arguments in respect of each of these elements in turn.

182 Appellate Body Report, US – Carbon Steel (India), para. 4.445 (quoting Appellate Body Report, US –
Hot-Rolled Steel, para. 200, in turn referring to Appellate Body Report, India – Patents (US), paras. 66-67).
183 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.98.
184 Appellate Body Reports, US – Countervailing and Anti-Dumping Measures (China), para. 4.101; US –
185 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.101.
186 Appellate Body Report, US – Carbon Steel (India), para. 4.446 (quoting Appellate Body Report, US –
Carbon Steel, para. 157, in turn referring to Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR
1997:I, p. 335). More generally, with regard to a panel's duties under Article 11 of the DSU concerning the
examination of evidence, the Appellate Body has found that, "in view of the distinction between the respective
roles of the Appellate Body and panels", "we will not interfere lightly with the panel's exercise of its discretion."
(Appellate Body Report, US – Carbon Steel (India), para. 4.447 (quoting Appellate Body Report, US – Wheat
Gluten, para. 151 (fn omitted))) In other words, not every error allegedly committed by a panel amounts to a
violation of Article 11 of the DSU (Appellate Body Reports, EC – Fasteners (China), para. 442; US – Carbon
Steel (India), para. 4.447), but only those that are so material that, taken together or singly, they undermine
the objectivity of the panel's assessment of the matter before it. (Appellate Body Reports, EC – Fasteners
(China), para. 499; EC and certain member States – Large Civil Aircraft, para. 1318; US – Carbon Steel
(India), para. 4.447) Accordingly, it is insufficient for an appellant simply to disagree with a statement or to
assert that it is not supported by evidence. As the initial trier of facts, a panel must provide reasoned and
adequate explanations and coherent reasoning (Appellate Body Reports, US – Upland Cotton (Article 21.5 –
Brazil), fn 618 to para. 293; US – Carbon Steel (India), para. 4.448), and must base its finding on a sufficient
evidentiary basis. (Appellate Body Reports, US – Carbon Steel, para. 142; US – Hot-Rolled Steel, para. 4.448)
In Brazil – Retreaded Tyres, the Appellate Body further clarified that "[a] panel enjoys discretion in assessing
whether a given piece of evidence is relevant for its reasoning, and is not required to discuss, in its report,
each and every piece of evidence." (Appellate Body Report, US – Carbon Steel (India), para. 4.448 (quoting
Appellate Body Report, Brazil – Retreaded Tyres, para. 202 (fns omitted)))

4.34. First, regarding the language in Section 129 of the URAA, we understand Viet Nam to accept
that Section 129(c)(1) does not, by its express terms , preclude implementation of DSB
recommendations and rulings with respect to prior unliquidated entries of the subject
merchandise.
187 Viet Nam argues, however, that, in paragraph 7.259 of the Panel Report, the
Panel reached a final conclusion regarding the meaning and scope of Section 129(c)(1) on the
basis of the text of that provision taken alone, prior to examining elements going beyond the text
of Section 129(c)(1).
188
4.35. The first sentence of paragraph 7.259 reads: "We begin our analysis of Viet Nam's claim
with the text of Section 129(c)(1)." In the same paragraph, the Panel goes on to state:
… We agree with the conclusion reached by the US – Section 129(c)(1) URAA panel
that Section 129(c)(1) "does not, by its express terms, require or preclude any
particular action with respect to prior unliquidated entries". It necessarily follows that
Section 129(c)(1) cannot be found to preclude implementation of DSB
recommendations and rulings with respect to such prior unliquidated entries. The fact
that, as alleged by Viet Nam, Section 129 may be the only explicit statutory provision
governing the effective date of US Government determinations to implement DSB
recommendations and rulings in our view cannot justify an interpretation of the
statute that is unsupported by its terms.
189
4.36. These statements, read in isolation, might unfortunately give the impression that the Panel
was drawing a conclusion regarding the meaning an d effect of Section 129(c)(1) on the basis of
the text of that provision, taken alone. Yet, as noted above, these statements form part of a
paragraph that clearly indicates at the outset that, at this step of its analysis, the Panel was
examining the text of Section 129(c)(1). In su bsequent paragraphs, the Panel proceeded to
examine the relevance and import of argumentation and elements – beyond the text of
Section 129(c)(1) – submitted by the parties regarding the meaning and effect of
Section 129(c)(1).
4.37. Viet Nam argues that the Panel disregarded the broader statutory context into which
Section 129(c)(1) fits. 190 Contrary to what Viet Nam suggests, the Panel appears to have
addressed the statutory context of Section 129, including Sections 101(a)(2) and 102(d) of the
URAA.
191 The Panel found that the SAA accompanyi ng the URAA "merely confirms ... that
implementation through Section 129 determinations only has effects with respect to entries that
are made after the implementation date", and that nothing in the SAA suggests that
Section 129(c)(1) concerns itself with, or has any effect on, prior unliquidated entries. 192 Viet Nam
complains that the Panel merely used the SAA to "test its already rendered conclusion", rather
than allowing it to inform its reading of the meaning and effect of Section 129(c)(1). 193 Viet Nam
relies, in particular, on the following language in the SAA:
Consistent with the principle that GATT panel recommendations apply only
prospectively, subsection 129(c)(1) provides that where determinations by the ITC or
Commerce are implemented under subsections (a) or (b), such determinations have
prospective effect only. That is, they apply to unliquidated entries of merchandise
entered, or withdrawn from warehouse, for consumption on or after the date on which
the Trade Representative directs implementation. Thus, relief available under
subsection 129(c)(1) is distinguishable from relief available in an action brought
before a court or a NAFTA binational panel, where, depending on the circumstances of
the case, retroactive relief may be availabl e. Under 129(c)(1), if implementation of a
WTO report should result in the revocation of an antidumping or countervailing duty

187 Viet Nam's appellant's submission, para. 76 (referring to Panel Report, para. 7.259, in turn quoting
Panel Report, US – Section 129(c)(1) URAA, para. 6.55).
188 Viet Nam's appellant's submission, para. 77 (referring to Panel Report, para. 7.259).
190 Viet Nam's appellant's submission, paras. 78-84.
191 Section 101(a)(2) of the URAA, codified under United States Code, Title 19, Section 3511(a)(2)
(Panel Exhibit VN-32); Section 102(d) of the URAA, codified under United States Code, Title 19,
Section 3512(d) (Panel Exhibit VN-33).
192 Panel Report, para. 7.262.
193 Viet Nam's appellant's submission, para. 88.

order, entries made prior to the date of Trade Representative's direction would remain
subject to potential duty liability.194
4.38. According to Viet Nam, this passage of the SAA is "extremely probative in as much as it
outlines not only the limited effect of Section 129, but also the limited effect of adverse DSB
rulings and recommendations on U.S. trade remedy measures generally." 195 Viet Nam notes that
"the SAA expressly refers to Section 129 allowi ng only prospective effect after the USTR
implementation date, and specifically distinguishing Section 129 from other legal remedies that
might have retroactive effect." 196 Viet Nam adds further that the SAA "provides the specific
example of revocation, which under normal conditions would result in duty refunds for prior
unliquidated entries, but in the context of Section 129 would leave such entries 'subject to
potential duty liability'."
197
4.39. Viet Nam's claim of error appears to relate to the fact that the Panel did not attribute to the
SAA the meaning that Viet Nam ascribes to it. We recall that the Appellate Body has found that the
fact that a panel does not agree with arguments or evidence proffered by a party is not sufficient,
in itself, to establish a breach of Article 11. 198 In this vein, the fact that the Panel did not attach
the same significance to the SAA that Viet Nam does is not, in and of itself, a failure on the Panel's
part to undertake a holistic assessment in ascert aining the meaning of Section 129(c)(1). Rather,
as we understand it, the Panel directed its analysis to Viet Nam's claim that was before it, and
which Viet Nam reiterates on appeal, namely, that Section 129(c)(1), itself, precludes
implementation of DSB recommendations and rulings with respect to prior unliquidated entries. In
any event, it is not clear to us why the limitation found in Section 129(c)(1) would necessarily
mean that the United States is precluded from implementing DSB recommendations and rulings by
using other mechanisms that may be available under US law.
4.40. Having examined the broader statutory context of Section 129(c)(1), the Panel then
addressed Viet Nam's contention that USDOC "practice" since Section 129(c)(1) came into effect
supports Viet Nam's view regarding the meaning and effect of Section 129(c)(1). This entailed a
review of Exhibit VN-42
199, which the Panel noted provides "extensive examples of how the
United States has applied Section 129 since 2001". 200 The Panel recalled that Viet Nam had
challenged Section 129(c)(1) "as such", independently of any application of that provision in any
particular case. Thus, the Panel understood Vi et Nam's reliance on the USDOC practice in
Exhibit VN-42 as evidence supporting its reading of Section 129(c)(1).
201 On the basis of this
evidence, the Panel found that "[t]he application of Section 129(c)(1) to date does suggest that
the United States Government, following a Section 129 proceeding resulting in a determination to
revoke or modify an anti-dumping order, typically has not extended the effect of that decision to
prior unliquidated entries."
202 We recall that the Panel's examination was aimed at a determination
of whether Section 129(c)(1), itself, precludes implementation of DSB recommendations and
rulings with respect to prior unliquidated entries. Hence, even if the Panel's finding were read to
suggest that implementation of DSB recommendations and rulings is not possible under
Section 129(c)(1) in respect of prior unliquidated entries, this would still not answer the question
of whether Section 129(c)(1) precludes implementation of DSB recommendations and rulings with
respect to such entries.
4.41. Viet Nam asserts that the Panel ought to have taken into account the language in
Exhibit VN-42 that speaks to "the USDOC's own description of Section 129 as it exists" within the
US statutory framework.
203 Specifically, Viet Nam refers to a sentence in the Notice of
Implementation of Determination under Section 129 of the URAA concerning the DSB

194 Viet Nam's appellant's submission, para. 85 (quoting SAA (Panel Exhibit VN-34), pp. 1025-1026).
195 Viet Nam's appellant's submission, para. 86.
196 Viet Nam's appellant's submission, para. 86.
197 Viet Nam's appellant's submission, para. 86.
198 Appellate Body Reports, China – Rare Earths, para. 5.227 (referring to Appellate Body Report, Chile
– Price Band System (Article 21.5 – Argentina), para. 238).
199 Panel Exhibit VN-42 consists of a summary chart of USDOC determinations issued under
Section 129(c)(1) and certain United States Federal Register USDOC Section 129 determinations.
201 Panel Report, fn 379 to para. 7.263. In the same vein, we note that Viet Nam's claim does not
encompass a challenge to USDOC practice or ongoing conduct.
202 Panel Report, para. 7.264.
203 Viet Nam's appellant's submission, para. 24.

recommendations and rulings in US – Zeroing (EC) , US – Continued Zeroing , and US – Zeroing
(Japan), that reads as follows:
Section 129 of the URAA is the applicable provision governing the nature and effect of
determinations issued by [USDOC] to implement findings by WTO panels and the
Appellate Body.204
4.42. This sentence is repeated several ti mes throughout the USDOC notices contained in
Exhibit VN-42.205 This lends credence to Viet Nam's assertion that this sentence illustrates the
USDOC's understanding of Section 129. However, contrary to what Viet Nam argues, we do not
read this sentence to imply that "Section 129 was created as the exclusive authority to implement
adverse WTO determinations by means of a new administrative determination." 206 Indeed, as
discussed above, the fact that the United States can liquidate entries of the subject merchandise
consistently with its WTO obligations undermines Viet Nam's position regarding the alleged
exclusive and preclusive nature of Section 129 of the URAA.
4.43. The Panel then addressed the United St ates' assertion that the USDOC has alternative
means with which to implement DSB recommendations and rulings in respect of prior unliquidated
entries. In its arguments before the Panel, the United States highlighted three such alternative
means: (i) the ability of the US Congress to adopt new legislation or amend existing legislation;
(ii) the authority under Section 123 of the URAA for the US Administration to amend a
WTO-inconsistent practice; and (iii) the authority of the USDOC to adopt a WTO-consistent
methodology in a subsequent administrative review.
207 On appeal, Viet Nam challenges the
adequacy of the Panel's examination of th e alternative means of implementing DSB
recommendations and rulings put forward by the Unit ed States. First, Viet Nam contends that "the
existence of these three mechanisms as potential avenues for correcting WTO inconsistencies does
not address … the inconsistency that always arises under Section 129(c)(1)."
208 Viet Nam explains
that the fact that a WTO-inconsistency can be remedied through future legislation does not in any
way address the issue of whether existing legislation is WTO-inconsistent. Viet Nam further argues
that there is no authority under Section 123 for the USDOC to issue redeterminations applying a
change in regulation or practice to entries that have already been subject to a final determination
in an investigation or review, and that Section 129( c)(1) prohibits application of the results of any
redetermination under that provision to prior unliquidated entries. Finally, Viet Nam submits that,
while there is the possibility of applying a new, changed WTO-consistent methodology to prior
unliquidated entries that have not yet been subject to a review, prior unliquidated entries already
subject to a final determination in an investigation or review are not eligible for a subsequent
annual review. Rather, for these entries to benefit from a new WTO-consistent methodology,
Viet Nam insists that it is necessary for the USDOC to make a redetermination, and the only
authority for such a redetermination is the authority under Section 129 of the URAA.
4.44. As noted above, we understand the Panel to have set out to examine whether, as Viet Nam
had claimed, Section 129(c)(1), in and of itself, precludes implementation of DSB
recommendations and rulings with respect to prior unliquidated entries. It was in this context that
the Panel, at paragraph 7.266 of the Panel Report , considered the relevance of the alternative
means of implementation referred to by the Unit ed States, in particular, the authority under
Section 123 of the URAA for the United States to amend a WTO-inconsistent practice and to use
such new practice to implement DSB recommendatio ns and rulings, including in respect of prior

204 Viet Nam's appellant's submission, paras. 24 and 82 (quoting USDOC, Notice of Implementation of
Determination under Section 129 of the Uruguay Round Agreements Act: Stainless Steel Plate in Coils from
Belgium, Steel Concrete Reinforcing Bars from Latvia, Purified Carboxymethylcellulose from Finland, Certain
Pasta From Italy, Purified Carboxymethylcellulose from the Netherlands, Stainless Steel Wire Rod from Spain,
Granular Polytetrafluoroethylene Resin from Italy, Stainless Steel Sheet and Strip in Coils FROM Japan,
United States Federal Register, Vol. 77, No. 117 (18 June 2012), pp. 36257-36260, at p. 36258 (contained in
Panel Exhibit VN-42)).
205 E.g. USDOC, Notice of Determination under Section 129 of the Uruguay Round Agreements Act:
Antidumping Measures on Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Japan,
United States Federal Register, Vol. 67, No. 232 (3 December 2002), pp. 71936-71939, at p. 71937; and
Notice of Implementation under Section 129 of the Uruguay Round Agreements Act; Countervailing Measures
Concerning Certain Steel Products from the European Communities, United States Federal Register, Vol. 68,
No. 221 (17 November 2003), pp. 64858-64859, at p. 64858 (contained in Panel Exhibit VN-42)).
206 Viet Nam's appellant's submission, para. 82. (emphasis added)
207 Panel Report, para. 7.265.
208 Viet Nam's appellant's submission, para. 57.

unliquidated entries. It may have been helpful if the Panel had engaged in a more detailed
examination of these alternative means of implementation; however, as noted above 209, even if
paragraph 7.266 of the Panel Report were read to suggest that the implementation of
DSB recommendations and rulings is not possible under Section 129(c)(1) in respect of prior
unliquidated entries, this would still not answer the question of whether Section 129(c)(1)
precludes implementation of DSB recommendations and rulings with respect to such entries.
4.45. Turning to the USCIT Corus Staal opinion, Viet Nam argues that the Panel erred in finding
that "eliminating Section 129(c)(1) would not demonstrate that refunds of cash deposits on prior
unliquidated entries would then be available as a result of Section 129 determinations."210 Instead,
Viet Nam asserts that it was because of the limited effective date of Section 129 determinations
set out in Section 129(c)(1) that the USCIT held th at "Corus cannot obtain relief under the current
statutory scheme."
211 For Viet Nam, the Panel's logic regarding Corus Staal is "wrong on its face"
and, to the extent that "the Panel relied on this misconstruction of Corus in interpreting
Section 129", its analysis "cannot be considered objective or reasonable". 212 The passage that
Viet Nam relies on from the Corus Staal opinion reads as follows:
As a general rule, Commerce cannot impose antidumping duties without a valid
determination of dumping. However, the st atute that governs implementation of a
WTO panel report explicitly states that revocation of an antidumping order applies
prospectively on a date specified by the USTR.
In this case, there existed a valid determination of dumping that was subsequently
revoked. Taken together, the Section 129 Determination and § 3538(c) clearly
mandate that HRCS "that are entered, or withdrawn from warehouse, for consumption
on or after" April 23, 2007 are not subject to antidumping duties. Since Corus entered
the subject HRCS between May 3, 2001 and October 31, 2002, they remain bound by
the AD Order . It is indisputable that the guidelines for implementing a WTO decision
outlined in §§ 3538(c) supersede the broad requirements of § 1673 for imposing
antidumping duties. Therefore, Corus cannot obtain relief under the current statutory
scheme.
213
4.46. Contrary to what Viet Nam suggests, we do not understand the Corus Staal opinion to
support the proposition that Section 129(c)(1), in and of itself, precludes implementation of DSB
recommendations and rulings with respect to prior unliquidated entries. Rather, as the Panel
acknowledged, this language cited by Viet Nam recognizes "a difference between the general
operation of US law, where revocation of an order by a domestic court provides a legal basis to
seek a refund with respect to prior unliquidated entries, and the operation of Section 129, which
provides no legal basis for such action."
214 We further recall the Panel's finding that
"implementation through Section 129 determinations only has effects with respect to entries that
are made after the implementation date"215, and the passage from the SAA cited above explaining
that "section 129(c)(1) provides that where de terminations by the [USITC] or [USDOC] are
implemented under subsections (a) or (b), such determinations have prospective effect only." 216
For these reasons, we are not persuaded that th e Panel misconstrued the meaning of the USCIT's
ruling in Corus Staal BV v. United States as Viet Nam asserts.
4.47. As regards the Tembec opinion217, Viet Nam refers, in particular, to the USCIT's statement
that "section 129 cannot be read to imply authorit y for the USTR to order the implementation of a
section 129(a) determination that does not result in at least partial revocation of a related AD,
CVD, or safeguards order." 218 Viet Nam relies on this statement to argue that the Panel acted

209 Supra, para. 4.40.
210 Viet Nam's appellant's submission, para. 93.
211 Viet Nam's appellant's submission, para. 93 (quoting Corus Staal opinion (Panel Exhibit VN-36),
p. 17).
212 Viet Nam's appellant's submission, para. 93. (fn omitted)
213 Corus Staal opinion (Panel Exhibit VN-36), internal p. 5. (emphasis added; internal citations omitted)
215 Panel Report, para. 7.262.
216 SAA (Panel Exhibit VN-34), pp. 1025-1026.
217 Viet Nam provided the full text of the Tembec opinion in Panel Exhibit VN-37.
218 Viet Nam's appellant's submission, para. 94 (quoting Tembec opinion (Panel Exhibit VN-37), internal
pp. 13-14).

inconsistently with Article 11 of the DSU by declining to accept the textual and contextual guidance
that was present in Tembec v. United States. Instead, according to Viet Nam, the Panel conducted
a "tailored analysis" of Section 129(c)(1) to support the conclusion, that it had reached on the
basis of the text of that provision, that the me aning of Section 129(c)(1) is "clear on its face".
219
The Panel described the USCIT's reasoning in the following terms:
In its decision in Tembec v. United States, the Court of International Trade held that
Section 129 does not grant the USTR the authority to order the USDOC to
"implement" revised affirmative USITC injury determinations made pursuant to
Section 129(a) unless it results in the revocation of the order, in whole or in part. In
that case, the USTR had ordered the implementation of a Section 129 affirmative
threat of injury determination to replace a prior threat of injury determination that
had been found WTO-inconsistent. The Court found that the USTR's order to the
USDOC to implement the Section 129 determination was ultra vires and void. … The
Court expressly avoided deciding the issue of whether relief in the form of refunds of
cash deposits would be available following issuance of a Section 129 determination
containing a finding of threat of material injury replacing a prior, WTO-inconsistent,
finding of present injury. The reasoning of the Court however indicates that, assuming
arguendo that such a relief would be permissible under US law (the Court posits that it
might be construed as a form of retrospective relief unavailable under Section 129),
the USTR's power to direct the USDOC to revoke an order " in part" could allow it to
order such refunds: the Court reasons that the USDOC "could implement the
determination by revoking the portion of the outstanding order requiring retention of
cash deposits collected during the investigation period". Hence, the Court's decision
does not support – and could even be read as contradicting – Viet Nam's argument
that in situations where the USITC modified an affirmative injury determination, such
as altering its theory from one of present material injury to threat of material injury,
the USTR has no authority to direct any action under Section 129.
220
4.48. As noted by the Panel, the USCIT did not ex pressly rule on the issue of "whether relief in
the form of refunds of cash deposits would be available following issuance of a Section 129
determination containing a finding of threat of material injury." 221 We are not convinced that the
holding by the USCIT in Tembec v. United States suggests that Section 129 is the only means
available to the United States to implement DSB recommendations and rulings with respect to
prior unliquidated entries.
4.49. On the basis of its analysis, the Panel found that Viet Nam had failed to establish that
Section 129(c)(1) precludes "extending the benefits of implementation" to prior unliquidated
entries222, and concluded, therefore, that Viet Nam had not established that Section 129(c)(1) is
inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. 223
The Panel explained that, in reaching this conclusion, it had taken into consideration the text of
Section 129(c)(1), the SAA, the US Government's application of Section 129(c)(1) in the years
since it was adopted, and the USCIT's opinions cited by Viet Nam.
224
4.50. Based on our review of the Panel Report, we consider that the Panel properly relied on the
various elements that it examined to inform its understanding of the meaning and effect of
Section 129(c)(1). We, therefore, do not agree with Viet Nam that the Panel failed to conduct a
holistic assessment in ascertaining the meaning of Section 129(c)(1).
4.51. In sum, for all these reasons, we find that Viet Nam has not established that the Panel acted
inconsistently with Article 11 of the DSU. It fo llows that we need not, and do not, address
Viet Nam's request that we complete the legal analysis in order to determine whether
Section 129(c)(1) of the URAA is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of
the Anti-Dumping Agreement.

219 Viet Nam's appellant's submission, para. 98.
220 Panel Report, fn 398 to para. 7.269. (emphasis original)
222 Panel Report, para. 7.270.
223 Panel Report, paras. 7.271-7.272.
224 Panel Report, para. 7.270.
5 FINDINGS AND CONCLUSION
WT /DS429/ AB/R

5.1. For the reasons set out in this Report, the Appellate Body:
a. rejects Viet Nam's claim that the Panel acted inconsistently with Article 11 of the DSU;
and
b. upholds the Panel's finding, in paragraph B.l.h. of the Panel Report, that Viet Nam has
not established that Section 129(c)(1) of the URAA is inconsistent "as such" w ith
Articles 1, 9.2, 9.3, 11.1, and lB.l of the Anti-Dumping Agreement.
5.2. We recall that Viet Nam's appeal is limited to the Panel's finding in paragraph B.l.h. of the
Panel Report.1 Given that we have not found in this Report that the United States has acted
inconsistently with any of its WTO obligations, we make no recommendation to the DSB pursuant
to Article 19.1 of the DSU.
Signed In the original In Geneva this >{5 h ~ 01 arch 2015 by:
Ujal Singh Bhatia
Member

Thomas Graham
Presiding Member
1 We note that other findings in the Panel Report have not been appealed. These findings and the
subsequent recommendations by the Panel, therefore, remain unchanged.

ANNEX 1

9 January 2015
(15-0155) Page: 1/2
 Original: English
UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM
NOTIFICATION OF AN APPEAL BY VIET NAM
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
 The following notification, dated 6 January 2015, from the Delegation of Viet Nam, is being
circulated to Members.

 At the instruction of my authorities, the Government of the Socialist Republic of Viet Nam
hereby notifies the Dispute Settlement Body of its appeal of certain conclusions and
recommendations of the panel in United States – Anti-Dumping Measures on Certain Shrimp from
Vietnam (DS429). This notification of appeal is also being filed with the Appellate Body Secretariat,
with the United States, and with third party participants in the panel proceeding. The specifics of
the appeal are as follows:
1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for
Appellate Review , the Socialist Republic of Viet Nam ("Viet Nam") hereby notifies the
Dispute Settlement Body ("DSB") of its decision to appeal to the Appellate Body certain
issues of law and legal interpretation covered in the Panel Report in United States –
Anti-Dumping Measures on Certain Shrimp from Viet Nam (WT/DS429) ("Panel Report").
Pursuant to Rule 20(1) of the Working Procedures for Appellate Review, Viet Nam is
simultaneously filing this Notice of Appeal with the Appellate Body Secretariat.
2. Pursuant to rules 20(1) and 21(1) of the Working Procedures, Viet Nam files this Notice of
Appeal together with its Appellant's Submission with the Appellate Body Secretariat.
3. Viet Nam seeks review of the failure of the Panel to find that section 129(c)(1) of the
Uruguay Round Agreements Act ("URAA") constitutes an "as such" inconsistency with
Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Ag reement on Implementation of Article VI of
GATT 1994 ("Anti-Dumping Agreement") by limiting administrative redeterminations made
to implement adverse DSB recommendations and rulings, as provided for under Section 129
of the URAA, to "entries" (imports) of subjec t merchandise made on or after the effective
date of the determination to implement the adverse WTO ruling.
4. The conclusion and recommendation regarding section 129(c)(1) is in paragraph 8.1.h of the
Panel Report. The discussion of Vietnam's claims, the defenses presented by the
United States, and the evaluation of the Panel are in section 7.5 of the Panel Report.

5. The conclusion and recommendation regarding Section 129(c)(1) constitutes egregious error
by the Panel in its examination, understanding, and application of the evidence before it and
in its interpretation of this provision of U.S. law. As such, Viet Nam was denied an objective
examination as required by Article 11 of the DSU of the meaning of Section 129(c)(1).
The examination by the Panel was neither rigorous nor comprehensive as required by
WTO jurisprudence. In particular, the Panel erred because:
 its analytical framework for determining whether it would consider the consistency
of Section 129(c)(1) with U.S. WTO obliga tions applied an erroneous burden of
proof that flowed from a gross misunderst anding of the U.S. retrospective duty
assessment system and the operation of Section 129 relative to other mechanisms
that might address certain entries made before a Section 129 redetermination's
effective date; and
 it failed to apply objective principles of statutory interpretation in its consideration
(or lack thereof) of the statutory text of Section 129(c)(1), the broader context
surrounding the operation of Section 129, authoritative guidance on
Section 129(c)(1), judicial interpretation of the provision, and its application.
6. Viet Nam seeks to have the Appellate Body reverse the Panel's conclusion with respect to
section 129(c)(1). In reversing the Panel's conclusion, Vietnam also requests the
Appellate Body to complete the analysis and find Section 129(c)(1) "as such" inconsistent
with U.S. WTO obligations under Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Agreement on
Implementation of Article VI of GATT 1994 ("Anti-Dumping Agreement"), and recommend
that this provision be brought into conformity with those obligations.

ANNEX 2

ORGANISATION MONDIALE ORGANIZACIÓN MUNDIAL
 DU COMMERCE DEL COMERCIO

APPELLATE BODY

Procedural Ruling

1. On 27 January 2015, we received a letter from the United States requesting that we change
the date for the oral hearing in the above appellate proceedings due to certain logistical difficulties
faced by the United States in securing reasonable hotel accommodation in Geneva during the week
of 2 March 2015. The United States indicated that, if the Appellate Body were to grant its request,
the United States would be prepared to participate in an oral hearing scheduled earlier or later
than the week of 2 March 2015.

2. We invited Viet Nam and the third participants to comment in writing on the United States'
request by 3 p.m. on 28 January 2015. By that deadline, we received responses from Viet Nam
and China. For Viet Nam, advancing the date for the oral hearing to the week prior to 2 March was
not possible, but it could agree to postpone th e hearing to the week of 9 March. Viet Nam
expressed its concern, however, over possible delays in the circulation of the Appellate Body report
in this dispute that might result. China, for its part, indicated that it would prefer to have the oral
hearing scheduled for 27 February, or for the week of 9 March, or later, should the Appellate Body
grant the United States' request. No other third participant submitted comments.

3. The Division has carefully considered the United States' request, and the comments provided
by Viet Nam and China. According to Rule 16(2) of the Working Procedures for Appellate Review,
the date fixed by the Division for an oral hearing may be changed at the request of a participant
only if there are "exceptional circumstances" where strict adherence to the date set by the
Division would result in "manifest unfairness". While we empathize with the United States over the
difficulties it faces, we are not satisfied that the circumstances it has outlined in its request amount
to "exceptional circumstances" that would result in "manifest unfairness" within the meaning of
Rule 16(2). We note that this appeal is of limite d size. Therefore, the oral hearing in this appeal
has been scheduled for one day, rather than multiple days. In our view, the brevity of the hearing
mitigates, somewhat, the burden of finding accommodation in the area around Geneva. We also
note that, while Viet Nam does not object to postponing the oral hearing, it has expressed concern
regarding possible delays in the circulation of the A ppellate Body report in this dispute. Postponing
the oral hearing by a week or more would make it impossible to circulate the Appellate Body report
within the 90-day timeframe provided for in Arti cle 17.5 of the DSU. Finally, several appellate
proceedings are currently pending before the Appell ate Body. A change of the hearing date in this
appeal would create scheduling difficulties in respect of those other proceedings.

4. For these reasons, we have decided not to change the date of the oral hearing, which has been
fixed in the Working Schedule for this appeal for Monday, 2 March 2015.

Signed in Geneva this 29th day of January 2015 by:

 Thomas Graham
 Presiding Member

 ____________________ ____________________
 Ujal Singh Bhatia Peter Van den Bossche
 Member Member