Adopted by DSB 22 April 2015
Complainant Viet Nam
Respondent United States
Third Parties China; Ecuador; European Union; Japan; Norway; Thailand
Measures at Issue
US laws and practices related to the imposition of anti-dumping measures against imports of certain shrimp products from Viet Nam. In particular, the dispute concerned various aspects of certain administrative reviews and a sunset review regarding such measures. The dispute also concerned certain US laws regarding the implementation of DSB recommendations and rulings.
Main Adopted Findings of the Panel and Appellate Body
Zeroing
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 Anti-Dumping Agreement and Article VI:2 of the GATT 1994 because Viet Nam had not established the existence of the alleged measure,Footnote 1 but the USDOC acted inconsistently with those Articles on an ‘as applied’ basis through its use of the simple zeroing methodology in certain administrative reviews.Footnote 2
NME Rate Methodology
The Panel found that the practice whereby the USDOC assigns a single rate to all producers/exporters in a NME country under the presumption that they comprise a single NME-wide entity is ‘as such’ inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement,Footnote 3 and that the USDOC also acted inconsistently with those Articles on an ‘as applied’ basis through its use of this presumption in certain administrative reviews.Footnote 4
The Panel found that that Viet Nam had not established the existence of an alleged measure whereby the USDOC uses facts available to determine NME-wide entity rates and therefore rejected Viet Nam's claim that this practice was inconsistent ‘as such’ with Articles 6.8, 9.4, and Annex II of the Anti-Dumping Agreement.Footnote 5 The USDOC did, however, act inconsistently with Article 9.4 of the Anti-Dumping Agreement by applying a rate to the Viet Nam-wide entity that exceeded the applicable ceiling under that Article in the administrative reviews at issue.Footnote 6 The Panel rejected Viet Nam's claim that the rate assigned to the Viet Nam-wide entity in the administrative reviews at issue was inconsistent with Article 6.8 and Annex II of the Anti-Dumping Agreement.Footnote 7
Revocation Requests
The Panel found that the USDOC acted inconsistently with Article 11.2 of the Anti-Dumping Agreement in certain administrative reviews by failing to properly examine revocation requests by Viet Nam entities not being individually examinedFootnote 8 and by determining not to revoke the anti-dumping order with respect to certain Viet Nam exporters/producers when the rate assigned to those entities had been calculated using zeroing (i.e. calculated in a manner inconsistent with the Anti-Dumping Agreement).Footnote 9
Sunset Review
The Panel found that the USDOC acted inconsistently with Article 11.3 of the Anti-Dumping Agreement in the relevant sunset review by basing its likelihood-of-dumping determination on dumping margins that had been calculated in a WTO-inconsistent manner (i.e. calculated with zeroing or the Viet Nam entity-wide rate).Footnote 10
DSU Art. 11
The Appellate Body rejected Viet Nam's claim that the Panel acted inconsistently with its obligations under Article 11 of the DSU in assessing whether Section 129(c)(1)of the US Uruguay Round Agreements Act is inconsistent ‘as such’ with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement. In particular, the Appellate Body disagreed 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.Footnote 11 The Appellate Body further disagreed with Viet Nam that the Panel failed to conduct a holistic assessment in ascertaining the meaning of Section 129(c)(1).Footnote 12 Thus, the Appellate Body upheld the Panel's 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.Footnote 13
