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DISPUTE SETTLEMENT: DISPUTE DS343

United States — Measures Relating to Shrimp from Thailand

This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.

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Panel Reports currently under appeal

Complaint by Thailand. 

On 24 April 2006, Thailand requested consultations with the United States concerning anti-dumping measures on imports of frozen warmwater shrimp.  Thailand requests consultations on the United States’ application in the Preliminary, Final and Amended Final Determinations of the practice known as “zeroing” negative dumping margins, the effect of which was to artificially create margins of dumping, and the consequent imposition of definitive anti-dumping measures on imports of certain frozen warmwater shrimp from Thailand. 

Thailand considers that through its use of “zeroing”, the United States has failed to make a fair comparison between the export price and the normal value, and calculated distorted margins of dumping therefore violating:

• Articles 1, 2.1, 2.4, 2.4.2, 3.1, 3.2, 3.3, 3.4, 3.5, 5.8, 9.2 and 9.3 of the Anti-Dumping Agreement, and
    
• Articles II, III, VI:1 and VI:2 of the GATT 1994.

In addition, Thailand requests consultations on the United States’ continuous bond requirement as such and on its application to imports of frozen warmwater shrimp from Thailand which it considers may be inconsistent with Articles I:1, II, III, XI:1 and XIII:1 of the GATT 1994 and may not be justified under Article XX(d) of the GATT 1994.

On 1 May 2006, India requested to join the consultations. On 2 May 2006, Japan requested to join the consultations. On 5 May 2006, Brazil requested to join the consultations. On 8 May 2006, China requested to join the consultations. The United States informed the DSB that it had accepted the requests of Brazil, China and India to join the consultations.

On 15 September 2006, Thailand requested the establishment of a panel. At its meeting on 28 September 2006, the DSB deferred the establishment of a panel. At its meeting on 26 October 2006, the DSB established a panel. Brazil, Chile, China, the European Communities, India, Japan, Korea and Mexico reserved their third-party rights. On 19 January 2007, Thailand requested the Director-General to compose the Panel. On 26 January 2007, the Director-General composed the Panel. Subsequently, Viet Nam reserved its third-party rights.

On 27 July 2007, the Chairman of the Panel informed the DSB that it would not be possible for the Panel to complete its work within six months of the date of composition, inter alia, due to the nature and scope of the dispute.

On 29 February 2008, the Panel report was circulated to Members. The Panel upheld Thailand's claims that the application of the EBR to subject shrimp from Thailand is inconsistent with Article 18.1 of the Anti-Dumping Agreement, and the Ad Note. It rejected the United States' argument that the application of the EBR is justified under Article XX(d) of the GATT 1994.

The Panel further upheld Thailand's claim that the United States acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement by using zeroing to calculate margins of dumping in respect of the anti-dumping measure. The Panel declined to rule separately on Thailand's claim that the application of the EBR to subject shrimp from Thailand is inconsistent with Articles I, II:1(a), the first and second sentences of Article II:1(b), X:3(a) and XI:1 of the GATT 1994.

The Panel recommended that the United States bring its measures into conformity with its obligations under the Anti-Dumping Agreement and the GATT 1994.

On 17 April 2008, Thailand notified its decision to request the Appellate Body to review certain issues of law covered in the Panel report and certain legal interpretations developed by the Panel. On 29 April 2008, the United States notified its decision to appeal to the Appellate Body certain issues of law covered in the Panel report and certain legal interpretations developed by the Panel.

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