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Complaint by Viet Nam.
On 16 February 2012, Viet Nam requested consultations with the United States concerning a number of anti-dumping measures on certain frozen warmwater shrimp from Viet Nam. In addition to two administrative reviews and the five year “sunset review”, the request for consultations concerns several US laws, regulations, administrative proceedings and practices, including zeroing.
Viet Nam considers that these measures are inconsistent with the United States' obligations under:
- Articles I:1, VI:1, VI:2 and X:3(a) of the GATT 1994;
- Articles 1, 2.1, 2.4, 2.4.2, 6, 9, 11, 17.6(i) and Annex II of the Anti-Dumping Agreement;
- Article XVI:4 of the WTO Agreement;
- Articles 3.7, 19.1, 21.1, 21.3 and 21.5 of the DSU; and
- Viet Nam's Protocol of Accession.
On 17 January 2013, Viet Nam requested the establishment of a panel. At its meeting on 28 January 2013, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
At its meeting on 27 February 2013, the DSB established a panel. China, the European Union, Japan, Norway and Thailand reserved their third-party rights. Subsequently, Ecuador reserved its third-party rights. Following the agreement of the parties, the panel was composed on 12 July 2013. On 30 January 2014, the Chair of the panel informed the DSB that the panel expected to issue its final report to the parties by 30 September 2014.
On 17 November 2014, the report of the panel was circulated to Members. The panel found that certain of the measures challenged by Viet Nam are inconsistent with the GATT 1994 and the Anti-Dumping Agreement, and recommends that the United States bring the relevant measures into conformity with its obligations under these Agreements.
Summary of key findings
The dispute concerns anti-dumping measures imposed by the United States against imports of certain shrimp products from Viet Nam (hereafter referred to as the Shrimp proceedings and anti-dumping duty order), as well as certain US laws or practices concerning the imposition of anti-dumping measures and the implementation of adverse DSB recommendations and rulings in trade remedy cases.
Viet Nam made claims with respect to:
- the USDOC's use of the “simple zeroing” methodology, in administrative reviews, which Viet Nam argued was, “as such” and “as applied” in the fourth, fifth and sixth administrative reviews under the Shrimp order, inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994;
- the USDOC's practice, in anti-dumping proceedings involving imports from NMEs, of assigning a rate to the “NME-wide entity” comprised of producers/exporters that do not demonstrate sufficient independence from government control, which Viet Nam argued was, “as such”, and “as applied” in the fourth, fifth and sixth administrative reviews, inconsistent with Articles 6.10, 9.2, 9.4 and 6.8 of the Anti-Dumping Agreement;
- Section 129(c)(1) of the URAA which, in Viet Nam's view, precluded US authorities from implementing DSB recommendations and rulings with respect to entries made prior to, and that remained “unliquidated” on, that date (“prior unliquidated entries”), in a manner that was inconsistent, “as such”, with Articles 1, 9.2, 9.3, 11.1 and 18.1 of the Anti-Dumping Agreement;
- the USDOC's reliance on margins of dumping calculated with zeroing, and its failure to properly establish the facts and to conduct an objective evaluation in the first sunset review under the Shrimp order, which Viet Nam argued was inconsistent with Articles 11.3 and 17.6 of the Anti-Dumping Agreement; and
- the USDOC's failure to revoke the anti-dumping duty order with respect to certain companies that, in Viet Nam's view, had demonstrated the absence of dumping in the third, fourth and fifth administrative reviews, in violation of Articles 11.1 and 11.2 of the Anti-Dumping Agreement.
The United States requested that the Panel reject Viet Nam's claims and that it find, by way of preliminary ruling, that certain claims set forth by Viet Nam in its request for the establishment of a panel fell outside the Panel's terms of reference.
Preliminary ruling addressing jurisdictional objections by the United States
On 26 September 2013, the Panel issued a preliminary ruling in which it rejected the US argument that the sixth administrative review was not within its terms of reference. The Panel declined to make any ruling with respect to the remaining objections raised by the United States in light of Viet Nam's indication that it was not pursuing the corresponding claims.
Claims with respect to zeroing in administrative reviews
With respect to Viet Nam's “as such” claim concerning zeroing in administrative reviews, taking into account the fact that, as of April 2012, the USDOC had modified its calculation methodology in administrative reviews, the Panel found that Viet Nam had failed to establish the existence of the alleged measure as a rule or norm of general and prospective application. Consequently, the Panel rejected Viet Nam's claims of inconsistency under Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
With respect to Viet Nam's “as applied” claims, the Panel found that the USDOC had used zeroing to calculate the dumping margins of individually-examined Vietnamese producers/exporters in the three administrative reviews at issue and that by doing so, had acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
Claims with respect to the USDOC's NME-wide entity rate practice
The Panel found, with respect to Viet Nam's claims concerning the USDOC's NME-wide entity rate practice, that Viet Nam had successfully established the existence of the NME-wide entity rate practice as a rule or norm of general and prospective application which could be challenged “as such” as Viet Nam had demonstrated that, in anti-dumping proceedings involving NME countries, the USDOC applies a rebuttable presumption that all companies within a NME country belong to a single, NME-wide entity and assigns a single rate to that entity, and thus to companies deemed to belong to that entity. The Panel found that this measure was “as such”, and “as applied” in the fourth, fifth and sixth administrative reviews inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement.
The Panel found that Viet Nam had not established that there existed a USDOC practice amounting to a rule or norm of general and prospective application with respect to the manner in which the NME-wide entity rate is calculated, in particular concerning the use of facts available. Consequently, the Panel rejected Viet Nam's claim that this alleged measure was inconsistent, “as such”, with Articles 6.8, 9.4 and Annex II of the Anti-Dumping Agreement. However the Panel found that the rate applied to the Viet Nam-wide entity and its constituent companies in the administrative reviews at issue was inconsistent with Article 9.4. It rejected Viet Nam's claims that the same rate violated Article 6.8 and Annex II.
Claims with respect to Section 129(c)(1) of the URAA
The Panel concluded that Viet Nam had failed to establish its factual allegation that Section 129(c)(1) of the URAA precludes implementation of DSB recommendations by the US authorities with respect to prior unliquidated entries. This being the case, the Panel rejected Viet Nam's claims concerning this provision of US law.
Claims with respect to the USDOC's determination in the sunset review
In its assessment of Viet Nam's claims with respect to USDOC's determination in the sunset review, the Panel agreed with the conclusions of panels and the Appellate Body in prior disputes that, should an investigating authority choose to rely upon dumping margins in making a likelihood-of-dumping determination, the calculation of those margins must conform to the disciplines of the covered agreements or a violation of Article 11.3 ensues. The Panel found that the USDOC had relied, in its likelihood-of-dumping determination, on certain margins that had been determined inconsistently with provisions of the Anti-Dumping Agreement and the GATT 1994, in particular individual dumping margins calculated with zeroing and the Viet Nam-wide entity rate. The Panel concluded that the USDOC's reliance on WTO-inconsistent margins rendered its likelihood-of-dumping determination inconsistent with Article 11.3.
Claims with respect to company-specific revocations
In examining Viet Nam's claims with respect to company-specific revocations, the Panel noted that Article 11.2 imposes an obligation on authorities to conduct a review of the need for the continued imposition of the duty where: (i) a request is submitted by an interested party; (ii) after a reasonable period of time has elapsed; (iii) requesting that the investigating authority examine one of the three matters specified in the second sentence of Article 11.2; and (iv) the request is accompanied by positive information substantiating the need for a review. The Panel found that although requests submitted by Vietnamese producers/exporters in the context of the fourth and fifth administrative reviews satisfied these conditions, for some of the requests, the USDOC made a determination not to revoke the order but did not undertake any consideration of the need for the continued imposition of the duty to offset dumping, on the basis that the producer/exporter requesting revocation was not being individually examined in the administrative review at issue. On this basis, the Panel upheld Viet Nam's claim that the USDOC's treatment of the requests for revocation submitted by Vietnamese producers/exporters not selected for individual examination contravened Article 11.2.
The Panel further considered that if an authority elects to rely on the existence of dumping margins in the determination foreseen under Article 11.2, then, the margins it relies upon must have been determined consistently with the disciplines of the covered agreements. Given that, in the proceedings at issue, the USDOC had relied on margins of dumping calculated with zeroing in its consideration of some revocation requests, the Panel upheld Viet Nam's claim with respect to the USDOC's treatment of these requests.
On 6 January 2015, Viet Nam notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretation in the panel report.
On 7 April 2015, the Appellate Body report was circulated to Members.
Summary of key findings
In its appeal, Viet Nam claimed that the Panel acted inconsistently with its obligations under Article 11 of the DSU, in finding that Viet Nam had failed to establish that Section 129(c)(1) precludes "extending the benefits of implementation" to prior unliquidated entries, and therefore concluding 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. The Appellate Body rejected Viet Nam's claim that the Panel acted inconsistently with Article 11 of the DSU. Consequently, 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.
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