United States - Anti-Dumping Measures on Certain Shrimp from Viet Nam (WT/DS429): Report of the Appellate Body

Summary

INTRODUCTION

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 (Panel Report). The Panel was established to consider a complaint by Viet Nam 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 (Shrimp), as well as with respect to certain US laws, and methodologies and practices of the US Department of Commerce (USDOC).

The USDOC initiated its Shrimp investigation in January 2004 and issued an anti-dumping order in February 2005. 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. 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 rate). 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.

The factual aspects of this dispute are set forth in greater detail in paragraphs 2.1 to 2.8 of the Panel Report.

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. Additionally, Viet Nam brought “as such” claims with respect to the following measures:

a. the USDOC's “simple zeroing methodology” 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 (URAA).