On February 1, 2010, the United States received a request for consultations from Vietnam regarding the anti-dumping tax imposed by the United States. This US anti-dumping tax is based on the final result issued by the Department of Commercial (DOC) in several administrative reviews for the imposition of anti-dumping duties on importing frozen and canned warm water shrimp from Vietnam. Viet Nam has declared that some actions by the DOC and the US Customs and Border Protection (Border Protection) with some administrative reviews and any other reviews are or will be occurring in connection with this imposition of anti-dumping duties, as well as US laws, regulations, administrative procedures, practices and policies, are inconsistent with US commitments and obligations under this Article. I, II, VI: 1 and VI: 2 of GATT 1994, Articles 1, 2.1, 2.4, 2.4.2, 6.8, 6.10, 9.1, 9.3, 9.4, 11.2, 11.3, 18.1 and 18.4 and Annex II to the Agreement implementation of Article VI of GATT 1994 (Anti-Dumping Agreement), Article XVI: 4 of the Marrakesh Agreement Establishing the World Trade Organization and Vietnam’s Accession Protocol.
Vietnam declares that certain actions by the DOC and the US Customs and Border Protection are inconsistent with US commitments and obligations. These actions include actions for some of the administrative reviews or any other review that is or will take place in connection with the above anti-dumping duty; as well as US laws, regulations, administrative procedures, practices, and policies. Specifically, through these actions, the United States has violated its commitments and obligations in Articles I, II, VI: 1 and VI: 2 of GATT 1994; Articles 1, 2.1, 2.4, 2.4.2, 6.8, 6.10. , 9.1, 9.3, 9.4, 11.2, 11.3, 18.1 and 18.4; Annex II to Implementation Agreement Article VI of GATT 1994 (Anti-Dumping Agreement), Article XVI: 4 of the Marrakesh Agreement Establishing the World Trade Organization and Vietnam’s Accession Protocol.
Vietnam investigate anti-dumping on Shrimp. Image: Perishable News
Claims against the zero-rule approach in administrative reviews
With respect to Viet Nam’s claims regarding the zero-in administrative review method (in April 2012, USDOC revised its calculation method in administrative review), the Panel stated that Vietnam has failed to prove the existence of a measure similar to a general rule or criterion and has a oriented application. Consequently, the Panel rejected Viet Nam’s allegations that there was a violation of Article 9.3 of the Anti-Dumping Agreement and Article VI: 2 of GATT 1994. With respect to Vietnam’s “how to apply” arguments, the Panel found that USDOC’s use of a zero-point approach to calculate the dumping margins of individual Vietnamese producers and exporters in Three administrative reviews for non-compliance with Article 9.3 of the Anti-Dumping Agreement and Article VI: 2 of GATT 1994.
Claims against the USDOC’s decision in the Term Review
In assessing Viet Nam’s allegations of USDOC’s decision to the end-of-term review, the Panel agreed to the findings of the Panel and Appellate Body in previous disputes that Investigators should choose based on dumping margins when deciding on a likely dumping case, and the calculation of these margins should be consistent with the principles of the agreements. signed or may not violate Article 11.3. The panel found that in deciding on a likely dumping case, the USDOC relied on a number of dumping margins identified to be inconsistent with the Anti-Dumping Agreement and GATT 1994, especially, the personal dumping margin is calculated by the zero-level method and the overall anti-dumping margin ratio for the whole of Vietnam. The panel concluded that the fact that the DOC relied on dumping margins that were inconsistent with WTO rules to make a one-case decision of dumping was inconsistent with Article 11.3.
The United States and Vietnam hold the consultations
On April 19, 2010, Vietnam requested the DSB to establish a panel. The DSB accepted the request at the meeting on May 18, 2010. On July 26, 2010, the Superintendent established a panel.
The panel released its report on 11 July 2011. The Panel found that the use of “zeroing” in the second and third administrative reviews in the anti-dumping order of shrimp was inconsistent with Article 2.4 of the Anti-Dumping Agreement. The use of “zeroing” in administrative assessments is inconsistent “as is Article 2.4” and Article 9.3 of the Anti-Dumping Agreement; Article VI: 2 of GATT 1994. The panel also found that the implementation of anti-dumping measures was determined by using “zeroing” to calculate the “product” rate in the second and third administrative review are inconsistent with Article 9.4 of the Anti-Dumping Agreement. The Panel found that the application of anti-dumping to legal entities in Vietnam other than “all other countries” was also inconsistent with Article 9.4 of the Anti-Dumping Agreement.
On 2 September 2011, the DSB adopted its recommendations and rulings as outlined in the panel report. The United States and Vietnam agreed that a reasonable period of time for the United States to implement the DSB’s recommendations and rulings would end on July 2, 2012.