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Lawyers, other representatives, expert(s), tribunal’s secretary

Report of the Panel

CASES CITED IN THIS REPORT

Short titleFull case title and citation
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti‑Dumping Measures on Imports of Ceramic Floor Tiles from Italy, WT/DS189/R, adopted 5 November 2001, DSR 2001:XII, p. 6241
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1161
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, p. 135
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti‑Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted 18 August 2003, as modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, p. 2701
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti‑Dumping Measures on Steel Rebar from Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, p. 2667
Guatemala – Cement I Appellate Body Report, Guatemala – Anti‑Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, p. 3767
Korea – Certain Paper Panel Report, Korea – Anti‑Dumping Duties on Imports of Certain Paper from Indonesia, WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII, p. 10637
Mexico – Anti‑Dumping Measures on Rice Appellate Body Report, Mexico – Definitive Anti‑Dumping Measures on Beef and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted 20 December 2005, DSR 2005:XXII, p. 10853
Mexico – Corn Syrup (Article 21.5 – US) Appellate Body Report, Mexico – Anti‑Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSUby the United States, WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6675
US – Anti‑Dumping Measures on Oil Country Tubular Goods Appellate Body Report, United States – Anti‑Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005, DSR 2005:XX, p. 10127
US – Anti‑Dumping Measures on Oil Country Tubular Goods Panel Report, United States – Anti‑Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/R, adopted 28 November 2005, as modified by Appellate Body Report WT/DS282/AB/R, DSR 2005:XXI, p. 10225
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, p. 1291
US – Continued Zeroing Panel Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/R, adopted 19 February 2009, as modified as Appellate Body Report WT/DS350/AB/R, DSR 2009:III, p. 1481
US – Corrosion‑Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti‑Dumping Duties on Corrosion‑Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3
US – Countervailing Duty Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131
US – DRAMS Panel Report, United States – Anti‑Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Korea, WT/DS99/R, adopted 19 March 1999, DSR 1999:II, p. 521
US – Hot‑Rolled Steel Appellate Body Report, United States – Anti‑Dumping Measures on Certain Hot‑Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, p. 4697
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Oil Country Tubular Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/R and Corr.1, adopted 17 December 2004, as modified by Appellate Body Report WT/DS268/AB/R, DSR 2004:VIII, p. 3421
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Administrative Reviews and Other Measures Related to Imports of Certain Orange Juice from Brazil, WT/DS382/R, adopted 17 June 2011, DSR 2011:VII, p. 3753
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Section 129(c)(1) URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, p. 2581
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, adopted 2 September 2011, DSR 2011:X, p. 5301
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/AB/R, adopted 31 August 2004, DSR 2004:V, p. 1875
US – Softwood Lumber V (Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada, WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII, p. 5087
US – Softwood Lumber V (Article 21.5 – Canada) Panel Report, United States – Final Dumping Determination on Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada, WT/DS264/RW, adopted 1 September 2006, as reversed by Appellate Body Report WT/DS264/AB/RW, DSR 2006:XII, p. 5147
US – Softwood Lumber VI (Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1, DSR 2006:XI, p. 4865
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti‑Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008, DSR 2008:II, p. 513
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti‑Dumping Measures on Stainless Steel from Mexico, WT/DS344/R, adopted 20 May 2008, as modified by Appellate Body Report WT/DS344/AB/R, DSR 2008:II, p. 599
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, p. 323
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, p. 417
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/R, adopted 9 May 2006, as modified by Appellate Body Report WT/DS294/AB/R, DSR 2006:II, p. 521
US – Zeroing (EC) (Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS294/AB/RW and Corr.1, adopted 11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (EC) (Article 21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS294/RW, adopted 11 June 2009, as modified by Appellate Body Report WT/DS294/AB/RW, DSR 2009:VII, p. 3117
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, p. 3
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/R, adopted 23 January 2007, as modified by Appellate Body Report WT/DS322/AB/R, DSR 2007:I, p. 97
US – Zeroing (Japan) (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441
US – Zeroing (Japan) (Article 21.5 – Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/RW, adopted 31 August 2009, upheld by Appellate Body Report WT/DS322/AB/RW, DSR 2009:VIII, p. 3553

ABBREVIATIONS

AbbreviationDescription
Anti-Dumping Agreement Agreement on Implementation of Article VI of GATT 1994
BCI Business Confidential Information
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
NME Non-Market Economy
POI Period of investigation
POR Period of review
SCM Agreement Agreement on Subsidies and Countervailing Measures
SPB Sunset Policy Bulletin
URAA Uruguay Round Agreements Act
United States United States of America
USCBP United States Customs and Border Protection
USDOC United States Department of Commerce
USITC United States International Trade Commission
USTR United States Trade Representative
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679
Viet Nam Socialist Republic of Viet Nam
Viet Nam's Protocol of Accession Protocol on the Accession of the Socialist Republic of Viet Nam, WT/L/662 (15 November 2006)
Viet Nam's Working Party Report Report of the Working Party on the Accession of Viet Nam, WT/ACC/VNM/48 (27 October 2006)
WTO World Trade Organization

1 Introduction

1.1 Complaint by Viet Nam

1.1.
On 22 February 2012, Viet Nam requested consultations with the United States pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), and Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of GATT 1994 ("Anti-Dumping Agreement") with respect to certain anti-dumping measures imposed by the United States in the context of the US anti-dumping proceedings on Certain Frozen Warmwater Shrimp from Vietnam (hereinafter "Shrimp") as well as with respect to certain US laws and US Department of Commerce ("USDOC") methodologies and practices.1
1.2.
Consultations were held on 28 March 2012 but failed to resolve the dispute.

1.2 Panel establishment and composition

1.3.
On 20 December 2012, Viet Nam requested the establishment of a panel pursuant to Article 6 of the DSU, with standard terms of reference.2 At its meeting on 27 February 2013, the Dispute Settlement Body ("DSB") established a panel pursuant to the request of Viet Nam in document WT/DS429/2/Rev.1 and Corrigenda 1 & 2, in accordance with Article 6 of the DSU.3
1.4.
The Panel's terms of reference are the following:

To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by Viet Nam in document WT/DS429/2/Rev.1 and Corrigenda 14 and 25 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.

1.5.
On 12 July 2013, the parties agreed that the panel would be composed as follows:

Chairperson: Mr Simon Farbenbloom

Members: Mr Adrian Makuc

Mr Abd El Rahman Ezz El Din Fawzy

1.6.
China, Ecuador, the European Union, Japan, Norway and Thailand notified their interest in participating in the Panel proceedings as third parties.6

1.3 Panel proceedings

1.3.1 General

1.7.
After consultation with the parties, the Panel adopted its Working Procedures7 on 5 August 2013 and its timetable on 6 August 2013. On 9 August 2013, the Panel revised its Working Procedures and adopted Additional Working Procedures Concerning Business Confidential Information ("BCI").8 The Panel revised its timetable on 16 December 2013 and on 31 March 2014.
1.8.
The Panel held a first substantive meeting with the parties on 10 and 11 December 2013. A session with the third parties took place on 11 December 2013. The Panel held a second substantive meeting with the parties on 25-26 March 2014. On 6 May 2014, the Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 16 July 2014. The Panel issued its Final Report to the parties on 4 September 2014.

1.3.2 Preliminary ruling

1.9.
On 31 July 2013, the United States submitted to the Panel a request for preliminary rulings in which it asked that the Panel find that certain measures and claims referenced in Viet Nam's panel request were not properly within the Panel's terms of reference.9 Viet Nam responded to the United States' request on 5 August 2013.10 The United States replied to Viet Nam's response on 13 August 2013, and two third parties, the European Union and China, filed observations regarding the United States' request on 14 August 2013.11 On 16 August 2013, Viet Nam provided comments on the United States' reply.12
1.10.
On 26 September 2013, the Panel issued a Preliminary Ruling addressing the United States' request, and indicated that the Ruling would become an integral part of its Final Report, subject to any changes that may be necessary in light of comments received from the parties at the interim review stage. The Preliminary Ruling was circulated to the parties and to the third parties to the dispute and is included as Annex A-3 of this Report.

2 Factual aspects

2.1.
This dispute concerns certain US laws, methodologies and practices with respect to the imposition of anti-dumping duties as well as certain USDOC actions and determinations in the Shrimp proceedings.
2.2.
The United States operates a "retrospective" duty assessment system. Under this system, the USDOC determines whether the imposition of anti-dumping measures is justified by conducting an original investigation. In the investigation, the USDOC determines whether dumping exists during the period of investigation. The United States International Trade Commission ("USITC") concurrently determines whether the relevant US industry is injured by reason of the dumped imports. When the USDOC finds dumping and the USITC finds that dumped imports caused injury to the domestic industry, the USDOC issues an anti-dumping "order" imposing final measures. The anti-dumping order provides the United States Government with the authority to require cash deposits at a rate equivalent to the margin of dumping calculated for each known producer/exporter at the time of importation and, as described below, to subsequently assess anti-dumping duties on imports of the subject merchandise and eventually collect such duties ("liquidation").13
2.3.
The definitive amount of anti-dumping duty liability is determined subsequently, after the importation of the merchandise, as a result of an annual "administrative review" which the USDOC initiates upon request from interested parties. In the administrative review, the USDOC calculates assessment rates with respect to the "entries" (imports) under review, and determines the cash deposit that will be required as a security on future entries, until subsequent administrative reviews are conducted with respect to those entries. At the conclusion of the administrative review process, the USDOC instructs US Customs and Border Protection ("USCBP") to liquidate the entries consistent with its determination; if the definitive duties owed are less than the level of the cash deposits, USCBP returns the excess with interest to the importer. If the definitive duty liability is greater than the cash deposits, the importer must pay the additional amount. In the event that no administrative review is requested, entries are liquidated at the cash deposit rate applicable at the time of importation. Moreover, final assessment or collection ("liquidation") may be delayed by challenges before US courts given that in such proceedings, parties may obtain an injunction against liquidation for the duration of the court proceeding.14
2.4.
The USDOC initiated its Shrimp investigation in January 2004 and issued an anti-dumping order in February 2005. At the time of these Panel proceedings, it had completed seven administrative reviews and conducted a first sunset review15 in which it determined that revocation of the anti-dumping duty order would be likely to lead to the continuation or recurrence of dumping.16
2.5.
In the Shrimp proceedings, because Viet Nam has been designated by the USDOC as a non-market economy ("NME"), 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 (the "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.
2.6.
In addition, in the original investigation and in each of the administrative reviews, in light of the large number of Vietnamese respondents involved, the USDOC limited its examination and determined individual dumping margins for a limited number of companies. The USDOC assigned the companies who were not selected for individual examination and who demonstrated sufficient independence from government control a "separate rate". In the original investigation, it assigned a single "Viet Nam-wide entity" rate to the Vietnamese respondents who did not demonstrate independence from government control. The Viet Nam-wide entity rate was determined on the basis of information contained in the petition. The USDOC continued to apply the same Viet Nam-wide entity rate in each of the administrative reviews.
2.7.
Without prejudice to which segments of the Shrimp proceedings fall within the Panel's terms of reference, the following table summarizes the rates that were assigned by the USDOC to the Vietnamese producers/exporters involved:

Proceeding, date of final determination, period of investigation or reviewDumping margins17
Mandatory and voluntary respondentsSeparate-rate respondentsViet Nam-wide entity
Original investigation 8 December 2004 (amended 1 February 2005) POI: 1 April 2003 to 30 September 2003 4 mandatory respondents, 3 cooperated: ´ CAMIMEX: 5.24% ´ Minh Phu: 4.38% ´ Seaprodex Minh Hai: 4.30% 4.57% (weighted-average of margins for mandatory respondents) 25.76% (calculated on the basis of facts available)
First administrative review and first new shipper review 12 September 2007 POR: 16 July 2004 to 31 January 2006 3 mandatory respondents, only one cooperated: Fish One: 0% 4.57% (the separate rate was based on the separate rate in the original investigation) Except: ´ Grobest: 0.00% (new shipper review rate) 25.76%
Second administrative review 9 September 2008 POR: 1 February 2006 to 31 January 2007 2 mandatory respondents: ´ Minh Phu: 0.01% ´ CAMIMEX: 0.00% 4.57% Except: ´ Grobest: 0.00% ´ Fish One: 0.00% ´ Seaprodex Min Hai: 4.30% (USDOC applied the same separate rate as in the investigation, except for separate rate respondents which had previously received an individual margin) 25.76%
Third administrative review 15 September 2009 POR: 1 February 2007 to 31 January 2008 3 mandatory respondents: ´ Minh Phu: 0.43% ´ CAMIMEX: 0.08% ´ Phuong Nam: 0.21% 4.57% Except: ´ Fish One: 0.00% ´ Grobest: 0.00% ´ Seaprodex Min Hai: 4.30% (USDOC applied the same separate rate as in the investigation, except for separate rate respondents which had previously received an individual margin). 25.76%
Fourth administrative review 9 August 2010 (amended 29 September 2010) POR: 1 February 2008 to 31 January 2009 2 mandatory respondents: ´ Minh Phu: 2.95% ´ Nha Trang: 4.89% 3.92% (simple average of margin for mandatory respondents) 25.76%
Fifth administrative review 12 September 2011 (amended 18 October 2011) POR: 1 February 2009 to 31 January 2010 3 mandatory respondents: ´ CAMIMEX: 0.80% ´ Minh Phu: 1.15% ´ Nha Trang: de minimis 1.03% (weighted-average of margins for mandatory respondents, excluding de minimis margin) 25.76%
Sixth administrative review 11 September 2012 (amended 18 October 2012) POR: 1 February 2010 to 31 January 2011 2 mandatory respondents: ´ Minh Phu: 0.53% ´ Nha Trang: 1.23% 0.88% (simple average of margins for mandatory respondents) 25.76%
Seventh administrative review 12 September 2013 POR: 1 February 2011 to 31 January 2012 2 mandatory respondents and one voluntary respondent: ´ Minh Phu: 0.00% Nha Trang: 0.00% ´ Quoc Viet (voluntary respondent): 0.00% 0.00% (weighted-average of margins for mandatory respondents) 25.76%

2.8.
The relevant facts are described in more detail in our findings.
2.9.
Viet Nam makes claims with respect to the USDOC's final determinations in the fourth, fifth and sixth administrative reviews. Viet Nam's claims regarding these three administrative reviews concern: (i) the use of zeroing in the calculation of dumping margins; (ii) the rate that was assigned to certain Vietnamese producers who did not demonstrate sufficient independence from government control and thus were deemed by the USDOC to be part of the so-called "Viet Nam-wide entity"; and (iii) the USDOC's failure to revoke the anti-dumping order with respect to certain respondent Vietnamese producers/exporters.18 Moreover, Viet Nam also makes claims with respect to the USDOC's likelihood-of-dumping determination in the context of the sunset review.
2.10.
In addition, Viet Nam also makes "as such" claims with respect to the following measures:

a. The USDOC's "simple zeroing methodology"19 as applied in administrative reviews;

b. The USDOC's practice with respect to the rate that is assigned to certain producers/exporters who do not demonstrate sufficient independence from government control (the "NME-wide entity rate") in anti-dumping proceedings involving imports from NMEs;

c. Section 129(c)(1) of the US Uruguay Round Agreements Act ("URAA").

3 Parties' requests for findings and recommendations

3.1.
Viet Nam requests that the Panel find as follows:20

a. The USDOC's simple zeroing methodology, as it applies in administrative reviews is, as such, inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994;

b. The USDOC's application of the simple zeroing methodology in the calculation of dumping margins in the fourth, fifth and sixth administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994;

c. The USDOC's practice, in anti-dumping proceedings involving imports from NMEs, with respect to the rate assigned to the "NME-wide entity" comprised of producers/exporters who do not demonstrate sufficient independence from government control is, as such, inconsistent with Articles 6.10, 9.2, 9.4 and 6.8 of the Anti-Dumping Agreement;

d. The rate assigned by the USDOC in the fourth, fifth and sixth administrative reviews to the "Viet Nam-wide entity" comprised of Vietnamese producers/exporters who did not demonstrate sufficient independence from government control is inconsistent with Articles 6.10, 9.2, 9.4 and 6.8 of the Anti-Dumping Agreement;

e. Section 129(c)(1) of the URAA is inconsistent, as such, with Articles 1, 9.2, 9.3, 11.1 and 18.1 of the Anti-Dumping Agreement;

f. The USDOC's reliance on margins of dumping calculated with zeroing and failure to properly establish the facts and conduct an objective evaluation in the first sunset review is inconsistent with Articles 11.3 and 17.6 of the Anti-Dumping Agreement;

g. The USDOC's failure to revoke the anti-dumping duty order with respect to companies that have demonstrated the absence of dumping is inconsistent with Articles 11.1 and 11.2 of the Anti-Dumping Agreement.21

3.2.
Viet Nam requests that the Panel exercise its discretion under Article 19.1 of the DSU to suggest that the United States revoke the anti-dumping duty order: (i) in its totality, to comply with all the Panel's findings, and (ii) with respect to Minh Phu and Camimex, should the Panel find that the USDOC acted inconsistently with Articles 11.1 and 11.2 in its treatment of these companies' requests for revocation.22
3.3.
The United States requests that the Panel reject Viet Nam's claims that the United States has acted inconsistently with the covered agreements.23

4 Arguments of the parties

4.1.
The arguments of the parties are reflected in their executive summaries, provided to the Panel in accordance with paragraph 18 of the Working Procedures adopted by the Panel (see Annexes B-1, B-2, B-3 and B-4 and C-1, C-2, C-3 and C-4).

5 Arguments of the thiRd parties

5.1.
The arguments of China, the European Union, Japan, Norway and Thailand24 are reflected in their executive summaries, provided in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see Annexes D-1, D-2, D-3, D-4, and D-5). Ecuador did not submit written or oral arguments to the Panel.

6 INterim review

6.1.
On 16 July 2014, the Panel submitted its Interim Report to the parties. On 28 July, the United States submitted a written request for the review of precise aspects of the Interim Report. Viet Nam did not submit any request for review and did not submit comments on the United States' request for review. No meeting with the Panel was requested.
6.2.
In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's response to the United States' request made at the interim review stage. The Panel modified aspects of its Report in the light of the United States' comments where it considered it appropriate, as explained below. As a result of the changes that we have made, the numbering of footnotes in the Final Report has changed from the Interim Report. References to footnotes in this section relate to this Report, except as otherwise noted.
6.3.
The United States requested that the Panel revise the last sentence of paragraph 7,249 and the first sentence of footnote 399, and add language to paragraph 7,344 to more accurately reflect arguments it made before the Panel. The Panel amended the relevant paragraphs and footnote to more completely reflect the arguments made by the United States.
6.4.
The United States noted that in footnote 334, the Panel briefly discusses the decision of the US Court of International Trade in Tembec v. United States. In light of the fact that the Panel addresses Viet Nam's arguments concerning this decision in more detail in two other footnotes and to avoid confusion, the United States requested that the Panel delete footnote 334 and rely on its more complete discussion of the case in these other footnotes. In light of the United States' comments, the Panel has moved footnote 334 and has reworded it to shorten it and to refer to the more complete discussion of the same issue in footnotes 373 and 398.
6.5.
The United States requested that the Panel delete footnote 391 of the Interim Report because, it submits, this footnote appears to be based on an inaccurate characterization of its argument and, moreover, is superfluous to the Panel's reasoning and to the resolution of the dispute. Given that footnote 391 of the Interim Report was not necessary to the Panel's resolution of Viet Nam's claim, the Panel has deleted it as requested by the United States.
6.6.
Finally, the Panel has made a number of changes of an editorial nature to improve the clarity and accuracy of the Report or to correct typographical errors, certain of which were suggested by the United States.

7 Findings

7.1 Introduction

7.1.1 General principles of treaty interpretation, the applicable standard of review and burden of proof

7.1.1.1 Standard of review

7.1.
Pursuant to Article 11 of the DSU, a panel has to "make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements". As to the establishment of the facts in a case, this "objective assessment" has been understood as mandating neither a de novo review (i.e. the complete repetition of the fact-finding conducted by national authorities) nor "total deference" to domestic authorities (i.e. the simple acceptance of their determination).25
7.2.
Although Article 11 of the DSU sets forth a general standard of review for all covered agreements, Article 17.6 of the Anti-Dumping Agreement sets forth a specific standard of review applicable to anti-dumping disputes, namely:

(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;

(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.

7.3.
Taken together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement establish the standard of review this Panel must apply with respect to both the factual and the legal aspects of the present dispute.
7.4.
Several panels and the Appellate Body have addressed the use of this standard of review in cases where a panel is assessing whether competent authorities have complied with obligations in agreements that require governments to set forth their reasoning and determinations in written reports.
7.5.
In US – Softwood Lumber VI (Article 21.5 – Canada), the Appellate Body stressed that Article 11 requires panels to engage in a critical and searching analysis and that a panel must not limit itself to assessing whether the investigating authority's findings are not unreasonable.26 In this regard the Appellate Body mentioned:

The panel's scrutiny should test whether the reasoning of the authority is coherent and internally consistent. The panel must undertake an in-depth examination of whether the explanations given disclose how the investigating authority treated the facts and evidence in the record and whether there was positive evidence before it to support the inferences made and conclusions reached by it. The panel must examine whether the explanations provided demonstrate that the investigating authority took proper account of the complexities of the data before it, and that it explained why it rejected or discounted alternative explanations and interpretations of the record evidence. A panel must be open to the possibility that the explanations given by the authority are not reasoned or adequate in the light of other plausible alternative explanations, and must take care not to assume itself the role of initial trier of facts, nor to be passive by "simply accept[ing] the conclusions of the competent authorities".27

7.6.
The Appellate Body also recalled its indication in US – Countervailing Duty Investigation on DRAMS that a panel must "consider, in the context of the totality of the evidence, how the interaction of certain pieces of evidence may justify certain inferences that could not have been justified by a review of the individual pieces of evidence in isolation".28
7.7.
Moreover, Article 17.5(ii) of the Anti-Dumping Agreement makes clear that a panel is to examine the matter referred to it by the DSB "based upon … the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member". Thus, the Panel must only consider evidence that was before the investigating authorities in reviewing the authorities' analysis and conclusions. The Appellate Body has explained that in doing such an analysis a panel should:

bear in mind its role as a reviewer of agency action, rather than as initial trier of fact. Thus, a panel, examining the evidentiary basis for a subsidy determination should, on the basis of the record evidence before the panel, inquire whether the evidence and explanation relied on by the investigating authority reasonably supports its conclusions.29

7.8.
In sum, a panel reviewing the determination of the investigating authority must evaluate the determination being reviewed on the basis of what the investigating authorities knew at the time, and determine whether the investigating authority has provided a reasoned and adequate explanation of its conclusions, without conducting a de novo review or giving complete deference to the investigating authority.

7.1.1.2 Treaty interpretation

7.9.
Article 3.2 of the DSU provides that the dispute settlement system serves to clarify the provisions of the covered agreements "in accordance with customary rules of interpretation of public international law". It is generally accepted that the principles codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties ("Vienna Convention"), in particular, are such customary rules.
7.10.
As mentioned above, Article 17.6(ii) of the Anti-Dumping Agreement also provides that if a panel finds that a provision of the Anti-Dumping Agreement admits of more than one permissible interpretation, it shall uphold a measure that rests upon one of those interpretations. According to the Appellate Body, Article 17.6(ii) contemplates a sequential analysis whereby the panel applies the customary rules of interpretation to the treaty and only after engaging in this exercise will a panel determine whether the second sentence of Article 17.6(ii) applies.30 The Appellate Body recognised that:

the application of the rules of the Vienna Convention may give rise to an interpretative range and, if it does, an interpretation falling within that range is permissible and must be given effect by holding the measure to be in conformity with the covered agreement. The function of the second sentence is thus to give effect to the interpretative range rather than to require the interpreter to pursue further the interpretative exercise to the point where only one interpretation within that range may prevail.31

7.11.
However, the Appellate Body has considered that the permissible range of interpretations cannot include mutually contradictory results. In the Appellate Body's view "[i]t would be a subversion of the interpretative disciplines of the Vienna Convention if application of those disciplines yielded contradiction instead of coherence and harmony among, and effect to, all relevant treaty provisions".32

7.1.1.3 Burden of proof

7.12.
The general principles applicable to the allocation of the burden of proof in WTO dispute settlement require that a party claiming a violation of a provision of a WTO Agreement must assert and prove its claim.33 Therefore, as the complaining party, Viet Nam bears the burden of demonstrating that the measures at issue taken by the United States are inconsistent with the provisions of the Anti-Dumping Agreement and of the GATT 1994 invoked by Viet Nam. The Appellate Body has stated that a complaining party will satisfy its burden when it establishes a prima facie case, namely a case which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party.34 Finally, it is generally for the party asserting a fact to provide proof for its assertions.35

7.2 Preliminary ruling

7.13.
On 31 July 2013, the United States submitted to the Panel a request for preliminary rulings objecting to the inclusion of certain claims and measures in Viet Nam's panel request. Specifically, the United States requested that the Panel find that the following measures and claims were not within the Panel's terms of reference: (i) the sixth administrative review, as it was not listed as a measure at issue in Viet Nam's request for consultations;36 (ii) the "use of zeroing in original investigations, new shipper reviews and changed circumstances reviews"37, as they were not listed in Viet Nam's request for consultations; (iii) the claim set forth in Viet Nam's panel request under Article 31 of the Vienna Convention, as the Vienna Convention is not a covered agreement;38 and (iv) the claim set forth in Viet Nam's panel request relating to the US Statement of Administrative Action ("SAA") accompanying the Uruguay Round Agreements Act, because the SAA does not have any legal effect independent of an applicable US statute or regulation and is thus not a measure susceptible to dispute resolution.39 The United States requested that the Panel issue preliminary rulings before the filing of the first written submissions of the parties.40
7.14.
Viet Nam responded to the United States' request for preliminary rulings on 5 August 2013, and each party submitted further written comments to respond to each other's comments on the US request.41 The Panel also invited the third parties to submit any written comments they might have in response to the views expressed by the parties.42
7.15.
In its response to the United States' request and in its comments, Viet Nam asked the Panel to find that the sixth administrative review was within its terms of reference.43 With respect to the other objections raised by the United States, Viet Nam indicated that it was not pursuing the remaining claims cited in the US request for preliminary rulings, namely those with respect to the USDOC's use of zeroing in original investigations, new shipper reviews and changed circumstances reviews;44 the claim under Article 31 of the Vienna Convention;45 and the claim relating to the SAA.46
7.16.
The Panel issued its Preliminary Ruling to the parties and third parties on 26 September 2013 and indicated that, subject to comments that parties may submit at the interim review stage, the ruling would form an integral part of its Final Report. In its Preliminary Ruling, the Panel dismissed the US request that it find that the sixth administrative review is outside its terms of reference.47 The Panel declined to make any findings with respect to the three remaining objections raised by the United States, in light of Viet Nam's indication that it was not pursuing the corresponding claims.48 While the Panel reserved its right to revisit the decisions contained in the preliminary ruling during the course of proceedings, the parties have not asked it to do so. Accordingly, the Panel maintains its resolution of the United States' objections as contained in the preliminary ruling, which is attached as Annex C of this Report.

7.3 Viet Nam's claims with respect to zeroing

7.3.1 Introduction

7.17.
Viet Nam's claims with respect to zeroing pertain to the "simple zeroing" methodology used by the USDOC in the context of administrative reviews. Viet Nam alleges that the USDOC, when calculating dumping margins on the basis of a comparison of a weighted-average normal value to individual export transactions, disregards negative comparison results (those for which the individual export transaction price exceeds the weighted-average normal value).49
7.18.
Viet Nam requests the Panel to find that:50

a. The USDOC's "simple zeroing" methodology in administrative reviews is "as such" inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994; and

b. The application by the USDOC of the "simple zeroing" methodology in the fourth, fifth and sixth administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.51

7.19.
We examine each claim in turn, starting with Viet Nam's "as such" claim.

7.3.2 Zeroing "as such"

7.3.2.1 Introduction

7.20.
We start with Viet Nam's claim that the zeroing methodology used by the USDOC in administrative reviews is, "as such", inconsistent with 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.52
7.21.
In examining Viet Nam's claim, we shall first examine whether Viet Nam has established the existence of the zeroing methodology as a measure that may be challenged "as such". If we are satisfied that Viet Nam has properly established the existence of such a measure, we shall then evaluate the parties' arguments regarding the WTO-consistency of that measure.

7.3.2.2 Whether Viet Nam has established the existence of the zeroing methodology as a measure which may be challenged as such

7.3.2.2.1 Main arguments of the parties

7.3.2.2.1.1 Viet Nam

7.22.
Viet Nam submits that various panel and Appellate Body reports have found that the zeroing methodology is an established norm which may be the subject of an "as such" claim and that the Appellate Body has concluded at least twice that the use of zeroing in administrative reviews is "as such" inconsistent with the Anti-Dumping Agreement.53 Viet Nam further argues that a measure found by the Appellate Body to be "as such" inconsistent with a covered agreement is not specific to the facts of any particular dispute; by their nature, "as such" claims are of general and prospective application and an Appellate Body finding of violation in respect of such a claim concerns the authority's on-going failure to bring the practice into conformity with clearly established obligations.54
7.23.
According to Viet Nam, the zeroing methodology still exists as a measure which may be challenged "as such" despite the fact that the USDOC modified its calculation methodology. Viet Nam contends that panels do make rulings on measures that have been modified or repealed and refers to the panel in US – Poultry (China) as an example of a panel making such a ruling. Viet Nam also argues that the USDOC could easily re-start applying the zeroing methodology in administrative reviews because it has the authority to do so under US law. Finally, Viet Nam contends that the United States continued to use the zeroing methodology after Viet Nam requested consultations with the United States in this dispute, in the final results of the sixth administrative review, published on 11 September 2012.55

7.3.2.2.1.2 United States

7.24.
The United States replies that Viet Nam has failed to demonstrate as a matter of fact that the United States maintains a measure of general and prospective application that requires the use of zeroing. According to the United States, Appellate Body and panel findings in prior disputes regarding the existence, "as such", and precise content of the zeroing measure cannot constitute conclusive evidence for the purpose of this dispute. Moreover, the facts underlying this dispute are different from the facts in prior disputes because the USDOC has changed its calculation methodology for determining dumping margins and now grants offsets for non-dumped comparisons.56 The United States submits that, by the time Viet Nam requested the establishment of this Panel, there was no "zeroing" measure as found in previous WTO reports and nothing that required the use of that methodology. According to the United States, the USDOC has, since April 2012, issued numerous determinations in which it has granted offsets equal to the amount by which normal value is less than export price on non-dumped sales, including in the most recent administrative review under the Shrimp order.57
7.25.
The United States also contests Viet Nam's argument that the USDOC could easily re-impose the zeroing methodology. It notes that the USDOC's changes in methodology were made after extensive consultations with appropriate congressional committees, private sector advisory committees, and public comment regarding the proposed modifications. The United States adds that Viet Nam has not provided a single example of a USDOC practice that was found to be WTO-inconsistent and changed pursuant to section 123(g) being subsequently "easily re-imposed". The United States also submits that the situation before this Panel is different from the situation in US – Poultry (China) where the panel decided to rule on the repealed measure because it recognized that that measure could allow the repetition of potentially WTO-inconsistent conduct.58

7.3.2.2.2 Main arguments of the third parties

7.26.
The European Union submits that its experience indicates that the United States no longer systematically resorts to zeroing in all cases since April 2012, but considers that the Panel's resolution of this question will ultimately depend on a close analysis of all the evidence before the Panel.59
7.27.
Japan submits that the Panel should examine whether the modified calculation methodology also applies to remaining unliquidated entries. Japan also notes that in the Federal Register notice announcing the modification of its calculation methodology, the USDOC indicated that it "retains the discretion on a case-by-case basis, to apply an alternative methodology, as appropriate".60
7.28.
Thailand submits that even if the zeroing methodology used prior to 2012 has changed and thus can no longer be challenged "as such" in dispute settlement proceedings, it is possible that the old methodology has now been replaced by a new zeroing methodology that could, in itself, be challenged "as such" in dispute settlement proceedings. The Panel may also wish to consider whether, if it finds that the old practice or methodology no longer exists, there is a new practice or methodology that would separately meet the test for being susceptible to challenge on an "as such" basis.61

7.3.2.2.3 Evaluation by the Panel

7.29.
Viet Nam's claim raises the issue of when, and under what conditions, an unwritten rule or norm may be challenged "as such". Neither the DSU nor the Anti-Dumping Agreement establishes criteria for determining when measures can be challenged "as such". However, we can find relevant guidance in previous WTO dispute settlement decisions where claims of this nature have been considered. Thus, we believe it is useful, before analysing whether the zeroing methodology can be challenged "as such" in the present dispute, to recall how "as such" challenges have been examined in previous WTO dispute settlement cases. The following summary will also be relevant for our subsequent consideration of Viet Nam's "as such" claims concerning the NME-wide entity rate practice and concerning Section 129(c)(1).
7.30.
In US – Corrosion-Resistant Steel Sunset Review, the Appellate Body concluded that, in principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement, and noted that, in WTO dispute settlement, panels have examined not only particular acts applied in specific situations, but also "acts setting forth rules or norms that are intended to have general and prospective application".62 The Appellate Body explained that, allowing claims against measures "as such" protects "the security and predictability needed to conduct future trade" and also "serves the purpose of preventing future disputes by allowing the root of WTO-inconsistent behaviour to be eliminated".63 In the same dispute, the Appellate Body also considered whether there are any limitations as to the types of measures that may be the subject of an "as such" challenge under the DSU or the Anti-Dumping Agreement. Recalling its reasoning in US – 1916 Act that panels have jurisdiction to consider legislation "as such" under both agreements, the Appellate Body found that, although most of the measures subject "as such" to dispute settlement were legislation, a broad range of measures could be submitted "as such" to dispute settlement.64 The Appellate Body considered that the language in Article 17.3 of the Anti-Dumping Agreement contains "no threshold requirement … that the measure in question be of a certain type" and that the phrase "laws, regulations and administrative procedures" in Article 18.4 of the Anti-Dumping Agreement encompasses "the entire body of generally applicable rules, norms and standards adopted by Members in connection with the conduct of anti-dumping proceedings".65 Following this analysis, the Appellate Body concluded that there is "no reason for concluding that, in principle, non-mandatory measures cannot be challenged 'as such'".66
7.31.
Subsequently, in US – Oil Country Tubular Goods Sunset Reviews, the Appellate Body further clarified that the relevant issue is not whether the measure subject to an "as such" challenge is a binding legal instrument within the domestic legal system of a Member, but, rather, whether it is "a measure that may be challenged within the WTO system".67 In that dispute, the Appellate Body considered that the USDOC's Sunset Policy Bulletin (SPB) was a measure which could be challenged "as such" in spite of its non-binding character:

In our view, the SPB has normative value, as it provides administrative guidance and creates expectations among the public and among private actors. It is intended to have general application, as it is to apply to all sunset reviews conducted in the United States. It is also intended to have prospective application, as it is intended to apply to sunset reviews taking place after its issuance. Thus, we confirm – once again – that the SPB, as such, is subject to dispute settlement.68

7.32.
The Appellate Body further observed that:

By definition, an "as such" claim challenges laws, regulations, or other instruments of a Member that have general and prospective application, asserting that a Member's conduct – not only in a particular instance that has occurred, but in future situations as well – will necessarily be inconsistent with that Member's WTO obligations. In essence, complaining parties bringing "as such" challenges seek to prevent Members ex ante from engaging in certain conduct. The implications of such challenges are obviously more far-reaching than "as applied" claims.69

7.33.
In US – Zeroing (EC), the Appellate Body considered whether unwritten rules or norms could be challenged "as such". Recalling its findings in US – Corrosion-Resistant Steel Sunset Review and US – Oil Country Tubular Goods Sunset Reviews regarding the types of measures that could be challenged "as such", the Appellate Body found that there is no basis to conclude that rules or norms can be challenged "as such" only if they are expressed in the form of a written instrument.70 The Appellate Body cautioned, however, that "a panel must not lightly assume the existence of a "rule or norm" constituting a measure of general and prospective application, especially when it is not expressed in the form of a written document".71 The Appellate Body explained that, when a challenge is brought against a rule or norm that is not expressed in the form of a written document, "the very existence of the challenged 'rule or norm' may be uncertain".72 The Appellate Body indicated that the complainant must establish the following to meet the particularly high burden of establishing the existence of a rule or norm of general and prospective application that is not expressed in a written document:

In our view, when bringing a challenge against such a "rule or norm" that constitutes a measure of general and prospective application, a complaining party must clearly establish, through arguments and supporting evidence, at least that the alleged "rule or norm" is attributable to the responding Member; its precise content; and indeed, that it does have general and prospective application. It is only if the complaining party meets this high threshold, and puts forward sufficient evidence with respect to each of these elements, that a panel would be in a position to find that the "rule or norm" may be challenged, as such. This evidence may include proof of the systematic application of the challenged "rule or norm". Particular rigour is required on the part of a panel to support a conclusion as to the existence of a "rule or norm" that is not expressed in the form of a written document. A panel must carefully examine the concrete instrumentalities that evidence the existence of the purported "rule or norm" in order to conclude that such "rule or norm" can be challenged, as such.73

7.34.
This reasoning has been subsequently applied by panels considering "as such" challenges in US – Zeroing (Japan), US – Stainless Steel (Mexico) and US – Shrimp (Viet Nam).74 Those panels further observed that a measure may be found to have general and prospective application if it reflects a deliberate policy, going beyond the mere repetition of the application of that measure in specific instances.75
7.35.
In this dispute, following the guidance of those prior decisions, we shall consider whether Viet Nam has met its burden of proof with respect to the existence of the unwritten zeroing methodology as a rule or norm which can be challenged "as such". In particular, we shall consider whether Viet Nam has established: (i) that the zeroing methodology is "attributable" to the United States, (ii) the "precise content" of the zeroing methodology, and (iii) that the zeroing methodology does have "general and prospective application".
7.36.
With respect to the precise content of the alleged norm or rule, and attribution to the United States, we recall that Viet Nam refers to the calculation of dumping margins in administrative reviews, whereby the USDOC, in aggregating intermediate comparison results to determine the numerator, "zeroes" or disregards all negative results where export price is higher than normal value.76 Viet Nam also posits that the zeroing methodology is applied by the USDOC, which forms part of the United States Government. The United States does not contest that Viet Nam has established the content of the zeroing methodology, and that that methodology is attributable to the United States.
7.37.
Turning to the issue of whether Viet Nam has demonstrated that the zeroing methodology has "general and prospective application", we note that Viet Nam refers to previous disputes in which panels or the Appellate Body found that the zeroing methodology in administrative reviews was a norm or practice that could be subject to an "as such" claim.77 Viet Nam argues that "[a]n inconsistency found by the Appellate Body to be an as such violation relates to the authority's use of the practice itself and is not specific to the facts of any particular dispute".78 Viet Nam also submits that the United States bears the burden of demonstrating that the panel's factual findings and conclusions in US – Shrimp (Viet Nam) with respect to the WTO-inconsistency of this methodology, which the United States did not appeal, are in error.79
7.38.
As an initial matter, Viet Nam appears to be claiming that findings of panels and the Appellate Body in previous disputes are sufficient to establish, in the present dispute, the existence of the zeroing methodology as applied in administrative reviews as a norm of general and prospective application, and that the burden has now shifted to the United States, which should demonstrate that these previous factual findings are not applicable in the present dispute.
7.39.
We are not persuaded by this argument. We recall that it is a well-established rule in WTO dispute settlement proceedings that "the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof".80 Hence, in our view, the factual findings in previous decisions do not relieve a complainant of the burden of establishing the facts in a subsequent dispute it initiated. We note that the Appellate Body reached a similar conclusion in a prior zeroing dispute, when it found that a complaining party may not discharge its burden of proof with respect to the establishment of the facts simply by referring to past decisions. The Appellate Body observed:

As an initial matter, we note the European Communities' reference to adopted panel and Appellate Body reports in which the existence of the United States' zeroing methodology, as an unwritten norm of general and prospective application, was found to exist in the context of both original investigations and periodic reviews. Factual findings made in prior disputes do not determine facts in another dispute. Evidence adduced in one proceeding, and admissions made in respect of the same factual question about the operation of an aspect of municipal law, may be submitted as evidence in another proceeding. The finders of fact are of course obliged to make their own determination afresh and on the basis of all the evidence before them. But if the critical evidence is the same and the factual question about the operation of domestic law is the same, it is likely that the finder of facts would reach similar findings in the two proceedings. Nonetheless, the factual findings adopted by the DSB in prior cases regarding the existence of the zeroing methodology, as a rule or norm, are not binding in another dispute.81

7.40.
We further note that the panel in US – Shrimp (Viet Nam) similarly considered that the factual findings of prior panels and the Appellate Body did not "alleviate Viet Nam's burden of establishing, before us, that the U.S. zeroing methodology is a norm of general and prospective application".82
7.41.
Viet Nam further argues that "the extent of [the burden of proof] and the party bearing this burden will vary based on the particular circumstances of a proceeding" and that it does not "bear[] the burden of establishing for a second time the facts on which the findings and conclusions of the panel in [US – Shrimp (Viet Nam)] were based". According to Viet Nam, it is now up to the United States, which did not appeal the findings and conclusions of the panel in US – Shrimp (Viet Nam), to demonstrate that those findings and conclusions "are not correct or are not applicable in the instant proceeding".83
7.42.
We disagree with Viet Nam. In our view, the fact that the panel in US – Shrimp (Viet Nam) found that Viet Nam had established the existence of the zeroing methodology as a measure of general and prospective application under the same anti-dumping order does not affect the fundamental rule regarding allocation of the burden of proof in the present dispute. Viet Nam is therefore bound to provide relevant evidence proving the facts it asserts in the present dispute and cannot rely on previous panel and Appellate Body decisions to establish, as a matter of fact, the existence of the zeroing methodology as a norm or rule of general and prospective application.
7.43.
In addition to relying on findings in previous disputes, Viet Nam also submits factual evidence in support of its allegation that the zeroing methodology applied by the USDOC in administrative reviews is a rule or norm of general and prospective application. First, Viet Nam provides the Panel with evidence that the zeroing methodology was used in administrative reviews one to six of the Shrimp order.84 The United States does not contest that zeroing was used in the three administrative reviews at issue in the present dispute, reviews four to six.85 Moreover, in response to a question by the Panel, the United States indicates that it "does not dispute that a number of the dumping margins derived in the original investigation and in the first three administrative reviews were calculated using the so-called 'zeroing' methodology".86
7.45.
The United States submits, however, that the facts in this dispute are different from the facts in the US – Shrimp (Viet Nam) dispute because, effective April 2012, the USDOC changed its practice for calculating dumping margins in administrative reviews in response to Appellate Body findings, and now "grants offsets for non-dumped comparisons (i.e., does calculations without the 'zeroing' methodology) in various types of proceedings", including administrative reviews.89 As evidence in support of this assertion, the United States submits a Notice of Final Modification in which the USDOC announces that it is modifying its calculation methodology, which "was challenged as being inconsistent with the WTO … GATT 1994 and the … Anti-Dumping Agreement in several disputes".90 The United States further submits that, consistent with the Final Modification, the USDOC granted offsets for non-dumped transactions in the seventh administrative review of the Shrimp order91 and that, since April 2012, it has issued "numerous determinations" under other anti-dumping orders in which it has granted such offsets in various contexts, including original investigations, administrative reviews, and sunset reviews.92
7.46.
Viet Nam does not dispute that the USDOC modified its calculation methodology in administrative reviews. Nor does Viet Nam contest that the USDOC did not apply the zeroing methodology when calculating dumping margins in the seventh administrative review under the Shrimp order or in other administrative reviews under other orders.93
7.47.
Viet Nam contends, however, that, despite the Final Modification and the fact that zeroing was not used in the seventh administrative review of the Shrimp order, "the USDOC's zeroing methodology still exists as a measure that can be challenged 'as such'".94 Viet Nam also argues that panels routinely make rulings on measures that have been modified or repealed and submits that this dispute is similar to the US – Poultry (China) case where the panel decided to rule on a measure which expired two days before the complainant's first written submission, because it considered that the respondent Member had not conceded the WTO-inconsistency of the measure and the repealed measure could be easily re-imposed.95 Viet Nam finally submits that the USDOC continued to use the zeroing methodology after the implementation of the Final Modification, since the final results of the sixth administrative review, published on 11 September 2012, utilized the zeroing methodology.96
7.48.
In our view, Viet Nam's arguments are somewhat self-contradictory. On the one hand, Viet Nam argues that the measure "still exists as a measure that can be challenged 'as such'", thereby conveying that, in Viet Nam's view, zeroing in administrative reviews still exists as a measure of general and prospective application. On the other hand, Viet Nam contends that "[p]anels routinely make rulings on measures that have been modified or repealed", thus suggesting that the measure does not exist any longer, having been modified or repealed.
7.49.
We note that in the Final Modification submitted as evidence by the United States, the USDOC indicates, inter alia, that:

In reviews, except where the Department determines that application of a different comparison method is more appropriate, the Department will compare monthly weighted-average export prices with monthly weighted-average normal values, and will grant an offset for all such comparisons that show export price exceeds normal value in the calculation of the weighted-average margin of dumping and antidumping duty assessment rate.97

7.50.
In the Final Modification, the USDOC also observes that the methodology which it modifies was found inconsistent, both "as such" and "as applied", with Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement by the Appellate Body in US – Zeroing (EC), US – Zeroing (Japan), US – Stainless Steel (Mexico) and US – Continued Zeroing (EC). It indicates that, following these adverse rulings, the USTR informed the WTO Dispute Settlement Body that the United States intended to comply with its WTO obligations in these disputes. The USDOC also explains that "[i]n adopting this Final Modification for Reviews, the Department's intention is to apply a comparison methodology in reviews that parallels the WTO-consistent methodology the Department currently applies in original investigations".98
7.51.
In our view, Viet Nam's arguments fail to appreciate the significance of the Final Modification for its assertion that the zeroing methodology is a measure of general and prospective application. To us, the fact that the USDOC has modified its calculation methodology and ceased to apply the zeroing methodology in administrative reviews is a significant element to take into consideration because it speaks directly to the question of the very existence of this methodology as a measure of general and prospective application. The Final Modification indicates that the USDOC decided to apply a modified methodology, except where it determines that application of a different comparison method is more appropriate.99 This decision took effect with respect to all reviews for which the preliminary determination is issued after 16 April 2012.100 Viet Nam requested the establishment of a panel on 20 December 2012 and the Panel was established on 27 February 2013.101 Hence, in our view, as of the date of Viet Nam's panel request and as of now, the USDOC's simple zeroing methodology, as used by the USDOC in administrative reviews, does not exist as a measure of general and prospective application.
7.52.
The United States does not contest that, as argued by Viet Nam, dumping margins in the sixth administrative review were calculated using the zeroing methodology. However, the fact that the USDOC used zeroing in the final results of the sixth administrative review, i.e. after the Final Modification, does not in our view establish that the measure continues to exist as a measure of general and prospective application. We observe that, pursuant to the Final Modification, the modifications to USDOC practice took effect with respect to administrative reviews in which the preliminary determinations were issued after 16 April 2012.102 Since the preliminary determination in the sixth administrative review was issued on 7 March 2012, the USDOC was still acting pursuant to its previous practice, consistent with the effective date established for its modified practice. We therefore remain of the view that, as of 16 April 2012, and, in any event, as of the present date, the USDOC's simple zeroing methodology, as used by the USDOC in administrative reviews, does not exist as a measure of general and prospective application.103
7.53.
Concerning Viet Nam's reference to US – Poultry (China), we note that the question at issue in that dispute was whether the panel should rule on the consistency with the covered agreements of the repealed measure. However, in that dispute, there was no controversy between the parties regarding the existence of the measure itself before it was repealed.104 In the present dispute, the parties disagree as to whether the measure claimed by Viet Nam to be WTO-inconsistent is a rule or norm of general and prospective application which can be challenged "as such". This Panel is not, therefore, in the same situation as the panel in US – Poultry (China): we are not trying to determine whether it would be appropriate for us to rule on the WTO-consistency of an expired measure, but rather, whether Viet Nam has established that this measure can be challenged "as such".
7.54.
In any event, we are not convinced that the zeroing methodology "can be easily re-imposed" by the USDOC. Viet Nam provides no evidence indicating that the USDOC intends to revert to this methodology. Moreover, the Final Modification shows that, as argued by the United States, the USDOC's changes in methodology were made after extensive consultations with different stakeholders, and in order to implement prior DSB rulings and recommendations.105 This indicates to us that, contrary to what is argued by Viet Nam, such modifications are not easily made under the US system. In the absence of evidence to the contrary, we cannot assume that the United States will "easily re-impose" the use of simple zeroing in administrative reviews. Moreover, having modified its practice to comply with its WTO obligations, we must assume that the United States will continue to comply with its WTO obligations in good faith.
7.55.
We conclude, therefore, that Viet Nam has failed to establish the existence of the alleged measure (simple zeroing methodology used by the USDOC in administrative reviews) as a rule or norm of general and prospective application. Consequently, we do not consider the parties' arguments concerning the consistency of the alleged measure with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
7.56.
Therefore, we find that Viet Nam did not establish 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.

7.3.3 Zeroing "as applied" in the administrative reviews at issue

7.3.3.1 Introduction

7.57.
Viet Nam requests the Panel to find that the application of the zeroing methodology to calculate dumping margins for the individually-examined respondents in the fourth, fifth and sixth administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.106
7.58.
We shall first consider whether Viet Nam has demonstrated that the USDOC applied zeroing in the three administrative reviews at issue. If we find that Viet Nam has met its burden of proof in this respect, we shall then consider whether the application of the zeroing methodology in the fourth, fifth and sixth administrative reviews is inconsistent with the United States' obligations under Article 9.3 of the Anti-Dumping Agreement and VI:2 of the GATT 1994.

7.3.3.2 Whether Viet Nam has established that the zeroing methodology was applied in the fourth, fifth and sixth administrative reviews

7.3.3.2.1 Main arguments of the parties

7.3.3.2.1.1 Viet Nam

7.59.
Viet Nam submits that the USDOC applied the zeroing methodology when calculating the dumping margins of the mandatory respondents in the fourth, fifth and sixth administrative reviews of the Shrimp order. Viet Nam indicates that the USDOC's final determinations in those reviews confirm that the zeroing methodology was applied. Viet Nam further argues that the affidavit prepared by Ms Naschak, provided by Viet Nam to the Panel, confirms the application of the zeroing methodology in those administrative reviews.107 Viet Nam notes that the United States does not appear to dispute that the USDOC used the zeroing methodology in the administrative reviews at issue.108

7.3.3.2.1.2 United States

7.60.
The United States does not contest Viet Nam's allegation that the USDOC applied the zeroing methodology when calculating dumping margins at issue. The United States contends, however, that the application of zeroing is not inconsistent with the covered agreements.109

7.3.3.2.2 Evaluation by the Panel

7.61.
We proceed to examine the evidence submitted by Viet Nam in support of its allegation that the USDOC applied the zeroing methodology in the calculation of dumping margins for mandatory respondents in the fourth, fifth and sixth administrative reviews.
7.62.
As noted in the preceding section of this Report, the Naschak affidavit submitted by Viet Nam discusses the USDOC's use of zeroing in the three administrative reviews at issue, when calculating the margins of dumping for the mandatory respondents in those reviews – Minh Phu, Nha Trang and Camimex.110 The affidavit attaches relevant excerpts of the USDOC's computer "logs" (printouts of the computer programming instructions) and "outputs" (printouts of the dumping calculations and of the databases that were run through the programme) for two of these respondents, Nha Trang and Minh Phu in the fourth, fifth and sixth administrative reviews. The affidavit explains, inter alia, that the programming language used in calculating the margins for both Minh Phu and Nha Trang shows that only positive comparison results were used to calculate the overall margins and directs the Panel's attention to certain lines of computer code in the "logs" that implement the instruction to disregard NV (normal value) – EP (export price) comparisons where the EP exceeds the NV, in the calculation of Nha Trang and Minh Phu's margins of dumping. The affidavit also directs the Panel to the relevant parts of the "logs" confirming that the negative comparison results were excluded in calculating the dumping margins, concluding in this respect that "no U.S. sales where the export price exceeded normal value were included in the calculation of the overall margin [of dumping]".111
7.63.
Viet Nam has also provided the Panel with the Issues and Decision Memoranda that accompany each of the USDOC's final determinations in the three administrative reviews at issue. This evidence confirms that the UDSOC applied the zeroing methodology in these reviews. In the Issues and Decision Memorandum accompanying the final determination in the fourth administrative review, the USDOC states that "consistent with the Department's interpretation of the Act … in the event that any of the export transactions examined in this review are found to exceed normal value, the amount by which the price exceeds normal value will not offset the dumping found in respect of other transactions".112 Likewise, in the Issues and Decision Memorandum accompanying the final determination in the fifth administrative review, the USDOC observes that "[b]ecause no dumping margins exist with respect to sales where NV is equal to or less than EP or CEP, the Department will not permit these non-dumped sales to offset the amount of dumping found with respect to other sales".113 Finally, in the Issues and Decision Memorandum accompanying the final determination in the sixth administrative review, the USDOC refers to its "interpretations of section 771(35) of the Act to permit zeroing in average-to-transaction comparisons, as in the underlying administrative review", and indicated that "in the event that any of the U.S. sales transactions examined in this review are found to exceed NV, the amount by which the price exceeds NV will not offset the dumping found in respect of other transactions".114
7.64.
The United States does not challenge the evidence submitted by Viet Nam. We recall that, when a party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party who must adduce sufficient evidence to rebut the presumption.115 In the present dispute, Viet Nam has submitted sufficient evidence indicating that the USDOC applied the zeroing methodology in the calculation of dumping margins of individually-examined respondents in the administrative reviews at issue. As the United States did not provide arguments or evidence to rebut the presumption raised by Viet Nam, we conclude that Viet Nam has demonstrated that the USDOC applied simple zeroing in the calculation of margins of dumping of individually-investigated respondents in the fourth, fifth and sixth administrative reviews.

7.3.3.3 Whether the application of zeroing in the fourth, fifth and sixth administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994

7.3.3.3.1 Introduction

7.65.
We now examine whether the application by the USDOC of the zeroing methodology to calculate margins of dumping of individually-examined respondents in the fourth, fifth and sixth administrative review is inconsistent the United States' obligations under Article 9.3 of the Anti-Dumping Agreement and VI:2 of the GATT 1994.

7.3.3.3.2 Main arguments of the parties

7.3.3.3.2.1 Viet Nam

7.66.
Viet Nam submits that the Appellate Body has consistently found that the USDOC's use of zeroing in administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.116 Viet Nam observes that the Appellate Body repeatedly rejected the same arguments that are again being made by the United States in this dispute and urges this Panel to follow the clear and consistent decisions by the Appellate Body.117 Viet Nam argues that the GATT 1994 and the Anti-Dumping Agreement both define the concepts of "dumping" and "margin of dumping" with regard to the product under investigation as a whole and do not allow for differentiation among sub-groups or categories. According to Viet Nam, Article VI:2 of the GATT 1994, which defines dumping as when "products of one country are introduced into the commerce of another country at less than the normal value of the products", refers to the product as a whole. Furthermore, Article 2.1 of the Anti-Dumping Agreement, which applies to the entire Agreement, defines dumping with clear reference to the "product" that is subject to the proceeding. Viet Nam recalls that, based on these provisions, the Appellate Body has repeatedly found that the concepts of "dumping" and "margin of dumping" are defined in relation to the product under investigation as a whole, and cannot be found to exist only for a type, model, or category of that product.118
7.67.
Viet Nam submits that Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 explicitly provide that margins of dumping may not be greater than the margin of dumping for the product as a whole. This, according to Viet Nam, means that when the administering authority makes use of multiple comparisons at an intermediate stage, it must aggregate the results of all intermediate comparisons, including negative comparison results, for purposes of calculating the final dumping margin. Viet Nam argues that, by systematically disregarding negative comparison results, the USDOC's simple zeroing practice necessarily results in dumping margins that are greater than the margins for the product as a whole.119

7.3.3.3.2.2 United States

7.68.
The United States argues that the text and context of the relevant provisions of the Anti-Dumping Agreement, interpreted in accordance with customary rules of interpretation, support its interpretation that the concepts of dumping and margins of dumping have meaning in relation to individual transactions and, therefore, there is no obligation to aggregate multiple comparison results in assessment proceedings to arrive at an aggregated margin of dumping for the product as a whole.120 The United States contends that it is permissible to interpret the terms of "dumping" and "margin of dumping" as referring to specific export transactions, and not only to the "product as a whole".121 The United States submits that Members' rights and obligations stem from the texts of the covered agreements, and not from panel or Appellate Body reports and urges the Panel to remain faithful to the text of the Anti-Dumping Agreement and to find that the US interpretation rests on a permissible interpretation of that Agreement.122
7.69.
The United States argues that Article 2.1 of the Anti-Dumping Agreement and Article VI of the GATT 1994 do not require the provision of offsets in assessment proceedings and do not provide textual support for the concepts of "product as a whole" and "negative dumping".123 The United States submits that the terms upon which Viet Nam's interpretation rests are absent from the text of Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. The United States is of the view that, as recognized by several panels, averaging of export prices is not required to calculate a margin of dumping under Article 9.3 and, therefore, an interpretation that permits the existence of transaction-specific margins of dumping is supported by the text of that provision. The United States is of the view that, as long as the margin of dumping is properly understood as applying at the level of individual transactions, there is no tension between the exporter-specific concept of dumping as a pricing behaviour and the importer-specific remedy of payment of dumping duties.124

7.3.3.3.3 Main arguments of the third parties

7.70.
China submits that, in light of the consistent and well-founded decisions by the Appellate Body, to the extent that Viet Nam has established the use of the zeroing methodology in the three administrative reviews, the application of zeroing in those reviews is also inconsistent with the Anti-Dumping Agreement and the GATT 1994.125
7.71.
The European Union submits that the issue of zeroing has been extensively litigated in the WTO and does not warrant repeated scrutiny. The Panel should therefore deal with it in a summary manner and uphold Viet Nam's "as applied" claims.126
7.72.
Recalling previous Appellate Body jurisprudence with respect to zeroing in administrative reviews, Japan submits that the Panel should find that the zeroing methodology, as it relates to the use of simple zeroing in administrative reviews, is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:3 of the GATT 1994.127
7.73.
While not taking a position on the facts of this case, Norway agrees with Appellate Body rulings in previous cases that the use of all forms of zeroing in all forms of proceedings is inconsistent with the Anti-Dumping Agreement.128

7.3.3.3.4 Evaluation by the Panel

7.74.
Our analysis begins with the text of the relevant provisions relied upon by Viet Nam in its claims. Article 9.3 of the Anti-Dumping Agreement reads, in relevant parts:

The amount of the anti-dumping duty shall not exceed the margin of dumping as established under Article 2.

7.75.
Article VI:2 of the GATT 1994 provides as follows:

In order to offset or prevent dumping, a contracting party may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product. For the purposes of this Article, the margin of dumping is the price difference determined in accordance with the provisions of paragraph 1.

7.76.
Although formulated differently, Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 impose similar obligations, as they both provide that the amount of the anti-dumping duty shall not exceed the margin of dumping. The main question that the Panel needs to address is whether the term "margin of dumping" referred to in both provisions must be calculated for the "product as a whole", as argued by Viet Nam, or whether it may be calculated on a transaction-specific basis, as submitted by the United States. As observed by parties and third parties, this controversy is not novel.
7.77.
In prior disputes, the Appellate Body has consistently held that the text of Article 2.1 of the Anti-Dumping Agreement, as well as the text of Article VI:1 of the GATT 1994, indicate clearly that the term "dumping" is used in relation to the product as a whole, and not in relation to individual export transactions. The Appellate Body has also found that the "margin of dumping" is used in relation to the dumped "product as a whole" and must be determined on the basis of all export transactions of a given exporter or foreign producer. The Appellate Body also stressed on various occasions that the terms "dumping" and "margin of dumping" are exporter-specific concepts.129 The Appellate Body has clarified that, while an investigating authority may choose to undertake multiple comparisons or multiple averaging at an intermediate stage to establish margins of dumping, it is only on the basis of aggregating all these intermediate values that the investigating authority can establish margins of dumping for the product as a whole.130
7.78.
We further note that, according to the Appellate Body, these definitions of "dumping" and of the "margin of dumping" apply throughout the Agreement, including under Article 9.3, and under Article VI:2 of the GATT 1994. It therefore follows that the amount of anti-dumping duties assessed pursuant to those provisions cannot exceed the margin of dumping as established for the "product as a whole". In other words, the margin of dumping established for an exporter or foreign producer operates as a ceiling on the total amount of anti-dumping duties that can be levied on the entries of the product from that exporter or producer.131 Accordingly, the Appellate Body found that the zeroing methodology applied by the USDOC in administrative reviews is inconsistent with Article 9.3 of the Anti-Dumping Agreement and with Article VI:2 of the GATT 1994 because it results in the levy of an amount of anti-dumping duty that exceeds an exporter's margin of dumping. The Appellate Body observed that:

when applying "simple zeroing" in periodic reviews, the USDOC compares the prices of individual export transactions against monthly weighted average normal values, and disregards the amounts by which the export prices exceed the monthly weighted average normal values, when aggregating the results of the comparisons to calculate the going-forward cash deposit rate for the exporter and the duty assessment rate for the importer concerned. Simple zeroing thus results in the levy of an amount of anti-dumping duty that exceeds an exporter's margin of dumping, which, as we have explained above, operates as the ceiling for the amount of anti-dumping duty that can be levied in respect of the sales made by an exporter.132

7.79.
The Appellate Body has also held that Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, when interpreted in accordance with customary rules of interpretation of public international law, as required by Article 17.6(ii) of the Anti-Dumping Agreement, do not admit of another interpretation as far as the issue of zeroing is concerned and therefore that zeroing does not rest upon a "permissible interpretation" of the text of the relevant provisions.133
7.80.
We have carefully considered and assessed the arguments made by the parties in the present dispute. We note that the very same arguments that the United States makes before us were rejected by the Appellate Body in prior disputes, in which it concluded that the very same measure which is now before us, namely the zeroing methodology as applied by the USDOC in administrative reviews, is inconsistent with Articles 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.134 We are also mindful of the Appellate Body's admonition that "following the Appellate Body's conclusions in earlier disputes is not only appropriate, but it is what would be expected from panels, especially where the issues are the same".135 In US – Stainless Steel (Mexico), the Appellate Body explained:

Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.136

Following an objective assessment of the matter, and after a careful review of the findings discussed above, we see no reason not to rely on the interpretation of the relevant provisions and on the reasoning developed by the Appellate Body in relation to the issue of zeroing in these prior disputes.

7.81.
We find, therefore, that the application by the USDOC of the simple zeroing methodology to calculate the dumping margins of mandatory respondents in the fourth, fifth and sixth administrative reviews of the Shrimp order is inconsistent with United States' obligations under Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.

7.4 Viet Nam's claims regarding the "NME-wide entity" rate practice

7.4.1 Introduction

7.82.
Viet Nam makes claims with respect to what it terms the USDOC's "NME-wide entity rate practice". Viet Nam includes within this practice: (i) the USDOC's presumption, in anti-dumping proceedings – including original investigations and administrative reviews – involving imports from NMEs, that all companies within the designated NME country are essentially operating units of a single, government-wide entity and the assignment of a single anti-dumping duty rate to that entity; and (ii) the manner in which this anti-dumping rate is determined, distinct from the separate rate, on the basis of facts available. Viet Nam also challenges the application of this NME-wide entity rate practice in the fourth, fifth, and sixth administrative reviews. Specifically, Viet Nam claims that:

a. the USDOC's "NME-wide entity rate practice" is inconsistent "as such" with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement; and

b. the application by the USDOC of the "NME-wide entity rate practice" in the fourth, fifth and sixth administrative reviews is inconsistent with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement.

7.83.
In its request for the establishment of a panel, Viet Nam also included a challenge to "the treatment of the Vietnam-wide entity in the original investigation and the first, second, third, fourth, fifth, and sixth administrative reviews, … to the extent that these determinations demonstrate the USDOC's continued and ongoing use of this practice throughout the full course of the shrimp anti-dumping proceeding".137 In its first written submission, Viet Nam claimed that "the United States' application of the Vietnam-wide entity practice on a continued and ongoing basis through the course of the shrimp anti-dumping proceedings is inconsistent with the Anti-Dumping Agreement".138 As Viet Nam has not further developed the claim regarding "continued and ongoing use" of the practice in question in its arguments to the Panel, we shall not consider it in this Report and make no findings in this respect.
7.84.
The United States asks the Panel to reject all of Viet Nam's claims of inconsistency.139
7.85.
We shall start our analysis with Viet Nam's claims that the NME-wide entity rate practice is inconsistent "as such" with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement. We shall then turn to Viet Nam's claims that the application of the NME-wide entity rate practice in the fourth, fifth and sixth administrative reviews is inconsistent with those same provisions.

7.4.2 Claims with respect to the NME-wide entity rate practice "as such"

7.4.2.1 Introduction

7.86.
Viet Nam claims that the "NME-wide entity rate practice" is a measure which may be challenged "as such" and which is inconsistent with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement.140 The United States submits that Viet Nam has failed to establish the existence of the NME-wide entity rate practice as a measure of general and prospective application that may be challenged "as such" under the Anti-Dumping Agreement.141 The United States also asks the Panel to reject Viet Nam's claims of inconsistency.142
7.87.
In view of the parties' disagreement on this issue, we need to first determine whether Viet Nam has established that the "NME-wide entity rate practice" it has defined is a measure of general and prospective application which is susceptible to an "as such" challenge. If we are satisfied that Viet Nam has done so, we shall then turn to Viet Nam's claims that this rule or norm is, as such, inconsistent with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement.

7.4.2.2 Whether Viet Nam has established the existence of the NME-wide entity rate practice as a measure which may be challenged "as such"

7.4.2.2.1 Main arguments of the parties

7.4.2.2.1.1 Viet Nam

7.88.
Viet Nam argues that the USDOC's standard practice is articulated in its Antidumping Manual, which demonstrates that, in anti-dumping proceedings involving NME countries, the USDOC starts with the rebuttable presumption that all companies within the country are essentially operating units of a single, government-wide entity and, thus, should receive a single anti-dumping duty rate, the NME-wide rate. According to Viet Nam, the USDOC retains broad discretion on the method for calculating the NME-wide entity rate, but in most investigations and administrative reviews, the USDOC finds that the NME-wide entity did not cooperate, thus justifying the use of adverse facts available. Firms seeking a "separate" (or "all others") rate, based on the weighted-average of the rates for the individually-investigated respondents, must pass a "separate rate test" whereby they must establish an absence of government control, both in law and in fact, with respect to exports. Hence, unlike cases involving market economy countries where all non-investigated firms receive the "all others" rate, non-investigated firms in NME may receive the "all others" rate only if they satisfy established criteria. According to Viet Nam, the Antidumping Manual makes it clear that the USDOC's NME-wide practice is applied on a generalized and prospective basis.143
7.89.
Viet Nam further submits that Policy Bulletin 05.1, on Separate-Rates Practices and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries, articulates the same presumption for NME countries as the Antidumping Manual and also sets forth a requirement that exporters affirmatively demonstrate independence from government control in order to be eligible for a rate that is separate from the NME-wide entity. Viet Nam submits that Policy Bulletin 05.1, which sets forth the USDOC's policy, is of general and prospective effect, as its purpose is to provide certainty and predictability to NME exporters on the requirements for a separate rate.144 Viet Nam further argues that the determinations relevant to the Shrimp order, from the original investigation to the sixth review, also constitute relevant evidence because they describe the "long-standing policy" of presuming government ownership of all firms in NME investigations.145 In Viet Nam's view, the evidence regarding the NME-wide entity policy is more compelling than in the zeroing disputes, because the Panel has before it multiple written documents explaining the exact nature of the policy, as well as its general and prospective effect.146 Viet Nam clarifies that it is not challenging the Antidumping Manual and Policy Bulletin 05.1 as measures themselves, but considers that both documents serve as evidence that the practice or policy in question amounts to a measure of general and prospective application.147

7.4.2.2.1.2 United States

7.90.
The United States replies that Viet Nam has not established that the alleged NME-wide entity rate practice exists as a measure which can be challenged "as such". Viet Nam does not explain how a "practice" can set out a rule or norm of general and prospective application, and has not demonstrated that the USDOC invariably applies the alleged practice. According to the United States, the Antidumping Manual stipulates, inter alia, that it is "for the internal training and guidance of Import Administration (IA) personnel only" and that it "cannot be cited to establish DOC practice", which means that it cannot serve as a basis to argue that the USDOC has adopted an approach that must be followed for any particular future proceeding. The United States argues that the use of the Manual is not required under domestic law or under the WTO Agreements and, thus, Viet Nam is attacking a non-required step undertaken by the United States to promote transparency. The United States contends that Viet Nam has not pointed to a principle of US law that supports the conclusion that the Antidumping Manual requires the USDOC to do something; in fact, Viet Nam itself acknowledges that the USDOC retains broad discretion on the method for calculating the NME-wide entity rate. According to the United States, the Antidumping Manual does not require calculating that rate on the basis of facts available. The United States concludes that Viet Nam has failed to make a prima facie case that the so-called NME-wide entity rate is a measure that can be challenged "as such".148
7.91.
The United States further argues that, since Viet Nam has made clear that it is not alleging that either the Antidumping Manual or Policy Bulletin 05.1 are themselves measures that Viet Nam challenges "as such", the issue is solely whether Viet Nam has shown the existence of an unwritten measure that may be challenged "as such", based on an alleged practice adopted by the United States. According to the United States, Viet Nam has failed to establish the existence of such an unwritten norm.149 The United States also notes that Policy Bulletin 05.1 applies only to original investigations initiated on or after the date of publication of the notice announcing this policy (5 April 2005). As a consequence, the Bulletin did not require the USDOC to follow the approaches set forth therein during the covered reviews or generally during administrative reviews of products from NME countries.150

7.4.2.2.2 Main arguments of the third parties

7.92.
China submits that the form of the measure is not decisive when considering whether a measure may be subject to an "as such" challenge. In this dispute, the NME-wide entity rate practice is expressed in written documents, in particular in Policy Bulletin 05.1, which leaves no uncertainty as to the content of the NME-wide entity rate practice. Moreover, this document is identical in its material effects to the Sunset Policy Bulletin that the Appellate Body found to be a norm of general and prospective application in prior disputes.151
7.93.
The European Union submits that, in the light of the Appellate Body report in EC – Fasteners (China), the Panel will have to consider, in particular, whether Viet Nam has demonstrated the existence and precise content of the "as such" measure at issue, as well as the existence of a presumption.152

7.4.2.2.3 Evaluation by the Panel

7.95.
In the present dispute, Viet Nam challenges a "practice" or "policy" of the USDOC, an agency of the United States Government. According to the United States, an administrative practice standing alone is not itself a measure for the purpose of the DSU, but it may be relevant evidence in a dispute settlement proceeding. The United States also submits that the Appellate Body has not, to date, pronounced upon the issue of whether a "practice" may be challenged, as such, as a measure in WTO dispute settlement.153
7.96.
We note that the USDOC itself uses alternatively the words "practice" and "policy" when referring to the existence of an NME-wide entity and to the single rate assigned to that entity.154 In our view, however, the particular terms used to describe the alleged measure are not determinative155 and it does not matter whether the alleged measure is a "practice" or a "policy". Rather, what we need to assess is whether Viet Nam has demonstrated, in casu, that the alleged measure is a norm or rule of general and prospective application that can be challenged "as such" in the WTO dispute settlement system.
7.97.
As we observed above156, neither the DSU nor the Anti-Dumping Agreement establishes criteria for determining when measures can be challenged "as such". However, this issue was considered in previous WTO dispute settlement cases, which have outlined criteria to assess whether a rule or norm amounts to a rule or norm of general and prospective application which can be challenged "as such". Thus, we recall that, while there is no threshold requirement that the measure challenged "as such" be of a certain type157, the burden of establishing the existence of a rule or norm of general application – which rests on the party alleging that such a measure exists – may be different depending on the type of measure at issue. This burden will be more easily discharged when the measure at issue is set forth in a legislative act than in situations where the existence of the alleged measure is not expressed in a written document. The Appellate Body has explained that this burden is particularly high in the latter case.158
7.98.
Viet Nam challenges the NME-wide entity rate "practice" or "policy" as an unwritten rule or norm, rather than challenging a particular legislative or administrative act setting forth that practice or policy.159 Written documents referred to by Viet Nam as describing the NME-wide entity rate practice – the Antidumping Manual and Policy Bulletin 05.1 – are to be used as relevant evidence in assessing the existence of the alleged measure, but are not themselves being challenged as measures. This being the case, consistent with the standard set out above160, we shall consider whether Viet Nam has established that: (i) this practice or policy is "attributable" to the United States, (ii) the "precise content" of this practice or policy, and (iii) that this practice or policy does have "general and prospective application".
7.99.
With respect to the first criterion, i.e. attribution to the United States, we have already remarked above that the NME-wide entity rate is a practice or policy used by the USDOC, which is an agency of the United States Government. There appears to be no controversy between the parties that the practice or policy is "attributable" to the United States.
7.100.
Viet Nam's arguments regarding the precise content of the NME-wide entity rate practice or policy pertain to two elements. The first element concerns the application by the USDOC in anti-dumping proceedings (e.g. original investigations and administrative reviews) involving NME countries of a rebuttable presumption that, in such countries, all companies belong to a single, NME-wide entity, and the assignment of a single rate to that entity. The second element concerns the manner in which the rate assigned to the NME-wide entity is determined, in particular the use of facts available. We note that, in its arguments to the Panel, Viet Nam has put more emphasis on the former than on the latter. We shall examine these two elements separately.
7.101.
With respect to the first element, turning to the evidence submitted by Viet Nam, we first consider Chapter 10 of the Antidumping Manual, entitled "Non-Market Economies".161 In Section III ("Separate Rates"), it provides that:

Individual dumping margins are automatically assigned to exporters in market-economy country cases. In NME cases, however, exporters must pass a separate rate test to receive a rate that is separate from the NME-wide rate. Those exporters that do not or cannot demonstrate that they are separate from the government-wide entity receive the NME-wide rate.162

7.102.
The Antidumping Manual further explains that "[i]n proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are essentially operating units of a single, government-wide entity and, thus, should receive a single antidumping duty rate (i.e., an NME-wide rate)".163 Pursuant to the "separate rate test", exporters in NMEs are accorded separate, company-specific margins "if they can provide sufficient proof of an absence of government control, both in law and in fact, with respect to export activities".164 In Section IV ("The NME-Wide Rate"), the Antidumping Manual states again that:

The Department begins with a rebuttable presumption that all companies within the NME country are essentially operating units of a single, government-wide entity and should receive a single anti-dumping rate.165

7.103.
The description of the NME-wide entity rate and separate rates in Chapter 10 of the Antidumping Manual concerns anti-dumping "proceedings" or "cases". This suggests to us that this practice or policy applies to any of the various segments leading to an anti-dumping measure and subsequent implementation. Section IV describes the application of the rate in original investigations and administrative reviews.166 Hence, pursuant to the Antidumping Manual, the NME-wide entity rate practice or policy applies throughout an anti-dumping proceeding.
7.104.
In our view, Chapter 10 of the Antidumping Manual is evidence of the first element of the alleged NME-wide entity rate practice or policy, i.e. that in anti-dumping proceedings involving NMEs, the USDOC applies a rebuttable presumption that all exporters in the NME country are part of a single NME-wide entity and assigns a single anti-dumping duty rate to all exporters who do not rebut this presumption by establishing that they operate, de jure and de facto, independently from the government with respect to their export activities.
7.105.
Turning to the question whether this element of the alleged measure has "general and prospective application", we first note that Chapter 10 of the Antidumping Manual uses the terms "practice" or "methodology" when referring to the treatment of NMEs in anti-dumping proceedings. Moreover, on its face, the Antidumping Manual appears to describe a generally applicable practice. Nothing in Chapter 10 suggests that there may be circumstances or situations in which the USDOC would not "start with a rebuttable presumption that all companies within a NME country" belong to a single, NME-wide entity and would not assign a single rate to that entity. The United States does not contest that the "practice" described in Chapter 10 of the Antidumping Manual is applied in all proceedings involving NME countries. Nor has the United States provided the Panel with a single example of an anti-dumping proceeding involving an NME where the USDOC did not start with the rebuttable presumption regarding the existence of an NME-wide entity and go on to assign to that entity a single anti-dumping duty rate. Chapter 10 of the Antidumping Manual suggests, in our view, that this "practice" or "methodology" has general and prospective application because it applies in all anti-dumping proceedings involving NMEs and makes it possible to anticipate the future conduct of the USDOC in such anti-dumping proceedings.
7.106.
Referring to Chapter I of the Antidumping Manual, the United States submits, however, that the Manual clearly states that it is "subject to change without notice" and "cannot be cited to establish DOC practice".167 According to the United States, the USDOC has explicitly alerted petitioners and respondents that the Antidumping Manual cannot serve as a basis to argue that the USDOC has adopted an approach that must be followed for any particular, future proceeding. The United States also submits that neither domestic law nor the WTO Agreement require that the Antidumping Manual be used. The United States concludes on the basis of these considerations that the Antidumping Manual cannot therefore, be considered as having general and prospective application, adding that allowing an "as such" finding against the Manual would discourage the promotion of transparency.168
7.107.
We understand that, according to the United States, the Antidumping Manual is a non-mandatory instrument and, for this reason, cannot be challenged "as such". However, the status of the Antidumping Manual under domestic law is not determinative. Even assuming that the Antidumping Manual is not a mandatory instrument under US domestic law, this fact would not be dispositive of the issue of whether certain practices it describes, including the rebuttable presumption and assignment of a single rate, can be challenged "as such" in WTO dispute settlement proceedings.
7.108.
We recall that, in US – Corrosion-Resistant Steel Sunset Review and US – Oil Country Tubular Goods Sunset Reviews, the Appellate Body rejected the US argument that a measure of a non-mandatory character, the Sunset Policy Bulletin (SPB), was not susceptible to "as such" challenge. In US – Corrosion-Resistant Steel Sunset Review, the Appellate Body indicated that there was "no reason for concluding that, in principle, non-mandatory measures cannot be challenged 'as such'".169 In US – Oil Country Tubular Goods Sunset Reviews, the Appellate Body observed that the relevant issue is not whether the measure subject to an "as such" challenge is a binding legal instrument within the domestic legal system of a Member, but, rather, whether it is a measure that may be challenged in WTO dispute settlement proceedings, i.e. whether is an "act[] setting forth rules or norms that are intended to have general and prospective application". The Appellate Body answered this question in the affirmative in that dispute, on the basis that the SPB: (i) had "normative value", as it provided administrative guidance and created expectations among the public and among private actors; (ii) was intended to have general application, as it was to apply to all the sunset reviews conducted in the United States; and (iii) was intended to have prospective application, as it was intended to apply to sunset reviews taking place after its issuance.170
7.109.
In the present dispute, Viet Nam refers to the Antidumping Manual as evidence that the unwritten practice or policy in question amounts to a measure of general and prospective application that can be challenged "as such".171 Hence, the issue facing us is not whether the Antidumping Manual itself can be challenged "as such" as a rule or norm of general and prospective application, but whether it constitutes relevant evidence to establish the existence of a rule of norm of general and prospective application. In our view, the reasoning of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review and in US – Oil Country Tubular Goods Sunset Reviews is relevant in this regard. We believe that if a non-mandatory instrument can be found to be a measure of general and prospective application it can a fortiori constitute probative evidence of the existence of an unwritten measure of general and prospective application. Hence, we consider that the Antidumping Manual constitutes relevant and probative evidence of the existence of a norm of general and prospective application.
7.110.
We turn now to the second piece of evidence submitted by Viet Nam, namely Policy Bulletin 05.1.172 We observe that, in the "Statement of Issue", the Policy Bulletin explains that it "describes the Department's application process for separate rates status in non-market economy ("NME") investigations".173 It further states that "[i]n an NME antidumping investigation, the Department presumes that all companies within the NME country are subject to government control and should be assigned a single antidumping duty rate unless an exporter demonstrates the absence of both de jure and de facto governmental control over its export activities".174 According to Policy Bulletin 05.1, the USDOC "assigns separate rate status in NME cases only if an exporter can demonstrate the absence of both de jure and de facto government control over its export activities".175 In our view, Policy Bulletin 05.1 is further evidence confirming the first element of the alleged measure. It clearly indicates that, in investigations involving NME countries, the USDOC will presume that all companies within the NME country are subject to government control and will receive a single anti-dumping duty rate and that exporters wishing to receive a separate rate must demonstrate the absence of de jure and de facto government control over their export activities.
7.111.
Moreover, in the "Statement of Policy", Policy Bulletin 05.1 "clarifies" the Department's practice with respect to the application for separate rates and indicates, inter alia, that "the separate rate application does not change the long-established standard for eligibility for receiving a separate rate … which remains whether a firm can demonstrate an absence of both de jure and de facto governmental control over its export activities".176 The "Statement of Policy" section concludes by stating that "[the separate rate] practice will be effective for all NME antidumping investigations initiated on or after the date of publication in the Federal Register of the notice announcing this policy".177
7.112.
The language used in Policy Bulletin 05.1 conveys that the "practice" or "policy" (both terms are used) whereby the USDOC presumes that all NME exporters belong to a single, NME-wide entity and apply a single rate to that entity is applied in all anti-dumping investigations involving NMEs. There is no mention of instances in which the USDOC would not use that presumption and would not apply the single rate. Policy Bulletin 05.1 plainly states that it will apply to "all" NME anti-dumping investigations initiated "on or after the date of publication" in the Federal Register, thus evidencing that it has "general" and "prospective" application. With respect to the nature of the instrument, we also note that this Policy Bulletin is similar to the SPB which was at issue in US – Corrosion-Resistant Steel Sunset Review and in US – Oil Country Tubular Goods Sunset Reviews. In those two disputes, the Appellate Body concluded that the SPB could be challenged "as such" in WTO dispute settlement.178 In the present dispute, Viet Nam does not challenge Policy Bulletin 05.1 itself "as such", but rather relies on it as evidence that the NME-wide entity rate practice amounts to a measure of general and prospective application that can be challenged "as such". Again, we consider that if the SPB could be found to constitute a measure of general and prospective application, Policy Bulletin 05.1 can a fortiori be considered to provide relevant and probative evidence of the existence of an unwritten measure of general and prospective application.
7.113.
The United States submits that Policy Bulletin 05.1 applies only to original investigations, and moreover, only applies to investigations initiated after 5 April 2005. Consequently, the United States argues, the USDOC was not required to follow the approaches set forth in the Policy Bulletin in the covered reviews or generally during administrative reviews of products from NME countries.179
7.114.
The notice of initiation of the anti-dumping investigation for the Shrimp order is dated 27 January 2004, i.e. before the entry into force of Policy Bulletin 05.1, and thus we agree with the United States that the Policy Bulletin did not apply to the original investigation underlying the Shrimp order. However, this does not undermine the relevance and probative value of Policy Bulletin 05.1 with respect to the general and prospective nature of the first element, i.e. the application by the USDOC in anti-dumping proceedings involving NME countries of a rebuttable presumption that, in such countries, all companies belong to a single, NME-wide, entity, and the assignment of a single rate to that entity. Moreover, when it states that it "does not change the long-established standard for eligibility for receiving a separate rate", Policy Bulletin 05.1 supports the conclusion that essentially the same practice existed before its entry into force.180
7.116.
In addition, evidence of the general and prospective nature of this element of the alleged unwritten measure can be found in a number of statements made by the USDOC in the Notices issued under the Shrimp order. For example, in the Issues and Decision Memorandum accompanying the final determination in the original investigation, the USDOC explains that:

The Department has a long-standing policy in antidumping proceedings of presuming that all firms within an NME country are subject to government control and thus should all be assigned a single, country-wide rate unless a Respondent can demonstrate an absence of both de jure and de facto control over its export activities. … In accordance with the separate-rates criteria, the Department assigns separate rates in NME cases only if respondents can demonstrate the absence of both de jure and de facto government control over export activities.181

In the same Issues and Decision Memorandum, the USDOC explains that the US Court of Appeals for the Federal Circuit had "agreed that it was within Commerce's authority to employ a presumption of state control for exporters in a nonmarket economy, and to place the burden on the exporters to demonstrate an absence of government control".182 The USDOC further observes that "[t]he Department's longstanding practice of assigning a country-wide rate to NME companies that do not qualify for a separate rate is reasonable and has been repeatedly affirmed by the courts".183

7.117.
In the final determination in the fourth administrative review, the USDOC explains:

Because we begin with the presumption that all companies within a NME country are subject to government control, and because only the companies listed under the "Final Results of Review" section below have overcome that presumption, we are applying a single antidumping rate, i.e., the Vietnam-wide entity rate, to all other exporters of subject merchandise.184

7.118.
In the notice of initiation for the fifth administrative review, the USDOC explains:

In proceedings involving non-market economy ("NME") countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.185

7.119.
In the preliminary determination in the sixth administrative review, the USDOC explains again:

In NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. However, a company in the NME applying for separate rate status may rebut that presumption by demonstrating an absence of both de jure and de facto government control over its export activities.186,187

7.120.
Viet Nam also contends that similar language can be found in every anti-dumping determination involving an NME country188, but does not provide any evidence in other proceedings. We recall, however, that no example has been brought to our attention of an anti-dumping proceeding involving an NME in which the USDOC did not start with a rebuttable presumption that all companies belong to a single, government-wide entity.189
7.121.
In our view, the significance of the above statements by the USDOC goes beyond the proceedings under the Shrimp order. These statements provide further confirmation that the application by the USDOC in anti-dumping proceedings on imports from NMEs of a rebuttable presumption that all companies belong to a single, NME-wide entity, and the assignment of a single rate to that entity amounts to a rule or norm of general and prospective application.
7.123.
The second element of Viet Nam's challenge to the NME-wide entity rate practice relates to the determination of the rate assigned to the NME-wide entity. Viet Nam submits that the USDOC applies a punitive rate based on adverse facts available to the producers/exporters deemed to be part of the NME-wide entity.190
7.124.
The United States replies that the only evidence cited by Viet Nam to support its allegation that the USDOC has a practice of determining the NME-wide rate based on facts available is two sentences from the Antidumping Manual, neither of which requires the USDOC to base the NME-wide rate on facts available. The United States observes that Viet Nam itself concedes that the USDOC "retains broad discretion on the method for calculating the NME-wide entity rate". Thus, according to the United States, even Viet Nam does not argue that this alleged practice exists and is invariably applied by the USDOC.191
7.125.
Viet Nam presents only limited evidence as to how the NME-wide entity rate is calculated, and the evidence that it relies upon is inconclusive. In particular, Chapter 10 of the Antidumping Manual, referred to by Viet Nam, explains that the NME-wide rate:

may be based on adverse facts available if, for example, some exporters that are part of the NME-wide entity do not respond to the anti-dumping questionnaire. In many cases the Department concludes that some part of the NME-wide entity has not cooperated in the proceedings because those that have responded do not account for all imports of subject merchandise.192

7.126.
In addition, Viet Nam does not refer to other NME investigations where NME-wide rates were determined using facts available, which could serve to establish the existence of a policy or practice in this respect. Moreover, as noted by the United States, Viet Nam itself casts some doubt on the consistency of USDOC's practice in determining a rate for an NME-wide entity when it asserts that "[t]he USDOC retains broad discretion on the method for calculating the NME-wide entity rate, but in most investigations and administrative reviews makes a finding that the generalized 'NME-wide entity' did not cooperate with the proceeding, justifying the use of facts available".193
7.127.
In response to a question from the Panel, the United States refers to cases where the NME-wide entity rate was based on the weighted-average margin calculated for the mandatory respondents and, thus, the NME-wide rate was not based on facts available.194 Viet Nam argues that, in those examples, the individually investigated exporters represented the entire universe of imports of subject merchandise into the United States and, thus, the rate assigned to the NME-wide entity was irrelevant because it had no practical use.195
7.128.
In the first example cited by the United States, the USDOC applied a NME-wide rate corresponding to the "simple average" of (i) the weighted-average of the calculated rates for mandatory respondents, and (ii) "a simple average of petition rates based on US prices and normal values within the range of the U.S. prices and normal values calculated for [the two mandatory respondents]". It would thus appear that, contrary to the United States' representations, the NME-wide applied in that proceeding was largely based on facts available.196 As noted by Viet Nam, in the other proceedings cited by the United States, there were no other exporters of the subject merchandise than the mandatory respondent(s), and in each of these proceedings, the USDOC applied a NME-wide rate based on the mandatory respondents' rate, apparently on the basis that the mandatory respondents accounted for the totality of exports of subject merchandise to the United States. Moreover, in three cases, the USDOC specified that the NME-wide rate "applies to all entries of the subject merchandise" except for entries from the mandatory respondents.197 While it may have been that the NME-wide rate was actually not applied with respect to any producer/exporter in these proceedings, we are not convinced that, for this reason, the NME-wide entity rate applied in these proceedings had "no practical use". In any event, the very nature of a rule or norm of general and prospective application is that it applies independently of the specific factual circumstances of a particular case. Hence, the fact that the USDOC may use a different method for determining a rate for the NME-wide entity depending on the circumstances suggests to us that the USDOC does not have a consistent practice of determining NME-wide rates using facts available.
7.129.
We recall that a panel "must not lightly assume the existence of a rule or norm constituting a measure of general and prospective application, especially when it is not expressed in a written document".198 The Appellate Body also indicated that the party bringing a challenge against a rule or norm that allegedly constitutes a measure of general and prospective application must meet a "high threshold".199
7.130.
Overall, taking into account the evidence cited by the United States, and Viet Nam's admission that the USDOC retains broad discretion concerning the method used to determine the NME-wide rate, we conclude that, while the evidence on the record does suggest that the USDOC often determines the rate for the NME-wide entity based on facts available, it does not establish that the USDOC consistently uses a certain defined methodology to determine the NME-wide entity rate or systematically bases that rate on facts available. We therefore conclude that, in relation to the second element of the alleged measure, Viet Nam has failed to establish the existence of any practice amounting to a rule or norm of general and prospective application.
7.131.
In sum, we conclude that Viet Nam has established that the USDOC's policy or practice whereby, in anti-dumping proceedings involving NMEs, it presumes that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity amounts to a measure of general and prospective application which can be challenged "as such". However, we find that Viet Nam did not establish the existence of a USDOC practice with respect to the manner in which it determines the NME-wide entity rate, in particular concerning the use of facts available, amounting to a measure of general and prospective application, and which can therefore be challenged "as such".

7.4.2.3 Whether the NME-wide entity rate practice is inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement

7.4.2.3.1 Main arguments of the parties

7.4.2.3.1.1 Viet Nam

7.132.
Viet Nam argues that the plain language of Articles 6.10 and 9.2, read in context, precludes application of a single anti-dumping margin to multiple entities where those companies have not been found by the authority to constitute a single entity. Viet Nam argues that the first sentence of Article 6.10 requires the authority to determine an individual dumping margin for each known exporter or producer. According to Viet Nam, the use of "sampling", provided for in the second sentence of Article 6.10, is the only exception to the rule contained in the first sentence. Viet Nam further argues that the requirement contained in the first sentence of Article 6.10 is further reinforced by Article 9.2, the first sentence of which requires that the anti-dumping duty "shall be collected in the appropriate amounts". Viet Nam asks that the Panel take special note of the Appellate Body's ruling in EC – Fasteners (China) because itaddressed a nearly identical legal and factual scenario to the measure at issue in the present dispute. Viet Nam argues that, in that dispute, the Appellate Body found that, under the Anti-Dumping Agreement, an investigating authority is not permitted to presume that in NME countries the state and exporters constitute a single entity, but is required to make an affirmative determination to that effect.200
7.133.
Viet Nam argues that the USDOC's presumption of the existence of an NME-wide entity and application of an NME-wide entity rate does not comply with the requirement in Articles 6.10 and 9.2 that authorities determine individual dumping margins and duties. According to Viet Nam, the NME-wide entity is not an individual exporter or producer, but a collection of exporters that the USDOC collapses into a single entity, without performing the required analysis to that effect. Instead, the USDOC presumes that all entities within the NME country are, in fact, a single entity under the control of the government, but does not establish, as a matter of fact, the existence of the single entity. Viet Nam is also of the view that the USDOC's practice does not fit within the single, limited exception provided for in Articles 6.10 and 9.2. Viet Nam requests, therefore, that the Panel find that the USDOC's practice is inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement.201
7.134.
Viet Nam submits that the United States' reliance on Viet Nam's Protocol of Accession to the WTO and Working Party Report as a legal justification is unavailing. Viet Nam's Accession Protocol contains a single exception to the application of the disciplines of the Anti-Dumping Agreement, namely the use of an alternative methodology for the calculation of normal value. According to Viet Nam, the Working Party Report describes the prevailing economic conditions in Viet Nam at the time of the Report, but nowhere in the Report or the Accession Protocol does Viet Nam agree to generalised concessions based on those economic conditions. Thus, except for the determination of normal value, there is no language in Viet Nam's Protocol of Accession to the WTO which provides an investigating authority with the legal basis to treat Viet Nam, as an NME, differently from a market economy country. Viet Nam contends that the Appellate Body's reasoning in EC – Fasteners (China) with respect to China's Accession Protocol applies to the present dispute.202
7.135.
According to Viet Nam, the United States attempts to turn the question of the legal justification for the USDOC's presumption into a question of facts; however, as observed by the Appellate Body, an authority cannot use a presumption to apply a single rate to multiple entities, regardless of the "evidence" cited by that authority. In Viet Nam's view, there is a significant difference between, on the one hand, an investigating authority making a determination on a case-by-case basis that several exporters belong to a single entity (as discussed in the panel report Korea – Certain Paper) and, on the other hand, the investigating authority beginning with the presumption that all exporters in the NME country are under the control of the government and should be assigned a single rate. In the latter case, the presumption is not based on any analysis of the exporters actually under investigation, but on general information about the economy as a whole, and is, therefore, inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement. Viet Nam submits that the Panel does not need to discuss the criteria used by the USDOC to determine whether entities are sufficiently independent from the government because the starting point of the test, i.e. the presumption that all companies belong to a single NME-wide entity, is wrong.203

7.4.2.3.1.2 United States

7.136.
The United States204 submits that Viet Nam has no basis for asserting that related entities, simply because they may be organized as a formal matter as separate companies, must be treated as individual exporters for the purpose of Article 6.10. To the contrary, context in the Anti-Dumping Agreement, in particular footnote 11 to Article 4.1(i) and Article 9.5, indicates that whether producers are related to each other affects the investigating authority's analysis of those firms. According to the United States, Article 6.10 uses similar language and, where exporters or producers are sufficiently related, they are not economically independent and would not have individual margins. For the United States, depending on the facts of a given situation, an investigating authority may determine that legally distinct companies should be treated as a single "exporter" or "producer" based on their activities and relationships. The United States concludes on this basis that Article 6.10 does not preclude the USDOC from treating multiple companies as a single entity, including, where appropriate, a Viet Nam-government entity.205 The United States also argues that nothing in Article 9.2 prevents an authority from concluding that the relationship between multiple companies is sufficiently close to support treating them as a single entity and subject them to a single duty rate. According to the United States, an investigating authority must determine whether a group of companies are in a close enough relationship to support their treatment as a single entity before it can know how to calculate and apply duties to those companies' exports and Article 9.2 does not set out criteria for an investigating authority to examine before making that determination. The United States concludes that Article 9.2 does not preclude the USDOC from treating multiple companies as a single entity, including, where appropriate, a Viet Nam-government entity.206 According to the United States, the question raised by Viet Nam's claim does not involve a pure question of legal interpretation, but is a mixed question of fact and law, and Viet Nam cannot point to any provision of the Anti-Dumping Agreement that specifies exactly how an authority is to decide whether different sets of exports are considered to be from one exporter or multiple exporters.207
7.137.
According to the United States, Viet Nam's Working Party Report and Accession Protocol indicate that all Members were not convinced that market-economy conditions might prevail in Viet Nam. Viet Nam's Accession Protocol does not impose on Members any non-market economy characterization of Viet Nam, but allows Members to decide unilaterally on their understanding of Viet Nam's economy and the appropriate treatment for Vietnamese respondents on a case-by-case basis. The United States is of the view that the Accession Protocol provides important context in terms of deciding which entities in Viet Nam should be considered as a single entity for purposes of Article 6.10. The United States notes that paragraph 255 of Viet Nam's Working Party Report expressly provides importing Members the discretion to use an NME methodology when it is not clearly shown that market economy conditions prevail in Viet Nam. According to the United States, the understanding in Viet Nam's Accession Protocol that Viet Nam is not yet a market economy is in effect an understanding that prices for inputs and outputs are affected by the government which, in turn, is in effect an understanding that there remains government control over all firms. On the basis of this understanding, a single "government-controlled" rate is warranted, unless and until it is clearly demonstrated that market economy conditions prevail for the purpose of calculating dumping margins and assigning anti-dumping duty rates. For the United States, the 2002 USDOC determination that the Government of Viet Nam is legally or operationally in a position to control or materially influence the behaviour of firms is not in dispute; it is then logical for the USDOC to consider that the Government of Viet Nam simultaneously exerts control or material influence over these entities with respect to the pricing and output of identical or similar products destined for export. The United States submits that the presumption underlying the Working Party Report, as incorporated in the Accession Protocol, that NME conditions prevail in Viet Nam is an integral part of the WTO agreements and justifies placing the burden of proof on Vietnamese respondents to demonstrate the appropriateness of a separate rate. For the United States, by not challenging the use by the USDOC of an NME methodology to calculate normal value, Viet Nam does not challenge the underlying presumption in paragraph 255 of its Accession Protocol that market economy conditions do not clearly prevail, which, in turn, has implications extending beyond the calculation of normal value.208
7.138.
According to the United States, Articles 6.10 and 9.2 of the Anti-Dumping Agreement must be read in a manner consistent with paragraph 255 of the Working Party Report. The United States argues that the Appellate Body's conclusions in EC – Fasteners (China) that, underlying Article 6.10 is a presumption that every entity must first be recognized as an individual exporter or producer, lacks any support in the text of the Anti-Dumping Agreement and does not result in a reading of that provision that is consistent with paragraph 255 of Viet Nam's Working Party Report, especially where NME conditions prevail. According to the United States, where NME conditions do prevail, it is far more reasonable, as a starting point for an anti-dumping analysis, to think of entities as operating subject to government control until otherwise demonstrated, than to think of them as operating independently from government control.209
7.139.
The United States further argues that, even if this Panel were to follow the Appellate Body's reasoning in EC – Fasteners (China), the USDOC's determination regarding the Viet Nam-wide entity is consistent with Articles 6.10 and 9.2. First, an important difference with EC – Fasteners (China) is that neither Viet Nam nor any Vietnamese exporter requested, at any time during the proceedings, that the USDOC reconsider Viet Nam's non-market economy status. Hence, unlike in EC – Fasteners (China), there is no question for the Panel to resolve as to whether Viet Nam is a non-market economy. The United States further argues that the USDOC's determination that a Viet Nam-government entity existed and that certain exporters, while legally separate, were in fact part of that entity, rested on adequate factual findings in the course of the relevant reviews. In EC – Fasteners (China), the Appellate Body did not preclude an investigating authority from collecting and offering evidence to justify a presumption that a single government entity exists. The United States submits that, in the challenged proceedings, the USDOC afforded companies the opportunity to submit information about their relationship with the Viet Nam-government entity to demonstrate independence from the Government and the evidence sought by the USDOC is fully consistent with those factors that the Appellate Body in EC – Fasteners suggested should be probed to determine whether two or more exporters should be treated as a single entity. Finally, the United States argues that the USDOC's conclusion that multiple companies in Viet Nam are part of the Viet Nam-government entity is based on a permissible interpretation of Articles 6.10 and 9.2.210

7.4.2.3.2 Main arguments of the third parties

7.140.
China submits that the USDOC's separate rate test is materially identical to the European Union individual treatment test at issue in EC – Fasteners (China), and requests that the Panel interpret Articles 6.10 and 9.2 in light of the Appellate Body's findings in that dispute. China observes that the question at stake is not whether authorities are allowed to treat two or more sufficiently related exporters as a single entity in certain situations, but whether authorities are allowed to presume that all the exporters in an NME country constitute a single entity.211
7.141.
The European Union anticipates that the Panel will be guided by the clarifications provided by the Appellate Body in EC – Fasteners (China). In particular, the Panel will have to consider whether or not the test applied by the United States is capable of establishing whether the exporting State and one or more exporters should be deemed to be a single entity. In this respect, the European Union agrees with the United States that Members are entitled to make single entity determinations based on the type of criteria referred to by the United States.212
7.142.
Thailand agrees with the Appellate Body's ruling that Articles 6.10 and 9.2 do not preclude treating several companies as a single entity provided that it is not presumed, but based on available evidence.213

7.4.2.3.3 Evaluation by the Panel

7.143.
We recall our finding above that Viet Nam has successfully established that the USDOC's policy or practice whereby, in anti-dumping proceedings involving NMEs, it presumes that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity is a measure of general and prospective application which may be challenged "as such". We will now examine whether, as alleged by Viet Nam, this measure is inconsistent "as such" with Articles 6.10 and 9.2 of the Anti-Dumping Agreement.
7.144.
We turn first to the text of the relevant legal provisions at issue. Article 6.10 provides that:

The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated.

7.145.
In EC – Fasteners (China), the Appellate Body found that the use of the term "shall" in the first sentence of Article 6.10 indicates that this provision contains a mandatory rule to determine individual dumping margins for each known exporter or producer. In the Appellate Body's view, the term "as a rule" indicates that the obligation to determine individual dumping margins may be subject to derogations, such as the sampling exception in the second sentence of Article 6.10. The Appellate Body did not consider, however, that the "flexibility provided by the term 'as a rule' goes as far as providing Members with an open-ended possibility to create exceptions, which would erode the obligatory character of Article 6.10".214 The Appellate Body concluded that:

The general rule, that is, the obligation to determine individual margins of dumping for each known exporter or producer, applies, unless derogation from it is provided for in the covered agreements.215

7.146.
The Appellate Body "[did] not find any provision in the covered agreements that would allow importing Members to depart from the obligation to determine individual dumping margins only in respect of NMEs".216 The Appellate Body concluded that Article 6.10 of the Anti-Dumping Agreement must be interpreted:

as expressing an obligation, rather than a preference, for authorities to determine individual margins of dumping. This obligation is qualified and is subject not only to the exception specified for sampling in the second sentence of Article 6.10, but also to other exceptions to the rule to determine individual dumping margins that are provided for in the covered agreements.217

7.147.
Turning to Article 9.2, we note that it provides as follows:

When an anti‑dumping duty is imposed in respect of any product, such anti‑dumping duty shall be collected in the appropriate amounts in each case, on a non‑discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted. The authorities shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned. If several suppliers from more than one country are involved, the authorities may name either all the suppliers involved, or, if this is impracticable, all the supplying countries involved.

7.148.
In EC – Fasteners (China), the Appellate Body observed that the first two sentences of Article 9.2 are of a mandatory nature.218 It also considered that the term "sources", which appears twice in the first sentence of Article 9.2, "has the same meaning and refers to the individual exporters or producers and not to the country as a whole".219 The Appellate Body noted the complementarity between Articles 6.10 and 9.2 and recalled that Article 6.10 contains an obligation to determine individual dumping margins for each exporter or producer, except when sampling is used or if a derogation is otherwise provided for in the covered agreements. Hence:

where an individual margin of dumping has been determined [in accordance with Article 6.10], it flows from the obligation contained in the first sentence of Article 9.2 that the appropriate amount of anti-dumping duty that can be imposed also has to be an individual one. We do not see how an importing Member could comply with the obligation in the first sentence of Article 9.2 to collect duties in the appropriate amounts in each case if, having determined individual dumping margins, it lists suppliers by name, but imposes country-wide duties. In other words, unless sampling is used, the appropriate amount of an anti-dumping duty in each case is one that is specified by supplier, as further clarified and confirmed by the obligation to name suppliers in the second sentence of Article 9.2.220

The Appellate Body considered that the obligation to "name" the supplier(s) of the product concerned, in the second sentence, when read in the light of the first sentence and in the overall context of Article 9 as a whole, "is closely related to the imposition of individual anti-dumping duties" and, thus, "should be interpreted as a requirement to specify duties for each supplier".221 The Appellate Body concluded that Article 9.2 of the Anti-Dumping Agreement "requires investigating authorities to specify an individual duty for each supplier, except where this is impracticable, when several suppliers are involved".222 The Appellate Body also observed that the third sentence of Article 9.2 provides for an exception to the obligations contained in the first and second sentences, which allows Members "to specify duties for the supplying country concerned, where specification of individual duties is 'impracticable'".223

7.150.
The issue we need to resolve is whether, under Articles 6.10 and 9.2 of the Anti-Dumping Agreement, the United States is entitled to presume that all exporters within an NME belong to a single, NME-wide entity under the control of the government, and assign a single rate to that entity.
7.151.
We recall that, pursuant to Article 6.10, investigating authorities have an obligation to determine individual margins of dumping for each known exporter or producer. This obligation flows from the first sentence of Article 6.10 which provides that the authorities "shall" determine an individual dumping margin for each known exporter or producer concerned of the product under investigation. The term "as a rule" in this same sentence indicates that this obligation may be subject to certain exceptions. It is subject, in particular, to the exception contained in the second sentence of Article 6.10 which applies in situations where the investigating authority decides to limit its examination to a reasonable number of interested parties or products (so-called "sampling"). Moreover, as stated by the Appellate Body, the obligation contained in the first sentence of Article 6.10 may be subject to other exceptions, as long as these exceptions are provided for in the covered agreements.224
7.152.
We have found above that in proceedings involving NME-countries, the USDOC starts "with a rebuttable presumption that all companies within the NME country are essentially operating units of a single, government-wide entity and should receive a single anti-dumping rate".225 Exporters must pass a "separate rate test" in order to receive a rate that is "separate from the NME-wide rate", which can be either an individual rate (for exporters who were individually examined) or, in cases in which the USDOC resorted to "sampling", the separate rate (for exporters not individually examined). Only exporters that have passed the separate rate test by demonstrating the absence of government control, both de facto and de jure, over their export activities will receive an individual rate or a rate that is generally based on the weighted-average of the rates individually calculated for the mandatory respondents, excluding zero and de minimis rates, as well as rates based on facts available (i.e. a separate rate).226 The USDOC calculates a single NME-wide anti-dumping margin and imposes a single NME-wide duty rate for all those exporters which are deemed to belong to the NME-wide entity because they failed – or did not attempt – to pass the separate rate test. In other words, the USDOC's practice at issue establishes a presumption that individual exporters in NME countries are not entitled to an individual rate, unless they successfully demonstrate independence from the government with respect to their export activities. Such a practice runs directly counter to the obligation contained in Article 6.10 of the Anti-Dumping Agreement whereby an investigating authority "shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned".
7.153.
The United States argues that, depending on the facts of a given situation, an investigating authority may determine that legally distinct companies should be treated as a single exporter or producer based on their activities and relationships.227 We agree that, under the Anti-Dumping Agreement, an investigating authority may treat separate entities as a single exporter or producer for the purpose of calculating dumping margins. We recall that the panel in Korea – Certain Paper found that, pursuant to Article 6.10, separate legal entities that were in a sufficiently close structural and commercial relationship could justifiably be treated as a single exporter or producer.228 That panel considered, however, that an investigating authority could not treat distinct legal entities as a single exporter or producer without justification, but had to "determine", on the basis of the record of the particular investigation, that entities are in such a close relationship.229
7.154.
In the EC – Fasteners (China) dispute, the Appellate Body also accepted that "in principle there may be situations where nominally distinct exporters may be considered as a single entity for the purpose of determining individual dumping margins and anti-dumping duties under Articles 6.10 and 9.2 of the Anti-Dumping Agreement, due to [the] State's control or material influence in and coordination of these exporters' pricing and output".230 The Appellate Body explained that:

In our view, Articles 6.10 and 9.2 of the Anti-Dumping Agreement do not preclude an investigating authority from determining a single dumping margin and a single anti-dumping duty for a number of exporters if it establishes that they constitute a single exporter for purposes of Articles 6.10 and 9.2 of the Anti-Dumping Agreement. Whether determining a single dumping margin and a single anti-dumping duty for a number of exporters is inconsistent with Articles 6.10 and 9.2 will depend on the existence of a number of situations, which would signal that, albeit legally distinct, two or more exporters are in such a relationship that they should be treated as a single entity. These situations may include: (i) the existence of corporate and structural links between the exporters, such as common control, shareholding and management; (ii) the existence of corporate and structural links between the State and the exporters, such as common control, shareholding and management; and (iii) control or material influence by the State in respect of pricing and output.231

7.155.
The Appellate Body stressed however that, under Articles 6.10 and 9.2 of the Anti-Dumping Agreement:

it is the investigating authority that is called upon to make an objective affirmative determination, on the basis of the evidence that has been submitted or that it has gathered in the investigation, as to who is the known exporter or producer of the product concerned. It is, therefore, the investigating authority that will determine whether one or more exporters have a relationship with the State such that they can be considered a single entity and receive a single dumping margin and a single anti-dumping duty.232

7.157.
We also note that the USDOC makes "single entity determinations" (pursuant to a "single entity test") to determine whether legally distinct companies constitute a single entity for purposes of calculating a dumping margin in both market economy and NME investigations.233 Pursuant to the Antidumping Manual, a single entity determination "is specific to the facts presented in each review and is based on several considerations, including the structure of the affiliated entities, the level of control between/among affiliates, and the level of participation by each affiliates in the proceeding"; moreover, the single entity will obtain a single anti-dumping duty rate.234 The single entity determination is distinct from the separate rate test and in fact, both may be applied in the same anti-dumping proceeding.235 In our view, the existence of the single entity test, as distinct from the separate rate test, shows that the USDOC's treatment of the NME-wide entity is a matter entirely separate from the question of determining whether different exporters are so closely related that they constitute a single entity. The fundamental difference between the two tests is that, under the single entity test, the USDOC presumes that all exporters are entitled to an individual rate and makes an affirmative finding, based on the facts of the case, that two or more legally distinct companies constitute a single entity, while under the separate rate test, the USDOC begins with the presumption that legally distinct companies (i.e. NME exporters) are part of a NME-wide entity, and, thus, should not be assigned an individual dumping margin and an individual anti-dumping rate.
7.158.
We find, therefore, that the USDOC's policy or practice whereby it presumes, in anti-dumping investigations involving NMEs, that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity is inconsistent with the obligations contained in Articles 6.10 and 9.2 of the Anti-Dumping Agreement.
7.159.
Our finding in this respect is consistent with the report of the Appellate Body in EC – Fasteners (China), where it concluded that:

placing the burden on NME exporters to rebut a presumption that they are related to the State and to demonstrate that they are entitled to individual treatment runs counter to Article 6.10, which "as a rule" requires that individual dumping margins be determined for each known exporter or producer, and is inconsistent with Article 9.2 that requires that individual duties be specified by supplier. Even accepting in principle that there may be circumstances where exporters and producers from NMEs may be considered as a single entity for purposes of Articles 6.10 and 9.2, such singularity cannot be presumed; it has to be determined by the investigating authorities on the basis of facts and evidence submitted or gathered in the investigation.236

7.160.
The United States contends that the Appellate Body's reasoning in EC – Fasteners (China) is flawed. According to the United States, "[t]he presumption in EC – Fasteners that Articles 6.10 and 9.2 require Members to first recognize each entity as an individual exporter or producer … was based on an improper interpretation because the Appellate Body created obligations that are not grounded in the text of these articles".237 The United States argues, inter alia, that context in the Anti-Dumping Agreement, in particular footnote 11 to Article 4.1(i) and Article 9.5, indicates that whether producers are related to each other affects the investigating authority's analysis of those firms.238
7.161.
Article 9.5 of the Anti-Dumping Agreement requires investigating authorities to determine individual dumping margins for exporters who have not exported the product during the period of investigation; those new exporters will receive an individual margin only if they can show that they are not related to any of the exporters that are subject to the anti-dumping duties. We noted, in paragraph 7,146above that the obligation to determine individual dumping margins may be subject to certain exceptions, as long as these exceptions are provided for in the covered agreements. In our view, Article 9.5 sets out an exception to the general rule in Article 6.10 that individual dumping margins be specified for each known producer/exporter, and is, therefore, one of the possible departures from the general rule contained in Article 6.10.239 Hence, Article 9.5 does not undermine our understanding of Article 6.10. Second, Article 4.1 of the Anti-Dumping Agreement contains a definition of the term "domestic industry" and footnote 11, referred by the United States, describes the circumstances when "producers shall be deemed to be related to exporters or importers". We note that this provision does not deal with the determination of dumping margins for producers/exporters, but with the definition of the domestic industry; the "producers" referred to are domestic producers. In any event, we agree with the United States that whether producers are related to each other may justify treating them as a single producer/exporter under Articles 6.10 and 9.2; the tenor of our findings, and of the Appellate Body's findings in EC – Fasteners (China) is that such a "singularity" must be determined on the basis of positive evidence in the particular case, and cannot be presumed.
7.162.
The United States also argues that this case is different from EC – Fasteners (China) because, according to the United States, the criteria underlying the "separate rate test" are different from those underlying the EU IT test at issue in that case. The United States submits that the USDOC's separate rate test "differs significantly from Article 9(5) of the EU's Basic AD Regulation", with respect to both the context in which the test is used as well as the criteria considered. In the view of the United States:

unlike the criteria that compose Article 9(5) … the criteria that compose the "separate rate test" are effectively waived (and a separate rate assigned) when the exporter under investigation or review is owned wholly by entities located in market-economy countries or has been previously assigned a separate rate. And when they do apply, they focus, unlike the criteria of Article 9(5), strictly on exporter-specific activities.240

7.163.
In the view of the United States, the evidence sought under the US test is consistent with the factors that, according to the Appellate Body, could signal that legally distinct entities are in such a relationship that they should be treated as a single entity.241
7.164.
According to Viet Nam, a discussion of the criteria used for the separate rate test is irrelevant for the Panel's analysis. Viet Nam submits that a practice whereby the USDOC would begin with the presumption that all exporters are assigned an individual rate and would apply the separate rate test to determine whether a single entity exists may be consistent with the Anti-Dumping Agreement. However, the fact that the NME-wide entity policy is based on a reversal of that presumption makes it inconsistent with the Agreement.242
7.165.
We recall that, in order to be accorded a separate rate, exporters from NMEs must demonstrate absence of government control, both in law and in fact, with respect to export activities. Pursuant to Chapter 10 of the Antidumping Manual, the USDOC considers three factors in evaluating whether there de jure is absence of government control over export activities.243 The USDOC considers four factors in evaluating whether a respondent is subject to de facto governmental control over its export functions.244
7.166.
We have carefully considered the criteria constituting the separate rate test, as well as the arguments of the United States. However, we are not persuaded that the alleged differences between the IT test at stake in EC – Fasteners (China) and the separate rate test at issue in the present dispute are sufficient in themselves to make the US practice consistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement.
7.167.
We observe, first, that exporters owned wholly by entities located in market economy countries are also required to fill out the separate rate application; although the certification process may be arguably "lighter", it still requires that the firm in question establish, although in a different way (i.e. through affiliation with a foreign-owned company), independence from the NME government in order to receive an individual rate. The second category referred to by the United States, exporters located in the NME country and which have been previously assigned a separate rate, refers to those exporters that have successfully rebutted the presumption (at least in the original investigation) that they are part of the NME-wide entity in order to be eligible for a separate rate.245 Hence, in our view, the two examples provided by the United States do not support its argument that certain categories of exporters are not subject to the presumption.
7.168.
Second, we do not believe that we need to pronounce on the relevance and/or consistency with the covered agreements of the criteria used by the USDOC, in the context of the separate rate test, in evaluating de jure and de facto absence of government control. Nor do we need to pronounce on whether these criteria are consistent with the factors identified by the Appellate Body in EC – Fasteners (China) and referred to by the United States. First, we recall that Viet Nam does not challenge the criteria composing the separate rate test. More importantly, these criteria are not used to establish whether several exporters are sufficiently integrated with each other or with the State so as to justify being treated as a single NME-wide entity. The purpose of this test is to determine whether exporters are sufficiently distinct from the State so as to overcome the presumption that they are part of the NME-wide entity. Thus, even if we were to find, arguendo, that some or all of the criteria used by the USDOC in its separate test are relevant or appropriate to effectively determine that the State controls or materially influences exporters such that they can be found to constitute a single entity, the very starting point of the separate rate test, the rebuttable presumption that a NME-wide entity exists, and the evidentiary burden placed on exporters to overcome that presumption, gives rise to an inconsistency with Articles 6.10 and 9.2 of the Anti-Dumping Agreement.246 Therefore, the criteria used under the separate rate test cannot save the measure from being found inconsistent with Articles 6.10 and 9.2, even if, per se, they might be relevant or appropriate for determining that two or more exporters are sufficiently related among themselves or with the government so that they constitute a single entity.247
7.169.
In light of the above, we maintain our conclusion that the policy or practice whereby in anti-dumping proceedings involving NME countries, the USDOC applies a rebuttable presumption that, in such countries, all companies belong to a single, NME-wide entity and assigns a single rate to that entity is inconsistent with the obligations contained in Articles 6.10 and 9.2 of the Anti-Dumping Agreement.
7.170.
However, before concluding our analysis of the consistency of the measure at issue with Articles 6.10 and 9.2 of the Anti-Dumping Agreement, we turn to the question whether Viet Nam's Accession Protocol provides a legal basis for the rebuttable presumption that, in Viet Nam, all companies are part of a single, Viet Nam-wide entity and should be assigned a single rate. We discuss the role of Viet Nam's Protocol of Accession here for the sake of a complete discussion of Viet Nam's arguments in support of its "as such" claim. We note, however, that the role of Viet Nam's Protocol of Accession is equally, if not more, relevant in the context of Viet Nam's "as applied" claim. Therefore, any conclusions we reach with respect to Viet Nam's Protocol of Accession in this context will be applicable mutatis mutandis to our analysis of Viet Nam's "as applied" claims below.
7.171.
The United States argues that Viet Nam's Working Party Report provides "legal (as well as factual) support" for treating multiple companies in Viet Nam as part of a Viet Nam-wide entity for the purpose of determining a margin of dumping.248 Viet Nam submits that its Accession Protocol and Working Party Report provide that the provisions of the GATT 1994 and the Anti-Dumping Agreement "shall apply" in anti-dumping proceedings involving exports from Viet Nam, subject to one special rule, namely the right for an investigating authority to use an alternate methodology when calculating normal value.249
7.172.
China, as a third party, submits that paragraph 255 of Viet Nam's Working Party Report is similar in substance to Article 15 of China's Protocol of Accession. In China's view, the sole issue addressed by subparagraph (a) of each provision is the issue of whether to use domestic prices or costs in China/Viet Nam when determining price comparability in anti-dumping proceedings. According to China, it is clear that the Anti-Dumping Agreement, including Articles 6.10, 9.2, 9.4 and 6.8, applies in anti-dumping proceedings against imports from China/Viet Nam with the only exceptions explicitly stated in the subparagraph (a) of each provision. Hence, other WTO Members are not allowed to discriminate against imports from China/Viet Nam in anti-dumping proceedings, for purposes other than the determination of normal value. China is of the view that this understanding has been confirmed by the Appellate Body in EC – Fasteners (China).250
7.173.
Turning first to the relevant provisions of Viet Nam's Working Party Report, we observe that the Report indicates that, during Viet Nam's accession negotiations to the WTO, certain Members considered that the fact that Viet Nam had not yet transitioned to a full market economy might cause certain difficulties in anti-dumping proceedings involving imports from Viet Nam. This concern is reflected in paragraph 254 of the Working Party Report, which states that:

Several Members noted that Viet Nam was continuing the process of transition towards a full market economy. Those Members noted that under those circumstances, in the case of imports of Vietnamese origin into a WTO Member, special difficulties could exist in determining cost and price comparability in the context of anti-dumping investigations and countervailing duty investigations. Those Members stated that in such cases, the importing WTO Member might find it necessary to take into account the possibility that a strict comparison with domestic costs and prices in Viet Nam might not always be appropriate.251

7.174.
In light of such difficulties, paragraph 255 of the Working Party Report provides in relevant part:

The representative of Viet Nam confirmed that, upon accession, the following would apply − Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") and the SCM Agreement shall apply in proceedings involving exports from Viet Nam into a WTO Member consistent with the following:

(a) In determining price comparability under Article VI of the GATT 1994 and the Anti-Dumping Agreement, the importing WTO Member shall use either Vietnamese prices or costs for the industry under investigation or a methodology that is not based on a strict comparison with domestic prices or costs in Viet Nam based on the following rules:

(i) If the producers under investigation can clearly show that market economy conditions prevail in the industry producing the like product with regard to the manufacture, production and sale of that product, the importing WTO Member shall use Vietnamese prices or costs for the industry under investigation in determining price comparability;

(ii) The importing WTO Member may use a methodology that is not based on a strict comparison with domestic prices or costs in Viet Nam if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that product.

(d) Once Viet Nam has established, under the national law of the importing WTO Member, that it is a market economy, the provisions of subparagraph (a) shall be terminated provided that the importing Member's national law contains market economy criteria as of the date of accession. In any event, the provisions of subparagraph (a)(ii) shall expire on 31 December 2018. In addition, should Viet Nam establish, pursuant to the national law of the importing WTO Member, that market economy conditions prevail in a particular industry or sector, the non-market economy provisions of subparagraph (a) shall no longer apply to that industry or sector.

7.175.
Provisions contained in Accession Protocols are binding upon the parties and are therefore treaty text to be interpreted pursuant to customary rules of interpretation, in particular Articles 31 and 32 of the Vienna Convention. By virtue of paragraph 2 of Viet Nam's Accession Protocol, the commitment contained in paragraph 255 of its Working Party Report is incorporated by reference into the Accession Protocol and is therefore treaty language. In contrast, paragraph 254 is not referred to in Viet Nam's Accession Protocol and, therefore, is not treaty text.252
7.176.
The introductory clause of paragraph 255 states, in relevant parts, that "Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") … shall apply … consistent with the following". This introductory clause is then followed by four sub-paragraphs, two of which – paragraphs (a) and (d) – deal with the treatment of imports from Viet Nam in anti-dumping proceedings.253 Hence, we understand that paragraph 255 of Viet Nam's Working Party Report confirms that Article VI of the GATT 1994 and the Anti-Dumping Agreement apply in anti-dumping proceedings involving imports from Viet Nam, subject to the provisions contained in sub-paragraphs (a) and (d).
7.177.
Pursuant to paragraph 255(a), other WTO Members may, if the producers under investigation cannot clearly show that market economy conditions prevail in the relevant industry, determine the normal value on a basis other than domestic prices or costs in Viet Nam.254 Thus, the derogation provided for under paragraph 255(a) is a limited one, which only concerns the determination of normal value, and does not extend to the determination of export price.
7.178.
We observe that the second Ad Note to Article VI:1 of the GATT 1994 contains a similar recognition of the difficulties which may exist in determining price comparability in the case of imports from a country which has a complete or substantially complete monopoly over its trade and where all domestic prices are fixed by the State.255 Like paragraph 255(a) of Viet Nam's Working Party Report, the Ad Note allows investigating authorities to depart from a "strict comparison with domestic prices", thus suggesting that this provision provides flexibility with respect to the determination of normal value.256 In EC – Fasteners (China), the Appellate Body remarked that:

The recognition of special difficulties in determining price comparability in the second Ad Note to Article VI:1 does not mean that importing Members may depart from the provisions regarding the determination of export prices and the calculation of dumping margins and anti-dumping duties set forth in the Anti-Dumping Agreement and in the GATT 1994. While the second Ad Note to Article VI:1 refers to difficulties in determining price comparability in general, the text of this provision clarifies that these difficulties relate exclusively to the normal value side of the comparison. This is indicated by the operative part in the third sentence of this provision, which only allows importing Members to depart from a "strict comparison with domestic prices".257

7.179.
In our view, neither the second Ad Note to Article VI:1 of the GATT 1994 nor paragraph 255 of Viet Nam's Working Party Report can be read as allowing WTO Members to treat Viet Nam differently for purposes other than the determination of normal value.
7.180.
We further observe that, pursuant to subparagraph 255(a)(i), the importing WTO Member "shall use Vietnamese prices or costs" if the producers under investigation "clearly show" that market economy conditions prevail. If Vietnamese producers succeed in showing that market economy conditions prevail, the importing Member shall then use Vietnamese prices or costs when determining price comparability, i.e. in the determination of normal value. Conversely, when Vietnamese producers do not succeed in showing that market economy conditions prevail, the importing Member "may use a methodology that is not based on a strict comparison with domestic prices and costs in Viet Nam", pursuant to paragraph 255(a)(ii). In our view, a failure by Vietnamese producers to show that market economy conditions prevail in the industry producing the product under investigation only allows the importing Member to treat those producers differently with respect to the determination of normal value because the scope of the derogation conceded by Viet Nam in its Protocol of Accession concerns exclusively the determination of normal value. Hence, paragraph 255(a) of Viet Nam's Working Party Report does not authorize importing Members to treat Viet Nam differently for purposes other than the determination of normal value.
7.182.
Our reading of paragraph 255 of Viet Nam's Working Party Report comports with the Appellate Body's reading of virtually identical provisions contained in Section 15 of China's Protocol of Accession.258 In EC – Fasteners (China), in assessing the European Union's arguments on appeal under Articles 6.10 and 9.2 of the Anti-Dumping Agreement, the Appellate Body examined the extent to which China's Protocol of Accession allowed the European Union to apply different rules to China than to other Members in anti-dumping proceedings. The Appellate Body concluded:

In our view, therefore, Section 15 of China's Accession Protocol does not authorize WTO Members to treat China differently from other Members except for the determination of price comparability in respect of domestic prices and costs in China, which relates to the determination of normal value. We consider that, while Section 15 of China's Accession Protocol establishes special rules regarding the domestic price aspect of price comparability, it does not contain an open-ended exception that allows WTO Members to treat China differently for other purposes under the Anti‑Dumping Agreement and the GATT 1994, such as the determination of export prices or individual versus country-wide margins and duties.259

7.183.
The United States discusses in detail various provisions and Annexes of Viet Nam's Working Party Report, which, in its view, provide evidence that Viet Nam is an NME and, thus, justify USDOC's treatment of Vietnamese producers and exporters.260 The United States describes the specificities of market vs. non-market economy conditions, and submits that, in the latter, the role of the government in controlling resource allocation justifies the concerns expressed in Viet Nam's Working Party Report and, in turn, the application of a single government-entity rate or of a presumption that all companies in Viet Nam are controlled by the Government. According to the United States, the issue presented in the dispute is a "mixed question of fact and law" and "there is no clear dividing line between what amounts to 'factual' versus 'legal' support".261 The United States also points to Viet Nam's Constitution262 and to "many other examples [in Viet Nam's Working Party Report] confirming that Vietnam had not yet shifted completely away from a centrally planned economy to a market-based economy".263 The United States concludes that, given the presumption that, in NME countries, the government effectively controls resource allocations, "it would make no sense to automatically assign individual dumping margins to different sets of exports that are all associated with Vietnamese companies under the government's control".264
7.184.
Viet Nam submits that, while the Working Party Report describes the prevailing economic conditions present in Viet Nam at the time of the Report, nowhere in the Report or the Accession Protocol does Viet Nam make generalized concessions based on those economic conditions. Viet Nam argues that there is no textual basis in the Protocol which would allow Members to presume the existence of an NME-wide entity and that no legal basis can be assumed; hence, the Panel should conclude, like the Appellate Body in EC – Fasteners (China), that Viet Nam's Protocol does not contain an open-ended exception that allows WTO Members to treat Viet Nam differently from a market economy country. Viet Nam also submits that the United States' attempt to turn the issue into a question of facts is a distraction from the fundamental issue which is, as in EC – Fasteners (China), that an authority cannot use a presumption to apply a single rate to multiple entities because the covered agreements do not allow for the use of such a presumption.265
7.185.
We have examined the factual evidence submitted by the United States regarding the characteristics of NMEs' economic systems in general and Viet Nam's economy in particular, and the concerns that these characteristics may raise in the WTO system. We believe, however, that the factual evidence presented by the United States with the aim of showing that Viet Nam is an NME is not relevant to the resolution of the legal question we need to address, namely whether the United States is entitled to presume that, in Viet Nam, all companies belong to a single, Viet Nam-wide entity, and should be assigned a single rate.
7.186.
We recall that our task is to assess the legal question of whether the treatment of NMEs by the USDOC in anti-dumping investigations under the challenged measure is consistent with the requirements of the Anti-Dumping Agreement. The factual information provided by the United States concerning the economic specificities of NME countries in general and of Viet Nam in particular must be distinguished from the legal question as to how, under the Anti-Dumping Agreement, an investigating authority may use that information in an anti-dumping proceeding. Whether an investigating authority is allowed, in an anti-dumping proceeding involving an NME, to presume that all exporters belong to a single, government-wide entity is a legal question. In our view, the factual evidence tabled by the United States, cannot, in and of itself, justify a WTO Member treating Vietnamese exporters differently from any other Member's exporters in the absence of a clear textual basis in Viet Nam's Accession Protocol. Hence, we also disagree with the United States' proposition that Viet Nam's Working Party Report contains an "underlying" presumption that NME conditions prevail in Viet Nam, which, in turn, would, according to the United States, justify the application of a single "government-entity" rate.266
7.187.
We observe that, in EC – Fasteners (China), the Appellate Body drew a similar distinction, finding that:

the economic structure of a WTO Member may be used as evidence before an investigating authority to determine whether the State and a number of exporters or producers subject to an investigation are sufficiently related to constitute a single entity such that a single margin should be calculated and a single duty be imposed on them. It cannot, however, be used to imply a legal presumption that has not been written into the covered agreements.

… the evidence submitted by the European Union concerning NMEs in general and China in particular is not relevant to the legal question of whether the European Union is permitted to presume under Article 9(5) of the Basic AD Regulation that the State and the exporters are a single exporter for purposes of Articles 6.10 and 9.2 of the Anti‑Dumping Agreement. The review of this evidence reveals that it is possible that in specific circumstances an investigating authority may reach the conclusion that the State and certain exporters are so closely related that they constitute a single entity. However, the evidence submitted by the European Union cannot establish that the economic structure in China justifies a general presumption that the State and all the exporters in all industries that might be subject to an anti-dumping investigation constitute a single legal entity, where no legal basis for such a presumption is provided for in the covered agreements.267

7.188.
We find that the evidence submitted by the United States regarding the economic characteristics of NMEs in general and Viet Nam in particular cannot justify a general presumption that, in NME countries (including in Viet Nam), all exporters belong to a single, government-wide entity, where no legal basis for such a presumption is provided for in the covered agreements. We conclude therefore, that the evidence submitted to the Panel regarding the operation of NMEs in general and Viet Nam in particular is not relevant to the legal question of whether the United States is entitled to presume the existence of an NME-wide entity and assign a single rate to that entity.268
7.189.
The United States also argues that "price comparability", referred to in paragraph 255, is a central tenet of a dumping analysis.269 The United States appears to derive two main inferences from the reference to "price comparability": (i) the term "price comparability" must be understood as making reference to both normal value and export price because both are necessary to ensure appropriate price comparability; and (ii) the need to ensure appropriate comparability between normal value and export price, in turn, provides a reasonable basis for the USDOC to presume that Vietnamese companies belong to the Viet Nam-wide entity.270 The United States also argues that the presumption in paragraph 255 of the Working Party Report makes it "legally permissible" for the USDOC to presume government influence, which, in turn, also makes it legally permissible and in fact "the most logical step for purposes of price comparability", to presume that all companies belong to the Viet Nam-wide entity for purposes of the calculation of export price.271
7.190.
Leaving aside the seemingly circular arguments and inferences made by the United States, our reading of the term "price comparability" in paragraph 255 of Viet Nam's Working Party Report is narrower than the reading proposed by the United States. We agree that "price comparability" for the purpose of a dumping analysis involves a comparison between normal value and export price. However, while paragraph 255 of Viet Nam's Working Party Report acknowledges that there may be certain difficulties in determining price comparability in respect of imports from Viet Nam, we have already found that the text of paragraph 255 clarifies that these difficulties can relate only to "Vietnamese prices or costs" (sub-paragraph 255(a)(i)) / "domestic prices or costs in Viet Nam" (sub-paragraph 255(a)(ii)). Hence, as we stated above, these difficulties can relate only to the determination of normal value. Therefore, the reference to "price comparability" in paragraph 255 cannot be interpreted to also include the right to resort to a different methodology with respect to the determination of export price.
7.191.
The United States also submits that Viet Nam could have challenged, in the present dispute, the USDOC's decision to treat Viet Nam as an NME and/or the NME methodology used by the USDOC for calculating normal value, and the fact that it did not "supports the presumption" that each exporter is controlled by the government.272 In our view, the fact that Viet Nam did not challenge before the Panel the 2002 USDOC decision to treat it as an NME for the purpose of anti-dumping proceedings cannot imply any kind of acknowledgement, on the part of Viet Nam, regarding the existence of a "Viet Nam-wide entity" or regarding any right for the United States to presume the existence of such an entity under the covered agreements. Viet Nam had no reason to challenge before the Panel USDOC's decision to treat it as an NME and to use a different methodology to calculate normal value since this possibility is specifically provided for in paragraph 255(a) of its Working Party Report.
7.192.
Therefore, we also disagree with the United States that paragraph 255 "modifies" the obligations contained in Articles 6.10 and 9.2 of the Anti-Dumping Agreement.273 As we stated above, paragraph 255 of Viet Nam's Working Party Report only allows importing Members to derogate from the disciplines of the Anti-Dumping Agreement with respect to the methodology used to calculate normal value. However, nothing in paragraph 255 indicates that this provision provides for a derogation from the obligations to assign an individual dumping margin pursuant to Article 6.10 and an individual anti-dumping duty rate pursuant to Article 9.2 of the Anti-Dumping Agreement.
7.193.
We conclude, therefore, that the USDOC's policy or practice whereby, in anti-dumping proceedings involving NMEs, it presumes that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity is inconsistent "as such" with Article 6.10 and Article 9.2 of the Anti-Dumping Agreement.

7.4.2.4 Whether the NME-wide entity rate practice is inconsistent with Articles 9.4, 6.8 and Annex II of the Anti-Dumping Agreement

7.194.
We recall our finding above that, while the evidence on the record indicates that the USDOC often calculates the rate for the NME-wide entity based on facts available, it does not establish that the USDOC consistently uses a defined methodology to calculate the NME-wide entity rate or systematically bases that rate on facts available. Therefore, we concluded that Viet Nam had failed to establish that the USDOC's methodology used to calculate the NME-wide entity rate, in particular as it refers to the use of facts available, is a rule or norm that constitutes a measure of general and prospective application which can be challenged as such. This being the case, we find that Viet Nam did not establish that the alleged measure is "as such" inconsistent with Articles 6.8 and 9.4, and Annex II of the Anti-Dumping Agreement.

7.4.3 Claims with respect to the application of the NME-wide entity rate practice in the administrative reviews at issue

7.4.3.1 Introduction

7.195.
Viet Nam claims that the Viet Nam-wide rate applied in the fourth, fifth and sixth administrative reviews under the Shrimp order is inconsistent with Articles 6.10, 9.2, 9.4, 6.8 and Annex II of the Anti-Dumping Agreement. The United States requests that we reject Viet Nam's claims of inconsistency.
7.196.
Before addressing Viet Nam's claims of inconsistency, we set out the relevant facts concerning the three administrative reviews at issue. We will then examine whether Viet Nam has demonstrated that one or more of the measures at issue is inconsistent with the provisions it cites.

7.4.3.2 Factual background

7.197.
In the fourth administrative review, the USDOC started with the rebuttable presumption that "all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate".274 It selected two separate rate companies – Minh Phu and Nha Trang – for individual examination on the ground that they were "the largest exporters, by volume, of subject merchandise during the POR".275 The rate assigned to the separate rate companies was based on the simple average of the individual margins calculated for the two mandatory respondents and amounted to 3.92%.276 The USDOC further stated "we are applying a single antidumping rate, i.e. the Vietnam-wide entity rate, to all other exporters of subject merchandise from Vietnam" and set that rate at 25.76%. The USDOC did not explain how this rate was determined, other than to say that the rate assigned to the Viet Nam-wide entity is "the entity's current rate and only rate ever determined for the entity in this proceeding".277
7.198.
In the fifth administrative review, the USDOC recalled that "[i]n proceedings involving non-market economy ("NME") countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus, should be assigned a single antidumping duty deposit rate".278 It selected the three largest exporters as mandatory respondents, namely Camimex, Minh Phu and Nha Trang.279 Twenty-seven companies successfully met the criteria for separate rate status and received a separate rate of 1.03%, calculated on the basis of the weighted-average margins determined for Camimex and Minh Phu.280 With respect to non-separate rate companies, the USDOC observed that "no party has submitted evidence of the proceeding to demonstrate that … government influence is no longer present or that our treatment of the NME entity is otherwise incorrect. Therefore, we are assigning the entity's current rate of 25.76%, the only rate ever determined for the Vietnam-wide entity in this proceeding".281
7.199.
In the sixth administrative review, the USDOC again recalled that "[i]n NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate".282 It selected the two largest exporters – Minh Phu and Nha Trang – as mandatory respondents.283 The USDOC calculated a separate rate of 0.88%, corresponding to the simple average of the margins for the two mandatory respondents.284 With respect to some 30 companies that did not demonstrate eligibility for a separate rate, the USDOC noted that "no party has submitted evidence of the proceeding to demonstrate that such government influence is no longer present or that our treatment of the NME entity is otherwise incorrect. Therefore, we are assigning the entity rate of 25.76%, the only rate ever determined for the Vietnam-wide entity in this proceeding".285 The Viet Nam-wide entity rate of 25.76% was confirmed in the final determination.286
7.200.
To sum up, in each of the reviews at issue, the USDOC began with a rebuttable presumption that all shrimp exporters and producers in Viet Nam are operating units of a single, Viet Nam-wide entity. Exporters and producers that established sufficient independence from government control with respect to their export activities qualified for "separate rate status". In each review, the USDOC decided to limit the number of respondents for individual examination and selected the largest producers/exporters as mandatory respondents on the basis of USCPB data. Mandatory respondents were assigned an individual dumping margin calculated on the basis of a surrogate normal value that the USDOC determined for Viet Nam and each exporter's own export prices. Exporters with separate rate status which were not selected as mandatory respondents received the "separate rate", a rate based on the simple or weighted-average of the rate of the mandatory respondents in each review. Vietnamese companies which did not successfully establish independence from the Vietnamese Government, or which did not apply for separate rate status, were assigned the Viet Nam-wide rate of 25.76% in each review.

7.4.3.3 Whether the Viet Nam-wide entity rate applied in the administrative reviews at issue is inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement

7.4.3.3.1 Main arguments of the parties

7.4.3.3.1.1 Viet Nam

7.201.
Viet Nam argues that the USDOC's presumption of the existence of a Viet Nam-wide entity in the proceedings at issue does not comply with the plain language of Articles 6.10 and 9.2 of the Anti-Dumping Agreement. Viet Nam argues that, in the three administrative reviews at issue, the USDOC did not establish, as a factual matter, the existence of a single entity but, instead, relied on a presumption that all entities within Viet Nam belong to a single entity under the control of the government. Viet Nam refers to its arguments made in connection with its claim that the USDOC's practice of presuming that all exporters belong to a single, government-wide entity is, as such, inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement. According to Viet Nam, the USDOC's practice of presuming a Viet Nam-wide entity and assigning a single rate to that entity, as applied in the proceedings at issue, resulted in violation of the obligation, contained in Articles 6.10 and 9.2, that investigating authorities determine individual dumping margins and anti-dumping duties for exporters and producers.287

7.4.3.3.1.2 United States

7.202.
The United States argues that treating related companies in the covered reviews as a single exporter or producer for the purpose of determining a dumping margin is consistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement. According to the United States, the USDOC's conclusion that multiple companies in Viet Nam are part of a Viet Nam-government entity is based on a permissible interpretation of Articles 6.10 and 9.2 of the Anti-Dumping Agreement. The United States requests, therefore, that the Panel find that the USDOC's conclusions in the three administrative reviews at issue are not inconsistent with the Anti-Dumping Agreement.288

7.4.3.3.2 Evaluation by the Panel

7.203.
The present claims raise the issue of whether, in the fourth, fifth and sixth administrative reviews, the application by the USDOC of a rebuttable presumption that all shrimp producers/exporters in Viet Nam are operating units of a single, Viet Nam-wide entity, and the determination of a single dumping margin for, and application of, a single anti-dumping rate to that entity, is inconsistent with Articles 6.10 and 9.2 of the Anti-Dumping Agreement.
7.204.
We recall our finding above that, pursuant to Article 6.10, investigating authorities have an obligation to determine individual margins of dumping for each known producer/exporter. This obligation is subject to the exception contained in the second sentence of Article 6.10 and may be subject to other exceptions as well, as long as these exceptions are provided for in the covered agreements. We also found that, pursuant to Article 9.2, individual anti-dumping duties must be specified for each supplier, except where this is impracticable.289
7.205.
We further recall our factual finding that, in each administrative review at issue in the present dispute, the USDOC began with a rebuttable presumption that all shrimp exporters and producers in Viet Nam are part of a single, Viet Nam-wide entity, and determined a single dumping margin for and applied a single anti-dumping rate to that entity. We also found that, in order to be eligible for an individual rate, Vietnamese exporters and producers were required to pass the "separate rate test" by demonstrating independence from the Government of Viet Nam.
7.206.
Having concluded that the USDOC's policy or practice whereby, in anti-dumping proceedings involving NMEs, it presumes that all companies belong to a single, NME-wide entity, and assigns a single rate to that entity is inconsistent "as such" with Articles 6.10 and 9.2290, we do not see how the application of that practice in the three administrative reviews at issue could be found consistent with those same two provisions.
7.207.
We also recall our finding above that nothing in paragraph 255 of Viet Nam's Working Party Report, as incorporated into Viet Nam's Protocol of Accession, indicates that this provision provides for a derogation from the obligations to assign an individual dumping margin pursuant to Article 6.10 and an individual anti-dumping duty rate pursuant to Article 9.2 of the Anti-Dumping Agreement.291 These conclusions are applicable mutatis mutandis to our consideration of Viet Nam's "as applied" claims.
7.208.
Therefore, we conclude that the application by the USDOC, in the fourth, fifth and sixth administrative reviews, of a presumption of the existence of a Viet Nam-wide entity and application of a single rate to that entity is inconsistent Articles 6.10 and 9.2 of the Anti-Dumping Agreement.

7.4.3.4 Whether the Viet Nam-wide entity rate applied in the administrative reviews at issue is inconsistent with Article 9.4 of the Anti-Dumping Agreement

7.4.3.4.1 Main arguments of the parties

7.4.3.4.1.1 Viet Nam

7.209.
Viet Nam argues that the USDOC's failure to assign the Viet Nam-entity a rate calculated pursuant to the methodology provided for in Article 9.4 of the Anti-Dumping Agreement amounts to a violation of that provision. According to Viet Nam, in each of the three administrative reviews at issue, the USDOC limited the number of investigated companies, and then assigned two different rates to the companies not selected for individual examination, i.e. one rate to the so-called Viet Nam-wide entity, and a different rate to companies that qualified for a separate rate. Viet Nam submits that the difference between the two rates is substantial since the separate rate is based on a simple (in the fourth and sixth administrative reviews) or weighted (in the fifth administrative review) average of the rates the USDOC calculated for the mandatory respondents, whereas the Viet Nam-wide entity rate is based on facts available. According to Viet Nam, the text of Article 9.4 requires that, where an investigating authority has limited its examination, it must calculate an anti-dumping duty for all companies not individually investigated that is no greater than the weighted average margin of dumping of the selected companies, excluding rates that are zero, de minimis or based on facts available. Viet Nam agrees with the conclusions of the panel in US – Shrimp (Viet Nam) which found that "there is nothing in Article 9.4 suggesting that authorities are entitled to render application of an 'all others' rate conditional on the fulfilment of some additional requirement". Viet Nam submits that the Viet Nam-wide entity should have received a rate calculated pursuant to Article 9.4.292
7.210.
According to Viet Nam, the record before the Panel clearly shows that, in each administrative review at issue, the USDOC conducted a limited examination within the meaning of Article 6.10 of the Anti-Dumping Agreement, and that the Viet Nam-wide entity was never selected for individual examination. Viet Nam contends that, since it was not individually examined, the Viet Nam-wide entity should have received an anti-dumping duty rate calculated in a manner consistent with Article 9.4. Viet Nam also submits that, contrary to what is asserted by the United States, requests for reviews were made in the three administrative reviews at issue for companies presumed to be part of the Viet Nam-wide entity. According to Viet Nam, by arguing that Article 9.4 does not apply to the Viet Nam-wide entity because the entity was assigned a rate in previous segments of the proceedings, the United States attempts to read into Article 9.4 exceptions that do not exist. Viet Nam initially argued that a Member may not apply more than one rate to producers/exporters which were not individually examined. Viet Nam later acknowledged that it may be possible for an authority to assign multiple different rates to companies not individually examined, but maintained that all such rates must comply with Article 9.4.293 Viet Nam concludes that the USDOC's failure to assign to the Viet Nam-wide entity a margin consistent with Article 9.4 constitutes a violation of Article 9.4 of the Anti-Dumping Agreement.294

7.4.3.4.1.2 United States

7.211.
The United States submits that the rate assigned to the Viet Nam-wide entity is not an "all others" rate subject to the limit provided for in Article 9.4. In the United States' view, the Viet Nam-wide entity was not assigned a country-wide rate, but was individually examined and received its own rate, i.e. a rate based on facts available, after being included in the examination in the anti-dumping duty proceeding and failing to cooperate. This rate was assigned to the companies that had not claimed or established that they were free from government control and were thus properly considered to be parts of the single government entity that the UDSOC identified as an "exporter" or "producer" consistent with Article 6.10 of the Agreement. According to the United States, Article 9.4 does not obligate Members to replace an existing WTO-consistent rate that was individually determined for an entity that had failed to cooperate in the proceeding, with a different rate that is based on an average rate of producers/exporters that fully cooperated. The United States further submits that Article 9.4 does not impose an obligation to calculate a "single" anti-dumping duty for producers/exporters not individually examined, but, as explained by the Appellate Body in US – Hot Rolled Steel, this provision simply identifies a maximum limit, or ceiling, which authorities shall not exceed in establishing an "all others" rate. According to the United States, the Anti-Dumping Agreement does not require that a particular label be assigned to the rate in effect for the Viet Nam-wide entity. The rate applied to the Viet Nam-government entity is not inconsistent with the obligations in the Agreement because it was the rate in effect, and neither the Viet Nam-government entity nor any Vietnamese companies that were part of the entity requested that the rate be changed. Because neither the Viet Nam-wide entity nor any constituent parts of the entity requested a change to the existing rate of the Viet Nam-wide entity, the USDOC's decision to apply that rate in the three administrative reviews at issue was not inconsistent with Article 9.4 of the Anti-Dumping Agreement.295

7.4.3.4.2 Main arguments of the third parties

7.212.
China concurs with the panel in US – Shrimp (Viet Nam) that nothing in Article 9.4 entitles authorities to render application of an "all others" rate conditional upon the fulfilment of some additional requirements, such as a separate rate test.296 China opines that the Panel is not necessarily required to decide whether Article 9.4 requires a single "all others" rate, but will have to first determine whether the Viet Nam-wide entity was individually investigated. Should the answer be negative, the Panel could reach the conclusion that the United States acted inconsistently with Article 9.4 by assigning a rate based on facts available to the Viet Nam-wide entity.
7.213.
The European Union is of the view that Article 9.4 does not require that there be a single "all others" rate. According to the European Union, Article 9.4 contains a ceiling on the amount of any rate applied, not on the number of different rates applied.297
7.214.
Thailand submits that Article 9.4 does not require that there be a single "all others" rate provided that those rates are based on the different levels of cooperation established throughout the proceedings.298

7.4.3.4.3 Evaluation by the Panel

7.215.
Article 9.4 provides, in relevant part:

When the authorities have limited their examination in accordance with the second sentence of paragraph 10 of Article 6, any anti‑dumping duty applied to imports from exporters or producers not included in the examination shall not exceed:

(i) the weighted average margin of dumping established with respect to the selected exporters or producers …

provided that the authorities shall disregard for the purpose of this paragraph any zero and de minimis margins and margins established under the circumstances referred to in paragraph 8 of Article 6.

7.216.
We note the link between Articles 6.10 and 9.4. Under the general rule set forth in Article 6.10, the investigating authorities must normally calculate an individual margin for "each known exporter or producer" (hereafter "producer/exporter") of the product at issue pursuant to Article 2 of the Anti-Dumping Agreement.299 If the number of producers/exporters is too large for individual examination of each producer/exporter to be practicable, Article 6.10 allows the investigating authorities to "limit their examination" to a group of producers/exporters selected in accordance with the methods set out in Article 6.10 itself. In cases where the authority limits its examination under Article 6.10, an anti-dumping duty may nonetheless be applied to the producers/exporters not individually examined. Article 9.4 specifies that the rate of any such duty (commonly referred to as an "all others" duty rate) may not exceed a ceiling calculated pursuant to Article 9.4, i.e. the weighted average margin of dumping established for the selected, individually-examined producers/exporters, excluding zero, de minimis and facts available margins. It is noteworthy that, as the Appellate Body concluded in US – Hot Rolled Steel, Article 9.4 does not provide for a method to calculate an "all others rate", but establishes a "ceiling" for any such rate that may be applied to unexamined producers/exporters.300
7.218.
The main question we must address in order to resolve Viet Nam's claims under Article 9.4 of the Anti-Dumping Agreement is whether, in the three administrative reviews at issue, the United States was required by Article 9.4 to ensure that the duty rate applied to the Viet Nam-wide entity, and to any individual companies deemed to be part of that entity, did not exceed the ceiling calculated pursuant to that provision.
7.219.
In each of the requests underlying the administrative reviews at issue, domestic producers listed companies which had been found to be part of the Viet Nam-wide entity in the previous administrative review.302 This shows, in our view, that, in the fourth, fifth and sixth administrative reviews, US domestic producers requested a review of the rates applied to producers/exporters under the Shrimp order, including those applied to companies deemed to be part of the Viet Nam-wide entity. In addition, the notices of initiations for the three administrative reviews at issue indicate that each review was initiated with respect to most, if not all, Vietnamese producers/exporters, including those deemed to be part of the Viet Nam-wide entity.303 The preliminary and final determinations show that each review was conducted with respect to the companies for which the review had been initiated, i.e. including companies deemed to be part of the Viet Nam-wide entity.304 We note that, in the preliminary determination in the fourth administrative review, the USDOC explicitly stated that "the Viet Nam-wide entity is now under review".305 Finally, in each review, the USDOC assigned a cash deposit rate to the Viet Nam-wide entityandto the companies deemed to be part of that entity, i.e. the Viet Nam-wide entity rate of 25.76%.306 Hence, it is clear to us that the three administrative reviews at issue covered the Viet Nam-wide entity and the companies deemed to be part of that entity.307
7.220.
The evidence before the Panel further shows that in each review, the USDOC limited the number of producers/exporters for which it determined an individual margin, and that neither the Viet Nam-wide entity nor the companies deemed to be part of that entity were selected as mandatory respondents or otherwise individually examined under Article 6.10. In particular, the USDOC did not request information from the Viet Nam-wide entity or any of the companies deemed to be part of that entity in any of the reviews at issue.308 Hence, the facts before us show that, in the fourth, fifth and sixth administrative reviews, the Viet Nam-wide entity and the companies deemed to constitute it were not individually examined and individual margins were not determined for them.
7.221.
In light of the above, pursuant to Article 9.4, the Viet Nam-wide entity and the companies deemed to constitute that entity should have been assigned a rate not exceeding the ceiling calculated pursuant to this provision, namely a rate not exceeding the weighted-average margin of dumping established for the selected, individually-examined, exporters, excluding zero, de minimis and facts available margins.
7.222.
We recall that, in each of the three administrative reviews at issue, unexamined Vietnamese exporters fell into two