Abbreviation	Description
Anti‑Dumping Agreement	Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
Corus Staal opinion	United States Court of International Trade, Corus Staal BV v. United States et al., 515 F.Supp.2d 1337, Slip Op. 07-140, Court No. 07-00270 (19 September 2007), Opinion of Judge Judith M. Barzilay (Panel Exhibit VN-36)
DSB	Dispute Settlement Body
DSU	Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994	General Agreement on Tariffs and Trade 1994
NAFTA	North American Free Trade Agreement
NME	non‑market economy
NME‑wide entity rate	an anti‑dumping rate applied by the USDOC, which is assigned to certain producers/exporters who do not demonstrate sufficient independence from government control in anti‑dumping proceedings involving imports from NMEs
Panel Report	Panel Report, United States – Anti‑Dumping Measures on Certain Shrimp from Viet Nam, WT/DS429/R
SAA	Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316 (1994), reprinted in 1994 USCAAN 3773, 4040; Public Law No. 103‑465, 108 Stat. 4809 (1994), codified under United States Code, Title 19, Section 3501
Section 123 of the URAA	a mechanism for US authorities to make changes in USDOC (or other agency) regulations or practices to render them consistent with DSB recommendations and rulings, codified under United States Code, Title 19, Section 3533 (Panel Exhibit US-10)
Section 129 of the URAA	a mechanism used by US authorities to implement DSB recommendations and rulings concerning anti‑dumping and countervailing duty actions, codified under United States Code, Title 19, Section 3538 (Panel Exhibit VN‑31)
Section 129(c)(1)	Section 129(c)(1) of the Uruguay Round Agreements Act, codified under United States Code, Title 19, Section 3538
Shrimp	USDOC anti-dumping proceedings in Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, Case No. A-522-802
SLA 2006	Softwood Lumber Agreement between the Government of Canada and the Government of the United States of America (12 October 2006), contained in documents WT/DS236/5, WT/DS247/2, WT/DS257/26, WT/DS264/29, WT/DS277/20, and WT/DS311/2
SLA 2006 Notification	United States – Reviews of Countervailing Duty on Softwood Lumber from Canada, Notification of Mutually Agreed Solution (12 October 2006), contained in documents WT/DS236/5, WT/DS247/2, WT/DS257/26, WT/DS264/29, WT/DS277/20, and WT/DS311/2
Tembec opinion	US Court of International Trade (USCIT) in Tembec, Inc. et al. v. United States et al., 441 F. Supp. 2d 1302, Slip Op. 06-109, Court No. 05-00028 (21 July 2006), Opinion per curiam (Panel Exhibit VN‑37)
URAA	Uruguay Round Agreements Act, Public Law No. 103-465, 108 Stat. 4838, codified under United States Code, Title 19, Section 3538
USCBP	US Customs and Border Protection
USCIT	United States Court of International Trade
USDOC	United States Department of Commerce
USITC	United States International Trade Commission
USTR	United States Trade Representative
Viet Nam-wide entity rate	a single anti-dumping duty rate imposed on all companies within Viet Nam
Working Procedures	Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010
WTO	World Trade Organization
WTO Agreement	Marrakesh Agreement Establishing the World Trade Organization

PANEL EXHIBITS CITED IN THIS REPORT

Exhibit No.	Description
US-10	Section 123 of the Uruguay Round Agreements Act, codified under United States Code, Title 19, Section 3533
US-18	USDOC, Purified Carboxymethylcellulose from the Netherlands: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Intent to Rescind, United States Federal Register, Vol. 77, No. 149 (2 August 2012), pp. 46024‑46030
US-19	USDOC, Certain Pasta from Italy: Notice of Preliminary Results of Antidumping Duty Administrative Review, Preliminary No Shipment Determination and Preliminary Intent to Revoke Order, in Part, United States Federal Register, Vol. 77, No. 150 (3 August 2012), pp. 46377-46385, unchanged in Vol. 78, No. 27 (8 February 2013), pp. 9364-9366
US-20	USDOC, Purified Carboxymethylcellulose from Finland; Notice of Preliminary Results of Antidumping Duty Administrative Review, United States Federal Register, Vol. 77, No. 152 (7 August 2012), pp. 47036-47043
US-80	Miscellaneous Trade and Technical Corrections Act of 2004, Public Law No. 108-429 (3 December 2004), Title II, Section 2006(a), 118 Stat. 2434, 2597 (partial document)
VN-05	USDOC, Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, United States Federal Register, Vol. 70, No. 20 (1 February 2005)
VN-24	US Department of Commerce 2009 Antidumping Manual, Chapter 10, Non‑Market Economies
VN-31	Section 129 of the Uruguay Round Agreements Act, codified under United States Code, Title 19, Section 3538
VN-32	Section 101(a)(2) of the Uruguay Round Agreements Act, codified under United States Code, Title 19, Section 3511(a)(2)
VN-33	Section 102(d) of the Uruguay Round Agreements Act, codified under United States Code, Title 19, Section 3512(d)
VN-34	Excerpts from Vol. 1 of the Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316 (1994)
VN-36	United States Court of International Trade, Corus Staal BV v. United States et al., Slip Op. 07-140, Court No. 07-00270 (19 September 2007), Opinion of Judge Judith M. Barzilay
VN-37	United States Court of International Trade, Tembec, Inc. et al. v. United States et al., Slip Op. 06-109, Court No. 05-00028 (21 July 2006), Opinion per curiam
VN-42	Summary chart of USDOC determinations issued under Section 129(c)(1) and certain United States Federal Register USDOC Section 129 determinations
VN-55	USDOC, Antidumping Proceedings: Calculation of the Weighted‑Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, United States Federal Register, Vol. 77, No. 30 (14 February 2012), pp. 8101-8114

CASES CITED IN THIS REPORT

Short Title	Full Case title and citation
Brazil – Retreaded Tyres	Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527
Canada – Wheat Exports and Grain Imports	Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004, DSR 2004:VI, p. 2739
Chile – Price Band System (Article 21.5 – Argentina)	Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513
China – Auto Parts	Appellate Body Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/AB/R / WT/DS340/AB/R/ WT/DS342/AB/R, adopted 12 January 2009, DSR 2009:I, p. 3
China – Auto Parts	Panel Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/R / WT/DS340/R / WT/DS342/R / Add.1 and Add.2, adopted 12 January 2009, upheld (WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, p. 119
China – Rare Earths	Appellate Body Reports, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/AB/R / WT/DS432/AB/R / WT/DS433/AB/R, adopted 29 August 2014
China – Raw Materials	Panel Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R / WT/DS395/R / WT/DS398/R / Add.1 and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, DSR 2012:VII, p. 3501
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 – IT Products	Panel Reports, European Communities and its member States – Tariff Treatment of Certain Information Technology Products, WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933
EC – Salmon (Norway)	Panel Report, European Communities – Anti‑Dumping Measure on Farmed Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1, DSR 2008:I, p. 3
EC and certain member States – Large Civil Aircraft	Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7
India – Patents (US)	Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, p. 9
Japan – Apples	Appellate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Korea – Commercial Vessels	Panel Report, Korea – Measures Affecting Trade in Commercial Vessels, WT/DS273/R, adopted 11 April 2005, DSR 2005:VII, p. 2749
US – 1916 Act (EC)	Panel Report, United States – Anti‑Dumping Act of 1916, Complaint by the European Communities, WT/DS136/R and Corr.1, adopted 26 September 2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, p. 4593
US – Carbon Steel	Appellate Body Report, United States – Countervailing Duties on Certain Corrosion‑Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
US – Carbon Steel (India)	Appellate Body Report, United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India, WT/DS436/AB/R, adopted 19 December 2014
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 – 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 and Anti‑Dumping Measures (China)	Appellate Body Report, United States – Countervailing and Anti‑Dumping Measures on Certain Products from China, WT/DS449/AB/R and Corr.1, adopted 22 July 2014
US – Countervailing Measures on Certain EC Products	Appellate Body Report, United States – Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, p. 5
US – Gambling	Appellate Body Report, United States – Measures Affecting the Cross‑Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)
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 (Article 21.5 – Argentina)	Appellate Body Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the DSU by Argentina, WT/DS268/AB/RW, adopted 11 May 2007, DSR 2007:IX, p. 3523
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 – Section 301 Trade Act	Panel Report, United States – Sections 301‑310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
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 – Shrimp II (Viet Nam)	Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS429/R and Add.1, circulated to WTO Members 17 November 2014
US – Softwood Lumber II	United States – Provisional Anti-Dumping Measures on Imports of Certain Softwood Lumber from Canada, DS247
US – Softwood Lumber III	United States – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada, DS236
US – Softwood Lumber IV	United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, DS257
US – Softwood Lumber V	United States – Final Dumping Determination on Softwood Lumber from Canada, DS264
US – Softwood Lumber VI	United States – Investigation of the International Trade Commission in Softwood Lumber from Canada, DS277
US – Softwood Lumber VII	United States – Reviews of Countervailing Duty on Softwood Lumber from Canada, DS311
US – Steel Safeguards	Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, p. 3117
US – Upland Cotton (Article 21.5 – Brazil)	Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted 20 June 2008, DSR 2008:III, p. 809
US – Wheat Gluten	Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, p. 717
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) (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) (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

World Trade Organization

Appellate Body

United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam

Viet Nam, Appellant

United States, Appellee

China, Third Participant

Ecuador, Third Participant

European Union, Third Participant

Japan, Third Participant

Norway, Third Participant

Thailand, Third Participant

AB-2015-1

Appellate Body Division:

Graham, Presiding Member

Bhatia, Member

Van den Bossche, Member

1 Introduction

1.1. Viet Nam appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam^{^[1]} (Panel Report). The Panel was established to consider a complaint by Viet Nam^{^[2]} with respect to certain anti‑dumping measures imposed by the United States in the context of the US anti‑dumping proceedings in Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam^{^[3]} (Shrimp), as well as with respect to certain US laws, and methodologies and practices of the US Department of Commerce (USDOC).

1.2. The USDOC initiated its Shrimp investigation in January 2004 and issued an anti-dumping order in February 2005.^{^[4]} At the time of the Panel proceedings, the USDOC had completed seven administrative reviews and conducted a first sunset review in which it determined that revocation of the anti-dumping duty order would likely lead to the continuation or recurrence of dumping.^{^[5]} In the Shrimp proceedings, the USDOC designated Viet Nam as a non‑market economy (NME). For this reason, the USDOC applied a rebuttable presumption that all companies within Viet Nam are essentially operating units of a single government‑wide entity and, thus, should receive a single anti‑dumping duty rate (Viet Nam‑wide entity rate). Vietnamese producers/exporters had to pass a "separate rate test" to receive a rate that was separate from the Viet Nam‑wide entity rate. Those producers/exporters that did not establish that they were separate from the Viet Nam‑wide entity received the Viet Nam‑wide entity rate.^{^[6]}

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

1.4. Before the Panel, Viet Nam made claims with respect to the USDOC's final determinations in the fourth, fifth, and sixth administrative reviews under the Shrimp anti-dumping order. Viet Nam also made claims with respect to the USDOC's likelihood‑of‑dumping determination in the context of the sunset review.^{^[7]} Additionally, Viet Nam brought "as such" claims with respect to the following measures:

a. the USDOC's "simple zeroing methodology"^{^[8]} as applied in administrative reviews;

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

c. Section 129(c)(1) of the US Uruguay Round Agreements Act^{^[9]} (URAA).^{^[10]}

1.5. The Panel Report was circulated to Members of the World Trade Organization (WTO) on 17 November 2014.^{^[11]} In its Report, the Panel found that:

a. Viet Nam had failed to establish that the simple zeroing methodology used by the USDOC in administrative reviews is a measure of general and prospective application that can be challenged "as such". Therefore, the Panel found that Viet Nam had not established that the USDOC's simple zeroing methodology in administrative reviews is inconsistent "as such" with Article 9.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and Article VI:2 of the General Agreement on Tariffs and Trade 1994 (GATT 1994)^{^[12]};

b. the United States acted inconsistently with Article 9.3 of the Anti‑Dumping Agreement and Article VI:2 of the GATT 1994 as a result of the USDOC's application of the simple zeroing methodology to calculate the dumping margins of mandatory respondents in the fourth, fifth, and sixth administrative reviews under the Shrimp anti‑dumping order^{^[13]};

c. the practice or policy whereby, in NME proceedings, the USDOC presumes that all producers/exporters in the NME country belong to a single, NME‑wide entity and assigns a single rate to these producers/exporters is inconsistent "as such" with the United States' obligations under Articles 6.10 and 9.2 of the Anti‑Dumping Agreement^{^[14]};

d. the United States acted inconsistently with Articles 6.10 and 9.2 of the Anti‑Dumping Agreement as a result of the USDOC's application, in the fourth, fifth, and sixth administrative reviews under the Shrimp anti‑dumping order, of a rebuttable presumption that all companies in Viet Nam belong to a single, Viet Nam‑wide entity and the assignment of a single rate to that entity^{^[15]};

e. Viet Nam had failed to establish the existence of a measure with respect to the manner in which the USDOC determines the NME‑wide entity rate, in particular, concerning the use of facts available. Therefore, the Panel found that Viet Nam had not established that the alleged measure is inconsistent "as such" with Articles 6.8 and 9.4 and Annex II to the Anti‑Dumping Agreement^{^[16]};

f. the United States acted inconsistently with Article 9.4 of the Anti‑Dumping Agreement as a result of the USDOC's application to the Viet Nam‑wide entity of a duty rate exceeding the ceiling applicable under that provision in the fourth, fifth, and sixth administrative reviews under the Shrimp anti‑dumping order^{^[17]};

g. Viet Nam had failed to establish that the rate applied by the USDOC to the Viet Nam‑wide entity, in the fourth, fifth, and sixth administrative reviews under the Shrimp anti‑dumping order, is inconsistent with Article 6.8 and Annex II to the Anti‑Dumping Agreement^{^[18]};

h. Viet Nam had failed to establish that Section 129(c)(1) of the URAA (Section 129(c)(1)) precludes implementation of recommendations and rulings of the Dispute Settlement Body (DSB) with respect to prior unliquidated entries. Therefore, the Panel found that Viet Nam had not established that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti‑Dumping Agreement^{^[19]};

i. the United States acted inconsistently with Article 11.3 of the Anti‑Dumping Agreement as a result of the USDOC's reliance on WTO‑inconsistent margins of dumping or rates in its likelihood‑of‑dumping determination in the first sunset review under the Shrimp anti‑dumping order^{^[20]};

j. the United States acted inconsistently with Article 11.2 of the Anti‑Dumping Agreement, in the fourth and fifth administrative reviews under the Shrimp anti‑dumping order, as a result of its treatment of requests for revocation made by certain Vietnamese producers/exporters that were not being individually examined. The Panel did not make any findings with respect to Viet Nam's corresponding claim under Article 11.1 of the Anti‑Dumping Agreement^{^[21]}; and

k. the United States acted inconsistently with Article 11.2 of the Anti‑Dumping Agreement as a result of the USDOC's reliance on WTO‑inconsistent margins of dumping in its determination, in the fourth administrative review, not to revoke the Shrimp anti‑dumping order with respect to Minh Phu, and with respect to its determination, in the fifth administrative review, not to revoke the Shrimp anti‑dumping order with respect to Camimex. The Panel did not make any findings with respect to Viet Nam's corresponding claim under Article 11.1 of the Anti‑Dumping Agreement.^{^[22]}

1.6. On 6 January 2015, Viet Nam notified the DSB, pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), of its intention to appeal certain issues of law and certain legal interpretations developed by the Panel and filed a Notice of Appeal^{^[23]} and an appellant's submission pursuant to Rule 20 and Rule 21, respectively, of the Working Procedures for Appellate Review^{^[24]} (Working Procedures). Viet Nam's appeal is limited to the Panel's finding that Viet Nam had failed to establish that Section 129(c)(1) precludes implementation of recommendations and rulings of the DSB with respect to prior unliquidated entries, and the Panel's consequential finding that Viet Nam had not established that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti‑Dumping Agreement.^{^[25]} On 26 January 2015, the United States filed an appellee's submission.^{^[26]} On 29 January 2015, China, the European Union, and Japan each filed a third participant's submission.^{^[27]} On the same day, Norway notified its intention to appear at the oral hearing as a third participant.^{^[28]} On 26 February 2015, Ecuador and Thailand each notified its intention to appear at the oral hearing as a third participant.^{^[29]}

1.7. The oral hearing in this appeal was scheduled for 2 March 2015. On 27 January 2015, the Division received a letter from the United States requesting that the date of the oral hearing be changed due to certain logistical difficulties faced by the United States in securing reasonable hotel accommodation in Geneva during the week of 2 March 2015. On 29 January 2015, having considered the United States' request and comments received from Viet Nam and China, the Division informed the participants and third participants of its decision that the circumstances outlined by the United States did not, in this particular case, amount to "exceptional circumstances" that would result in "manifest unfairness" within the meaning of Rule 16(2) of the Working Procedures. Therefore, the Division decided not to change the date of the oral hearing. The Procedural Ruling is attached as Annex 2 to this Report.

1.8. The oral hearing in this appeal was held on 2 March 2015. The participants and third participants made oral statements and responded to questions posed by the Members of the Appellate Body Division hearing the appeal.

2 Arguments of the Participants and Third Participants

2.1 Claims of error by Viet Nam – Appellant

2.1. Viet Nam claims that the Panel acted inconsistently with Article 11 of the DSU because its interpretation and analysis of Section 129(c)(1) was not based on an objective assessment of the provision and its broader statutory context. Therefore, Viet Nam requests the Appellate Body to reverse the Panel's conclusion and recommendation in paragraph 8.1.h of the Panel Report and to complete the legal analysis and find that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti‑Dumping Agreement.^{^[30]}

2.2. Viet Nam contends that the Panel did not commit a simple error that had no bearing on its assessment. Rather, the Panel's errors led the Panel wrongly to forgo any consideration of the applicability and conformity of the measure at issue – Section 129(c)(1) – with the relevant covered agreements. Viet Nam highlights two such alleged errors.

2.3. First, Viet Nam claims that the Panel adopted an incorrect standard of review and misinterpreted the operation of US law. In doing so, the Panel departed from established principles of interpretation. In particular, the Panel erred in determining that it would not consider whether Section 129(c)(1) is inconsistent with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti‑Dumping Agreement unless Viet Nam could show that Section 129(c)(1) precludes WTO‑consistent implementation "with respect to all prior unliquidated entries".^{^[31]} According to Viet Nam, the Panel's framework suggests that "as such" claims require that a measure result in WTO‑inconsistent action not merely in some instances but, rather, in all instances in which it is applied. Therefore, the Panel was in error. Viet Nam adds that the Panel cited no legal basis for its analytical approach and, therefore, failed to offer "reasoned and adequate explanations and coherent reasoning" as required by Article 11 of the DSU.^{^[32]}

2.4. Viet Nam submits that the Panel's analytical framework also indicates that the Panel misunderstood operational aspects of the US retrospective duty assessment system, as well as the object and purpose of Section 129 of the URAA^{^[33]} as distinguished from other measures and actions that might result in WTO‑consistent action in relation to some prior unliquidated entries. In Viet Nam's view, the Panel appears to have concluded that Section 129 redeterminations are available to address entries made after the implementation by the US Trade Representative (USTR), while other measures are available to address all other prior unliquidated entries. Viet Nam argues that, as a matter of WTO implementation, Section 129 sets forth the legal authority under US law for the USDOC to issue a new, second determination to replace a WTO‑inconsistent determination. For Viet Nam, the question for the Panel should have been whether the other measures, which "might" allow WTO-consistent action in relation to prior unliquidated entries, may be applied in all circumstances with respect to such entries or whether certain unliquidated entries may only be reached by a redetermination – i.e. the type of redetermination authorized by Section 129. Viet Nam contends that the Panel's analysis reflects a misunderstanding concerning the operation of the US retrospective duty assessment system, as well as the role of Section 129 in relation to other provisions of US law.^{^[34]}

2.5. In making this argument, Viet Nam contends that there are three distinct categories of prior unliquidated entries under the US retrospective duty assessment system. Category 1 entries are those for which administrative determinations have been issued before the Section 129 implementation date. Category 2 entries are those for which no administrative determination has been issued prior to the Section 129 implementation date. Category 3 entries are those entered after the Section 129 implementation date. Viet Nam contends that the effect of Section 129 determinations is limited to Category 3 entries because of Section 129(c)(1). Viet Nam acknowledges that the other mechanisms put forward by the United States "might" have some bearing on Category 2 entries that have not yet been subject to a final administrative determination. However, in Viet Nam's view, the Panel disregarded the fact that Section 129 is the only provision of US law that addresses the situations in which a WTO determination of inconsistency requires a redetermination of an already issued determination. Hence, while it "might" be possible to render WTO‑consistent results for prior unliquidated entries covered by Category 2 that still require an administrative determination, this does not address the fate of Category 1 entries. Viet Nam submits that the Panel ignored these distinctions.^{^[35]}

2.6. Viet Nam challenges the adequacy of the Panel's examination of the alternative means of implementing DSB recommendations and rulings put forward by the United States. In particular, Viet Nam disagrees with the Panel's acceptance of the argument by the United States that the US Congress may adopt new legislation or amend existing legislation in a manner that will mean prior unliquidated entries are liquidated pursuant to a WTO-consistent methodology.^{^[36]} For Viet Nam, the fact that a WTO-inconsistency can be remedied through future legislation does not in any way address the issue of whether existing legislation is WTO-inconsistent. Viet Nam stresses that, under this rationale, no WTO-inconsistent practice could ever be found to be inconsistent "as such" because new legislation to eliminate the WTO-inconsistent practice would always be an available mechanism to cure the inconsistency. Hence, Viet Nam asserts that the Panel's reference to US legislation must be dismissed.

2.7. Viet Nam acknowledges that, depending on the effective date of the change in regulation or practice pursuant to Section 123 of the URAA^{^[37]}, prior unliquidated entries could benefit from the change in the regulation or practice if those prior unliquidated entries have not yet been subject to a final determination in an investigation or review. However, there is no authority under Section 123 for the USDOC to issue redeterminations applying the change in regulation or practice to entries that have already been subject to a final determination in an investigation or review. That is the sole domain of Section 129, which prohibits the application of a redetermination to prior unliquidated entries. Thus, while the USDOC might theoretically issue a redetermination under Section 123, the result is "meaningless" since Section 129(c)(1) prohibits application of the results of the redetermination to prior unliquidated entries.

2.8. Further, Viet Nam contends that, while there is the possibility of applying the new, changed WTO-consistent methodology to prior unliquidated entries that have not yet been subject to a review, prior unliquidated entries already subject to a final determination in an investigation or review are not eligible for a subsequent annual review. Rather, for these entries to benefit from a new WTO-consistent methodology, Viet Nam insists that it is necessary for the USDOC to make a redetermination, and the only authority for such a redetermination is the authority under Section 129 of the URAA.

2.9. In respect of the second alleged error, Viet Nam argues that the Panel erred because it failed to engage in a proper interpretive analysis of Section 129(c)(1) in the light of well-established principles of objective statutory interpretation. Had the Panel employed these principles, it may have viewed Section 129(c)(1) differently. Upon confronting silence in the statutory text with respect to prior unliquidated entries, the Panel effectively ended its analysis. In the view of Viet Nam, the Panel: (i) did not objectively seek to understand that silence through a closer examination of the context; (ii) applied the same flawed approach to that silence in reviewing authoritative guidance on the measure at issue; (iii) misconstrued USCIT judicial opinions; and (iv) did not undertake a holistic examination of the interpretive evidence before it. These errors prevented the Panel from appreciating the broader significance of Section 129(c)(1) in terms of how the USDOC treats prior unliquidated entries, as well as the overall intent and effect of Section 129(c)(1) on USDOC actions generally. Hence, according to Viet Nam, the Panel acted inconsistently with its obligations under Article 11 of the DSU.

2.10. Viet Nam acknowledges that the Panel took the correct interpretive approach of first considering the statutory text of Section 129(c)(1) to determine whether its meaning was clear on the face of the text itself. On its face, Section 129(c)(1) explicitly limits any legal effect given to a Section 129 determination in relation to unliquidated entries in existence at the time that the USTR directs implementation by the administering authority. However, the Panel found significance in what Section 129(c)(1) did not explicitly say, specifically, that it was silent as to the fate of prior unliquidated entries. Viet Nam contends that the Panel's analytical approach focused on discerning whether the text of Section 129(c)(1) requires or precludes any particular action with respect to prior unliquidated entries.^{^[38]} Viet Nam argues that the Panel's conclusion that "Section 129 does not, on its face, have any effect with respect to prior unliquidated entries" was the result of a faulty analytical approach and, therefore, was not objective.^{^[39]}

2.11. While Viet Nam accepts that "the statutory text of Section 129 'does not, by its express terms, require or preclude any particular action with respect to prior unliquidated entries,' it does not 'necessarily [follow] that Section 129(c)(1) cannot be found to preclude implementation of DSB recommendations and rulings with respect to such prior unliquidated entries.'"^{^[40]} For Viet Nam, silence or omission in a statute is not a basis, in and of itself, for finding a statute to be clear on its face. Viet Nam contends that the Panel found to the contrary, at the very outset of its analysis, and that this finding impaired what remained of its consideration of the meaning of Section 129(c)(1). Viet Nam submits that the Panel had already reached its conclusion as to the meaning of the provision, and, therefore, its continued examination of the context, judicial opinions, and the history of application of the provision at issue presented by Viet Nam was not conducted on the basis of informing a conclusion, but of reconfirming a conclusion already rendered. In Viet Nam's view, this approach to the text was not objective and, therefore, was inconsistent with Article 11 of the DSU.

2.12. Viet Nam adds that it presented the Panel with the broader context and limitations of the URAA under which Section 129 was enacted in terms of the relationship between US federal law and the United States' WTO obligations. In particular, Viet Nam put forward Section 102(a) of the URAA^{^[41]}, the Statement of Administrative Action^{^[42]} (SAA), the USDOC's characterization of Section 129 of the URAA^{^[43]}, the United States' Charming Betsy doctrine^{^[44]}, two US Court of International Trade (USCIT) judicial opinions addressing Section 129 determinations^{^[45]}, and documentation of administrative actions under Section 129.^{^[46]} According to Viet Nam, this evidence illustrated a consistent pattern of failure to extend the effects of implementation to prior unliquidated entries. For Viet Nam, this context should have informed the Panel's analysis, consistent with accepted interpretive practices, but it did not.

2.13. Viet Nam further contends that the Panel misconstrued the USCIT's judicial opinions upon which Viet Nam relied. With respect to the opinion in Corus Staal BV v. United States^{^[47]} (Corus Staal opinion), Viet Nam contends that, under Section 129, any implementation is prospective, and a Section 129 determination is not a basis for relief from WTO-inconsistent duties on entries made before that implementation date, even for those entries that have not yet been liquidated.^{^[48]} Thus, in Viet Nam's view, the USCIT expressly confirmed that Section 129 requires the United States to engage in precisely the type of implementation that the Appellate Body criticized in US – Zeroing (Japan) (Article 21.5 – Japan). Viet Nam recalls the Appellate Body's explanation that "WTO‑inconsistent conduct must cease completely, even if it is related to imports that entered the implementing Member's territory before the reasonable period of time expired. Otherwise, full compliance with the DSB's recommendations and rulings cannot be said to have occurred."^{^[49]} Yet, according to Viet Nam, the Panel dismissed the probative value of the Corus Staal opinion, not for the significance of what the USCIT expressly said, but for the purported significance of what it did not expressly say. In this regard, Viet Nam highlights that the Panel found it "'noteworthy' that in Viet Nam's 'description of these US court rulings it purports to rely on, Viet Nam does not actually assert that Section 129 precludes refunds of duties with respect to prior unliquidated entries.'"^{^[50]}

2.14. As regards the opinion in Tembec v. United States^{^[51]} (Tembec opinion), Viet Nam noted the USCIT's finding that "section 129 cannot be read to imply authority for the USTR to order the implementation of a section 129(a) determination that does not result in at least partial revocation of a related [anti‑dumping], [countervailing duty], or safeguards order."^{^[52]} Viet Nam argues that the Panel incorrectly declined to accept the textual and contextual guidance Viet Nam claimed was present in Tembec v. United States because "[t]he Court expressly avoided deciding the issue of whether relief in the form of refunds of cash deposits would be available following issuance of a Section 129 determination containing a finding of threat of material injury replacing a prior, WTO-inconsistent, finding of present injury."^{^[53]} For Viet Nam, this was not an objective examination consistent with Article 11 of the DSU, but a "tailored analysis" to support the Panel's conclusion at the outset that the meaning of Section 129(c)(1) was clear on its face.^{^[54]}

2.15. In the light of the foregoing, Viet Nam submits that the Panel addressed the contextual evidence put forward by Viet Nam, if at all, by means of individual elimination. According to Viet Nam, the Panel's conclusion that "the pattern of Section 129 decisions could not 'in and of itself' demonstrate that USDOC legally cannot 'extend the benefits of implementation' (to use Viet Nam's formulation) to prior unliquidated entries, or that 'it does not establish' that Section 129(c)(1) has that effect", is not objective.^{^[55]} Viet Nam alleges that the Panel's approach is not based on a holistic assessment of all of the evidence presented to it and is, therefore, not consistent with the objective principles of statutory interpretation. Viet Nam contends that the Panel examined individual pieces of evidence, finding that they failed to contradict its prior conclusion, rather than examining the evidence as a whole and assessing how each piece reinforced the other. Had the Panel considered the contextual elements before it in unison, or holistically, it might have reached a different conclusion as to the meaning of Section 129(c)(1). Viet Nam claims that the Panel acted inconsistently with its obligations under Article 11 of the DSU by failing to do so.

2.16. Viet Nam explains that, given the erroneous analysis by the Panel of the application and effect of Section 129(c)(1), the Panel did not address whether Section 129(c)(1), as properly understood and interpreted, is WTO-inconsistent "as such". Viet Nam suggests that the Appellate Body has the information necessary to complete the legal analysis based on a correct understanding and interpretation of Section 129(c)(1). Therefore, Viet Nam requests the Appellate Body to complete the legal analysis and find that, in specific circumstances, prior unliquidated entries will always be denied the benefits of WTO implementation because of Section 129(c)(1), and not because of the operation of other provisions of US law. Based on this finding, Viet Nam requests the Appellate Body to find further that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement by requiring the USDOC to make administrative review determinations and to assess anti-dumping duties on prior unliquidated entries after the USTR directs implementation, notwithstanding that the elements needed for the United States to make a finding of injurious dumping and to levy duties against those entries as provided in the original determination are no longer present.

2.17. More specifically, Viet Nam claims that Section 129(c)(1) is inconsistent "as such" with Article 9.2 of the Anti‑Dumping Agreement because it prohibits the imposition and collection of the appropriate amount of anti-dumping duties on prior unliquidated entries and only permits the imposition and collection of the appropriate amount of anti-dumping duties on entries made after the USTR implementation date.^{^[56]}

2.18. Viet Nam further claims that Section 129(c)(1) is inconsistent "as such" with Article 9.3 of the Anti-Dumping Agreement because it precludes the USDOC from pursuing a refund action for prior unliquidated entries, even though such refund action is mandated by Article 9.3. According to Viet Nam, any Section 129 determination is effective only from the USTR implementation date, which excludes prior unliquidated entries.

2.19. In addition, Viet Nam alleges that Section 129(c)(1) is inconsistent "as such" with Article 11.1 of the Anti-Dumping Agreement because it requires continued application (to prior unliquidated entries) of anti-dumping duties even though the anti-dumping order has been revoked as a result of a USDOC finding of no dumping or subsidization, or a finding by the US International Trade Commission (USITC) of no injury. Yet, pursuant to Article 11.1, anti‑dumping duties may not be imposed in the absence of positive evidence of dumping or injury, the objective conditions required to impose an anti-dumping duty.

2.20. Finally, Viet Nam suggests that, consistent with the findings of prior panel findings, any violation of Article VI of the GATT 1994 or other provisions of the Anti-Dumping Agreement results in a violation of Article 1 of the Anti-Dumping Agreement.^{^[57]} Similarly, Article 18.1 of the Anti‑Dumping Agreement prevents WTO Members from taking any specific action against dumping of exports from another Member except in accordance with the provisions of the GATT 1994, as interpreted by the Anti-Dumping Agreement. Hence, Viet Nam argues that, as Section 129(c)(1) is inconsistent "as such" with Articles 9.2, 9.3, and 11.1 of the Anti-Dumping Agreement, it is also inconsistent "as such" with Articles 1 and 18.1 of the Anti-Dumping Agreement.

2.2 Arguments of the United States – Appellee

2.21. The United States argues that Viet Nam has failed to establish that the Panel breached its duty under Article 11 of the DSU when it found that Section 129(c)(1) does not prevent the United States from implementing recommendations and rulings by the DSB, including with regard to prior unliquidated entries.

2.22. As regards the nature of Viet Nam's claim under Article 11 of the DSU, the United States considers that the interpretation of the scope of the measure at issue under US municipal law is one of the facts to be assessed by a panel in the course of the proceedings. Having determined the facts, the panel must then proceed to employ those facts in addressing the legal issues of the applicability and conformity of the measure at issue with the covered agreements, including any necessary interpretations of the covered agreements. For these reasons, the United States agrees with Viet Nam that the type of arguments raised by Viet Nam involve a claim under Article 11 of the DSU.^{^[58]}

2.23. However, the United States disagrees with Viet Nam's assertion that it has shown that the Panel breached its duty under Article 11 of the DSU.^{^[59]} According to the United States, Viet Nam cannot support a claim under Article 11 of the DSU – alleging a failure to make an objective assessment of the factual record – based on evidence that was not on the record in the Panel proceedings.^{^[60]}

2.24. The United States adds that the mere fact that the Panel did not explicitly refer to Viet Nam's evidence of Category 1 entries in its reasoning is insufficient to support Viet Nam's claim of a violation under Article 11 of the DSU.^{^[61]} In any event, the United States notes that the distinction between Category 1 entries and other entries was not made before the Panel. Hence, Viet Nam cannot contend that the Panel breached Article 11 of the DSU by not considering new arguments on facts that were never presented to the Panel.

2.25. The United States also disagrees with Viet Nam's argument that the Panel applied an incorrect legal standard for the assessment of an "as such" claim, suggesting that Viet Nam takes the Panel's statements out of context. According to the United States, the Panel did not purport to set out a general standard of review for an "as such" claim. Rather, the Panel was properly engaged in a careful examination of Viet Nam's own theory, namely, that Section 129(c)(1) prevented the WTO-consistent treatment of prior unliquidated entries. Thus, in order to address Viet Nam's claim that Section 129(c)(1) "serves as an absolute legal bar to any refund of duties"^{^[62]} for prior unliquidated entries, the United States stresses that the Panel was within its discretion to rely on the impact of Section 123 of the URAA on certain types of entries (i.e. prior unliquidated entries for which no administrative review determination has been issued), which is wholly unaffected by Section 129(c)(1). This, combined with the fact that Viet Nam presented "no rationale" to the Panel as to why Section 129(c)(1) would serve as an "express prohibition" of WTO-consistent action to only a unique subset of prior unliquidated entries, disproves Viet Nam's theory and provides the proper context for the section of the Panel Report highlighted by Viet Nam. The United States also highlights that Viet Nam challenged only Section 129(c)(1), and not other provisions of US law and their impact on the ability of the United States to implement DSB recommendations and rulings. As such, the United States contends that Viet Nam cannot seek, on appeal, to expand the Panel's terms of reference to include an examination of other means that might allow WTO‑consistent action in relation to prior unliquidated entries and their alleged shortcomings.

2.26. The United States disputes Viet Nam's contention that Section 129 of the URAA is the "exclusive authority to implement adverse WTO determinations by means of a new administrative determination".^{^[63]} The United States also disagrees with Viet Nam's claim that, "because Section 129(c)(1) '[o]n its face, … explicitly limits any legal effect given a Section 129 determination in relation to [prior] unliquidated entries' Section 129(c)(1) is inconsistent with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the [Anti-Dumping] Agreement."^{^[64]} Instead, Section 129(c)(1) addresses the implementation of a determination made under Section 129 in response to DSB recommendations and rulings to unliquidated entries of the subject merchandise entered on or after the date that the USTR directs implementation. According to the United States, Section 129(c)(1) does not speak to other actions that the United States may take to comply with DSB recommendations and rulings.

2.27. The United States also points out that Viet Nam accepts that the statutory text of Section 129 supports the Panel's finding that the fact that "Section 129 may be the only explicit statutory provision governing the effective date of US Government determinations to implement DSB recommendations and rulings in our view cannot justify an interpretation of the statute … that is unsupported by its terms."^{^[65]} Nor does the text indicate that Section 129 is the exclusive mechanism for implementing DSB recommendations and rulings. Hence, for the United States, Viet Nam's conclusory argument does not support a finding that the Panel made an egregious error, breaching its duty under Article 11 of the DSU.

2.28. In sum, the United States argues that the Panel's conclusion that Section 129(c)(1) does not preclude WTO-consistent treatment of prior unliquidated entries rests upon the plain meaning of the text of Section 129(c)(1), a proper understanding of the statutory scheme in which Section 129(c)(1) operates, as well as findings regarding the SAA, US practice, and decisions from US domestic courts. The Panel's conclusion was also consistent with the panel report in US – Section 129(c)(1) URAA.

2.29. Hence, the United States refutes Viet Nam's claim that the Panel committed egregious error when it purportedly ended its analysis after finding "silence" in Section 129(c)(1) regarding prior unliquidated entries. To the contrary, the Panel found that the United States could address (and, in fact, has addressed) prior unliquidated entries though other mechanisms, thereby negating Viet Nam's claim that Section 129(c)(1) precludes the United States from implementing DSB recommendations and rulings with respect to prior unliquidated entries.^{^[66]} Thus, Viet Nam's arguments that the Panel failed to make an objective assessment under Article 11 of the DSU should fail.

2.30. In further support of its position, the United States contends that the phrase in the SAA – "relief available under subsection 129(c)(1)" – that Viet Nam relies on does not indicate that this relief would be exclusive. Rather, the SAA "plainly" indicates that relief under Section 129 is not necessarily exclusive, acknowledging that there may be ways to implement DSB recommendations and rulings besides through Section 129, such as through an administrative review.^{^[67]} The United States, therefore, submits that the Panel was correct in concluding that "[n]othing in the SAA suggests that Section 129(c)(1) concerns itself with in any way, or itself has any effect on, prior unliquidated entries."^{^[68]}

2.31. According to the United States, the fact that, in the SAA, Congress explained that Section 129 provides the USDOC with authority to ensure compliance as to a particular set of entries does not mean that Congress sought to preclude WTO-consistent action with respect to prior unliquidated entries. Moreover, the fact that only Congress and the executive branch of the US Government can implement DSB recommendations and rulings does not provide support for Viet Nam's claim that Section 129(c)(1) precludes WTO-consistent action as to prior unliquidated entries.

2.32. The United States contends further that US practice does not support Viet Nam's claim. First, Viet Nam's examples show only how Section 129 has been applied and do not reflect the other options that the United States may have to implement DSB recommendations and rulings. Second, the USDOC has modified its treatment of prior unliquidated entries in "numerous instances".^{^[69]} The United States emphasizes that the Panel objectively assessed this information and correctly concluded that US practice does not establish that the US Government is precluded from affording WTO-consistent treatment to prior unliquidated entries.^{^[70]}

2.33. The United States also avers that the Panel properly found that Viet Nam misrepresented the decisions of the USCIT, adding that these decisions do not support Viet Nam's claim that the Panel committed egregious error. The United States points out that the passages cited by Viet Nam from the USCIT's Corus Staal opinion and, in particular, the statement that "revocation of an anti-dumping order [under Section 129] applies prospectively on a date specified by the USTR", does not say that Section 129(c)(1) prevents WTO‑consistent liquidation of prior unliquidated entries.^{^[71]} Similarly, the United States contends that Viet Nam's reliance on the USCIT's Tembec opinion is based on a "fundamental misunderstanding" of the scope of determinations implemented pursuant to Section 129.^{^[72]} The United States asserts that the Panel correctly found that only determinations made and implemented under Section 129 are within the scope of Section 129(c)(1). In the view of the United States, the Panel correctly recognized that the USCIT's Tembec opinion merely confirms that Section 129 has limited effects and does not suggest that Section 129(c)(1) precludes US authorities from implementing with respect to prior unliquidated entries.^{^[73]}

2.34. The United States submits that the Panel conducted a holistic analysis and properly considered other US measures in its analysis. In particular, the United States points to the other mechanisms by which it could comply, and has complied, with DSB recommendations and rulings with respect to prior unliquidated entries. According to the United States, this disproves Viet Nam's claim that Section 129(c)(1) is a "legal bar" to the WTO-consistent treatment of prior unliquidated entries.^{^[74]} In this respect, and in response to questioning at the oral hearing, the United States observed that there is an inherent tension between Viet Nam's focus on the need for the United States to do a redetermination and the DSU, which states that the withdrawal of the WTO‑inconsistent measure is the preferred outcome.

2.35. Additionally, the United States highlights Section 123 of the URAA, explaining that Section 123(g) addresses changes in agency regulations or practice to render them consistent with DSB recommendations and rulings. The United States argues that the adoption of a change pursuant to Section 123 could result in WTO-consistent determinations in administrative reviews covering prior unliquidated entries. For example, the date on which a change is implemented under Section 123 could be before the implementation date of a determination made under Section 129. The United States insists that it has afforded WTO-consistent treatment to prior unliquidated entries, as the Panel found, and as Viet Nam's own evidence in this dispute demonstrates.^{^[75]} The United States points out that Viet Nam concedes on appeal that, "under certain factual scenarios, actions under … distinct provisions of U.S. law may intersect between the amendment of a regulation or practice under Section 123 on the one hand, and the application of the amended regulation or practice in the context of a Section 129 proceeding on the other."^{^[76]} According to the United States, this undermines the basis for Viet Nam's claimed error, as it recognizes that Section 129(c)(1) does not "serve as an absolute legal bar" vis-à-vis prior unliquidated entries.^{^[77]}

2.36. The United States disagrees with Viet Nam's assertion that Section 123 and administrative reviews cannot reach prior unliquidated entries for which an administrative determination has already been issued, i.e. Category 1 entries. The United States also contests Viet Nam's argument that the existence of Category 1 entries proves the WTO-inconsistency of Section 129(c)(1), highlighting that Section 129(c)(1) makes no distinction between what Viet Nam calls Category 1 and Category 2 entries.

2.37. The United States further opposes the premise of Viet Nam's distinction between Category 1 and Category 2 entries. The United States submits that, while Viet Nam considers Category 1 entries to be entries for which the administrative review process is completed, it fails to acknowledge that, where there has been an initial administrative determination, the prior unliquidated entries remain unliquidated for the very reason that the entries are subject to domestic litigation, and domestic litigation may result in further administrative proceedings. The United States explains that, under the US system, courts generally do not modify administrative determinations but, rather, if a challenge is successful, remand the matter for further administrative proceedings. The United States asserts that Viet Nam's acknowledgement of the availability of WTO-consistent treatment "in the context of a judicial remand" is fatal to Viet Nam's "artificial" category distinctions, and provides no basis for a finding that the Panel somehow erred in not finding such distinctions within the ambit of Section 129(c)(1).^{^[78]}

2.38. Even so, with respect to alternative means of implementation of DSB recommendations and rulings, the United States contends that it may afford WTO-consistent treatment to prior unliquidated entries through legislation. The US Congress may enact legislation that achieves compliance with respect to prior unliquidated entries, either through an act aimed directly at specific unliquidated entries, or through a change in the anti-dumping law that would impact unliquidated entries, for example, through the administrative review process, much like a Section 123 determination. The United States asserts that the fact that legislation can and has brought the United States into compliance with DSB recommendations and rulings is directly at odds with Viet Nam's central assertion, that Section 129(c)(1) is the sole mechanism by which the United States can come into compliance with DSB recommendations and rulings and, therefore, precludes the United States from bringing a measure into compliance with some future DSB recommendation and ruling vis-à-vis prior unliquidated entries. The United States clarifies that its argument is not that Section 129(c)(1) is WTO-consistent because Congress can change Section 129 so that it applies to prior unliquidated entries. Rather, the United States submits that, where action is to be taken in relation to prior unliquidated entries that are not addressed by action taken pursuant to administrative or other mechanisms, such action could be taken by means of legislation. The United States highlights that it did in fact take this route for implementation in the US – 1916 Act disputes.^{^[79]}

2.39. The United States submits that Section 123 and congressional action are only two mechanisms within a larger domestic scheme by which the United States maintains the discretion to bring itself into compliance with DSB recommendations and rulings. Thus, Viet Nam's attempts to have the Appellate Body analyse Section 129(c)(1) in isolation from other parts of this domestic scheme should be rejected. For the United States, the insistence by Viet Nam that the Panel should have engaged in a limited inquiry and ignored other relevant US laws is a position that is inconsistent with the basic principles under which the DSB examines "as such" challenges to Members' measures.

2.40. The United States stresses that the Panel properly found that Viet Nam had failed to establish its factual allegation that Section 129(c)(1) precludes implementation with respect to prior unliquidated entries. Thus, Viet Nam has no basis for any claim that the Panel committed egregious error in its objective assessment of Viet Nam's factual assertions. Accordingly, the United States posits that there is no occasion for the Appellate Body to complete the legal analysis with respect to Viet Nam's claim that Section 129(c)(1) is inconsistent "as such" with Articles 1, 9.2, 9.3, 11.1, and 18.1 of the Anti-Dumping Agreement.

2.41. In any event, the United States considers that Viet Nam's argument regarding completion of the legal analysis fails for three reasons. First, although Viet Nam contends that Section 129(c)(1) is inconsistent "as such" with the Anti-Dumping Agreement, that Agreement does not contain any implementation obligations, and any claims vis-à-vis the DSU would be outside the terms of reference applicable to this dispute. Second, the application of the correct standard for "as such" claims demonstrates that Section 129(c)(1) does not mandate WTO‑inconsistent action. Third, Viet Nam's argument impermissibly speculates as to how the United States will respond in the future to DSB recommendations and rulings.

2.42. With respect to the first reason, the United States asserts that Section 129 governs certain procedures for implementation of DSB recommendations and rulings, while the provisions of the Anti-Dumping Agreement cited by Viet Nam do not contain any affirmative obligations with respect to implementation of DSB recommendations and rulings. According to the United States, in the anti-dumping context, the DSU is the only WTO agreement that addresses Members' obligations regarding impl