It's Baaaack: Zeroing, the US Department of Commerce, and US‒Shrimp II (Viet Nam)

Abstract

AbstractIn its Final Modification for Reviews the US DOC announced on 14 February 2012 that it would cease the use of zeroing in the calculation of anti-dumping (AD) margins in all reviews as of 16 April 2012. However, it did not pertain to targeted dumping. In its Final Rule of 22 April 2014, it codified substantial discretion in calculating AD duties, including the use of zeroing, in targeted dumping. Thus the panel in US‒Shrimp II (Viet Nam) erred in not finding ‘as such’ inconsistency by the US with the AD Agreement, despite this not being a targeted dumping complaint. Given the record of the US in complying with zeroing petitions, it should have incurred the burden of proof, which is not satisfied by these pronouncements. Market structure should be used by panels in ‘as applied’ inconsistency determinations. Viet Nam should have included an Article 3 violation in its complaint.