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We can take the Americans to the WTO court – and win!
A leader of the Association of Seafood Exporters and Producers (VASEP) judges that Vietnam’s complaint to the WTO against US barriers to Vietnam’s shrimp has a good chance to succeed.
Since 2005, Vietnam’s shrimp exports to the United States have been subjected to anti-dumping duties. In that year, the US Department of Commerce, responding to a petition by the US shrimp industry, calculated that Vietnamese producers were ‘dumping’ their product into the American market, a finding that has been upheld by two subsequent ‘administrative reviews’ in the US.
Dr. Nguyen Huu Dung is a VASEP deputy chairman, and an expert on World Trade Organization (WTO) rules. Talking with VietNamNet, Dung emphasized that the WTO is a level playing field where all players must play by the rules. Members can appeal to the WTO if they see other members breaking the rules.
VietNamNet: What will happen after Vietnam files its complaint with the WTO about the three unreasonable practices the US has used against Vietnamese producers?
Mr. Dung: After Vietnam complains to the WTO’s Dispute Settlement Body, the two parties have sixty days to settle the issues through direct consultation.
After studying the US antidumping duty on warm water frozen shrimp, Vietnam has appealed on three points, the zeroing method used to calculate dumping margin; the compulsory security payment and method of defining the dumping margin for voluntary defendants; and the imposition of a country-wide rate.
If the US admits these calculation methods and regulations are unreasonable, the complaint will be settled and the US will have to stop using the unreasonable practices. Though few complaints at WTO are settled in the consultation stage, the situation may be different with the shrimp case. All the by other countries against the US relating to shrimp were ended in the consultation stage.
VNNet: Could you please tell us more about Vietnam’s complaints?
Mr. Dung: The zeroing calculation method, a practice that the US has been using regularly in many antidumping lawsuits, is particularly objectionable. The American Commerce Department just calculates dumping margins for products found to be higher than the “standard” price. But if related products have higher prices than the “standard” one, the margins are automatically listed as “zero,” not as negative.
It is clear that the zeroing calculation method results in a higher dumping margin. When Thailand, India and EU complained to the WTO about it, the US admitted it was wrong. However, a WTO decision is not automatically applied to all countries and so Vietnam is still subjected to the zeroing method.
In the second administrative hearing with Vietnamese shrimp exporters, the US still used the zeroing method to calculate duties. For example, they only selected two compulsory defendants for review and imposed the same rate of zero percent. Our other enterprises, the ones that were not chosen as compulsory defendants, should also have enjoyed the tax rate of 0 percent (which was the average of the duties levied on the two enterprises). However, the US, citing the zeroing method, imposed a 4.57 percent duty on the rest of our enterprises.
If Vietnam succeeds in its appeal, the US will have to pay back the duties it has collected from our Vietnamese exporters.
VNNet: Didn’t VASEP once appeal to the American Court of International Trade about the tax calculation method?
Mr. Dung: Yes, it is true that VASEP once sued DOC for the wrong method of calculating anti-dumping duties without success. However, the CIT is an American court, and of course it protects the US interests. The situation will be different when we bring the lawsuit to the WTO.
VNNet: Is it risky for Vietnam to bring a case to the WTO for the first time, though it does not yet understand international laws really well?
Mr. Dung: This will be an ‘exercise’ for government agencies. Vietnam didn’t join WTO just to wait for other countries to file complaints against it. Next we’ll have to defend our floating glass industry, and some others.
There is nothing to worry about. WTO has concluded that the US was wrong in applying the zeroing method in precedent cases. I can see high possibility of Vietnam winning the case.
If we need to hire lawyers, I think we should hire a non-US law firm.
VNNet: What’s the best time to file our complaint at the WTO, bearing in mind that the third and fourth US administrative reviews are coming up?
Mr. Dung: At any time, and the sooner the better. VASEP urged that the Government file a complaint in October 2008. The longer we delay, the more Vietnamese enterprises will suffer.
In the worst case, if the US refuses to accept a WTO judgment against it, we will calculate our losses caused by the US shrimp duties. Then we are entitled to retaliate, using other measures to make the US bear the same value of losses. Vietnam could impose penalty duties on any of our imports from the US. Why not on beef, for example?
Ha Yen
vietnnamnet
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