WT/DS162/R/Add.1 Page 104
The United States also notes that Japan did not address the distinctions raised by the United States between this case and the measures and claims at issue in EEC ‑ Minimum Import Prices and United States ‑ Section 337. Rather, Japan cites a different panel report ‑ Japan ‑ Semiconductors ‑ for the proposition that, "in certain special circumstances such a soft instrument as administrative guidance could be regarded as a 'governmental measure' enforcing trade policies".
In the view of the United States, like EEC ‑ Minimum Import Prices and United States ‑ Section 337, the issues in Japan ‑ Semiconductors are distinguishable from this case. At issue in Japan – Semiconductors was whether the legal status of the practices in question rendered Article XI inapplicable. The panel concluded that:
"[…] the complex of measures exhibited the rationale as well as the essential elements of a formal system of export control. The only distinction in this case was the absence of formal legally binding obligations in respect of exportation or sale for export of semi-conductors. However, the Panel concluded that this amounted to a difference in form rather than substance because the measures were operated in a manner equivalent to mandatory requirements. The Panel concluded that the complex of measures constituted a coherent system restricting the sale for export of monitored semi-conductors at prices below company-specific costs to markets other that the United States, inconsistent with Article XI."352
The "complex of measures" in question included "such measures as repeated direct requests by MITI, combined with the statutory requirement for exporters to submit information on export prices, the systematic monitoring of company and product-specific costs and export prices and the institution of the supply and demand forecasts mechanism and its utilization in a manner to directly influence the behaviour of private companies"353.
The United States considers that it is obvious that the 1916 Act cannot be compared to the measures at issue in Japan ‑ Semiconductors or EEC ‑ Minimum Import Prices.354
L. VIOLATION OF ARTICLE XVI:4 OF THE WTO AGREEMENT AND ARTICLE 18.4 OF THE ANTI-DUMPING AGREEMENT
Japan contends that the United States is in violation of its obligations under Article XVI:4 of the WTO Agreement and Article 18.4 of the Anti‑Dumping Agreement. According to Article XVI:4 of the WTO Agreement:
"Each member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements."
Japan recalls that paragraph 4 of Article 18 of the Anti‑Dumping Agreement sets forth a similar obligation that applies specifically to obligations under the Anti‑Dumping Agreement:
"Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Member in question."
352 Japan – Semiconductors, Op. Cit., para. 117.
353 The United States refers to Japan – Semiconductors, Op. Cit., para. 117.
354 In this regard, the United States refers to its earlier arguments.