WT/DS162/R/Add.1 Page 105
In the view of Japan, these provisions clarify that the WTO agreements extend to all "laws, regulations and administrative procedures". Inconsistent future legislation is prohibited; inconsistent existing legislation must be amended so as to conform to the obligations under the WTO agreements.355
Japan asserts that the United States is in violation of each of these provisions because, as demonstrated above, it has failed to conform the 1916 Act to the obligations under the relevant provisions of the GATT 1994 and the Anti‑Dumping Agreement.
The United States considers that, because the 1916 Act is susceptible to an interpretation that is fully consistent with all US WTO obligations and, in fact, has been so interpreted to date, there is no requirement under Article XVI:4 of the WTO Agreement that the United States take action to change the law.
In response to a question of the Panel to the United States regarding how the obligations contained in Article XVI:4 of the WTO Agreement are transposed into the US legal order, the United States notes that when the United States prepared its negotiating positions in the Uruguay Round, this preparation included a review of whether US law could be affected by those positions or by the proposals made by other Uruguay Round participants. In addition, after the Uruguay Round Final Act the United States undertook a comprehensive review of US law to determine which laws, regulations or administrative procedures might need to be changed in order to comply with US obligations under the WTO Agreement (including Article XVI:4). Where a statutory change was necessary, it was proposed to Congress and enacted as part of the Uruguay Round Agreements Act, which was signed into law on December 8, 1994. All changes in regulations and administrative procedures that were necessary to bring the United States into conformity with its obligations under the WTO Agreement were described in the Statement of Administrative Action which was submitted by the executive branch and approved by Congress as part of the Uruguay Round Agreements Act.
In reply to the same question of the Panel, Japan states that, in the United States, there is no direct application of international obligations. This is especially true in the context of WTO obligations. The obligations are transposed if and only if the US Congress decides to do so in passing a new law or an amendment to an existing law which then is enacted into law by the President.
In response to another question of the Panel to both parties regarding whether the requirements of Article XVI:4 of the WTO Agreement differ from those under Article 18.4 of the Anti‑Dumping Agreement, Japan argues that they differ in two relevant respects. First, Article XVI:4 is more general in scope, applying to all WTO agreements, including the GATT 1994 and the Anti‑Dumping Agreement. In other words, Article 18.4 is reflective of the general obligation set out by Article XVI:4 as it applies to anti‑dumping. Second, in addition to the general obligation to "ensure the conformity" of laws, regulations and administrative procedures, Article 18.4 imposes an additional obligation to do so by "tak[ing] all necessary steps, of a general or particular character." These differences bolster Japan's view that the mere potential of WTO inconsistency is sufficient to establish a violation in the context of provisions relating to anti‑dumping.
The United States, in response to the same question, submits that, like any other US law, regulation or administrative procedure, under Article XVI:4, anti‑dumping laws, regulations and
355 Japan notes that, under the GATT 1947, existing laws, including the 1916 Act, were "grandfathered." Under the WTO agreements, in contrast, only specified laws are exempted. The United States did not specify the 1916 Act for exemption and, thus, it is not grandfathered. The only measure grandfathered by the United States was the Jones Act, relating to exclusion of foreign-built vessels in US commerce. Japan refers to the introductory language of the GATT 1994, para. 3(a).