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WT/DS162/R/Add.1 Page 106

procedures (assuming they are mandatory) must conform with the requirements of the covered agreements.  With regard to Article 18.4 of the AntiDumping Agreement, the United States notes that, although the language is not identical to Article XVI:4, there were similar provisions in the Tokyo Round Agreements on AntiDumping and Subsidies which have generally been interpreted as requiring the Parties to those agreements to adopt laws, regulations and procedures that permit them to act in conformity with their obligations under those Agreements.  The United States submits that Article 18.4 of the AntiDumping Agreement should be interpreted in the same way.


In reply to yet another question of the Panel to both parties regarding whether, in light of Article 18.4 of the AntiDumping Agreement, there are grounds under the WTO provisions relating to antidumping for making a distinction between mandatory and non-mandatory laws, Japan notes that each Member must conform its laws, regulations and administrative procedures to the provisions of the WTO agreements.  The United States has not done so and, thus, is in violation of Article 18.4.  The WTO obligation is "to ensure […] the conformity," by taking "all necessary steps, of a general or particular character."  Given the ordinary meaning of these terms in their context, and in light of their object and purpose, that a law provides for WTO-inconsistent action is sufficient, even if there is the possibility of WTO-consistent action.  This obligation, rather than the mandatory/discretionary dichotomy drawn from GATT 1947 precedent, should apply in the present dispute.


Japan argues that, in any case, the 1916 Act is mandatory.  Japan has demonstrated that the 1916 Act mandates action inconsistent with Article VI and the AntiDumping Agreement.  


The United States, in its answer to the Panel's question, argues that there is nothing inherent in the antidumping context that renders the generally applicable distinction between mandatory and nonmandatory legislation inapplicable.  The distinction in GATT 1947/WTO jurisprudence between discretionary and mandatory legislation is not based upon a particular provision of any WTO agreement, nor is it limited in its application to a particular WTO provision.  For example, this distinction has been applied in the Article III context and the Article VIII context.  It has also been applied in the context of Article XI356 and also, it appears, in the context of Articles I, II and X.357


According to the United States, this distinction is consistent with the presumption against conflicts between national and international laws.  It is both general international practice and that of the United States that statutory language is to be interpreted so as to avoid conflicts with international obligations.  In general:

"[a]lthough national courts must apply national laws even if they conflict with international law, there is a presumption against the existence of such a conflict.  As international law is based upon the common consent of the different states, it is improbable that a state would intentionally enact a rule conflicting with international law.  A rule of national law which ostensibly seems to conflict with international law must, therefore, if possible always be so interpreted as to avoid such conflict."358

Thus, GATT 1947 jurisprudence distinguishing between mandatory and discretionary legislation does no more than apply the general principle that there is a presumption against conflicts between national and international law.  If a law is susceptible to an interpretation that is WTOconsistent, there is a presumption that domestic authorities will interpret that law so as to avoid a conflict with WTO obligations.  This presumption may be seen as underlying the finding of the panel in United States – Tobacco that a domestic law susceptible of multiple interpretations would not violate a party's

356 The United States refers to the Panel Report on United States Restrictions on Imports of Tuna, dated 3 September 1991 (unadopted), BISD 39S/155.

357  The United States refers to the Panel Report on EEC Parts and Components, Op. Cit., paras. 5.255.26.

358 Oppenheim's International Law, 9th ed., pp. 8182 (footnote omitted by the United States).

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