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WT/DS162/R/Add.1 Page 8


The United States further argues that, under US law, it is an elementary principle of statutory construction that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."23  While international obligations cannot override inconsistent requirements of domestic law, "ambiguous statutory provisions […] [should] be construed, where possible, to be consistent with international obligations of the United States."24  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 United States Tobacco panel's finding that a domestic law susceptible of multiple interpretations would not violate a party's international obligations so long as one possible interpretation permits action consistent with those obligations.25


In the view of the United States, this principle applies with equal force in the instant case.  In the present dispute, Japan is not challenging a specific application of the 1916 Act.  Rather, it is challenging the mere existence of the 1916 Act.  Thus, for that challenge to succeed, Japan must demonstrate not only that the 1916 Act authorizes WTOinconsistent action, but that it mandates such action.  In other words, it must show that this legislation is not susceptible to an interpretation that would permit the US government to comply with its WTO obligations.


The United States asserts that Japan has failed to meet that burden.  The 1916 Act is clearly susceptible to an interpretation that is WTOconsistent and, in fact, all final judicial decisions that have considered the 1916 Act have interpreted it as such.26  Indeed, US courts have repeatedly admonished that the 1916 Act "should be interpreted whenever possible to parallel the unfair competition law applicable to domestic commerce."27  Interpreting the 1916 Act to parallel domestic unfair competition law is clearly consistent with WTO obligations particularly, Article VI of the GATT 1994 and the AntiDumping Agreement because the WTO does not govern competition laws.28  In addition, a law regarding imports that "parallels" a domestic law would not raise any national treatment concerns under Article III of the GATT 1994.  


The United States points out that the elements of the 1916 Act and the relevant case law, which demonstrate the antitrust nature and purpose of the Act are discussed more fully below.  The point here is that the statute is susceptible to an interpretation that is consistent with WTO obligations.  Again, because Japan has challenged the 1916 Act as such and not any specific application of the Act, Japan must demonstrate that there is no interpretation of the 1916 Act that would be WTOconsistent.  This has not been the case.  Not only have the US courts interpreted the 1916 Act consistently as an antitrust statute whose elements are not the same as the "dumping" and "injury" elements of the AntiDumping Agreement, but also any susceptibility that particular elements of a 1916 Act claim

23 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (hereinafter "Charming Betsy").

24 Footwear Distributors and Retailers of America v. United States, 852 F. Supp. 1078, 1088 (CIT), appeal dismissed, 43 F.3d 1486 (Table) (Fed.  Cir. 1994), citing DeBartolo Corp. v. Florida Gulf Coast Building and Trades Council, 485 U.S. 568 (1988).  The United States also refers to the Restatement (Third) of the Foreign Relations of the United States, s. 114 (1987).  

25 The United States refers to United States Tobacco, Op.Cit., para. 123.

26 In response to a question of Japan, the United States notes that in making this argument it is not implicitly admitting that the 1916 Act is capable of being interpreted in a manner that is WTO-inconsistent.

27 494 F. Supp. at 1223 (emphasis added by the United States).

28 In this regard, the United States notes that even Japan acknowledges that the Zenith III court "applied antitrust standards to determine liability".  Japan does not dispute that the WTO agreements do not prohibit antitrust measures.

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