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WT/DS162/R/Add.1 Page 107

international obligations so long as one possible interpretation permits action consistent with those obligations.359

3.14

The United States also notes that two cases cited by the Panel, EEC Parts and Components and EC – AntiDumping Duties on Audio Tapes in Cassettes Originating in Japan360,  support the conclusion that the 1916 Act is a nonmandatory measure and, therefore, the existence of the 1916 Act as such does not constitute a violation of any WTO obligation.   

3.15

The United States recalls that, in EEC Parts and Components, the panel noted that the anticircumvention provision at issue did not mandate the imposition of duties or other measures by the EEC Commission and Council; it merely authorized the authorities to take certain actions.361  The panel recalled that in a prior panel report adopted by the contracting parties (United States Superfund), the panel had concluded that "legislation merely giving the executive authorities the possibility to act inconsistently with Article III:2 cannot, by itself, constitute a violation of that provision."362  Thus, the panel concluded that the mere existence of the anticircumvention provision was not inconsistent with the EEC's obligations under the General Agreement.  

3.16

The United States points out that, similarly, the panel report in EC Audio Cassettes concludes that the regulatory provision at issue was nonmandatory because the term "normally" was ambiguous and therefore left room for the EEC to act in a consistent manner.363  The panel declined to base its finding upon the fact that obligations under the antidumping legislation were dependent on whether certain factual prerequisites were fulfilled.     

3.17

The United States argues that, likewise, the mere existence of the 1916 Act does not run afoul of any WTO obligations because the 1916 Act does not mandate that government authorities act in an inconsistent manner.  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.  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."364  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.  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.    

IV. Third party submissions

A. THE EUROPEAN COMMUNITIES

1. Violation of Article VI of the GATT 1994 and the AntiDumping Agreement

(a) The applicability of Article VI of the GATT 1994 and the AntiDumping Agreement

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

360 Panel Report on EC – AntiDumping Duties on Audio Tapes in Cassettes Originating in Japan, ADP/136 (unadopted), dated 28 April 1995 (hereinafter "EC - Audio Cassettes").

361 The United States refers to EEC – Parts and Components, Op. Cit., para. 5.25.

362 The United States refers to ibid., para. 5.25.

363 The United States refers to the Panel Report on EC – Audio Cassettes, Op. Cit., paras. 362364.

364 The United States refers to 494 F. Supp., p. 1223.

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