WT/DS162/R/Add.1 Page 113
formulation of the rules laid down in that article. The working party, endorsing the views expressed by [the Subcommittee on Article 34 at the Havana Conference] agreed that measures other than compensatory anti‑dumping and countervailing duties may not be applied to counteract dumping or subsidization except in so far as such other measures are permitted under other provisions of the General Agreement."369
According to the European Communities, by expressly stating that there was no substantive change, the Working Party has made it quite clear that there was no intention, in changing the text of Article VI of the GATT 1947, to allow other remedies than duties against dumping.
The European Communities also points out that the Working Party further noted that it:
"[…] agreed that measures other than compensatory anti‑dumping and countervailing duties may not be applied to counteract dumping or subsidization except insofar as such other measures are permitted under other provisions of the General Agreement."370
The European Communities adds that, in doing so, the Working Party confirmed the "definite understanding" of the relevant Subcommittee of the Havana Conference, from which the text of Article VI was taken. Therefore, it results not only from the negotiating history of the GATT 1947, but also from subsequent interpretation that duties are the only authorized remedy to counter dumping practices under Article VI of the GATT 1994.
The European Communities argues, in addition, that the adoption of the WTO Anti‑Dumping Agreement has not changed the content of Article VI in respect of the limitation to duties because it includes no derogation or conflicting rule on this point. To the contrary, the WTO Anti‑Dumping Agreement, and specifically Article 18.1 thereof, does nothing but confirm Article VI in this respect. Therefore, it is sufficient to rely on Article VI to claim that the 1916 Act violates WTO rules by providing for remedies other than duties in order to counter dumping practices.
On the interpretation of the footnote to Article 18.1 of the Anti‑Dumping Agreement, the European Communities notes that the ordinary meaning of the footnote to Article 18.1 and of its predecessor in Article 16.1 of the Tokyo Round Anti‑Dumping Code is that the Anti‑Dumping Agreement does not prevent Members from taking appropriate action under other trade defence instruments provided for in the GATT 1994, such as countervailing duty action and safeguard action.
According to the European Communities, this interpretation is confirmed by the negotiating history. The factors taken into account by the negotiators in deciding to delete a corresponding provision when drafting the Havana Charter, and when amending the GATT 1947, were exactly the same. It is true that in the first case the negotiators used the phrase "other provisions of the Charter" whereas those in the second spoke of "other provisions of the General Agreement". However, it is clear that the Charter negotiators had in mind the Charter provisions that were incorporated in the General Agreement. The Report of the Working Party established by Sub-Committee C of the Third Committee of the Havana Conference further supports this conclusion. Paragraphs 3(iv) and 6 clearly show that the express prohibition of other measures against dumping was agreed to be unnecessary, removed and replaced by a statement to the minutes that other measures were not allowed because of concerns that some parties had about the implications for enforcing their rights under Articles 13
369 BISD II/41, 42, para. 12.
370 Reprinted in GATT, (1994), pp. 216-217.