WT/DS162/R/Add.1 Page 126
India does not agree with the US contention that the application of measures other than anti- dumping duties is justified on the grounds that the conduct to which the 1916 Act applies is defined in a manner which, while incorporating the essential elements of dumping, differs by the addition of one or more conditions. It is India's view that as long as the 1916 Act provides remedial action for dumping of products into the domestic market, it must be in conformity with the provisions of Article VI of the GATT 1994 and the Anti‑Dumping Agreement. Since this is not the case, the 1916 Act is inconsistent with the principles and objectives laid down in Article VI of the GATT 1994 and the Anti‑Dumping Agreement.
India is also of the view that the 1916 Act is inconsistent with Article VI:1 of the GATT 1994 and Article 3 of the Anti‑Dumping Agreement because it does not require there to be actual injury, let alone material injury, to the domestic industry as a precondition for taking action. It only stipulates that action under the 1916 Act can be taken as long as there is intent to injure the domestic industry. Moreover, the absence of administrative procedures within the 1916 Act means that no investigation conforming to the requirements of the Anti‑Dumping Agreement needs to be carried out when taking action under the 1916 Act. Thus, judicial decisions under the 1916 Act can be made without the procedural safeguards otherwise provided for in the Anti‑Dumping Agreement. Finally, it is India's view that the 1916 Act fails to respect a number of procedural and due process requirements as set forth in the Anti‑Dumping Agreement, inter alia including (i) the requirements that the competent authority verify the information given in any complaint before initiating an investigation; (ii) the requirement that notice be given to the government of the exporting country before such an investigation is started; (iii) the requirement that only a complaint supported by a minimum percentage of the domestic industry will be entertained; (iv) the possibility for the governments of exporting countries to make comments on the proposed findings; and (v) the requirement that the measures not be restrictive. The 1916 Act is therefore clearly violative of the procedural provisions of the Anti‑Dumping Agreement.
As regards the alternative US argument that the 1916 Act is not an anti‑dumping law at all, but is an anti‑trust law, India does not agree. As accepted by the United States, the 1916 Act clearly targets products which are being sold within the United States allegedly at a price substantially less than the actual market value or wholesale price of the products. This is entirely in consonance with the definition of dumping given in Article VI, according to which dumping is said to occur when "products of one country are introduced into the commerce of another country at less than the normal value of products". Clearly therefore, the 1916 Act is a law which deals with "dumping" and as a result should be subject to the disciplines of Article VI of the GATT 1994 and of the Anti‑Dumping Agreement.
India further argues that the 1916 Act cannot escape the discipline of Article VI simply because it requires the prohibited conduct to be "common and systematic". Article VI applies whether the dumping is limited in occurrence or sporadic, and whether the dumping is frequent or systemic. Once it is established that the concerned rule or law, in this case the 1916 Act, is subject to Article VI, then the only remedy permitted is the imposition of anti‑dumping duties subject to a finding of dumping in accordance with the definition of Article VI and the existence of injury, or threat of injury, to the domestic industry. Thus, any anti‑dumping law which goes beyond providing relief in the form of anti‑dumping duties, such as the 1916 Act, is inconsistent with the GATT 1994.
Finally, India recalls the US argument that the US courts' interpretation of the 1916 Act is dispositive as a factual matter of the nature of 1916 Act and that the Panel cannot depend upon its own interpretation. In this connection, India would simply like to invite the attention of the Panel to the Appellate Body’s decision in India – Patents.398
398 India – Patents, Op. Cit., paras. 65-66.