WT/DS162/R/Add.1 Page 127
2. Violation of Article III of the GATT 1994
Regarding the requirement of national treatment under Article III of the GATT 1994, India notes that the United States has argued that the 1916 Act is the equivalent of the Robinson-Patman Act. India considers that these two Acts establish two different regimes for pursuing claims against imported products and domestic products, respectively. The United States has, however, argued that treatment under the 1916 Act in certain aspects is more favourable than under the Robinson-Patman Act. But a comparison of these Acts and their operation reveals the following differences:
Bringing a 1916 Act claim is easier than bringing a Robinson-Patman Act claim because of the differing pleading requirement;
establishing and winning a 1916 Act claim is easier than establishing a Robinson-Patman Act claim because the standards for obtaining relief under the 1916 Act are much lower than those for obtaining relief under the Robinson-Patman Act;
the conduct subject to penalties under the 1916 Act exceeds the conduct under the Robinson-Patman Act; and
because a plaintiff can more easily prove a violation of the 1916 Act than of the Robinson-Patman Act, a domestic competitor can more easily impose significant litigation costs and business burdens on foreign producers than on domestic competitors.
India further argues that, even if the US argument that the 1916 Act is more favourable in certain respects is true, it is not justified. As ruled by the GATT 1947 Panel in United States – Section 337, a more favourable treatment of imported products in some areas cannot be justified by less favourable treatment in other areas. Moreover, whether any less favourable treatment has actually been suffered in a particular instance is irrelevant. In EEC - Oilseeds, the GATT 1947 panel held that a regulation which does not necessarily discriminate against imported products, but is capable of doing so, is violative of Article III of the GATT 1994. The comparison of the 1916 Act and the Robinson-Patman Act shows that imported products could get less favourable treatment under the regime of the 1916 Act than domestic products. Therefore, the 1916 Act should be held to be violative of Article III of the GATT 1994.
In conclusion, it is India's view that the 1916 Act is a statute providing relief against alleged dumping and that it does not conform to the provisions of Articles III and VI of the GATT 1994 and those of the Agreement on Anti‑Dumping. The 1916 Act thereby nullifies and impairs the benefits accruing to the United States' trading partners under the above Agreements. India therefore urges the Panel to find the 1916 Act to be violative of these provisions and requests the Panel to recommend that the United States bring its domestic law in conformity with its obligations under the GATT 1994.