WT/DS162/R/Add.1 Page 13
Justice, an executive branch agency, has the discretion to decide whether or not to bring a criminal prosecution under the 1916 Act. In other words, while the 1916 Act authorizes the Department of Justice to bring a criminal prosecution, it does not mandate it. In fact, there is no record of the Department of Justice as having filed, or even considered, a criminal case under the law.
Japan maintains that, despite continued US protestations, the 1916 Act is a mandatory law. The United States cannot rebut the critical fact that the 1916 Act requires punitive action where a US court finds that the elements of the offence (the dumping element and the injury element) have been established. Since the 1916 Act clearly regulates dumping (international price discrimination), there is no room for interpretation in line with international obligation (in this case Article VI of the GATT 1994 and the Anti‑Dumping Agreement). Doctrines such as that established by Murray v. The Schooner Charming Betsy42 can provide no succour to the United States. The Charming Betsy doctrine stands for the proposition that where "fairly possible", courts should construe legislation to avoid conflicts with US treaty obligations. The doctrine does not apply to the present case for two reasons. First, the 1916 Act is clear; the court has no discretion under the 1916 Act. Once the elements of the Act are proven, the court must impose the statutory sanctions. The court lacks any discretion in this situation to fulfill the Charming Betsy directive that, "where fairly possible", courts will construe an Act of Congress so as not to conflict with a treaty of the United States. It is not "fairly possible" for a US court to construe the 1916 Act to conform to the United States' WTO obligations.43
Japan notes, second, that the Charming Betsy doctrine does not apply, because the Uruguay Round Agreements Act (hereinafter the "URAA" - the US implementing legislation) expressly precludes US courts from altering US laws to conform them to US WTO obligations. According to Section 102(a)(1) of the URAA:
"No provision of any of the Uruguay Round Agreements, nor the application of any such provision, to any person or circumstance, that is inconsistent with the law of the United States shall have effect."
According to Japan, this language is underscored by the decision of the US Court of Appeals for the Federal Circuit in Suramericana de Aleaciones Laminadas, C.A. v. United States where the court found that:
"The GATT is not controlling. […] The GATT does not trump domestic legislation; if the statutory provisions at issue are inconsistent with the GATT, it is a matter for Congress and not this court to decide and remedy." 44
Japan submits, finally, that regardless of these telling points, the Panel should reject the US invitation to mire itself in the various judicial opinions. Instead, the Panel should base its decision on the unambiguous text of the 1916 Act.
42 Japan refers to Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) (hereinafter "Charming Betsy").
43 Japan notes, in this context, that the United States attempts to characterize Japan's position on the mandatory/discretionary issue as being based on whether the judicial branch or the executive branch is enforcing the measure. This statement is not Japan's position. Japan's position is that neither the US executive branch nor US courts have any discretion in applying the WTO-inconsistent remedy that the 1916 Act mandates.
44 Japan refers to Suramericana de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 667-68 (Fed. Cir. 1992) (citations omitted by Japan).