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WT/DS162/R/Add.1 Page 21

particularly if other evidence (the statute's text and its real world effects) outweighs the prior contrary judicial interpretation of the statute.

3.14

The United States maintains its view that it is not the function of the present Panel to interpret US law.  The United States submits that it is not advocating either that the Panel accept its interpretation of the 1916 Act as a party in the present dispute.  It is the role of the Panel to determine as a matter of fact how the law is applied in the United States.  Because the 1916 Act is applied through the judicial branch, the Panel must look to the judicial interpretations.  Otherwise, the Panel runs the risk of basing its decision upon hypothetical facts if it should adopt its own interpretation of the 1916 Act that does not comport with how the law is actually applied in the United States.  It is not for the Panel to decide the manner in which it believes that the 1916 Act should be applied which would entail interpreting the Act itself.  Even if the Panel might disagree with how the courts have interpreted the text of the 1916 Act, it should not affect the Panel's decision in the present dispute.  In the US legal system, the 1916 Act means what the courts say it means, and this is the relevant fact for purposes of the present dispute.  

F. APPLICABILITY OF ARTICLE VI OF THE GATT 1994 AND THE ANTI-DUMPING AGREEMENT

1. Introduction

3.1

Japan considers that the 1916 Act is an antidumping statute and, thus, must comply with Article VI of the GATT 1994 and with the provisions of the AntiDumping Agreement.

3.2

Japan notes that, as indicated by its short-form title, the 1916 Act regulates dumping.  This fact is confirmed by the text of the Act, the conduct the Act targets and the effect and impact of the 1916 Act when applied.  Moreover, the fact that the 1916 Act is an antidumping law is further confirmed by its legislative history, US court decisions that have interpreted it and the views of the US executive branch, including the current Administration.  Apparently, only before the present Panel does the US executive branch argue that the 1916 Act is not an antidumping law.

3.3

The United States considers that Japan's formulation of the statute's legislative history and relevant case law is distorted and misleading.  A review of the relevant case law and the statute's legislative history demonstrates that the 1916 Act can be and, in fact, has been interpreted as a predatory pricing statute with antitrust objectives, not an antidumping measure within the purview of Article VI and the AntiDumping Agreement.

3.4

According to the United States, Article VI simply does not govern the 1916 Act.  Japan's various claims under Article VI and the AntiDumping Agreement therefore must be rejected.

2. The text of the 1916 Act

3.1

In the view of Japan, analysis of the text of the 1916 Act demonstrates that the Act regulates dumping.  The text of the Act provides as follows:

"It shall be unlawful for any person importing or assisting in importing any Articles from any foreign country into the United States, commonly and systematically to import, sell or cause to be imported or sold such Articles within the United States at a price substantially less than the actual market value or wholesale price of such articles, at the time of exportation to the United States, in the principal markets of the country of their production, or of other foreign countries to which they are commonly exported after adding to such market value or wholesale price, freight, duty, and other charges and expenses necessarily incident to the importation

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