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the 1916 Act as an anti‑dumping law.72 For example, requiring the US price to be "substantially" less than the comparison price does not change the fundamental nature of the international price discrimination targeted.73 Likewise, whether the "injury" to the domestic industry is intentional or not, the fundamental requirement of injury to the US industry remains the same. The 1916 Act may reach only a subset of commercial instances of dumping - that is why the US Congress later passed other laws - but the Act provides for action against that subset and, thus, constitutes a remedy against dumping.
Japan argues, moreover, that if such additional qualifications could somehow change the fundamental nature of the law, then virtually no anti‑dumping law in the world could be considered an anti‑dumping law. Many national anti‑dumping laws vary from Article VI of the GATT 1994 and the Anti‑Dumping Agreement. These variations, however, do not change their fundamental nature as anti‑dumping remedies.
The United States submits that Japan cannot dispute that there are significant differences between the 1916 Act and the anti‑dumping rules. As a trade remedy, the anti‑dumping rules are triggered only in response to the practice of "dumping", i.e. a situation where an exporter sells its product abroad at lower prices than it does at home or at prices that are below cost, which causes "material injury" to producers of the product in the importing country. Once these facts are established, the investigating authorities may impose duties to offset prospectively the injurious dumping.
72 Japan argues that, just as a WTO Member can choose not to have a domestic anti‑dumping law, it can choose to limit its ability to impose anti‑dumping duties by including in its national law criteria and conditions stricter than those required by the GATT 1994 and the Anti‑Dumping Agreement. Thus, the fact that the 1916 Act addresses only dumping that occurs "commonly and systematically" at a "substantially less" price does not alter the conclusion that the Act is an anti‑dumping law and is subject to the requirements of Article VI of the GATT 1994 and the Anti‑Dumping Agreement.
73 Japan argues, moreover, that the Anti‑Dumping Agreement has an analogous concept. The Anti‑Dumping Agreement clarifies that insubstantial price differences - those that produce only de minimis dumping margins - do not constitute dumping. Japan refers to Article 5.8 of the Anti‑Dumping Agreement. The Anti‑Dumping Agreement thus includes the requirement that the margin be substantial, just like the 1916 Act.