WT/DS162/R/Add.1 Page 24
The United States argues that, in contrast, under the 1916 Act, mere dumping is not enough.74 The complainant must show price discrimination which is common and systematic as well as substantial, and the complainant must demonstrate a predatory intent.75 There is also no requirement that actual or threatened "material injury" to a domestic industry be shown. The complainant instead is required to show damages to its business or property. Thus, while an importer may violate the 1916 Act, it cannot be said that the same facts would satisfy the requirements for the imposition of anti‑dumping duties.
In response to a question of the Panel regarding which criteria other than the "commonly and systematically" and "price substantially below" requirements are different from the Article VI definition of dumping, the United States notes that the 1916 Act addresses a particular type of price discrimination, namely, predatory pricing. For that reason, the price discrimination test in the 1916 Act includes not just the language quoted by the panel, but also the additional language describing the predatory intent that is required to be shown.
The United States concedes that the 1916 Act, like the Article VI definition of dumping, requires a showing that the product at issue has been sold in the United States at a price that is lower than the price at which that product has been sold abroad. However, the US price and the foreign price under the 1916 Act are not the same as the US price and the foreign price under the Article VI definition of dumping. The basic differences are as follows:
As to the US price, the 1916 Act provides only that the US price is the "price" at which the product at issue is imported or sold "within" the United States. In contrast, the US price found in the Article VI definition of dumping, as further described in Article 2 of the Anti‑Dumping Agreement, is normally the price in the United States that is "made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time" as the price used for the foreign price, known as "normal value," with "[d]ue allowance […] made […], on its merits, for differences which affect price comparability, including differences
74 The United States notes, in addition, that neither the heading of the 1916 Act nor its text uses the word "dumping".
75 In response to a question of Japan regarding whether the United States would still consider Title VII of the Tariff Act of 1930 to be an anti‑dumping law within the meaning of Article VI and the Anti‑Dumping Agreement if the phrases "commonly and systematically" and "substantially" were added to the pertinent paragraph of Section 731, the United States notes that the hypothetical amendment would not seem to remove that law, as amended, from the coverage of Article VI. According to the United States, it would still be an anti‑dumping law, as it requires findings of "dumping" and "injury," and it would still impose a border adjustment in the form of a duty. A Member may impose, as some Members currently do, requirements for the imposition of anti‑dumping duties which go beyond the minimum requirements of "dumping" and "injury" set forth in Article VI, provided that those additional requirements serve to limit, rather than expand, the availability of anti‑dumping duties, without necessarily removing the law from the coverage of Article VI. In response to a follow-up question of Japan regarding whether the answer would be the same if the requirement of intent is further added, the United States notes that, if the hypothesized intent is simply an intent to "dump" and cause "injury" within the meaning of Article VI, then the hypothesized law would seem to remain within the coverage of Article VI for the reasons discussed above. If the hypothesized intent is a predatory intent, the answer depends on how the inquiry into predation is incorporated into the law. If, for example, the law now required a finding of injury to competition instead of a finding of "injury" within the meaning of Article 3 of the Anti‑Dumping Agreement, it would no longer seem to be an anti‑dumping measure governed by Article VI. If, on the other hand, the law somehow retained the finding of "injury" within the meaning of Article 3 of the Anti‑Dumping Agreement and did not require any finding of injury to competition, it would seem to remain within the coverage of Article VI for the reasons discussed above.