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WT/DS162/R/Add.1 Page 26

(b)

The 1916 Act requires a finding that the pricing at issue be undertaken with a specific predatory intent.  This predatory pricing requirement is similar to that found in Section 2 of the Sherman Act and in socalled primary line cases under the RobinsonPatman Act.83   

(c)

The 1916 Act applies to Articles of "like grade and quality", just as that term is used in the RobinsonPatman Act.84

(d)

The statute of limitations for bringing a lawsuit under the 1916 Act is the same as that under the Clayton Act and the RobinsonPatman Act, i.e. 4 years.85

(e)

The 1916 Act provides for enforcement through either a civil lawsuit brought by a private party before a US court or a criminal prosecution brought by the US Department of Justice.  These remedies mirror those available under the antitrust laws including the Sherman Act, the Clayton Act and the RobinsonPatman Act.

(f)

The issue of whether a private party has the requisite standing to bring a 1916 Act lawsuit is determined by reference to antitrust standing principles.86

(g)

The 1916 Act authorizes the award of treble damages to a successful private litigant.  This remedy is somewhat unusual under US civil law, but it is a common remedy for violations of US antitrust statutes.  Indeed, in the third paragraph of the 1916 Act, the US Congress basically replicated the thenexisting language of Section 4 of the Clayton Act87 and Section 7 of the Sherman Act88 which authorized treble damages for "any person who shall be injured in his business or property" by reason of any conduct proscribed by US antitrust laws.

(h)

With regard to its criminal provisions, the 1916 Act is virtually identical to, and specifies the same penalties as, the criminal provisions of the Sherman Act in force in 1916.

3.13

Japan considers that the addition of qualifying elements to the core features of the law does not alter the fundamental nature of the 1916 Act as a antidumping law.  The fact that the 1916 Act addresses only dumping that occurs "commonly and systematically" at a "substantially

83 The United States notes that neither of those Acts normally requires proof of intent, at least in civil cases.  There is an intent requirement in some antitrust (Sherman Act) criminal cases.  The United States refers to ABA, Antitrust Law Developments (Fourth), p. 66264.  

84 The United States refers to Zenith III, Op. Cit., p. 1223.  The United States recalls that the Zenith III court explained that "we find that the same standard of 'like grade and quality' limited product comparisons under section 2 of the Clayton Act prior to the RobinsonPatman amendments.  Since the Clayton Act was passed in 1914, the same standard is applicable under the Antidumping Act of 1916."  The United States refers to ibid., pp. 122627.

85 The United States refers to Helmac I, Op. Cit., pp. 56667, where, according to the United States, the court relied on the purpose of US Congress in enacting the 1916 Act to interpret the 1916 Act as having same statute of limitations as other antitrust statutes, where the 1916 Act did not set forth applicable statute of limitations.

86 The United States refers to, e.g., Isra Fruit Ltd. v. Agrexco Agr. Export Co., Op. Cit., pp. 98889; Jewel Foliage Co. v. Uniflora Overseas Florida, Op. Cit., p. 516; Schwimmer v. Sony Corp., Op. Cit., pp. 79697.

87 The United States notes that the relevant Clayton Act language can be found at 38 Stat. 731 (1914).

88 The United States notes that the relevant Sherman Act language can be found at 26 Stat. 210 (1890).  The US Congress later amended this part of the Sherman Act.  

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