WT/DS162/R/Add.1 Page 27
less" price does not alter the conclusion that the 1916 Act is an anti‑dumping law and is subject to the requirements of Article VI of the GATT 1994 and the Anti‑Dumping Agreement. Just as a WTO Member can choose not to have a domestic anti‑dumping law, it can choose to restrict its ability to impose anti‑dumping duties beyond the limits imposed by the Anti‑Dumping Agreement. Any Member is free to include in its national law criteria and conditions stricter than those required by Article VI and the Anti‑Dumping Agreement. However, a Member may not, as the United States has done, depart from Article VI and the Anti‑Dumping Agreement to make it easier to impose anti‑dumping duties or to allow other remedies.
Japan is of the view that the text of the 1916 Act is unequivocal. That is why Japan believes that the United States intentionally avoids a textual interpretation of the 1916 Act. However, as the Appellate Body has made clear on numerous occasions, under the rules of treaty interpretation, the Panel's primary focus should be the text.
The United States considers that Japan makes several unsupportable statements with regard to the text of the 1916 Act. At one point, Japan states that "[t]he issue is not what US courts say […]." Japan even states that the text of the 1916 Act is "unequivocal," despite the fact that it later discusses the differing interpretations of that text reached by US courts in the Zenith line of cases and the preliminary decisions in Geneva Steel and Wheeling‑Pittsburgh.
In the United States' view, an examination of the text of the 1916 Act is sufficient to show that the 1916 Act is outside the scope of Article VI. First, at the very least, the 1916 Act can be seen from its text to be an "internal" law. It imposes damages on importers; it does not impose a border adjustment in the form of a duty on imported products. That aspect of the 1916 Act ‑ the nature of the measure imposed in application of the law ‑ removes any doubt as to whether Article VI governs the 1916 Act. An "internal" law is only subject to Article III of the GATT 1994. It cannot be subject to Article VI. Article VI only governs a Member's use of a border adjustment in the form of an anti‑dumping duty. Second, the text of the 1916 Act also indicates, very plainly, that it is not an anti‑dumping law or measure attempting to counteract injurious dumping based on findings of "dumping" and "injury". The true nature of the 1916 Act, as an anti‑trust statute, may be more difficult to discern simply from the text of the 1916 Act, but the case law interpreting the 1916 Act removes any doubt on this point.
The United States recalls that Japan attempts to characterise the 1916 Act as an anti‑dumping law not by addressing the distinctions between anti‑trust and anti‑dumping, but rather by arguing that the "essential concepts" of the 1916 Act and Article VI are "identical". According to Japan, both the 1916 Act and Article VI regulate international price discrimination. In making this argument, Japan never addresses the obvious absence of the essential Article VI requirement of "injury" from the 1916 Act. Furthermore, in attempting to characterise the 1916 Act as simply a law addressing international price discrimination, Japan tries to minimise the significance of the predatory intent element of the 1916 Act, among others. It states that "the addition of qualifying elements on the core features of the law does not alter the fundamental nature of the Anti‑Dumping Act of 1916 as an anti‑dumping law." Nevertheless, however it is characterised, the fact remains that to succeed under the 1916 Act, a plaintiff must plead and prove many elements that make it qualitatively different from a measure designed to remedy injurious dumping. Foremost among these elements is the required showing of predatory intent.
The United States notes that, essentially, Japan is reading into Article VI the limitation that all laws with any kind of international price discrimination component must conform to the anti‑dumping rules. If this were true, it would extend the anti‑dumping rules far into a realm which pre‑dated them and whose objectives, underlying principles and targeted conduct are quite different, namely, the realm of anti‑trust laws.