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Japan notes that, although the United States now asserts that the textual interpretation of the Act is important, the United States persists in arguing that the Panel is bound by one particular interpretation of the 1916 Act by one of its courts. This is inconsistent.
Japan also recalls the 1916 Act's proviso that its sanctions apply only when the dumping is undertaken with the intent to injure or destroy or prevent the establishment of a US industry. The dumping element is the exclusive criterion for determining whether the 1916 Act falls under the scope of Article VI of the GATT 1994 and the Anti‑Dumping Agreement. Injury is an additional element that is required in order to impose anti‑dumping duties when dumping exists. The 1916 Act indisputably is directed at protection of competitors rather than protection of competition. It is clear that the 1916 Act regulates dumping, not anti‑trust. The United States seems to argue that "intent to injure" is different from "injury to domestic industry", and therefore the 1916 Act is not an anti‑dumping law but an anti‑trust law. This is incorrect. "Predatory intent" is a concept that exists in anti‑trust laws; it is not a 1916 Act concept.
Japan also notes that in reply to Japan's questions, the United States concedes that anti‑dumping laws do not cease to be anti‑dumping laws merely because they contain "additional requirements [that] serve to limit, rather than expand, the availability of antidumping duties […]."
The United States submits that Japan's assertion that "predatory intent" is not a 1916 Act concept, is clearly contradicted not only by the US court decisions such as Zenith III and the legislative history they discuss, but even by the preliminary Geneva Steel and Wheeling‑Pittsburgh decisions on which Japan relies. Judge Sargus in Wheeling‑Pittsburgh characterised the intent required under the 1916 Act as a "predatory intent". And, Judge Benson in Geneva Steel, recognized that proof of a monopolistic "recoupment" scenario would be sufficient and relevant, but decided that other sorts of injurious "intent" might also be shown.
3. The distinction between anti‑dumping laws and anti‑trust laws
Japan contends that in the United States, as elsewhere, anti‑trust (or competition policy) statutes protect "competition, not competitors".89 In the landmark US anti‑trust case Brown Shoe, Supreme Court Chief Justice Earl Warren opined that the Cellar-Kefauver Amendment to the Clayton Act was created to "restrain mergers only to the extent that such mergers may tend to lessen competition."90 The Chief Justice looked to the legislative history of the Amendment and found that Congress had intended to protect competition in markets, not companies competing in the markets (much less domestic industries). In Brunswick91 the Supreme Court reaffirmed 25 years later that anti‑trust laws protect "competition not competitors"92.
89 Japan refers to Brown Shoe Co., Inc. v. United States, 370 US 294, p. 319 (1962) (hereinafter "Brown Shoe"), where the court upheld action to enjoin merger of two shoe corporations. Japan also refers to Brunswick Corp. v. Bowl-O-Mat, Inc., 429 US 477, p. 490 (1977) (hereinafter "Brunswick")
90 Japan refers to Brown Shoe, Op. Cit., p. 319.
91 Japan refers to Brunswick, Op. Cit., p. 488, where the court rejected as not cognizable under US anti‑trust law Pueblo Bowl-O-Mat's claim of injury (reduced profits) due to Brunswick's purchase and reinvigoration of a near-bankrupt competitor.
92 Japan refers to ibid.