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Japan argues that anti‑dumping statutes, on the other hand, protect domestic industries from the unfair trade practice of dumping by foreign competitors.93 For example, under Article VI of the GATT 1994, the Anti‑Dumping Agreement and the US Tariff Act of 1930, anti‑dumping duties cannot be imposed unless the dumping is causing material injury or threat thereof to (or is retarding the establishment of) a US industry. The International Trade Commission, in evaluating claims under the Tariff Act, follows the statutory test and bases its decision on whether there is material injury to the relevant US industry.94
Japan considers that, like the Tariff Act of 1930 and its predecessor, the Anti‑dumping Act of 1921, the 1916 Act was enacted to protect domestic industries from dumping by foreign companies. As discussed above, this is evident from the plain language of the statute, which forbids the dumping of products "with the intent of destroying or injuring an industry in the United States, or of preventing the establishment of an industry in the United States."95 The text of the 1916 Act text confirms that the Act protects domestic industries and this fact, in turn, confirms that the 1916 Act is an anti‑dumping law.
The United States notes that Japan draws a complete dichotomy between anti‑trust laws and their pursuit of consumer welfare, and trade laws and their focus on producer welfare in an apparent attempt to argue that any hint of US Congressional concern for the welfare of individual enterprises removes a law from the anti‑trust ambit. Such a dichotomy exaggerates and distorts reality. The United States agrees entirely that the principal aim of United States anti‑trust laws is to protect competition, not competitors or particular industries.96 However, while the purpose of many, if not most, anti‑trust laws is to preserve the competitive process in order to enhance economic efficiency and increase consumer welfare, it is also true that quite a number of anti‑trust laws, in the United States and other countries, may have additional purposes, including the protection of small enterprises or other individual competitors. Anti‑trust laws that pursue objectives other than just economic efficiency are not thereby deprived of their "anti‑trust" character.
The United States states that one example of alternative anti‑trust purposes can be found in the United States' Robinson‑Patman Act, where, in the "secondary line" context (in which certain distributors of a good receive less advantageous sales terms than other distributors), the statutory concern is for adverse effects on individual competitors rather than competition itself.
The United States argues that other examples can readily be found in Japan's own anti‑trust laws and enforcement guidelines. Section 19 of the Anti-Monopoly Act prohibits "unfair business practices", including price discrimination and "unjust low‑priced sales" or "unfair price‑cutting". The Japan Fair Trade Commission (hereinafter "JFTC") has defined these terms as:
"Without proper justification, supplying a commodity or service continuously at a price which is excessively below cost incurred in the said supply, or otherwise unjustly supplying a commodity or service at a low price, thereby tending to cause difficulties to the business activities of other entrepreneurs."97
93 Japan refers toJ.C. Penney Co. v. Department of the Treasury, 319 F. Supp. 1023, 1024 (S.D.N.Y 1970), aff’d, 439 F.2d 63 (2d Cir.), cert. denied, 404 US 869 (1971) where it is stated that anti‑dumping laws prevent "actual or threatened injury to a domestic industry resulting from the sale in the United States market of merchandise at prices lower than in the home market." Japan also refers to Timken v. Simon, 539 F. 2d 221, 223 (1976).
94 Japan refers to, e.g., Copperweld v. United States, 682 F. Supp. 552 (Ct. Int’ l Trade 1988). Japan also refers to Gerald Metals v. United States, 937 F. Supp. 930 (Ct. Int’l Trade 1996).
95 Japan refers to 15 U.S.C. § 72 (1999).
96 The United States refers to, e.g., Brooke Group, Op. Cit., and Brown Shoe, Op. Cit., p. 320.
97 JFTC, Executive Bureau, Guidelines Concerning Unfair Price Cutting (Nov. 20, 1984).