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WT/DS162/R/Add.1 Page 34

one set of rules for the other, and no question of simply making a mechanical transposition from competition law into antidumping law of concepts which were intended to deal with a totally different kind of problem and underlay a totally different type of instrument."105

4. The reach of Article VI of the GATT 1994 and the AntiDumping Agreement


According to the United States, there is no support in the text of Article VI or the AntiDumping Agreement for Japan's implicit contention that those disciplines govern any measure based in any respect on the concept of international price discrimination.  Nowhere does the text of Article VI  or the AntiDumping Agreement state that its disciplines govern any law based upon the concept of price discrimination regardless of any other elements required to be proven under the law.  


The United States argues, moreover, that to read into the text of Article VI the limitation that all laws with any kind of international price discrimination component must conform to the antidumping rules would extend the antidumping rules far into a realm which predated them and whose objectives, underlying principles and targeted conduct are quite different namely, the realm of antitrust (or competition) laws.


The United States considers that the antidumping rules and antitrust laws have different objectives, are founded on different principles, and seek to remedy different problems.  The antidumping rules are not intended as a remedy for the predatory pricing practices of firms or for any other private anticompetitive practices typically condemned by antitrust laws.


The United States argues that, in contrast, antitrust laws remedy, among other things, private pricing practices which are objectionable because they are instruments of cartelization, monopolisation or abuse of dominant position.  Broadly speaking, antitrust laws target conduct which restricts economic freedom for consumers and competitors.106  While it is true that the antidumping rules address certain private pricing practices, it is not because these pricing practices that is, injurious dumping practices are anticompetitive in an antitrust sense.  Injurious dumping practices will not normally qualify as "anticompetitive" when analysed under the distinct rules of most national antitrust laws.


The United States notes, in summary, that a review of the text and the objectives of the two sets of rules confirms that Article VI and the AntiDumping Agreement do not govern every single rule that references price discrimination regardless of the law's other requirements.  The 1916 Act is not directed at the simple price differences that constitute dumping under the antidumping rules, nor is it based on the notion of material injury to a domestic industry.  Therefore, because the 1916 Act is an antitrusttype statute, it is not governed by Article VI and the AntiDumping Agreement.


The United States considers, furthermore, that if the Panel were to accept Japan's argument and rule that Article VI and the AntiDumping Agreement apply to all forms of international price discrimination, and regardless of the nature of the injury sustained, the 1916 Act would not be the only casualty.  Such a ruling would seem to mean that other Members' attempted monopolisation or abuse of dominance laws, such as those in Japan and the European Communities, would be WTOillegal to the extent that those laws address attempted monopolisation or an abuse of dominance undertaken through predatory, crossborder pricing practices.  That result could not have been intended by Article VI or the AntiDumping Agreement.  

105 Report on the Meeting of 27-28 July 1998, WT/WGTCP/M/5, 25 September 1998, para. 71.  

106 The United States refers to Northern Pacific Railway v. United States, 356 US 1, p. 4 (1958).

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