WT/DS162/R/Add.1 Page 36
Japan responds that, regardless of precisely where anti‑trust laws begin and end, the global trading community has decided where anti‑dumping law begins and ends and the two types of laws are distinct. When one focuses on the conduct regulated by the clear, unambiguous text of the 1916 Act, the character of the 1916 Act is manifest. It regulates dumping.113 The issue is not one of anti‑trust, and this Panel's judgement in Japan's favour will have no bearing on Members' anti‑trust laws.114
Japan also recalls that the issue in the present proceeding is not the scope of other Members' anti‑trust laws, but whether the 1916 Act is inconsistent with WTO provisions. The United States attempts to once again shift the Panel's attention to Japan's and the EU's anti‑trust or competition laws. This is irrelevant and, moreover, is not within the present Panel's terms of reference.
Japan notes, finally, that the United States claims, in its answer to a question of the Panel, that Japan's own competition policies could be jeopardised by Japan's argument for the exclusivity of Article VI. The United States quotes the word "dumping" completely out of the context in which it is used in the Japan Fair Trade Commission's unofficial English language home page and makes a misguided assertion. Examination of the authentic Japanese version of "'Unfair Trade Practices' Fair Trade Commission Notification No.15, June 18, 1982" demonstrates with absolute clarity that Japan's Anti-Monopoly Act regulates "unfair low price sales" and not "international price discriminations" as
113 Japan notes, in response to a question of the Panel regarding the scope of Article VI and the Anti‑Dumping Agreement, that they address international price discrimination where prices in the importing market are lower than prices in the exporting market. Where these conditions giving rise to this type of international price discrimination are met, a law, whatever it may be called, is an anti‑dumping measure and must conform to Article VI and the Anti‑Dumping Agreement. In response to a similar question of the United States regarding whether Article VI and the Anti‑Dumping Agreement would apply to any law based upon the concept of international price discrimination regardless of any other elements to be proven under the law, Japan notes that Article VI of the GATT 1994 and the AntiDumping Agreement govern any and all laws and regulations that are aimed at countering international price discrimination as defined under those provisions. Requiring that other elements be proven does not change whether a law is governed by Article VI and the Anti‑Dumping Agreement. A Member cannot avoid its obligations under Article VI and the Anti‑Dumping Agreement simply by adding, altering or deleting an element. In addition, a Member cannot avoid its obligations by adding impermissible penalty provisions different from or more stringent than that allowed by Article VI and the Anti‑Dumping Agreement.
114 In response to a question of the United States, Japan notes that "predatory pricing practices" as that phrase is used in anti‑trust laws need not comport with the requirements of Article VI and the Anti‑Dumping Agreement.