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WT/DS162/R/Add.1 Page 37

alleged by the United States.  The word "dumping" is used in the alleged home page of the Japan Fair Trade Commission only in a generic sense to denote "unfair low price sales" for the sake of ease of understanding by the general public.115


The United States rejects Japan's attempt to downplay the necessary implications of its position in the present case with regard to other antitrust laws.  Japan's argument seems to boil down to its contention that antitrust laws govern only domestic price discrimination and therefore no antitrust rules would be affected by a finding by this Panel that international price discrimination measures must comport with Article VI and the AntiDumping Agreement.


The United States notes that it cannot agree.  Japan's broad statement that antitrust rules govern only domestic price discrimination does not comport with reality.  In the United States, the Sherman Act and parts of the Clayton Act clearly apply to foreign conduct with direct and foreseeable anti-competitive effects in the United States.  This has been the case for many years and is no longer particularly controversial.  For example, the US Sherman and Clayton Acts have long been applied when appropriate to international pricing conduct by American and foreign parties.  Two early Sherman Act cases are United States v. American Tobacco Co.116 and United States v. Pacific and Arctic Ry. Co.117.  Other examples are the Justice Department's complaint in United States v. United Fruit Company118 and the private case Laker Airways Ltd. v. Pan American World Airways119.


The United States notes that, more recently, in its 1986 Matsushita Electrical decision, the US Supreme Court evaluated Sherman Act claims against Japanese television exporters that were based on the same facts as the plaintiffs' unsuccessful 1916 Act claims.  The Supreme Court rejected the Sherman Act claims for a failure to provide evidence that predatory losses would be recouped through future monopoly rents, not for a lack of antitrust jurisdiction over such conduct.  Perhaps the most recent example is the antitrust consent decree that the Department of Justice obtained  in 1995 against the planned joint venture of an American and two European telecom firms.  That decree settled concerns based upon those firms' possible use of foreign monopoly facilities to

115 In response to a question of the United States regarding whether Japan agrees that the word "dumping" may be used in a context that does not fall within Article VI or the AntiDumping Agreement, Japan notes that the word "dumping" can include various concepts and does not necessarily mean "international price discrimination" under Article VI of the GATT 1994.  For example, in the panel report on United States - Standards for Reformulated and Conventional Gasoline, adopted on 20 May 1996, WT/DS2/R, the term "dumping" refers to the act of a refiner, blender or importer mixing into conventional gasoline fuel components that are restricted in reformulated gasoline.  Japan refers to paragraph 2.4 of the panel report.  However, here Japan is focusing on the issue of dumping as defined by Article VI of the GATT 1994 and the Anti­Dumping Agreement.  Thus, all other definitions of "dumping" are irrelevant.  In response to another question of the United States, regarding whether the JFTC is responsible for the content of the English language web site, Japan confirms that this is the case.  However, the reference to "dumping" occurs only once in its English home page, where the JFTC gives a very general overview of the Anti-Monopoly Act of Japan for the sake of ease of understanding by the general public.  In any event, Japan considers the type of semantic debate the United States has initiated here is totally irrelevant to the present case and only serves to cloud the important issues the present proceeding raises.  Japan argues that in order to ascertain the legal meaning and connotation of a Japanese Act, one must always refer to the authentic copy of the Act and the Notification, which is available only in Japanese.  Thus, the US assertion is misguided and unwarranted.

116 The United States refers to 221 U.S. 106 (1911).

117 The United States refers to 228 U.S. 87 (1913).

118 The United States refers to E.D. La., Civ. Action No. 4560, 1954; amended complaint, 1956, consent decree, 1958.

119 The United States refers to 559 F.Supp. 1124 (D.D.C. 1983).

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