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WT/DS162/R/Add.1 Page 44

with Americanmade goods, but there must not be such a competition that will destroy the American industry and thus give the foreigner the monopoly.   

In the Clayton Antitrust Act, which we Democrats passed, we provided against unfair competition among our domestic industries.

Now, if it be proper and just to protect our domestic industries against unfair competition by other domestic industries, why is it improper and unjust to protect our domestic industries against the unfair competition of foreign industries."148


The United States notes that, during the same House debate, another Congressman, Rep. Fordney gave as an example of unfair foreign competition German exports of a particular chemical:

"Take the case of oxalic acid, which sold at 6.5 cents a pound when our producers at home were compelled to go out of business because of that unfair competition.  When that was accomplished, the Germans immediately put the price up to 9 cents a pound higher than ever before."149


The United States points out that a similar example was used during the 1921 Senate debates over the 1921 Antidumping Act, where Senator Simmons asserted that the "German dye monopoly" had "deliberately, purposefully and intentionally" pursued a course to destroy the US dye industry:

"The [1916 Act] provision was to meet a case like that, where a foreign monopoly or a foreign industry was selling its products in this country, not for the purpose of profit, nor in the ordinary course and way of business, but with a view to destroying an industry already established in the United States or so as to prevent the establishment of a business in the United States.   That was entirely different from the situation as we find it in connection with this bill."150


The United States notes, furthermore, that the agency responsible for prosecuting criminal violations of the 1916 Act, the US Department of Justice, made a public announcement regarding the nature of the 1916 Act at the time of its passage.  Assistant Attorney General Samuel J. Graham stated that the "purpose" of the 1916 Act "should be to prevent unfair competition.  Just as we have said to our own people by the Clayton Act that they should not indulge in unfair competition, so we propose to say the same to the foreigner."151


The United States notes, finally, and controlling for the United States' purposes, the fact that the 1916 Act's legislative history shows that it was intended as competition legislation is also confirmed by judicial decisions construing the 1916 Act.  For example, the court in Zenith III specifically found that its conclusion that the 1916 Act was an antitrust statute was "strongly corroborated by the political and legal history of the relevant era, and the legislative history of the 1916 Act."152

6. US judicial interpretations of the 1916 Act

(a) Relevance of judicial interpretations of the 1916 Act

148 Ibid.

149 Ibid., p. 346.

150 61 Cong. Rec., pp. 1100110l (May 6, 1921).

151 Letter from Samuel J. Graham, Assistant Attorney General, US Department of Justice, dated 30 June 1916 (published in  N.Y. Times, 4 July 1916, p. 10).  

152 The United States refers to Zenith III, Op. Cit., p. 1215.

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