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WT/DS162/R/Add.1 Page 45

3.1

In the view of Japan, the text of the 1916 Act is unambiguous.  The Panel's analysis thus should end with the text.153  What a US court has labelled the Act is irrelevant.154  In any event, if the Panel considers US judicial interpretations, it will find that they confirm that the 1916 Act is a protectionist dumping remedy.

3.2

The United States considers that it is the role of the Panel to determine as a matter of fact how the law is applied in the United States.  Because the 1916 Act is applied through the judicial branch, the Panel must look to the judicial interpretations.  Even if the Panel might disagree with how the courts have interpreted the text of the 1916 Act, it should not affect the Panel's decision in the present dispute.  In the US legal system, the 1916 Act means what the courts say it means, and this is the relevant fact for purposes of the present dispute.  

(b) Statutory interpretation under US law

3.1

In response to a question of the Panel to the United States regarding the relative weight to be accorded - by a US court and the present Panel - to the legislative history of a statute compared to the case law interpreting the statute, the United States notes that legislative history is something that US courts look to in interpreting a statute.  However, courts vary in their use of legislative history.  Generally, where the statutory language is ambiguous or the plain meaning of the statutory language leads to absurd results, a court will look to the statute's legislative history.155  Nonetheless, some courts have considered legislative history regardless of the clarity of the statute to ensure that the perceived clarity is not superficial.156  The weight such history is given in construing a statute may vary according to such factors as whether the legislative history is sufficiently specific, clear and uniform to be a reliable indicator of intent.157  With regard to statements made by the sponsor of the legislation, the Supreme Court has held that, although they are neither controlling nor dispositive, they are "entitled to weight" and considered "an authoritative guide to the statute's construction."158

3.2

The United States notes that the relative weight of legislative history compared to the case law interpreting the statute depends upon whether the case law is binding precedent.  For instance, if an

153 Japan notes that the United States may assert that the Panel should defer to the US characterisation of the Act as an antitrust remedy.  According to Japan, this is incorrect.  The existence and characteristics of the Act are questions of fact that are "left to the discretion of a panel as a trier of facts."  Japan refers to the Appellate Body Report on European Communities – Hormones, Op. Cit., para. 132.  Japan notes that, in contrast, the "consistency or inconsistency of a given fact or set of facts" with the requirements of the Act would be a legal question.  Japan refers to ibid.  Japan also refers to Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products, adopted on 12 January 2000, WT/DS98/R,  para. 7.30, where the panel stated that "[w]e consider that for the Panel to adopt a policy of total deference to the findings of the national authorities could not ensure an 'objective assessment' as foreseen by Article 11 of the DSU."  Japan notes that, obviously, if the United States were to advance such an argument and the Panel were to accept it, the result would be absurd - any Member complained against would have nearly complete control of the outcome of the case.  Its law would be found to conform to the WTO agreements merely because the Member said it did.

154 Japan further notes that US courts generally use interpretative guidelines very much akin to those in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.  The primary focus is the express words of the statute in their context.  Only when the meaning is unclear, may a court resort to legislative history or other secondary means of ascertaining meaning. Japan refers to, e.g., Connecticut National Bank v. Germain, 503 US 250, 254 (1992).

155 The United States refers to American Trucking Associations, Inc. v. Interstate Commerce Comm’n, 669 F.2d 957 (5th Cir. 1982); United States v. Smith, 957 F.2d 835, p. 836 (11th Cir. 1992).

156 The United States refers to Hunt v. Nuclear Regulatory Comm’n, 611 F.2d 332, p. 336 (10th Cir. 1979).

157 The United States refers to Miller v. C.I.R., 836 F.2d 1274, p. 1282 (10th Cir. 1988).

158 The United States refers to Simpson v. United States, 435 U.S. 6, p. 13 (1978); North Haven Board of Education v. Bell, 456 U.S. 512, pp. 52627 (1982).

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