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WT/DS162/R/Add.1 Page 46

appellate court has opined upon the statute, a district court in that circuit is bound by that decision.  If the precedent is not binding, the weight afforded to the case law will depend upon the persuasive value of the opinion's reasoning.   


The United States contends that the role of a statute's legislative history is different for the present Panel.  Here, the legislative history has been cited only as confirmation or to help explain the courts' holdings.  Because the interpretation of the 1916 Act is a question of fact for the present Panel, it is not the role of the present Panel to consider and weigh the statute's legislative history itself.  The present Panel must look to the judicial case law in determining how the 1916 Act is interpreted and applied in the United States because the law is applied through the judicial branch.   


The United States further notes that usually, US courts give more weight to the meaning of the term at the time the law was passed.  But sometimes laws are written expansively to give courts more discretion in interpreting the meaning of terms because Congress realizes that the meaning can evolve over time.  This is generally true of US antitrust laws.  The Court of Appeals for the First Circuit has aptly described the "special interpretative responsibility" placed upon the judiciary in the antitrust context:

"The broad, general language of the federal antitrust laws and their unilluminating legislative history place a special interpretative responsibility upon the judiciary.  The Supreme Court has called the Sherman Act a 'charter of freedom' for the courts, with a 'generality and adaptability comparable to that found […] in constitutional provisions.'  Appalachian Coals Inc. v. United States, 288 U.S. 344, 35960 (1933).  [T]he federal courts have been invested 'with a jurisdiction to create and develop an 'antitrust law' in the manner of the common law courts.' [citation omitted] The courts are aided in this task by canons of statutory construction, such as the presumption against violating international law, which serve as both guides and limits in the absence of more explicit indicia of congressional intent."159


Japan, replying to the same question of the Panel, notes that the US Supreme Court is the final arbiter of a statute's meaning.  Where it has not addressed an issue, a subsidiary court generally must follow the precedent set by the appellate court overseeing it or risk reversal.  Where no binding appellate court precedent exists, a court uses interpretive 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 statute's text is unclear or ambiguous, may a court resort to other elements such as legislative history as a supplementary means of ascertaining meaning.


Japan also contends that, if the statute's text is ambiguous, US courts may refer to supplementary means of interpretation.  If necessary, both the meaning of that term at the time the law was passed and at the time the interpretation takes place may be considered.  It depends upon the court, the statute and the circumstances of the case.  Often, as is the case in the WTO160, US courts interpret statutory terms based on contemporary concerns.

(c) United States v. Cooper Corp.

159 United States v. Nippon Paper Industries, 109 F.3d 1, 9 (1st Cir. 1997) (Lynch, concurring).

160 Japan refers to, e.g., the Appellate Body Report on United States – Import Prohibition of Certain Shrimp and Shrimp Products, adopted on 6 November 1998, WT/DS58/AB/R, para. 129.

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