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WT/DS162/R/Add.1 Page 47


Japan contends that the US Supreme Court has never addressed the substance of the 1916 Act, but has described it as "[t]he antidumping provisions of the Revenue Act of 1916"161.  Thus, to the extent the Supreme Court has said anything about the 1916 Act, it recognized the 1916 Act as an antidumping measure.


The United States argues that, contrary to Japan's assertion, the US Supreme Court has never recognized "the [1916] Act as an antidumping measure."  In fact, United States v. Cooper Corp., a 1941 Supreme Court decision construing the Clayton Act, expressly described the 1916 Act and the Clayton Act as "supplemental" to the original, 1890 Sherman Act.162  Moreover, in the same decision, the Supreme Court also described the Clayton Act as supplemental to the Sherman Act.163  Thus, this 58 year old Supreme Court decision supports, not refutes, the points that the United States has made here.

(d) Zenith Radio Corp. v. Matsushita Electric Industrial Co. and In re Japanese Electronic Products Antitrust Litigation


Japan notes that the United States no doubt will characterise Zenith III and perhaps other, even more dated cases, as evidence that the 1916 Act is an antitrust law.  In Zenith III, the court concluded that the 1916 Act should be thought of as a competition law statute, not an antidumping statute.  However, in Geneva Steel and Wheeling-Pittsburgh, the judges carefully considered the reasoning of Zenith III and rejected that reasoning as ignoring the text of the Act.


Japan recalls that, in Geneva Steel, the judge made several observations about Zenith III.  First, the court noted that Zenith III did not focus on the nature of the 1916 Act itself, whereas the court in Geneva Steel had no other issues before it:  the entire focus of the court's attention was the nature of the 1916 Act.  Second, the court noted that Zenith III actually sought only to interpret a single phrase in the 1916 Act - the phrase "such articles" - and decided that the Robinson-Patman Act provided a useful context in which to interpret this phrase.  Third, the court noted that the critical statement in Zenith III - that the 1916 Act "is an antitrust, not a protectionist statute" - was at most dictum and not a persuasive legal statement.164


Japan also notes that the court in Wheeling-Pittsburgh concluded that Geneva Steel was correct, and Zenith III was wrong.  Like the court in Geneva Steel, the court in Wheeling-Pittsburgh rejected the logic of Zenith III as flawed and inconsistent with the plain meaning of the statutory language at issue.  The court characterised Zenith III as an effort to rewrite, rather than interpret, the statutory text.165


Japan argues, moreover, that Zenith III is not unequivocal.  The court noted that "Congress borrowed language from contemporary customs appraisement law" to draft the 1916 Act and that Congress specifically incorporated into the 1916 Act provisions of the Tariff Act of 1913.166  One of the court's holdings expressly recognized the importance of customs laws in the 1916 Act.  The court stated that "[b]ecause of the use of language taken from the 1913 Tariff Act in the 1916

161 Japan refers to United States  v. Cooper Corp., 312 U.S. 600, p. 609 (1941).

162 The United States refers to ibid., pp. 60810.

163 The United States refers to ibid.

164 Japan refers to Geneva Steel, Op. Cit., pp. 1218-19.  Japan notes that dictum refers to an opinion expressed by a court concerning a particular rule, principle, or application of law that is not relevant to the case or essential to its determination.  Japan refers to Black's Law Dictionary, 6th ed. (1991), p. 313.

165 Japan refers to Wheeling-Pittsburgh, Op. Cit., p. 605.

166 Japan refers to Zenith III, Op. Cit., p. 1197.

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