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WT/DS162/R/Add.1 Page 54

3.4

The United States further recalls that, in 1986, on remand from the Supreme Court, the Third Circuit Court of Appeals in In re Japanese Electronic Products III dismissed the plaintiffs' 1916 Act claims upon the basis that, like the Sherman Act claims, there was no evidence of the possibility of recoupment.  The court reasoned that "[s]ince the Sherman Act conspiracy charge failed in the Supreme Court, our holding on the AntiDumping [1916] Act conspiracy claim must fail with it."197  In other words, the Third Circuit Court of Appeals has held that the 1916 Act is a predatory pricing statute requiring, among other things, proof of the possibility of recoupment and is aimed at anticompetitive behaviour.

3.5

The United States considers, therefore, that, contrary to Japan's statement, US appellate courts (including the Ninth Circuit) have not uniformly treated the 1916 Act as an antidumping measure.198  Indeed, the facts show that quite the opposite is true.

(f) Geneva Steel Co. v. Ranger Steel Supply Corp. and Wheeling-Pittsburgh Steel Corp. v. Mitsui & Co.

3.1

Japan submits that several federal district courts have addressed to varying degrees the specific issue of whether the 1916 Act should be considered a protectionist antidumping remedy or a competition-oriented antitrust remedy.  In the two most recent decisions, each of the courts concluded that the 1916 Act is a protectionist antidumping law, based on an analysis of its text.  These cases rely explicitly on the plain meaning of the text of the 1916 Act to reject limitations imported from US antitrust law that defendants sought to graft onto the 1916 Act.  In Geneva Steel, the judge summarized his views succinctly:

"The [1916 Act] means what its plain language says.  […] the Act has a protectionist component that prohibits dumping designed to injure the domestic industry […]."199

3.2

Japan notes that the judge analysed the five forms of harm the statute contemplates, and noted that only the last two - to "restrain" or to "monopolize" trade and commerce in the United States - were in the nature of competition law harms.  The first three - to "destroy", to "injure", or to "prevent the establishment of" a US industry - were all in the nature of dumping harms.200  The judge could have bolstered this point by noting that the notions of "to injure" and "to prevent the establishment of"  a US industry are precisely parallel to the definition of dumping set forth in Article VI:1 of the GATT 1994 and the AntiDumping Agreement.  In reaching the decision, the judge considered and rejected the analysis and holding of the court in Zenith III.

3.3

Japan recalls that in Wheeling-Pittsburgh the court reached the same conclusion, explaining that:

"In this Court's view, the conclusion reached by the district court in Geneva Steel was correct.  The Court held that the Anti-dumping Act of l916 did not require the type of

197 In re Japanese Electronic Products III, Op. Cit., pp. 48-49.

198 The United States notes that Japan quotes a line from Western Concrete, stating that the 1916 Act's "express purpose […] is to protect domestic industries from dumping by their foreign competitors."  Yet, in the view of the United States, the Ninth Circuit also expressly cited the Clayton Act as context for the 1916 Act.  The United States refers to Western Concrete, Op. Cit., p. 1019.  The court noted that the plaintiff had alleged that defendants had an "intent to injure [their preferred customer's] competitors and to drive them out of the market."  The court stated that "in every reported case, the statute [1916 Act] has been applied or restricted to domestic producers (or importers […] where there were no domestic producers […]) of the dumped good, prohibiting restraint or monopolization of the dumped good."  Ibid.  

199 Geneva Steel, Op. Cit., p. 1215.  Japan considers that this passage also serves to demonstrate that, like WTO panels and the Appellate Body, the United States interprets laws and agreements on the basis of their text, whenever possible.

200 Japan refers to Geneva Steel, Op. Cit., p. 1215.  Indeed, they mirror the provisions of the US Tariff Act of 1930, as amended (19 U.S.C. § 1673d(b) (1999)).

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