WT/DS162/R/Add.1 Page 3
Article XVI:4 of the WTO Agreement and Article 18.4 of the Anti‑Dumping Agreement by failing to conform its laws to WTO provisions.
For these reasons, Japan requests that the Panel find that the 1916 Act is neither consistent with nor justified by Articles III:4, VI and XI of the GATT 1994, the provisions of the Anti‑Dumping Agreement and the WTO Agreement4, and to recommend that the United States bring 1916 Act into conformity with these provisions. Japan further requests that the Panel recommend that the United States repeal the 1916 Act in order to bring the Act into conformity with US obligations under these provisions.
The United States requests that the Panel rule that Japan has failed to show that Article VI:2 of the GATT 1994 and Article 18.1 of the Anti‑Dumping Agreement mandate that anti‑dumping duties are the exclusive remedy for dumping.5 If the Panel rejects this claim, Japan's entire challenge under Article VI and the various provisions of the Anti‑Dumping Agreement would fail and the Panel would not need to reach the question of whether Article VI and the Anti‑Dumping Agreement govern the 1916 Act.
According to the United States, if the Panel reaches the question of whether the 1916 Act is subject to Article VI:2 and the Anti‑Dumping Agreement, it should conclude that Japan, as the complaining party, has failed to show that the 1916 Act is not susceptible to an interpretation that would permit action consistent with US WTO obligations. In contrast, the United States has demonstrated that the 1916 Act is clearly susceptible to an interpretation that would parallel domestic competition law and, in fact, has been so interpreted to date. As a competition law, the 1916 Act is not subject to Article VI:2 of the GATT 1994 or the Anti‑Dumping Agreement.
The United States also requests that the Panel rule that the 1916 Act is consistent with Article III:4 because interpreting the 1916 Act to parallel domestic competition law does not raise any national treatment concerns as parallel treatment obviously does not constitute less favourable treatment. The United States reiterates that the Panel's decision in this regard should be informed by the fact that the 1916 Act establishes a standard for relief which has never been met in the case of importers and imported goods.
The United States requests, furthermore, that the Panel rule that the 1916 Act is consistent with Article XI of the GATT 1994 because, in light of the fact that the only relief available under the 1916 Act is monetary in nature, the Act does not fall within the purview of the prohibition on quantitative restrictions as set out in Article XI of the GATT 1994.
The United States asserts, finally, that because the 1916 Act is susceptible to an interpretation that is fully consistent with all US WTO obligations and, in fact, has been so interpreted to date, there is no requirement under Article XVI:4 of the WTO Agreement that the United States take action to change the law.
C. TRADE EFFECTS OF THE 1916 Act AND THEIR RELEVANCE TO THE PRESENT CASE
4 Japan notes that, even if the 1916 Act were not an anti‑dumping law (which it is), the United States still would be in violation of Articles III:4 and XI of the GATT 1994 and Article XVI:4 of the WTO Agreement.
5 The United States recalls that Japan, as the complainant in the present dispute, has the burden of establishing a violation of a provision of the WTO Agreement. The United States refers to the Appellate Body Report on United States ‑ Measures Affecting Imports of Woven Wool Shirts and Blouses from India, adopted on 23 May 1997, WT/DS33/AB/R, para. 14 (hereinafter Appellate Body Report on "United States – Shirts and Blouses").