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WT/DS162/R/Add.1 Page 57

the position that those two decisions are "right" and that the Zenith line of cases are "wrong".  Yet, it is not the role of Japan, the United States or the present Panel to agree or disagree with any particular judicial decision.210  Rather, the present Panel must determine whether the 1916 Act is susceptible to an interpretation that is WTOconsistent.  In the view of the United States, in the present case, the Panel need not struggle with speculating regarding possible WTOconsistent interpretations of the 1916 Act.  There are judicial decisions already applying the 1916 Act to parallel the domestic antitrust laws in the US.  The series of decisions in Zenith demonstrate that the 1916 Act is clearly susceptible to an interpretation that is WTOconsistent and, in fact, has been so interpreted.


Japan notes that, in an interesting twist, after attempting to eviscerate Wheeling-Pittsburgh and Geneva Steel en route to elevating the dated and rejected Zenith analysis over them, the United States later raises Wheeling-Pittsburgh from the dead as controlling precedent.  The United States relies on Wheeling-Pittsburgh for the proposition that US courts have held that the 1916 Act does not provide for injunctive relief.  Japan never argued that it did and, to be sure, the point in any case is irrelevant to Japan's Article XI argument.  However, the United States' reliance on Wheeling-Pittsburgh highlights the inability of the United States to mount a consistent defence.


The United States considers it noteworthy that Japan has placed itself in the position of defending the legal reasoning of precisely those preliminary trial court decisions in Geneva Steel and WheelingPittsburgh that it claims threaten WTOillegal injury to its interests.  

7. Statements by US executive branch officials


Japan argues that the US government's denial in this proceeding that the 1916 Act is an instrument to counter dumping directly contradicts many official statements and positions of US executive branch officials, including officials of the current Administration.


Japan notes that several telling statements focus on the issue of whether the 1916 Act would be "grandfathered" under the WTO agreements, as it was under the GATT 1947.  In a 1997 letter to Representative Ralph Regula, current USTR Charlene Barshefsky stated:

"In responding to one of your questions at the March 14 hearings, I mistakenly indicated that the 1916 Act is 'grandfathered' under WTO rules.  This is not the case.  Under the GATT 1947, the United States was permitted to maintain practices that were inconsistent with the GATT in 1947 when the United States signed the GATT Protocol of Provisional Application, which 'grandfathered' pre-existing mandatory legislation.  However, with entry into force of the GATT 1994, the GATT

210 In response to a question of Japan regarding whether the United States disagrees with the views expressed in Geneva Steel and Wheeling-Pittsburgh and whether it has taken any action in the two court cases to influence their decisions, the United States notes, first of all, that, as a general matter, it is not the role of the United States (or the Panel) in the present dispute to agree or disagree with any US judicial decision relevant to the interpretation of the 1916 Act.  In any event, the preliminary decisions in Geneva Steel and WheelingPittsburgh are not even part of the relevant case law, given that they are neither final nor conclusive under the US legal system.  Furthermore, the United States is not a party to the Geneva Steel case or the WheelingPittsburgh case, and it has taken no action in terms of intervening or filing briefs in either case.  In fact, the United States does not agree that these decisions are inconsistent with US WTO obligations.  In response to a follow-up question of Japan, the United States further notes that in cases where the United States is itself a party to a civil or criminal litigation (acting through the Department of Justice), it has direct responsibility for ensuring that its own claims and actions comport with US laws and obligations, including international obligations, and for informing the court of such considerations.  In addition, where appropriate, the Department of Justice can seek to intervene in a private civil litigation in order to protect a federal government interest.  The Department of Justice does not routinely intervene in private civil litigation, however, and it remains a matter of judgment when and before which courts it should be done.    

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