WT/DS162/R/Add.1 Page 59
the "grandfather" exception, the simple answer to Japan's argument is that these government officials were mistaken as a matter of fact as to whether the 1916 Act was "grandfathered" under the GATT 1947.215
According to the United States, GATT 1947 document L/2375/Add. 1 (19 March 1965) shows that the United States government did not include the 1916 Act anywhere in the survey of existing mandatory legislation not in conformity with Part II of the GATT 1947. Indeed, at one point, the United States government specifically notified statutes that were not in conformity with Articles III and VI ‑ the two Articles which Japan claims the 1916 Act violates ‑ and the 1916 Act was not among them. The plain import of L/2375/Add.1 is that, in the United States' view, the 1916 Act was GATT‑legal and therefore did not require "grandfathering".
The United States argues that its notification in L/2375/Add.1 is an official statement of the United States government's position regarding the GATT‑legality of the 1916 Act in a GATT 1947 forum. The United States did not have the occasion to address the GATT‑legality of the 1916 Act in the only other possible GATT 1947 forum, i.e. a dispute resolution proceeding, because no contracting party challenged the 1916 Act under the GATT 1947 (despite the fact that the United States had never invoked the "grandfathering" protection made available by the Protocol of Provisional Application).
The United States submits that, because this notification by the United States contained in L/2375/Add.1 (19 March 1965), which is an official statement of the US government, contradicts, as a factual matter, the statements cited by Japan, the Panel should attach no weight to those statements when deciding whether the 1916 Act is WTO‑consistent. The present Panel must review the current weight of judicial authority and decide for itself whether the 1916 Act is inconsistent with any WTO obligations.
Japan considers that the US contention that the US statement cited by Japan "deserve no weight" is unbelievable and wrong as a matter of law. It is simply not credible for the United States to assert that the authors of these statements are "mistaken" and that they do not reflect the official opinion of the United States. These statements were made by senior US government officials with unmatched expertise in the matter. Obviously, the statements of senior US government officials and US government documents reflect the official US interpretations of the 1916 Act.
In response to a question of the Panel to the United States regarding in which circumstances the statement of a US government official could be considered as the expression of the opinion of the United States, the United States notes that, generally, if the US government official is speaking on behalf of the whole United States in a capacity in which he or she has the authority to do so, then the statement would reflect the opinion of the United States. In the present case, the statements cited by Japan reflect the only opinion of the official's respective agency.
The United States considers that the International Court of Justice (hereinafter the "ICJ") cases referenced by the Panel, however, address a different issue. In those cases, the issue was whether a declaration by a government official created a binding legal obligation, not whether the declaration could be considered an expression of an opinion of a party to the dispute. In the Nuclear Test case, the ICJ held that repeated declarations by, among other high‑ranking officials, the President
215 In response to a question of Japan whether the United States is negating the veracity of these statements, the United States notes that it is not negating the truthfulness of the statements in question; the officials who made them believed them to be correct. The United States is simply saying that, to the extent that those statements may be construed as inconsistent with the positions taken by the United States in the instant dispute, those statements are mistaken as a matter of fact.