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WT/DS162/R/Add.1 Page 60

of France that it would cease conducting atmospheric nuclear tests was a unilateral act creating a binding legal obligation.  In a later case, Frontier Dispute, the ICJ held that a declaration by the Head of State of Mali did not constitute a unilateral act creating a binding legal obligation for purposes of the dispute.  The ICJ explained that

"[…] since it has to determine the frontier line on the basis of international law, it is of little significance whether Mali's approach may be construed to reflect a specific position towards, or indeed to signify acquiescence in, the principles held by the Legal SubCommission to be applicable to the resolution of the dispute.  If those principles are applicable as elements of law, they remain so whatever Mali's attitude."  


According to the United States, there is no question that the statements relied upon by Japan (and the European Communities) do not constitute a unilateral act by the United States creating a binding legal obligation in the present dispute.  Like the statements at issue in Frontier Dispute, these statements do not purport to commit the United States to undertake or refrain from undertaking any kind of action.  Rather, they are statements regarding whether, in the opinion of the particular author, the 1916 Act was grandfathered under the GATT 1947, and whether the 1979 AntiDumping Code and Article VI of the GATT 1947 provide that antidumping duties are the exclusive remedy for dumping.   In both instances, statements by government officials cannot determine or change whether the 1916 Act was in fact grandfathered under GATT 1947 or whether, as a legal matter, Article VI of the GATT 1947 and the 1979 AntiDumping Code provided that antidumping duties were the exclusive remedy for dumping.  These are questions that the Panel must determine pursuant to the mandate set forth in  Article 11 of the Dispute Settlement Understanding.  Article 11  requires that a panel "make an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements."  If a panel were legally bound by statements of the parties concerning the facts in dispute or the conformity of their measures, it would be not be able to carry out its mandate under Article 11.    

8. Statements in relevant US government documents  


Japan recalls that the US Department of Justice's and the US Federal Trade Commission's "Antitrust Enforcement Guidelines for International Operations" expressly state: "the 1916 Act is not an antitrust statute […].  It is a trade statute that creates a private claim against importers […]."216  Thus, the two US government agencies that enforce US antitrust law agree that the Act is not an antitrust law, but is an antidumping law.


In response to a question of Japan regarding how the US position in the present proceeding can be reconciled with the statement in the above-mentioned Antitrust Enforcement Guidelines for International Operations, according to which "the 1916 Act is not an antitrust statute," the United States notes that, first of all, the quote excerpted by Japan is incomplete and misleading.  The full quote is as follows: "The Revenue Act of 1916, better known as the Antidumping Act, 15 U.S.C. §§ 7174, is not an antitrust statute, but its subject matter is closely related to the antitrust rules regarding predation."217  Secondly, the United States notes that the Guidelines are not regulations with the force of law but rather "are intended to provide antitrust guidance to businesses engaged in international operations on questions that relate specifically to the [enforcement] Agencies' international enforcement policy."218  The Justice Department and the Federal Trade Commission continue to refer to them in speeches and policy statements, and to refer practitioners to them.  They have not been withdrawn or superseded by any later guidelines.

216 Japan refers to US Department of Justice and US Federal Trade Commission, Antitrust Enforcement Guidelines for International Operations, April 1995, Section 2.82.

217 Emphasis added by the United States.

218 Antitrust Enforcement Guidelines for International Operations, April 1995, p. 1.

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