WT/DS162/R/Add.1 Page 64
Japan notes that senior US officials recognize that the imposition of an anti‑dumping duty is the only permissible means of remedying dumping. In his 18 February 1986 letter to Senate Judiciary Committee Chairman Strom Thurmond, then-USTR Clayton Yeutter unambiguously declared:
"Both the [Tokyo Round Anti‑Dumping] Code and the GATT authorize a signatory to impose antidumping duties to counteract foreign dumping. This remedy represents a special exception to normal GATT rules regarding tariffs. The Code, however, expressly limits this remedy to the prospective collection of antidumping duties to offset the margin of dumping. It prohibits the use of additional sanctions, such as anti‑trust damages."229
Japan recalls that, similarly, in a 4 February 1986 letter to the Chairman Strom Thurmond, then Assistant Attorney General John Bolton stated:
"Thus any private remedy for dumping must also be consistent with GATT. The Code permits a signatory to impose, in response to dumping, only antidumping duties limited to the margin of dumping."230
Japan submits further that it can scarcely improve on the analysis of the 1916 Act presented by USTR General Counsel Alan Holmer to the US Senate Finance Committee (18 July 1986):
"The Antidumping Code, however, expressly limits the remedy for dumping to the prospective collection of antidumping duties to offset the margin of dumping. Article 16 of the Code [now Article 18.1 of the Anti‑Dumping Agreement] states: "No specific action against dumping of exports from another Party can be taken except in accordance with the provisions of the General Agreement, as interpreted by this Agreement." This language prohibits the use of additional sanctions, such as fines, embargoes, imprisonment or other draconian measures.
It has also been argued that "the Code also does not affect other actions that are not in the nature of 'duties' that may affect goods that are 'dumped'." The thrust of this argument is that if a government chooses to address dumping through the imposition of duties, it must do so under the procedures set out in the Anti‑Dumping Code, but at the same time, a government is free to use any other means that it chooses to punish dumping. This interpretation of Article 16, however, appears rather implausible if one considers its consequences. Under this view, a foreign government would be perfectly within its rights to convict an American businessman of dumping and imprison him for a period of 10 years, since the government would have a right to use whatever alternative sanctions for dumping it pleased.
It follows that Article 16 must stand for the proposition that a government can provide its citizens one, and only one, remedy for dumping. That remedy is the collection of duties in a manner consistent with the Anti‑Dumping Code." 231
229 Japan refers to the letter from USTR Clayton Yeutter to Sen. Thurmond, dated 18 February 1986, p. 9-10 (emphasis added by Japan).
230 Japan refers to the letter from Assistant Attorney General John Bolton to Sen. Thurmond, dated 4 February 1986, p. 17.
231 Japan refers to the testimony by Alan F. Holmer, General Counsel Office of the USTR, before the Subcommittee on International Trade of the US Senate, dated 18 July 1986, p. 4 (emphases added by Japan).