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WT/DS162/R/Add.1 Page 66

"The Subcommittee agreed to the deletion of paragraph 6 of the Geneva draft which expressly prohibited the use of measures other than antidumping or countervailing duties against dumping or subsidization.  It did so with the definite understanding that measures other than compensatory antidumping […] duties may not be applied to counteract dumping […] except insofar as such other measures are permitted under other provisions of the Charter."234

3.15

The United States further recalls that, later that year, during the Second Session of the GATT 1947, the Working Party on Modifications to the General Agreement referenced the work of the ITO Subcommittee on Article 34 and agreed, inter alia, to replace the entire then-existing Article VI with its counterpart under the draft ITO charter, which in final form contained no provision like paragraph 7 of Article VI of the GATT 1947.  In a report, the Working Party explained:

"The working party, endorsing the views expressed by [the ITO Subcommittee on Article 34], agreed that measures other than compensatory antidumping […] duties may not be applied to counteract dumping […] except insofar as such other measures are permitted under other provisions of the General Agreement."235

3.16

The United States notes that, many years later, a paragraph similar in many respects to the original paragraph 7 of Article VI of the GATT 1947 appeared in Article 16.1 of the Tokyo Round AntiDumping Code.  It provided:

"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."

In an accompanying footnote, Article 16.1 added that this provision "is not intended to preclude action under other relevant provisions of the General Agreement, as appropriate."  

3.17

The United States recalls that a provision virtually identical to Article 16.1 of the Tokyo Round AntiDumping Code now appears in the AntiDumping Agreement, in Article 18.1, except that now it refers to the GATT 1994 instead of the GATT 1947.  Article 18.1 and its footnote provide as follows:

"18.1No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of  GATT 1994, as interpreted by this Agreement.24

[…]

__________

24  This is not intended to preclude action under other relevant provisions of GATT 1994, as appropriate."

3.18

The United States points out that, in the "Dunkel Draft" text of the AntiDumping Agreement dated 20 December 1991, the Article on final provisions was left blank.  In the course of the

234 Reports of Committees and Principal Sub-Committees, ICITO I/8, p. 74, para. 25 (Geneva, September 1948), quoted in GATT, Analytical Index: Guide to GATT Law and Practice, 6th ed. (1995), p. 238 (emphasis added by the United States).

235 BISD II/41, 42, para. 12 (emphasis added by the United States).

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