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work of the Legal Drafting Group in April 1992, the Secretariat then inserted a new Article on final provisions, paragraph 1 of which was constituted of the text of former Article 16.1, with the words "General Agreement" mechanically transposed to "GATT 1993".236 "GATT 1993" was then later mechanically transposed to "GATT 1994".
The United States submits that, in the context of the 1979 Anti‑Dumping Code, the meaning of the footnote to Article 16.1 was clear. No action against dumping could be taken except consistently with the General Agreement. This merely restates the basic principle of pacta sunt servanda: every treaty in force is binding on the parties to it and must be performed by them in good faith. However, it is also clear that there was never any intention to eliminate the other GATT‑consistent options available to address a factual situation that constituted a case of injurious dumping.237 Thus, for example, a contracting party that was a Party to the 1979 Anti‑Dumping Code retained the option to address such dumping by eliminating the injury, for instance by raising the duty on the product concerned on an MFN basis to a level not in excess of the relevant tariff binding. Or it could renegotiate the duty on the product consistent with Article XXVIII. Or it could provide adjustment assistance for the industry or workers injured by the dumping. Or, if the factual situation also supported the taking of a safeguard action under Article XIX or a countervailing duty under Article VI, the contracting party concerned could pursue those avenues.
The United States argues that, read literally, Article 16.1 alone might have been misinterpreted to lock any government into levying anti‑dumping duties whenever it was faced with a factual situation constituting injurious dumping. The footnote preserved flexibility to take any other measure that was otherwise GATT‑consistent.
The United States considers that the same conclusions hold today. If a Member is faced with a factual situation constituting injurious dumping, it is not locked into levying anti‑dumping duties, but has the option of taking other measures that are in accordance with the GATT 1994. If the measure is of a nature that is simply not regulated by the GATT 1994, as is the case for the 1916 Act, the measure is a fortiori consistent with the GATT 1994.
It is the United States' position in the present case, of course, that the 1916 Act should not be viewed as an action against dumping in the first place. Rather, under US law, the 1916 Act has been interpreted as an anti‑trust statute. More fundamentally, it is a statute whose elements are not the same as the "dumping" and "injury" elements of Article VI of the GATT 1994 and the Anti‑Dumping Agreement and therefore is not subject to Article VI:2 and Article 18.1.
Japan maintains its view that Article VI of the GATT 1994 and the Anti‑Dumping Agreement set forth the only WTO-consistent means of addressing dumping. First of all, the US interpretation of footnote 24 is incorrect. The text of Article 18.1 and footnote 24 of the Anti‑Dumping Agreement reaffirm the understanding that Article VI of the GATT 1994 is the sole GATT-authorized remedy for dumping. The plain meaning of Article 18.1 could not be more explicit. "No specific action" can be taken to address dumping except action that follows the requirements of Article VI of the GATT 1994. Footnote 24 provides that "appropriate" action under other provisions of the GATT 1994, such as a safeguard remedy, may be imposed where the WTO requirements for doing so are met. In other words, a Member may affect imports through actions
236 The United States refers to room document no. 625, dated 6 April 1992, p. 30.
237 The United States refers to J. H. Jackson, , The Bobbs-Merrill Co. (1969), p. 411 where it is stated that "although Article VI carves out an exception to GATT obligations for antidumping and countervailing duties, nevertheless, measures that do not violate other GATT provisions can also be used to counteract dumping or subsidies."