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WT/DS162/R/Add.1 Page 68

authorized by other provisions of the GATT 1994. For example, in a situation involving dumping (i.e. where the requirements for imposing an antidumping duty were met), a Member could impose a safeguard measure after complying with the provisions of the WTO Safeguards Agreement.238

3.24

Japan notes, however, that the footnote does not authorize remedies other than antidumping duties to counteract dumping.  The only "specific action" permitted "in accordance" with Article VI is imposition of antidumping duties after certain requirements have been met.  In the instant case, no provision of the GATT 1994 justifies the procedures and penalties provided for by the 1916 Act.  If the US interpretation were correct, a Member could take any measure in addition to antidumping duties after completing an investigation in accordance with the AntiDumping Agreement.239

3.25

Japan considers that the US interpretation in the present proceeding clearly departs from previous official US positions.  The analysis by USTR General Counsel Alan Holmer to the US Senate Finance Committee clearly supports Japan's position.  He testified that "the use of additional sanctions, such as fines, embargoes, imprisonment or other draconian measures" was not permitted, and that Article 16 (now Article 18.1 of the AntiDumping Agreement) allows a government to provide its citizens only one remedy for dumping - the collection of antidumping duties.

3.26

The United States responds that, first of all, Article VI does not govern all laws and measures that impose border adjustments or even all laws and measures that impose border adjustments in the form of duties.  It only governs laws and measures that attempt to counteract injurious dumping through the imposition of duties, based on findings of "dumping" and "injury", as is clear from the GATT 1947 panel report in United States Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada.240  There, the panel report first discusses one of two basic GATT 1947 provisions that prohibits duties from being imposed.  That provision is Article I:1, and it provides that duties and charges of any kind imposed in connection with importation must meet the mostfavourednation standard.  The other one, according to the panel report, is Article II:1, which provides that an importing Member shall not impose duties on another Member's products in excess of the rate set forth in the importing Member's Schedule of Concessions, i.e. the bound rate.  Specifically, Article II:1(b) provides that a Member's products

"[…] shall […] be exempt from ordinary customs duties in excess of those set forth and provided [in the importing Member's Schedule of Concessions]. Such products shall also be exempt from all other duties or charges of any kind imposed on or in connection with the importation in excess of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date."

238 In response to a question of the Panel regarding the interpretation of footnote 24, Japan notes that, for example, safeguard action consistent with Article XIX of the GATT 1994 might well have the incidental effect of stopping "dumped" imports as a result of the action, but the objective of the action itself would not be to address the dumping.  According to Japan, footnote 24 thus simply avoids the possible conflict between other WTO actions against imports and the obligation under Article 18.1 of the AntiDumping Agreement not to take other actions against dumping.

239 Japan notes, in this regard, that, under the US interpretation, footnote 24 would completely contradict the main point of Article 18.1 – that countries may not take any action against dumping other than the imposition of antidumping duties.

240 The United States refers to the Panel Report on in United States Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada, adopted on 11 July 1991, BISD 38S/30, para. 4.4 (hereinafter "United States – Pork").

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