WT/DS162/R/Add.1 Page 70
The United States argues that, for these reasons, even if the Panel somehow were to rule that the 1916 Act was governed by Article VI of the GATT 1994, it should nevertheless find that nothing in Article VI or Article 18.1 of the Anti‑Dumping Agreement makes anti‑dumping duties the exclusive remedy for injurious dumping. Rather, the only requirement emanating from Article VI and the Anti‑Dumping Agreement is that any other action taken by a Member with respect to injurious dumping must be consistent with other GATT 1994 provisions. As Article III:4 is the only other GATT 1994 provision under which Japan makes a claim in the present proceeding, any violation of Article VI and the Anti‑Dumping Agreement in the present proceeding would have to be predicated on a violation of Article III:4, and that is not something that Japan has established.243
Japan argues that Article III is irrelevant in this context. It does not enable a Member to take specific measures against dumping. A Member may take measures permitted under other WTO provisions in a situation where there exists dumping. However, the United States does not and cannot identify any other WTO provision to justify the imposition of imprisonment, treble damages etc. The United States again attempts to escape from its burden to prove that imposition of imprisonment, treble damages, etc. are WTO-consistent and that anti‑dumping duties are not the exclusive remedy for dumping. The United States refers to Professor Jackson's assertion that "measures that do not violate other GATT provisions can also be used to counteract dumping". This statement is in line with Japan's statement and does not support the US argument.
Japan notes that, in a contorted new argument in support of its contention, the United States asserts that the 1916 Act is not within the scope of Article VI of the GATT 1994 and the Anti‑Dumping Agreement, but rather is governed by Article III:4 of the GATT 1994. Thus, since it would be a measure permitted by another WTO provision, anti‑dumping duties are not the exclusive remedy for dumping. The logical fallacy is obvious.244 If a law is not an anti‑dumping law, the fact that other provisions may be violated is not relevant to the issue of whether measures other than anti‑dumping duties are permitted in order to offset dumping. In all of its argumentation, the United States has been unable to explain how the 1916 Act's penalties - imprisonment, treble damages, fines and costs - are measures permitted under other WTO provisions. In answer to Japan's question, the United States says that if there is an analogous domestic statute providing capital punishment or life-term imprisonment, a Member can provide such remedies against dumping. This US interpretation runs counter not only to relevant WTO provisions but also to the objectives of the WTO regime.
The United States, in reaction to Japan's hypothetical examples of capital punishment or life imprisonment as remedies for 1916 Act violations, states that these are not among the (unused) criminal remedies provided in the 1916 Act itself. If they were, they would violate the national treatment provisions of Article III of the GATT 1994 unless and until the United States began to execute domestic price discriminators. The United States does not do that.
In response to a question of the Panel regarding the meaning of the word "measure" in Article 1 of the Anti‑Dumping Agreement as opposed to that of the word "action" in Article 18.1 of the Anti‑Dumping Agreement and footnote 24 attached thereto, Japan notes that the term "measure"
243 In response to a question of Japan regarding whether the 1916 Act would be a GATT-consistent measure if sanctions against injurious dumping included capital punishment or life-term imprisonment, the United States notes that the question wrongly implies that the 1916 Act is a sanction against injurious dumping. Apart from this, if those remedies were allowed under the 1916 Act, it would be inconsistent with Article III:4 as there is no analogous domestic statute providing for those remedies.
244 In response to a question of the United States, Japan confirms its view that Article VI governs any and all measures taken in order to offset dumping regardless of whether the measure is applied at the border or within the border.