X hits on this document

340 views

0 shares

0 downloads

0 comments

74 / 130

WT/DS162/R/Add.1 Page 71

in Article 1 of the AntiDumping Agreement refers to provisional measures pursuant to Article 7, price undertakings pursuant to Article 8, and anti­dumping duties pursuant to Article 9 of the AntiDumping Agreement.  All of these types of actions must comply with the AntiDumping Agreement.

3.37

Japan argues that the term "action" in Article 18.1, in contrast, is intentionally broader.  Because "action" is not defined in the AntiDumping Agreement, its meaning should be determined by "reference to its ordinary meaning, read in light of its context, and the object and purposes" of the AntiDumping Agreement.245  The drafters recognized that countries might be tempted to take other actions targeted at "dumping," and therefore drafted a clear statement that any such actions were not permitted.  "Action" thus covers any type of border measures, internal measures, procedural steps, or any other conduct to discipline dumping.  This distinction also is echoed by the use of the narrower term "applied" in Article 1 versus the broader term "taken" in Article 18.1.

3.38

The United States, in reply to the same question of the Panel, submits that, in interpreting the term "measure" in Article 1 of the AntiDumping Agreement, it is first necessary to consider that this term is modified by the term "antidumping."  When the term "antidumping measure" is read together with the plain meaning of the remainder of Article 1, it becomes clear that it means any of the measures provided for under the AntiDumping Agreement, which includes (1) provisional measures under Article 7, (2) price undertakings under Article 8 and (3) the imposition of antidumping duties under Article 9.  A review of the history of Article 1 further confirms this meaning.  In this regard, Article 1 of  the 1979 Tokyo Round AntiDumping Code only expressly addressed a measure in the form of an antidumping duty.  It provided that "[t]he imposition of an antidumping duty is a measure to be taken only" in the circumstances provided in Article VI and pursuant to the rules set forth in the AntiDumping Code.  As a technical correction, Article 1 of the AntiDumping Agreement was subsequently clarified to read that any measure provided for by the AntiDumping Agreement could be taken only in the circumstances provided in Article VI and pursuant to the rules set forth in the AntiDumping Agreement.  It is for this reason that it now refers to "[a]n antidumping measure" instead of only an antidumping duty.

3.39

The United States further notes that, with this meaning given to the term "antidumping measure," Article 1 of the AntiDumping Agreement can properly be interpreted as providing that if a Member takes a measure provided for by the AntiDumping Agreement, it may only do so in the circumstances provided in Article VI which means that findings of "dumping" and "injury" must be made and if it follows the rules set forth in the AntiDumping Agreement.  Article 1 does not explain what a Member can do if it takes action against dumping other than by resorting to one of the measures provided for under Article VI and the AntiDumping Agreement.  However, it plainly implies that measures other than those provided for in the AntiDumping Agreement can be taken against dumping.  That is why the second sentence of Article 1 explains that it is only addressing what can happen "in so far as action is taken under antidumping legislation or regulations."

3.40

The United States points out that Japan has not challenged the United States' taking of any of the three types of measures set forth in the AntiDumping Agreement.  It has only challenged the 1916 Act as such.  What this means is that in the absence of a challenge to one of the three specific measures identified in the AntiDumping Agreement, the Panel has no jurisdiction to make any findings with respect to any claims under the AntiDumping Agreement.  As the Appellate Body has made clear in Guatemala Cement, the only matters that may be challenged under the AntiDumping

245 Japan refers to the Appellate Body Report on Guatemala – AntiDumping Investigation Regarding Portland Cement from Mexico, adopted on 25 November 1998, WT/DS60/AB/R, para.70 (hereinafter Appellate Body Report on "Guatemala – Cement").

Document info
Document views340
Page views340
Page last viewedSun Dec 04 08:43:59 UTC 2016
Pages130
Paragraphs2054
Words82375

Comments