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in Article 1 of the Anti‑Dumping Agreement refers to provisional measures pursuant to Article 7, price undertakings pursuant to Article 8, and antidumping duties pursuant to Article 9 of the Anti‑Dumping Agreement. All of these types of actions must comply with the Anti‑Dumping Agreement.
Japan argues that the term "action" in Article 18.1, in contrast, is intentionally broader. Because "action" is not defined in the Anti‑Dumping 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 Anti‑Dumping 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.
The United States, in reply to the same question of the Panel, submits that, in interpreting the term "measure" in Article 1 of the Anti‑Dumping Agreement, it is first necessary to consider that this term is modified by the term "anti‑dumping." When the term "anti‑dumping 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 Anti‑Dumping Agreement, which includes (1) provisional measures under Article 7, (2) price undertakings under Article 8 and (3) the imposition of anti‑dumping 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 Anti‑Dumping Code only expressly addressed a measure in the form of an anti‑dumping duty. It provided that "[t]he imposition of an anti‑dumping duty is a measure to be taken only" in the circumstances provided in Article VI and pursuant to the rules set forth in the Anti‑Dumping Code. As a technical correction, Article 1 of the Anti‑Dumping Agreement was subsequently clarified to read that any measure provided for by the Anti‑Dumping Agreement could be taken only in the circumstances provided in Article VI and pursuant to the rules set forth in the Anti‑Dumping Agreement. It is for this reason that it now refers to "[a]n anti‑dumping measure" instead of only an anti‑dumping duty.
The United States further notes that, with this meaning given to the term "anti‑dumping measure," Article 1 of the Anti‑Dumping Agreement can properly be interpreted as providing that if a Member takes a measure provided for by the Anti‑Dumping 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 Anti‑Dumping 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 Anti‑Dumping Agreement. However, it plainly implies that measures other than those provided for in the Anti‑Dumping 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 anti‑dumping legislation or regulations."
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 Anti‑Dumping 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 Anti‑Dumping Agreement, the Panel has no jurisdiction to make any findings with respect to any claims under the Anti‑Dumping Agreement. As the Appellate Body has made clear in Guatemala ‑ Cement, the only matters that may be challenged under the Anti‑Dumping
245 Japan refers to the Appellate Body Report on Guatemala – Anti‑Dumping Investigation Regarding Portland Cement from Mexico, adopted on 25 November 1998, WT/DS60/AB/R, para.70 (hereinafter Appellate Body Report on "Guatemala – Cement").