WT/DS162/R/Add.1 Page 73
The United States argues that it should be clear that Article 18.1 and footnote 24 do not even purport to address or place any limitation on a measure like the 1916 Act. First, the 1916 Act does not regulate particular import transactions or even imports generally; it only imposes liability on an importer. Second, the 1916 Act is not directed at dumping; it is directed at private anti-competitive conduct typically condemned by anti‑trust laws. Of course, the Panel need not reach any of these issues because the 1916 Act, in the first place, is not even subject to Article VI of the GATT 1994 or the Anti‑Dumping Agreement.
H. VIOLATIONS OF ARTICLE VI:1 OF THE GATT 1994 AND ARTICLES 1, 2, 3, 4, 5, 9 AND 11 OF THE ANTI-DUMPING AGREEMENT
Japan asserts that the 1916 Act violates the requirements set forth in Article VI of the GATT 1994 and in numerous provisions of the Anti‑Dumping Agreement because it requires the imposition of impermissible anti‑dumping remedies in situations where the procedural requirements for applying the one permitted remedy are not met.
Japan asserts, first, that the 1916 Act provides for the application of remedies against dumping outside the circumstances specified at Article VI:1 of the GATT 1994 and Article 1 of the Anti‑Dumping Agreement. Specifically, the 1916 Act provides for the imposition of measures in the absence of an investigation (i) initiated and conducted in accordance with the provisions of and (ii) which establishes facts required by Article 1 of the Anti‑Dumping Agreement.248 Therefore, the Act is inconsistent with Article VI of the GATT 1994 and Article 1 of the Anti‑Dumping Agreement.
Japan recalls, second, that the 1916 Act prohibits importation of a product at a price "substantially less" than the "actual market value or wholesale price of [the product] […] in the principal markets of the country of their production, or of other foreign countries to which they are commonly exported […]." Article VI:1(a) of the GATT 1994 and Articles 2.1 and 2.2 of the Anti‑Dumping Agreement, in contrast, require that the first benchmark against which the price of the imported product is compared be the actual price of the product in the exporting country.249
Japan notes that, in addition, Article 2.4.1 of the Anti‑Dumping Agreement provides those against whom dumping is alleged, protection against currency fluctuations. The 1916 Act provides no such protection. Japan considers, therefore, that the 1916 Act is inconsistent with Article VI:1(a) of the GATT 1994 and Article 2 of the Anti‑Dumping Agreement, because it deviates from their requirements.
Japan argues, third, that Articles VI:1 and VI:6(a) of the GATT 1994, and Article 3 of the Anti‑Dumping Agreement, require a Member to find that the dumping has caused or threatens to cause material injury to its domestic industry (or retards the establishment of a domestic industry) before applying an anti‑dumping measure.250 These Articles also set forth criteria which define and govern the determination of injury. For example, paragraphs 1, 2 and 4 of Article 3 of the Anti‑Dumping Agreement set forth factors which a Member must examine in determining whether injury has occurred—volume and impact of prices of dumped imports, etc..
248 Japan refers to the Panel Report on New Zealand – Imports of Electrical Transformers from Finland, adopted on 18 July 1985, BISD 32S/55, para. 4.4, where it is stated that "it was clear from the wording of Article VI that no anti‑dumping duties should be levied until certain facts had been established".
249 Japan recalls that, under Article VI:1(a) and Article 2.1, the primary and preferred benchmark for comparison is "the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country."
250 Japan refers to the Panel Report on Swedish Anti‑Dumping Duties, adopted on 26 February 1955, BISD 3S/81, para. 8, where it is states that "[t]he importing country is only entitled to levy an anti‑dumping duty when there is material injury to a domestic industry […].".