WT/DS162/R/Add.1 Page 74
Japan notes that, in contrast, the 1916 Act requires only a showing of intent. Moreover, the intent requirement is defined as an intent to destroy or injure a United States industry or to prevent its establishment; thus, the 1916 Act has no "materially" requirement. The 1916 Act also provides for the application of penalties based merely upon a showing of the price differential discussed above and intent, a requirement that differs substantially from that set forth in the WTO agreements. This directly contravenes the United States' obligations under Article VI of the GATT 1994 and Article 3 of the Anti‑Dumping Agreement.
Japan points out, fourth, that Articles 4 and 5 of the Anti‑Dumping Agreement set forth requirements limiting the party or parties that properly may pursue an anti‑dumping claim. Specifically, they require that a request be made "by or on behalf of the domestic industry".251 In contrast, as shown by Geneva Steel and Wheeling-Pittsburgh, a single United States producer of a like product may advance a claim under the Anti‑Dumping Act of 1916.252 Japan notes, in addition, that Article 5 requires that petitions contain evidence of the three elements of dumping, injury and causation, and set a de minimis threshold applicable to the dumping element. The 1916 Act contains none of these requirements. Rather, an 1916 Act plaintiff needs only to present a "short and plain statement" of its claim.253 Finally, Article 5.10 of the Anti‑Dumping Agreement requires Members to complete their investigations and decide whether or not to impose duties within 18 months. The 1916 Act contains no such deadline. Therefore, the Act is inconsistent with Article VI of the GATT 1994 and Articles 4 and 5 of the Anti‑Dumping Agreement.
Japan submits, fifth, that Article 9 of the Anti‑Dumping Agreement sets forth the regime which Members must apply when imposing and collecting anti‑dumping duties. The 1916 Act, however, ignores this regime. It provides for the US government to collect fixed monetary penalties and for private litigants to collect treble damages and attorneys costs without complying with any of the requirements of Article 9. Moreover, it ignores the Article 9.3 command that the penalty not exceed the margin of dumping and, further, imposes imprisonment as a penalty. In addition, the 1916 Act violates Article VI and Article 9 because it imposes retroactive, punitive penalties on importers, including treble damages and imprisonment. In contrast, Article 9, and especially Article 9.2, specifies that the remedy of anti‑dumping duties is a prospective measure. A review of Article 11 of the Anti‑Dumping Agreement further confirms this fact. Thus, the Act violates Article VI of the GATT 1994 and Article 9 of the Anti‑Dumping Agreement.
Japan argues, finally, that Article 11 of the Anti‑Dumping Agreement limits the duration of anti‑dumping measures and requires periodic reviews of the need for continued imposition of anti‑dumping duties. The 1916 Act has no provisions regarding either duration or review. Thus, the Act violates Article VI of the GATT 1994 and Article 11 of the Anti‑Dumping Agreement.
251 Japan refers to Article 5.1 of the Anti‑Dumping Agreement. Japan also notes that Article 4.1 defines "domestic industry" as "the domestic producers as a whole of the like products or […] those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products" and that Article 5.4 requires authorities to determine that a petition is supported by "those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product" of those producers supporting or opposing the petition. Japan notes that under no circumstances can an investigation be initiated if those supporting it account for less than 25 per cent of total domestic production of the like product.
252 Japan refers to the 1916 Act which states that "[a]ny person injured […] may sue therefor in the district court […]" (emphasis added by Japan). Japan notes the contrast with the Report of the Group of Experts on 'Anti‑Dumping and Countervailing Duties,' adopted on 13 May 1959, BISD 8S/145, para. 18 where it is stated that "the use of anti‑dumping duties to offset injury to a single firm within a large industry […] would be protectionist […]".
253 Japan refers to the US Federal Rule of Civil Procedure 8(a)(2).