WT/DS162/R/Add.1 Page 77
measures that attempt to counteract injurious dumping through the imposition of duties, based on findings of "dumping" and "injury."
The United States further argues that an anti‑trust law or measure addressing private anti‑competitive conduct, such as predatory pricing, through the imposition of treble damages ‑ as does the 1916 Act ‑ is not governed by Article VI for two independent reasons. First, it is not a law or measure that imposes any type of border adjustment; it is an internal law or measure. Second, it is not an anti‑dumping law or measure; it addresses private anti-competitive conduct rather than injurious dumping.
The United States asserts that, if an anti‑trust law or measure addressed private anti‑competitive conduct, such as predatory pricing, through the imposition of duties on the imported product, it still would not be governed by Article VI, given that it is not an anti‑dumping law or measure. It would, however, be governed by ‑ and inconsistent with ‑ Article II:1(b), which provides that an importing Member shall not impose duties on another Member's products in excess of the bound rate. Article II:2 does recognize certain situations where duties may nevertheless be imposed, as discussed above, such as "any anti‑dumping […] duty applied consistently with the provisions of Article VI," but there is no provision that would apply to an anti‑trust law or measure addressing private anti-competitive conduct.
The United States contends, finally, that, if an anti‑dumping law or measure addressed injurious dumping through the imposition of damages, it, too, would not be governed by Article VI, given that it did not impose duties and therefore would not even be any type of border measure. Instead, it would be governed by Article III:4, and the treatment accorded to imported products by that anti‑dumping law or measure would have to be no less favourable than the treatment accorded to domestic products by any comparable domestic law or measure. In all likelihood, moreover, the anti‑dumping law or measure would violate Article III:4, given that national anti‑trust regimes generally base liability for low pricing on factors such as the possession of a large market share and predation.
In summing up, the United States notes that, in the case of Article III:4, it is the nature of the measures imposed in application of the law that is dispositive as to whether or not Article III:4 governs. As discussed above, a specific law or measure falls under Article III:4 when it can be characterised as an "internal" law or measure, and an "internal" law or measure is one that affects the internal sale, offering for sale, purchase, transportation, distribution or use of an imported product. An "internal" law or measure is not one that imposes duties at the border. The fact that the law may target specific practices, such as in the anti‑dumping sense or the anti‑trust sense, is irrelevant under Article III:4.
The United States notes that, in contrast, in the case of Article VI, both the nature of the measures imposed in application of the law and the fact that the law may target specific practices must be considered to determine whether or not Article VI governs. As discussed above, Article VI governs a particular type of law or measure, namely, one that makes a border adjustment, and then only if it is in the form of the imposition of duties on an imported product. Second, the law or measure must also be an anti‑dumping law or measure, in the sense that it attempts to counteract injurious dumping based on findings of "dumping" and "injury."