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WT/DS162/R/Add.1 Page 83

national treatment concerns under Article III:4 of the GATT 1994.  The 1916 Act has rarely been invoked by private parties, and has never been invoked by the US government.  More importantly,  the 1916 Act establishes a standard for relief which has never been met in the case of importers and imported goods.  The RobinsonPatman Act, by contrast, has been successfully invoked in thousands of federal court and administrative cases, including a substantial number pursued administratively by the Federal Trade Commission.  In short, the historical applications record clearly establishes that the 1916 Act treats importers and imported goods more favourably than the RobinsonPatman Act treats US sellers and their goods.  


The United States recalls, furthermore, that the 1916 Act is intended to prevent unfair competition by extending the prohibitions of unfair competition in domestic commerce embodied in Section 2 of the Clayton Act of 1914 to importers.272  Consistent with that construction, the prevailing interpretation among the courts that have considered the 1916 Act is either an explicit or implicit endorsement of the following principles enunciated by the District Court in Zenith III:

"The principal lesson which we draw from the legislative history of the 1916 Act, viewed against the historical background of the first Wilson administration, is that the statute should be interpreted whenever possible to parallel the "unfair competition" law applicable to domestic commerce.  Since the 1916 Antidumping Act is a price discrimination law, it should be read in tandem with the domestic price discrimination law, section 2 of the Clayton Act, which was amended by the RobinsonPatman Act in 1936."273


According to the United States the prevailing judicial interpretation therefore is that the 1916 Act should not be applied to importers and imported goods more rigorously than the Clayton Act as amended by the RobinsonPatman Act is applied to domestic sellers and goods.  Thus, for example, in Zenith III, the District Court expressly determined:

"[The 1916 Act] was intended to complement the antitrust laws by imposing on importers substantially the same legal strictures relating to price discrimination as those which had already been imposed on domestic businesses by the Clayton Antitrust Act of 1914.274


[I]n order to be faithful to the intention of Congress to subject importers to "the same unfair competition law" [that is applicable to domestic commerce], we should not interpret the 1916 Act to impose on importers legal strictures which are more rigorous than those applied to domestic enterprises."275

272 The United States notes that the European Communities recognizes that the RobinsonPatman Act "only applies to price discrimination committed in the US", and that the 1916 Act "may be considered to complement it" by virtue of its applicability to "price discrimination practised between the domestic market of the producer and an export market".  In fact, with respect to imported products, the 1916 Act and the RobinsonPatman Act do address different sets of factual circumstances in a complementary way.  The 1916 Act applies only to imported products that are, inter alia, sold in the United States at prices "substantially less" than their prices in certain foreign markets.  As a consequence, establishing liability under the 1916 Act requires, inter alia, comparing prices in foreign markets with prices in the US market.  By contrast, the RobinsonPatman Act applies only to domestic and imported products that are sold at different prices within the United States; the prices of these products in foreign markets are irrelevant.

273 Zenith III, Op. Cit., p. 1223; the United States also refers to ibid., p. 1214 where it is stated that "[a]s a price discrimination statute, the Antidumping Act of 1916 is functionally similar to the price discrimination statutes which are applicable to domestic business."

274 Ibid., p. 1197.

275 Ibid., p. 1223.

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