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At issue in this case was the compatibility of the United States Antidumping Act of 1916 (hereinafter also: the 1916 Act) with the WTO anti-dumping regime. This statute allows, under certain conditions, civil actions and criminal proceedings to be brought against importers who have sold foreign-produced goods in the United States at prices that are substantially less than the prices at which the same products are sold in a relevant foreign market.
The annotated case was brought on complaints by the EC and Japan. These complaints were considered in separate proceedings by a panel of the same composition in early 2000.1 In essence, panel found substantial violations of art. VI GATT 1994 and the Agreement on Implementation of Article VI of the GATT 1994 (hereinafter: the Anti-Dumping Agreement). In a report adopted on September 26, 2000, the Appellate Body (hereinafter also: AB) upheld these findings.2
Several aspects of this case make it worth exploring:
1. This case is of a certain importance for the understanding the scope of the WTO antidumping regime. At the core of this case was the question whether the 1916 Act could be regarded as an anti-dumping law for WTO purposes.
2. The case raises interesting procedural and methodological issues of WTO dispute settlement. For the first time, a panel and the AB were called upon to review legislation as such for its conformity with the WTO anti-dumping provisions. This raised questions about the scope of jurisdiction of panels to review such claims and the conditions to be fulfilled for legislation as such to be found in violation of WTO rules. Another unique aspect of the case is that it involved the review of domestic legislation as old as the Antidumping Act of 1916, enacted in a wholly different pre-GATT era and by the time of the proceedings `surrounded' by sometimes contradictory interpretations by different interpreters. This made it necessary for the panels to revisit the question on the proper examination of domestic law for purposes of determining its WTO (non-)conformity.
3. This case involved a confrontation between three powerful WTO members -US vs. EC and Japan - and resulted in findings of substantial violations of US legislation. Previous cases have shown that settlement of such disputes requires more than mere technical interpretation and application of WTO law. It will be of some interest to see whether and how this influenced the methodological and procedural approach of the panel.
Comments on these aspects are reserved for part IV of this paper.
The second and third parts of this paper are largely descriptive. Part II aims to provide a factual and procedural background to the case. First, I will provide a primer on the Antidumping Act 1916, the `fact' of the case, emphasizing in particular the discourse on its hybrid nature in US law and its somewhat deceiving characterization as a rather obscure, unimportant statute. This is followed by a short overview of the procedural background to the case. Part III consists of an overview of the panel and AB reports.
1 See Panel report on US - Anti-Dumping Act of 1916, WT/DS136/R, 14 February 2000 (hereinafter: EC panel report) and Panel report on US - Anti-Dumping Act of 1916, WT/DS162/R, 31 March 2000 (hereinafter: Japan panel report).
2 See Appellate Body report on US - Anti-Dumping Act of 1916, WT/DS136/AB/R and WT/DS162/AB/R, adopted on 26 September 2000 (hereinafter: Appellate Body report).