World Trade Organization

• Author: International Law Group

In June 1998, the European Communities (EU) requested consultations with the U.S. before the WTO regarding Title VIII of the U.S. Revenue Act of 1916 [39 Stat. 756, 15 U.S.C. Sections 71-74, Antidumping Act of 1916 or 1916 Act]. The consultations having been unsuccessful, the WTO set up a Dispute Settlement Panel (DSP) in February 1999.

The Antidumping Act of 1916 (the Act) provides, in essence, that an importer must not "commonly and systematically" sell foreign products at a "substantially" lower price than in the country of origin "with the intent of destroying or injuring an industry in the United States." Several subsequent U.S. laws build on, or relate to, the Act. These are the Tariff Act of 1930 and the 1936 Robinson-Patman Act. Before the 1970s, only one reported case dealt with the Act. No court has ever imposed the Act's criminal sanctions.

The EU contended that the 1916 Act does not square with Articles 1 and 18.1 of the Anti-Dumping Agreement because these provisions make anti-dumping duties the exclusive remedy for dumping. The U.S. objected to the Panel's consideration of these arguments because the EU had failed to include them in its request to set up a Panel.

The Panel disagrees. First of all, the WTO Anti-Dumping Agreement is closely linked to GATT. Furthermore, the WTO Agreement is a single treaty instrument. As for the interpretation of such a treaty, the Vienna Convention on Treaties Article 31(2) provides in part that "the context for the purpose of the interpretation of a treaty shall comprise, [...] the text [of the treaty], including its preamble and annexes ..." The Panel, therefore, must...