10 - United States – Anti-Dumping Act of 1916 (Original Complaint by the European Communities) – Recourse to Arbitration by the United States under 22.6 of the DSU, WT/DS136/ARB, 24 February 2004: A Legal and Economic Analysis

Summary

Introduction

This arbitration on the level of countermeasures, pursuant to the Dispute Settlement Understanding (DSU) 22.6, originates from findings against the United States with respect to a provision of the 1916 Anti-Dumping Act, which permits a private cause of action for treble damages against an alleged dumping importer or producer where the dumping meets certain criteria including, notably, a predatory intention. An unusual feature of this case is that, apparently, the provision in question has never been used, at least against the European Community (EC), the complainant. In any case, the provision in question was found to be in violation of the WTO Anti-Dumping Agreement, both because it would impose measures on dumping other than and in addition to anti-dumping duties, and because in so doing, the procedural requirements of the Anti-Dumping Agreement would not be followed.

Legal issues

Article 22.4 of the WTO DSU provides that, where a Member suspends concessions in response to the failure of the losing party to implement a dispute settlement ruling where that Member was the complaining party, “The level of suspension of concessions or other obligations authorized by the DSB shall be equivalent to the level of the nullification or impairment.” The United States – Anti-Dumping Act of 1916 Arbitration addresses the meaning of equivalence between the violation of international law and the countermeasures that respond to the violation.