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ON THIS PAGE:
> Canada — Aircraft, para. 187
> Canada — Aircraft, para. 203
> US — Wheat Gluten, para. 171
> US — Wheat Gluten, para. 173
> US — Wheat Gluten, para. 174
> US — Wheat Gluten, para. 175
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I.1.1 Canada — Aircraft,
para. 187 back to top
(WT/DS70/AB/R)
… we are of the view that the word “should” in the third
sentence of Article 13.1 is, in the context of the whole of Article 13,
used in a normative, rather than a merely exhortative, sense. Members
are, in other words, under a duty and an obligation to “respond
promptly and fully” to requests made by panels for information under
Article 13.1 of the DSU.
I.1.2 Canada — Aircraft,
para. 203 back to top
(WT/DS70/AB/R)
Clearly, in our view, the Panel had the legal authority and the
discretion to draw inferences from the facts before it — including the
fact that Canada had refused to provide information sought by the Panel.…
I.1.3 US — Wheat Gluten,
para. 171 back to top
(WT/DS166/AB/R)
… As the Appellate Body said in Canada — Aircraft, the
refusal by a Member to provide information requested of it undermines
seriously the ability of a panel to make an objective assessment of the
facts and the matter, as required by Article 11 of the DSU. Such a
refusal also undermines the ability of other Members of the WTO to seek
the “prompt” and “satisfactory” resolution of disputes under the
procedures “for which they bargained in concluding the DSU”.…
I.1.4 US — Wheat Gluten,
para. 173 back to top
(WT/DS166/AB/R)
We, therefore, characterized the drawing of inferences as a “discretionary”
task falling within a panel’s duties under Article 11 of the DSU.…
I.1.5 US — Wheat Gluten,
para. 174 back to top
(WT/DS166/AB/R)
… As we emphasized in Canada — Aircraft, under Article
11 of the DSU, a panel must draw inferences on the basis of all of
the facts of record relevant to the particular determination to be
made. Where a party refuses to provide information requested by a panel
under Article 13.1 of the DSU, that refusal will be one of the relevant
facts of record, and indeed an important fact, to be taken into account
in determining the appropriate inference to be drawn. However, if a
panel were to ignore or disregard other relevant facts, it would fail to
make an “objective assessment” under Article 11 of the DSU. In this
case, as the Panel observed, there were other facts of record
that the Panel was required to include in its “objective assessment”.…
I.1.6 US — Wheat Gluten,
para. 175 back to top
(WT/DS166/AB/R)
In reviewing the inferences the Panel drew from the facts of record,
our task on appeal is not to redo afresh the Panel’s assessment of
those facts, and decide for ourselves what inferences we would draw from
them. Rather, we must determine whether the Panel improperly exercised
its discretion, under Article 11, by failing to draw certain inferences
from the facts before it. In asking us to conduct such a review, an
appellant must indicate clearly the manner in which a panel has
improperly exercised its discretion. Taking into account the full ensemble
of the facts, the appellant should, at least: identify the facts on
the record from which the Panel should have drawn inferences; indicate the factual or legal
inferences that the panel should have drawn from those facts; and,
finally, explain why the failure of the panel to exercise its discretion
by drawing these inferences amounts to an error of law under Article 11
of the DSU.
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