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ON THIS PAGE:
> EC — Hormones, para. 147
> EC — Hormones, para. 148
> Argentina — Textiles and Apparel, paras. 82, 84
> US — Shrimp, para. 104
> US — Shrimp,
paras. 108-109
> Japan — Agricultural Products II, paras. 127-128
> Japan — Agricultural Products II, para. 129
> Canada — Aircraft, para. 185
> Canada — Aircraft, para. 187
> Canada — Aircraft, para. 203
> Thailand — H-Beams, para. 135
> EC — Sardines, para. 302
> US — Carbon Steel, para. 153
> EC — Bed Linen (Article 21.5
— India), para. 167
> US — Continued Suspension / Canada
— Continued Suspension, para. 436
> US — Continued Suspension / Canada
— Continued Suspension, paras. 480-481
> US — Continued Suspension / Canada
— Continued Suspension, para. 592
> US — Continued Suspension / Canada
— Continued Suspension, para. 615
> China — Auto Parts, para. 6
> US — Continued Zeroing, paras. 343-344
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S.4.1 EC — Hormones, para. 147 back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… Both Article 11.2 of the SPS Agreement and Article 13 of
the DSU enable panels to seek information and advice as they deem
appropriate in a particular case. …
… We find that in disputes involving scientific or technical
issues, neither Article 11.2 of the SPS Agreement, nor Article 13
of the DSU prevents panels from consulting with individual experts.
Rather, both the SPS Agreement and the DSU leave to the sound
discretion of a panel the determination of whether the establishment of
an expert review group is necessary or appropriate.
S.4.2 EC
— Hormones, para. 148 back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… The rules and procedures set forth in Appendix 4 of the DSU apply
in situations in which expert review groups have been established.
However, this is not the situation in this particular case.
Consequently, once the panel has decided to request the opinion of
individual scientific experts, there is no legal obstacle to the panel
drawing up, in consultation with the parties to the dispute, ad hoc rules
for those particular proceedings.
S.4.3 Argentina
— Textiles and Apparel, paras. 82, 84 back to top
(WT/DS56/AB/R,
WT/DS56/AB/R/Corr.1)
… The DSU gives panels different means or instruments for complying
with Article 11; among these is the right to “seek information and
technical advice” provided in Article 13 of the DSU. …
…
The only provision of the WTO Agreement that requires consultations
with the IMF is Article XV:2 of the GATT 1994. This provision requires
the WTO to consult with the IMF when dealing with “problems
concerning monetary reserves, balances of payments or foreign exchange
arrangements”. However, this case does not relate to these matters.
Article 13.1 of the DSU gives a panel “… the right to seek
information and technical advice from any individual or body which it deems
appropriate” (emphasis added). Pursuant to Article 13.2 of the DSU,
a panel may seek information from any relevant source and may consult
experts to obtain their opinions on certain aspects of the matter at
issue. This is a grant of discretionary authority: a panel is not
duty-bound to seek information in each and every case or to consult
particular experts under this provision. …
S.4.4 US
— Shrimp, para. 104 back to top
(WT/DS58/AB/R)
The comprehensive nature of the authority of a panel to “seek”
information and technical advice from “any individual or body” it
may consider appropriate, or from “any relevant source”, should be
underscored. This authority embraces more than merely the choice and
evaluation of the source of the information or advice which it
may seek. A panel’s authority includes the authority to decide not
to seek such information or advice at all. We consider that a panel
also has the authority to accept or reject any information or
advice which it may have sought and received, or to make some other
appropriate disposition thereof. It is particularly within the
province and the authority of a panel to determine the need for
information and advice in a specific case, to ascertain the acceptability
and relevancy of information or advice received, and to
decide what weight to ascribe to that information or advice or to
conclude that no weight at all should be given to what has been
received.
S.4.5 US
— Shrimp, paras. 108-109 back to top
(WT/DS58/AB/R)
… authority to seek information is not properly equated with
a prohibition on accepting information which has been submitted
without having been requested by a panel. A panel has the discretionary
authority either to accept and consider or to reject information and
advice submitted to it, whether requested by a panel or not. The
fact that a panel may motu proprio have initiated the request for
information does not, by itself, bind the panel to accept and consider
the information which is actually submitted. The amplitude of the
authority vested in panels to shape the processes of fact-finding and
legal interpretation makes clear that a panel will not be
deluged, as it were, with non-requested material, unless that panel
allows itself to be so deluged.
Moreover, acceptance and rejection of the information and advice of
the kind here submitted to the Panel need not exhaust the universe of
possible appropriate dispositions thereof. …
S.4.6 Japan
— Agricultural Products II, paras. 127-128 back to top
(WT/DS76/AB/R)
… Article 13 of the DSU allows a panel to seek information from
any relevant source and to consult individual experts or expert bodies
to obtain their opinion on certain aspects of the matter before
it. In our Report in [United States — Shrimp] [Appellate
Body Report, para. 104], we noted the “comprehensive nature” of this
authority, and stated that this authority is “indispensably necessary”
to enable a panel to discharge its duty imposed by Article 11 of the DSU
to “make an objective assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability
of and conformity with the relevant covered agreements …”.
Furthermore, we note that the present dispute is a dispute under the SPS
Agreement. Article 11.2 of the SPS Agreement explicitly instructs
panels in disputes under this Agreement involving scientific and
technical issues to “seek advice from experts”.
S.4.7 Japan
— Agricultural Products II, para. 129 back to top
(WT/DS76/AB/R)
Article 13 of the DSU and Article 11.2 of the SPS Agreement suggest
that panels have a significant investigative authority. However, this
authority cannot be used by a panel to rule in favour of a complaining
party which has not established a prima facie case of
inconsistency based on specific legal claims asserted by it. A panel is
entitled to seek information and advice from experts and from any other
relevant source it chooses, pursuant to Article 13 of the DSU and, in an
SPS case, Article 11.2 of the SPS Agreement, to help it to
understand and evaluate the evidence submitted and the arguments made by
the parties, but not to make the case for a complaining party.
S.4.8 Canada
— Aircraft, para. 185 back to top
(WT/DS70/AB/R)
It is clear from the language of Article 13 that the discretionary
authority of a panel may be exercised to request and obtain information,
not just “from any individual or body” within the jurisdiction of a
Member of the WTO, but also from any Member, including a
fortiori a Member who is a party to a dispute before a panel. This
is made crystal clear by the third sentence of Article 13.1, which
states: “A Member should respond promptly and fully to any
request by a panel for such information as the panel considers necessary
and appropriate” (emphasis added). It is equally important to
stress that this discretionary authority to seek and obtain information
is not made conditional by this, or any other provision, of the
DSU upon the other party to the dispute having previously established,
on a prima facie basis, such other party’s claim or defence.
Indeed, Article 13.1 imposes no conditions on the exercise of
this discretionary authority. Canada argues that the Panel in this case
had no authority to request the submission of information
relating to the EDC’s financing of the ASA transaction because Brazil
had not previously established a prima facie case that the
financial contribution offered by such financing conferred a “benefit”
on ASA and therefore satisfied that other prerequisite of a prohibited
export subsidy. This argument is, quite simply, bereft of any textual or
logical basis. There is nothing in either the DSU or the SCM
Agreement to sustain it. Nor can any support for this argument be
derived from a consideration of the nature of the functions and
responsibilities entrusted to panels in the WTO dispute settlement
system — a consideration which we essay below. …
S.4.9 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.
S.4.10 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.
…
S.4.11 Thailand
— H-Beams, para. 135 back to top
(WT/DS122/AB/R)
With respect to Thailand’s argument that the claims of Poland were
not sufficiently clear, and that the Panel, therefore, overstepped the
limits of its authority in asking questions of the parties, we note that
we have previously stated that panels are entitled to ask questions of
the parties that they deem relevant to the consideration of the issues
before them. In our Report in Canada — Measures Affecting
the Export of Civilian Aircraft, we dismissed the view that a panel
has no authority to ask a question relating to claims for which the
complaining party had not first established a prima facie case,
and stated that such an argument was “bereft of any textual or logical
basis”.
S.4.12 EC
— Sardines, para. 302 back to top
(WT/DS231/AB/R)
… Article 13.2 of the DSU provides that “[p]anels may seek
information from any relevant source and may consult experts to obtain
their opinion on certain aspects of the matter.” This provision is
clearly phrased in a manner that attributes discretion to panels, and we
have interpreted it in this vein. Our statements in EC — Hormones,
Argentina — Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items (“Argentina — Textiles
and Apparel”), and US — Shrimp, all support the
conclusion that, under Article 13.2 of the DSU, panels enjoy discretion
as to whether or not to seek information from external sources.
In this case, the Panel evidently concluded that it did not need to
request information from the Codex Commission, and conducted itself
accordingly. We believe that, in doing so, the Panel acted within the
limits of Article 13.2 of the DSU. A contravention of the duty under
Article 11 of the DSU to make an objective assessment of the facts of
the case cannot result from the due exercise of the discretion permitted
by another provision of the DSU, in this instance Article 13.2 of the
DSU.
S.4.13 US
— Carbon Steel, para. 153 back to top
(WT/DS213/AB/R,
WT/DS213/AB/R/Corr.1)
We also wish to underline that although panels enjoy a discretion,
pursuant to Article 13 of the DSU, to seek information “from any
relevant source”, Article 11 of the DSU imposes no obligation on
panels to conduct their own fact-finding exercise, or to fill in gaps in
the arguments made by parties. In consequence, given that the European
Communities itself had submitted no evidence — other than the text of
the provision — on this point, the Panel did not act inconsistently
with Article 11 in refraining from seeking additional information on its
own initiative.
S.4.14 EC
— Bed Linen (Article 21.5 — India), para. 167 back to top
(WT/DS141/AB/RW)
… a panel’s duty to “actively review the pertinent facts” in
order to comply with Article 17.6(i) of the Anti-Dumping Agreement does
not, in our view, imply that a panel must exercise its right to
seek information under Article 13 of the DSU, which explicitly states
that the exercise of that right is discretionary. Indeed, there
is nothing in the texts of Article 17.6(i) of the Anti-Dumping
Agreement or Article 13 of the DSU to suggest that a reading of
these provisions, in combination, would render mandatory the
exercise of a panel’s discretionary power under Article 13 of
the DSU… The mere fact that the Panel did not consider it necessary to
seek information does not, by itself, imply that the Panel’s exercise
of its discretion was not “due”. We, therefore, reject India’s
allegation that the Panel failed to comply with the requirements of
Article 17.6 of the Anti-Dumping Agreement by not seeking
information from the European Communities pursuant to Article 13 of the
DSU.
S.4.15 US
— Continued Suspension / Canada — Continued Suspension,
para. 436 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
Scientific experts and the manner in which their opinions are
solicited and evaluated can have a significant bearing on a panel’s
consideration of the evidence and its review of a domestic measure,
especially in cases like this one involving highly complex scientific
issues. Fairness and impartiality in the decision-making process are
fundamental guarantees of due process. Those guarantees would not be
respected where the decision-makers appoint and consult experts who are
not independent or impartial. Such appointments and consultations
compromise a panel’s ability to act as an independent adjudicator. For
these reasons, we agree with the view of the European Communities that
the protection of due process applies to a panel’s consultations with
experts. This due process protection applies to the process for
selecting experts and to the panel’s consultations with the experts,
and continues throughout the proceedings.
S.4.16 US
— Continued Suspension / Canada — Continued Suspension,
paras. 480-481 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
We understand that panels often face practical difficulties in
selecting experts who have the required level of expertise and whose
selection is not objected to by the parties. We do not wish to make the
expert selection process more difficult than it may already be. However,
experts consulted by a panel can have a decisive role in a case,
especially when it involves highly complex scientific questions such as
this one. … Experts appointed by a panel can significantly influence
the decision-making process. If a panel does not ensure that the
requirements of independence and impartiality are respected in its
consultations with the experts, this can compromise the fairness of the
proceedings and the impartiality of the decision-making. In these
circumstances, the practical difficulties that a panel may encounter in
selecting experts cannot displace the need to ensure that the
consultations with the experts respect the parties’ due process
rights.
For these reasons, we consider that there was an objective basis to
conclude that the institutional affiliation with JECFA of Drs Boisseau
and Boobis, and their participation in JECFA’s evaluations of the six
hormones at issue, was likely to affect or give rise to justifiable
doubts as to their independence or impartiality given that the
evaluations conducted by JECFA lie at the heart of the controversy
between the parties. The appointment and consultations with Drs Boisseau
and Boobis compromised the adjudicative independence and impartiality of
the Panel. Therefore, we find that the Panel infringed the
European Communities’ due process rights as a result of the Panel
having consulted with Drs Boisseau and Boobis as scientific experts.
S.4.17 US
— Continued Suspension / Canada — Continued Suspension,
para. 592 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
A panel may and should rely on the advice of experts in reviewing a
WTO Member’s SPS measure, in accordance with Article 11.2 of the SPS
Agreement and Article 13.1 of the DSU. In doing so, however, a panel
must respect the due process rights of the parties. Moreover, a panel
may not rely on the experts to go beyond its limited mandate of review.
The purpose of a panel consulting with experts is not to perform its own
risk assessment. The role of the experts must reflect the limited task
of a panel. The panel may seek the experts’ assistance in order to
identify the scientific basis of the SPS measure and to verify that this
scientific basis comes from a qualified and respected source,
irrespective of whether it represents minority or majority scientific
views. It may also rely on the experts to review whether the reasoning
articulated on the basis of the scientific evidence is objective and
coherent, and whether the particular conclusions drawn by the Member
assessing the risk find sufficient support in the evidence. The experts
may also be consulted on the relationship between the risk assessment
and the SPS measure in order to assist the panel in determining whether
the risk assessment “sufficiently warrants” the SPS measure. The
consultations with the experts, however, should not seek to test whether
the experts would have done a risk assessment in the same way and would
have reached the same conclusions as the risk assessor. In other words,
the assistance of the experts is constrained by the kind of review that
the panel is required to undertake.
S.4.18 US
— Continued Suspension / Canada — Continued Suspension,
para. 615 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
… We have found that the Panel did not apply the proper standard of
review. This is a legal error and does not fall within the authority of
the Panel as the trier of facts. Moreover, we have found instances in
which the Panel exceeded its authority in the assessment of the
testimony of the scientific experts. By merely reproducing testimony of
some experts that would appear to be favourable to the European
Communities’ position, without addressing its significance, the Panel
effectively disregarded evidence that was potentially relevant for the
European Communities’ case. This cannot be reconciled with the Panel’s
duty to make an “objective assessment of the facts of the case”
pursuant to Article 11 of the DSU.
S.4.19 China
— Auto Parts, para. 6 back to top
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
During the proceedings, the Panel sent two letters to the World
Customs Organization (the “WCO”) on 7 June 2007 and 16 July 2007,
requesting its assistance in matters relating to the Harmonized
Commodity Description and Coding System (the “Harmonized System”).
The WCO replied on 20 June 2007 and 30 July 2007 respectively, and the
parties were invited to provide comments on these replies.
S.4.20 US
— Continued Zeroing, paras. 343-344 back to top
(WT/DS350/AB/R)
Article 13 of the DSU gives panels “the right to seek information
and technical advice from any individual or body which it deems
appropriate”. The Appellate Body has explained that this is a
discretionary authority that panels may exercise in seeking information
“from any relevant source”. The Appellate Body has also explained
that, while panels have “broad authority to pose such questions to the
parties as it deems relevant for purposes of considering the issues that
are before it”, such authority cannot be used “to make the case for
a complaining party”.
The European Communities claims it explained to the Panel that the
USDOC does not disclose a complete listing of all transactions and
comparisons made in each periodic review. As a result, the European
Communities posited to the Panel that, “should the Panel consider
further corroboration appropriate, the Panel should request the United
States to provide copies of the detailed margin calculations for each of
the seven administrative reviews at issue”. We do not consider that
the Panel acted inconsistently with Article 13 of the DSU when it did
not seek such information. As noted, a panel’s authority to request
information under Article 13 of the DSU is discretionary, and there is
therefore no error that can be attributed to the Panel for its conduct
in respect of that Article.
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