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> US — Continued Suspension / Canada — Continued Suspension, para. 435
> US — Continued Suspension / Canada — Continued Suspension, paras. 445-446
> US — Continued Suspension / Canada — Continued Suspension, paras. 450-451
> US — Continued Suspension / Canada — Continued Suspension, para. 455
> US — Continued Suspension / Canada — Continued Suspension, para. 459
> US — Continued Suspension / Canada — Continued Suspension, para. 481
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R.6.1 US — Continued Suspension / Canada — Continued Suspension,
para. 435 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
These due process considerations are reflected in the Rules of
Conduct. Section II (Governing Principle) of the Rules of Conduct provides
that all covered persons, such as panellists and experts advising panels:
… shall be independent and impartial, shall avoid direct or indirect
conflicts of interest and shall respect the confidentiality of proceedings
of bodies pursuant to the dispute settlement mechanism, so that through
the observance of such standards of conduct the integrity and impartiality
of that mechanism are preserved.
R.6.2 US — Continued Suspension / Canada — Continued Suspension,
paras. 445-446 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
The requirements under Section VI of the Rules of Conduct relate,
as the title indicates, to the self-disclosure obligation of covered
persons, including experts. The Rules of Conduct do not provide for
automatic exclusion of a covered person upon the disclosure of information
pursuant to Section VI and the Illustrative List of Information to be
Disclosed, which is attached to the Rules of Conduct as Annex 2.
However, we fail to see on what basis a panel, presented with information
likely to affect or give rise to justifiable doubts as to the independence
or impartiality of an expert, could choose to consult such an expert.
We do not agree, however, with the European Communities’
characterization of Section VI.2 as setting out a “low” standard. On
the contrary, we consider the standard set forth in Section VI.2 to be a
strict one. Covered persons should be encouraged to disclose any
information that may be relevant for purposes of ascertaining whether
there may be justifiable doubts as to their independence or impartiality.
Disclosure should not lead to automatic exclusion. Whether the disclosed
information is likely to affect or give rise to justifiable doubts as to
the person’s independence or impartiality must be objectively determined
and properly substantiated. In the case of an expert, the panel should
assess the disclosed information against information submitted by the
parties or other information that may be available. It should then
determine whether, on the correct facts, there is a likelihood that the
expert’s independence and impartiality may be affected, or if
justifiable doubts arise as to the expert’s independence or
impartiality. If this is indeed the case, the panel must not appoint such
person as an expert.
R.6.3 US — Continued Suspension / Canada — Continued Suspension,
paras. 450-451 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
… The purpose of the self-disclosure statement is to reveal relevant
facts that would allow the Panel to determine whether the information is
likely to affect or give rise to justifiable doubts as to the expert’s
independence or impartiality. Instead, Dr Boisseau’s statement draws a
conclusion on a matter that was for the Panel to decide. Dr Boisseau’s
statement does not identify whether he has “worked for, been funded by,
or provided advice to, the industries concerned, or to domestic or
international regulatory bodies involved in issues similar to those
addressed in this dispute”. The statement does not mention his
affiliation with JECFA, nor the fact that he was the Chairman or
Vice-Chairman of JECFA panels that evaluated some of the hormones at issue
in this dispute. Also, Dr Boisseau’s position as a civil servant did not
itself shield him from having a conflict of interest. Thus, we agree with
the European Communities that Dr Boisseau’s statement would not appear
to comply fully with the requirements of Section VI.2 of the Rules of
Conduct or paragraph 4 of the Experts Working Procedures adopted by
the Panel.
… While panels should insist that self-disclosure requirements under
the Rules of Conduct are observed by potential experts, and while
parties are entitled to full self-disclosure by experts, we find that the
Panel did not exceed its authority in concluding that Dr Boisseau’s
brief statement, when considered together with the information contained
in his curriculum vitae, provided sufficient disclosure in this
case. Dr Boisseau’s curriculum vitae provides information about
his involvement with JECFA and his other professional activities.
R.6.4 US — Continued Suspension / Canada — Continued Suspension,
para. 455 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
… The European Communities does not provide argumentation explaining
why Dr Boisseau’s statement concerning the use of the hormones for
therapeutic purposes signifies that he would not be impartial in his views
concerning the use of these hormones for growth-promotion purposes. … In
addition, we do not consider that in this case the information about Dr
Boobis’ links to certain pharmaceutical companies provided an objective
basis to conclude that there were justifiable doubts as to his
impartiality or independence. … Thus, we consider that the Panel did not
exceed its authority in dismissing the European Communities’ objections
relating to disclosure statements given by Drs Boisseau and Boobis
pursuant to the Rules of Conduct and paragraph 4 of the Experts
Working Procedures adopted by the Panel.
R.6.5 US — Continued Suspension / Canada — Continued Suspension,
para. 459 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
… We agree with the Panel that Drs Boisseau and Boobis are highly
qualified scientists. We do not see the fact that Drs Boisseau and Boobis
are qualified and knowledgeable — and thus experts — as giving rise to
concerns about their impartiality and independence. On the contrary, we
would expect a person who is regarded as an expert to hold views, and even
very strong views, on his or her particular area of expertise. However, we
agree with the European Communities that the qualifications and relevant
knowledge of Drs Boisseau and Boobis are not by themselves sufficient
guarantees of their independence and impartiality. An expert could be very
qualified and knowledgeable and yet his or her appointment could give rise
to concerns about his or her impartiality or independence, because of that
expert’s institutional affiliation or for other reasons. Similarly, the
fact that JECFA may select its experts according to strict procedures does
not in itself ensure that these experts are independent and impartial in
respect of the issues that may arise in a WTO dispute.
R.6.6 US — Continued Suspension / Canada — Continued Suspension,
para. 481 back to top
(WT/DS320/AB/R, WT/DS321/AB/R)
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.
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documents which are entrusted and kept at the WTO Secretariat in Geneva.
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