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REPERTORY OF APPELLATE BODY REPORTS

Evidence


ON THIS PAGE:

Admissibility of evidence in panel proceedings
Panel’s review of evidence
Evidence in appellate proceedings


E.3.1 Admissibility of evidence in panel proceedings     back to top

E.3.1.1 Argentina — Textiles and Apparel, para. 79
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)

 

Article 11 of the DSU does not establish time limits for the submission of evidence to a panel. Article 12.1 of the DSU directs a panel to follow the Working Procedures set out in Appendix 3 of the DSU, but at the same time authorizes a panel to do otherwise after consulting the parties to the dispute. The Working Procedures in Appendix 3 also do not establish precise deadlines for the presentation of evidence by a party to the dispute. It is true that the Working Procedures “do not prohibit” submission of additional evidence after the first substantive meeting of a panel with the parties. It is also true, however, that the Working Procedures in Appendix 3 do contemplate two distinguishable stages in a proceeding before a panel. …

 

… Under the Working Procedures in Appendix 3, the complaining party should set out its case in chief, including a full presentation of the facts on the basis of submission of supporting evidence, during the first stage. The second stage is generally designed to permit “rebuttals” by each party of the arguments and evidence submitted by the other parties.

 

E.3.1.2 Argentina — Textiles and Apparel, paras. 80-81
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)

 

… the working procedures in their present form do not constrain panels with hard and fast rules on deadlines for submitting evidence. The Panel could have refused to admit the additional documentary evidence of the United States as unseasonably submitted. The Panel chose, instead, to admit that evidence, at the same time allowing Argentina two weeks to respond to it.The Panel could well have granted Argentina more than two weeks to respond to the additional evidence. However, there is no indication in the panel record that Argentina explicitly requested from the Panel, at that time or at any later time, a longer period within which to respond to the additional documentary evidence of the United States. Argentina also did not submit any countering documents or comments in respect of any of the additional documents of the United States.

 

… while another panel could well have exercised its discretion differently, we do not believe that the Panel here committed an abuse of discretion amounting to a failure to render an objective assessment of the matter as mandated by Article 11 of the DSU.

 

E.3.1.3 US — Shrimp, para. 104
(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.

 

E.3.1.4 US — Cotton Yarn, paras. 77-78 and footnote 51
(WT/DS192/AB/R)

 

The exercise of due diligence by a Member cannot imply, however, the examination of evidence that did not exist and that, therefore, could not possibly have been taken into account when the Member made its determination. The demonstration by a Member that a particular product is being imported into its territory in such increased quantities as to cause serious damage (or actual threat thereof) to the domestic industry can be based only on facts and evidence which existed at the time the determination was made. The urgent nature of such an investigation may not permit the Member to delay its determination in order to take into account evidence that might be available only at a future date. Even a determination on the existence of threat of serious injury must be based on projections extrapolating from existing data.

 

In our view, a panel reviewing the due diligence exercised by a Member in making its determination under Article 6 of the ATC has to put itself in the place of that Member at the time it makes its determination. Consequently, a panel must not consider evidence which did not exist at that point in time.51

 

E.3.1.5 US — Countervailing Duty Investigation on DRAMS, para. 159
(WT/DS296/AB/R)

 

In the course of making submissions before the Panel, the United States at several points attempted to rely on evidence that, although contained in the record of the CVD investigation, had not been cited in the USDOC’s decision. The Panel refused to consider this evidence on the ground that submission of such evidence constituted “ex post rationalization” on the part of the United States. The United States contends, however, that the Panel misunderstood the scope of this prohibition against “ex post rationalization”. According to the United States, this prohibition limits only a Member’s right to raise before a panel new reasons as the basis for its investigating authority’s challenged decision, but not the right to rely during panel proceedings on evidence that, although contained in the record of the investigating authority, is not explicitly referred to in its decision.

 

E.3.1.6 US — Countervailing Duty Investigation on DRAMS, paras. 161-165
(WT/DS296/AB/R)

 

There is no doubt that a Member may not seek to defend its agency’s decision on the basis of evidence not contained in the record of the investigation.

 

… [Article 1.1(a)(1)(iv) of the SCM Agreement], on its face, does not speak to the evidence that a Member may (or must) adduce before a panel to demonstrate “entrustment” or “direction”.

 

… We note, first, that the Panel itself did not seek to justify its treatment of the United States’ evidence on the basis of Article 22.5. Moreover, Korea does not allege that the facts for which the evidence at issue here was introduced were not set out in the USDOC’s final determination. Nor does Korea allege that those facts set out in the final determination were asserted without citation of any supporting evidence. Indeed, Korea could not so allege because the USDOC’s final determination did set out those facts and did seek to support those facts by referring to record evidence, even if not the precise evidence the Panel refused to consider. Thus, insofar as it relates to the evidence at issue here, the USDOC’s final determination provided Korea with notice of the factual bases of the finding of entrustment or direction, as well as notice of certain record evidence underlying each of those facts.

 

In these circumstances, we are of the view that Article 22.5 does not require the agency to cite or discuss every piece of supporting record evidence for each fact in the final determination.

 

In the light of the above, we find no basis for the Panel’s exclusion of the United States evidence in question. That evidence was on the record of the investigation and it was not put before the Panel in support of a new reasoning or rationale. We therefore find that the Panel erred … in declining to consider certain record evidence not cited by the USDOC in its published determination.

 

E.3.1.7 US — Countervailing Duty Investigation on DRAMS, paras. 166, 174
(WT/DS296/AB/R)

 

We consider now whether, as the United States alleges, the Panel erred in relying on evidence that was not on the record before the USDOC in the underlying CVD investigation.

 

 

Although the United States characterizes the error of the Panel as its reliance on non-record evidence, we note that the Panel explicitly agreed with the United States that its “review of the [US]DOC’s determination should be confined to facts actually recorded on the [US]DOC’s record of investigation”. The Panel insisted that its finding was based exclusively on “evidence on the [US]DOC’s record”, namely the 2001 Hynix Audit Report. The issue raised by the United States’ appeal, therefore, is not whether the evidence was contained in the record, but rather, whether the evidence contained in the record should have “indicate[d]” to the USDOC “that three of the four creditors exercising appraisal rights under option 3 actually exercised their right to seek mediation in respect of the October 2001 restructuring”.

 

E.3.1.8 US — Countervailing Duty Investigation on DRAMS, para. 189
(WT/DS296/AB/R)

 

Furthermore, with respect to the Panel’s refusal to admit certain evidence submitted by the United States, we note that the Panel did not indicate that the evidence was not contained in the record of the underlying investigation. Nevertheless, the Panel excluded such evidence from its consideration in the absence of any legal basis to do so. In addition, the Panel erred in concluding that the USDOC should have been aware of a fact that was not reasonably based on evidence in the agency record, namely, that three creditors exercised mediation rights under the [Corporate Restructuring Promotion Act]. In so doing, the Panel essentially “second-guessed” the investigating authority’s analysis of the evidence and thus overstepped the bounds of its review.

 

E.3.1.9 EC — Selected Customs Matters, para. 188
(WT/DS315/AB/R)

 

In order to determine whether the measures at issue have been administered at the time of the Panel’s establishment in a manner that is inconsistent with Article X:3(a) of the GATT 1994, the Panel was … entitled to rely on evidence of acts of administration. Thus, it is important to distinguish between, on the one hand, the measures at issue and, on the other hand, acts of administration that have been presented as evidence to substantiate the claim that the measures at issue are administered in a manner inconsistent with Article X:3(a) of the GATT 1994. The Panel failed to make the distinction between measures and pieces of evidence. While there are temporal limitations on the measures that may be within a panel’s terms of reference, such limitations do not apply in the same way to evidence. Evidence in support of a claim challenging measures that are within a panel’s terms of reference may pre-date or post-date the establishment of the panel. A panel is not precluded from assessing a piece of evidence for the mere reason that it pre-dates or post-dates its establishment. In this case, the United States was not precluded from presenting evidence relating to acts of administration before and after the date of Panel establishment. A panel enjoys a certain discretion to determine the relevance and probative value of a piece of evidence that pre-dates or post-dates its establishment.

 

E.3.1.10 EC — Selected Customs Matters, para. 259
(WT/DS315/AB/R)

 

… we are of the view that the Panel did not err in declining to consider these pieces of evidence. As the Appellate Body stated [at paragraph 301] in EC — Sardines, “[t]he interim review stage is not an appropriate time to introduce new evidence.” The Panel’s decision to decline to consider Exhibits EC-167, EC-168, and EC-169 appears to us to be in line with the Appellate Body’s statement in EC — Sardines that “only … ‘precise aspects’ of the [interim] report … must be verified during the interim review … [a]nd this … cannot properly include an assessment of new and unanswered evidence.” …

 

E.3.1.11 Brazil — Retreaded Tyres, para. 193
(WT/DS332/AB/R)

 

It is well settled that a panel may consider a piece of evidence that post-dates its establishment.

 

E.3.1.12 US — Continued Zeroing, paras. 190-191
(WT/DS350/AB/R)

 

… Factual findings made in prior disputes do not determine facts in another dispute. Evidence adduced in one proceeding, and admissions made in respect of the same factual question about the operation of an aspect of municipal law, may be submitted as evidence in another proceeding. The finders of fact are of course obliged to make their own determination afresh and on the basis of all the evidence before them. But if the critical evidence is the same and the factual question about the operation of domestic law is the same, it is likely that the finder of facts would reach similar findings in the two proceedings. Nonetheless, the factual findings adopted by the DSB in prior cases regarding the existence of the zeroing methodology, as a rule or norm, are not binding in another dispute. In themselves, they do not establish that zeroing was used in all the successive proceedings in each of the 18 cases listed in the European Communities’ panel request.

 

… The Panel’s factual findings regarding the use of zeroing in these periodic reviews are not subject to appeal, and its factual findings regarding the sunset reviews are upheld on appeal. The Panel record further indicates that the sunset reviews in all four cases resulted in continuation of the original anti-dumping duty orders. Thus, in each of the above four cases, the Panel’s findings indicate that the zeroing methodology was repeatedly used in a string of determinations, made sequentially in periodic reviews and sunset reviews over an extended period of time. The density of factual findings in these cases, regarding the continued use of the zeroing methodology in a string of successive proceedings pertaining to the same anti-dumping duty order, provides a sufficient basis for us to conclude that the zeroing methodology would likely continue to be applied in successive proceedings whereby the duties in these four cases are maintained.

 

E.3.1.13 US — Continued Zeroing, para. 340
(WT/DS350/AB/R)

 

… while an authenticated USDOC document may have offered greater certainty as to its content, we do not agree that this renders a document that has not been authenticated not probative of the fact asserted, particularly if it is produced or replicated from documents or data supplied by the USDOC.

 
E.3.2 Panel’s review of evidence      back to top

E.3.2.1 US — Shrimp, para. 106
(WT/DS58/AB/R)

 

The thrust of Articles 12 and 13, taken together, is that the DSU accords to a panel established by the DSB, and engaged in a dispute settlement proceeding, ample and extensive authority to undertake and to control the process by which it informs itself both of the relevant facts of the dispute and of the legal norms and principles applicable to such facts. That authority, and the breadth thereof, 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. … ” (emphasis added).

 

E.3.2.2 Australia — Salmon, para. 272
(WT/DS18/AB/R)

 

… We note that Article 12.2 of the DSU provides that “[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.” However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted.

 

E.3.2.3 EC — Asbestos, para. 161
(WT/DS135/AB/R)

 

The same holds true in this case. The Panel enjoyed a margin of discretion in assessing the value of the evidence, and the weight to be ascribed to that evidence. The Panel was entitled, in the exercise of its discretion, to determine that certain elements of evidence should be accorded more weight than other elements — that is the essence of the task of appreciating the evidence.

 

E.3.2.4 EC — Tube or Pipe Fittings, para. 131
(WT/DS219/AB/R)

 

[Article 3.4 of the Anti-Dumping Agreement] requires an investigating authority to evaluate all relevant economic factors in its examination of the impact of the dumped imports. By its terms, it does not address the manner in which the results of this evaluation are to be set out, nor the type of evidence that may be produced before a panel for the purpose of demonstrating that this evaluation was indeed conducted. The provision simply requires Members to include an evaluation of all relevant economic factors in its examination of the impact of the dumped imports.

 

E.3.2.5 Canada — Wheat Exports and Grain Imports, para. 191
(WT/DS276/AB/R)

 

In our view, it is incumbent upon a party to identify in its submissions the relevance of the provisions of legislation — the evidence — on which it relies to support its arguments. It is not sufficient merely to file an entire piece of legislation and expect a panel to discover, on its own, what relevance the various provisions may or may not have for a party’s legal position. We are not satisfied that the United States argued the relevance before the Panel of the various provisions of the Canadian Wheat Board Act on which it now relies.Therefore, we do not agree with the United States that the Panel disregarded facts relevant to the independence of the CWB and we see no failure by the Panel in this respect to comply with its duty under Article 11 of the DSU.

 

E.3.2.6 US — Oil Country Tubular Goods Sunset Reviews, para. 312
(WT/DS268/AB/R)

 

We move now to the question whether the Panel erred in failing to consider the USITC’s statements before United States courts or before a NAFTA panel regarding the meaning of “likely” as used in Article 11.3 of the Agreement. We agree with Argentina that the USITC’s statements before United States courts or before a NAFTA panel are not, in principle, inadmissible evidence in WTO dispute settlement proceedings as such. However, we disagree with Argentina’s understanding of the Panel’s position. The task of the Panel was to decide whether the determination of “likely” future injury rested, in this specific case, on a sufficient factual basis to allow the USITC to draw reasoned and adequate conclusions. In order to perform this exercise properly, the Panel did not need to resort to the statements of the USITC before domestic courts or before a NAFTA panel, because the Panel’s assessment necessarily had to be based on the meaning of “likely” within the WTO legal system — namely the meaning attributed to this term by the Appellate Body in US — Corrosion-Resistant Steel Sunset Review. Therefore, it was not unreasonable for the Panel to consider that the USITC’s statements to which Argentina refers were “not relevant” in the task of assessing the application of the “likely” standard in Article 11.3 with respect to injury in the sunset review at issue.

 

E.3.2.7 US — Oil Country Tubular Goods Sunset Reviews, paras. 340-341
(WT/DS268/AB/R)

 

We observe that most of the arguments put forward by Argentina on appeal with respect to the application by the USITC of the standard of likelihood is centred on the premise that some of the factors presented by the USITC are speculative. In particular, Argentina seems to assume that positive evidence requires absolute certainty on what is likely to occur in the future. We have some difficulty with this line of reasoning. Of course, we agree with Argentina that the investigating authority’s likelihood determinations under Article 11.3 must be based on “positive evidence”.

 

The requirements of “positive evidence” must, however, be seen in the context that the determinations to be made under Article 11.3 are prospective in nature and that they involve a “forward-looking analysis”. Such an analysis may inevitably entail assumptions about or projections into the future. Unavoidably, therefore, the inferences drawn from the evidence in the record will be, to a certain extent, speculative. In our view, that some of the inferences drawn from the evidence on record are projections into the future does not necessarily suggest that such inferences are not based on “positive evidence”. The Panel considered that the five factors addressed by the USITC were supported by positive evidence in the USITC’s record and, as we have explained, we see no reason to disagree with the Panel.

 

E.3.2.8 US — Upland Cotton, para. 308
(WT/DS267/AB/R)

 

We recognize that the statement of available evidence plays an important role in WTO dispute settlement. The adequacy of the statement of available evidence must be determined on a case by case basis. As the Panel stated, moreover, the “statement of available evidence … is the starting point for consultations, and for the emergence of more evidence concerning the measures by reason of the clarification of the ‘situation’ ”. It is, therefore, important to bear in mind that the requirement to submit a statement of available evidence applies in the earliest stages of WTO dispute settlement, and that the requirement is to provide a “statement” of the evidence and not the evidence itself.

 

E.3.2.9 US — Countervailing Duty Investigation on DRAMS, para. 138
(WT/DS296/AB/R)

 

… neither the SCM Agreement nor the DSU explicitly articulates a standard for the evidence required to substantiate a finding of entrustment or direction under Article 1.1(a)(1)(iv). Article 12 of the SCM Agreement entitled “Evidence”, speci-fies in paragraph 2 that a decision of the investigating authority as to the existence of a subsidy “can only be based on” evidence on the record of that agency; this applies equally to evidence used to support a finding of a financial contribution under Article 1.1(a)(1)(iv). Beyond this requirement, however, we see no basis in the SCM Agreement or in the DSU to impose upon an investigating authority a particular standard for the evidence supporting its finding of entrustment or direction.

 

E.3.2.10 US — Countervailing Duty Investigation on DRAMS, paras. 144-145
(WT/DS296/AB/R)

 

Notwithstanding the USDOC’s reliance on the totality of the evidence, the Panel maintained that “[i]n order to” follow the same approach, it was required to assess the “probative value of each evidentiary factor separately”.

 

We see no error, in principle, in a panel’s review of individual pieces of evidence under Article 1.1(a)(1)(iv), even where the investigating authority draws its conclusion from the totality of the evidence. Indeed, in our view, in many cases a panel will be able to examine the sufficiency of the evidence supporting an investigating authority’s conclusion of entrustment or direction only by looking at each individual piece of evidence.

 

E.3.2.11 US — Countervailing Duty Investigation on DRAMS, para. 146
(WT/DS296/AB/R)

 

We find that the Panel erred, however, in the manner in which it reviewed the individual pieces of evidence. We note, first, that the Panel often appeared to examine whether each piece of evidence, viewed in isolation, demonstrated entrustment or direction.

 

E.3.2.12 US — Countervailing Duty Investigation on DRAMS, paras. 150-151 and footnote 278
(WT/DS296/AB/R)

 

In our view, having accepted an investigating authority’s approach, a panel normally should examine the probative value of a piece of evidence in a similar manner to that followed by the investigating authority. Moreover, if, as here, an investigating authority relies on individual pieces of circumstantial evidence viewed together as support for a finding of entrustment or direction, a panel reviewing such a determination normally should consider that evidence in its totality, rather than individually, in order to assess its probative value with respect to the agency’s determination. Indeed, requiring that each piece of circumstantial evidence, on its own, establish entrustment or direction effectively precludes an agency from finding entrustment or direction on the basis of circumstantial evidence. Individual pieces of circumstantial evidence, by their very nature, are not likely to establish a proposition, unless and until viewed in conjunction with other pieces of evidence.

 

Furthermore, in order to examine the evidence in the light of the investigating authority’s methodology, a panel’s analysis usually should seek to review the agency’s decision on its own terms, in particular, by identifying the inference drawn by the agency from the evidence, and then by considering whether the evidence could sustain that inference. Where a panel examines whether a piece of evidence could directly lead to an ultimate conclusion — rather than support an intermediate inference that the agency sought to draw from that particular piece of evidence — the panel risks constructing a case different from that put forward by the investigating authority.278 In so doing, the panel ceases to review the agency’s determination and embarks on its own de novo evaluation of the investigating authority’s decision.

 

E.3.2.13 US — Countervailing Duty Investigation on DRAMS, para. 152
(WT/DS296/AB/R)

 

… A proper assessment by the Panel, therefore, would have considered whether the individual piece of evidence being examined could tend to support — not establish in and of itself — the particular intermediate factual conclusion that the USDOC was seeking to draw from it. By looking instead to whether such evidence directly supported a finding of entrustment or direction, the Panel determined certain pieces of evidence not to be probative when, in fact, had they been properly viewed in the framework of the USDOC’s examination, their relevance would not have been overlooked.

 

E.3.2.14 US — Countervailing Duty Investigation on DRAMS, paras. 154, 157
(WT/DS296/AB/R)

 

… what is absent from the Panel’s “global” assessment, in our view, is a consideration of the inferences that might reasonably have been drawn by the USDOC on the basis of the totality of the evidence. As we have already observed, individual pieces of circumstantial evidence are unlikely to establish entrustment or direction; the significance of individual pieces of evidence may become clear only when viewed together with other evidence. In other words, a piece of evidence that may initially appear to be of little or no probative value, when viewed in isolation, could, when placed beside another piece of evidence of the same nature, form part of an overall picture that gives rise to a reasonable inference of entrustment or direction. …

 

 

… when an investigating authority relies on the totality of circumstantial evidence, this imposes upon a panel the obligation to consider, in the context of the totality of the evidence, how the interaction of certain pieces of evidence may justify certain inferences that could not have been justified by a review of the individual pieces of evidence in isolation. Having failed to undertake such an assessment, the Panel could not have arrived at a proper conclusion as to the sufficiency of the evidence underlying the USDOC’s finding of entrustment or direction.

 

E.3.2.15 US — Countervailing Duty Investigation on DRAMS, paras. 166, 174
(WT/DS296/AB/R)

 

We consider now whether, as the United States alleges, the Panel erred in relying on evidence that was not on the record before the USDOC in the underlying CVD investigation.

 

 

Although the United States characterizes the error of the Panel as its reliance on non-record evidence, we note that the Panel explicitly agreed with the United States that its “review of the [US]DOC’s determination should be confined to facts actually recorded on the [US]DOC’s record of investigation”. The Panel insisted that its finding was based exclusively on “evidence on the [US]DOC’s record”, namely the 2001 Hynix Audit Report. The issue raised by the United States’ appeal, therefore, is not whether the evidence was contained in the record, but rather, whether the evidence contained in the record should have “indicate[d]” to the USDOC “that three of the four creditors exercising appraisal rights under option 3 actually exercised their right to seek mediation in respect of the October 2001 restructuring”.

 

E.3.2.16 EC — Selected Customs Matters, para. 201
(WT/DS315/AB/R)

 

This distinction [between the legal instrument being administered and the legal instrument that regulates the application] has implications for the type of evidence required to support a claim of a violation of Article X:3(a). If a WTO Member challenges under Article X:3(a) the substantive content of a legal instrument that regulates the administration of a legal instrument of the kind described in Article X:1, it will have to prove that this instrument necessarily leads to a lack of uniform, impartial, or reasonable administration. It is not sufficient for the complainant merely to cite the provisions of that legal instrument. The complainant must discharge the burden of substantiating how and why those provisions necessarily lead to impermissible administration of the legal instrument of the kind described in Article X:1.

 

E.3.2.17 EC — Selected Customs Matters, para. 225
(WT/DS315/AB/R)

 

… The features of an administrative process that govern the application of a legal instrument of the kind described in Article X:1 may constitute relevant evidence for establishing uniform or non-uniform administration of that legal instrument. The probative value of such evidence will, however, depend on the circumstances of each case and will necessarily vary from case to case. Thus, we may conceive of cases where a panel might attach much weight to differences that exist at the level of the administrative processes, because it considers these differences to be so significant that they have caused, or are likely to cause, the non-uniform application of the legal instrument at issue. On the other hand, a panel might conclude, after an overall assessment of the evidence, that the consistent nature of the results of the application of the legal instrument shows that the measure at issue is administered in a uniform manner, even though differences may exist at the level of the administrative process.

 

E.3.2.18 EC — Selected Customs Matters, para. 254
(WT/DS315/AB/R)

 

… In our view, the Panel did not err in referring, in its analysis, to “evidence related to instances of administration which occurred after its establishment” [that is to say, in March 2005], because this evidence was relevant to the task of determining whether there was a violation of Article X:3(a) at the time of the establishment of the Panel. The Dutch decree of 8 July 2005 and the German BTI of 19 July 2005 had come into existence within a short time after the establishment of the Panel. In our view, it was not unreasonable for the Panel to consider that this evidence was relevant for assessing how the measures at issue were administered at the time the Panel was established.

 

E.3.2.19 EC — Selected Customs Matters, para. 258
(WT/DS315/AB/R)

 

With respect to draft EC Regulation 2171/2005, we disagree with the European Communities that the Panel did not consider this draft Regulation. Draft EC Regulation 2171/2005 was discussed by the Panel in footnote 580 to paragraph 7.305 of the Panel Report. The European Communities might have wished the Panel had attached more weight than it did to this piece of evidence. It is, however, well established that the weighing of the evidence is, in principle, within the discretion of the panel as the trier of facts. Thus, the Panel was “not required to accord to factual evidence of the parties the same meaning and weight as do the parties”. We also recall that “a mere divergence of views between a party and a panel on the inferences to be drawn from pieces of evidence is not a sufficient ground to conclude that the Panel failed to ‘make … an objective assessment of the facts of the case’.”

 

E.3.2.20 US — Zeroing (Japan), para. 82
(WT/DS322/AB/R)

 

As we see it, the United States’ challenge under Article 11 of the DSU is directed at the Panel’s appreciation and weighing of the evidence. The Appellate Body has stated on several occasions that panels enjoy a certain margin of discretion in assessing the credibility and weight to be ascribed to a given piece of evidence. At the same time, the Appellate Body has underscored that Article 11 of the DSU requires panels “to take account of the evidence put before them and forbids them to wilfully disregard or distort such evidence”. Moreover, panels must not “make affirmative findings that lack a basis in the evidence contained in the panel record”. Provided that a panel’s assessment of evidence remains within these parameters, the Appellate Body will not interfere with the findings of the panel.

 

E.3.2.21 US — Zeroing (Japan), para. 86
(WT/DS322/AB/R)

 

The United States argues that the statements which the Panel deemed to reflect a “deliberate policy” consist “primarily of quotations from one assessment review”. Although this may be so, we cannot fault the Panel for concluding that these statements, when considered in conjunction with the other evidence before the Panel, lend support to the conclusion that a single rule or norm of general and prospective application that provides for disregarding negative comparison results exists. As the Appellate Body has previously said, the appreciation of “a given piece of evidence is part and parcel of the fact-finding process and is, in principle, left to the discretion of a panel as the trier of facts”.

 

E.3.2.22 US — Zeroing (Japan), para. 87
(WT/DS322/AB/R)

 

The thrust of the United States’ argument is that context-specific evidence is required to demonstrate the existence of the zeroing procedures in T-T and W-T comparisons in original investigations. In other words, according to the United States, the existence of a rule or norm requiring the application of zeroing must be examined separately for each comparison methodology and for each type of anti-dumping proceeding. Japan submitted evidence to the Panel indicating that zeroing is a constant feature whenever a margin of dumping is calculated regardless of the comparison methodology used. In contrast, the United States did not adduce evidence of a single case in which zeroing was not applied. Nor did it indicate how the use of alternative comparison methodologies would make a difference in the operation or application of the zeroing procedures. Moreover, the United States did not explain why the rationale underlying the zeroing procedures in W-W comparisons in original investigations, or W-T comparisons in periodic reviews, does not apply to the calculation of margins of dumping on the basis of T-T and W-T comparisons in original investigations. The fact that the consistency of zeroing may be challenged in relation to a specific comparison methodology, or a specific type of anti-dumping proceeding, does not necessarily mean that the existence of a general rule or norm directing its use must be established through evidence of the actual application of those procedures in all possible situations, as long as they were applied every time the occasion arose.

 

E.3.2.23 US — Zeroing (Japan), para. 88
(WT/DS322/AB/R)

 

In sum, we agree with the Panel’s understanding of the Appellate Body’s previous jurisprudence and the manner in which the Panel framed the question before it. We also consider that the Panel had sufficient evidence before it to conclude that the “zeroing procedures” under different comparison methodologies, and in different stages of anti-dumping proceedings, do not correspond to separate rules or norms, but simply reflect different manifestations of a single rule or norm. The Panel also examined ample evidence regarding the precise content of this rule or norm, its nature as a measure of general and prospective application, and its attribution to the United States. In our view, the Panel properly assessed this evidence. We therefore disagree with the United States that the Panel did not assess objectively the issue of whether a single rule or norm exists by virtue of which the USDOC applies zeroing “regardless of the basis upon which export price and normal value are compared and regardless of the type of proceeding in which margins are calculated”.

 

E.3.2.24 US — Oil Country Tubular Goods Sunset Reviews (Article 21.5 — Argentina), paras. 112, 116 and footnote 250
(WT/DS268/AB/RW)

 

Pursuant to the amended Regulations, an exporter who chooses to waive participation must now submit a statement indicating that it is likely to dump if the order is revoked or the investigation is terminated.A statement by an interested party who elects to make an admission, plainly against its own interest,250 as to its future conduct thereby provides significant, and sometimes overwhelming, evidence for the conclusion that is mandated by the statute. The statement required by the amended Regulations is such an admission and constitutes evidence that warrants the finding that is statutorily mandated, because there is an unremarkable, and entirely rational, chain of reasoning that links the evidence of what a party says it will do to the finding that such party is likely to act in accordance with its acknowledged intention. Accordingly, the waiving exporter’s statement clearly constitutes positive evidence and provides a reasoned basis for the USDOC to make the company-specific findings required by Section 751(c)(4)(B) of the Tariff Act. In these circumstances, we do not consider that the company-specific findings that rest upon the exporter’s statement can be described as “merely assumptions made by the agency, rather than findings supported by evidence”.

 

 

 … Rather, the company-specific finding is based on a statement by the exporter that it is likely to dump if the order were revoked or the investigation terminated. This statement constitutes positive evidence.

 

E.3.2.25 US — Oil Country Tubular Goods Sunset Reviews (Article 21.5 — Argentina), para. 120
(WT/DS268/AB/RW)

 

We observe that a respondent’s explanation of the basis on which its investigating authority will make a determination will have more weight if it is confirmed by the text of the applicable laws or regulations. But the United States’ statements that the USDOC must consider all information and arguments on the record, and that the relevance of a company-specific finding to the order-wide likelihood determination would always depend on the facts of each case, cannot be rejected merely because there is no legal instrument that expressly requires the USDOC to act in this way. This is insufficient to support properly a finding of inconsistency as such. Thus, the Panel’s reasoning seems speculative, and this is reflected in the language used in the Panel Report.

 

E.3.2.26 Chile — Price Band System (Article 21.5 — Argentina), para. 240
(WT/DS207/AB/RW)

 

We are mindful that the information placed before a panel is often voluminous in nature and that the probative value of specific pieces of evidence varies considerably. A panel must examine and consider all of the evidence placed before it, must identify the evidence upon which it has relied in reaching its findings, and must not make findings that are unsupported by evidence. Yet, a panel is also afforded a considerable margin of discretion in its appreciation of the evidence. This means, among other things, that a panel is not required, in its report, to explain precisely how it dealt with each and every piece of evidence on the panel record.

 

E.3.2.27 Japan — DRAMs (Korea), paras. 131-139
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)

 

The Appellate Body has previously found that “when an investigating authority relies on the totality of circumstantial evidence, this imposes upon a panel the obligation to consider, in the context of the totality of the evidence, how the interaction of certain pieces of evidence may justify certain inferences that could not have been justified by a review of the individual pieces of evidence in isolation”. In addition, if an investigating authority explains that the totality of the evidence supports the conclusion reached, a panel must undertake a critical examination of whether, in the light of the evidence on record, the investigating authority’s conclusion was reasoned and adequate. The Appellate Body has also said that errors in an investigating authority’s examination of individual pieces of evidence “undoubtedly would affect an examination of the totality of the evidence, as these pieces would constitute the evidence the Panel would consider as a whole in assessing the evidentiary support of [an investigating authority’s] finding of entrustment or direction”. Finally, we recall the Appellate Body’s statement that, “in order to examine the evidence in the light of the investigating authority’s methodology, a panel’s analysis usually should seek to review the agency’s decision on its own terms, in particular, by identifying the inference drawn by the agency from the evidence, and then by considering whether the evidence could sustain that inference”.

 

The Panel in this case recognized that the JIA based its determination of entrustment or direction on “the totality of numerous items of evidence obtained”.However, the Panel found that it had “no basis” to assess whether the JIA could have sustained its finding on entrustment or direction by recourse to evidence other than the evidence concerning commercial reasonableness. The Panel reasoned that since the JIA had not undertaken such an exercise, the Panel could not do so, as this would amount to a de novo review.

 

We disagree with the approach adopted by the Panel. The JIA came to its finding on entrustment or direction based upon a consideration of the totality of evidence before it. It is not evident to us that the JIA accorded such decisive weight to the issue of commercial reasonableness as to render insignificant other evidence relating to the GOK’s intent to save Hynix and its intervention in the restructuring process. The JIA made a holistic assessment of the evidence before it. While commercial reasonableness, in particular the Deutsche Bank Report, may have been an important factor in its considerations, it is unreasonable to expect the JIA to have engaged upon an enquiry as to whether other evidence would, by itself, have sustained its finding on entrustment or direction. This is because the JIA cannot be expected to proceed on the basis that certain aspects of its reasoning would later be found to be faulty.

 

The Panel should have considered whether the remaining evidence before the JIA provided an objective basis for finding entrustment or direction, notwithstanding the Panel’s conclusion that the JIA’s assessment of the Deutsche Bank Report was flawed. That could only have been done by considering the totality of the evidence, including, in particular, the evidence relating to the intent and involvement of the GOK in the Restructurings.The Panel did not undertake such an examination, and thereby failed properly to apply the required standard of review.

 

We recognize that there may be cases in which certain intermediate findings may be so central to the ultimate conclusion of an investigating authority that an error at an intermediate stage of reasoning may invalidate the final conclusion. Indeed, an evaluation of the significance of the different factors considered by an investigating authority is at the heart of the assessment a panel must make. What a panel should not do is to have recourse to an a priori “syllogism” that accords presumptive weight to certain propositions. This is all the more so when this was not the approach to the evaluation of the evidence adopted by the investigating authority.

 

In this case, the Panel’s finding on the GOK’s intent and involvement in the restructuring process … is common to both the October 2001 and December 2002 Restructurings. The Panel found that the October 2001 Restructuring involved entrustment or direction on the basis of its upholding the JIA’s determination that the participation of the Four Creditors in that Restructuring was not commercially reasonable. The Panel found that the December 2002 Restructuring did not involve entrustment or direction because it concluded that the JIA had not properly established that the participation of the Four Creditors in that Restructuring was not commercially reasonable. Thus, it seems to us that the sole basis on which the Panel came to different conclusions on entrustment or direction in the two Restructurings was its findings on the commercial reasonableness of the Four Creditors’ participation in those Restructurings.

 

The Panel did not adequately explain why a finding of commercial reasonableness, by itself, was indispensable for the ultimate finding of entrustment or direction. We are unable to discern from the JIA’s determination that the JIA considered commercial reasonableness to be indispensable for its ultimate finding of entrustment or direction. Even if the Panel were correct that the JIA’s finding on commercial unreasonableness lacked evidentiary support, that alone would not necessarily invalidate the JIA’s determination of entrustment or direction. As we have stated above, the Panel should have considered whether, in the light of the remaining evidence, the JIA could nevertheless have reached its finding on entrustment or direction.

 

We recognize that the commercial unreasonableness of the financial transactions is a relevant factor in determining government entrustment or direction under Article 1.1(a)(1)(iv) of the SCM Agreement, particularly where an investigating authority seeks to establish government intervention based on circumstantial evidence. However, this does not mean that a finding of entrustment or direction can never be made unless it is established that the financial transactions were on non-commercial terms. A finding that creditors acted on the basis of commercial reasonableness, while relevant, is not conclusive of the issue of entrustment or direction. A government could entrust or direct a creditor to make a loan, which that creditor then does on commercial terms. In other words, as a conceptual matter, there could be entrustment or direction by the government, even where the financial contribution is made on commercially reasonable terms.

 

In the light of the above, we find that the Panel did not conduct an objective assessment of the matter before it, as required by Article 11 of the DSU, because it failed to examine whether the JIA’s evidence in its totality supported the JIA’s finding of entrustment or direction.

 

E.3.2.28 Japan — DRAMs (Korea), paras. 156-157 and footnote 328
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)

 

Japan further submits that the Panel erred by making a finding on the relevance of a consultancy contract, although “Korea did not submit necessary evidence and argument to establish a prima facie case” in this regard. Moreover, according to Japan, the Panel collected the evidence of the relevant “contract ex officio in March 2007 well after both Panel sessions and the submission of all arguments by the parties” and failed to provide the parties with an opportunity to present their views on the relevance of the contract for the purpose of its analysis.

 

Contrary to what Japan appears to suggest, the relevant consultancy contract was not submitted to the Panel for the first time at the end of the Panel proceedings.328 Instead, Japan had included it as an exhibit to its first written submission to the Panel. We agree with Korea in this respect that “[t]he Panel’s consideration of a contract that Japan itself submitted in support of its initial arguments obviously does not constitute a denial of Japan’s due process rights.” Japan’s reference to Korea’s failure to establish a prima facie case is also misguided. In this case, the Panel rightly conducted its own assessment of the relevance of the consultancy contract.

 

E.3.2.29 Japan — DRAMs (Korea), para. 226
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)

 

… Based on our review of the Panel’s reasoning, we are not convinced that the benefit finding did not involve any additional analysis by the Panel. Instead, the Panel relied on evidence of “non-commercial considerations” as a criterion in its analysis of the JIA’s review of whether private banks had been entrusted or directed by the GOK to make a financial contribution to Hynix. The Panel also relied on evidence of “non-commercial considerations” in its consideration of the JIA’s analysis of whether the financial contribution conferred a benefit. Relying on the same or similar evidence for assessing distinct legal requirements does not, in our view, amount to a conflation of the benefit requirement with the financial contribution requirement. We are satisfied that the Panel in this case used evidence of noncommercial considerations first to assess the JIA’s review of whether entrustment or direction had occurred under Article 1.1(a)(1)(iv), and then to determine the distinct legal question of whether the JIA properly established that the October 2001 Restructuring conferred a benefit under Article 1.1(b).

 

E.3.2.30 Brazil — Retreaded Tyres, paras. 192-193
(WT/DS332/AB/R)

 

The European Communities next charges the Panel with failing to discount the evidentiary value of Technical Note 001/2006 of the Instituto Nacional de Metrologia, Normalização e Qualidade Industrial (“INMETRO”) (National Institute for Metrology, Standardization and Industrial Quality), on the grounds that it was issued during the course of the Panel proceedings, and with neglecting to consider contradictory evidence contained in an earlier INMETRO Technical Note 83/2000.

 

It is well settled that a panel may consider a piece of evidence that post-dates its establishment. Thus, INMETRO Technical Note 001/2006 was clearly an admissible piece of evidence. The European Communities, however, seems to suggest that the fact that INMETRO Technical Note 001/2006 post-dates the establishment of the Panel undermines its “evidentiary value”, because Brazil was well aware of the significance of INMETRO Technical Note 001/2006 at that time. In our view, this amounts to an argument that the Panel should have attached more weight to one piece of evidence than to another, and does not suffice to demonstrate that the Panel exceeded the bounds of its discretion by attaching more weight to INMETRO Technical Note 001/2006 — a more recent document — than to INMETRO Technical Note 83/2000.

 

E.3.2.31 Brazil — Retreaded Tyres, paras. 196-197
(WT/DS332/AB/R)

 

… The European Communities claims that the Panel engaged in a “wilful exclusion” of evidence relating to the importation of used tyres through court injunctions, even though this evidence was relevant because it demonstrates that Brazilian retreaded tyres are produced with imported casings, and casts doubt on Brazil’s position that domestic casings suitable for retreading are readily available in Brazil.

 

We are not persuaded that the Panel ignored evidence relating to the importation of used tyres through court injunctions in its analysis of the contribution of the Import Ban to the realization of the ends pursued by it. The Panel acknowledged these injunctions and the arguments put forth by the European Communities in its analysis of the conflicting arguments and evidence regarding the level of retreadability of tyres in Brazil. In the end, the Panel ascribed more weight to evidence adduced by Brazil suggesting that “at least some domestic used tyres are being retreaded in Brazil” and that “domestic used tyres are suitable for retreading”. It appears to us that, in proceeding in that manner, the Panel did not exceed the bounds of its discretion as the trier of facts.

 

E.3.2.32 Brazil — Retreaded Tyres, para. 202
(WT/DS332/AB/R)

 

The European Communities also suggests that the Panel erred under Article 11 in its rejection of landfilling as an alternative to the Import Ban because it did not take into account legislation allowing some landfilling of shredded tyres in Brazil. It is true that the Panel did not refer specifically to this legislation in its analysis. We note, however, that Brazil had argued that the legislation in question was exceptional, temporary, and in no way contradicted the existence or risks generally associated with landfilling. A panel enjoys discretion in assessing whether a given piece of evidence is relevant for its reasoning, and is not required to discuss, in its report, each and every piece of evidence.

 

E.3.2.33 US — Upland Cotton (Article 21.5 — Brazil), paras. 291-292
(WT/DS267/AB/RW)

 

Thus, the Panel dismissed the import of the re-estimates data as estimates, yet concluded that the initial estimates provided a “strong indication” that the GSM 102 programme is expected to run at a net cost. However, all the quantitative evidence examined by the Panel, except for the cash basis accounting data submitted by Brazil, are estimates, or projections, of future financial performance. There is no rationale offered by the Panel as to why it marginalized the re-estimates data while, at the same time, accepting the initial estimates as “provid[ing] a strong indication” that the GSM 102 programme is expected to run at a net cost.

 

The Panel’s treatment of the competing evidence submitted by the parties is therefore internally inconsistent. The initial estimates, the re-estimates, and the CCC’s Financial Statements are all routinely produced by the United States Government, yet obvious discrepancies exist among them. For example, both the re-estimates data and the credit guarantee liability figure relate to the financial performance of the CCC’s export credit guarantee programmes up to 2006, but the former project profits, whereas the latter projects losses. The Panel did not reconcile these discrepancies. If this was not possible, the Panel should have provided a reasoned explanation as to why it preferred one category of quantitative evidence over the other. Instead, the Panel dismissed the import of the re-estimates, which were the central piece of evidence relied on by the United States, on the basis of reasoning that, in our view, is internally incoherent, and compounded the matter by relying on evidence that suffered from the same limitation as the re-estimates. The Panel’s treatment of the evidence submitted by the parties lacked even-handedness.

 

E.3.2.34 US — Upland Cotton (Article 21.5 — Brazil), paras. 294-295
(WT/DS267/AB/RW)

 

Our concern with the Panel’s treatment of the re-estimates, however, is not directed towards its weighing of the evidence. Rather, there is a lack of explanation and coherent reasoning by the Panel that led it to marginalize the re-estimates. The Panel was presented with a class of quantitative evidence that is based on estimates, including the initial estimates, the re-estimates, and the CCC’s Financial Statements, but effectively disregarded the re-estimates data submitted by the United States. The error is amplified by the fact that the Panel unquestioningly accepted the initial estimates and CCC Financial Statements submitted by Brazil, although they too are based on estimates. The Panel’s internally incoherent treatment of the same class of quantitative evidence thus vitiates the conclusion it drew based on the financial data submitted by the parties.

 

In sum, we find that, by dismissing the import of the re-estimates data submitted by the United States on the basis of internally inconsistent reasoning, the Panel did not make “an objective assessment of the matter before it, including an objective assessment of the facts of the case”, under Article 11 of the DSU. Consequently, the Panel erred in its intermediate conclusion that “the initial subsidy estimates provide a strong indication that GSM 102 export credit guarantees are provided against premia which are inadequate to cover the long-term operating costs and losses of the GSM 102 programme”.

 

E.3.2.35 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 216
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)

 

… the parties had made conflicting statements at the DSB meeting as to the legal nature of the Understandings after they were signed. We consider that these statements may be taken into account where the interpretation of the Understandings is not clear from the language used in its context. However, where the text of the Understandings is clear, these statements have limited relevance, if any, for the purpose of interpreting the Understandings. The parties’ obligations must first and foremost be determined on the basis of the text of the Understandings. In any event, ex post communications of the parties concerning the Understandings have, at best, slight evidentiary value.

 

E.3.2.36 US — Continued Zeroing, para. 347
(WT/DS350/AB/R)

 

… the Panel appears to have considered that a margin calculation program, or other document, only established the use of simple zeroing if it originated from the USDOC at the time of the review. Once the Panel set out that standard, however, we see no indication that it got to the heart of the matter concerning the probative value of evidence before it. For one thing, it is not enough for a panel to leave it to the parties to guess what proof it will require. Moreover, while a panel cannot make the case for a party, Article 11 requires a panel to test evidence with the parties, and to seek further information if necessary, in order to determine whether the evidence satisfies a party’s burden of proof. As the Appellate Body has explained, “[a] panel may, in fact, need the information sought in order to evaluate evidence already before it” so as to make an objective assessment of whether the complaining party has established a prima facie case, regardless of whether a party has requested it to seek such information. In our view, the Panel required evidence that was authenticated as USDOC documents, but then did not take the necessary steps to elicit from the parties information that might, in the words of the Panel, “elucidate its understanding of the facts and issues in the dispute before it”. Because, however, the Panel erred in its articulation of the applicable standard as to the burden of proof, and failed to consider the submitted evidence in its totality, we cannot determine whether further inquiry by the Panel pursuant to its authority, including under Article 13, would have yielded greater clarity as to the evidence.

 

E.3.2.37 US — Continued Zeroing, para. 357
(WT/DS350/AB/R)

 

… We emphasize that the nature and scope of the evidence that might be reasonably expected by an adjudicator in order to establish a fact or claim in a particular case will depend on a range of factors, including the type of evidence that is made available by a Member’s regulating authority. Because the design and operation of national regulatory systems will vary, we believe that, in a specific case, a panel may have a sufficient basis to reach an affirmative finding regarding a particular fact or claim on the basis of inferences that can be reasonably drawn from circumstantial rather than direct evidence.

 
E.3.3 Evidence in appellate proceedings     back to top

E.3.3.1 Chile — Price Band System (Article 21.5 — Argentina), paras. 12, 13, 15, 253
(WT/DS207/AB/RW)

 

… [By letter] dated 26 February 2007, [Argentina asked] the Division to reject 13 of 15 exhibits that were attached to Chile’s appellant’s submission on the grounds that these exhibits included new evidence that was not before the Panel in these Article 21.5 proceedings and that Article 17.6 of the DSU precludes the Appellate Body from accepting such evidence.

 

    By letter dated 13 March 2007, the Division indicated that, if a ruling on the admissibility of these exhibits proved necessary, it would make such a ruling in “due course” and expressed its “preliminary view” that the admissibility of such exhibits should be governed by the following three principles:

 

First, any evidence relating to the operation of the measure at issue after June 2006 is new evidence that does not properly form part of the record upon which the Division must review the Panel’s findings and conclusions in this case and is inadmissible.

 

Secondly, Chile’s exhibits are admissible insofar as they only present data that were before the Panel. It is not necessary that the data were presented to the Panel in precisely the same form as they are now presented to the Appellate Body. Nevertheless, exhibits presenting evidence in a form that differs from the way in which the evidence was presented to the Panel are admissible only if: (i) the data presented can be clearly traced to data in the Panel record; and (ii) the way in which the data presented to the Panel has been converted into the form in which it is presented in this appeal can be readily understood.

 

Thirdly, a Decree that: (i) is expressly referred to in the measure at issue in this appeal; (ii) is publicly available; and (iii) the content of which was discussed before the Panel is, in principle, admissible, unless Argentina can establish that it will suffer prejudice were the Appellate Body to admit the text of this Decree. [original emphasis]

 

 

For the reasons that we set out below, we have not found it necessary to make any additional ruling on the admissibility of the specific exhibits challenged by Argentina in its request of 26 February 2007.

 

 

We have reached our findings and conclusions on the basis of a careful examination of the Panel Report in the light of the claims of error and arguments raised on appeal. In undertaking this task, we did not find it necessary to have recourse to the information provided by Chile in Exhibits CHL-AB-3 through CHL-AB-15 attached to its appellant’s submission. As a result, we need not make any separate or additional ruling on the admissibility of these exhibits.

 

51. We do not rule upon other forms of evidence, such as an expert opinion submitted to a panel that is based on data which existed when the Member made its determination.     back to text

278. This is not to say that a panel is prohibited from examining whether the agency has given a reasoned and adequate explanation for its determination, in particular, by considering other inferences that could reasonably be drawn from — and explanations that could reasonably be given to — the evidence on record. Indeed, a panel must undertake such an inquiry.     back to text

250. Admissions are generally taken to be reliable because they are adverse to the interests of the parties making them. There may be exceptional circumstances where this may not be the case.     back to text

328. Japan acknowledged this in response to questioning at the oral hearing.     back to text


The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.