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E.3.1 Admissibility of evidence in panel proceedings
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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
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