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ON THIS PAGE:
> Argentina — Textiles and Apparel, para. 79
> Argentina — Textiles and Apparel, paras. 80-81
> US — Shrimp, para. 104
> US — Shrimp, para. 106
> Australia — Salmon, para. 272
> EC — Asbestos, para. 161
> US — Cotton Yarn, paras. 77-78 and footnote 51
> EC — Tube or Pipe, para. 131
> Canada — Wheat Exports and Grain Imports,
para. 191
> E.3.9 US — Oil Country Tubular Goods Sunset
Reviews, para. 312
> US — Oil Country Tubular Goods Sunset
Reviews, paras. 340-341
> US — Upland Cotton, para. 308
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E.3.1 Argentina —
Textiles and Apparel, para. 79
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(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.3.2 Argentina — Textiles and Apparel, paras. 80-81
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(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.3.3 US — Shrimp, para. 104 back to top
(WT/DS58/AB/R)
The comprehensive nature of the authority of a panel to “seek”
information and technical advice from “any individual or body” it
may consider appropriate, or from “any relevant source”, should be
underscored. This authority embraces more than merely the choice and
evaluation of the source of the information or advice which it
may seek. A panel’s authority includes the authority to decide not
to seek such information or advice at all. We consider that a panel
also has the authority to accept or reject any information or
advice which it may have sought and received, or to make some other
appropriate disposition thereof. It is particularly within the
province and the authority of a panel to determine the need for
information and advice in a specific case, to ascertain the acceptability
and relevancy of information or advice received, and to decide what
weight to ascribe to that information or advice or to conclude that
no weight at all should be given to what has been received.
E.3.4 US — Shrimp, para. 106
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(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.3.5 Australia — Salmon, para. 272
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(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.3.5A EC — Asbestos, para. 161
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(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.3.6 US — Cotton Yarn, paras. 77-78 and footnote 51
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(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.3.7 EC — Tube or Pipe, para. 131
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(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.3.8 Canada — Wheat Exports and Grain Imports, para. 191
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(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.3.9 US — Oil Country Tubular Goods Sunset Reviews, para. 312
(WT/DS268/AB/R)
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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.3.10 US — Oil Country Tubular Goods Sunset Reviews, paras. 340-341 back to top
(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.3.11 US — Upland Cotton, para. 308
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(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.
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
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