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ON THIS PAGE:
> Canada — Aircraft, para. 187
> Canada — Aircraft, para. 203
> US — Wheat Gluten, para. 171
> US — Wheat Gluten, para. 173
> US — Wheat Gluten, para. 174
> US — Wheat Gluten, para. 175
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I.1.1 Canada — Aircraft, para. 187
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(WT/DS70/AB/R)
… we are of the view that the word “should”
in the third sentence of Article 13.1 is, in the context of the whole of
Article 13, used in a normative, rather than a merely exhortative,
sense. Members are, in other words, under a duty and an obligation to
“respond promptly and fully” to requests made by panels for
information under Article 13.1 of the DSU.
I.1.2 Canada — Aircraft, para. 203
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(WT/DS70/AB/R)
Clearly, in our view, the Panel had the legal
authority and the discretion to draw inferences from the facts before it
— including the fact that Canada had refused to provide information
sought by the Panel. …
I.1.3 US — Wheat Gluten,
para. 171 back to top
(WT/DS166/AB/R)
… As the Appellate Body said in Canada
— Aircraft, the refusal by a Member to provide information requested
of it undermines seriously the ability of a panel to make an objective
assessment of the facts and the matter, as required by Article 11 of the
DSU. Such a refusal also undermines the ability of other Members of the
WTO to seek the “prompt” and “satisfactory” resolution of
disputes under the procedures “for which they bargained in concluding
the DSU.” …
I.1.4 US — Wheat Gluten,
para. 173 back to top
(WT/DS166/AB/R)
We, therefore, characterized the drawing of
inferences as a “discretionary” task falling within a panel’s
duties under Article 11 of the DSU. …
I.1.5 US — Wheat Gluten,
para. 174 back to top
(WT/DS166/AB/R)
… As we emphasized in Canada — Aircraft,
under Article 11 of the DSU, a panel must draw inferences on the basis
of all of the facts of record relevant to the particular
determination to be made. Where a party refuses to provide information
requested by a panel under Article 13.1 of the DSU, that refusal will be
one of the relevant facts of record, and indeed an important fact, to be
taken into account in determining the appropriate inference to be drawn.
However, if a panel were to ignore or disregard other relevant facts, it
would fail to make an “objective assessment” under Article 11 of the
DSU. In this case, as the Panel observed, there were other facts
of record that the Panel was required to include in its “objective
assessment”. …
I.1.6 US — Wheat Gluten,
para. 175 back to top
(WT/DS166/AB/R)
In reviewing the inferences the Panel drew
from the facts of record, our task on appeal is not to redo afresh the
Panel’s assessment of those facts, and decide for ourselves what
inferences we would draw from them. Rather, we must determine whether
the Panel improperly exercised its discretion, under Article 11, by
failing to draw certain inferences from the facts before it. In asking
us to conduct such a review, an appellant must indicate clearly the
manner in which a panel has improperly exercised its discretion. Taking
into account the full ensemble of the facts, the appellant
should, at least: identify the facts on the record from which the Panel
should have drawn inferences; indicate the factual or legal inferences
that the panel should have drawn from those facts; and, finally, explain
why the failure of the panel to exercise its discretion by drawing these
inferences amounts to an error of law under Article 11 of the DSU.
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