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REPERTORY OF APPELLATE BODY REPORTS

Rules of Conduct


ON THIS PAGE:

US — Continued Suspension / Canada — Continued Suspension, para. 435
US — Continued Suspension / Canada — Continued Suspension, paras. 445-446
US — Continued Suspension / Canada — Continued Suspension, paras. 450-451
US — Continued Suspension / Canada — Continued Suspension, para. 455
US — Continued Suspension / Canada — Continued Suspension, para. 459
US — Continued Suspension / Canada — Continued Suspension, para. 481


R.6.1 US — Continued Suspension / Canada — Continued Suspension, para. 435     back to top
(WT/DS320/AB/R, WT/DS321/AB/R)

These due process considerations are reflected in the Rules of Conduct. Section II (Governing Principle) of the Rules of Conduct provides that all covered persons, such as panellists and experts advising panels:

 

… shall be independent and impartial, shall avoid direct or indirect conflicts of interest and shall respect the confidentiality of proceedings of bodies pursuant to the dispute settlement mechanism, so that through the observance of such standards of conduct the integrity and impartiality of that mechanism are preserved.

 
R.6.2 US — Continued Suspension / Canada — Continued Suspension,
paras. 445-446     back to top
(WT/DS320/AB/R, WT/DS321/AB/R)

The requirements under Section VI of the Rules of Conduct relate, as the title indicates, to the self-disclosure obligation of covered persons, including experts. The Rules of Conduct do not provide for automatic exclusion of a covered person upon the disclosure of information pursuant to Section VI and the Illustrative List of Information to be Disclosed, which is attached to the Rules of Conduct as Annex 2. However, we fail to see on what basis a panel, presented with information likely to affect or give rise to justifiable doubts as to the independence or impartiality of an expert, could choose to consult such an expert.

 

We do not agree, however, with the European Communities’ characterization of Section VI.2 as setting out a “low” standard. On the contrary, we consider the standard set forth in Section VI.2 to be a strict one. Covered persons should be encouraged to disclose any information that may be relevant for purposes of ascertaining whether there may be justifiable doubts as to their independence or impartiality. Disclosure should not lead to automatic exclusion. Whether the disclosed information is likely to affect or give rise to justifiable doubts as to the person’s independence or impartiality must be objectively determined and properly substantiated. In the case of an expert, the panel should assess the disclosed information against information submitted by the parties or other information that may be available. It should then determine whether, on the correct facts, there is a likelihood that the expert’s independence and impartiality may be affected, or if justifiable doubts arise as to the expert’s independence or impartiality. If this is indeed the case, the panel must not appoint such person as an expert.

 
R.6.3 US — Continued Suspension / Canada — Continued Suspension,
paras. 450-451     back to top
(WT/DS320/AB/R, WT/DS321/AB/R)

… The purpose of the self-disclosure statement is to reveal relevant facts that would allow the Panel to determine whether the information is likely to affect or give rise to justifiable doubts as to the expert’s independence or impartiality. Instead, Dr Boisseau’s statement draws a conclusion on a matter that was for the Panel to decide. Dr Boisseau’s statement does not identify whether he has “worked for, been funded by, or provided advice to, the industries concerned, or to domestic or international regulatory bodies involved in issues similar to those addressed in this dispute”. The statement does not mention his affiliation with JECFA, nor the fact that he was the Chairman or Vice-Chairman of JECFA panels that evaluated some of the hormones at issue in this dispute. Also, Dr Boisseau’s position as a civil servant did not itself shield him from having a conflict of interest. Thus, we agree with the European Communities that Dr Boisseau’s statement would not appear to comply fully with the requirements of Section VI.2 of the Rules of Conduct or paragraph 4 of the Experts Working Procedures adopted by the Panel.

 

… While panels should insist that self-disclosure requirements under the Rules of Conduct are observed by potential experts, and while parties are entitled to full self-disclosure by experts, we find that the Panel did not exceed its authority in concluding that Dr Boisseau’s brief statement, when considered together with the information contained in his curriculum vitae, provided sufficient disclosure in this case. Dr Boisseau’s curriculum vitae provides information about his involvement with JECFA and his other professional activities.

 
R.6.4 US — Continued Suspension / Canada — Continued Suspension,
para. 455     back to top
(WT/DS320/AB/R, WT/DS321/AB/R)

… The European Communities does not provide argumentation explaining why Dr Boisseau’s statement concerning the use of the hormones for therapeutic purposes signifies that he would not be impartial in his views concerning the use of these hormones for growth-promotion purposes. … In addition, we do not consider that in this case the information about Dr Boobis’ links to certain pharmaceutical companies provided an objective basis to conclude that there were justifiable doubts as to his impartiality or independence. … Thus, we consider that the Panel did not exceed its authority in dismissing the European Communities’ objections relating to disclosure statements given by Drs Boisseau and Boobis pursuant to the Rules of Conduct and paragraph 4 of the Experts Working Procedures adopted by the Panel.

 
R.6.5 US — Continued Suspension / Canada — Continued Suspension,
para. 459     back to top
(WT/DS320/AB/R, WT/DS321/AB/R)

… We agree with the Panel that Drs Boisseau and Boobis are highly qualified scientists. We do not see the fact that Drs Boisseau and Boobis are qualified and knowledgeable — and thus experts — as giving rise to concerns about their impartiality and independence. On the contrary, we would expect a person who is regarded as an expert to hold views, and even very strong views, on his or her particular area of expertise. However, we agree with the European Communities that the qualifications and relevant knowledge of Drs Boisseau and Boobis are not by themselves sufficient guarantees of their independence and impartiality. An expert could be very qualified and knowledgeable and yet his or her appointment could give rise to concerns about his or her impartiality or independence, because of that expert’s institutional affiliation or for other reasons. Similarly, the fact that JECFA may select its experts according to strict procedures does not in itself ensure that these experts are independent and impartial in respect of the issues that may arise in a WTO dispute.

 
R.6.6 US — Continued Suspension / Canada — Continued Suspension,
para. 481     back to top
(WT/DS320/AB/R, WT/DS321/AB/R)

For these reasons, we consider that there was an objective basis to conclude that the institutional affiliation with JECFA of Drs Boisseau and Boobis, and their participation in JECFA’s evaluations of the six hormones at issue, was likely to affect or give rise to justifiable doubts as to their independence or impartiality given that the evaluations conducted by JECFA lie at the heart of the controversy between the parties. The appointment and consultations with Drs Boisseau and Boobis compromised the adjudicative independence and impartiality of the Panel. Therefore, we find that the Panel infringed the European Communities’ due process rights as a result of the Panel having consulted with Drs Boisseau and Boobis as scientific experts.

 


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