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ON THIS PAGE:
> EC — Hormones,
para. 147
> EC — Hormones,
para. 148
> Argentina — Textiles and Apparel,
paras. 82, 84
> US — Shrimp,
para. 104
> US — Shrimp,
paras. 108-109
> Japan — Agricultural Products II,
paras. 127-128
> Japan — Agricultural Products II,
para. 129
> Canada — Aircraft,
para. 185
> Canada — Aircraft,
para. 187
> Canada — Aircraft,
para. 203
> Thailand — H-Beams,
para. 135
> EC — Sardines,
para. 302
> US — Carbon Steel,
para. 153
> EC — Bed Linen (Article 21.5 — India),
para. 167
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S.4.1 EC —
Hormones,
para. 147 back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… Both Article 11.2 of the SPS Agreement
and Article 13 of the DSU enable panels to seek information and advice
as they deem appropriate in a particular case. …
… We find that in disputes involving
scientific or technical issues, neither Article 11.2 of the SPS Agreement,
nor Article 13 of the DSU prevents panels from consulting with
individual experts. Rather, both the SPS Agreement and the
DSU leave to the sound discretion of a panel the determination of
whether the establishment of an expert review group is necessary or
appropriate.
S.4.2 EC — Hormones,
para. 148 back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… The rules and procedures set forth in
Appendix 4 of the DSU apply in situations in which expert review groups
have been established. However, this is not the situation in this
particular case. Consequently, once the panel has decided to request the
opinion of individual scientific experts, there is no legal obstacle to
the panel drawing up, in consultation with the parties to the dispute, ad
hoc rules for those particular proceedings.
S.4.3 Argentina — Textiles and Apparel,
paras. 82, 84 back to top
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)
… The DSU gives panels different means or
instruments for complying with Article 11; among these is the right to
“seek information and technical advice” provided in Article 13 of
the DSU. …
…
The only provision of the WTO Agreement
that requires consultations with the IMF is Article XV:2 of the
GATT 1994. This provision requires the WTO to consult with the
IMF when dealing with “problems concerning monetary reserves, balances
of payments or foreign exchange arrangements”. However, this case does
not relate to these matters. Article 13.1 of the DSU gives a panel “
… the right to seek information and technical advice from any
individual or body which it deems appropriate.” (emphasis
added) Pursuant to Article 13.2 of the DSU, a panel may seek information
from any relevant source and may consult experts to obtain their
opinions on certain aspects of the matter at issue. This is a grant of
discretionary authority: a panel is not duty-bound to seek information
in each and every case or to consult particular experts under this
provision. …
S.4.4 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.
S.4.5 US — Shrimp,
paras. 108-109 back to top
(WT/DS58/AB/R)
… authority to seek information is
not properly equated with a prohibition on accepting information
which has been submitted without having been requested by a panel. A
panel has the discretionary authority either to accept and consider or
to reject information and advice submitted to it, whether requested
by a panel or not. The fact that a panel may motu proprio
have initiated the request for information does not, by itself, bind the
panel to accept and consider the information which is actually
submitted. The amplitude of the authority vested in panels to shape the
processes of fact-finding and legal interpretation makes clear that a
panel will not be deluged, as it were, with non-requested
material, unless that panel allows itself to be so deluged.
Moreover, acceptance and rejection of the
information and advice of the kind here submitted to the Panel need not
exhaust the universe of possible appropriate dispositions thereof. …
S.4.6 Japan — Agricultural Products II,
paras. 127-128 back to top
(WT/DS76/AB/R)
… Article 13 of the DSU allows a panel to
seek information from any relevant source and to consult
individual experts or expert bodies to obtain their opinion on
certain aspects of the matter before it. In our Report in United
States — Import Prohibition of Certain Shrimp and Shrimp Products
(“United States — Shrimp”) [Appellate Body Report,
para. 104], we noted the “comprehensive nature” of this authority,
and stated that this authority 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. …”
Furthermore, we note that the present dispute
is a dispute under the SPS Agreement. Article 11.2 of the SPS
Agreement explicitly instructs panels in disputes under
this Agreement involving scientific and technical issues to “seek
advice from experts”.
S.4.7 Japan — Agricultural Products II,
para. 129 back to top
(WT/DS76/AB/R)
Article 13 of the DSU and Article 11.2 of the SPS
Agreement suggest that panels have a significant investigative
authority. However, this authority cannot be used by a panel to rule in
favour of a complaining party which has not established a prima facie
case of inconsistency based on specific legal claims asserted by it. A
panel is entitled to seek information and advice from experts and from
any other relevant source it chooses, pursuant to Article 13 of the DSU
and, in an SPS case, Article 11.2 of the SPS Agreement, to
help it to understand and evaluate the evidence submitted and the
arguments made by the parties, but not to make the case for a
complaining party.
S.4.8 Canada — Aircraft,
para. 185 back to top
(WT/DS70/AB/R)
It is clear from the language of Article 13
that the discretionary authority of a panel may be exercised to request
and obtain information, not just “from any individual or body”
within the jurisdiction of a Member of the WTO, but also from any
Member, including a fortiori a Member who is a party to a
dispute before a panel. This is made crystal clear by the third sentence
of Article 13.1, which states: “A Member should respond
promptly and fully to any request by a panel for such information as
the panel considers necessary and appropriate.” (emphasis added)
It is equally important to stress that this discretionary authority to
seek and obtain information is not made conditional by this, or
any other provision, of the DSU upon the other party to the dispute
having previously established, on a prima facie basis, such other
party’s claim or defence. Indeed, Article 13.1 imposes no
conditions on the exercise of this discretionary authority. Canada
argues that the Panel in this case had no authority to request
the submission of information relating to the EDC’s financing of the
ASA transaction because Brazil had not previously established a prima
facie case that the financial contribution offered by such financing
conferred a “benefit” on ASA and therefore satisfied that other
prerequisite of a prohibited export subsidy. This argument is, quite
simply, bereft of any textual or logical basis. There is nothing in
either the DSU or the SCM Agreement to sustain it. Nor can
any support for this argument be derived from a consideration of the
nature of the functions and responsibilities entrusted to panels in the
WTO dispute settlement system — a consideration which we essay below.
…
S.4.9 Canada — Aircraft,
para. 187 back to top
(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.
S.4.10 Canada — Aircraft,
para. 203 back to top
(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. …
S.4.11 Thailand
— H-Beams,
para. 135 back to top
(WT/DS122/AB/R)
With respect to Thailand’s argument that the
claims of Poland were not sufficiently clear, and that the Panel,
therefore, overstepped the limits of its authority in asking questions
of the parties, we note that we have previously stated that panels are
entitled to ask questions of the parties that they deem relevant to the
consideration of the issues before them. In our Report in Canada
— Measures Affecting the Export of Civilian Aircraft, we
dismissed the view that a panel has no authority to ask a question
relating to claims for which the complaining party had not first
established a prima facie case, and stated that such an argument
was “bereft of any textual or logical basis”.
S.4.12 EC — Sardines,
para. 302 back to top
(WT/DS231/AB/R)
… Article 13.2 of the DSU provides that “[p]anels
may seek information from any relevant source and may consult experts to
obtain their opinion on certain aspects of the matter.” This provision
is clearly phrased in a manner that attributes discretion to panels, and
we have interpreted it in this vein. Our statements in EC — Hormones, Argentina
— Measures Affecting Imports of
Footwear, Textiles, Apparel and Other Items (“Argentina —
Textiles
and Apparel”), and US — Shrimp, all support the
conclusion that, under Article 13.2 of the DSU, panels enjoy discretion
as to whether or not to seek information from external sources.
In this case, the Panel evidently concluded that it did not need to
request information from the Codex Commission, and conducted itself
accordingly. We believe that, in doing so, the Panel acted within the
limits of Article 13.2 of the DSU. A contravention of the duty under
Article 11 of the DSU to make an objective assessment of the facts of
the case cannot result from the due exercise of the discretion permitted
by another provision of the DSU, in this instance Article 13.2 of the
DSU.
S.4.13 US — Carbon Steel,
para. 153 back to top
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
We also wish to underline that although panels
enjoy a discretion, pursuant to Article 13 of the DSU, to seek
information “from any relevant source”, Article 11 of the DSU
imposes no obligation on panels to conduct their own fact-finding
exercise, or to fill in gaps in the arguments made by parties. In
consequence, given that the European Communities itself had submitted no
evidence — other than the text of the provision — on this point, the
Panel did not act inconsistently with Article 11 in refraining from
seeking additional information on its own initiative.
S.4.14 EC — Bed Linen (Article 21.5
— India),
para. 167 back to top
(WT/DS141/AB/RW)
… a panel’s duty to “actively review the
pertinent facts” in order to comply with Article 17.6(i) of the Anti-Dumping
Agreement does not, in our view, imply that a panel must
exercise its right to seek information under Article 13 of the DSU,
which explicitly states that the exercise of that right is discretionary.
Indeed, there is nothing in the texts of Article 17.6(i) of the Anti-Dumping
Agreement or Article 13 of the DSU to suggest that a reading of
these provisions, in combination, would render mandatory the
exercise of a panel’s discretionary power under Article 13 of
the DSU … The mere fact that the Panel did not consider it necessary
to seek information does not, by itself, imply that the Panel’s
exercise of its discretion was not “due”. We, therefore, reject
India’s allegation that the Panel failed to comply with the
requirements of Article 17.6 of the Anti-Dumping Agreement by not
seeking information from the European Communities pursuant to Article 13
of the DSU.
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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.
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