Legal issues arising in WTO dispute settlement proceedings

10.7 The panel’s right to seek information

Article 13 of the DSU entitles panels to seek information from any appropriate source for the exploration and establishment of the facts necessary to adjudicate in a dispute. This right is broad and comprehensive and its exercise is left to the discretion of the panel.¹ One aspect of Article 13 is the panel’s right to resort to experts. In addition, Article 13 has been understood as an unconditional right which includes the panels’ right to request and obtain information from the Members who are party to the dispute.²

Despite the language in Article 13.1, third sentence, that a Member “should respond promptly and fully” to any request for information, the Appellate Body has ruled that Members, including the parties to the dispute, are under a full legal obligation to surrender the requested information.³ If a Member violates this obligation by refusing to submit the requested information, the panel has the discretionary right to draw negative inferences from the attitude of the non-cooperating Member.⁴ This means it may interpret the factual matter in doubt to the disadvantage of that Member.

Notes:

1. Appellate Body Report, US - Shrimp, paras. 104 and 106.  back to text

2. Appellate Body Report, Canada - Aircraft, para. 185.  back to text

3. Appellate Body Report, Canada - Aircraft, paras. 188 and 189.  back to text

4. Appellate Body Report, Canada - Aircraft, paras. 198-203.  back to text