D.2.1 Due process in the application of trade measures back to top
D.2.1.1 US — Shrimp, para. 182
… Inasmuch as there are due process requirements generally for measures that are otherwise imposed in compliance with WTO obligations, it is only reasonable that rigorous compliance with the fundamental requirements of due process should be required in the application and administration of a measure which purports to be an exception to the treaty obligations of the Member imposing the measure and which effectively results in a suspension pro hac vice of the treaty rights of other Members.
D.2.1.2 EC — Fasteners (China), para. 541
Whenever information [submitted in the course of an anti-dumping investigation] is treated as confidential, transparency and due process concerns will necessarily arise because such treatment entails the withholding of information from other parties to an investigation. Due process requires that interested parties have a right to see the evidence submitted or gathered in an investigation, and have an adequate opportunity for the defence of their interests. As the Appellate Body has stated, “that opportunity must be meaningful in terms of a party’s ability to defend itself”.
D.2.2 Due process in WTO dispute settlement proceedings. See also Request for the Establishment of a Panel (R.2); Rules of Conduct (R.6); Seek Information and Technical Advice (S.4); Terms of Reference of Panels (T.6); Working Procedures for Appellate Review (W.2) back to top
D.2.2.1 Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at 186
A panel’s terms of reference are important for two reasons. First, terms of reference fulfil an important due process objective — they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant’s case. Second, they establish the jurisdiction of the Panel by defining the precise claims at issue in the dispute.
D.2.2.2 EC — Hormones, Footnote 138 to para. 152
… the DSU, and in particular its Appendix 3, leave panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated. Within this context, an appellant requesting the Appellate Body to reverse a panel’s ruling on matters of procedure must demonstrate the prejudice generated by such legal ruling.
D.2.2.3 EC — Hormones, para. 154
… Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant [the opportunity to participate in the second substantial meeting of the proceedings initiated by Canada] to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law. …
D.2.2.4 India — Patents (US), para. 94
All parties engaged in dispute settlement under the DSU must be fully forthcoming from the very beginning both as to the claims involved in a dispute and as to the facts relating to those claims. Claims must be stated clearly. Facts must be disclosed freely. This must be so in consultations as well as in the more formal setting of panel proceedings. In fact, the demands of due process that are implicit in the DSU make this especially necessary during consultations. …
D.2.2.5 India — Patents (US), para. 95
It is worth noting that, with respect to fact-finding, the dictates of due process could better be served if panels had standard working procedures that provided for appropriate factual discovery at an early stage in panel proceedings.
D.2.2.6 Argentina — Textiles and Apparel, Footnote 68 to para. 79
As we have observed in two previous Appellate Body Reports, we believe that detailed, standard working procedures for panels would help to ensure due process and fairness in panel proceedings. See European Communities — Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 144; India — Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, para. 95.
D.2.2.7 EC — Computer Equipment, para. 70
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… We do not see how the alleged lack of precision of the terms, LAN equipment and PCs with multimedia capability, in the request for the establishment of a panel affected the rights of defence of the European Communities in the course of the panel proceedings. As the ability of the European Communities to defend itself was not prejudiced by a lack of knowing the measures at issue, we do not believe that the fundamental rule of due process was violated by the Panel.
D.2.2.8 US — FSC, para. 166
… The procedural rules of WTO dispute settlement are designed to promote, not the development of litigation techniques, but simply the fair, prompt and effective resolution of trade disputes.
D.2.2.9 Australia — Salmon, para. 272
… 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. …
D.2.2.10 Australia — Salmon, para. 278
… A fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it. In this case, we believe that the Panel did accord Australia a proper opportunity to respond by allowing Australia to submit a third written submission. We cannot see how the Panel failed to accord due process to Australia by granting the extra time it had requested.
D.2.2.11 US — 1916 Act, para. 150
A panel’s decision whether to grant “enhanced” participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process. In the present cases, however, the European Communities and Japan have not shown that the Panel exceeded the limits of its discretionary authority. …
D.2.2.12 Mexico — Corn Syrup (Article 21.5 — US), para. 36
… We believe that a panel comes under a duty to address issues in at least two instances. First, as a matter of due process, and the proper exercise of the judicial function, panels are required to address issues that are put before them by the parties to a dispute. Second, panels have to address and dispose of certain issues of a fundamental nature, even if the parties to the dispute remain silent on those issues. In this regard, we have previously observed that “[t]he vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings.” For this reason, panels cannot simply ignore issues which go to the root of their jurisdiction — that is, to their authority to deal with and dispose of matters. Rather, panels must deal with such issues — if necessary, on their own motion — in order to satisfy themselves that they have authority to proceed.
D.2.2.13 Mexico — Corn Syrup (Article 21.5 — US), para. 47
… the “observations” raised by Mexico were not expressed in a fashion that indicated that Mexico was raising an objection to the authority of the Panel. The requirements of good faith, due process and orderly procedure dictate that objections, especially those of such potential significance, should be explicitly raised. Only in this way will the panel, the other party to the dispute, and the third parties, understand that a specific objection has been raised, and have an adequate opportunity to address and respond to it. …
D.2.2.14 Mexico — Corn Syrup (Article 21.5 — US), para. 49
… had we been satisfied that Mexico did, in fact, explicitly raise its objections before the Panel, then the Panel may well have been required to “address” those objections, whether by virtue of Articles 7.2 and 12.7 of the DSU, or the requirements of due process. …
D.2.2.15 Mexico — Corn Syrup (Article 21.5 — US), para. 50
… When a Member wishes to raise an objection in dispute settlement proceedings, it is always incumbent on that Member to do so promptly. A Member that fails to raise its objections in a timely manner, notwithstanding one or more opportunities to do so, may be deemed to have waived its right to have a panel consider such objections.
D.2.2.16 US — FSC (Article 21.5 — EC), para. 243
… the rights of third parties in panel proceedings are limited to the rights granted under Article 10 and Appendix 3 to the DSU. Beyond those minimum guarantees, panels enjoy a discretion to grant additional participatory rights to third parties in particular cases, as long as such “enhanced” rights are consistent with the provisions of the DSU and the principles of due process. However, panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.
D.2.2.17 Chile — Price Band System, para. 144
We emphasize that we do not mean to condone a practice of amending measures during dispute settlement proceedings if such changes are made with a view to shielding a measure from scrutiny by a panel or by us. We do not suggest that this occurred in this case. However, generally speaking, the demands of due process are such that a complaining party should not have to adjust its pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a “moving target”. If the terms of reference in a dispute are broad enough to include amendments to a measure — as they are in this case — and if it is necessary to consider an amendment in order to secure a positive solution to the dispute — as it is here — then it is appropriate to consider the measure as amended in coming to a decision in a dispute.
D.2.2.18 US — Carbon Steel, para. 123
… we have consistently held that, in the interests of due process, parties should bring alleged procedural deficiencies to the attention of a panel at the earliest possible opportunity. In this case, we see no reason to disagree with the Panel’s view that the United States’ objection was not raised in a timely manner. At the same time, however, as we have observed previously, certain issues going to the jurisdiction of a panel are so fundamental that they may be considered at any stage in a proceeding. In our view, the Panel was correct, therefore, in turning to consider its terms of reference and in satisfying itself as to its jurisdiction with respect to this matter.
D.2.2.19 Canada — Wheat Exports and Grain Imports, para. 177
Although an appellant is free to determine how to characterize its claims on appeal, at the same time due process requires that the legal basis of a claim be sufficiently clear to allow an appellee to respond effectively. This is especially the case when the claim is an allegation that the panel did not make an objective assessment of the matter as required by Article 11 of the DSU because, by definition, such a claim will not be found in the request for the establishment of the panel and, therefore, the panel will not have referred to it in the panel report.
D.2.2.20 US — Gambling, para. 269
… This does not mean that a responding party may put forward its defence whenever and in whatever manner it chooses. Article 3.10 of the DSU provides that “all Members will engage in these procedures in good faith in an effort to resolve the dispute”, which implies the identification by each party of relevant legal and factual issues at the earliest opportunity, so as to provide other parties, including third parties, an opportunity to respond.
D.2.2.21 US — Gambling, para. 270
At the same time, the opportunity afforded to a Member to respond to claims and defences made against it is also a “fundamental tenet of due process”. A party must not merely be given an opportunity to respond, but that opportunity must be meaningful in terms of that party’s ability to defend itself adequately. A party that considers it was not afforded such an opportunity will often raise a due process objection before the panel. The Appellate Body has recognized in numerous cases that a Member’s right to raise a claim or objection, as well as a panel’s exercise of discretion, are circumscribed by the due process rights of other parties to a dispute. Those due process rights similarly serve to limit a responding party’s right to set out its defence at any point during the panel proceedings.
D.2.2.22 US — Gambling, para. 271
Due process may be of particular concern in cases where a party raises new facts at a late stage of the panel proceedings. The Appellate Body has observed that, under the standard working procedures of panels, complaining parties should put forward their cases — with “a full presentation of the facts on the basis of submission of supporting evidence” — during the first stage of panel proceedings. We see no reason why this expectation would not apply equally to responding parties, which, once they have received the first written submission of a complaining party, are likely to be aware of the defences they might invoke and the evidence needed to support them.
D.2.2.23 US — Gambling, para. 272
It follows that the principles of good faith and due process oblige a responding party to articulate its defence promptly and clearly. This will enable the complaining party to understand that a specific defence has been made, “be aware of its dimensions, and have an adequate opportunity to address and respond to it”. …
D.2.2.24 US — Gambling, para. 273
… as part of their duties, under Article 11 of the DSU, … panels must ensure that the due process rights of parties to a dispute are respected. A panel may act inconsistently with this duty if it addresses a defence that a responding party raised at such a late stage of the panel proceedings that the complaining party had no meaningful opportunity to respond to it. To this end, panels are endowed with “sufficient flexibility” in their working procedures, by virtue of Article 12.2 of the DSU, to regulate panel proceedings and, in particular, to adjust their timetables to allow for additional time to respond or for additional submissions where necessary.
D.2.2.25 US — Gambling, para. 276
… we are of the view that, although the United States could have raised its defence earlier, the Panel did not err in deciding to assess whether the United States’ measures are justified under Article XIV. From the outset, Antigua was apparently aware that the United States might argue that its measures satisfy the requirements of Article XIV. Antigua admitted that it raised no objection to the timing of the United States’ defence before the Panel. Antigua also acknowledged that it did have an opportunity to respond adequately to the United States’ defence, albeit at a late stage of the proceeding. …
D.2.2.26 US — Continued Suspension / Canada — Continued Suspension, para. 433
The Appellate Body has previously found that the obligation to afford due process is “inherent in the WTO dispute settlement system” and it has described due process requirements as “fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings”. In our view, the protection of due process is an essential feature of a rules-based system of adjudication, such as that established under the DSU. Due process protection guarantees that the proceedings are conducted with fairness and impartiality, and that one party is not unfairly disadvantaged with respect to other parties in a dispute.
D.2.2.27 US — Continued Suspension / Canada — Continued Suspension, para. 435
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 panelists 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.
D.2.2.28 US — Continued Suspension / Canada — Continued Suspension, para. 436
Scientific experts and the manner in which their opinions are solicited and evaluated can have a significant bearing on a panel’s consideration of the evidence and its review of a domestic measure, especially in cases like this one involving highly complex scientific issues. Fairness and impartiality in the decision-making process are fundamental guarantees of due process. Those guarantees would not be respected where the decision-makers appoint and consult experts who are not independent or impartial. Such appointments and consultations compromise a panel’s ability to act as an independent adjudicator. For these reasons, we agree with the view of the European Communities that the protection of due process applies to a panel’s consultations with experts. This due process protection applies to the process for selecting experts and to the Panel’s consultations with the experts, and continues throughout the proceedings.
D.2.2.29 US — Continued Suspension / Canada — Continued Suspension, para. 473
The United States emphasizes the fact that the Panel consulted with the parties when it adopted the Experts Working Procedures and in the expert selection process. We agree with the United States that consultation with the parties in the adoption of working procedures for selecting the experts and in the expert selection process is a means for ensuring that the parties’ due process rights are respected. However, as we explained earlier, the obligation to afford the protection of due process to the parties is not circumscribed to the expert selection stage and does not end with the appointment of the experts. Due process protection continues to apply throughout the consultations with the experts. Thus, the fact that the Panel may have consulted with the parties in this case when preparing the Experts Working Procedures and in selecting the experts does not provide a basis for concluding that due process was also respected in the subsequent stages of the proceedings, including the consultations with the experts. …
D.2.2.30 US — Continued Suspension / Canada — Continued Suspension, para. 481
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.
D.2.2.31 US — Zeroing (EC) (Article 21.5 — EC), paras. 169, 172
On appeal, the European Communities alleges that the Panel acted inconsistently with the basic requirements of due process and the full exercise of the judicial function by failing to address properly its claim that the Panel was composed in a manner inconsistent with Articles 8.3 and 21.5 of the DSU. The European Communities submits that, because panels, and ultimately the Appellate Body, have the authority and the obligation to rule on the correct interpretation of the DSU, defects that could arise during panel composition are subject to judicial review by them. The European Communities requests the Appellate Body to complete the analysis and to find that the Panel’s composition in this case was inconsistent with Articles 8.3 and 21.5 of the DSU.
On the substance of the European Communities’ appeal, we note that, on 28 November 2007, the Director-General was requested to determine the composition of the compliance panel under Article 8.7 of the DSU. In our view, Article 8.7 confers on the Director-General the discretion to compose panels, which was properly exercised in this case. We therefore find that the Panel did not err in refraining, in paragraphs 8.17 and 9.1(a) of the Panel Report, from making a finding on whether it was improperly composed. …
D.2.2.32 US — Zeroing (Japan) (Article 21.5 — Japan), paras. 118–119
As we observed earlier, one of the purposes of a panel’s terms of reference is to fulfil the due process objective of notifying respondents and potential third parties of the nature of the dispute and of the parameters of the case to which they must begin preparing a response. We see no error in the Panel having examined whether Japan’s panel request adequately put the United States “on notice” regarding the case against it. Nor do we find error in the Panel’s finding that the United States was reasonably put on notice by Japan’s panel request. … We consider that the Panel did not err in its analysis of the matter and in considering the due process objectives as relevant for purposes of deciding whether Review 9 was within its terms of reference.
Further, we do not believe that the inclusion of Review 9 in the Panel’s terms of reference adversely affected the United States’ due process rights. … In our view, … the United States had ample opportunities, during the course of the Panel proceedings and prior to the Panel’s deliberations, to make arguments, answer questions, and respond to Japan’s submission with respect to Review 9. Potential third parties were sufficiently put on notice by Japan’s panel request, … The third parties also had opportunity to present arguments and respond to the claims made by Japan with respect to Review 9. Based on the above, we agree with the Panel’s conclusion that “a finding that the phrase ‘subsequent closely connected measures’ satisfies the terms of Article 6.2 would not violate any due process objective of the DSU”.
D.2.2.33 Thailand — Cigarettes (Philippines), para. 147
We note that Thailand couches its claim under Article 11 of the DSU as a “due process claim”. Due process is a fundamental principle of WTO dispute settlement. It informs and finds reflection in the provisions of the DSU. In conducting an objective assessment of a matter, a panel is “bound to ensure that due process is respected”. Due process is intrinsically connected to notions of fairness, impartiality, and the rights of parties to be heard and to be afforded an adequate opportunity to pursue their claims, make out their defences, and establish the facts in the context of proceedings conducted in a balanced and orderly manner, according to established rules. The protection of due process is thus a crucial means of guaranteeing the legitimacy and efficacy of a rules-based system of adjudication.
D.2.2.34 Thailand — Cigarettes (Philippines), para. 148
Panel working procedures should both embody and reinforce due process. Article 12.1 of the DSU states that panels “shall” follow the working procedures set out in Appendix 3 to the DSU “unless the Panel decides otherwise after consulting the parties to the dispute”. The working procedures adopted by a panel must conform to the DSU. As the Appellate Body has previously observed, the use by panels of detailed, standardized working procedures promotes fairness and the protection of due process. The inclusion by a panel in its working procedures of a rule that is inconsistent with due process would be a clear sign that such panel has failed to ensure the protection of due process. At the same time, even when the working procedures are themselves sound, a panel’s failure to adhere to those procedures may be pertinent to, albeit not necessarily determinative of, the issue of whether such panel has failed to ensure the protection of due process in a given instance.
D.2.2.35 Thailand — Cigarettes (Philippines), para. 149
We also recall that panel proceedings consist of two main stages, the first of which involves each party setting out its “case in chief, including a full presentation of the facts on the basis of submission of supporting evidence”, and the second designed to permit the rebuttal by each party of the arguments and evidence submitted by the other parties. Nonetheless, the submission of evidence may not always fall neatly into one or the other of these categories, in particular when panels themselves, in the exercise of their fact finding authority, seek to pursue specific lines of inquiry in their questioning of the parties. In this respect, we wish to reiterate that due process will best be served by working procedures that provide “for appropriate factual discovery at an early stage in panel proceedings”, and that “[d]ue process may be of particular concern in cases where a party raises new facts at a late stage of the panel proceedings”. Furthermore, when the particular circumstances of specific disputes present situations that are not explicitly regulated by their working procedures, panels, in the exercise of their control over the proceedings, and subject to the constraints of due process and the DSU, enjoy a margin of discretion to deal with such situations.
D.2.2.36 Thailand — Cigarettes (Philippines), para. 150
As a general rule, due process requires that each party be afforded a meaningful opportunity to comment on the arguments and evidence adduced by the other party. This was expressly acknowledged by the Appellate Body in Australia — Salmon when it stated that “[a] fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it”. At the same time, due process may also require a panel to take appropriate account of the need to safeguard other interests, such as an aggrieved party’s right to have recourse to an adjudicative process in which it can seek redress in a timely manner, and the need for proceedings to be brought to a close. These interests find reflection in the provisions of the DSU, including Article 3.3, which calls for “[t]he prompt settlement” of WTO disputes, as this is “essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members”. Likewise, 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”. Furthermore, “in the interests of due process, parties should bring alleged procedural deficiencies to the attention of a panel at the earliest possible opportunity”. Accordingly, ensuring due process requires a balancing of various interests, including systemic interests as well as those of the parties, and both general and case-specific considerations. In our view, panels are best situated to determine how this balance should be struck in any given proceeding, provided that they are vigilant in the protection of due process and remain within the bounds of their duties under Article 11 of the DSU.
D.2.2.37 Thailand — Cigarettes (Philippines), para. 155
… the fact that the Panel’s treatment of Exhibit PHL-289 was not inconsistent with paragraph 15 of its Working Procedures is, in our view, not dispositive of whether Thailand’s due process rights were respected and, accordingly, of whether the Panel complied with its duties under Article 11 of the DSU. As set out above, due process generally demands that each party be afforded a meaningful opportunity to comment on evidence adduced by the other party. At the same time, a number of different considerations will need to be factored into a panel’s effort to protect due process in a particular dispute, and these may include the need for a panel, in pursuing prompt resolution of the dispute, to exercise control over the proceedings in order to bring an end to the back and forth exchange of competing evidence by the parties. In the context of this dispute, there are several considerations that are germane to our assessment of Thailand’s claim under Article 11 of the DSU. These include: the conduct of the parties; the legal issue to which the evidence related and the circumstances surrounding the submission of the evidence relating to that issue; and the discretion afforded under the DSU to panels in their handling of the proceedings and appreciation of the evidence.
D.2.2.38 Thailand — Cigarettes (Philippines), para. 160 and Footnotes 255–256
In the light of the above, we do not consider that the Panel’s treatment of Exhibit PHL-289 amounted to a violation of due process. Thailand could have requested an opportunity to respond when the Philippines submitted the exhibit in question, but it did not.255 Although Exhibit PHL-289 was submitted very late in the proceedings, this evidence did not raise or relate to a new issue, previously unknown to Thailand or unexplored by the Panel, and it was not the only evidence supporting the Panel’s conclusion that resales of domestic cigarettes need not be reported in form Por.Por.30. The Panel could have chosen to refuse to accept Exhibit PHL-289 or to afford Thailand an opportunity to respond to it. It did not do so. However, taking into account all of the circumstances, we consider that the Panel did not fail to protect due process in this case.256
D.2.2.39 EC — Fasteners (China), para. 574
Rule 4 of the Panel’s Working Procedures requires that, “[b]efore the first substantive meeting of the panel with the parties, the parties to the dispute shall transmit to the Panel written submissions in which they present the facts of the case and their arguments”. As described above, the Panel record shows that China asserted its claim under Article 6.5 regarding the lack of a “good cause” showing for the confidential treatment of Pooja Forge’s questionnaire response only in response to questions from the Panel, and articulated this claim only after the parties had provided the Panel with written submissions and had attended a substantive meeting. We do not find that assertions made so late in the proceedings, and only in response to questioning by the Panel, can comply with either Rule 4 of the Panel’s Working Procedures, or the requirements of due process of law. …
D.2.2.40 US — Large Civil Aircraft (2nd complaint), paras. 1136–1137 and Footnote 2323
… the European Union styles its claim under Article 11 of the DSU as a “due process” claim. …
The first of the European Union’s arguments in support of its due process claim is that the Panel introduced the “predominance” approach for the first time in … its Final Report, thereby depriving the European Communities of any meaningful opportunity to comment on such a “novel theory”. We understand that, on this ground of appeal, the European Union does not take issue with the Panel’s use of the predominance test per se but, rather, with the fact that it appeared for the first time in the Final Report. We observe, in this respect that the predominance test appears to have emerged from repeated exchanges between the parties and the Panel over the course of the Panel proceedings. Even if the word “predominantly” was not used in the Interim Report, the essence of this test could be discerned from earlier parts of the Interim Report. … We therefore do not accept the European Union’s assertion that the Panel’s predominance approach was unexpected because it appeared only in the Final Report. In any event, although a panel must fully explore with the parties all pertinent issues arising in the dispute over the course of the proceedings, this does not imply that it is required to engage with the parties upon the findings and conclusions that it intends to adopt in resolving the dispute.2323 Indeed, it would be impossible to do so, in particular since the Panel’s views may evolve over the course of the proceedings. Accordingly, we do not agree with the European Union that the mere inclusion of new language in … the Final Report means that the Panel acted inconsistently with Article 11 of the DSU by failing to provide the parties with an opportunity to comment on the alleged “novel” approach in … the Final Report.
D.2.2.41 US — Large Civil Aircraft (2nd complaint), para. 1140
… one aspect of ensuring that the proceedings are fairly conducted is that each party must be entitled to know the case that it has to make or to answer and must be afforded a fair and reasonable opportunity to do so. In general, panels are best situated to determine how this should be accomplished in the particular circumstances of each case, including through the exercise of their authority to seek information. The use of this authority, however, is not untrammelled. In considering whether to exercise its authority under Article 13 of the DSU — in particular when a party has made an explicit request that it do so — a panel should have regard to considerations such as what information is needed to complete the record, whose possession it lies within, what other reasonable means might be used to procure it, why it has not been produced, whether it is fair to request the party in possession of the information to submit it, and whether the information or evidence in question is likely to be necessary to ensure due process and a proper adjudication of the relevant claim(s).
255. We are not suggesting that the fact that Thailand did not expressly request an opportunity to respond to Exhibit PHL-289 automatically implies that it cannot succeed in its claim that the Panel failed to ensure due process. At the same time, Thailand’s failure to request an opportunity to respond is a consideration relevant to our overall assessment of whether, in the circumstances of this case, the Panel’s conduct denied due process to Thailand. We observe, in this regard, that when confronted with an issue similar to the one raised here, the panel in China — Auto Parts rejected “China’s argument that the Panel should, sua sponte, have accorded a period of time for other parties to comment on Exhibit CDA-48”, and stated that “it is China, not the Panel, that should have initiated an opportunity to submit comments on Exhibit CDA-48.” (Panel Reports, China — Auto Parts, para. 6.22 (emphasis added)) We disagree with these statements to the extent that they imply that only the conduct of the party receiving evidence submitted by the other party late in the proceedings is relevant in determining whether due process was protected. In our view, both that party and the Panel to which the evidence is submitted have a responsibility to consider whether an opportunity to respond to that evidence would be useful or necessary, and to conduct themselves accordingly. back to text
256. We wish to emphasize, however, that we do not consider that the mere characterization of evidence as rebuttal evidence means that no due process concerns can arise in situations where a panel does not afford a party an opportunity to respond to such rebuttal evidence. back to text
2323. We note that, even if a panel is not required to ventilate its intended analysis in advance of rendering its decision, a panel should not, in adopting an approach that departs radically from the cases put forward by the parties, “leave it to the parties to guess what proof it will require”. back to text