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Issues covered by the WTO’s committees and agreements


Inferences Drawn from the Refusal of a Party to Provide Information


> 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
> US — Large Civil Aircraft (2nd complaint), para. 542
> US — Large Civil Aircraft (2nd complaint), para. 548

I.1.1 Canada — Aircraft, para. 187     back to top

… 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     back to top

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

… 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

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

… 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

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.

I.1.7 US — Large Civil Aircraft (2nd complaint), para. 542     back to top

… Whether there has been a failure to cooperate or a refusal to submit essential information, and whether there is a resulting need to use adverse inferences, are questions that usually refer to specific claims, measures, or pieces of evidence. Yet, the European Union has not provided us with such details in connection with its requests that we find that the United States failed to comply with its obligations under the first sentence of paragraph 1 of Annex V to the SCM Agreement, and that the Panel was entitled to rely on best information otherwise available, and to draw adverse inferences in accordance with the provisions of paragraphs 6 and 7 of Annex V. …

I.1.8 US — Large Civil Aircraft (2nd complaint), para. 548     back to top

… To the extent that the European Union is asking us to draw adverse inferences, we would have expected it to have provided us with a more precise indication of the areas in which the factual record is incomplete, how the lack of information relates to the United States’ alleged non-cooperation, and the specific inferences that it is requesting us to draw. This is because, as a general matter, the need to and justification for drawing adverse inferences relates to particular instances of non-cooperation or withholding of evidence and is context-specific. We are not convinced that the provisions of Annex V, and, in particular its paragraph 7, means, as the European Union’s broad request implies, that any non-cooperation in an Annex V procedure requires the drawing of adverse inferences against the non-cooperative party on all factual issues. Rather, the drawing of such inferences should at least to some extent involve consideration of the connection between the non-cooperation and the relevant issue, as well as of other evidence available on the record. …

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