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
> US — Continued Suspension / Canada — Continued Suspension, para. 436
> US — Continued Suspension / Canada — Continued Suspension, paras. 480–481
> US — Continued Suspension / Canada — Continued Suspension, para. 592
> US — Continued Suspension / Canada — Continued Suspension, para. 615
> China — Auto Parts, para. 6
> US — Continued Zeroing, paras. 343–344
> Australia — Apples, para. 384
> US — Large Civil Aircraft (2nd complaint), paras. 1138–1140
> US — Large Civil Aircraft (2nd complaint), para. 1143
S.4.1 EC — Hormones, para. 147 back to top
… 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
… 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
… 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
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
… 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
… 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 — 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
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
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
… 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
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
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
… 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
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
… 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.
S.4.15 US — Continued Suspension / Canada — Continued Suspension, para. 436 back to top
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.
S.4.16 US — Continued Suspension / Canada — Continued Suspension, paras. 480–481 back to top
We understand that panels often face practical difficulties in selecting experts who have the required level of expertise and whose selection is not objected to by the parties. We do not wish to make the expert selection process more difficult than it may already be. However, experts consulted by a panel can have a decisive role in a case, especially when it involves highly complex scientific questions such as this one. … Experts appointed by a panel can significantly influence the decision-making process. If a panel does not ensure that the requirements of independence and impartiality are respected in its consultations with the experts, this can compromise the fairness of the proceedings and the impartiality of the decision-making. In these circumstances, the practical difficulties that a panel may encounter in selecting experts cannot displace the need to ensure that the consultations with the experts respect the parties’ due process rights.
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.
S.4.17 US — Continued Suspension / Canada — Continued Suspension, para. 592 back to top
A panel may and should rely on the advice of experts in reviewing a WTO Member’s SPS measure, in accordance with Article 11.2 of the SPS Agreement and Article 13.1 of the DSU. In doing so, however, a panel must respect the due process rights of the parties. Moreover, a panel may not rely on the experts to go beyond its limited mandate of review. The purpose of a panel consulting with experts is not to perform its own risk assessment. The role of the experts must reflect the limited task of a panel. The Panel may seek the experts’ assistance in order to identify the scientific basis of the SPS measure and to verify that this scientific basis comes from a qualified and respected source, irrespective of whether it represents minority or majority scientific views. It may also rely on the experts to review whether the reasoning articulated on the basis of the scientific evidence is objective and coherent, and whether the particular conclusions drawn by the Member assessing the risk find sufficient support in the evidence. The experts may also be consulted on the relationship between the risk assessment and the SPS measure in order to assist the Panel in determining whether the risk assessment “sufficiently warrants” the SPS measure. The consultations with the experts, however, should not seek to test whether the experts would have done a risk assessment in the same way and would have reached the same conclusions as the risk assessor. In other words, the assistance of the experts is constrained by the kind of review that the Panel is required to undertake.
S.4.18 US — Continued Suspension / Canada — Continued Suspension, para. 615 back to top
… We have found that the Panel did not apply the proper standard of review. This is a legal error and does not fall within the authority of the Panel as the trier of facts. Moreover, we have found instances in which the Panel exceeded its authority in the assessment of the testimony of the scientific experts. By merely reproducing testimony of some experts that would appear to be favourable to the European Communities’ position, without addressing its significance, the Panel effectively disregarded evidence that was potentially relevant for the European Communities’ case. This cannot be reconciled with the Panel’s duty to make an “objective assessment of the facts of the case” pursuant to Article 11 of the DSU.
S.4.19 China — Auto Parts, para. 6 back to top
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
During the proceedings, the Panel sent two letters to the World Customs Organization (the “WCO”) on 7 June 2007 and 16 July 2007, requesting its assistance in matters relating to the Harmonized Commodity Description and Coding System (the “Harmonized System”). The WCO replied on 20 June 2007 and 30 July 2007 respectively, and the parties were invited to provide comments on these replies.
S.4.20 US — Continued Zeroing, paras. 343–344 back to top
Article 13 of the DSU gives panels “the right to seek information and technical advice from any individual or body which it deems appropriate”. The Appellate Body has explained that this is a discretionary authority that panels may exercise in seeking information “from any relevant source”. The Appellate Body has also explained that, while panels have “broad authority to pose such questions to the parties as it deems relevant for purposes of considering the issues that are before it”, such authority cannot be used “to make the case for a complaining party”.
The European Communities claims it explained to the Panel that the USDOC does not disclose a complete listing of all transactions and comparisons made in each periodic review. As a result, the European Communities posited to the Panel that, “should the Panel consider further corroboration appropriate, the Panel should request the United States to provide copies of the detailed margin calculations for each of the seven administrative reviews at issue”. We do not consider that the Panel acted inconsistently with Article 13 of the DSU when it did not seek such information. As noted, a panel’s authority to request information under Article 13 of the DSU is discretionary, and there is therefore no error that can be attributed to the Panel for its conduct in respect of that Article.
S.4.21 Australia — Apples, para. 384 back to top
We note that the Panel also specifically asked the experts the question whether restricting imports to mature, symptomless apples would achieve Australia’s appropriate level of protection. We have certain reservations about the Panel having done so, given that this was the ultimate question that the Panel was charged with answering pursuant to Article 5.6. Experts may assist a panel in assessing the level of risk associated with SPS measures and potential alternative measures, but whether or not an alternative measure’s level of risk achieves a Member’s appropriate level of protection is a question of legal characterization, the answer to which will determine the consistency or inconsistency of a Member’s measure with its obligation under Article 5.6. Answering this question is not a task that can be delegated to scientific experts. We also have more practical concerns, namely, that the Panel did not identify Australia’s appropriate level of protection in its question to the experts, or clarify or explain what it understood the content of that level to be. Nor did the experts, in their replies, elaborate their understanding of Australia’s appropriate level of protection. In such circumstances, and irrespective of the propriety of the question, the answers provided by the experts can be of only limited utility.
S.4.22 US — Large Civil Aircraft (2nd complaint), paras. 1138–1140 back to top
… We observe that, under Article 13 of the DSU, panels are endowed with the authority to request information from relevant sources, including from WTO Members. We recall, moreover, that the exercise of this authority may prove “indispensably necessary” to enable a panel to objectively assess the matter before it. Furthermore, a panel may need to seek information “‘in order to evaluate evidence already before it’ so as to make an objective assessment of whether the complaining party has established a prima facie case”.
In our view, the extent to which Article 11 of the DSU may require a panel to exercise its authority to seek out further information is a function of the particular facts and circumstances of each dispute. It is of course indisputable that parties carry the burden of adducing evidence in support of their claims or defences. Indeed, it is because the parties have such a burden that we can conceive of circumstances in which a party cannot reasonably be expected to meet that burden by adducing all relevant evidence required to make out its case, most notably when that information is in the exclusive possession of the opposing or a third party. In such circumstances, a panel may be unable to make an objective assessment of the matter without exercising its authority under Article 13 of the DSU to seek out that information, in particular if the party that needs this evidence can show that it has diligently exhausted all means to acquire it, to the extent such means exist.
We note, in this regard, that 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).
S.4.23 US — Large Civil Aircraft (2nd complaint), para. 1143 back to top
… Information regarding the extent to which different kinds of contracts were used under each of the USDOD programmes was within the exclusive possession of the United States. The European Communities had sought to obtain this information and, when it was unable to do so, had explicitly requested the Panel to do so. In such circumstances, the only way in which the Panel could have afforded the European Communities a fair opportunity to produce evidence necessary to make out its prima facie case was through the exercise of its authority under Article 13 of the DSU by requesting the United States to submit the information that would have enabled the Panel to assess the claim of serious prejudice before it using its chosen approach.
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.