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(ⅰ) Evidence Obtained from Prior Consultations
According to the WTO jurisprudence, the DSB is not involved in consultations process although they are a crucial and integral part of the DSU. Nothing in the text of the DSU or other covered agreements provides that the scope of a panel’s work is governed by the scope of prior consultations.13 However, as to be noted below, panels won’t preclude those evidences merely because they are obtained during the course of consultations. Indeed, information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel, thus, to some extent will assist panel’s examination of measures at issue to make objective assessment with the access of such information offered to the panel.
（a）Procedural Concern: Confidentiality of Consultations
In Australia-Automotive Leather (DS126), Australia appears to be asking the Panel to rule that, the United States is limited to relying on the facts and arguments explicitly set out in its request for consultations in presenting its case to the Panel. As to this objection, the Panel rule as follows: 14
“As Australia rightly notes, Article 4.6 of the DSU provides that ‘[c]onsultations shall be confidential, and without prejudice to the rights of any Member in any further proceedings’. However, in our view, this does not mean that facts and information developed in the course of consultations held pursuant to one request cannot be used in a panel proceeding concerning, as it does in this case, the same dispute, between the same parties, conducted pursuant to another, different request.
We recall that Article 11 of the DSU obliges a panel to conduct ‘an objective assessment of the matter before it’. As discussed earlier, any evidentiary rulings we make must be consistent with this obligation. The panel in Korea - Taxes on Alcoholic Beverages recently confirmed the right of a party to a WTO dispute to use information learned in consultations in panel proceedings. After noting the requirement of confidentiality in Article 4.6 of the DSU, which the panel viewed as ‘essential if the parties are to be free to engage in meaningful consultations’, the panel continued: ‘However, it is our view that this confidentiality extends only as far as requiring the parties to the consultations not to disclose any information obtained in the consultations to any parties that were not involved in those consultations. We are mindful of the fact that the panel proceedings between the parties remain confidential, and parties do not thereby breach any confidentiality by disclosing in those proceedings information acquired during the consultations. Indeed, in our view, the very essence of consultations is to enable the parties [to] gather correct and relevant information, for purposes of assisting them in arriving at a mutually agreed solution, or failing which, to assist them in presenting accurate information to the panel. It would seriously hamper the dispute settlement process if the information acquired during consultations could not be subsequently used by any party in the ensuing proceedings’15.”
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