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Furthermore, so far as the confidentiality of consultations is concerned, the admissibility of information obtained from consultations doesn’t alter as a result of third party participation in the panel proceedings. As ruled by the Panel in Mexico-HFCS (DS132): “it would seriously hamper the dispute settlement process if a party could not use information obtained in the consultations in subsequent panel proceedings merely because a third party which did not participate in the consultations chooses to participate in the panel proceedings. As … third party participation in the panel proceedings cannot be vetoed by the parties to the proceeding. In our view, it would be anomalous if the decision of a Member to participate in a panel proceeding as a third party when it did not, or could not, participate as a third party in the underlying consultations had the effect of limiting the evidence that could be relied upon in the panel proceeding by precluding the introduction of information obtained during the consultations. Third parties are subject to the same requirement to maintain the confidentiality of panel proceedings as are parties. We therefore conclude that the requirement to maintain the confidentiality of consultations is not violated by the inclusion of information obtained during consultations in the written submission of a party provided to a third party in the subsequent panel proceeding even if that third party did not participate in the consultations.” 16
(b) Substantial Concern: Necessity or Relevance of Evidence
In EC-Bed Linen (DS141), the Panel note that it seems that the evidence concerning the consultations is at best unnecessary, and may be irrelevant. However, the Panel rule that, that said, “merely because the evidence is unnecessary or irrelevant does not require us to exclude it”. And they come to this ruling by analyzing that: 17
“A panel is obligated by Article 11 of the DSU to conduct ‘an objective assessment of the matter before it’. The Panel in Australia-Automotive Leather observed that:
‘Any evidentiary rulings we make must, therefore, be consistent with this obligation. In our view, a decision to limit the facts and arguments that the United States may present during the course of this proceeding to those set forth in the request for consultations would make it difficult, if not impossible, for us to fulfill our obligation to conduct an
【注释】 ==================================
1 See, WT/DS160/R/6.15.
2 See, WT/DS33/AB/R/Ⅳ.
3 See, WT/DS155/R/11.11.
4 See, WT/DS192/R/7.22.
5 See, WT/DS189/R/6.6.
6 See, WT/DS160/R/6.12-6.14.
7 See, WT/DS44/R/10.29.
8 See, WT/DS33/AB/R/Ⅳ.
9 See, WT/DS33/AB/R/Ⅳ.
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