|
IIAdmissibility of Certain Evidences
Generally, as a matter of process before the panel, the complainant will submit its arguments and evidence and the respondent will respond to rebut the complainant’s claims. However, as noted above, the allocation of burden of proof is only applicable to determine precisely how much and precisely what kind of evidence will be required to establish a presumption that what is claimed is true. Next, once the party asserting a fact or the affirmative of a particular claim or defence has succeeded in raising a presumption that its claim is true, it is incumbent on panels, before whom such a presumption is successfully raised, to assess the merits of all the arguments made and the admissibility, relevance and weight of all the factual evidence submitted with a view to establishing whether the party contesting the presumption raised has successfully rebutted it. And at the end of this process, it is for the panel to weigh and assess the evidence submitted and arguments asserted by both parties in order to reach conclusions as to whether the claims raised by the complainant are ultimately well-founded or successfully rebutted.
However, the following paragraphs will not deal with everything involved in the process of panels’ assessment of arguments or evidence, which arises logically after the allocation of burden of proof, but focus on the admissibility issue, i.e., a matter of to what extent and how the evidence available to panels should be based on to determine whether, on balance, alleged impairment or nullification exists. In this respect, as to be demonstrated in the following paragraphs, panels enjoy their broad discretion in admitting various evidences.
(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 rules as follows: 14
“As Australia rightly notes, Article 4.6 of the DSU provides that ‘
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
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.”
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 notes that it seems that the evidence concerning the consultations is at best unnecessary, and may be irrelevant. However, the Panel rules 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 stating: 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 "objective assessment" of the matter before us.’
Similarly in this case, we consider that it is not necessary to limit the facts and arguments India may present, even if we might consider those facts or arguments to be irrelevant or not probative on the issues before us. In our view, there is a significant and substantive difference between questions concerning the admissibility of evidence, and the weight to be accorded evidence in making our decisions. That is, we may choose to allow parties to present evidence, but subsequently not consider that evidence, because it is not relevant or necessary to our determinations or is not probative on the issues before it. In our view, there is little to be gained by expending our time and effort in ruling on points of ‘admissibility’ of evidence vel non. ”
|
