|
In addition, under Art. 13.2 of the DSU, panels have a general right to seek information “from any relevant source”. “In this context, we consider that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU contains no rule that might restrict the forms of evidence that panels may consider. Moreover, international tribunals are generally free to admit and evaluate evidence of every kind, and to ascribe to it the weight that they see fit. ”18
As one legal scholar has noted: “The inherent flexibility of the international procedure, and its tendency to be free from technical rules of evidence applied in municipal law, provide the ‘evidence’ with a wider scope in international proceedings . . . Generally speaking, international tribunals have not committed themselves to the restrictive rules of evidence in municipal law. They have found it justified to receive every kind and form of evidence, and have attached to them the probative value they deserve under the circumstances of a given case.”19
In sum, “
t has clearly been held in the WTO that information obtained in consultations may be presented in subsequent panel proceedings”.20 “This is unlike the situation before many international tribunals, which often refuse to admit evidence obtained during settlement negotiations between the parties to a dispute. The circumstances of such settlement negotiations are clearly different from WTO dispute settlement consultations, which are, as the Appellate Body has noted, part of the means by which facts are clarified before a panel proceeding.”21In all events, as ruled by the Panel in US-Line Pipe (DS202), “
ur decision not to exclude the information does not prejudge in any way the issue of whether the Panel will use the information, nor whether the information is relevant to the matter at hand.” 22 There is a significant and substantive difference between questions concerning the admissibility of evidence, and the weight to be accorded evidence in making decisions.
(ii) Arguments before Domestic Investigative Authorities
With respect to panels’ examination of factual determinations by domestic investigative authorities in fields concerning countervailing measures, anti-dumping duties and safeguards etc., the Appellate Body has ruled that, “
o far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of the facts’. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, ‘total deference to the findings of the national authorities’, it has been well said, ‘could not ensure an“objective assessment”as foreseen by Article 11 of the DSU’”.23 And the “nor ‘total deference’” standard suggests that panels will not simply accept the conclusions of the competent authorities. Then the following paragraphs will get down to the issue of the admissibility of arguments or evidence raised before domestic investigative authorities. In this respect, the Appellate Body rules in US-Lamb Meat (DS177/DS178) that: 24
“In our report in Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-Beams from Poland, in the course of our examination of the specificity of Poland''s request for the establishment of a panel under Article 6.2 of the DSU, we said: ‘The Panel''s reasoning seems to assume that there is always continuity between claims raised in an underlying anti-dumping investigation and claims raised by a complaining party in a related dispute brought before the WTO. This is not necessarily the case. The parties involved in an underlying anti-dumping investigation are generally exporters, importers and other commercial entities, while those involved in WTO dispute settlement are the Members of the WTO. Therefore, it cannot be assumed that the range of issues raised in an anti-dumping investigation will be the same as the claims that a Member chooses to bring before the WTO in a dispute.’
Although the claim under examination in that appeal was different, the same reasoning applies in respect of the relationship between domestic investigations culminating in the imposition of a safeguard measure, and dispute settlement proceedings under the DSU regarding that safeguard measure. In arguing claims in dispute settlement, a WTO Member is not confined merely to rehearsing arguments that were made to the competent authorities by the interested parties during the domestic investigation, even if the WTO Member was itself an interested party in that investigation. Likewise, panels are not obliged to determine, and confirm themselves the nature and character of the arguments made by the interested parties to the competent authorities. Arguments before national competent authorities may be influenced by, and focused on, the requirements of the national laws, regulations and procedures. On the other hand, dispute settlement proceedings brought under the DSU concerning safeguard measures imposed under the Agreement on Safeguards may involve arguments that were not submitted to the competent authorities by the interested parties.
Furthermore, we recall that, in United States - Wheat Gluten Safeguard, we reversed a finding by the panel that competent authorities are obliged to evaluate only those other relevant factors, under Article 4.2(a), which were actually raised by the interested parties during the investigation before it.We said there that competent authorities have an independent duty of investigation and that they cannot "remain passive in the face of possible short-comings in the evidence submitted, and views expressed, by the interested parties."In short, competent authorities are obliged, in some circumstances, to go beyond the arguments that were advanced by the interested parties during the investigation. As competent authorities themselves are obliged, in some circumstances, to go beyond the arguments of the interested parties in reaching their own determinations, so too, we believe, panels are not limited to the arguments submitted by the interested parties to the competent authorities in reviewing those determinations in WTO dispute settlement.
We wish to emphasize that the discretion that WTO Members enjoy to argue dispute settlement claims in the manner they deem appropriate does not, of course, detract from their obligation, under Article 3.10 of the DSU, ‘to engage in dispute settlement procedures ''in good faith in an effort to resolve the dispute’.It follows that WTO Members cannot improperly withhold arguments from competent authorities with a view to raising those arguments later before a panel. In any event, as a practical matter, we think it unlikely that a Member would do so.”
(iii) Arguments Submitted after the First Substantive Meeting
The Appellate Body have observed that: “It is also true, however, that the Working Procedures in Appendix 3 do contemplate two distinguishable stages in a proceeding before a panel. Paragraphs 4 and 5 of the Working Procedures address the first stage …The second stage of a panel proceeding is dealt with in paragraph 7…Under the Working Procedures in Appendix 3, the complaining party should set out its case in chief, including a full presentation of the facts on the basis of submission of supporting evidence, during the first stage. The second stage is generally designed to permit ‘rebuttals’ by each party of the arguments and evidence submitted by the other parties.”25
In addition, the Appellate Body rules that, “
often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU”26. And the panel request is normally submitted before the first substantive meeting. Subsequently, the defendant party has occasionally contested that panels should reject submissions of new evidence or arguments made after the first substantive meeting. In this respect, the author thinks it necessary to clarify several points as follows:
|
