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(a) There is a significant difference between the claims and the arguments supporting those claims.
As ruled by the Appellate Body in EC-Bananas (DS27), Art. 6.2 of the DSU requires that “the claims, but not the arguments”, must all be specified sufficiently in the request for the establishment of a panel. With this regard, the Appellate Body rule that, “…
n our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel''s terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties”.27
And as clarified by the Panel in Thailand-Iron and H-Beams (DS122), “…Article 6.2 DSU does not relate directly to the sufficiency of the subsequent written and oral submissions of the parties in the course of the proceedings, which may develop the arguments in support of the claims set out in the panel request.…”.28 Also, the Arbitrators in the EC-Hormones (DS26) case observe that, “…
anels are inhibited from addressing legal claims falling outside their terms of reference. However, nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties -- or to develop its own legal reasoning -- to support its own findings and conclusions on the matter under its consideration”.29
(b)There is no provision establishing precise deadlines for the presentation of evidence.
In this respect, for example, the Appellate Body in Australia-Salmon (DS18) rules that: “More generally, …we note that the Working Procedures in Appendix 3 of the DSU do not establish precise deadlines for the submission of evidence. Under the provisions of Article 12.1 of the DSU, panels are permitted to establish their own working procedures, in addition to those set out in Appendix 3. …We note that Article 12.2 of the DSU provides that ‘
anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.’ However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted. Whether the Panel afforded Australia adequate opportunity to respond is the question addressed in the next section.”30
Also, the Appellate Body in Argentina-Footwear (DS56) rules that, “Article 11 of the DSU does not establish time limits for the submission of evidence to a panel. Article 12.1 of the DSU directs a panel to follow the Working Procedures set out in Appendix 3 of the DSU, but at the same time authorizes a panel to do otherwise after consulting the parties to the dispute. The Working Procedures in Appendix 3 also do not establish precise deadlines for the presentation of evidence by a party to the dispute.It is true that the Working Procedures ‘do not prohibit’ submission of additional evidence after the first substantive meeting of a panel with the parties…”.31
The Panel in Canada-Civilian Aircraft (DS70) refers to this ruling and states in detail as:32
“We recall that the Appellate Body found in Argentine Footwear that neither Article 11 of the DSU, nor the Working Procedures in Appendix 3 of the DSU, establish precise deadlines for the presentation of evidence by parties to a dispute. …
In our opinion, an absolute rule excluding the submission of evidence by a complaining party after the first substantive meeting would be inappropriate, since there may be circumstances in which a complaining party is required to adduce new evidence in order to address rebuttal arguments made by the respondent. Furthermore, there may be instances, as in the present case, where a party is required to submit new evidence at the request of the panel. For these reasons, we rejected Canada''s request for a preliminary ruling that the Panel should not accept new evidence submitted by Brazil after the first substantive meeting.
We also consider that we are not bound to exclude the submission of new allegations after the first substantive meeting. We can see nothing in the DSU, or in the Appendix 3 Working Procedures, that would require the submission of new allegations to be treated any differently than the submission of new evidence. Indeed, one could envisage situations in which the respondent might present information to a panel during the first substantive meeting that could reasonably be used as a basis for a new allegation by the complaining party. Provided the new allegation falls within the panel''s terms of reference, and provided the respondent party''s due process rights of defence are respected, we can see no reason why any such new allegation should necessarily be rejected by the panel as a matter of course, simply because it is submitted after the first substantive meeting with the parties. We consider that this approach is consistent with the Appellate Body''s ruling in European Communities - Bananas that ‘there is no requirement in the DSU or in GATT practice for arguments on all claims relating to the matter referred to the DSB to be set out in a complaining party''s first written submission to the panel. It is the panel''s terms of reference, governed by Article 7 of the DSU, which set out the claims of the complaining parties relating to the matter referred to the DSB’.
As noted above, there is nothing in the DSU, or in the Appendix 3 Working Procedures, to prevent a party submitting new evidence or allegations after the first substantive meeting. We can see no basis in the DSU to treat the submission of affirmative defences after the first substantive meeting any differently. Thus, although it is desirable that affirmative defences, as with any claim, should be submitted as early as possible, there is no requirement that affirmative defences should be submitted before the end of the first substantive meeting with the parties. Provided that due process is respected, we see nothing to prohibit the submission of affirmative defences after the first substantive meeting with the parties.”
In sum, as provided for in Art. 12.2 of the DSU, “
anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.” The Working Procedures in Appendix 3 of the DSU do not establish precise deadlines for the submission of evidence; there is nothing in the DSU, or in the Appendix 3 Working Procedures, to prevent a party providing new submissions after the first substantive meeting. And as noted above, “the Working Procedures in their present form do not constrain panels with hard and fast rules on deadlines for submitting evidence.”33
However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted. Just as noted by a panel in this respect, “
ntil the WTO Members agree on different and more specific rules on this regard, our main concern is to ensure that ‘due process’ is respected and that all parties to a dispute are given all the opportunities to defend their position to the fullest extent possible.” 34
IIIPanel’s Right to Seek Information
A panel is obligated by Art. 11 of the DSU to conduct “an objective assessment of the matter before it”, any evidentiary rulings made by panels must be consistent with this obligation. Therefore, to fulfil their functions as provided in Art. 11 of the DSU to “make an objective”, panels are not limited to the arguments submitted by the participants in WTO dispute settlement. Panels cannot remain passive in the face of possible shortcomings in the evidence submitted, and views expressed, by the interested parties. And they are obliged, in some circumstances, to go beyond the arguments that were advanced by the parties during the process in reaching their own conclusions.
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