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In fact, the DSU gives panels different means or instruments for complying with Art. 11; among these is the right to “seek information and technical advice” as expressly spelled out in Art. 13 of the DSU. Art. 13.1 of the DSU states that a panel has “the right to seek information and technical advice from any individual or body which it deems appropriate”. Art. 13.2 further provides that panels may “seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter”.35
(i) A Grant of Discretionary Authority
Pursuant to Art. 13 of the DSU, panels have a significant investigative authority; a panel is entitled to seek information and advice from any relevant source it chooses. As to be demonstrated in the following paragraphs, the right to seek information vested in panels by Art. 13 of the DSU is “a grant of discretionary authority”.
For example, the Appellate Body rules in Japan-Agriculture Products (DS76) that: “…Article 13.1 of the DSU gives a panel ‘... the right to seek information and technical advice from any individual or body which it deems appropriate’. Pursuant to Article 13.2 of the DSU, a panel may seek information from any relevant source and may consult experts to obtain their opinions on certain aspects of the matter at issue. This is a grant of discretionary authority: a panel is not duty-bound to seek information in each and every case or to consult particular experts under this provision. We recall our statement in EC Measures Concerning Meat and Meat Products (Hormones) that Article 13 of the DSU enables a panel to seek information and technical advice as it deems appropriate in a particular case, and that the DSU leaves ‘to the sound discretion of a panel the determination of whether the establishment of an expert review group is necessary or appropriate’. Just as a panel has the discretion to determine how to seek expert advice, so also does a panel have the discretion to determine whether to seek information or expert advice at all.”36
In addition, the exercise of the “discretionary authority” enjoyed by panels to seek information is not conditional as a preliminary matter on the establishment of a prima facie case. In Canada-Civilian Aircraft (DS70), the Panel rules that, “a panel''s right to seek information is governed by Article 13.1 of the DSU. There is nothing in Article 13.1 to suggest that a panel''s right to seek information is restricted to matters in respect of which the complaining party has been deemed (as a preliminary matter) to have established a prima facie case. The only express restriction on a panel''s right to seek information is the Article 13.1 obligation for a panel to ‘inform the authorities’ of a Member before seeking information or advice from any individual or body within the jurisdiction of that Member. In our opinion, any requirement that panels should provide preliminary rulings on whether the complaining party has established a prima facie case before seeking information or advice under Article 13.1 could render that provision ineffective. This is because in certain circumstances a panel may consider it appropriate to seek information or advice precisely in order to determine whether the complaining party has established a prima facie case….”. 37 And the Appellate Body confirms this ruling.
The Appellate Body in Canada-Civilian Aircraft (DS70) rules that: “A prima facie case, it is well to remember, is a case which, in the absence of effective refutation by the defending party (that is, in the present appeal, the Member requested to provide the information), requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie case. There is, as noted earlier, nothing in either the DSU or the SCM Agreement to support Canada''s assumption. To the contrary, a panel is vested with ample and extensive discretionary authority to determine when it needs information to resolve a dispute and what information it needs. A panel may need such information before or after a complaining or a responding Member has established its complaint or defence on a prima facie basis. A panel may, in fact, need the information sought in order to evaluate evidence already before it in the course of determining whether the claiming or the responding Member, as the case may be, has established a prima facie case or defence. Furthermore, a refusal to provide information requested on the basis that a prima facie case has not been made implies that the Member concerned believes that it is able to judge for itself whether the other party has made a prima facie case. However, no Member is free to determine for itself whether a prima facie case or defence has been established by the other party. That competence is necessarily vested in the panel under the DSU, and not in the Members that are parties to the dispute.”38
(i) The Admissibility of Non-requested Information
In US-Shrimp (DS58), the Appellate Body once again stresses the broad discretion vested in panels by the DSU. It states in pertinent: 39
“The comprehensive nature of the authority of a panel to ‘seek’ information and technical advice from ‘any individual or body’ it may consider appropriate, or from ‘any relevant source’, should be underscored. This authority embraces more than merely the choice and evaluation of the source of the information or advice which it may seek. A panel''s authority includes the authority to decide not to seek such information or advice at all. We consider that a panel also has the authority to accept or reject any information or advice which it may have sought and received, or to make some other appropriate disposition thereof. It is particularly within the province and the authority of a panel to determine the need for information and advice in a specific case, to ascertain the acceptability and relevancy of information or advice received, and to decide what weight to ascribe to that information or advice or to conclude that no weight at all should be given to what has been received.
It is also pertinent to note that Article 12.1 of the DSU authorizes panels to depart from, or to add to, the Working Procedures set forth in Appendix 3 of the DSU, and in effect to develop their own Working Procedures, after consultation with the parties to the dispute. Article 12.2 goes on to direct that ‘panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports while not unduly delaying the panel process’.
The thrust of Articles 12 and 13, taken together, is that the DSU accords to a panel established by the DSB, and engaged in a dispute settlement proceeding, ample and extensive authority to undertake and to control the process by which it informs itself both of the relevant facts of the dispute and of the legal norms and principles applicable to such facts. That authority, and the breadth thereof, is indispensably necessary to enable a panel to discharge its duty imposed by Article 11 of the DSU to ‘make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements … .’
Against this context of broad authority vested in panels by the DSU, and given the object and purpose of the Panel''s mandate as revealed in Article 11, we do not believe that the word ‘seek’ must necessarily be read, as apparently the Panel read it, in too literal a manner. That the Panel''s reading of the word ‘seek’ is unnecessarily formal and technical in nature becomes clear should an ‘individual or body’ first ask a panel for permission to file a statement or a brief. In such an event, a panel may decline to grant the leave requested. I, f, in the exercise of its sound discretion in a particular case, a panel concludes inter alia that it could do so without ‘unduly delaying the panel process’, it could grant permission to file a statement or a brief, subject to such conditions as it deems appropriate. The exercise of the panel''s discretion could, of course, and perhaps should, include consultation with the parties to the dispute. In this kind of situation, for all practical and pertinent purposes, the distinction between ‘requested’ and ‘non-requested’ information vanishes.
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