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In the present context, authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not. The fact that a panel may motu proprio have initiated the request for information does not, by itself, bind the panel to accept and consider the information which is actually submitted. The amplitude of the authority vested in panels to shape the processes of fact-finding and legal interpretation makes clear that a panel will not be deluged, as it were, with non-requested material, unless that panel allows itself to be so deluged.”
(iii) Summary and Conclusions
As noted above, pursuant to Art. 13 of the DSU, the initiative to seek information and to select the source of information rests with panels. Art. 13 of the DSU enables a panel to seek information and technical advice as it deems appropriate in a particular case. 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. Furthermore, 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.
Also, authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. Against the context of broad authority vested in panels by the DSU, and given the object and purpose of the Panel''s mandate as revealed in Art. 11 of the DSU, the word “seek” in Art. 13 should not necessarily be read in too literal a manner. In the situation for a panel to conclude inter alia that it could do so without “unduly delaying the panel process”, it could grant permission to file a statement or a brief, in the exercise of its sound discretion in a particular case, subject to such conditions as it deems appropriate, for all practical and pertinent purposes. The only express restriction on a panel''s right to seek information is the Art. 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.
Nevertheless, “
did not consider it appropriate to seek any information before receiving at least the first written submissions of both parties. We considered that it was only on the basis of these first written submissions that we could properly determine what, if any, additional information might need to be sought”.40 Furthermore, “
did not consider it appropriate to exercise our discretionary authority under Article 13.1 to make generalized requests for information. Instead, we only sought detailed information of relevant loans, funds, contributions, assistance etc. identified in the record. Whereas more generalized requests for information may be appropriate for bodies such as commissions of enquiry, we do not consider them appropriate for a panel acting under Article 13.1 of the DSU”. 41 “In normal circumstances, the Panel would not have sought additional information …under Article 13.1 of the DSU”. 42
To sum up, Art. 13 of the DSU makes “a grant of discretionary authority” to panels enabling them to seek information from any relevant source as they deem appropriate in a particular case. It is within the bounds of panels’discretionary authority under Arts. 11 and 13 of the DSU in deciding when, how and whether to seek information from certain source, so long as panels think it appropriate. However, the fact that a panel may motu proprio have initiated the request for information does not, by itself, bind the panel to accept and consider the information which is actually submitted.
In a word, a panel has the authority to accept or reject any information or advice which it may have sought and received, whether requested by a panel or not, or to make some other appropriate disposition thereof. It is in the panels'' and the parties'' interest that panels are informed as much as possible before making a ruling in the highly complex matter. It is also beneficial for the WTO dispute settlement system more generally that parties are forthcoming in submitting evidence requested by panels.
IVAdverse Inferences from Party’s Refusal to Provide Information Requested
Panels may be required sometimes to draw adverse inferences from a party''s refusal to provide information to the panel about the contested measure. This is especially true when direct evidence is not available because it is withheld by a party with sole possession of that evidence. However, as to be shown in the following paragraphs, just as a panel has the discretionary authority to request certain information or to accept or reject evidence or arguments submitted by parties, it is also within the province and the authority of a panel to determine the need for such inferences to be made in a particular dispute.
In Canada-Civilian Aircraft (DS70), Brazil appeals and claims that the Panel committed an error of law by failing to draw adverse inferences from Canada''s refusal to submit information requested about the EDC''s financing of the ASA transaction. In this respect, the Appellate Body firstly notes that, “
he parties'' arguments and counter-arguments on this issue raise a number of questions with fundamental and far-reaching implications for the entire WTO dispute settlement system. These questions relate to: first, the authority of a panel to request a party to a dispute to submit information about that dispute; second, the duty of a party to submit information requested by a panel; and, third, the authority of a panel to draw adverse inferences from the refusal by a party to provide requested information”. 43 Then the Appellate Body deals with these questions in that sequence.
(i) The Authority of a Panel to Request Information from a Party to the Dispute
With regard to this issue, certain paragraphs above have touched on it in detail, and here the author means to stress some points in pertinent by referring to the ruling made by the Appellate Body in Canada-Civilian Aircraft (DS70): 44
“In Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, we ruled that Article 13 of the DSU made ‘a grant of discretionary authority’ to panels enabling them to seek information from any relevant source. In European Communities - Hormones, we observed that Article 13 of the DSU ‘enable
panels to seek information and advice as they deem appropriate in a particular case’. And, in United States - Shrimp, we underscored ‘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’. There, we stated that:
It is clear from the language of Article 13 that the discretionary authority of a panel may be exercised to request and obtain information, not just ‘from any individual or body’ within the jurisdiction of a Member of the WTO, but also from any Member, including a fortiori a Member who is a party to a dispute before a panel. This is made crystal clear by the third sentence of Article 13.1, which states: ‘A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate.’It is equally important to stress that this discretionary authority to seek and obtain information is not made conditional by this, or any other provision, of the DSU upon the other party to the dispute having previously established, on a prima facie basis, such other party''s claim or defence. Indeed, Article 13.1 imposes no conditions on the exercise of this discretionary authority. Canada argues that the Panel in this case had no authority to request the submission of information relating to the EDC''s financing of the ASA transaction because Brazil had not previously established a prima facie case that the financial contribution offered by such financing conferred a ‘benefit’ on ASA and therefore satisfied that other prerequisite of a prohibited export subsidy. This argument is, quite simply, bereft of any textual or logical basis. There is nothing in either the DSU or the SCM Agreement to sustain it. Nor can any support for this argument be derived from a consideration of the nature of the functions and responsibilities entrusted to panels in the WTO dispute settlement system - a consideration which we essay below.”
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