|
There is no logical reason why the Members of the WTO would, in conceiving and concluding the SCM Agreement, have granted panels the authority to draw inferences in cases involving actionable subsidies that may be illegal if they have certain trade effects, but not in cases that involve prohibited export subsidies for which the adverse effects are presumed. To the contrary, the appropriate inference is that the authority to draw adverse inferences from a Member''s refusal to provide information belongs a fortiori also to panels examining claims of prohibited export subsidies. Indeed, that authority seems to us an ordinary aspect of the task of all panels to determine the relevant facts of any dispute involving any covered agreement: a view supported by the general practice and usage of international tribunals.
Clearly, in our view, the Panel had the legal authority and the discretion to draw inferences from the facts before it - including the fact that Canada had refused to provide information sought by the Panel. …”
Also, this is confirmed by the Appellate Body in US-Wheat Gluten (DS166) by ruling that:47
“We begin by noting our strong agreement with the Panel that a ‘serious systemic issue’ is raised by the question of the procedures which should govern the protection of information requested by a panel under Article 13.1 of the DSU and which is alleged by a Member to be ‘confidential’. We believe that these issues need to be addressed.
Next, we recall that we stated, in our original report in Canada - Aircraft, that Members of the WTO ‘are … under a duty and an obligation to “respond promptly and fully” to requests made by panels for information under Article 13.1 of the DSU’.In this case, despite the fact that the Panel proposed to exercise its authority, under Article 12.1 of the DSU, to determine its own procedures by adopting two different procedures for the protection of business confidential information, the United States declined to make available to the Panel, and representatives of the European Communities, certain information requested by the Panel under Article 13.1 of the DSU. As the Appellate Body said in Canada - Aircraft, the refusal by a Member to provide information requested of it undermines seriously the ability of a panel to make an objective assessment of the facts and the matter, as required by Article 11 of the DSU. Such a refusal also undermines the ability of other Members of the WTO to seek the ‘prompt’ and ‘satisfactory’ resolution of disputes under the procedures ‘for which they bargained in concluding the DSU’. In this specific case, the Panel acknowledged that having access to all of the information requested from the United States ‘would have facilitated
objective assessment of the facts’. We, therefore, deplore the conduct of the United States.
However, we note that the role of the Appellate Body, on this issue, is limited to determining whether the Panel has erred under Article 11 of the DSU. In that respect, we recall that, in Canada - Aircraft, the Appellate Body observed that:
…The drawing of inferences is, in other words, an inherent and unavoidable aspect of a panel''s basic task of finding and characterizing the facts making up a dispute.
]
Clearly, in our view, the Panel had the legal authority and the discretion to draw inferences from the facts before it - including the fact that Canada had refused to provide information sought by the Panel.
We, therefore, characterized the drawing of inferences as a ‘discretionary’ task falling within a panel''s duties under Article 11 of the DSU. In Canada - Aircraft, which involved a similar factual situation, the panel did not draw any inferences ‘adverse’ to Canada''s position. On appeal, we held that there was no basis to find that the panel had improperly exercised its discretion since ‘the full ensemble of the facts on the record’ supported the panel''s conclusion.
In its appeal, the European Communities places considerable emphasis on the failure of the Panel to draw ‘adverse’ inferences from the refusal of the United States to provide information requested by the Panel. As we emphasized in Canada - Aircraft, under Article 11 of the DSU, a panel must draw inferences on the basis of all of the facts of record relevant to the particular determination to be made. Where a party refuses to provide information requested by a panel under Article 13.1 of the DSU, that refusal will be one of the relevant facts of record, and indeed an important fact, to be taken into account in determining the appropriate inference to be drawn. However, if a panel were to ignore or disregard other relevant facts, it would fail to make an ‘objective assessment’ under Article 11 of the DSU. In this case, as the Panel observed, there were other facts of record that the Panel was required to include in its ‘objective assessment’. Accordingly, we reject the European Communities'' arguments to the extent that they suggest that the Panel erred in not drawing "adverse" inferences simply from the refusal of the United States to provide certain information requested from it by the Panel under Article 13.1 of the DSU.
In reviewing the inferences the Panel drew from the facts of record, our task on appeal is not to redo afresh the Panel''s assessment of those facts, and decide for ourselves what inferences we would draw from them. Rather, we must determine whether the Panel improperly exercised its discretion, under Article 11, by failing to draw certain inferences from the facts before it. In asking us to conduct such a review, an appellant must indicate clearly the manner in which a panel has improperly exercised its discretion. Taking into account the full ensemble of the facts, the appellant should, at least: identify the facts on the record from which the Panel should have drawn inferences; indicate the factual or legal inferences that the panel should have drawn from those facts; and, finally, explain why the failure of the panel to exercise its discretion by drawing these inferences amounts to an error of law under Article 11 of the DSU.”
VConcluding Remarks
Rules of evidence are a crucial issue with respect to reaching conclusion of law and fact. With regard to this issue under the WTO jurisprudence, “pursuant to Articles 12 and 13 of the DSU and in order to conduct an objective assessment of the facts of the matter pursuant to Article 11 DSU…, we as a panel have broad legal authority to control the process by which we inform ourselves of the relevant facts of the dispute and the legal principles applicable to such facts. We as a panel have the mandate and the duty to manage the Panel proceedings and the ability to pose questions to the parties in order to clarify and distil the legal arguments that are asserted by the parties in support of their claims. … In particular, we are aware that, in our questions posed to the parties, we must not ‘overstep the bounds of legitimate management or guidance of the proceedings … in the interest of efficiency and dispatch’. However, the fact that it is for the party asserting the affirmative of a particular claim or defence to discharge the burden of proof does not mean that a panel is frozen into inactivity. We believe that just as the extensive discretionary authority of a panel to request information from any source (including a Member that is a party to the dispute) is not conditional upon a party having established, on a prima facie basis, a claim or defence, so also a panel''s extensive authority to put questions to the parties in order to inform itself of the relevant facts of the dispute and the legal considerations applicable to such facts is not conditional in any way upon a party having established, on a prima facie basis, a claim or defence. We view this authority as essential in order to carry out our mandate and responsibility under the DSU”. 48
|
