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The practical conclusion seems to be that the panels before which this issue was raised did consider GATT dispute settlement proceedings as quite independent from national proceedings, in the sense that they did not consider themselves bound to remain within the limits of the case as brought before, and dealt by, national administrative authorities. While this is probably to be welcomed, some of the arguments put forward in support of the contrary view are not without merit and are likely to come up in another guise. 11 As to be shown below, even panels called by the DSB have issued contradictory reports in this respect.
(ii) Concerning Rulings in Reports Issued by WTO Panels
With regard to Art. 17.5(ii) of the AD Agreement, the Panel in EC-Bed Linen (DS141) rules that, it “does not require, however, that a panel consider those facts exclusively in the format in which they were originally available to the investigating authority. Indeed, the very purpose of the submissions of the parties to the Panel is to marshal the relevant facts in an organized and comprehensible fashion in support of their arguments and to elucidate the parties'' positions”. 12
However, contradicting the ruling above, the Panel in US-Hot-rolled Steel (DS184) takes the implications of Art. 17.5(ii) of the AD Agreement as the basis of evidentiary rulings and refuse to accept new evidence that is not before the domestic investigating authorities at the time of determination, they rule: 13
“A panel is obligated by Article 11 of the DSU to conduct ‘an objective assessment of the matter before it’. In this case, we must also consider the implications of Article 17.5(ii) of the AD Agreement as the basis of evidentiary rulings…It seems clear to us that, under this provision, a panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation. … Japan acknowledges that Article 17.5(ii) must guide the Panel in this respect, but argues that it ‘complements’ the provisions of the DSU which establish that it is the responsibility of the panel to determine the admissibility and relevance of evidence offered by parties to a dispute. We agree, to the extent that it is our responsibility to decide what evidence may be considered. However, that Article 17.5(ii) and the DSU provisions are complementary does not diminish the importance of Article 17.5(ii) in guiding our decisions in this regard. It is a specific provision directing a panel''s decision as to what evidence it will consider in examining a claim under the AD Agreement. Moreover, it effectuates the general principle that panels reviewing the determinations of investigating authorities in anti-dumping cases are not to engage in de novo review.
The conclusion that we will not consider new evidence with respect to claims under the AD Agreement flows not only from Article 17.5(ii), but also from the fact that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities. We note that several panels have applied similar principles in reviewing determinations of national authorities in the context of safeguards under the Agreement on Safeguards and special safeguards under Article 6 of the Agreement on Textiles and Clothing. There is no corollary to Article 17.5(ii) in those agreements. Nonetheless, these panels have concluded that a de novo review of the determinations would be inappropriate, and have undertaken an assessment of, inter alia, whether all relevant facts were considered by the authorities. In that context, the Panel in United States - Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities ("United States - Wheat Gluten") recently observed that it was not the panel''s role to collect new data or to consider evidence which could have been presented to the decision maker but was not.”
Clearly, the Panel determines not to consider new evidence with respect to claims under the AD Agreement. Nonetheless, it is important to note that, the same Panel makes another ruling not to exclude the presentation of evidence which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation. In this respect, the Panel rules: 14
“It is important to note that, in this case, Japan''s claims are not limited to challenges under the AD Agreement to the final anti-dumping measure imposed by the United States. … Japan does, however, argue that the challenged evidence is relevant to the claims under Article X of GATT 1994. In our view, the evidence to be considered in connection with Japan''s Article X claim is not limited by the provisions of Article 17.5(ii) of the AD Agreement To the extent there are any limits to the evidence that may be considered in connection with Japan''s claim under Article X of GATT 1994, these would derive from the provisions of the DSU itself, and not the AD Agreement.
Under Article 13.2 of the DSU, Panels have a general right to seek information ‘from any relevant source’. We note that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU (as opposed to the AD Agreement) contains no rule that might be understood to restrict the 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. 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.’
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