[ 刘成伟 ]——(2003-7-7) / 已阅49077次

(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. If, 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.
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, “[the Panel] 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, “[the Panel] 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.

IV Adverse 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, “[t]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[s] 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.”
(ii) The Duty of a Member to Comply with the Request of a Panel to Provide Information
An important part of Brazil's appeal with respect to the issue of adverse inferences is Brazil's contention that Canada was under a duty to comply with the Panel's request to provide information relating to the EDC's financing of the ASA transaction. Canada denies that it was legally burdened with such a duty. In this respect, the Appellate Body rules in pertinent part as: 45
“We note that Article 13.1 of the DSU provides that ‘[a] Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate.’ Although the word ‘should’ is often used colloquially to imply an exhortation, or to state a preference, it is not always used in those ways. It can also be used ‘to express a duty [or] obligation’. The word ‘should’ has, for instance, previously been interpreted by us as expressing a ‘duty’ of panels in the context of Article 11 of the DSU. Similarly, we are of the view that the word ‘should’ in the third sentence of Article 13.1 is, in the context of the whole of Article 13, used in a normative, rather than a merely exhortative, sense. Members are, in other words, 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.
If Members that were requested by a panel to provide information had no legal duty to ‘respond’ by providing such information, that panel's undoubted legal ‘right to seek’ information under the first sentence of Article 13.1 would be rendered meaningless. A Member party to a dispute could, at will, thwart the panel's fact-finding powers and take control itself of the information-gathering process that Articles 12 and 13 of the DSU place in the hands of the panel. A Member could, in other words, prevent a panel from carrying out its task of finding the facts constituting the dispute before it and, inevitably, from going forward with the legal characterization of those facts. Article 12.7 of the DSU provides, in relevant part, that ‘… the report of a panel shall set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes’. If a panel is prevented from ascertaining the real or relevant facts of a dispute, it will not be in a position to determine the applicability of the pertinent treaty provisions to those facts, and, therefore, it will be unable to make any principled findings and recommendations to the DSB.
The chain of potential consequences does not stop there. To hold that a Member party to a dispute is not legally bound to comply with a panel's request for information relating to that dispute, is, in effect, to declare that Member legally free to preclude a panel from carrying out its mandate and responsibility under the DSU. So to rule would be to reduce to an illusion and a vanity the fundamental right of Members to have disputes arising between them resolved through the system and proceedings for which they bargained in concluding the DSU. We are bound to reject an interpretation that promises such consequences.
We believe also that the duty of a Member party to a dispute to comply with a request from the panel to provide information under Article 13.1 of the DSU is but one specific manifestation of the broader duties of Members under Article 3.10 of the DSU not to consider the ‘use of the dispute settlement procedures… as contentious acts’, and, when a dispute does arise, to ‘engage in these procedures in good faith in an effort to resolve the dispute’.
[…]
Canada's first justification rests on the assumption that a Member's duty to respond promptly and fully to a Panel's request for information arises only after the opposing party to the dispute has established a prima facie case that its complaint or defence is meritorious. 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. We are not, therefore, persuaded by the first justification Canada gave for its refusal to provide the information requested by the Panel.”
(iii) The Drawing of Adverse Inferences from the Refusal of a Party to Provide Information Requested by the Panel
As noted above, the Appellate Body have concluded that a panel has broad legal authority to request information from a Member that is a party to a dispute, and that a party so requested has a legal duty to provide such information. The question remains: if that Member refuses to provide that information, does the panel have the authority to draw adverse inferences from that refusal? In this respect, the Appellate Body rules that: 46
“We approach this question by noting once more that the mandate of a panel under the DSU requires it to determine the facts of the dispute with which it is seised, and to evaluate or characterize those facts in terms of their consistency or inconsistency with a particular provision of the SCM Agreement or another covered agreement. The DSU does not purport to state in what detailed circumstances inferences, adverse or otherwise, may be drawn by panels from infinitely varying combinations of facts. Yet, in all cases, in carrying out their mandate and seeking to achieve the ‘objective assessment of the facts’ required by Article 11 of the DSU, panels routinely draw inferences from the facts placed on the record. The inferences drawn may be inferences of fact: that is, from fact A and fact B, it is reasonable to infer the existence of fact C. Or the inferences derived may be inferences of law: for example, the ensemble of facts found to exist warrants the characterization of a ‘subsidy’ or a ‘subsidy contingent … in fact … upon export performance’. The facts must, of course, rationally support the inferences made, but inferences may be drawn whether or not the facts already on the record deserve the qualification of a prima facie case. 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. In contrast, the burden of proof is a procedural concept which speaks to the fair and orderly management and disposition of a dispute. The burden of proof is distinct from, and is not to be confused with, the drawing of inferences from facts.
[…]
However, ordinarily the panel should not request additional information to complete the record where the information would support a particular party's position and the absence of that information in the record is the result of unreasonable non-cooperation by that party in the information-gathering process.
[…]
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 [an] 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.
[…]

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