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And in Japan – Film (DS44), the Panel confirms the rule on burden of proof in the context of non-violation complaints under Art. XXIII:1(b): “Consistent with the explicit terms of the DSU and established WTO/GATT jurisprudence, and recalling the Appellate Body ruling that ‘precisely how much and precisely what kind of evidence will be required to establish ... a presumption will necessarily vary from ... provision to provision’, we thus consider that the United States [the complaining party], with respect to its claim of non-violation nullification or impairment under Article XXIII:1(b), bears the burden of providing a detailed justification for its claim in order to establish a presumption that what is claimed is true. It will be for Japan [the defendant] to rebut any such presumption.” 11
(iv) Summary and Conclusions
To sum up, in the context of violation complaints under Art. XXIII:1(a) of the GATT 1994, as ruled by the Panel in Turkey-Textile and Clothing Products (DS34): “The rules on burden of proof are now well established in the WTO and can be summed up as follows: (a) it is for the complaining party to establish the violation it alleges; (b) it is for the party invoking an exception or an affirmative defense to prove that the conditions contained therein are met; and (c) it is for the party asserting a fact to prove it.” 12
And in the context of non-violation complaints under Art. XXIII:1(b) of the GATT 1994, “[the complainant], with respect to its claim of non-violation nullification or impairment under Article XXIII:1(b), bears the burden of providing a detailed justification for its claim in order to establish a presumption that what is claimed is true. It will be for [the defendant] to rebut any such presumption”.
II Admissibility of Certain Evidences
Generally, as a matter of process before the panel, the complainant will submit its arguments and evidence and the respondent will respond to rebut the complainant’s claims. However, as noted above, the allocation of burden of proof is only applicable to determine precisely how much and precisely what kind of evidence will be required to establish a presumption that what is claimed is true. Next, once the party asserting a fact or the affirmative of a particular claim or defence has succeeded in raising a presumption that its claim is true, it is incumbent on panels, before whom such a presumption is successfully raised, to assess the merits of all the arguments made and the admissibility, relevance and weight of all the factual evidence submitted with a view to establishing whether the party contesting the presumption raised has successfully rebutted it. And at the end of this process, it is for the panel to weigh and assess the evidence submitted and arguments asserted by both parties in order to reach conclusions as to whether the claims raised by the complainant are ultimately well-founded or successfully rebutted.
However, the following paragraphs will not deal with everything involved in the process of panels’ assessment of arguments or evidence, which arises logically after the allocation of burden of proof, but focus on the admissibility issue, i.e., a matter of to what extent and how the evidence available to panels should be based on to determine whether, on balance, alleged impairment or nullification exists. In this respect, as to be demonstrated in the following paragraphs, panels enjoy their broad discretion in admitting various evidences.
(i) Evidence Obtained from Prior Consultations
According to the WTO jurisprudence, the DSB is not involved in consultations process although they are a crucial and integral part of the DSU. Nothing in the text of the DSU or other covered agreements provides that the scope of a panel's work is governed by the scope of prior consultations.13 However, as to be noted below, panels won’t preclude those evidences merely because they are obtained during the course of consultations. Indeed, information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel, thus, to some extent will assist panel’s examination of measures at issue to make objective assessment with the access of such information offered to the panel.
（a）Procedural Concern: Confidentiality of Consultations
In Australia-Automotive Leather (DS126), Australia appears to be asking the Panel to rule that, the United States is limited to relying on the facts and arguments explicitly set out in its request for consultations in presenting its case to the Panel. As to this objection, the Panel rules as follows: 14
“As Australia rightly notes, Article 4.6 of the DSU provides that ‘[c]onsultations shall be confidential, and without prejudice to the rights of any Member in any further proceedings’. However, in our view, this does not mean that facts and information developed in the course of consultations held pursuant to one request cannot be used in a panel proceeding concerning, as it does in this case, the same dispute, between the same parties, conducted pursuant to another, different request.
We recall that Article 11 of the DSU obliges a panel to conduct ‘a(chǎn)n objective assessment of the matter before it’. As discussed earlier, any evidentiary rulings we make must be consistent with this obligation. The panel in Korea - Taxes on Alcoholic Beverages recently confirmed the right of a party to a WTO dispute to use information learned in consultations in panel proceedings. After noting the requirement of confidentiality in Article 4.6 of the DSU, which the panel viewed as ‘essential if the parties are to be free to engage in meaningful consultations’, the panel continued: ‘However, it is our view that this confidentiality extends only as far as requiring the parties to the consultations not to disclose any information obtained in the consultations to any parties that were not involved in those consultations. We are mindful of the fact that the panel proceedings between the parties remain confidential, and parties do not thereby breach any confidentiality by disclosing in those proceedings information acquired during the consultations. Indeed, in our view, the very essence of consultations is to enable the parties [to] gather correct and relevant information, for purposes of assisting them in arriving at a mutually agreed solution, or failing which, to assist them in presenting accurate information to the panel. It would seriously hamper the dispute settlement process if the information acquired during consultations could not be subsequently used by any party in the ensuing proceedings’15.”
Furthermore, so far as the confidentiality of consultations is concerned, the admissibility of information obtained from consultations doesn’t alter as a result of third party participation in the panel proceedings. As ruled by the Panel in Mexico-HFCS (DS132): “it would seriously hamper the dispute settlement process if a party could not use information obtained in the consultations in subsequent panel proceedings merely because a third party which did not participate in the consultations chooses to participate in the panel proceedings. As … third party participation in the panel proceedings cannot be vetoed by the parties to the proceeding. In our view, it would be anomalous if the decision of a Member to participate in a panel proceeding as a third party when it did not, or could not, participate as a third party in the underlying consultations had the effect of limiting the evidence that could be relied upon in the panel proceeding by precluding the introduction of information obtained during the consultations. Third parties are subject to the same requirement to maintain the confidentiality of panel proceedings as are parties. We therefore conclude that the requirement to maintain the confidentiality of consultations is not violated by the inclusion of information obtained during consultations in the written submission of a party provided to a third party in the subsequent panel proceeding even if that third party did not participate in the consultations.” 16
(b) Substantial Concern: Necessity or Relevance of Evidence
In EC-Bed Linen (DS141), the Panel notes that it seems that the evidence concerning the consultations is at best unnecessary, and may be irrelevant. However, the Panel rules that, that said, “merely because the evidence is unnecessary or irrelevant does not require us to exclude it”. And they come to this ruling by stating: 17
“A panel is obligated by Article 11 of the DSU to conduct ‘a(chǎn)n objective assessment of the matter before it’. The Panel in Australia-Automotive Leather observed that:
‘Any evidentiary rulings we make must, therefore, be consistent with this obligation. In our view, a decision to limit the facts and arguments that the United States may present during the course of this proceeding to those set forth in the request for consultations would make it difficult, if not impossible, for us to fulfill our obligation to conduct an "objective assessment" of the matter before us.’
Similarly in this case, we consider that it is not necessary to limit the facts and arguments India may present, even if we might consider those facts or arguments to be irrelevant or not probative on the issues before us. In our view, there is a significant and substantive difference between questions concerning the admissibility of evidence, and the weight to be accorded evidence in making our decisions. That is, we may choose to allow parties to present evidence, but subsequently not consider that evidence, because it is not relevant or necessary to our determinations or is not probative on the issues before it. In our view, there is little to be gained by expending our time and effort in ruling on points of ‘a(chǎn)dmissibility’ of evidence vel non. ”
In addition, under Art. 13.2 of the DSU, panels have a general right to seek information “from any relevant source”. “In this context, we consider that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU contains no rule that might restrict the forms of 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. ”18
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.”19
In sum, “[i]t has clearly been held in the WTO that information obtained in consultations may be presented in subsequent panel proceedings”.20 “This is unlike the situation before many international tribunals, which often refuse to admit evidence obtained during settlement negotiations between the parties to a dispute. The circumstances of such settlement negotiations are clearly different from WTO dispute settlement consultations, which are, as the Appellate Body has noted, part of the means by which facts are clarified before a panel proceeding.”21In all events, as ruled by the Panel in US-Line Pipe (DS202), “[o]ur decision not to exclude the information does not prejudge in any way the issue of whether the Panel will use the information, nor whether the information is relevant to the matter at hand.” 22 There is a significant and substantive difference between questions concerning the admissibility of evidence, and the weight to be accorded evidence in making decisions.
(ii) Arguments before Domestic Investigative Authorities
With respect to panels’ examination of factual determinations by domestic investigative authorities in fields concerning countervailing measures, anti-dumping duties and safeguards etc., the Appellate Body has ruled that, “[s]o far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of the facts’. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, ‘total deference to the findings of the national authorities’, it has been well said, ‘could not ensure an“objective assessment”as foreseen by Article 11 of the DSU’”.23 And the “nor ‘total deference’” standard suggests that panels will not simply accept the conclusions of the competent authorities. Then the following paragraphs will get down to the issue of the admissibility of arguments or evidence raised before domestic investigative authorities. In this respect, the Appellate Body rules in US-Lamb Meat (DS177/DS178) that: 24
“In our report in Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-Beams from Poland, in the course of our examination of the specificity of Poland's request for the establishment of a panel under Article 6.2 of the DSU, we said: ‘The Panel's reasoning seems to assume that there is always continuity between claims raised in an underlying anti-dumping investigation and claims raised by a complaining party in a related dispute brought before the WTO. This is not necessarily the case. The parties involved in an underlying anti-dumping investigation are generally exporters, importers and other commercial entities, while those involved in WTO dispute settlement are the Members of the WTO. Therefore, it cannot be assumed that the range of issues raised in an anti-dumping investigation will be the same as the claims that a Member chooses to bring before the WTO in a dispute.’
Although the claim under examination in that appeal was different, the same reasoning applies in respect of the relationship between domestic investigations culminating in the imposition of a safeguard measure, and dispute settlement proceedings under the DSU regarding that safeguard measure. In arguing claims in dispute settlement, a WTO Member is not confined merely to rehearsing arguments that were made to the competent authorities by the interested parties during the domestic investigation, even if the WTO Member was itself an interested party in that investigation. Likewise, panels are not obliged to determine, and confirm themselves the nature and character of the arguments made by the interested parties to the competent authorities. Arguments before national competent authorities may be influenced by, and focused on, the requirements of the national laws, regulations and procedures. On the other hand, dispute settlement proceedings brought under the DSU concerning safeguard measures imposed under the Agreement on Safeguards may involve arguments that were not submitted to the competent authorities by the interested parties.
Furthermore, we recall that, in United States - Wheat Gluten Safeguard, we reversed a finding by the panel that competent authorities are obliged to evaluate only those other relevant factors, under Article 4.2(a), which were actually raised by the interested parties during the investigation before it. We said there that competent authorities have an independent duty of investigation and that they cannot "remain passive in the face of possible short-comings in the evidence submitted, and views expressed, by the interested parties." In short, competent authorities are obliged, in some circumstances, to go beyond the arguments that were advanced by the interested parties during the investigation. As competent authorities themselves are obliged, in some circumstances, to go beyond the arguments of the interested parties in reaching their own determinations, so too, we believe, panels are not limited to the arguments submitted by the interested parties to the competent authorities in reviewing those determinations in WTO dispute settlement.
We wish to emphasize that the discretion that WTO Members enjoy to argue dispute settlement claims in the manner they deem appropriate does not, of course, detract from their obligation, under Article 3.10 of the DSU, ‘to engage in dispute settlement procedures 'in good faith in an effort to resolve the dispute’. It follows that WTO Members cannot improperly withhold arguments from competent authorities with a view to raising those arguments later before a panel. In any event, as a practical matter, we think it unlikely that a Member would do so.”
(iii) Arguments Submitted after the First Substantive Meeting
The Appellate Body have observed that: “It is also true, however, that the Working Procedures in Appendix 3 do contemplate two distinguishable stages in a proceeding before a panel. Paragraphs 4 and 5 of the Working Procedures address the first stage …The second stage of a panel proceeding is dealt with in paragraph 7…Under the Working Procedures in Appendix 3, the complaining party should set out its case in chief, including a full presentation of the facts on the basis of submission of supporting evidence, during the first stage. The second stage is generally designed to permit ‘rebuttals’ by each party of the arguments and evidence submitted by the other parties.”25
In addition, the Appellate Body rules that, “[a panel request] often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU”26. And the panel request is normally submitted before the first substantive meeting. Subsequently, the defendant party has occasionally contested that panels should reject submissions of new evidence or arguments made after the first substantive meeting. In this respect, the author thinks it necessary to clarify several points as follows:
(a) There is a significant difference between the claims and the arguments supporting those claims.
As ruled by the Appellate Body in EC-Bananas (DS27), Art. 6.2 of the DSU requires that “the claims, but not the arguments”, must all be specified sufficiently in the request for the establishment of a panel. With this regard, the Appellate Body rule that, “… [i]n our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties”.27
And as clarified by the Panel in Thailand-Iron and H-Beams (DS122), “…Article 6.2 DSU does not relate directly to the sufficiency of the subsequent written and oral submissions of the parties in the course of the proceedings, which may develop the arguments in support of the claims set out in the panel request.…”.28 Also, the Arbitrators in the EC-Hormones (DS26) case observe that, “… [p]anels are inhibited from addressing legal claims falling outside their terms of reference. However, nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties -- or to develop its own legal reasoning -- to support its own findings and conclusions on the matter under its consideration”.29
(b)There is no provision establishing precise deadlines for the presentation of evidence.
In this respect, for example, the Appellate Body in Australia-Salmon (DS18) rules that: “More generally, …we note that the Working Procedures in Appendix 3 of the DSU do not establish precise deadlines for the submission of evidence. Under the provisions of Article 12.1 of the DSU, panels are permitted to establish their own working procedures, in addition to those set out in Appendix 3. …We note that Article 12.2 of the DSU provides that ‘[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.’ However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted. Whether the Panel afforded Australia adequate opportunity to respond is the question addressed in the next section.”30
Also, the Appellate Body in Argentina-Footwear (DS56) rules that, “Article 11 of the DSU does not establish time limits for the submission of evidence to a panel. Article 12.1 of the DSU directs a panel to follow the Working Procedures set out in Appendix 3 of the DSU, but at the same time authorizes a panel to do otherwise after consulting the parties to the dispute. The Working Procedures in Appendix 3 also do not establish precise deadlines for the presentation of evidence by a party to the dispute.It is true that the Working Procedures ‘do not prohibit’ submission of additional evidence after the first substantive meeting of a panel with the parties…”.31
The Panel in Canada-Civilian Aircraft (DS70) refers to this ruling and states in detail as:32
“We recall that the Appellate Body found in Argentine Footwear that neither Article 11 of the DSU, nor the Working Procedures in Appendix 3 of the DSU, establish precise deadlines for the presentation of evidence by parties to a dispute. …
In our opinion, an absolute rule excluding the submission of evidence by a complaining party after the first substantive meeting would be inappropriate, since there may be circumstances in which a complaining party is required to adduce new evidence in order to address rebuttal arguments made by the respondent. Furthermore, there may be instances, as in the present case, where a party is required to submit new evidence at the request of the panel. For these reasons, we rejected Canada's request for a preliminary ruling that the Panel should not accept new evidence submitted by Brazil after the first substantive meeting.
We also consider that we are not bound to exclude the submission of new allegations after the first substantive meeting. We can see nothing in the DSU, or in the Appendix 3 Working Procedures, that would require the submission of new allegations to be treated any differently than the submission of new evidence. Indeed, one could envisage situations in which the respondent might present information to a panel during the first substantive meeting that could reasonably be used as a basis for a new allegation by the complaining party. Provided the new allegation falls within the panel's terms of reference, and provided the respondent party's due process rights of defence are respected, we can see no reason why any such new allegation should necessarily be rejected by the panel as a matter of course, simply because it is submitted after the first substantive meeting with the parties. We consider that this approach is consistent with the Appellate Body's ruling in European Communities - Bananas that ‘there is no requirement in the DSU or in GATT practice for arguments on all claims relating to the matter referred to the DSB to be set out in a complaining party's first written submission to the panel. It is the panel's terms of reference, governed by Article 7 of the DSU, which set out the claims of the complaining parties relating to the matter referred to the DSB’.
[…]
As noted above, there is nothing in the DSU, or in the Appendix 3 Working Procedures, to prevent a party submitting new evidence or allegations after the first substantive meeting. We can see no basis in the DSU to treat the submission of affirmative defences after the first substantive meeting any differently. Thus, although it is desirable that affirmative defences, as with any claim, should be submitted as early as possible, there is no requirement that affirmative defences should be submitted before the end of the first substantive meeting with the parties. Provided that due process is respected, we see nothing to prohibit the submission of affirmative defences after the first substantive meeting with the parties.”
In sum, as provided for in Art. 12.2 of the DSU, “[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.” The Working Procedures in Appendix 3 of the DSU do not establish precise deadlines for the submission of evidence; there is nothing in the DSU, or in the Appendix 3 Working Procedures, to prevent a party providing new submissions after the first substantive meeting. And as noted above, “the Working Procedures in their present form do not constrain panels with hard and fast rules on deadlines for submitting evidence.”33
However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted. Just as noted by a panel in this respect, “[u]ntil the WTO Members agree on different and more specific rules on this regard, our main concern is to ensure that ‘due process’ is respected and that all parties to a dispute are given all the opportunities to defend their position to the fullest extent possible.” 34
III Panel’s Right to Seek Information
A panel is obligated by Art. 11 of the DSU to conduct “an objective assessment of the matter before it”, any evidentiary rulings made by panels must be consistent with this obligation. Therefore, to fulfil their functions as provided in Art. 11 of the DSU to “make an objective”, panels are not limited to the arguments submitted by the participants in WTO dispute settlement. Panels cannot remain passive in the face of possible shortcomings in the evidence submitted, and views expressed, by the interested parties. And they are obliged, in some circumstances, to go beyond the arguments that were advanced by the parties during the process in reaching their own conclusions.
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
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