[ 劉成偉 ]——(2003-7-7) / 已閱52752次
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.”
V Concluding 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
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 such information or other evidence or arguments received, and to decide what weight to ascribe to them or to conclude that no weight at all should be given to what has been received. As a general rule well established in the practice under WTO dispute settlement system, panels have wide latitude in admitting evidence, arguments or defences made by parties to a particular case, or seeking information from any relevant sources as they deem appropriate。However, panels’ exercise of such broad discretion does not prejudge in any way the issue of whether panels will use the information, nor whether the information is relevant to the matter at hand. There is a significant and substantive difference between questions concerning the admissibility of evidence or the seeking of information, and the weight to be accorded evidence or information in making decisions.
In short, Arts. 12 and 13 of the DSU accord to a panel ample and extensive authority to undertake and to control its process. That authority, and the breadth thereof, is indispensably necessary to enable a panel to discharge its duty imposed by Art. 11 of the DSU to “make an objective assessment”. However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted. We wish to emphasize that the discretion that panels enjoy in the manner they deem appropriate does not, of course, detract from their obligation, under Art. 11 of the DSU, to conduct “an objective assessment” of the matter before them.
However, as stated by the Appellate Body in US-Shrimp (DS58), it “may be well to stress at the outset that access to the dispute settlement process of the WTO is limited to Members of the WTO. This access is not available, under the WTO Agreement and the covered agreements as they currently exist, to individuals or international organizations, whether governmental or non-governmental. Only Members may become parties to a dispute of which a panel may be seized, and only Members ‘having a substantial interest in a matter before a panel’ may become third parties in the proceedings before that panel. Thus, under the DSU, only Members who are parties to a dispute, or who have notified their interest in becoming third parties in such a dispute to the DSB, have a legal right to make submissions to, and have a legal right to have those submissions considered by, a panel. Correlatively, a panel is obliged in law to accept and give due consideration only to submissions made by the parties and the third parties in a panel proceeding. These are basic legal propositions…”49
【NOTE】:
1 See, WT/DS160/R/6.15.
2 See, WT/DS33/AB/R/Ⅳ.
3 See, WT/DS155/R/11.11.
4 See, WT/DS192/R/7.22.
5 See, WT/DS189/R/6.6.
6 See, WT/DS160/R/6.12-6.14.
7 See, WT/DS44/R/10.29.
8 See, WT/DS33/AB/R/Ⅳ.
9 See, WT/DS33/AB/R/Ⅳ.
10 See, WT/DS26/AB/R; WT/DS48/AB/R/104.
11 See, WT/DS44/R/10.32.
12 See, WT/DS34/R/9.57.
13 See, e.g., WT/DS22/R/287 or WT/DS75/R; WT/DS84/R/10.19.
14 See, WT/DS126/R/9.32-9.33.
15 See, WT/DS75/R; WT/DS84/R/10.23.
16 See, See, WT/DS132/R/7.41.
17 See, WT/DS141/R/6.33.
18 See, WT/DS141/R/6.34.
19 See, Kazazi, Mojtaba, Burden of Proof and Related Issues - A Study of Evidence Before International Tribunals, Malanczuk, Peter, ed., Kluwer Law International, The Hague, pp. 180, 184.
20 See, WT/DS75/R;WT/DS84/R/10.23.
21 See, WT/DS141/R, note 22.
22 See, WT/DS202/R/7.14.
23 See, WT/DS26/AB/R; WT/DS48/AB/R/117.
24 See, WT/DS177/AB/R; WT/DS178/AB/R/112-115.
25 See, WT/DS56/AB/R/79.
26 See, WT/DS27/AB/R/142.
27 See, WT/DS27/AB/R/141.
28 See, WT/DS122/R/7.43.
29 See, WT/DS26/ARB/156.
30 See, WT/DS18/AB/R/272.
31 See, WT/DS56/AB/R/79.
32 See, WT/DS70/R/9.71-9.74; 9.77.
33 See, WT/DS56/AB/R/80.
34 See, WT/DS56/R/6.55.
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