WTO Dispute Settlement Mechanism(7)/刘成伟(57)
(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.
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