WTO Dispute Settlement Mechanism(6)/刘成伟(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 ‘an 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 ‘admissibility’ of evidence vel non. ”
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