WTO Dispute Settlement Mechanism(6)/刘成伟(38)
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.
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