WTO Dispute Settlement Mechanism(6)/刘成伟(39)
(i) The Authority of a Panel to Request Information from a Party to the Dispute
With regard to this issue, certain paragraphs above have touched on it in detail, and here the author means to stress some points in pertinent by referring to the ruling made by the Appellate Body in Canada-Civilian Aircraft (DS70): 44
“In Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, we ruled that Article 13 of the DSU made ‘a grant of discretionary authority’ to panels enabling them to seek information from any relevant source. In European Communities - Hormones, we observed that Article 13 of the DSU ‘enable[s] panels to seek information and advice as they deem appropriate in a particular case’. And, in United States - Shrimp, we underscored ‘the comprehensive nature’ of the authority of a panel to seek information and technical advice from ‘any individual or body’ it may consider appropriate, or from ‘any relevant source’. There, we stated that:
[…]
It is clear from the language of Article 13 that the discretionary authority of a panel may be exercised to request and obtain information, not just ‘from any individual or body’ within the jurisdiction of a Member of the WTO, but also from any Member, including a fortiori a Member who is a party to a dispute before a panel. This is made crystal clear by the third sentence of Article 13.1, which states: ‘A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate.’ It is equally important to stress that this discretionary authority to seek and obtain information is not made conditional by this, or any other provision, of the DSU upon the other party to the dispute having previously established, on a prima facie basis, such other party's claim or defence. Indeed, Article 13.1 imposes no conditions on the exercise of this discretionary authority. Canada argues that the Panel in this case had no authority to request the submission of information relating to the EDC's financing of the ASA transaction because Brazil had not previously established a prima facie case that the financial contribution offered by such financing conferred a ‘benefit’ on ASA and therefore satisfied that other prerequisite of a prohibited export subsidy. This argument is, quite simply, bereft of any textual or logical basis. There is nothing in either the DSU or the SCM Agreement to sustain it. Nor can any support for this argument be derived from a consideration of the nature of the functions and responsibilities entrusted to panels in the WTO dispute settlement system - a consideration which we essay below.”
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