WTO Dispute Settlement Mechanism(6)/刘成伟(40)
(ii) The Duty of a Member to Comply with the Request of a Panel to Provide Information
An important part of Brazil's appeal with respect to the issue of adverse inferences is Brazil's contention that Canada was under a duty to comply with the Panel's request to provide information relating to the EDC's financing of the ASA transaction. Canada denies that it was legally burdened with such a duty. In this respect, the Appellate Body rules in pertinent part as: 45
“We note that Article 13.1 of the DSU provides that ‘[a] Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate.’ Although the word ‘should’ is often used colloquially to imply an exhortation, or to state a preference, it is not always used in those ways. It can also be used ‘to express a duty [or] obligation’. The word ‘should’ has, for instance, previously been interpreted by us as expressing a ‘duty’ of panels in the context of Article 11 of the DSU. Similarly, we are of the view that the word ‘should’ in the third sentence of Article 13.1 is, in the context of the whole of Article 13, used in a normative, rather than a merely exhortative, sense. Members are, in other words, under a duty and an obligation to ‘respond promptly and fully’ to requests made by panels for information under Article 13.1 of the DSU.
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