WTO Dispute Settlement Mechanism(6)/刘成伟(44)
(iii) The Drawing of Adverse Inferences from the Refusal of a Party to Provide Information Requested by the Panel
As noted above, the Appellate Body have concluded that a panel has broad legal authority to request information from a Member that is a party to a dispute, and that a party so requested has a legal duty to provide such information. The question remains: if that Member refuses to provide that information, does the panel have the authority to draw adverse inferences from that refusal? In this respect, the Appellate Body rules that: 46
“We approach this question by noting once more that the mandate of a panel under the DSU requires it to determine the facts of the dispute with which it is seised, and to evaluate or characterize those facts in terms of their consistency or inconsistency with a particular provision of the SCM Agreement or another covered agreement. The DSU does not purport to state in what detailed circumstances inferences, adverse or otherwise, may be drawn by panels from infinitely varying combinations of facts. Yet, in all cases, in carrying out their mandate and seeking to achieve the ‘objective assessment of the facts’ required by Article 11 of the DSU, panels routinely draw inferences from the facts placed on the record. The inferences drawn may be inferences of fact: that is, from fact A and fact B, it is reasonable to infer the existence of fact C. Or the inferences derived may be inferences of law: for example, the ensemble of facts found to exist warrants the characterization of a ‘subsidy’ or a ‘subsidy contingent … in fact … upon export performance’. The facts must, of course, rationally support the inferences made, but inferences may be drawn whether or not the facts already on the record deserve the qualification of a prima facie case. The drawing of inferences is, in other words, an inherent and unavoidable aspect of a panel's basic task of finding and characterizing the facts making up a dispute. In contrast, the burden of proof is a procedural concept which speaks to the fair and orderly management and disposition of a dispute. The burden of proof is distinct from, and is not to be confused with, the drawing of inferences from facts.
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