WTO Dispute Settlement Mechanism(6)/刘成伟(46)
[…]
Clearly, in our view, the Panel had the legal authority and the discretion to draw inferences from the facts before it - including the fact that Canada had refused to provide information sought by the Panel. …”
Also, this is confirmed by the Appellate Body in US-Wheat Gluten (DS166) by ruling that:47
“We begin by noting our strong agreement with the Panel that a ‘serious systemic issue’ is raised by the question of the procedures which should govern the protection of information requested by a panel under Article 13.1 of the DSU and which is alleged by a Member to be ‘confidential’. We believe that these issues need to be addressed.
Next, we recall that we stated, in our original report in Canada - Aircraft, that Members of the WTO ‘are … 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’. In this case, despite the fact that the Panel proposed to exercise its authority, under Article 12.1 of the DSU, to determine its own procedures by adopting two different procedures for the protection of business confidential information, the United States declined to make available to the Panel, and representatives of the European Communities, certain information requested by the Panel under Article 13.1 of the DSU. As the Appellate Body said in Canada - Aircraft, the refusal by a Member to provide information requested of it undermines seriously the ability of a panel to make an objective assessment of the facts and the matter, as required by Article 11 of the DSU. Such a refusal also undermines the ability of other Members of the WTO to seek the ‘prompt’ and ‘satisfactory’ resolution of disputes under the procedures ‘for which they bargained in concluding the DSU’. In this specific case, the Panel acknowledged that having access to all of the information requested from the United States ‘would have facilitated [an] objective assessment of the facts’. We, therefore, deplore the conduct of the United States.
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