WTO Dispute Settlement Mechanism(6)/刘成伟(47)
However, we note that the role of the Appellate Body, on this issue, is limited to determining whether the Panel has erred under Article 11 of the DSU. In that respect, we recall that, in Canada - Aircraft, the Appellate Body observed that:
…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.
[…]
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.
We, therefore, characterized the drawing of inferences as a ‘discretionary’ task falling within a panel's duties under Article 11 of the DSU. In Canada - Aircraft, which involved a similar factual situation, the panel did not draw any inferences ‘adverse’ to Canada's position. On appeal, we held that there was no basis to find that the panel had improperly exercised its discretion since ‘the full ensemble of the facts on the record’ supported the panel's conclusion.
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