WTO Dispute Settlement Mechanism(6)/刘成伟(49)
In reviewing the inferences the Panel drew from the facts of record, our task on appeal is not to redo afresh the Panel's assessment of those facts, and decide for ourselves what inferences we would draw from them. Rather, we must determine whether the Panel improperly exercised its discretion, under Article 11, by failing to draw certain inferences from the facts before it. In asking us to conduct such a review, an appellant must indicate clearly the manner in which a panel has improperly exercised its discretion. Taking into account the full ensemble of the facts, the appellant should, at least: identify the facts on the record from which the Panel should have drawn inferences; indicate the factual or legal inferences that the panel should have drawn from those facts; and, finally, explain why the failure of the panel to exercise its discretion by drawing these inferences amounts to an error of law under Article 11 of the DSU.”
V Concluding Remarks
Rules of evidence are a crucial issue with respect to reaching conclusion of law and fact. With regard to this issue under the WTO jurisprudence, “pursuant to Articles 12 and 13 of the DSU and in order to conduct an objective assessment of the facts of the matter pursuant to Article 11 DSU…, we as a panel have broad legal authority to control the process by which we inform ourselves of the relevant facts of the dispute and the legal principles applicable to such facts. We as a panel have the mandate and the duty to manage the Panel proceedings and the ability to pose questions to the parties in order to clarify and distil the legal arguments that are asserted by the parties in support of their claims. … In particular, we are aware that, in our questions posed to the parties, we must not ‘overstep the bounds of legitimate management or guidance of the proceedings … in the interest of efficiency and dispatch’. However, the fact that it is for the party asserting the affirmative of a particular claim or defence to discharge the burden of proof does not mean that a panel is frozen into inactivity. We believe that just as the extensive discretionary authority of a panel to request information from any source (including a Member that is a party to the dispute) is not conditional upon a party having established, on a prima facie basis, a claim or defence, so also a panel's extensive authority to put questions to the parties in order to inform itself of the relevant facts of the dispute and the legal considerations applicable to such facts is not conditional in any way upon a party having established, on a prima facie basis, a claim or defence. We view this authority as essential in order to carry out our mandate and responsibility under the DSU”. 48
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