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WTO Dispute Settlement Mechanism(6)

时间:2006-11-24栏目:国际经济法论文

g evidence in WTO dispute settlement. The DSU contains no rule that might restrict the forms of evidence that panels may consider. Moreover, international tribunals are generally free to admit and evaluate evidence of every kind, and to ascribe to it the weight that they see fit. ”18
As one legal scholar has noted: “The inherent flexibility of the international procedure, and its tendency to be free from technical rules of evidence applied in municipal law, provide the ‘evidence’ with a wider scope in international proceedings . . . Generally speaking, international tribunals have not committed themselves to the restrictive rules of evidence in municipal law. They have found it justified to receive every kind and form of evidence, and have attached to them the probative value they deserve under the circumstances of a given case.”19
In sum, “[i]t has clearly been held in the WTO that information obtained in consultations may be presented in subsequent panel proceedings”.20 “This is unlike the situation before many international tribunals, which often refuse to admit evidence obtained during settlement negotiations between the parties to a dispute. The circumstances of such settlement negotiations are clearly different from WTO dispute settlement consultations, which are, as the Appellate Body has noted, part of the means by which facts are clarified before a panel proceeding.”21In all events, as ruled by the Panel in US-Line Pipe (DS202), “[o]ur decision not to exclude the information does not prejudge in any way the issue of whether the Panel will use the information, nor whether the information is relevant to the matter at hand.” 22 There is a significant and substantive difference between questions concerning the admissibility of evidence, and the weight to be accorded evidence in making decisions.
(ii) Arguments before Domestic Investigative Authorities
With respect to panels’ examination of factual determinations by domestic investigative authorities in fields concerning countervailing measures, anti-dumping duties and safeguards etc., the Appellate Body has ruled that, “[s]o far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of the facts’. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, ‘total deference to the findings of the national authorities’, it has been well said, ‘could not ensure an“objective assessment”as foreseen by Article 11 of the DSU’”.23 And the “nor ‘total deference’” standard suggests that panels will not simply accept the conclusions of the competent authorities. Then the following paragraphs will get down to the

issue of the admissibility of arguments or evidence raised before domestic investigative authorities. In this respect, the Appellate Body rules in US-Lamb Meat (DS177/DS178) that: 24
“In our report in Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-Beams from Poland, in the course of our examination of the specificity of Poland's request for the establishment of a panel under Article 6.2 of the DSU, we said: ‘The Panel's reasoning seems to assume that there is

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