OTHER ISSUES2. Standard of review (DSU Art. 11): The Appellate Body concluded, that “the Panel acted consistently with its duties under Article 11 of the DSU in its analysis of the arguments and evidence before it”, and rejected the United States’ claims in this respect.
OTHER ISSUES2. Adverse inference: The Appellate Body found that panels have discretion to draw inferences from all the facts including where a party to a dispute refuses to submit information sought by a panel pursuant to DSU Art. 13. In this case, it held that the Panel did not err in refusing to draw adverse inferences from Canada's refusal to provide information. The Appellate Body stated that parties are under an obligation to cooperate with a panel.
OTHER ISSUES2. Burden and standard of proof: The United States and Mexico were both complainants and respondents in the Panel proceedings. Further, the Panels observed that their submissions did not distinguish between claims and arguments made in respect of the two proceedings. In these circumstances, the Panels decided that it was appropriate to apply the principles on burden of proof in a cumulative or holistic fashion and find in favour of the party that overall presented a more convincing case in terms of arguments and evidence. However, the Panels noted that they would continue to be guided by the principle that the party asserting a fact is responsible for providing proof thereof.
OTHER ISSUES2. Standard of review (DSU Art. 11): This was the first panel to refer to Art. 11 as its standard of review in examining a determination reached by a WTO Member under a WTO Agreement. The Panel found that its standard of review in this case was to make an “objective assessment” which entails “an examination of whether the US investigating authority had examined all relevant facts before it, whether adequate explanation had been provided of how the facts as a whole supported the determination made, and consequently, whether the determination made was consistent with the international obligation of the United States”.
OTHER ISSUES2. Evolution of the measure: The safeguard measure at issue expired during the panel proceedings and India declared that it had no intention to extend it. The Panel considered that the expiry of the measure after the Panel was established did not excuse the Panel from exercising its function under Art. 11 of the DSU to make findings with respect to the matter raised by Japan. The Panel found it appropriate to provide recommendations with regard to the measure at issue to the extent that there may continue to be effects with respect to imports occurred when the measure was in force.
OTHER ISSUES2. The Appellate Body found that it could accept and consider an amicus curiae brief submitted by Morocco, a WTO Member that was not a third party to the dispute, although ultimately it did not take the brief into account.
OTHER ISSUES2. False judicial economy: The Appellate Body found that the Panel in this case exercised “false judicial economy” by not making findings for all the products at issue, in particular, findings in respect of Arts. 5.5 and 5.6 for other Canadian salmon. The Appellate Body clarified that, in applying the principle of judicial economy, panels must address those claims on which a finding is necessary to secure a positive solution to the dispute. Providing only a partial resolution of the matter at issue would be “false judicial economy”.
OTHER ISSUES2. Terms of reference (DSU Art. 21.5 panels): The Panel refused to grant Australia's request to impose jurisdictional limits on Art. 21.5 compliance panels and stated that there is no suggestion in the text of Art. 21.5 that only certain issues of consistency of measures may be considered, but that a compliance panel can potentially examine the consistency of a measure taken to comply with a DSB recommendation or ruling in light of any provision of any of the covered agreements.
OTHER ISSUES2. Claims against measures not yet applied: The Panel in examining the sixth measure reaffirmed that a mandatory measure that has entered into force, but must be applied only at a pre-determined future date (compared to the date of establishment of a panel), may in principle be found to be inconsistent with WTO rules even before it is applied.
OTHER ISSUES2. Judicial economy: While upholding the Panel's exercise of judicial economy in respect of the European Communities' claim under ASCM Art. 3.1(a), the Appellate Body added a cautionary remark that “for purposes of transparency and fairness to the parties, a panel should, however, in all cases, address expressly those claims which it declines to examine and rule upon for reasons of judicial economy”.
