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. 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. 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”.
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. Burden of proof: The Appellate Body found that, in the circumstances of this dispute, where the potential for application of Art. II:2(a) was clear from the face of the challenged measures, the United States was required to present arguments and evidence that the Additional Duty and the Extra-Additional Duty were not justified under Art. II:2(a). The Appellate Body added that India, in asserting that the challenged measures were justified under Art. II:2(a), was required to adduce arguments and evidence in support of its assertion.
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 of proof (GATT Art. XXIV): The Appellate Body agreed with the Panel that Art. XXIV may be considered as a “defence” or “exception” to a violation. The Panel also held that the burden of proof under Art. XXIV was on the party invoking it. • Information from non-party Member (DSU Art. 13.2): Despite the fact that the European Communities was not a party or a third party to the dispute, the Panel asked the European Communities, pursuant to Art. 13.2, for relevant factual and legal information so as to to have “the fullest possible understanding of this case”. The European Communities provided answers to the Panel's questions.
OTHER ISSUES2. Special standard of review (ADA Art. 17.6): Having observed that ADA Art. 17.6 distinguishes between a panel's “assessment of the facts” and its “legal interpretation” of the ADA, the Appellate Body noted the following: (i) that the standard of review under ADA Art. 17.6 complements the “objective assessment” requirement in DSU Art.11. (i.e. the panels must make an “objective” assessment of the facts in order to determine whether the domestic authorities properly established the facts and evaluated them in an objective and unbiased manner); and (ii) the same rules of treaty interpretation apply to the ADA as to other covered agreements, but under the ADA, panels must determine whether a measure rests upon a “permissible interpretation” of that Agreement.
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.
