To sum up, with this articulation of the standard of review based on Art. 11 of the DSU, a de novo review would be inappropriate. However, to adopt a policy of total deference to the findings of the national authorities could not ensure an “objective assessment” as foreseen by Art. 11 of the DSU. The applicable standard is neither de novo review as such, nor “total deference”, but rather the “objective assessment”. However, when may a panel be regarded as having failed to discharge its duty under Art. 11 of the DSU to make an objective assessment? As is what to be discussed in more detail below.
IV Allegation against Panels’ Standard of Review
In EC-Hormones (DS26/DS48), the European Communities claims that the Panel failed to make an objective assessment of the facts as required by Art. 11 of the DSU, and asks the Appellate Body to reverse the findings so arrived at by the Panel. The Appellate Body finds concerning this appeal that:15
“[…] Clearly, not every error in the appreciation of the evidence (although it may give rise to a question of law) may be characterized as a failure to make an objective assessment of the facts. In the present appeal, the European Communities repeatedly claims that the Panel disregarded or distorted or misrepresented the evidence submitted by the European Communities and even the opinions expressed by the Panel's own expert advisors. The duty to make an objective assessment of the facts is, among other things, an obligation to consider the evidence presented to a panel and to make factual findings on the basis of that evidence. The deliberate disregard of, or refusal to consider, the evidence submitted to a panel is incompatible with a panel's duty to make an objective assessment of the facts. The wilful distortion or misrepresentation of the evidence put before a panel is similarly inconsistent with an objective assessment of the facts. ‘Disregard’ and ‘distortion’ and ‘misrepresentation’ of the evidence, in their ordinary signification in judicial and quasi-judicial processes, imply not simply an error of judgment in the appreciation of evidence but rather an egregious error that calls into question the good faith of a panel. A claim that a panel disregarded or distorted the evidence submitted to it is, in effect, a claim that the panel, to a greater or lesser degree, denied the party submitting the evidence fundamental fairness, or what in many jurisdictions is known as due process of law or natural justice”.上一页 [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] 下一页
|
