'Should' means 'shall': a critical analysis of the obligation to submit information under article 13.1 of the DSU in the Canada - Aircraft case

Abstract

In the case Canada - Measures Affecting the Export of Civilian Aircraft, the Appellate Body found that disputing parties had a legal obligation to submit information and documents requested of them by panels. The Appellate Body based this finding on the third sentence of Article 13.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). The Appellate Body further found that panels have a right to draw adverse inferences when requests for the production of documents and information are not heeded. This finding was based on the procedure set out in Annex V of the Agreement on Subsidies and Countervailing Measures (SCM Agreement), even though Annex V is expressly restricted to proceedings under Article 7 of the SCM Agreement. This article describes and analyses the findings of the Appellate Body. It argues that they are consistent with neither the text of the DSU nor the intentions of the drafters. Moreover, the Appellate Body's analysis of the 'duty' of disputing parties to submit information and documents to arbitral tribunals, and the right of such tribunals to draw adverse inferences, is far broader than those provided in public international law. The article concludes with some institutional and systemic concerns triggered by the new case law.