per. Panelists are subject to timely rejection of proposed panelists by parties to disputes (Text 127) Since 1 January 1995 DSB has received 302 such requests (Text 147). Decisions of such panels are reviewable on appeal by seven members of the AB who have been appointed by DSB for a four year term. The AB can only review questions of law involved in a panel proceeding, but not questions of fact which are the exclusive province of the panel hearing a case (Text 153). They can affirm or reject panel decisions, but have no power to remand cases below for further disposition (Text 158). Panel and AB proceedings are secret, but their final decisions are eventually released to the public (Text 152-153). The lack of transparency of these and other WTO meetings and deliberations has been a source of public criticism.
Facts and Evidence in Panel Proceedings
The disposition of cases often depend upon the factual determinations of panels. The rules governing the fact determination process are an amalgam of common law and continental or civil law procedure. Attorneys for each party play a prominent role in making factual presentations to panels, as they do under Anglo-American practice, but the parties neither have the right to initiate nor compel discovery of evidence nor to seek evidentiary rulings by the panel. The panel is obligated to make its own independent and objective determinations of fact. This is a fundamental part of the DSU, Article 11 stating in part
"a panel should make an objective assessment of the
matter before it, including an objective assessment
And, as in the civil law 'inquisitorial' system panels can consult whatever sources, such as individual experts or 'expert review groups,' to obtain relevant facts. They may also "put questions to the parties and ask them questions" (Text 155). As noted below, panels may not have much power to compel answers from uncooperative parties. Under an unusu...