4. Response of Brazil
4.127 In a letter to the Panel dated 13 December 1998, Brazil argued that with the parties clearly satisfied with the cases they had put forward the panel would have been entitled to decide the case on the record as made to this point; neither party would have grounds to complain that it had not had fair opportunity to present evidence or advance argument.
4.128 Brazil acknowledges the panel's right to request information from any source at any time, but believes it was not necessary for the Panel to request this particular information at this particular time. More important for Brazil in this accelerated proceeding, the Panel's decisions have placed it in a position in which, depending upon the nature of Canada's response, it might not be able to comment at all on the new information that might be supplied by Canada.
4.129 Brazil recalls its concerns that Canada might be planning on presenting an affirmative defence to one or more of Brazil's complaints in its second written submission or even at the second meeting of the Panel, and its related request that the Panel not accept any such information after the first meeting of the Panel (paras. 4.119- 4.122)
4.130 Brazil notes a Panel statement that even before receiving Brazil's request it had decided to ask Canada, in questions to be presented to the parties, whether or not it intended to assert any defence based upon items (j) or (k) of the Illustrative List of Export Subsidies, and its further statement that it expected a clear and complete response to the questions, on which it also gave the other party a period to comment.
4.131 Brazil notes that Canada did not invoke any affirmative defences in its response to questions from the Panel, nor did Canada supply information that would support such defences. Brazil indicates that the Panel granted Canada an additional opportunity to submit answers responsive to certain of the Panel's original questions, and notified the parties of its intention to present further questions, and stated that except for responses to those questions, it would not accept further submissions from the parties after the deadline for those responses, except for good cause shown. In the same message, Brazil argues, despite the fact that Canada had not responded with affirmative defence information by the deadline for answers to previous questions, the Panel stated that "'Canada shall invoke any positive defences it intends to raise in this case during or before, the second meeting with the Panel on Saturday, 12 December 1988'".
4.132 Brazil contends that although by this action the panel gave Canada an additional eight days to provide affirmative defence information, information that, in Brazil's view, properly belonged in its first submission and not in a response provided at the second meeting with the Panel, Canada again declined to submit the information by 12 December, and reaffirmed that it did not intend to use any kind of affirmative defence since, in its view, Brazil had not presented a prima facie case. Brazil states that in fact, the Panel orally confirmed at the second meeting that that meeting would be the last opportunity for Canada to invoke an affirmative line of defence.
4.133 However, in Brazil's view, the additional questions provided by the Panel to Canada In connection with the second meeting effectively asked for the kind of information on which such a defence could be based, which could consist of a large quantity of transaction-specific, confidential business information that would take time to produce and time to analyse. The panel's questions therefore in Brazil's view effectively extend Canada's time to provide this kind of information by 17 days. Brazil notes that to analyse and prepare any comment it may wish to make on such response, the Panel has provided Brazil seven days, including the Christmas holiday, and that should Canada concur in a one-week extension of the Panel's deadline, the Panel would extend Brazil's time for comment by an additional week, encompassing the New Year's holiday.
4.134 Brazil believes this procedure is unnecessary and unfair to Brazil; unnecessary because Canada, as a Member of the WTO, was entitled to have its case decided on the basis on which it chose to present it. This is particularly important, in Brazil's view, in an accelerated procedure under the SCM Agreement.
4.135 Brazil believes it is unfair because, not only does it permit Canada to supply last-minute information, it effectively denies Brazil a fair opportunity to respond. In Brazil's view, the occurrence of major religious and secular holidays in the midst of the response period would cause difficulty for any Member, and causes particular difficulty in this case because of Canada's indication that the information Canada will furnish will include confidential business information that may be dealt with only under strict procedures to ensure its security.
4.136 Brazil states that as a developing country, it does not have the same resources or personnel as Canada to enable it to prepare and present its argumentation in the manner envisioned by the DSU, noting that in this case, it chose to utilize the services of non-government specialists. Brazil argues that this presents a difficulty because these specialists are resident in neither Geneva nor Brasilia, where the Brazilian officials with whom they are working are located, and it had been learned that airline reservations for them to return to Geneva over this holiday period would be extremely difficult if not impossible to obtain.
4.137 Brazil argues that it thus was unable to choose between the options provided by the panel, as its needs would depend entirely on what Canada would supply in the way of answers to the Panel's questions.
5. Proposal by the Panel
4.138 In light of the concerns raised over the proposed schedule for answers to questions and comments thereon, and in light of an absence of consensus among the parties on extending the Panel's overall timetable, the Panel proposed a new schedule that would allow the parties 17 days to comment on one another's answers to questions, but would reduce the time for interim review. The Panel noted that 17 days was the same amount of time as between the deadlines for first and second submissions. That is, the parties would have exactly the same amount of time for commenting as if all of the information had been presented in the first submissions.
6. Joint letter from Brazil and Canada, and Panel action
4.139 In response to the Panel's proposal, the parties submitted a joint letter to this Panel and to the Panel in the parallel case on Brazil -Export Financing Programme for Aircraft. In this letter, the parties note that the time available under the Panel's proposed new schedule for the review of the interim report and for the travel of delegations to Geneva for a possible additional meeting with that Panel was likely to be insufficient, and requested that the two Panels examine the possibility to readjust their respective timetables as follows:
(a) the interim reports of both Panels shall be issued on the same dates, but no later than 17 February;
(b) the final reports of the two Panels shall be issued on the same dates;
(c) the interim review meetings should be held on dates as close as possible to each other; and
(d) adequate time should be allowed for all stages of the interim review, providing sufficient time for internal consultations and travel arrangements.
4.140 The letter further states that Brazil and Canada realize that such request would call for some flexibility regarding the date of issuance of the final report, and indicate that they therefore would agree to a one-week postponement of the deadline for issuance of the final report.
4.141 The Panel, taking into consideration this letter, announced its revised timetable.
To continue with Arguments Concerning the Submission of Evidence
