In the U.S. - Guatemala CAFTA labor case, there's also a really interesting issue about the use of witness statements as evidence. Here are some excerpts from a panel ruling issued on Feb 26:
9. However, Guatemala’s letter to the panel of that same day raised new issues. It drew the panel’s attention to “the fact the United States redacted important information from 135 of its exhibits and, as of today, the United States has neither provided Guatemala nor the Panel with non-redacted versions of such exhibits.” 1 Guatemala took the position that “[b]y redacting information from these exhibits, the United States is acting in a manner contrary to the Model Rules of Procedure (“MRP”) and violated Guatemala’s due process rights, including its right to have an adequate opportunity to prepare its case and to respond to adverse evidence.” 2 Guatemala noted that “the information redacted from the exhibits includes the identity of the person providing the statements, the name of the judges participating the labor legal proceedings, the names of the inspectors form the General Inspection Directorate (GLI) in charge of inspections in the cases identified by the Untied States and the case number of certain domestic proceedings.” 3
10. The letter went on to request that the Panel instruct the United States to provide the Panel and Guatemala, without delay, a complete set of non-redacted and legible exhibits; that in the meantime, the panel treat the United States’ initial written submission as not properly submitted; or that in the alternative the panel strike the redacted exhibits from the record of these proceedings.
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29. Guatemala also suggests in its November 20 letter that its rights to adequately prepare its defence and to see and respond to evidence put forward against it require disclosure of the identity of any witnesses providing evidence against it in these proceedings. Guatemala notes that both U.S. and Guatemalan labour statutes require disclosure of the identity of witnesses providing evidence in tribunal proceedings.11 It points to Rule 35 of the International Centre for Settlement of Investment Disputes (ICSID) Rules of Procedure for Arbitration Proceedings, which gives parties the right to examine witnesses and experts.12 Guatemala argues that it is impossible to exercise such rights unless the identity of witnesses is disclosed to the examining party. Guatemala notes in addition that Article 6.3 of the European Convention on Human Rights gives persons the right to examine or have examined witnesses testifying against him or her, and argues that this right applies in both civil and criminal proceedings.13 Finally, Guatemala cites the Contador Velasco decision of the Court of Arbitration for Sport noting that admitting anonymous evidence potentially infringes the right of a party to be heard and to a fair trial.14 Guatemala notes that the confidentiality provisions of the Rules would prevent disclosure of the identities of the workers in question and submits that the purpose of the redactions is simply to obstruct the preparation of its defence.
If I understand all this correctly, the U.S. submitted evidence in the form of witnesses who alleged labor law violations in Guatemala, but redacted the names. Guatemala said that it could not defend itself without information on these people.
The Panel ruled as follows:
41. A Party to dispute settlement proceedings under Chapter 20 of the DR-CAFTA has a prerogative to submit such evidence as it sees fit in support of its position. A corollary to this proposition is that a Party may choose not to submit particular evidence. In other words, a Party may choose which evidence to submit and which evidence not to submit. The first issue before us is as follows: when a Party submits evidence in the form of witness declarations, do the Rules require that it also submit personal identifier or other information related to such declarations?
42. The answer is no. The Rules do not preclude a Party from submitting evidence in the form of anonymous witness declarations. Nor do they require a Party to supplement the submission of witness declarations by providing personal identifier or other information that could help to put such declarations in context. In fact, the Rules impose no affirmative obligation on CAFTA disputing Parties to assist the fact-finding process. In this regard, the CAFTA Rules differ from the WTO Dispute Settlement Understanding, of which the CAFTA Parties unquestionably were aware when they drafted the Rules. The WTO DSU contains, in its Article 13, a duty of collaboration whereby a disputing Party may have an obligation to produce certain information upon request by a dispute settlement panel even if the Party had not chosen to submit such information in the first instance. 28 The DR-CAFTA Rules contain no corresponding provision.
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44. The United States has provided to the panel and to Guatemala all information designated as confidential in its initial written submission. The redaction of information from documents presented to both the panel and the other disputing Party is not a subject addressed by these Rules. The Rules therefore provide the panel with no authority to instruct the United States to provide the panel and Guatemala with unredacted copies of the exhibits submitted in support of its initial written submission. Nor do the Rules provide any basis upon which the panel could declare that the initial written submission of the United States was not properly submitted simply because it contains exhibits from which the United States has redacted information.
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70. We therefore cannot conclude that all or any of the redactions to documents submitted by the United States with its initial written submission deprive Guatemala of an adequate opportunity to respond to the evidence of the United States or to defend itself. We therefore decline to instruct the United States to produce unredacted copies of those documents or to strike them from the record. We also conclude that there is no basis for an extension of time in addition to the extension that we discuss in section 2 of this statement of reasons, below.
71. The panel will assess what effects the redactions have, if any, on the probative value of the exhibits submitted by the United States in the course of dealing with the dispute on its merits. The panel will keep under review the question of the treatment of evidence from anonymous sources and may revisit the question of the admissibility of such evidence at a later stage of the proceedings. In the event that Guatemala does challenge allegations of fact made by the United States that are supported by anonymous evidence, it will be appropriate at that point for the panel to consider whether to adopt a procedure to investigate allegations by the United States contained in anonymous declarations that are disputed by Guatemala, whether to exclude anonymous evidence, or what weight, if any, should attach to anonymous evidence in the fact-finding process. As discussed above, the Rules do not contemplate the examination of witnesses; the right to examine witnesses is not necessarily required for due process in these proceedings, provided that unexamined evidence going to a material question of fact can be discounted or excluded from the record where appropriate; and in any event the panel has no power to compel the disclosure of information that a disputing Party chooses to withhold from it. By extension, the panel has no power to compel the attendance of a witness at a panel hearing. The question potentially raised by the anonymity of witness statements is therefore simply how the panel should treat such evidence, and in particular whether the panel should seek the cooperation of the disputing Parties to examine it, exclude it from the record, discount the weight attached to it, or simply treat it with caution. That question would have to be considered in light of the particular disputed questions of fact and evidence before the panel.
This issue was further discussed in the U.S. rebuttal submission, and subsequently, on March 19, Guatemala raised a number of due process concerns in a letter, where it said:
The United States has argued that the information that it has redacted from the exhibits submitted to the Panel and to Guatemala - information that forms the fundamental basis of its claims - cannot be disclosed to Guatemala or even to this Panel. Yet, in its rebuttal submission, the United States acknowledges providing the non-redacted versions of the Exhibits to the Secretary General of ICSID and her staff. The ICSID Secretary-General and her staff are members of the general public for purposes of this dispute.1 By voluntarily disclosing this information to members of the general public, the United States should be precluded from continuing to assert its claim of confidentiality before this Panel. There is now absolutely no basis for the United States to continue to refuse to provide the information to this Panel and to Guatemala.
Not the kind of issue trade disputes usually face, but very interesting nonetheless.
