Document jNzOndZnzZq32E4p8Z23MG9Xp

Page 45 have already noted, "(w]e cannot second-guess the Panel in appreciating either the evidentiary value of ... studies or the consequences, if any, of alleged defects in [the evidence]". [FN175] And, as we have already said, in this case, the Panel's appreciation of the evidence remained well within the bounds of its discretion as the trier of facts. 178. In addition, in the context of the SIS Agreement, we have said previously, in European Communities - Hormones, that "responsible and representative governments may act in good faith on the basis of what, at a given time, may be a divergent opinion coming from qualified and respected sources." [FN176] (emphasis added) In justifying a measure under Article XX(b) of the GATT 1994, a Member may also rely, in good faith, on scientific sources which, at that time, may represent a divergent, but qualified and respected, opinion. A Memloer is not obliged, in setting health? policy, automatically to follow what, at a given time, may constitute a majority scientific opinion. Therefore, a panel need not, necessarily, reach a decision under Article XX(b) of the GATT 1994 on the basis of the "preponderant" weight of the evidence. *50 179. With regard to Canada's argument that certain of the experts lacked expertise in "controlled use", we note that v from the beginning of the process or the selection of experts, the Panel made clear that it wished to consult experts on the "effectiveness of the controlled use of chrysotile." [FN177] The selection of the experts was the subject of a rigorous procedure which involved the consultation of five institutions with experience in this field and also of the parties. [FN3.78] At no stage did Canada object to the selection of any of the experts, nor indicste that any of them was unqualified to deal witch issues relating to "controlled use'. [FN179] We also note that the experts were ^instructed by the Panel to answer only those questions that fell within their area of expertise. [FN180] As Canada indicates, several experts indicated that particular questions, or parts of questions, posed to them went beyond their area of expertise. [FN181] 180. In these circumstances, we have serious difficulty accepting that the Panel failed to make an objective assessment by relying on experts who had no expertise. The Panel was entitled to assume that the experts possessed the necessary expertise to answer the questions, or parts of questions, they chose to answer. In other words, it was not incumbent on the Panel expressly to confirm, with respect to svery opinion expressed by each expert, that the expert possessed the necessary expertise to give that particular opinion. If Canada thought that one of the experts did not possess the expertise necessary to answer certain questions posed to him, Canads should have raised those concerns, either with the expert, at the meeting the Panel held with the parties and the experts on 17 January 2000, or with the Panel at some other time. We observe, finally, that, where an expert declined to answer a specific question, or part of a question, because of a professed lack of expertise, the Panel had no opinion from that expert on which to rely. 181. For these reasons, we decline Canada *s appeal on Article 11 of the DSU. VIII. Article XXIII:1(b) of the GATT 1994 182. Before the Panel, Canada claimed, uncSer Article XXIII:1(b) of the GATT 1994, that the application of the measure at issue nullified or impaired benefits accrruing to Canada. The European Communities raised preliminary objections, arguing on two grounds that the measure falls outside the scope of application of Article XXIII:1(b). First, the European Communities contended that Article XXIII:l(b) only applies to measures which do not otherwise all under other provisions of the G^.TT 1994. [FN182] Second, the European Communiti_es argued that, while it may be possible to have "legitimate expectations" in connection with a purely "commercial" measvare,