Common use of In US Clause in Contracts

In US. Cotton Yarn, the US determination under Article 6.2 had been based on contemporaneous industry data regarding the market situation; in the Panel proceeding, Pakistan presented later official data concerning the same facts, in order to demonstrate that the industry data were flawed. The Panel considered those data. On appeal, the Appellate Body found that this action exceeded the Panel’s mandate under Article 11 of the DSU:: "[A] panel reviewing the due diligence exercised by a Member in making its determination under Article 6 of the ATC has to put itself in the place of that Member at the time it makes its determination. Consequently, a panel must not consider evidence which did not exist at that point in time. A Member cannot, of course, be faulted for not having taken into account what it could not have known when making its determination. If a panel were to examine such evidence, the panel would, in effect, be conducting a de novo review and . . . . making its projections with the benefit of hindsight and would, in effect, be reinvestigating the market situation and substituting its own judgment for that of the Member. . . . Moreover, if a Member that has exercised due diligence in complying with its obligations of investigation, evaluation and explanation, were held responsible before a panel for what it could not have known at the time it made its determination, this would undermine the right afforded to importing Members under Article 6 to take 29 Panel Report, US – Underwear, para. 7.26.