A Study On Rules Of Burden Of Proof Under The WTO Dispute Settlement System

As the most important international organization all over the world, the World Trade Organization (WTO) has played an extremely important role in the maintenance of international trade order and the promotion of international economic development since its inception. The first WTO Director - General Renato Ruggiero once stated that "No review of the achievements of the WTO would be complete without mentioning the Dispute Settlement system, in many ways the central pillar of the multilateral trading system and the WTO's most individual contribution to the stability of the global economy". Since the formal establishment of WTO in 1995, the WTO Dispute Settlement System (DSS) has played a vital role in effectively resolving international trade disputes as well as in maintaining the international trade order. The WTO DSS has become the world's "most effective" international trade dispute settlement body as a result of its powerful resolution to international trade disputes among Members. Due to its important role in the smooth running of the WTO, the DSS has attracted a lot of concern from the WTO member governments as well as from the legal, economic scholars and many governmental agencies.In view of the similarities between WTO dispute settlement procedures and the domestic proceedings, it is natural to find some procedural issues which appear frequently in the domestic proceedings in the WTO procedures, such as the required specificity of a claim and issues relating to evidence - burden of proof, handling of confidential information, as well as issues concerning facts and law. These problems may be treated in the same or different way as they are in the domestic courts. This dissertation chooses the rules of burden of proof under the WTO DSS as the main topic and gives a thorough research on this important issue.Burden of proof, an extremely important terminology in procedure law, is the linkage between the facts presented by the disputed parties and the decision of the judges. It tells us which party in litigation - plaintiff or defendant, must provide proof of a particular issue, and undertake the risk of loosing the case if sufficient proof has not been gave. Because of its significant influence on the litigation process and the outcome of the case, issues of burden of proof have caught widespread attention from both domestic and international dispute settlement procedures including WTO.As the core of the rules of evidence under WTO DSS,rules of burden of proof has a crucial role in ensuring the successful settlement of WTO disputes. In case that evidence submitted by both sides is evenly matched, the party undertaken the burden of proof will bear the risk of losing. As a result, the application of the rules of burden of proof may directly determine the final outcome of the case. Hence, it is vey helpful to fully understand and to seriously study the practices with respect to the rules of burden of proof under the WTO DSS. It helps us to understand the WTO DSS further, which will help China to more effectively use the system to safeguard our legitimate rights and to promote the reform and healthy development of the world multilateral trading system. Nevertheless, the research on this issue is far from sufficient at present. Therefore, this article chooses the unique perspective of "rules of burden of proof" to carry out a study on the WTO DSS, hoping to arose the academic attention to this problem and to make a modest contribution to related research.This dissertation is composed of three parts: "Introduction", the "Text" and "Epilogue".The "Introduction" simply introduces the background, the meaning and the research status of the topic, as well as the research methods, writing framework, innovation and the meaning of this dissertation. ChapterⅠ- Overview of the Rules of Burden of Proof under the WTO DSS, consists of 3 sections. Section I, "Basic Information of WTO DSS ", gives a brief introduction to the development of WTO DSS: the entire course of evolution from the early dispute settlement in international trade to the dispute settlement system in ITO, then to the WTO's predecessor GATT, and ultimately to the formation of WTO DSS. This section also addresses the dispute settlement rules, the type of disputes and its resolutions, dispute settlement body, dispute settlement procedures under the WTO DSS. SectionⅡ, "Basic Theory of Burden of Proof", introduces the formation of the system of burden of proof, the meaning and the nature of burden of proof, as well as the unique connotation of "burden of proof" under the WTO DSS. SectionⅢ, "Characteristics of Rules of Burden of Proof under the WTO DSS", sums up four main features of the rules of burden of proof under the WTO DSS.ChapterⅡ– Overview of Rules of Allocation of Burden of Proof under the WTO DSS, consists of 2 sections. Section I introduces the theories and practices of domestic civil litigation and international dispute settlement bodies regarding the allocation of burden of proof, which gives detailed introduction to the related theories in Roman law, civil law and common law systems, as well as in international dispute settlement bodies. SectionⅡbriefly discusses the basic operation of rules of allocation of burden of proof under the WTO DSS. The allocation of burden of proof under the WTO DSS is always controversial. In the long-term dispute settlement practices, the Appellate Body has established 3 specific rules for allocation of burden of proof.ChapterⅢ- General Rule for Allocation of Burden of Proof under the WTO DSS, consists of 3 sections. This chapter discusses the general rule for allocation of burden of proof, "the burden of proof rests upon the complainant". Section I, "Establishment of the Rule", discusses the relevant practices establishing the rule in GATT and WTO. SectionⅡ, "Application of the Rule in WTO Dispute Settlement Practices", sums up the application of the rule in the WTO dispute settlement practices - in violation cases, non-violation cases, implementation procedures and in arbitration proceedings. SectionⅢ, "Assessment of the Rule", analyzes the basic mode of operation of the rule, as well as the rules to shift the burden as a result of the application of the rule of "prima facie case" and "presumption". ChapterⅣ–Exceptional Rule for Allocation of Burden of Proof under the WTO DSS, consists of 3 sections. This chapter discusses the exceptional rule of allocation of burden of proof, "the burden of proof for exceptions/affirmative defenses rests upon the respondent". Section I, "Basic Operation of the Rule", briefly introduces the basic application of the rule. Section II, "Established Exceptions/Affirmative Defenses in GATT and WTO", discusses 10 established exceptions/affirmative defenses and related cases one by one. Section III, "Assessment of the Rule", gives definition to "exception" and "affirmative defense", and clarifies their relationship, as well as assesses the identification criteria of them.ChapterⅤ–Special Rule for Allocation of Burden of Proof under the WTO DSS, consists of 3 sections. This chapter discusses the special rule for allocation of burden of proof, "reversal of burden of proof". Section I, "Agreement on Agriculture, Art.10.3", discusses the reversed burden of proof under Article 10.3 of the Agriculture Agreement. Section II, "DSU 3.8", discusses the reversed burden of proof under Article 3.8 of DSU. Section III, "Assessment of the Rule", assesses the special rule of allocation of burden of proof.The "Epilogue" sums up and assesses the rules of burden of proof under the WTO DSS overall.Based on the unique perspective of "burden of proof", this dissertation intends to undertake a comparative study on a large number of WTO cases and sums up the core content of the rule of evidence under the WTO DSS–specific rules of allocation of burden of proof. As a general rule, "the burden of proof rests upon the complainant"; as an exceptional Rule, "the burden of proof for exceptions/affirmative defenses rests upon the respondent"; finally, take "reversed of burden of proof" as a special rule. These 3 rules constitute the system of the rules of burden of proof under the WTO DSS. Through analyzing these 3 specific rules, we can see the law of the rules of burden of proof under the WTO DSS -- As there is no explicit rule on the issue of burden of proof in GATT and WTO Agreements (including the DSU), the existing rules related were completely developed by the GATT/WTO panels and the Appellate Body in complicated dispute settlement practices, which are typical "case law". Theories on rules of burden of proof under the WTO DSS and the specific allocation rules thereof are not entirely "invention" by the Panel and the Appellate Body. On the contrary, they rely on the relevant theories and practices in domestic law and international dispute settlement bodies as a basis, absorbing the "principles and spirit" thereof, and are "improved" products in the context of the WTO DSS. Although they are reasonable on the whole, there are still some problems and imperfections, such as the ambiguous meaning of burden of proof, the confusing rules of allocation of burden of proof, as well as the absence of a clear, specific and uniform allocation standard.This dissertation addresses the "significant" issue of rules of burden of proof under the WTO DSS, which has not yet been fully examined by the domestic scholars. The importance of the WTO in the international trade and economics, as well as the increasingly important role of WTO DSS in resolving international trade disputes, makes "burden of proof" an issue of high priority in the study of WTO DSS, which is a "legal tool" directly related to the outcome of the WTO cases. Based on theories relating to burden of proof in evidence law, this dissertation gives an intensive analysis to the WTO cases in the context of the DSS, and sums up the general rules and the special circumstances. The author hopes that the research methods and conclusions of this dissertation provide some valuable new ideas for future studies.