A Study On Rules Of Burden Of Proof Of WTO Dispute Settlement Mechanism

Since the establishment of World Trade Organization (WTO), it's Dispute Settlement Mechanism (DSM) has accepted 363 cases, and becomes one of the most effective mechanisms to settle trade disputes in the world at present. Now China has become the second trade country in the world, and confronted new kind of trade disputes, from anti-dumping field that aiming at other country's policy to aim at our country's policy such as in case of value-added tax on integrated circuits and case of measures affecting imports of automobile parts. Thus it's time for us to use DSM to protect our country's profits. And during the dispute settlement, rules of burden of proof are very important. It not only concerns the realization of substantive rights of dispute parties, but also concerns the final result of cases. This dissertation focuses on rules of burden of proof of DSM. Relying on prevailing research materials and practical experience especially, this study intends to make an in-depth and systematic exploration of rules of burden of proof in DSM through analytic deduction and comparative analysis. On the basic, the author proposes some suggestion for how our country to utilize rules of burden of proof in DSM. The author hopes this study may nonetheless contribute for our country to take part in DSM actively to protect our country's profits and to push the development of the mechanism.This dissertation comprises four chapters, in addition to a preface and epilogue, totaling over 38,000 words.Chapter 1 concerns brief statement of burden of proof in international litigation system. Burden of proof system deals with two problems: distribution of burden of proof and standard of proof. On the basic, this article introduces two problems concerned with burden of proof: one is prima facie evidence, involving of prima facie rule in DSM; the other is presumption, involving of rule of different cause of action different burden of proof.Chapter 2 focuses on general rules of burden of proof of DSM. There is no clear and definite provision on burden of proof in Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), so rules of burden of proof mostly are analyzed and deducted from DSM cases. Specifically speaking, general rules include three rules: one is rule of burden of proof borne by claimant, a basic rule of burden of proof in WTO; the second is prima facie rule, a characteristic rule of burden of proof in WTO; the third is rule of different cause of action different burden of proof, that is burden of proof in violation complaint and non-violation complaint is different.Chapter 3 elaborates on special rules of burden of proof of DSM, especially rules of burden of proof in exception. Its development process, deducted from DSM cases, is from the theory of rule-exception to the theory of affirmative claim/defense. The author believes that two problems exist in the theory of rule-exception. One is that every burden of proof of exception is pressed on appellee, which is lack of flexibility; the other is such higher demand is asked in standard of proof that the function of environmental protection of general exception can't be produced. However, the theory of affirmative claim/defense solves the two problems mentioned above in some sense. Additionally, other special rules of burden of proof, including provisions on burden of proof in concrete agreements and special rules decided by DSM cases.Chapter 4 concerns reviews for rules of burden of proof of DSM. Firstly, through comparison of rules of burden of proof in DSM and the two great legal systems, the author believes that there are two differences between them: differences in cause of action and prima facie rule. On the basic, the author put forward some views on how China to utilize rules of burden of proof of DSM by analyzing those cases China participated in since China joined WTO.