A Study On Application Of Burden Of Proof Of Voilation Complaint In WTO Dispute Settlement Mechanism

Since China's entry into World Trade Organization(WTO) in 2001, China not only enjoys the preference treatment , but also faces challenge brought by the multilateral trade mechanism. As of April 30, 2008, the cases of WTO dispute settlement directly involving China are up to eight, six of which are complaints from other countries and being dealt with excepting one which has been settled through negotiation. In addition, on 14 September 2007, China requested consultations with the United States government on the ground of violation of law regarding investigation of our country's coated free sheet paper as an independent party It seems that China comes to adopt an active attitude towards participating in WTO dispute Settlement Mechanism("DSM"). Thus it is time for us to utilize DSM to protect our country's profits. And during the process of dispute settlement, rules of burden of proof are very important. It concerns not only the realization of substantive rights of dispute parties, but also relates to the final results of cases. Selecting burden of proof of violation complaints in WTO dispute settlement mechanism as a subject and relying on the prevailing research materials and practical experience, the dissertation intends to make an in-depth and systematic exploration of the application of burden of proof in the context of violation complaints through analysis of Panel and Appellate Body Report by empirical study. The author hopes this study maycontribute to help our country to take part in DSM actively , maintain our country's interests and to push the development of the mechanism. This dissertation comprises four chapters, in addition to a preface and epilogue, totally over 39,000 words.Chapter 1 concerns analysis of rules of burden of proof in the context of violation complaints under WTO dispute settlement mechanism. Firstly, through brief analysis of the concept of burden of proof in WTO dispute settlement mechanism, the author believes the meanings of burden of proof , while not expressly defined in the Understanding on Rules and Procedures Governing the Settlement of Dispute(DSU), are well established in WTO jurisprudence. On this basis, relevant rules concerning burden of proof in the context of violation complaints deducted from DSM cases are decided, of which are the rules of allocation of burden of proof: who asserts must prove and rules of standard of proof: a prima facie case.Chapter 2 concerns study on legal issues arising from the application of rules of allocation of burden of proof: who asserts must prove, especially struggling to define affirmative defenses. It is well-established that language standard, pyramid standard, positive rules standard and revised positive standard have been applied to define affirmative defense in WTO practice. The pyramid standard has been abandoned at the present and language standard is only regarded as a starting point for research of defining the defense. Furthermore, the application of positive rules and revise positive rules is far from perfect. On this basis, scholars from all over the world seek way to resolve the problems and have provided some reasonable suggestion. In addition, the author summarizes other special rules including the allocation of burden of proof deducted from WTO panel procedure and implement procedure.Chapter 3 concerns study on legal issues arising from application of rules of proof of standard: prima facie case, especially focusing on general issues arising from"factorfinder" and claimant. As far as factorfinder is concerned, it is important for us to know when the factorfinder decides whether a prima facie case is established by claimants, how to evaluate the evidences adduced by claimants and what kind of constraint the factfinder may have during the course of ruling of a price facie case. For claimants, it is helpful for us to know who must establish a prima facie case, when adduct or rebut it and how to adduct sufficient evidences to raise it. In addition, two relevant issues concerning establishment of a prima facie case are introduced, one is effect of proof directly involving the establishment of a prima facie case raising by claimants, the other of which is proof of standard required under special provisions so as to provide guide for similar cases.Chapter 4 concerns reviews ofrules ofburden of proof in the context of violation complaints of DSM and its utilization by China. Firstly, through brief review of two rules of burden of proof in the context of violation complaints of DSM, the author believes that rules of burden of proof, while it is far from perfect, conforms to special construction of WTO in general and is helpful to settle disputes. On this basis, the author puts forward some suggestions on how to utilize rules of burden of proof in DSM by analyzing those cases involved by China since its entry into WTO.