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

The rules of burden of proof under WTO dispute settlement, at the guidance of principles of"Understanding on Rules and Procedures Governing the Settlement of Disputes"evolved through the practice of WTO panels and appellate bodies. It is self-evident that the rules of burden of proof are really important under WTO dispute settlement system. During the process of dispute settlement, the rules on burden of proof are really significant, which not only concerns the substantive rights of parties to dispute, but also affects the final results of the cases. Since no stipulation of burden of proof could be found in the agreements of WTO, the relating rules on burden of proof are created by practices of panels and appellate bodies hereby. In the process of dispute settlement, a fundamental rule is that the party who makes an allegation shall bear the burden to produce evidence and prove it. The standard of the evidence is called"prima facie case", which is, in essence, a sort of constructive evidence rather than a conclusive one. The dispute settlement mechanism combines the principle of evidence shifting with the presumption technique, thus the standard of proof is lowered. The panel is entitled to determine whether the burden of proof is settled. The inherent requirement of burden of proof lies in producing sufficient evidence and persuading the panel. The distinction between the violating and non-violating litigation, the party invoking exception rules will affect the allocation of proof and standard of proof. The articles concerning burden of proof provided in"Agreement on Agriculture"and the"TRIPS"which concluded in Uruguay Round constitute the special rules. Whether parties to dispute have successfully produced the adequate evidence to support its claim will be determined by panels. And the discretion of panel will be supervised by appellate body hereby.In the practice of WTO dispute settlement system, the old"power-oriented"system is replaced by"rule-oriented"system. The burden of proof is often used as an attack means as developed countries take advantage of its power, economy and experience in the dispute settlement to debate. However,developing countries have to face the adverse situation in burden of proof. Thus, constructing rules of burden of proof fairly and justly, so as to enhance the interest of developing countries is an eternal objective. What is more, rules of burden of proof have some other deficiencies such as weakness of operation and prima facie case.The dispute settlement should have a standing agency to conduct fact-finding in order to correct evidentiary deficiencies in submissions by members to panels. Revising the articles of"Understanding on Rules and Procedures Governing the Settlement of Disputes"and establishing the specific standard of"prima facie case"will greatly balance the interests of between developed members and developing ones, between complainants and respondents.