Research On The Burden Of Proof In WTO Dispute Settlement Proceedings

Burden of proof, which has a great influence on decisions of cases, plays an increasingly important role in the reports of the WTO Panel and the Appellate Body. But the rules in WTO dispute settlement system are generally silent on questions of evidence. Therefore, the Panel and Appellate Body develop a set of rules on burden of proof in dispute settlement practices. This paper applies the empirical analysis method and seeks to summarize those rules from reports. Moreover, with the relevant theories of evidence law in both common law and civil law systems, it examines the general functioning of burden of proof in violation complaint, including the general rules of allocation of the burden of proof, the establishment of the prima facie case and shifting of the burden of proof under the prima facie case.Apart from the introduction and conclusion, the thesis contains three chapters:In chapter1, it considers the connotation of burden of proof and its evolution from domestic law to WTO rules. Firstly, it combs the connotation of burden of proof in both common law and civil law systems; secondly, it illuminates characteristics of the connotation of burden of proof in WTO dispute settlement proceedings.In chapter2, it discusses the general rules of the allocation of the burden of proof from GATT to WTO. Firstly, it combs two rules developed in GATT dispute settlement practices by case analysis; secondly, it concludes the rules in WTO dispute settlement proceedings from6aspects and clarifies the improvement compared with those in GATT.In chapter3, it analyses the prima facie case and its impact on burden of proof. Firstly, it clarifies the features of the prima facie case by comparing with those concepts in domestic law. Secondly, it examines the establishment of the prima facie case from5angles with cases. Thirdly, it considers the nature and the functioning models of the prima facie case in order to exam whether it will lead to the shifting of the burden of proof. Lastly, it appraises the prima facie case and discusses its future.It is concluded that not only burden of proof in WTO dispute settlement proceedings assimilates the general theories in domestic law, but it develops its own characteristic:the unique conception of the burden of putting forward evidence and the standard of proof, namely the prima facie case. Although the establishment of the prima facie case shifts the burden of proof, this paper holds that it will not affect the allocation of the burden of proof in essence.