The burden and order of proof in WTO claims: evolving issues

Zeina Ahmad,Bashar H Malkawi

doi:10.1108/ijlma-10-2016-0090

Abstract

PurposeThe World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof under WTO dispute settlement mechanism.Design/methodology/approachThe paper examines the rule of “prima facie” in WTO jurisprudence. To do so, the first part will focus on the development of dispute settlement within WTO. The second part is divided into several subsections that will focus on the burden of proof concept, burden of proof in common law, burden of proof in civil law and the prima facie standard.FindingsThe DSU does not explicitly regulate how to allocate the burden of proof, but panels and the AB needed to address that issue early in their history. Despite this, all aggrieved parties to establish a prima facie case before the case can become the subject of a panel hearing. There is a need to adopt a burden of proof standard that assesses evidence on the basis of preponderance of the available evidence rather than on the basis of a party’s failure to adduce evidence to back up or dispute a claim.Originality/valueThe paper is an attempt to address an important issue on the presentation of evidence and proof in international litigation, i.e. WTO.

Highlights

Burden of proof, in the context of international adjudication, denotes the party to a dispute who has the greatest risk of loss in the event that a fact or a proposition is not proven (Kurleka and Turunen, 2010)
The objective of the present study is to critically evaluate the application of the concept of burden of proof under World Trade Organization (WTO) dispute settlement mechanism
Burden of proof in World Trade Organization law When instituting disputes under the WTO dispute settlement mechanisms, parties must adhere to the rules set out in article 3(7) and article 3(8) of the DSU

Summary

Introduction

In the context of international adjudication, denotes the party to a dispute who has the greatest risk of loss in the event that a fact or a proposition is not proven (Kurleka and Turunen, 2010). The general rule in issues of burden of proof is that the party seeking to prove a fact must bear the responsibility of adducing the nature of evidence that will convince the tribunal to accept his or her position regarding the issue in dispute and provide an award in his/her favor In many cases of international adjudication, the parties seeking to establish a claim often do not have access to the types of evidence that will convince the tribunal to rule in their favor and make a suitable award. Common law attempted to remedy the situation through the introduction of concepts such as res ipsa loquitur in which Burden and the burden shifts to the party with easy access to the evidence (Buckley and Okrent, 2003). order of proof

Objectives

Conclusion