Allocating the burden of proof in WTO disputes: A critical analysis

Journal of International Economic Law

Volumn 9, Issue 3, 2006, Pages 615-656

  Grando, Michelle T ^a,b  

^a UNIVERSITY OF TORONTO   (Canada)

^b GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33749005119     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgl020     Document Type: Review

References (233)

1. Owing to variations in legal procedure - such as the operation of the pleading system and the organization of the trial system - the concept of the burden of proof has evolved differently in the civil law and the common law legal systems. In contrast to the common law, in the civil law system the phrase 'burden of proof' has only one meaning. It refers to the duty of each party to prove their claims. In the common law system, the concept has been divided into two ideas. The 'burden of going forward' refers to the burden of producing evidence that would allow the court to consider the proponent's case and possibly rule in its favour. The 'burden of persuasion' refers to the idea of actually persuading the court to find in favour of the proponent of the evidence. The distinction developed in the common law finds no place in international law. The definition of the burden of proof adopted in this article is the one described above.
2. It is important to note that in international law the parties to a dispute have a duty to cooperate in placing evidence before international tribunals. This duty is independent from the burden of proof in the sense that it does not interfere with the allocation of the burden of proof. However, if both parties cooperate in placing evidence before the tribunal, it is less likely that the tribunal will need to resort to the burden of proof. For more information on the duty of collaboration, see Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (The Hague: Kluwer Law International, 1996) 119 ff.
3. In addition, knowledge about the allocation of the burden of proof may also play a role in the decision of the parties to pursue litigation.
4. The Appellate Body has recognized this difference of meaning. See Appellate Body Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, at para 157.
5. For example, see Claus-Dieter Ehlermann, 'Six Years on the Bench of the "World Trade Court": Some Personal Experiences as Member of the Appellate Body of the World Trade Organization', in F. Ortino and E.-U. Petersmann (eds), The WTO Dispute Settlement System 1995-2003 (The Hague: Kluwer Law International, 2004) 499, at 511 (Ehlermann explains that questions related to the burden of proof have been almost absent in proceedings before the European Court of Justice).
6. See Panel Report, United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996;
7. Panel Report, United States - Restrictions on Imports of Cotton and Man-made Fibre Underwear, WT/DS24/R, adopted 25 February 1997.
8. From the entry into force of the WTO agreements up until June 2006, there have been 130 Panel Reports issued, including reports under Article 21.5 of the DSU. This article refers to 20 Panel Reports and the corresponding Appellate Body Reports where relevant.
9. Article 10.3 of the Agreement on Agriculture is one of the few provisions in the agreements, which addresses the question of the burden of proof. According to Article 10.3, '[a]ny Member which claims that any quantity exported in excess of a reduction commitment level is not subsidized must establish that no export subsidy, whether listed in Article 9 or not, has been granted in respect of the quantity of exports in question'. For interpretation of Article 10.3 of the Agreement on Agriculture, see Panel Report, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/ DS103/R, WT/DS113/R, adopted 27 October 1999, at para 7.33;
10. Panel Report, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products - Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/RW, WT/DS113/RW, adopted 18 December 2001, at para 6.3;
11. Panel Report, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products - Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/RW2, WT/DS113/RW2, adopted 17 January 2003, at paras 5.15-5.18;
12. Appellate Body Report, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products - Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/AB/RW2, WT/DS113/AB/RW2, adopted 17 January 2003, at para 69;
13. Panel Report, United States - Tax Treatment for "Foreign Sales Corporations," WT/DS108/R, adopted 20 March 2000, at para 7.136;
14. Panel Report, United States - Subsidies on Upland Cotton, WT/DS267/R, and Corr.1, adopted 21 March 2005, at paras 7.793 ff;
15. Appellate Body Report, United States - Subsidies on Upland Cotton, WT/ DS267/AB/R, adopted 21 March 2005, at para 3143 ff.
16. Appellate Body Report, United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R and Corr.1, adopted 23 May 1997, at 14. As it will be discussed in the next section of this article, this is one of the formulations of the rule actori incumbit probatio.
17. See Joost Pauwelyn, 'Evidence, Proof and Persuasion in WTO Dispute Settlement: Who Bears the Burden?', 1 Journal of International Economic Law (1998) 227, at 235.
18. Panel Report, US - Gasoline, above n 6, at para 6.20;
19. Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996.
20. I will refer to this kind of provision as 'exception provision' or 'excepting provision'.
21. I will refer to this kind of provision as 'a provision that excludes the application of another' or 'excluding provision'. A provision that excludes the application of another has also been called 'conditional right'. See Steve Charnovitz et al., 'The Appellate Body's GSP Decision', 3(2) World Trade Review (2004) 239, at 257.
22. Pen-Sai Tan, United States - Measures Affecting Imports of Woven Wool Shirts and Blouses (1998), http://www.ejil.org/journal/Vol9/No1/ (visited 20 November 2005)
23. (arguing, e.g., that it is difficult to distinguish US - Wool Shirts and Blouses from other cases where the rule-exception was applied);
24. Peter Lichtenbaum, 'Procedural Issues in WTO Dispute Resolution', 19 Michigan Journal of International Law (1998) 1195, at 1250
25. (arguing that the decision of the Appellate Body in US - Wool Shirts and Blouses left murky the manner in which Members and future panels should determine whether a particular provision or agreement is an exception or whether there are other situations where the complaining country does not have the burden of proof);
26. Lorand Bartels, 'The WTO Enabling Clause and Positive Conditionality in the European Community's GSP Program', 6 Journal of International Economic Law (2003) 507, at 517 (arguing that the Appellate Body has characterized provisions that exclude the application of others in a confusing number of different ways).
27. For example, see Henrik Horn and Joseph H. H. Weiler, 'European Communities - Trade Description of Sardines: Textualism and its Discontent', in H. Horn and P. C. Mavroidis (eds), The WTO Case Law of 2002 (Cambridge: Cambridge University Press, 2005) 248, at 252;
28. William Davey, 'The WTO Dispute Settlement System: The First Ten Years', 8 Journal of International Economic Law (2005) 17, at 22.
29. Appellate Body Report, US - Wool Shirts and Blouses, above n 9, at 16.
30. US - Wool Shirts and Blouses, Ibid.
31. With respect to Article XX of the GATT, see, e.g., Panel Report, US - Gasoline, above n 6;
32. Appellate Body Report, US - Gasoline, above n 11. With respect to Article XIV of the GATS,
33. see Appellate Body Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005.
34. See Appellate Body Report, US - Wool Shirts and Blouses, above n 9 (in obiter dicta).
35. See Appellate Body Report, Turkey - Restrictions on Imports of Textile and Clothing Products, WT/ DS34/AB/R, adopted 19 November 1999.
36. See Panel Report, Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005.
37. See Appellate Body Report, European Communities - Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004.
38. See Appellate Body Report, Brazil - Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999.
39. See Appellate Body Report, United States - Tax Treatment for "Foreign Sales Corporations" - Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002.
40. See Panel Report, US - Upland Cotton, above n 8.
41. See Appellate Body Report, US - Wool Shirts and Blouses, above n 8.
42. See Panel Report, Canada - Patent Protection of Pharmaceutical Products, WT/DS114/R, adopted 7 April 2000.
43. See Appellate Body Report, European Communities - Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002.
44. See Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/ AB/R, WT/DS48/AB/R, adopted 13 February 1998.
45. The Oxford English Dictionary (2nd edn, Oxford: Claredon Press, 1989) Tomo V, at 498.
46. See Gabrielle Marceau and Cornelis Reiman, 'When and How is a Regional Trade Agreement Compatible with the WTO?', 28(3) Legal Issues of Economic Integration (2001) 297, at 313,
47. for the view that the Appellate Body in Turkey - Textiles found that Article XXIV of the GATT is an exception. The Appellate Body did not expressly say that Article XXIV.5 of the GATT is an exception. It stated that Article XXIV.5 could be used as an affirmative defense.
48. Panel Report, United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R, adopted 23 May 1997, at para 7.16.
49. Panel Report, Brazil - Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, at paras 7.50 and 7.54;
50. Appellate Body Report, Brazil - Aircraft, above n 23, at para 139.
51. Panel Report, US - Upland Cotton, above n 8, at paras 7.275-7.277.
52. US - Upland Cotton, Ibid, at para 7.279.
53. Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/DS48/R/CAN, adopted 13 February 1998, at para 8.90.
54. Appellate Body Report, EC - Hormones, above n 29, at para 104.
55. Appellate Body Report, EC - Sardines, above n 28, at para 275.
56. Appellate Body Report, EC - Tariff Preferences, above n 22, at para 90. In a dissenting opinion, one of the members of the Panel concluded, essentially based on the wording of the Enabling Clause, that there is no general rule-exception relationship between the Enabling Clause and Article I. According to the dissenter: The words 'Notwithstanding the provisions of Article I of the General Agreement. . .' indicate the relationship between the Enabling Clause and Article I. 'Notwithstanding' means nevertheless or in spite of a hindrance of some kind, in this case in spite of the commitments Members had made under Article I. It is a traditional legal term that, even when standing alone, has a long history. The word derives from the Latin term 'non obstante', indicating that the king or ruler had granted a licence, charter or some other right despite the law, not as an exception to the law.
57. (Panel Report, European Communities - Conditions for the Granting of Tariff Preferences to Developing Countries, WT/ DS246/R, adopted 20 April 2004, at para 9.13.)
58. It is worth noting that the Panel in US - Upland Cotton examined the ordinary meaning of 'notwithstanding' and arrived at the opposite conclusion. Panel Report, US - Upland Cotton, above n 8, at para 7.279.
59. Panel Report, Canada - Pharmaceutical Products, above n 27, at para 7.16.
60. Appellate Body Report, US - Wool Shirts and Blouses, above n 9, at 16.
61. See Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (Cambridge: Cambridge University Press, 2003), at 184 (explaining that 'WTO rules mostly prohibit the imposition of trade restrictions, they do not impose positive obligations on WTO members to restrict trade').
62. Appellate Body Report, EC - Hormones, above n 29, at para 104.
63. Panel Report, Brazil - Aircraft, above n 33, at para 7.55.
64. Appellate Body Report, Brazil - Aircraft, above n 23, at para 140 (original emphasis).
65. Appellate Body Report, US - FSC (Article 21.5), above n 24, at paras 127 and 128.
66. US - FSC (Article 21.5), Ibid, at para 127.
67. The fact that panels and the Appellate Body usually examine a measure first under Articles I and III and only if they find an inconsistency with these provisions they move to Article XX should not prejudge the issue. If for no other reason the agreements do not prescribe this order of analysis. In addition, an inconsistency with Articles I and III does not constitute a violation of the agreements until it is found that the measure does not comply with the conditions of Article XX.
68. In the view of the Panel, the only positive obligation in Article 13 is the obligation to show due restraint in initiating countervailing duty investigations, but this, the Panel noted, is not relevant to this dispute. Panel Report, US - Upland Cotton, above n 8, at paras 7.274 and 7.278.
69. Similarly, the Panel found that Articles 3.1, 5, and 6.9 of the SCM Agreement also 'alter the scope of the prohibited and actionable subsidies obligations by reference to the conditions in Article 13'. Consequently, the Panel concluded, 'neither those conditions nor Article 13 are an affirmative defence'. Panel Report, US - Upland Cotton, above n 8, at para 7.282.
70. Panel Report, EC - Tariff Preferences, above n 39, at para 7.37.
71. Appellate Body Report, EC - Hormones, above n 29, at para 172.
72. Appellate Body Report, Brazil - Aircraft, above n 23, at para 139.
73. Brazil - Aircraft, Ibid, at para 140.
74. Panel Report, India - Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, at paras 4.155 and 7.287.
75. Panel Report, EC - Tariff Preferences, above n 39, at para 7.52;
76. Appellate Body Report, EC - Tariff Preferences, above n 22, at para 98.
77. Appellate Body Report, EC - Tariff Preferences, above n 22, at paras 95 and 98.
78. In certain instances, this arguably resulted in the burden being allocated to both parties with respect to the same provision because, according to the Panel, the United States bore the burden with respect to its claim of violation of Article XVIII.11 and India with respect to Article XVIII.B - Article XVIII.11 is a subparagraph of Article XVIII.B. See Panel Report, India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999, at para 5.119.
79. India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, Ibid, at para 5.219.
80. Panel Report, India - Autos, above n 56, at para 7.286.
81. It is important to note that Canada had not included Article 27 in its request for establishment of a panel. Brazil argued before the panel that because Canada had not raised Article 27, Brazil could not be found in violation of Article 3 of the SCM Agreement. Canada, on the other hand, argued that it had no obligation to include Article 27 in its panel request, because Article 27 was an affirmative defense, and, therefore, it was for Brazil to raise this provision. Although the panel found that Article 27 was not an affirmative defense and that it was for Canada to establish that Brazil had not complied with the requirements of Article 27.4, the panel did not impose any sanctions on Canada for not having raised this provision in the panel request. Current WTO jurisprudence has established that claims which are not properly raised in the request for establishment of a panel cannot later be considered by the panel.
82. Panel Report, Dominican Republic - Cigarettes, above n 21, at paras 7.107 and 7.131.
83. Appellate Body Report, Brazil - Export Financing Programme for Aircraft - Recourse by Canada to Article 21.5 of the DSU, WT/DS46/AB/RW, adopted 4 August 2000, at para 66.
84. Brazil - Export Financing Programme for Aircraft - Recourse by Canada to Article 21.5 of the DSU, Ibid.
85. See Conflict of Norms, above n 43, at 318.
86. This strategy was suggested in Edwin Vermulst, Petros C. Mavroidis and Paul Waer, 'The Functioning of the Appellate Body After Four Years: Towards Rule Integrity', 33(2) Journal of World Trade (1999) 1, at 11.
87. See Panel Report, EC - Hormones, above n 36, at para 8.55;
88. Appellate Body Report, EC - Hormones, above n 29, at para 102;
89. Panel Report, US - Wool Shirts and Blouses, above n 32, at paras 5.2 and 7.12.
90. See Articles 2.2, 2.3, 5.1, and 5.6 of the SPS Agreement.
91. Appellate Body Report, EC - Hormones, above n 29, at para 102.
92. Ruth Sullivan, Statutory Interpretation (Concord: Irwin Law, 1997), at 220-34;
93. Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes (4th edn, Vancouver: Butterworths, 2002), at 262-80. In her book, Statutory Interpretation, Sullivan explains that: When two (or more) legislative provisions apply to the same facts, there are four possibilities: 1. The overlapping provisions do not conflict, and since both apply, the court gives effect to both. 2. The overlapping provisions might conflict, but the conflict is avoided through interpretation. 3. The overlapping provisions do not conflict, but the court concludes that one of the provisions was meant to be exhaustive and therefore applies to the exclusion of the other. 4. The overlapping provisions conflict and, in order to resolve the conflict, the court applies a conflict resolution rule.
94. See Charnovitz et al., above n 13, at 257.
95. It is also possible that panels and the Appellate Body consider that excluding provisions are meant to constitute an exhaustive regulation of the matter. However, it is questionable whether the provisions that have been characterized as provisions that exclude the application of others would meet the requirement of exhaustiveness. For more on that requirement, see Statutory Interpretation, above n 71, at 223.
96. In support of the view that there is no conflict between a rule and an explicit exception to that rule, e.g., between Articles III and XX of the GATT, see Conflict of Norms, above n 43, at 163, 176, 185, 250, 414.
97. In most of the cases discussed in this article, there was no disagreement between the parties over the issue of whether exceptions and excluding provisions applied. The main disagreement was over which party had to raise and prove claims regarding exceptions and excluding provisions. Turkey - Textiles is one of the few, if not the only, case where the parties seemed to disagree on the issue of whether Article XXIV of the GATT applied.
98. This question will be explored further below.
99. Panel Report, EC - Tariff Preferences, above n 39, at paras 7.37 and 7.38. See Bartels, above n 14, at 518 ('arguing that a good case could be made' that the conditions in the Enabling Clause should be seen as "positive obligations" which must be satisfied if a WTO Member wishes to benefit from the exemption applicable to trade preferences for developing countries').
100. Kevin C. Kennedy, 'Resolving International Sanitary and Phytosanitary Disputes in the WTO: Lessons and Future Directions', 55 Food and Drug Law Journal (2000) 81, at 83.
101. See Horn and Weiler, above n 15, at 252 (arguing that the paradigm shift from local discretion to an internationally determined standard is a germane factor establishing the object and purpose and the context of the TBT and SPS Agreements).
102. See Jeff Waincymer, WTO Litigation: Procedural Aspects of Formal Dispute Settlement (London: Cameron May, 2002), at 554. Waincymer argues that '[t]he different results in Hormones on the one hand and Shirts and Blouses and Reformulated Gasoline on the other are even more stark given that the SPS Agreement uses a number of criteria from Article XX of the GATT 1994 as positive requirements under its own terms'.
103. If the measure is challenged under the GATT only, under the current rules, then the burden of proof is on the defendant because Article XX is an exception. However, if the measure is challenged under the SPS Agreement and the GATT, then the burden will be on the complainant to show that the measure is not consistent with the SPS Agreement. If the complainant is not able to do so, then the measures will be found to be consistent with the SPS Agreement and, therefore, enjoy a presumption of consistency with the GATT.
104. Appellate Body Report, EC - Tariff Preferences, above n 22, at para 95.
105. Frederick M. Abbott, 'WTO Dispute Settlement Practice Relating to the Agreement on Trade-Related Intellectual Property Rights', in F. Ortino and E.-U. Petersmann (eds), The WTO Dispute Settlement System 1995-2003 (The Hague: Kluwer International Law, 2004) 421, at 443. Joost Pauwelyn has also expressed some concern that 'all the distinctions and complexities added by the AB give the impression that conditional rights [or excluding provisions] are more important than exceptions [. . .]'.
106. See Charnovitz et al., above n 13, at 257.
107. Abbott, above n 83, at 444.
108. Panel Report, Panel on Norwegian Procurement of Toll Collection Equipment for the City of Trondheim, adopted 13 May 1992, BISD 40S/319, at para 4.5;
109. Panel Report, United States - Measures Affecting Alcoholic and Malt Beverages, adopted 19 June 1992, BISD 39S/206 at paras 5.41 and 5.42;
110. Panel Report, United States - Restrictions on Imports of Tuna, September 1991, unadopted, BISD 39S/155, at para 5.22;
111. Panel Report, United States Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345, at para 5.27;
112. Panel Report, European Economic Community - Restrictions on Imports of Dessert Apples - Complaint by Chile, adopted 22 June 1989, BISD 36S/93, at para 12.3;
113. Panel Report, Canada - Import Restrictions on Ice Cream and Yoghurt, adopted 5 December 1989, BISD 36S/68, at para 59;
114. Panel Report, European Economic Community - Restrictions on Imports of Apples - Complaint by the United States, adopted 22 June 1989, BISD 36S/135, at para 5.3;
115. Panel Report, Japan - Restrictions on Imports of Certain Agricultural Products, adopted 2 March 1988, BISD 35S/163, at para 5.1.3.7;
116. Panel Report, Canada - Administration of the Foreign Investment Review Act, adopted 7 February 1984, BISD 30S/140, at para 5.20.
117. See also Philip M. Nichols, 'GATT Doctrine', 36 Virginia Journal of International Law (1996) 379, at 435;
118. Rutsel Silvestre J. Martha, 'Presumptions and Burden of Proof', 14 Journal of International Arbitration (1997) 67, at 87.
119. See, e.g., Report of the GATT Panel, United States - Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada, DS7/R, adopted 11 July 1991, BISD 38S/30, para 4.4;
120. Panel Report, Swedish Anti-Dumping Duties, adopted 26 February 1955, BISD 3S/81, para 15.
121. See also Duane W. Layton, 'The Litigation of Anti-Dumping Disputes before the World Trade Organization', 4 Business Law International (2000) 294, at 300;
122. James Cameron and Kevin R. Gray, 'Principles of International Law in the WTO Dispute Settlement Body', 50 International and Comparative Law Quarterly (2001) 248, at 28;
123. Martha, above n 85, at 87, 90, 95.
124. Appellate Body Report, EC - Hormones, above n 29, at para 104 (original emphasis).
125. Granville Williams, 'The Logic of "Exceptions" ',47(2) Cambridge Law Journal (1988) 261, at 262.
126. Cambridge Law Journal Ibid, at 278.
127. Cambridge Law Journal Ibid, at 270.
128. It is worth noting that there was a principle in Roman law according to which reus in exceptione actor est. The exceptio in Roman law referred to any defense put forward by the defendant which went beyond a mere denial of the facts alleged by the plaintiff. The expression exceptio is still used in civil law jurisdictions with a similar meaning. In the French and the Brazilian codes of civil procedure, les exceptions and exceções, respectively, constitute procedural pleas such as the plea of lack of jurisdiction.
129. This statement is based on a review of the cases published in the 'International Court of Justice Decisions, Combined' database of http://www.lexis.com (visited 20 June 2006).
130. John W. Strong, ed, McCormick on Evidence (vol. 2, 5th edn, St. Paul: West Group, 1999) at 415;
131. John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at 84.
132. John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (2nd edn, Toronto: Butterworths, 1999), at 84.
133. See Clifford S. Fishman, Jones on Evidence: Civil and Criminal (7th edn, Rochester: Lawyers Cooperative Publishing, 1992), at 272;
134. Strong, above n 93, at footnote 15 to page 414.
135. See, e.g., Section 101 of the Magistrate's Courts Act 1980 (U.K.), c. 43;
136. Section 18 of the Uniform Narcotic Drug Act 1932 (U.S.).
137. Strong, above n 93, at 414-15. Strong also notes that when an exception points to an exceptional situation, an estimate of the probabilities may suggest that the burden of proof should be allocated to the party relying upon the exception. The use of estimate of probabilities to allocate the burden of proof will be further discussed below.
138. Strong, above n 93, at 414.
139. See also Julius Stone, 'Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship, LTD. v Imperial Smelting Corporation, LTD.', 60 The Law Quarterly Review (1944) 262, at 281.
140. Sullivan, Sullivan and Driedger, above n 71, at 396 (emphasis added).
141. Sullivan and Driedger, Ibid, at 397.
142. Appellate Body Report, EC - Hormones, above n 29, at para 104.
143. See Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens & Sons, 1953), at 327 and 334; Kazazi, above n 2, at 221-2;
144. Chittharanjan F. Amerasinghe, Evidence in International Litigation (Leiden: Martinus Nijhoff, 2005), at 61-2;
145. Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996 (3rd edn, The Hague: Martinus Nijhoff, 1997), at 1083;
146. Andreas Reiner, 'Burden and General Standards of Proof', 10 Arbitration International (1994) 328, at 333;
147. Harald Koch and Frank Diedrich, Civil Procedure in Germany (The Hague: Kluwer Law International, 1998), at 109. This principle has also been embodied in Article 9 of the French Code of Civil Procedure.
148. See Christian Dodd, The French Code of Civil Procedure in English (Dobbs Ferry: Oceana Publications, 2005).
149. See Cheng, above n 102, at 332; Kazazi, above n 2, at 221. In this light, Principle 21.1 of the ALI/ UNIDROIT Principles of Transnational Civil Procedure provides that 'each party has the burden to prove all the material facts that are the basis of that party's case'.
150. See American Law Institute & UNIDROIT, Principles of Transnational Civil Procedure (Cambridge: Cambridge University Press, 2006), at 42.
151. See, e.g., Strong, above n 93, at 412; Rosenne, above n 102, at 1083.
152. Colin Tapper, Cross and Tapper on Evidence (9th edn, London: Butterworths, 1999), at 119; Strong, above n 93, at 413;
153. John Henry Wigmore, Evidence in Trials at Common Law (vol. 9, Boston: Little Brown and Company, 1981) at 288.
154. Wigmore, above n 105, at 288.
155. For example, see Article 2697 of the Italian Civil Code; Article 333 of the Brazilian Code of Civil Procedure. The same rule seems to be applied in Japanese civil procedure.
156. See Yasuhei Taniguchi, Pauline C. Reich and Hiroto Miyake, eds, Civil Procedure in Japan (2nd edn, Yonkers: Juris Publishing, 2002), at para 7.05[14].
157. See Luiz Eduardo Boaventura Pacífico, O Ônus da Prova no Direito Processual Civil (São Paulo: Revista dos Tribunais, 2001), at 129.
158. Reiner notes that the United States and the Soviet Union considered incorporating rules on the burden of proof in the UNCITRAL Model Law on International Commercial Arbitration, but the Commission overseeing the process decided not to do so. One of the reasons behind this decision was that certain aspects of the burden of proof may be more properly classified as issues of substantive, rather than procedural, law.
159. Following this line of thought, the Rome Convention of 1980 on the Law Applicable to Contractual Obligations provides that the law of the contract governs its construction - Article 10 - as well as issues regarding the burden of proof - Article 14. This is, in fact, the general approach adopted in international arbitration. According to Reiner, those arbitral awards that do not refer to the national law governing the merits of the dispute, often limit themselves to general statements or rules such as actori incumbit probatio. Reiner, above n 102, at 329-35.
160. Importantly, as noted before, allocation of the burden of proof on the basis of this distinction has not escaped criticism on account of its arbitrariness.
161. For examples of some of the questions regarding the burden of proof which have been decided by the Tribunal, see Allahyar Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-U.S. Claims Tribunal (Dordrecht: Martinus Nijhoff, 1994), at 284-88.
162. A defendant could even be the plaintiff in another proceeding based on the same fact that he alleges in his defense.
163. See Article 1.1 of the DSU.
164. See Article XXIII.1 of the GATT.
165. See Strong, above n 93, at 413; Wigmore, above n 105, at 288; Fishman, above n 95, at 260; Tapper, above n 105, at 118-9; Boaventura Pacífico, above n 108, at 63-5.
166. See Wigmore, above n 105, at 288; Strong, above n 93, at 413;
167. Fleming James Jr., 'Burdens of Proof', 47 Virginia Law Review (1961) 51, at 60.
168. See also Tapper, above n 105, at 129 (arguing that 'there is nothing in the nature of a general rule that the burden of establishing any defence based on facts peculiarly within his knowledge is borne by him').
169. See Fishman, above n 95, at 267 and 271; Strong, above n 93, at 413.
170. See Charles V. Laughlin, 'The Location of the Burden of Persuasion', 18 University of Pittsburgh Law Review (1956) 3, at 7.
171. These considerations suggest that the problem of access to information in possession of the opponent should ideally be solved through other mechanisms.
172. Strong, above n 93, at 413; James Jr., above n 116, at 61; Stone, above n 97, at 278; Fishman, above n 95, at 272; Wigmore, above n 105, at footnote 3 to page 289.
173. Laughlin argues that the same kind of policy considerations that determine the rules of substantive law should also determine the allocation of the burden of persuasion. In his view, '[i]t seems incredible that any rule which controls the results of cases, by stating the legal consequences of a failure to have a certain type of knowledge, should be based upon any premise other than consideration of social policy'. Laughlin, above n 118, at 10. Similarly, Stone argues that '[w]here once it has been agreed that there is no applicable rule and no precedent, it is respectfully believed that the Court should proceed openly to the considerations of policy which in the last resort must base the making of a new rule'. Stone, above n 97, at 283. See also Wigmore, above n 105, at footnote 3 to page 289; Strong, above n 93, at 415.
174. Many commentators have come to a similar conclusion. See Thomas R. Lee, 'Pleading and Proof: The Economics of Legal Burdens', 1997 Brigham Young University Law Review (1997) 1, at 3; Wigmore, above n 105, at 288; Tapper, above n 105, at 118 and 120; Sopinka, Lederman and Bryant (1992), above n 93, at 83; Fishman, above n 95, at 239; Strong, above n 93, at 415.
175. See references in n 102 above.
176. See Sir Arthur Watts, 'Burden of Proof, and Evidence Before the ICJ', in F. Weiss (ed), Improving WTO Dispute Settlement Procedures: Issues and Lessons from the Practice of Other International Courts and Tribunals (London: Cameron May, 2000) 289, at 292; Rosenne, above n 102, at 1083;
177. Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986), at 576.
178. Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) [26 November 1984], at para 101;
179. Land and Maritime Boundary between Cameron and Nigeria (Preliminary Objections) [11 June 1998], at para 101;
180. Avena and other Mexican Nationals [31 March 2004], at para 55.
181. As noted before, the burden of proof relates to proof of the factual basis of claims as a whole.
182. Lee, above n 122, at 4-5;
183. Bruce L. Hay, 'Allocating the Burden of Proof', 72 Indiana Law Journal (1997) 651, at 654.
184. Error costs include not only the costs of underdeterrence but also the costs of overdeterrence.
185. Hay, above n 127, at 675.
186. Hay argues that considering the universe of all potential disputes, the odds that a given dispute actually involves a meritorious claim for judicial relief are probably quite small.
187. Hay, above n 127, at 673-7. In another paper, Hay arrives at a similar conclusion based on slightly different theory.
188. Bruce L. Hay and Kathryn E. Spier, 'Burdens of Proof in Civil Litigation: An Economic Perspective', 26 Journal of Legal Studies (1997) 413.
189. Hay, above n 127, at 677.
190. Ibid, at 677-8. Hay explains that the party bearing the burden of proof will submit evidence to the court only if the result of (1) the party's estimated chance of success multiplied by (2) the amount at stake for the party is bigger than (3) the party's cost of presenting evidence. Taking this into account and assuming that the plaintiff's cost of filing a claim are minimal, if the burden of proof is allocated to the defendant, the plaintiff will file a suit, 'so long as the plaintiff's estimated chance of winning is greater than zero'. However, if the plaintiff bears the burden of proof, 'she will file a claim if and only if the plaintiff's threshold for presenting evidence [- as just described -] is satisfied. Because if that threshold is not satisfied, the plaintiff knows she will lose the case (because she will not present evidence), so there is no point in suing'. Hay, above n 127, at 661.
191. Ibid, at 678.
192. Ibid.
193. In the WTO context, post-judgment costs include costs associated with Articles 21 and 22 of the DSU. For example, the costs incurred in Article 21.3(c) of the DSU arbitrations to determine the 'reasonable period of time' and Article 22.6 of the DSU arbitrations to determine the level of nullification and impairment and the appropriate countermeasures. The costs that the defendant would incur to modify the measure may also be counted as post-judgment costs.
194. Lee, above n 122, at 12-14.
195. Ibid, at 14.
196. Ibid.
197. Hay, above n 127, at 677; Lee, above n 122, at 16, 21, 27-8. Hay mentions a fourth situation where the burden should be allocated to the defendant, i.e., when 'the plaintiff has more at stake in the case'. This factor, however, can be taken into account in the calculations of the costs associated with a decision against the complainant. Therefore, I opted not to list it above.
198. In these cases, assigning the burden of proof to the defendant would reduce error costs and, thus, minimize the social loss function.
199. Lee notes that '[t]here are at least two categories of issues where defendant's access to proof is likely to be superior. First are issues involving conduct of the defendant where the plaintiff may not have been involved. [. . .] The second category of issues for which defendant has greater access to proof involves interactions between the two parties for which the defendant has superior incentives to keep records of the transaction'. Lee, above n 122, 16-7.
200. If an error in the defendant's favour is more costly than an error in the plaintiff's favour, then the burden of proof should be allocated to the defendant because if no evidence is produced or the court is not certain about the meaning of the evidence, the higher-social-cost party, i.e., the defendant, will lose the case. Therefore, this allocation will save costs.
201. The negotiators' decision to provide for a special allocation of the burden of proof in Article 10.3 of the Agreement on Agriculture may be explained in the following grounds. Negotiators had knowledge of the fact that if export subsidies are admittedly provided to a scheduled volume of exports, the likelihood that those subsidies were also provided to exports in excess of those scheduled volumes is high - theory of a priori judgments. This would be so because it would be difficult for the Member providing the subsidy to make sure that no exports over the scheduled volume would benefit from the subsidies. Members might also have been concerned with the fact that it would be costly for the complainant to prove that subsidies were not provided to exports in excess of scheduled commitments - relative-cost-of-proof theory. Placing the burden of proof on the defendant would create an incentive for the defendant to develop a system to ensure that no subsidies were provided in excess of scheduled commitments and to keep record of transactions.
202. This is a reasonable premise, because domestic courts often take these kinds of considerations into account when allocating the burden of proof. For more details, see following paragraph.
203. An exception here would be defined according to its ordinary meaning, i.e., 'the action of excepting (a person or thing, a particular case) from the scope of a proposition, rule, etc. [. . .] Something that is excepted; a particular case which comes within the terms of a rule, but to which the rule is not applicable'. The Oxford English Dictionary, above n 30, at 498.
204. See Horn and Weiler, above n 15, at 262-3, 268 (Horn and Weiler suggest that the Appellate Body take into account the error-cost theory).
205. If the complainants are given information beforehand, which can help them to assess their chances of success, then this will reduce the number of cases brought to adjudication and, therefore, save costs associated with likely unsuccessful cases.
206. Article 5.8 requires Members to provide an explanation of the reasons for a sanitary or phytosanitary measure that is not based on an international standard. Section 3 of Annex B requires the creation of enquiry points to provide answers to all reasonable questions from interested Members as well as to provide relevant documents.
207. Support for this view can be found in EC - Sardines, where the Appellate Body noted that the TBT Agreement affords means for the complainant to obtain information about the objectives of technical regulations or the specific considerations that may be relevant to the assessment of their appropriateness - Article 2.4 of the TBT Agreement.
208. For example, information can be obtained under Article 2.5 of the TBT Agreement and through the enquiry points that must be established by the respondent according to Article 10 of the TBT Agreement. Appellate Body Report, EC - Sardines, above n 28, at paras 277-80.
209. In Japan - Agricultural Products, the Appellate Body noted that the failure of a Member, following a request under Article 5.8 of the SPS Agreement, to provide information regarding scientific studies or reports supporting its measure would indicate that those studies do not exist.
210. Appellate Body Report, Japan - Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, at para 137.
211. For example, as Japan noted in Japan - Apples, the exporting country affected by the disease may 'naturally' have more information on that disease than the importing country.
212. Panel Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/R, adopted 10 December 2003, at para 8.44.
213. See, similarly, Horn and Weiler, above n 15, at 268.
214. The preamble to the SPS Agreement and Article 3 refer to harmonization as one of the objectives of the SPS Agreement.
215. Diversity is obviously costly; otherwise countries would not invest resources in standard setting institutions and in negotiating the SPS Agreement.
216. It is important to note that if this same analysis was conducted by the WTO Members at the moment they were negotiating the SPS Agreement, they could decide to give more weight to one of these costs. Because these costs are difficult to quantify and the current situation does not indicate that Members give more weight to one or the other, panels and the Appellate Body should find that those costs cancel each other out. This does not mean that in the future WTO Members cannot decide that the costs of little harmonization are higher than other costs and, thus, place the burden of proof on the defendant.
217. Lee explains that in the United States law of defamation defendants traditionally had the burden of proving the truth of all allegedly defamatory statements because the law valued the individual's interest in reputation more highly than it did the defendant's interest in his money - an erroneous decision in favour of the plaintiff involved a finding of defamation and a transfer of payment for damages, whereas an erroneous decision in favour of the defendant resulted in the wrongful erosion of the good reputation of the plaintiff. In 1986, however, the Supreme Court changed that allocation for cases where the plaintiff is a public figure or where the speech is of public concern. The reason behind this change was that the constitutional policy of ensuring that true speech on matters of public concern is not deterred outweighs the common law policy favouring defamation plaintiffs. The Court believed that erroneous decisions in favour of the plaintiff would deter true speech on matters of public concern. Lee, above n 122, at 22-3.
218. The analysis below is restricted to paragraphs (a), (b), (e), and (g), in combination with the chapeau of Article XX. This does not necessarily mean that an analysis of the other paragraphs would lead to a different conclusion.
219. The word 'protectionist' is used to refer to the requirements contained in Article XX of the GATT.
220. Kazumochi Kometani, 'Trade and Environment: How Should WTO Panels Review Environmental Regulations Under GATT Articles III and XX?', 16 Northwestern School of Law Journal of International Law & Business (1996) 441, at 452.
221. This was to a certain extent the view of the Appellate Body in US - Gambling; though in that case the Appellate Body seems to have only required the complainant to raise, as opposed to prove, the existence of less-trade-restrictive measures. While it may be easier in certain circumstances for the complainant to present information regarding less-trade-restrictive measures, I do not share the view of the Appellate Body that it would be 'impracticable' or 'impossible' for the defendant to identify less-trade-restrictive measures and prove that they would not be reasonably available.
222. Importantly, in US - Gambling the Appellate Body still allocated the burden of proof with respect to Article XIV of the GATS - which is equivalent to GATT Article XX - to the defendant. The approach adopted by the Appellate Body is questionable because the party who bears the burden of proof with respect to a certain claim should have to prove the factual basis of that claim. If an analysis of the availability of less-trade-restrictive measures is an element of the definition of 'necessary' in Article XIV(a) of the GATS and the burden of proof with respect to Article XIV(a) is on the defendant, then the defendant should have to prove all the elements of that definition. Otherwise, how can we conclude that the measure was necessary?
223. See Appellate Body Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, at paras 309-11.
224. The costs associated with the removal of a measure may differ according to the importance that Members attach to the objective pursued by the measure. It is not the objective of this article to undertake a careful analysis of all the paragraphs of Article XX of the GATT.
225. Compare with Conflict of Norms, above n 43, at footnote 34 to page 250.
226. See Lee, above n 122, at 6-7.
227. Ibid, at 9.
228. Ibid, at 8.
229. The Appellate Body noted that because of its vital role in promoting trade as a means of stimulating economic growth and development, the Enabling Clause 'is not a typical "exception," or "defence," in the style of Article XX of the GATT 1994, or of other exception provisions identified by the Appellate Body in previous cases'. Appellate Body Report, EC - Tariff Preferences, above n 22, at para 106.
230. According to the Appellate Body, the history of the Enabling Clause demonstrates its special status in the WTO. The Enabling Clause reflects the realization that 'the MFN obligation failed to secure adequate market access for developing countries so as to stimulate their economic development'. Appellate Body Report, EC - Tariff Preferences, above n 122, at para 107-9.
231. EC - Tariff Preferences Ibid, at para 114.
232. This is so because non-compliance with the rules on the burden of pleading in this situation would have little, if any, negative consequences to India. What would be the consequences if India failed to raise the Enabling Clause? Would the case then be restricted to Article I of the GATT? If this were the case, then India would likely benefit from non-compliance with the rule
233. See Horn and Weiler, above n 15, at 263 ff. Horn and Weiler urge the Appellate Body to develop a more sophisticated analysis with respect to the allocation of the burden of proof.