Burden of proof, prima facie case and presumption in WTO dispute settlement

Cornell International Law Journal

Volumn 42, Issue 1, 2009, Pages 23-43

  Barceló, John J ^a  

^a Department of Law

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EID: 67650445220     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (136)

1. See Yasuhei Taniguchi, Understanding the Concept of Prima Facie Proof in WTO Dispute Settlement, in THE WTO: GOVERNANCE, DISPUTE SETTLEMENT & DEVELOPING COUNTRIES 553, 558 (Merit E. Janow, Victoria Donaldson & Alan Yanovich eds., 2008);
2. David Unterhalter, The Burden of Proof in WTO Dispute Settlement, in THE WTO: GOVERNANCE, DISPUTE SETTLEMENT & DEVELOPING COUNTRIES, supra, at 543, 544. In an earlier piece, Joost Pauwelyn also concluded that the burden of proof, understood as the burden of persuasion, does not shift from one party to the other during the course of a WTO proceeding. Joost Pauwelyn, Evidence, Proof and Persuasion in WTO Dispute Settlement, 1 J. INT'L ECON. L. 227, 252-58 (1998). Note that one should not conclude that no legal system ever allows the burden of persuasion to shift. In both U.S. and German procedure the persuasion burden does in fact shift in a number of contexts, as will be discussed later in the text. See discussion infra Part III.
3. See Taniguchi, supra note 1, at 566-67, 569-71; Unterhalter, supra note 1, at 551.
4. Common law jurisdictions are not monolithic. The discussion in the text therefore refers only to U.S. common law practice, even though in the rest of the text the simple term "common law procedure" or "common law practice" is used without clarifying that only U.S. common law is intended.
5. Appellate Body Report, United States- Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R (Apr. 25, 1997) (adopted May 23, 1997) [hereinafter US-Shirts and Blouses]. Commentators often cite US-Shirts and Blouses uncritically, implying that it articulates an unproblematic explanation of burden of proof in WTO proceedings. For example, concerning burden of proof and US-Shirts and Blouses, Mitsuo Matsushita, Thomas J. Schoenbaum and Petros S. Mavroidis have commented that the decision establishes the general principle that it is incumbent on the party challenging the conduct of another party to adduce prima facie evidence of facts and law to show that the conduct of the challenged party is in violation of the provision in question. When such a proof is established, the burden of proof is shifted to the party under challenge to adduce a rebuttal that the allegation of the challenging party is not based on an appropriate ground. MITSUO MATSUSHITA, THOMAS J. SCHOENBAUM & PETROS C. MAVROIDIS, THE WORLD TRADE ORGANIZATION: LAW, PRACTICE, AND POLICY 126 (2d ed. 2006). Raj Bhala also restates the meaning of burden of proof found in US- Shirts and Blouses. Bhala states: Thus the burden of proof rule has three steps to be followed in seriatim. First, a complainant Member must present a prima facie case. Second, if it does, then it creates a rebuttable presumption that the measure complained of is inconsistent with the applicable rule. Third, the burden shifts to the respondent Member to rebut the presumption. RAJ BHALA, INTERNATIONAL TRADE LAW: INTERDISCIPLINARY THEORY AND PRACTICE 165 (3d ed. 2008). While these quoted summaries accurately reflect the language the AB used in US-Shirts and Blouses, one is driven to ask why, especially as a general rule of burden of proof, the burden should shift once the complaining party makes out a mere prima facie case.
6. US-Shirts and Blouses, supra note 4, at 14 (emphasis added).
7. Appellate Body Report, European Communities-Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R Qan. 16, 1998) [hereinafter EC-Hormones].
8. Id. 1 98.
9. See US-Shirts and Blouses, supra note 4, at 16 (discussing the shifting of the burden, but failing to identify which burden has shifted).
10. Id.
11. EC-Hormones, supra note 6,1 98 (emphasis added).
12. See US-Shirts and Blouses, supra note 4, at 7 (discussing the shifting of the burden after India presented a prima facie case, but failing to give any reasons why said burden shifts).
13. Compare RICHARD H. FIELD, BENJAMIN KAPLAN & KEVIN M. CLERMONT, CIVIL PROCEDURE: MATERIALS FOR A BASIC COURSE 34-35, 1319-24 (9th ed. 2007) [hereinafter CIVIL PROCEDURE] (giving common law definitions for "burden of proof and "presumptions"), with US-Shirts and Blouses, supra note 4, at 13-16 (discussing the AB's interpretation of "burden of proof), and EC-Hormones, supra note 6,11 110-119 (discussing the AB's interpretation of "presumptions").
14. Joost Pauwelyn, Yasuhei Taniguchi, and David Unterhalter all give excellent and insightful discussions of many of the points discussed in this article, though their emphases, interpretations, and analyses vary from one another and from those of this essay. See generally Pauwelyn, supra note 1; Taniguchi, supra note 1; Unterhalter, supra note 1.
15. See infra Part II.A.
16. See infra Part II.B.
17. See generally CIVIL PROCEDURE, supra note 12, at 1308-18.
18. See id. at 1309 (citing John M. Maguire, Evidence: Common Sense and the Common Law 175-77 (1947)).
19. See id. at 1309-10, 1313.
20. See id. at 1309-10.
21. See id. at 1311.
22. See id. at 1311-12.
23. Cf. id. at 1309-10 (describing how a judge uses the production burden to prevent a case from getting to the jury in certain circumstance).
24. See id. at 1310.
25. See id. at 1309.
26. See id. at 1310.
27. See id.
28. Hein Kotz cites this feature as perhaps the most salient distinction between common law and civil law procedure in a civil trial. See Hein Kotz, Civil Justice Systems in Europe and the United States, 13 DUKE J. COMP. & INT'L L. 61, 71-72 (2003).
29. See CIVIL PROCEDURE, supra note 12, at 154-55.
30. See id. at 153-54.
31. See id. at 154.
32. See id.
33. See id.; see also Fed. R. Civ. P. 50(a).
34. Cf. FED. R. CIV. P. 50(a)(1) (noting that the court may grant judgment as a matter of law if "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue").
35. See CIVIL PROCEDURE, supra note 12, at 154-55.
36. See id. at 154.
37. See id.
38. See id. at 154, 179.
39. V. C. Ball, The Moment of Truth: Probability Theory and Standards of Poof, 14 VAND. L. REV. 807, 817 (1961).
40. See CIVIL PROCEDURE, supra note 12, at 1310.
41. See id.
42. See id.
43. See id.
44. See id.
45. See id.
46. See id.
47. See id. at 155, 1310.
48. See id. at 1310.
49. See id. at 1310-11.
50. See infra Part II.A.3.
51. See CIVIL PROCEDURE, supra note 12, at 153.
52. See generally id. at 1324-31;
53. Kevin M. Clermont, Procedure's Magical Number Three: Psychological Bases for Standards of Decision, 72 CORNELL L. REV. 1115 (1987). For a comparison of common law and civil law approaches to standards of proof, see Kevin M. Clermont & Emily Sherwin, A Comparative View of Standards of Proof, 50 Am. J. Comp. L. 243 (2002).
54. See, e.g., Clermont & Sherwin, supra note 51, at 251.
55. See Clermont, supra note 51, at 1119-20.
56. Cf. CIVIL PROCEDURE, supra note 12, at 1352 (discussing different articulations of the standard for a directed verdict).
57. See Clermont, supra note 51, at 1119.
58. See id.
59. See CIVIL PROCEDURE, supra note 12, at 1328-29.
60. See Unterhalter, supra note 1, at 551 (stating that "the Appellate Body has been somewhat agnostic as to the quantum of evidence that suffices to establish a prima facie case," and that it is unclear what this standard entails).
61. See id. (describing a variable standard for determining when evidence establishes a prima facie case).
62. Cf id. at 552. Unterhalter's status as an AB member, along with his conclusion that "standard of proof is necessarily a concept cast in probabilistic terms" and that "there seems little reason not to adopt a standard that is clear and well understood in other contexts, the most obvious candidate being proof on a balance of probabilities" suggests that preponderance of the evidence is the general rule in WTO cases. See id.
63. See id. at 551.
64. One might understand the AB's reasoning in EC-Asbestos as effectively requiring a higher standard of proof to give greater regulatory discretion to governments seeking to control health risks stemming from potentially dangerous products. See generally Appellate Body Report, European Communities- Measures Affecting Asbestos and Asbestos- Containing Products, WT/DS135/AB/R (Mar. 12, 2001). Although the AB does not speak explicitly in standard of proof terms, its discussion comes very close. For example, on the issue of "likeness" of products (asbestos compared to PCG fibres), the AB explained that Canada would bear a heavy burden to show that the products were "like" once it was clear that the products were physically different in a way that caused asbestos to pose a serious health risk (cancer) not present with the other products. See id. 1 118. Indeed the majority ruled for the EC on the ground that Canada had failed to meet that burden. Id. 1126. Again in its analysis of the "necessity test" under Article XX(b) (to protect human, animal, or plant life or health), the AB said that if serious health consequences are potentially at stake (e.g., cancer), a regulating government would have more leeway in meeting the necessity test. See id. I 172. Putting this point differently, one could say that the standard of proof-or of persuasiveness- needed to require a regulating government to use an alternative means to the same health end would be greater than normal.
65. See DAN B. DOBBS, THE LAW OF TORTS 365-69 (2000) (discussing burden of proof and presumptions in the common law); CIVIL PROCEDURE, supra note 12, at 1319-24.
66. 450 U.S. 248 (1981).
67. Id. at 254 n.7.
68. That this is the way prima facie is understood (at least as to its use in common law) in Pauwelyn, supra note 1, at 229.
69. Burdine, 450 U.S. at 254 n.7.
70. Cf. Unterhalter, supra note 1, at 549-50 (discussing the "strict account of a prima facie case").
71. Burdine, 450 U.S. at 254 n.7 (emphasis added).
72. 411 U.S. 792 (1973).
73. Id. at 802-03.
74. The Court in Burdine declared that the presumption shifts only the production burden and not the burden of persuasion. Burdine, 450 U.S. at 253.
75. For further discussion on burden of proof and burden of persuasion see CIVIL PROCEDURE, supra note 12, at 1319-39.
76. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 245-48 (1989) (holding that in a gender discrimination case, if the plaintiff can show that impermissible factors-such as gender-influenced the decision to not promote the plaintiff for partnership, then the entire burden of proof shifts to the defendant to show that discrimination did not influence the decision).
77. This statement of course assumes that we are dealing with a rebuttable and not an irrebutable presumption.
78. See Kotz, supra note 27, at 72.
79. See id.
80. See id. at 68-69, 72.
81. PETER L. MURRAY & ROLF STURNER, GERMAN CIVIL JUSTICE 267 (2004).
82. Id.
83. See id.
84. See id. at 253-59.
85. See id. at 267 (noting that "the party who asserts a fact favoring that party's claim or defense has the burden of proof of that fact").
86. See Pauwelyn, supra note 1, at 230 n.7 (noting that in civil law there is nothing similar to the common law motion practice to test whether an opponent's evidence meets a production burden).
87. See MURRAY & STURNER, supra note 79, at 269, 311.
88. See id. at 269.
89. See supra notes 67-69 and accompanying text.
90. See MURRAY & STURNER, supra note 79, at 268.
91. See id.
92. See id. at 310-11.
93. See id.
94. Id. at 267. This example is similar to the way in which the common law doctrine of res ipsa loquitur operates; except that at common law, res ipsa loquitur normally only meets the claimant's burden of production without shifting the burden of production to the respondent. See generally DOBBS, supra note 63, at 370-81.
95. WALTER ZEISS, ZIVILPROZESSRECHT 183 (1971).
96. See generally US- Shirts and Blouses, supra note 4.
97. See generally Appellate Body Report, Korea- Taxes on Alcoholic Beverages, WT/ DS75/AB/R, WT/DS84/AB/R (Jan. 18, 1999).
98. US-Shirts and Blouses, supra note 4, at 14.
99. See id.
100. Id.
101. See EC- Hormones, supra note 6,1 98.
102. Id.
103. See id.
104. See supra notes 67-69 and accompanying text.
105. Understanding on Rules and Procedures Governing the Setdement of Disputes art. 3.8, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125, 1226 (1994) [hereinafter DSU].
106. See infra notes 106-112 and accompanying text.
107. Report of the Panel, United States-Taxes on Petroleum and Certain Imported Substances, L/6175 (June 17, 1987), GATT B.I.S.D. (34th Supp.) at 136 (1987) [hereinafter Superfund].
108. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-ll, 55 U.N.T.S. 194 [hereinafter GATT].
109. See Superfund, supra note 105,1 3.1.1.
110. Id. 1 3.1.2.
111. See id. 1 5.1.9.
112. See id. !
113. Id.
114. Id.
115. See US-Shirts and Blouses, supra note 4, at 13.
116. See id. at 13-14.
117. See id.
118. See DSU arts. 3.12, 12.8.
119. See id. art. 12.6, app. 3, paras. 4, 7.
120. See id. art. 12.6, app. 3.
121. See id. art. 12.6, app. 3, para. 12.
122. See id. art. 12.6. See generally id. app. 3.
123. See id. app. 3, para. 7.
124. See id. app. 3, para. 5.
125. See id. app. 3, paras. 7, 8.
126. See id. app. 3, paras. 8, 12 (discussing proposed timetable for panel work, noting that the calendar "may be changed in the light of unforeseen developments," and allowing for additional meetings with the parties).
127. See generally id. app. 3, para. 12 (describing the working procedures of the panel in a timetable format).
128. See generally id. app. 3.
129. Both Taniguchi and Unterhalter appear to favor this colloquial understanding of the AB's burden-shifting language. See Taniguchi, supra note 1, at 566-67, 571; Unterhalter, supra note 1, at 551.
130. See, e.g., EC-Hormones, supra note 6,11 103-104.
131. Id. 1 104 (citing US-Shirts and Blouses, supra note 4, at 14, as support for the quoted text) (emphasis added).
132. See id.
133. See Appellate Body Report, Canada- Measures Affecting the Export of Civilian Aircraft, 1 192, WT/DS70/AB/R (Aug. 2, 1999) [hereinafter Canada-Aircraft]. 132. Id. 11 78-83.
134. Id. 1 192.
135. See Appellate Body Report, Japan-Measures Affecting Agricultural Products, 11 129-130, WT/DS76/AB/R (Feb. 22, 1999). A related point is that a complainant may not simply place a complicated piece of the respondent's legislation before the panel and expect the panel to analyze for itself what part of that legislation is relevant to the claimant's argument. See Appellate Body Report, United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services, 1140, WT/DS285/AB/R (Apr. 7, 2005). The claimant must spell this out, or otherwise it has not met its burden of proof. See id. 11 140-141.
136. See Civil Procedure, supra note 12, at 1310 ("Sometimes the plaintiffs evidence may be overwhelming, so that the judge will hold that no reasonable juror could fail to find A.").