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

Abstract

Purpose

The 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/approach

The 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.

Findings

The 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/value

The paper is an attempt to address an important issue on the presentation of evidence and proof in international litigation, i.e. WTO.

Citation

Ahmad, Z. and Malkawi, B.H. (2017), "The burden and order of proof in WTO claims: evolving issues", International Journal of Law and Management, Vol. 59 No. 6, pp. 1220-1235. https://doi.org/10.1108/IJLMA-10-2016-0090