Originally from:
The WTO: Governance, Dispute Settlement & Developing Countries
The WTO: Governance, Dispute Settlement & Developing Countries-Digital
Chapter 31 - Preview Page
The Burden of Proof in WTO Dispute Settlement
David Unterhalter
The WTO dispute settlement system is rule based. Many consider this attribute to be its central virtue. The move to a rules-based system has inevitably precipitated a debate as to the proper remit of those charged with the adjudication of disputes. There are those who argue that the Appellate Body has engaged in judicial law making and that this is a regrettable form of judicial activism that strays from the limits of its institutional mandate. Others consider gap-filling and the clarifying of ambiguity to be intrinsic to the interpretative enterprise with which the Appellate Body is engaged. On matters of procedure and evidence the DSU is particularly sparse, and the need to develop rules that render dispute settlement effective is ordinarily uncontroversial. Yet even here there has been disagreement as to whether the Appellate Body overstepped the mark in allowing amicus curiae briefs from non-State parties.
One topic, of some importance, on which the Appellate Body has developed a significant body of case law, concerns the burden of proof. The Appellate Body has proceeded here with some doctrinal freedom. And I do not consider here the limits of that freedom. Rather, I will offer some reflections upon the conceptual underpinnings of the burden of proof and its place in the dispute settlement system.
I. THE CONCEPTUAL FRAMEWORK
It may be helpful to offer some clarifications of the concept of the burden of proof and some of the confusions that sometimes bedevil this area of law.
The burden of proof answers two questions that are central to most forms of adversarial litigation that rests upon the proof of facts. First, which party must satisfy the decision-maker on a particular issue once all the evidence has been adduced?
About the Author:
David Unterhalter has been a member of the Appellate Body since 2006.