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(ⅳ) Summary and Conclusions
To sum up, in the context of violation complaints under Article XXIII:1(a) of the GATT 1994, as ruled by the Panel in Turkey-Textile and Clothing Products (DS34): “The rules on burden of proof are now well established in the WTO and can be summed up as follows: (a) it is for the complaining party to establish the violation it alleges; (b) it is for the party invoking an exception or an affirmative defense to prove that the conditions contained therein are met; and (c) it is for the party asserting a fact to prove it.” 12
And in the context of non-violation complaints under Article XXIII:1(b) of the GATT 1994, “[the complainant], with respect to its claim of non-violation nullification or impairment under Article XXIII:1(b), bears the burden of providing a detailed justification for its claim in order to establish a presumption that what is claimed is true. It will be for [the defendant] to rebut any such presumption”.
ⅡAdmissibility of Certain Evidences
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Generally, as a matter of process before the panel, the complainant will submit its arguments and evidence and the respondent will respond to rebut the complainant’s claims. However, as noted above, the allocation of burden of proof is only applicable to determine precisely how much and precisely what kind of evidence will be required to establish a presumption that what is claimed is true. Next, once the party asserting a fact or the affirmative of a particular claim or defence has succeeded in raising a presumption that its claim is true, it is incumbent on panels, before whom such a presumption is successfully raised, to assess the merits of all the arguments made and the admissibility, relevance and weight of all the factual evidence submitted with a view to establishing whether the party contesting the presumption raised has successfully rebutted it. And at the end of this process, it is for the panel to weigh and assess the evidence submitted and arguments asserted by both parties in order to reach conclusions as to whether the claims raised by the complainant are ultimately well-founded or successfully rebutted.
However, the following paragraphs will not deal with everything involved in the process of panels’ assessment of arguments or evidence, which arises logically after the allocation of burden of proof, but focus on the admissibility issue, i.e., a matter of to what extent and how the evidence available to panels should be based on to determine whether, on balance, alleged impairment or nullification exists. In this respect, as to be demonstrated in the following paragraphs, panels enjoy their broad discretion in admitting various evidences.
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