General Rules of Evidence under the WTO Jurisprudence
刘成伟
【关键词】Chapter VI
【全文】
OUTLINE
IBurden of Proof under the WTO Jurisprudence
(ⅰ)General Rules Well Established in Violation Complaints
(ⅱ)Burden of Proof in case of Invoking an Exception
(ⅲ)Special Rules Concerning Non-Violation Claims
(ⅳ)Summary and Conclusions
IIAdmissibility of Certain Evidences
(ⅰ)Evidence Obtained from Prior Consultations
(a) Procedural Concern: Confidentiality of Consultations
(b) Substantial Concern: Necessity or Relevance of Evidence
(ⅱ)Arguments before Domestic Investigative Authorities
(ⅲ)Arguments Submitted after the First Substantive Meeting
(a) There is a significant difference between the claims and the arguments supporting those claims.
(b)There is no provision establishing precise deadlines for the presentation of evidence.
IIIPanel’s Right to Seek Information
(ⅰ)A Grant of Discretionary Authority
(ⅱ)The Admissibility of Non-requested Information
(ⅲ)Summary and Conclusions
IVAdverse Inferences from Party’s Refusal to Provide Information Requested
(ⅰ) The Authority of a Panel to Request Information from a Party to the Dispute
(ⅱ) The Duty of a Member to Comply with the Request of a Panel to Provide Information
(ⅲ) The Drawing of Adverse Inferences from the Refusal of a Party to Provide Information Requested by the Panel
VConcluding Remarks
IBurden of Proof under the WTO Jurisprudence
Generally, the question of whether a member acted in accordance with the agreement hinges frequently on whether and to what extent that member must demonstrate compliance or the complaint must demonstrate a lack of compliance. It is demonstrated that the burden of proof is a procedural concept which speaks to the fair and orderly management and disposition of a dispute. This is the issue of “the ultimate burden of proof for establishing a claim or a defence”. In this respect, the Panel Report on US-Copyright Act (DS160) states, “
hile a duty rests on all parties to produce evidence and to cooperate in presenting evidence to the Panel, this is an issue that has to be distinguished from the question of who bears the ultimate burden of proof for establishing a claim or a defence”.1
(i) General Rules Well Established in Violation Complaints
Art. 3.8 of the DSU provides that in cases where there is an infringement of the obligations assumed under a covered agreement -- that is, in cases where a violation is established -- there is a presumption of nullification or impairment. However, the issue of burden of proof here is not what happens after a violation is established; the issue is which party must first show that there is, or is not, a violation. In this respect, a number of GATT 1947 panel reports contain language supporting the proposition that the burden of establishing a violation under Article XXIII:1(a) of the GATT 1947 was on the complaining party, i.e., it was for the complaining party to present a prima facie case of violation before a panel. This rule is taken on by the DSB.
With regard to the issue of burden of proof, the Appellate Body in US-Shirts and Blouses (DS33) rules that: “In addressing this issue, we find it difficult, indeed, to see how any system of judicial settlement could work if it incorporated the proposition that the mere assertion of a claim might amount to proof. It is, thus, hardly surprising that various international tribunals, including the International Court of Justice, have generally and consistently accepted and applied the rule that the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. Also, it is a generally-accepted canon of evidence in civil law, common law and, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption.” 2And this ruling is demonstrated to be well established in subsequent cases as a general rule concerning burden of proof.
For example, in Argentina-Leather (DS155), the Panel states: “The relevant rules concerning burden of proof, while not expressly provided for in the DSU, are well established in WTO jurisprudence. The general rule is set out in the Appellate Body report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses, wherein it is stated that: ‘It is a generally-accepted canon of evidence in civil law, common law and, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption’.” 3
And in US-Cotton Yarn (DS192), the Panel rules in pertinent part: “The Appellate Body and subsequent panels endorsed this principle that a complainant bears the burden of proof. For example, the Appellate Body, in EC - Hormones, states as follows: ‘… The initial burden lies on the complaining party, which must establish a prima facie case of inconsistency with a particular provision of the SPS Agreement on the part of the defending party, or more precisely, of its SPS measure or measures complained about. When that prima facie case is made, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency. This seems straightforward enough and is in conformity with our ruling in United States - Shirts and Blouses, which the Panel invokes and which embodies a rule applicable in any adversarial proceedings.’” 4
As a whole, on the one hand, as ruled by the Panel in Argentina-Ceramic Floor Tiles (DS189), “
e recall that the burden of proof in WTO dispute settlement proceedings rests with the party that asserts the affirmative of a particular claim or defence. It implies that the complaining party will be required to make a prima facie case of violation of the relevant provisions of the WTO Agreement, which is for the defendant…to refute. In this regard, the Appellate Body has stated that ‘... a prima facie case is one which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie case’…”; 5 on the other hand, as noted in the Panel Report on US-Copyright Act (DS160), “
he same rules apply where the existence of a specific fact is alleged. We note that a party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. It is for the party alleging the fact to prove its existence. It is then for the other party to submit evidence to the contrary if it challenges the existence of that fact”. 6
In sum, with respect to the general rules of burden of proof in the context of violation complaints, as ruled by the Panel in Japan-Film (DS44): “
e note that as in all cases under the WTO/GATT dispute settlement system - and, indeed, as the Appellate Body recently stated, under most systems of jurisprudence - it is for the party asserting a fact, claim or defence to bear the burden of providing proof thereof. Once that party has put forward sufficient evidence to raise a presumption that what is claimed is true, the burden of producing evidence then shifts to the other party to rebut the presumption.…”. 7Certainly, as noted by the Appellate Body in US-Shirts and Blouses (DS33), “
